United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION,
DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO
APPEAL IN FORMA PAUPERIS
CARAM STEEH UNITED STATES DISTRICT JUDGE
matter has come before the Court on petitioner James
Conner's pro se application for the writ of
habeas corpus under 28 U.S.C. § 2254. Petitioner is a
state prisoner at the Central Michigan Correctional Facility
in St. Louis, Michigan. His habeas petition challenges
convictions for armed robbery, assault with intent to do
great bodily harm less than murder, unlawfully driving away
an automobile, and malicious destruction of personal
property. Petitioner alleges that (1) there was insufficient
evidence to support his robbery conviction, (2) the trial
court abused its discretion during post-conviction
proceedings, (3) the prosecution illegally gathered a blood
sample from him, (4) the prosecution suppressed witness
statements, (5) the prosecution failed to disclose, preserve,
and test key evidence, (6) the prosecution broke the chain of
evidence and failed to subject evidence to scientific or
forensic testing, and (7) trial counsel was ineffective.
Tom Birkett urges the Court to deny the habeas petition on
the basis that petitioner's claims are procedurally
defaulted, are not cognizable on habeas review, or were
adjudicated in a reasonable manner by the state court. Having
reviewed the pleadings and state-court record, the Court
concludes that the state court's adjudication of
petitioner's first claim on the merits was reasonable,
that petitioner's second claim is not cognizable on
habeas review, and that petitioner's remaining claims are
procedurally defaulted. Accordingly, the habeas petition will
The Charges, Trial, and Sentence
was charged with twelve counts: two counts of assault with
intent to commit murder, one count each of armed robbery,
carjacking, and assault with intent to commit criminal sexual
conduct involving sexual penetration, two counts of assault
with intent to do great bodily harm less than murder, two
counts of assault with a dangerous weapon, and one count each
of unlawfully driving away an automobile, malicious
destruction of property, and assault with intent to rob while
armed. The charges arose from consecutive incidents that
occurred on Whitmore Street in Detroit, Michigan on January
petitioner's bench trial in Wayne County Circuit Court,
Ditwan Marie Morgan testified that, on January 29, 2008, she
drove to petitioner's home because he had previously
fixed her cars, and she wanted petitioner to show her how to
put her new car in reverse. The two of them went to the store
where they purchased beer and liquor. Then they went to her
apartment and started drinking. Her friend Chantell Hanshaw
was also at the apartment. When petitioner exposed his penis
to her, she told him to leave. Instead of leaving, petitioner
beat the walls and knocked things over. She tried to push him
out the apartment, but petitioner grabbed an aluminum bat
that she kept in the apartment and chased her as she ran out
of the apartment. She ran through the hallway of the
apartment building and then back to her apartment where she
ended up on the floor. Petitioner then hit her on the head
with the bat. Later, at the hospital, she received nine
staples on the back of her head and stitches on her forehead.
Hanshaw testified that she was at Ms. Morgan's apartment
on January 29, 2008, when petitioner and Morgan arrived at
the apartment and started drinking and talking. Petitioner
and Morgan began to argue when petitioner asked Morgan for
sex. Morgan then asked petitioner to leave, and petitioner
began to throw things and hit Morgan on the face with his
fists. Petitioner grabbed an aluminum bat and chased Morgan
out of the apartment. He kicked Morgan on the back, hit her
with the bat while she was lying on the floor, and then ran
away. Hanshaw subsequently called the 911 operator.
Taylor testified that he was warming up his minivan about
1:10 p.m. on January 29, 2008, when he noticed petitioner
approach a mailman. After the mailman shook his head and left
in his mail truck, petitioner approached Taylor and demanded
money. When Taylor told petitioner that he did not have any
money, petitioner pulled out an aluminum baseball bat from
under his jacket and broke a window in the minivan. Taylor
then pulled out of his parking spot and got out of his van.
Petitioner approached him, swung the bat at him two or three
times, and jumped in Taylor's van. Taylor was afraid
because he thought that petitioner was going to hit him with
the bat. He nevertheless got part way inside the van and
grabbed the steering wheel as petitioner drove slowly
forward, dragging Taylor, whose legs were outside the van.
Although petitioner alternately hit the gas pedal and then
the brakes, Taylor managed to get in the van, put it in park,
and get petitioner out of the van. He threw the bat away and
proceeded to get into an altercation with petitioner. He
subdued petitioner, who fell unconscious from Taylor's
beating. The police subsequently arrived.
Harvey testified that he was employed by the United States
Postal Service on January 29, 2008. About 1:10 p.m. that day,
petitioner approached him on Whitmore Street in Detroit and
asked him for a ride. Petitioner looked kind of frazzled,
anxious, and harried; his eyes were red, and he had a
baseball bat under his jacket. Harvey drove away after
informing petitioner that he could not give him a ride.
Officer Darryl Cross testified that he responded to 980
Whitmore Street in Detroit about 1:15 p.m. on January 29,
2008. When he arrived at the scene, Joseph Taylor was
standing over petitioner, who was lying on the ground. Taylor
stated that petitioner had tried to rob him. Then a young
lady came by and stated that petitioner had assaulted her
friend in the apartments behind them. Petitioner had blood on
his face, and Taylor stated that a bat on the ground had been
used on him during the attempted carjacking. Although Officer
Cross's police report mentioned that a club, blackjack,
and brass knuckles were visible at the scene, he explained
that the computer program, which he had used to prepare his
report did not allow him to insert the word
“bat.” The closest thing was “club, ”
and the computer automatically added in parentheses or commas
the words “brass knuckles, ” “stick,
” and other things.
was arrested at the scene and taken to the hospital. He was
the only defense witness at his trial. He corroborated Ms.
Morgan's testimony about being picked by Morgan on
January 29, 2008, going to the store for beer and liquor, and
then going to Morgan's apartment. But he denied asking
Morgan for sex, exposing himself to her, breaking things in
her apartment, or hitting her with the bat. He maintained
that Morgan had struck him with the bat and that someone had
dragged him down the hallway in the apartment building. He
said that he did not remember approaching Mr. Taylor,
demanding money from him, or smashing the window of
Taylor's van. He did recall hearing voices and several
cars pulling up, and he claimed that he regained
consciousness later that night in the hospital. Taylor
testified on rebuttal that petitioner was wearing a
“starter” jacket without a shirt underneath it on
January 29, 2008, and that petitioner did not appear to have
any injuries when he approached Taylor that day.
trial court found petitioner guilty of one count of armed
robbery, Mich. Comp. Laws § 750.529, two counts of
assault with intent to do great bodily harm less than murder,
Mich. Comp. Laws § 750.84, one count of unlawfully
driving away an automobile, Mich. Comp. Laws § 750.413,
and one count of malicious destruction of personal property
worth at least $200, but less than $1, 000, Mich. Comp. Laws
§ 750.377a(1)(c)(i). The trial court dismissed the
twelfth count (assault with intent to rob while armed) and
acquitted petitioner of the remaining counts.
was thirty-five years old at his sentencing on January 21,
2009. The trial court sentenced him to concurrent sentences
of fifteen to thirty years in prison for the armed robbery,
nineteen months (one year, seven months) to ten years in
prison for the assaults with intent to commit great bodily
harm, ten months to five years in prison for unlawfully
driving away an automobile, and time served for the malicious
destruction of property. Petitioner moved for re-sentencing,
and on June 12, 2009, the trial court's successor
re-sentenced petitioner to a term of ten to twenty-five years
in prison for the armed robbery with 497 days of jail credit.
The other sentences remained the same.
B. The Direct Appeal, Post-Conviction Proceedings,
and Habeas Corpus Petitions
appealed his robbery conviction on the basis that there was
insufficient evidence produced at trial to support the
conviction. The Michigan Court of Appeals affirmed
petitioner's conviction, but remanded the case so that
the judgment of sentence could be corrected to include the
sentence for malicious destruction of property. See
People v. Conner, No. 290284, 2010 WL 3296090 (Mich. Ct.
App. Aug. 19, 2010) (unpublished). On December 20, 2010, the
Michigan Supreme Court denied leave to appeal because it was
not persuaded to review petitioner's challenge to the
sufficiency of the evidence. See People v. Conner,
488 Mich. 996; 791 N.W.2d 455 (2010) (table).
December 22, 2011, petitioner commenced this action, arguing
that his armed robbery conviction was based on insufficient
evidence. (ECF No. 1). Before respondent could file an answer
to the petition, petitioner moved for a stay while he pursued
state remedies for several new claims. (ECF No. 7). On April
12, 2012, former United States District Judge Patrick J.
Duggan granted petitioner's motion for a stay and closed
this case for administrative purposes. (ECF No. 8).
then filed a motion for relief from judgment in the state
trial court. He argued that (1) the prosecution illegally
gathered a blood sample from him and used the test results at
trial, (2) the prosecution suppressed witness statements and
thereby prevented him asserting a defense, (3) the
prosecution failed to disclose key evidence, (4) the police
officers' investigative tactics violated his right to due
process, and (5) defense counsel's failure to make
reasonable investigations fell below an objective standard of
reasonableness. The trial court denied petitioner's
motion, and the State's appellate courts denied leave to
appeal for failure to establish entitlement to relief under
Michigan Court Rule 6.508(D). See People v. Conner,
No. 315662 (Mich. Ct. App. Oct. 30, 2013); People v.
Conner, 495 Mich. 978; 843 N.W.2d 895 (2014).
28, 2014, Petitioner filed an amended petition for the writ
of habeas corpus and a motion to lift the stay. (ECF Nos. 10
and 13). On September 25, 2014, the Court granted
petitioner's motion, re-opened this case, and ordered
respondent to file an answer to the petition. (ECF No. 15).
Respondent subsequently filed his answer to the petition (ECF
No. 16), and petitioner filed a reply (ECF No. 18).
Standard of Review
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
(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;
(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
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
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.'
” Holland v. Rivard, 800 F.3d 224, 242 (6th
Cir. 2015) (quoting 28 U.S.C. § 2254(e)(1)),
cert. denied, 136 S.Ct. 1384 (2016).
Finally, “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).
Sufficiency of the Evidence
Petitioner contends that he was convicted of armed robbery on
the basis of insufficient evidence. According to him, the
prosecutor failed to prove that he (1) had the required
intent to be found guilty of armed robbery and (2) used force
and violence against the complainant or put the victim in
fear. Petitioner raised this issue on ...