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Hough v. MaClaren

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

February 24, 2017

CARL HOUGH, Petitioner,
v.
DUNCAN MACLAREN, Respondent.

          MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          AVERN COHN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This is a habeas case under 28 U.S.C. § 2254. Petitioner Carl Hough, (Petitioner), is currently on parole supervision through the Michigan Department of Corrections.[1] In 2006, Petitioner was convicted of operating a motor vehicle while intoxicated and causing a serious impairment of another person's body function (OWI), M.C.L. § 257.625(5), driving without a valid license and causing a serious impairment of another person's body function, M.C.L. § 257.904(5), ten counts of false certification under Michigan's vehicle code, M.C.L. § 257.903(1), one count of false representation, M.C.L. § 28.293(1), felon in possession of a firearm, M.C.L. § 750.224f, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. In 2010, [2] Petitioner was sentenced as a third habitual offender to concurrent terms of 3 to 10 years, 2-5 years, all of which were consecutive to a 2 year sentence for the felony firearm conviction.

         Before the Court is Petitioner's pro se petition for a writ of habeas corpus, claiming that his constitutional rights have been violated. He raises eleven claims. Respondent, through the Attorney General's Office, filed a response, arguing that petitioner's claims are meritless or procedurally defaulted. For the reasons that follow, the petition will be denied.

         II. Background

         A. Procedural History

         Following his sentencing, Petitioner filed an appeal of right, in which he raised what now make up the first seven claims in his petition. The Michigan Court of Appeals affirmed his conviction and sentence. People v. Hough, No. 302132, 2013 WL 163820 (Mich. Ct. App. Jan. 15, 2013)(Shapiro, J., dissenting).[3] Petitioner filed an application for leave to appeal to the Michigan Supreme Court. None of the justices voted to grant leave. People v. Hough, 495 Mich. 934 (2014).

         Petitioner then filed a post-conviction motion for relief from judgment, raising what now make up his eighth through eleventh claims. The trial court denied the motion. People v. Hough, No. 06-008265-01 (Wayne Cty. Cir.Ct. Mar. 17, 2015). The Michigan appellate courts denied leave to appeal. People v. Hough, No. 327702 (Mich. Ct. App. July 9, 2015); lv. den. 499 Mich. 926 (2016).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. The trial court abused its discretion when it reopened the proofs to allow the jury to view a forced showing of petitioner's scars, especially when the showing entailed more view than was originally shown to the jury during trial.
II. The prosecutor committed misconduct when he submitted the verbatim contents of the police report into the record and expanded on the report beyond that provided at trial during closing argument.
III. Petitioner allegedly caused a serious car accident and separately possessed fraudulent Secretary of State documents and some guns in a house while being a felon. The events were unrelated under Michigan law and it was prejudicial error and a denial of due process to join the two matters in one trial.
IV. Petitioner was denied his due process right to a fair trial when the prosecutor asked about “suspected marijuana” that was allegedly seized during the execution of the search warrant but destroyed by the police, mentioning the suspected marijuana in closing, and insinuating to the jury that the guns seized were not for hunting but for a criminal purpose.
V. Petitioner was denied the effective assistance of his attorney where his counsel failed to object to the prosecutor misconduct referenced in the previous issue.
VI. The evidence was insufficient to support the felony-firearm conviction, because the Legislature did not intend for felon-in-possession to be used as the basis of a felony-firearm conviction.
VII. The seizure of the guns exceeded the scope of the search warrant and was not justified by the plain view exception because the guns were not immediately and apparently illegal, thus violating petitioner's Fourth Amendment rights.
VIII. Petitioner is entitled to relief from the judgment of his conviction[s] because the trial court erred in allowing the jury during its deliberations to consider extrinsic information depriving petitioner of his right to a fair trial, also denying petitioner of his Fifth Amendment right to be free from self-incrimination, and his Sixth Amendment right of confrontation, of cross-examination.
IX. Petitioner is entitled to relief from judgment on his conviction[s] because he was denied effective assistance of counsel.
X. Petitioner is entitled to relief from judgment of his conviction[s] because his due process right to a fair trial was violated by the prosecutor's untimely disclosure of Brady material.
XI. Petitioner is entitled to relief from judgment of his convictions, due to vindictive prosecution, selective prosecution, prosecutorial delay, and due process violations.

         B. Facts

         The Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review under 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This case arose out of a traffic accident that occurred in 2004. Detroit Police Officer Mitchell Quinn responded to the scene of the accident to discover two people trapped inside a car that had crashed into a utility pole; the “entire front end of the car was smashed.” Quinn identified defendant as the driver. At the hospital, defendant identified himself to Quinn as Lashawn Scott Key and indicated that “he had left the bar, ” passed out while driving, and “didn't know what happened.” Quinn recalled that defendant smelled of alcohol, had bloodshot eyes and spoke in a slurred manner. Quinn left the hospital to acquire a “search warrant to get blood drawn” from defendant, but on Quinn's return defendant “had checked himself out of the hospital.” Quinn performed a search for records of “Lashawn Scott Key” and found that “Key's” driving record “showed an individual ... in his late 30's that obtained a driver's license somewhere in his early 30's, ” when most Michigan residents acquired driver's licenses at age 16. Quinn deemed this a “red flag” that “didn't make any sense, ” and “the further I got to digging into it the more things began to unravel that the person that identified himself as Lashawn Scott Key was not Lashawn Scott Key.” Quinn's further investigations, which included photographs from the Secretary of State and the LEIN network, a birth certificate, and conversing with defendant, eventually resulted in defendant providing Quinn with his real name.
Quinn determined that multiple vehicles and driver's licenses began all pointing to a single address where defendant lived. Quinn executed a search warrant at that residence, looking for “fraudulently obtained identification cards, driver's licenses, any paper work and/or vehicles.” He found mail in both defendant's name and the name of Lashawn Scott Key, including a hospital bill addressed to Key, two rifles, and several boxes of ammunition.
There were items of mail addressed to other names, as well. Defendant met with Quinn later that day, offering to turn himself in; he admitted that he acquired the guns for protection and got the driver's licenses to drive, and he wanted to be done with “these games.” Quinn also noted that he did not need defendant to have admitted to being Lashawn Scott Key because he had “certified documents from the Secretary of State to prove who he is.” The photographs on several driver's license or state identification cards, including defendant's and one for Lashawn Scott Key, were all determined to be of the same person.
Another of those items of proof was a LEIN entry indicating that defendant had noticeable scarring to his upper chest. Apparently-the testimony is not completely clear as to how-Quinn and several other officers personally verified that defendant did in fact have the described scarring, which Quinn described as “appear[ing] to be some sort of bullet wound.” At trial, during Quinn's cross-examination, defense counsel had defendant lift up his shirt, which revealed no scarring on defendant's chest. The jury was provided with a copy of defendant's medical records from his treatment a t the hospital after the accident. We have unfortunately not had the benefit of receiving a copy of the trial exhibits, and no clear description was provided on the record, but we infer that those records apparently indicated that defendant had some kind of prior scarring somewhere on his upper torso area. After the close of proofs and during jury deliberations, the jury sent a note asking to see the lacerations. Rather than ordering defendant to lift his shirt again, the trial court ordered defendant to remove his shirt entirely, revealing scarring to, apparently, defendant's upper left arm.

People v. Hough, 2013 WL 163820, at * 1-2 (internal footnote omitted).

         III. ...


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