Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Isom v. Palmer

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

February 16, 2017

DONALD JAMAL ISOM, Petitioner,
v.
CARMEN DENISE PALMER, Respondent.

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

          HON. SEAN F. COX, United States District Judge

         This matter has come before the Court on a pro se application for the writ of habeas corpus under 28 U.S.C. § 2254. Petitioner Donald Jamal Isom (“Petitioner”) challenges his convictions for: second-degree murder, Mich. Comp. Laws § 750.317; conspiracy to commit armed robbery, Mich. Comp. Laws § 750.157a, Mich. Comp. Laws § 750.529; attempted armed robbery, Mich. Comp. Laws § 750.92, Mich. Comp. Laws § 750.529; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; carrying a concealed weapon (CCW), Mich. Comp. Laws § 750.227; and four counts of possessing a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. Petitioner alleges as grounds for relief allege that: (1) the trial court erroneously denied his objections to the prosecutor's use of peremptory challenges to remove two African Americans from the venire; (2) there was insufficient evidence to convict him of conspiracy to commit armed robbery; (3) there was insufficient evidence to convict him of murder; (4) he was denied a fair trial when a police witness and the prosecutor commented on his silence during questioning; (5) he was denied a fair trial by the improper joinder of counts; (6) re-sentencing is required because the trial court exceeded the sentencing guidelines without offering any explanation; (7) trial counsel was ineffective; (8) appellate counsel was ineffective for failing to raise a claim about trial counsel's ineffectiveness; and (9) he is entitled to an evidentiary hearing on his claims about trial and appellate counsel.

         Respondent Carmen Denise Palmer (“Respondent”) argues in an answer to the habeas petition that Petitioner procedurally defaulted his fourth and seventh claims and that the state courts' rejection of Petitioner's claims did not result in decisions that were contrary to federal law, unreasonable applications of federal law, or unreasonable determinations of the facts. The Court agrees with Respondent's assessment of Petitioner's claims. Accordingly, the habeas petition will be denied.

         I. Background

         Petitioner was charged in Saginaw County, Michigan with one count of first-degree (felony) murder, one count of conspiracy to commit armed robbery, two counts of attempted robbery, one count of felon in possession of a firearm, one count of carrying a concealed weapon, and five counts of felony firearm. The charges arose from two incidents that occurred early on August 26, 2006. As explained by the Michigan Court of Appeals, the two incidents involved

the attempted robbery of Raychan Williams and the shooting death of Darnell Eiland. The evidence at trial indicated that on the night of the crimes, defendant and Prophet Phillips were driving around with Doretha Ransom. The men went together to Williams's apartment, where Phillips tried to convince Williams to open the door by stating that he wanted to buy drugs. When Williams refused to open the door, defendant pointed a gun at him. Williams jumped away, and defendant and Phillips returned to the car. Shortly thereafter, the three drove to another home, ostensibly to buy drugs. Defendant and Phillips went to the house while Ransom waited in the car. Ransom heard gunshots, and then defendant and Phillips returned to the car. Defendant had been shot in the hand. Defendant gave Phillips a gun, and then Phillips left. Ransom took defendant to the hospital. While defendant was being treated, Eiland's body was found. When the police came to the hospital to investigate defendant's gunshot wound and to determine if the Eiland death was related, defendant fled, but was apprehended shortly thereafter.

         People v. Isom, No. 284857, 2010 WL 1404430, at *1 (Mich. Ct. App. Apr. 8, 2010).

         Defendant did not testify, and his only witness was his sister, Detrianna Barnes. Ms. Barnes testified that Petitioner called her from the hospital at about 10:00 a.m. on August 26, 2006, and again about 3:00 p.m. that day. She told Petitioner to leave the hospital because somebody was going there to kill him.

Petitioner's defense was that he
was caught in an ambush, was not the shooter or that there was enough reasonable doubt as to who was the shooter, that one Jamaar Bates, who was at the scene just prior to the shooting and who subsequently discovered the body of Mr. Eiland when he returned later that morning, was more involved in [the] killing than what he claimed, and that Williams and Bates implicated [Petitioner] in the murder because of some ongoing dislike or dispute.

People v. Isom, No. 07-028598 FC 4, Op. and Order Denying Post-Appellate Relief, at 2 (Saginaw Cty. Cir. Ct. July 27, 2011), ECF No. 9-20, Pg ID 1521.

         On February 14, 2008, the jury found Petitioner guilty of second-degree murder, as a lesser-included offense of first-degree murder, and the following additional offenses: conspiracy to commit armed robbery, one count of attempted robbery, felon in possession of a firearm, carrying a concealed weapon, and four counts of felony firearm. The jury acquitted Petitioner of one count of attempted robbery and the related felony-firearm count. On March 20, 2008, the trial court sentenced Petitioner to two years in prison for the felony-firearm convictions, followed by concurrent terms of sixty to ninety years in prison for the murder and conspiracy convictions and five to ten years in prison for the attempted-robbery, felon-in-possession, and CCW convictions.

         Petitioner's initial appellate attorney filed a motion for new trial, claiming that trial counsel was ineffective for failing to request a jury instruction on self defense. Petitioner subsequently wrote to the trial court and asked the court to remove counsel from his case and strike counsel's motion for new trial. The trial court then appointed a different appellate attorney, who withdrew the motion for new trial and raised Petitioner's first six habeas claims in his appellate brief. A three-judge panel of the Michigan Court of Appeals affirmed Petitioner's convictions, see Isom, 2010 WL 1404430, [1] and on September 9, 2010, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Isom, 488 Mich. 854; 787 N.W.2d 488 (2010).

         Petitioner subsequently filed a motion for relief from judgment in which he raised his seventh and eighth habeas claims regarding trial and appellate counsel. He claimed that trial counsel was ineffective for failing to present a defense of self defense, for failing to request a jury instruction on self defense, and for failing to use or consult an expert witness. He also asserted that appellate counsel was ineffective for failing to raise a claim about trial counsel's ineffectiveness.

         The state trial court analyzed Petitioner's motion under Michigan Court Rule 6.508(D)(3) and denied the motion.[2] Although the court opined that Petitioner would have had a reasonable chance of acquittal if trial counsel had requested a jury instruction on self defense, the court nevertheless determined that Petitioner had not shown “good cause” for failing to raise his self-defense issues on appeal, because he resisted his first appellate attorney's efforts to bring the issue before the courts. See Isom, No. 07-028598 FC 4, Op. and Order Denying Post-Appellate Relief, at 3-4 (Saginaw Cty. Cir. Ct. July 27, 2011), ECF No. 9-20, Pg ID 1522-23.

         Petitioner moved for reconsideration of the trial court's order on the basis that his appellate attorneys failed in their obligations and duties to assist him in bringing his self-defense claim before the Michigan Court of Appeals. In an order denying Petitioner's motion, the trial court determined that there was insufficient evidence to support a claim of self defense and, therefore, Petitioner was not entitled to such an instruction. The trial court concluded that appellate counsel's failure to preserve the issue for appeal was inconsequential. See People v. Isom, No. 07-028598 FC 4, Op. and Order Denying Relief, at 3 (Saginaw County Cir. Ct. Apr. 2, 2012), ECF No. 9-22, Pg ID 1533.

         Petitioner appealed the trial court's decision without success. Both the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal for failure to establish entitlement to relief under Rule 6.508(D). See People v. Isom, No. 312567 (Mich. Ct. App. Sept. 6, 2013); People v. Isom, 495 Mich. 947; 843 N.W.2d 505 (2014). On April 11, 2014, Petitioner filed his habeas corpus petition in this Court.

         II. Standard of Review

         “The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state prisoner's application for the writ of habeas corpus unless the state court's adjudication of the prisoner's claims on the merits

(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).

Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., opinion of the Court for Part II). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

         “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt, ' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her 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. at 103.

         “ ‘In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct, ' unless rebutted by ‘clear and convincing evidence'. 28 U.S.C. § 2254(e)(1).” Holland v. Rivard, 800 F.3d 224, 242 (6th Cir. 2015), cert. denied, 136 S.Ct. 1384 (2016). Lastly, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. Discussion

         A. The Prosecutor's Use of Peremptory Challenges (claim one)

         Petitioner, who is an African American, alleges that the trial court violated his right to equal protection of the law when the court denied his objections to the prosecutor's use of peremptory challenges to remove two African Americans from the venire. According to Petitioner, the prospective jurors in question (Johnny Green and Johnnie Sewell) answered the prosecutor's questions appropriately and indicated that they could follow the trial judge's instructions on the evidence and the prosecutor's burden of proof. Petitioner concludes that the trial court's findings - that he did not make a prima facie case for discrimination and that the prosecutor's explanations were adequate - were erroneous.

         The Michigan Court of Appeals adjudicated Petitioner's claim on the merits on direct appeal and determined that the factual circumstances did not support Petitioner's claim of discrimination. The Court of Appeals deferred to the trial court's resolution of credibility issues and concluded that the trial court's rulings were not clearly erroneous. Judge Gleicher wrote a concurring opinion on the issue and likewise concluded that no clear error existed.

         1. Clearly Established Federal Law

         The clearly established federal law here is Batson v. Kentucky, 476 U.S. 79 (1986). Under Batson “and later decisions building upon Batson, parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors on the basis of race, ethnicity, or sex.” Rivera v. Illinois, 556 U.S. 148, 153 (2009). Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race:

“ ‘First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.' ”

Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008) (alterations in original) (end citations omitted).

In addition to the highly deferential standard AEDPA imposes, Batson claims are also subject to highly deferential review. The trial court's decision on the ultimate question of improper discriminatory intent is a finding of fact to be accorded “great deference.” Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality). “Deference is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations.” [Miller-El v. Cockrell, 537 U.S. 322, 339 (2003)]; see also Hernandez, 500 U.S. at 365, 111 S.Ct. 1859 (“[E]valuation of the prosecutor's state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge's province.' ”) quoting [Wainwright v. Witt, 469 U.S. 412, 428 (1985)]. In addition, a Batson claim “presents a mixed question of law and fact and ‘necessarily focuses on the reasonableness of the decision of the state courts. . . .' ” Braxton [v. Gansheimer, 561 F.3d 453, 458 (6th Cr. 2009)] (quoting Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003)). The “question of ‘whether a prosecutor intended to discriminate on the basis of race in challenging potential jurors is, as Batson recognized, a question of historical fact.' ” Lancaster, 324 F.3d at 429 (quoting Hernandez, 500 U.S. at 367, 111 S.Ct. 1859). Thus, the deference given to district courts “must be modified in the context of a § 2254 petition to give credence to § 2254(e)(1)'s requirement that facts found by a state court be presumed correct unless the petitioner rebuts this presumption by clear and convincing evidence.” Braxton, 561 F.3d at 458 (citing Lancaster, 324 F.3d at 429 n.1).

Bryan v. Bobby, 843 F.3d 1099, 1110-11 (6th Cir. 2016).

         2. The Facts

         State appellate Judge Gleicher summarized the relevant facts as follows:

The prosecutor exercised his second peremptory challenge to excuse Johnny Green, an African-American venireman. Defendant timely raised a Batson challenge at sidebar after the prosecutor peremptorily excused a second African-American juror, Johnnie Sewell. The trial court excused the jury for the afternoon and, before defense counsel had articulated a Batson [challenge], the trial court announced, “Now, I would like for [the prosecutor] to state his nonracial reason so that I-.” The prosecutor interjected that the defense “hasn't made a motion. They need to make a motion, and then I'd like some time to research the law.” The trial court adjourned to give the parties and the court an opportunity to conduct legal research.
When court reconvened the next morning, defense counsel explained as follows the basis for his Batson challenge:
So in . . . his first four challenges, including six passes, two of the jurors that were excluded were black males, and it just - given the tenor of the exam during voir dire and given the challenges, it certainly created an appearance for me and a concern for me that these jurors were being excluded because they were black males and that there was nothing in the record that came up during the voir dire that would . . . cause any other reason - cause me to have any other reason to form any other belief.
The prosecutor responded that “there is no prima facie showing of a discriminatory purpose and . . . it's not a jury constituted on race at all.” The prosecutor nonetheless proceeded to relate race-neutral reasons for his exclusions of Green and Sewell. The prosecutor claimed that Sewell seemed “confused” by the concept of circumstantial evidence, had an eleventh grade education, and “looked confused” in general during the voir dire. According to the prosecutor, Green “had indicated quite candidly that as a 60-some-year-old black man raised in the south he had issues with the police, ” and also could not discern a distinction between “proof beyond a reasonable doubt and proof beyond any shadow of a doubt.”

Isom, 2010 WL 1404430, at *6 (Gleicher, J., concurring); see also Trial Tr. Vol. I, at 107-17, Feb. 5, 2008), ECF No. 9-10, Pg ID 780-90; Trial Tr. Vol. II, a.m. session, at 6-28, Feb. 6, 2008), ECF No. 9-11, Pg ID 797-819.

         3. Application of the Law

         a. Step One

         As noted above, the first step in a Batson analysis is determining whether a prima facie case has been established.

To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

Batson, 476 U.S. at 96 (internal citations omitted).

         It was undisputed in this case that Petitioner was a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove members of Petitioner's race from the venire. (Trial Tr. Vol. II, a.m. session, at 11-12, 18, Feb. 6, 2008), ECF No. 9-11, Pg ID 802-03. The only question was whether the relevant circumstances raised an inference that the prosecutor used a peremptory challenge to excuse a juror on the basis of race.

         The prosecutor's denial of an impermissible motive did not satisfy his burden of responding to a prima facie case of purposeful discrimination. United States v. Hill, 146 F.3d 337, 341 (6th Cir. 1998) (citing Purkett v. Elem, 514 U.S. 765, 769 (1995)). Nevertheless, he explained that the victim was a black male, that every civilian witness in the case was an African American, that some of the police officers and one of the detectives were African Americans, and that the incident occurred in a predominantly black neighborhood. Under the circumstances, the prosecutor maintained that there would be no purpose in excluding prospective jurors simply because they were black. (Trial Tr. Vol. II, a.m. session, at 12-13, Feb. 6, 2008), ECF No. 9-11, Pg ID 803-04.

         The trial court reasonably concluded from all the relevant circumstances that Petitioner had not made a prima facie showing that the prosecutor used a peremptory challenge to excuse a prospective juror on the basis of race. (Id. at 18-19, Pg ID 809-10.) Step one is satisfied.

         b. Step Two

         The trial court's finding that Petitioner failed to establish a prima facie case of discrimination should have been the end of the matter. The prosecutor, however, requested an opportunity to make a record of the reasons for his strikes, and the trial court permitted him to proceed. The prosecutor then explained that Mr. Sewell had only an eleventh grade education, he was confused by the notion of circumstantial evidence and how to use it, and he appeared to have a problem understanding the prosecutor's questions. (Id. at 20-22, Pg ID 811-13.)

         Confusion is a common race-neutral reason for striking prospective jurors. United States v. Warren, 788 F.3d 805, 813 (8th Cir.), cert. denied, 136 S.Ct. 349 (2015). A prospective juror's lack of education or limited education also are valid race-neutral reasons for a peremptory challenge. See United States v. Marin, 7 F.3d 679, 687 (7th Cir. 1993) (stating that “[a] juror's lack of education has been deemed a proper race-neutral explanation for peremptory strikes even where all members of the minority group appear to have been struck”); see also Rivers v. City of Rochester, 856 F.Supp.2d 620, 624 (W.D. N.Y. 2012) (rejecting a Batson claim where the reason given for the strike was that the prospective juror's limited education might prevent the person from understanding complex medical evidence).

         Regarding Johnny Green, the prosecutor stated that Mr. Green seemed to think proof “beyond a reasonable doubt” and proof “beyond a shadow of a doubt” were the same. The prosecutor also was troubled by the fact that Mr. Green admitted to having issues with the police, and he thought that Mr. Green might not be able to relate to the victims. (Trial Tr. Vol. II, a.m. session, at 22-23, Feb. 6, 2008), ECF No. 9-11, Pg ID 813-14. Although Mr. Green had said that he could set aside his personal experiences (Trial Tr. Vol. I, at 60, Feb. 5, 2008), Pg ID 733, a negative experience with the police is an acceptable and race-neutral reason for excusing a prospective juror. Jordan v. Lefevre, 206 F.3d 196, 200 (2d Cir. 2000).

         The prosecutor's explanations at step two of the Batson process did not have to be “persuasive, or even plausible, ” Elem, 514 U.S. at 767-68, and because there was no inherent discriminatory intent in his explanations, his reasons must be deemed race-neutral. Id. (quoting Hernandez, 500 U.S. at 360). Petitioner has failed to satisfy step two of the Batson analysis.

         c. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.