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Marshall v. Haas

United States District Court, E.D. Michigan, Southern Division

January 3, 2017

DUSTIN ARTHUR MARSHALL, Petitioner,
v.
RANDALL HAAS, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          HON. SEAN F. COX, UNITED STATES DISTRICT COURT JUDGE

         Dustin Arthur Marshall, (“Petitioner”), presently incarcerated at the Chippewa Correctional Facility in Kincheloe, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed through his attorney Frank D. Eaman, petitioner challenges his conviction for assault with intent to commit murder, Mich. Comp. Laws, § 750.83, possession of a firearm by a felon, Mich. Comp. Laws, § 750.224f, and possession of a firearm during the commission of a felony, Mich. Comp. Laws, § 750.227b. He was sentenced as a fourth-offense habitual offender, Mich. Comp. Laws, § 769.12, to concurrent prison terms of 35 to 60 years for the assault and the felon-in-possession convictions and a consecutive two-year term of imprisonment for the felony-firearm conviction. For the reasons stated below, the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.

         I. Background

         Petitioner was convicted of the above offenses following a jury trial in the Jackson County Circuit Court. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming his conviction, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's convictions arose from the nonfatal shooting of Jamaal Hunt during the early morning hours of July 5, 2009, in Jackson, Michigan.

People v. Marshall, 298 Mich.App. 607, 610, 830 N.W.2d 414, 418 (2012), judgment vacated in part, appeal denied in part, 493 Mich. 1020, 829 N.W.2d 876 (2013).

         This Court supplements the findings made by the Michigan Court of Appeals with additional evidence found in the record.

         Lasonia Ann Wilks testified that on the 4th of July she went to her sister's house with Lakeyda Powell. At the point that she was to be taken home, her sister went to another car to speak to someone, leaving her sitting in her sister's car. Wilks testified that she saw a confrontation occur between two men on the street, one of whom she believed to be petitioner. Wilks testified that she believed it was petitioner because she had seen him earlier that day at the 915 house on the stoop. (Tr. 1/25/2010, pp. 111-113, 116). Wilks then testified to the events following the shooting as follows:

A [Ms. Wilks]: I don't -- I mean, I-- that's what I told the dispatcher when they called, I said, “it was the fuckin white boy.” Q [Prosecutor]:Who was over at 915, correct?
A Correct.
*****************************************************************
Q Do you recall -- let me rephrase this, when you were in the car and you saw the person that you believed to be Dustin Marshall shoot Jamaal, did you actually see the gun?
A I seen a withdraw from a waist and I seen fire.
Q From -- and who was withdrawing from his waist?
A The person that shot Jamaal.
Q Is that Dustin Marshall?
A I guess, yeah.
Q You guess? You've identified him as the person you believe to be the shooter.
A Right.
Q Is that the person you saw pull something out of his waist?
A I believe so.
Q And how many times did you hear fire?
A Three or four.
Q Did you see a weapon in Mr. Hunt's hand?
A No.
Q When -- you stated initially that you saw him walk by when you were first in the car, was that Dustin Marshall or was that Jamaal Hunt?
A That was Jamaal.
Q And he was walking to the area of 915?
A Yes.
Q It was that house that he was shot in front of?
A Yes.
Q Did you see anything in his hands, like a firearm or a knife or any type of weapon in his -- in his hands at that time?
A He didn't have anything in his hands.

(Id. at 119-122).

         The trial court found that portions of conversations captured by a body microphone were admissible under the “excited utterance” exception of the hearsay rule, allowing those portions to be entered into evidence following the testimony of Officer Wesley Stanton.

         Officer Wesley Stanton testified that he spoke with Lasonia Wilks within minutes of the shooting. Stanton testified to the events as follows:

She was just frantic. She was--she was saying, “My brother got shot.” I kept asking who shot him, she kept telling me, “The white boy.” Yelling, the white boy that stays a couple houses down, she pointed in the general direction, that being 915 Francis Street. She stated -- I asked her who got shot, I believe she stated that it was Jamaal, her brother.

(Id. at 214).

         Stanton later testified to the following events that transpired when he re-initiated contact with Wilks after securing the crime scene:

[Stanton] I pulled her -- or she came out of 919 Francis Street and I spoke with her by herself in the driveway. I asked her basically who -- who shot her brother, Jamaal. She then told me Dustin Marshall.
Q [Prosecutor] Would you please tell the jury her degree of -- her degree of certainty.
A: [Stanton] She said it very frank, very certain.
Q Did she appear confused?
A No.
Q Did she appear to think about which person she was going to pick?
A Not at all.

(Tr. 1/25/2010, pp. 214, 226).

         When asked about the events leading up to the shooting and the witness's familiarity with the petitioner, Stanton testified that Wilks told him the following:

A [Officer Stanton] I believe I asked her at some point in the conversation if she was familiar with Mr. Marshall and she kept saying, “Yeah, he's the white boy that stays right there, ” pointing to 915 Francis Street. I said what happened on this evening, she told me that she was in her - or in a vehicle in the driveway at 919, she said she was in the back seat, she climbed over to the front seat. She said once she got to the front seat she heard a couple subjects having words and I asked her -- I think I asked her where Dustin was and she said that he was on the porch of 915 Francis Street.
Q [Prosecutor] What else did she tell you?
A She -- she said that her brother, Jamaal, went over to the -- where the two people were having words at and then she said Dustin came off the porch onto the yard. ·She said it happened right in the yard of 915 Francis Street. She said once he got there and Dustin came off the porch she said Dustin started shooting Jamaal. She said that she seen - she heard the shots and she seen the muzzle flashes, or she - I think she called it fire, and then she saw Jamaal fall to the ground.
I asked -- I asked her where Dustin got the gun from and she said, “Right here, ” pointing to her waistband. Then I asked her how close Dustin was to Jamaal and she said -- I think she said, “About this close, ” and we were standing ...

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