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Green v. Maclaren

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

January 26, 2017

JOSEPH MICHAEL GREEN, #607305, Petitioner,
v.
DUNCAN MACLAREN, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE

         I. Introduction

         Michigan prisoner Joseph Michael Green (“Petitioner”) filed a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his constitutional rights. Petitioner was convicted of first-degree murder, assault with intent to commit murder, and possession of firearm during the commission of a felony following a jury trial in the Wayne County Circuit Court in 2009. He was sentenced to life imprisonment without the possibility of parole on the murder conviction, a concurrent term of 15 to 30 years imprisonment on the assault conviction, and a consecutive term of two years imprisonment on the felony firearm conviction. In his pleadings, Petitioner raises claims concerning a prosecution witness's invocation of his Fifth Amendment privilege and the admission of his prior testimony, the alleged denial of his right to be present and to counsel at a critical stage, and the effectiveness of trial and appellate counsel.

         For the reasons set forth, the Court denies habeas relief. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's convictions arise from a shooting that occurred in Detroit, Michigan on May 15, 2007. Carl Hairston was killed and Jerrance Lewis was injured. Petitioner and his brother, Terrance Jamal Williams, were tried jointly before separate juries in 2008. Petitioner's brother was convicted in that proceeding, but Petitioner's jury deadlocked. Petitioner was subsequently retried and convicted. The Michigan Court of Appeals described the underlying facts, which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

In the early morning hours of May 15, 2007, Hairston drove his mother's Chevy Tahoe to pick up Lewis and Thomas Cook. Although Hairston and Lewis were under 21, the trio traveled to the Perfect Beat nightclub near the corner of Fort Street and Schaefer Road in southwest Detroit. They left the club shortly before closing, reentered their vehicle and traversed Fort Street in front of the club for several minutes while listening to loud music. Williams (then age 20) approached the Tahoe from behind while driving a light blue minivan. Williams pulled parallel to the driver's side of the Tahoe. The rear, passenger-side sliding door of the minivan opened and Green (then age 22) fired more than 20 shots from an AK-47 at the Tahoe. The minivan collided with the Tahoe and the minivan's door was torn off in the fray. Hairston was struck with several bullets and was pronounced dead on arrival at the hospital. Lewis was shot numerous times in the abdomen and side, required three surgeries to repair internal damage, and was hospitalized for a month. Cook escaped unharmed. He fled the scene and was only secured as a trial witness through the significant efforts of the prosecutor and law enforcement officers.
Investigating officers soon received an anonymous tip that “Joe Green” was involved in the shooting, but they were unable to locate any suspects on that information alone. Investigators then discovered a burned minivan, missing its sliding rear door, abandoned in a field. The door recovered on Fort Street perfectly matched the minivan. The officers traced the vehicle's identification number and learned that it was registered to Juanita Williams, the mother of defendant Williams and defendant “Joe Green.” When Lewis recovered sufficiently to speak to the officers, he specifically identified defendants by name as his attackers. Lewis indicated that he had seen defendants driving the minivan in the past and clearly saw their faces during the shooting. Lewis then confirmed defendants' identities through a photographic line-up.
Green and Williams had a long-standing feud with Hairston and Lewis. Lewis admitted that the two groups fought each time they met, sometimes with weapons. The parties stipulated that Williams had previously shot Lewis in the hand. Cornelius Wade, a jailhouse informant, testified that Williams confessed to the drive-by shooting while housed in the Wayne County Jail. According to Wade, a man name Armond hired Williams and Green to kill Lewis and Hairston to avenge the robbery of Armond's carwash (which served as a front for a drug-dealing and gambling operation). Wade alleged that a man named Aaron Campbell was at the Perfect Beat on the night of the shooting and contacted defendants by telephone to alert them of Hairston's and Lewis's presence. The prosecution also presented evidence that someone threw a firebomb into and fired a barrage of bullets at Lewis's home the night before defendants' preliminary examination.
Defendants asserted alibis in support of their defenses. Williams also presented evidence from his friends Jamaal and Jameel Croft, who claimed to have been standing outside the Perfect Beat at the time of the shooting, and asserted that the minivan's occupants were heavy-set Mexican or Caucasian men. Defendants attempted to establish that their minivan had been stolen earlier that evening from an apartment complex in Lincoln Park.[1] Williams' jury did not believe his defense theory and convicted him of first-degree premeditated murder, MCL 750.316, and assault with intent to murder, MCL 750.83. The court sentenced Williams to life without parole for the murder conviction and 20 to 30 years imprisonment for the assault charge.
After the original trial, the Michigan State Police Forensic Laboratory retested the shell casings found outside the Perfect Beat and Lewis's home. The state lab could neither confirm nor deny whether any of the casings were fired from a single weapon. The investigator testified that AK-47s are loosely tooled resulting in discrepancies between shells fired from a single gun. Accordingly, it remained possible that the shell casings had been fired from a single weapon.
Green proceeded to retrial after which the jury convicted him of first-degree premeditated murder, assault with intent to murder and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The court sentenced Green to concurrent terms of life without parole and 15 to 30 years imprisonment for his murder and assault convictions to be served consecutive to a two-year term for felony-firearm.
In the meantime, Williams had appealed his convictions as of right. We held Williams' appeal in abeyance pending the State Lab's analysis of the ballistic evidence. People v. Williams, unpublished order of the Court of Appeals, entered April 1, 2009 (Docket No. 286097). We then remanded for the trial court to consider whether Williams was entitled to a new trial based on newly discovered evidence. People v. Williams, unpublished order of the Court of Appeals, entered January 15, 2010 (Docket No. 286097). The trial court concluded that the exchange of ballistic evidence would not make a different result probable on retrial and therefore denied Williams' motion for a new trial.
Green also sought a new trial, but based on the ineffective assistance of counsel at his second trial. The trial court rejected Green's claim....

People v. Green, No. 291335, 2011 WL 6004067, *1-3 (Mich. Ct. App. Dec. 1, 2011) (unpublished) (footnote in original).

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising claims concerning prosecution witness Jerrance Lewis's invocation of his Fifth Amendment privilege at Petitioner's second trial and the admission of his testimony from the first trial, and the effectiveness of trial counsel for failing to produce two witnesses, Jamaal and Jameel Croft, who testified before the co-defendant's jury at the first trial, and Petitioner's second trial. The court denied relief on those claims and affirmed Petitioner's convictions. Id. at *11-14. Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Green, 491 Mich. 920, 812 N.W.2d 738 (2012).

         Petitioner then filed a motion for relief from judgment with the state trial court raising claims concerning Jerrance Lewis's invocation of his Fifth Amendment privilege and the admission of his testimony from the first trial, the alleged denial of his right to be present and to counsel at a critical stage, the pre-trial identification procedures, and the effectiveness of trial and appellate counsel. While that case was pending, Petitioner instituted a habeas action in this Court raising those same claims, which the Court dismissed without prejudice to allow Petitioner to fully exhaust his claims in the state courts before proceeding on federal habeas review. Green v. MacLaren, No. 13-CV-10651 (E.D. Mich. Feb. 22, 2013).

         The state trial court subsequently denied Petitioner's motion for relief from judgment finding that certain claims had already been denied on direct appeal and that the remaining claims lacked merit. People v. Green, No. 07-010617-01-FC (Wayne Co. Cir. Ct. March 6, 2013). Petitioner filed an application for leave to appeal with the Michigan Court of Appeals raising the same claims, which was denied for failure to “meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Green, No. 316280 (Mich. Ct. App. Oct. 25, 2013). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Green, 495 Mich. 993, 845 N.W.2d 120 (2014).

         Petitioner instituted this action in August, 2014. As noted, he raises claims concerning Jerrance Lewis's invocation of his Fifth Amendment privilege and the admission of his prior testimony, the alleged denial of his right to be present and to counsel at a critical stage, and the effectiveness of trial and appellate counsel. Respondent filed an answer to the petition, contending that it should be denied because certain claims are procedurally defaulted and all of the claims lack merit. Petitioner replied.

         III. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. §2254(d) (1996).

         “A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

         “[T]he ‘unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable, ' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been ‘objectively unreasonable.'” Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' and ‘demands that state-court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

         The United States Supreme Court has held that “a state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). A habeas court “must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id. Thus, in order to obtain federal habeas relief, a state prisoner must show that the state court's rejection of a claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id.; see also White v. Woodall, __U.S.__, 134 S.Ct. 1697, 1702 (2014). Federal judges “are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Woods v. Donald, __U.S.__, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. Woods v. Etherton, __U.S.__, 136 S.Ct. 1149, 1152 (2016).

         Section 2254(d)(1) limits a federal court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held on numerous occasions that it is not ‘an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71-72. Section 2254(d) “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.'” Harrington, 562 U.S. at 100. Furthermore, it “does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16.

         The requirements of “clearly established law” are to be determined solely by Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court, '” and “[i]t therefore cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 567 U.S., 132 S.Ct. 2148, 2155 (2012) (per curiam); see also Lopez v. Smith, U.S. 135 S.Ct. 1, 2 (2014) (per curiam). The decisions of lower federal courts may be useful in assessing the reasonableness of the state court's decision. Stewart v. Erwin, 503 ...


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