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Conner v. Birkett

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

March 1, 2017

JAMES CONNER, Petitioner,
v.
TOM BIRKETT, Respondent.

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

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         This 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.

         Respondent 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 be denied.

         I. Background

         A. The Charges, Trial, and Sentence

         Petitioner 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 29, 2008.

         At 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.

         Chantell 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.

         Joseph 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.

         Michael 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.

         Police 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.

         Petitioner 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.

         The 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.

         Petitioner 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

         Petitioner 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).

         On 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).

         Petitioner 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).

         On May 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).

         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.' ” 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).

         III. Analysis

         A. 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 ...


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