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Lyons v. Bergh

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

March 10, 2017

ALEXANDER LYONS, Petitioner,
v.
DAVID BERGH, Respondent.

          OPINION AND ORDER DENYING RESPONDENT'S MOTION FOR ORDER DISMISSING APPLICATION FOR WRIT OF HABEAS CORPUS [6]

          HONORABLE LAURIE J. MICHELSON JUDGE

         Petitioner Alexander Lyons, a Michigan prisoner, was convicted of first-degree felony murder and felony firearm in the shooting death of Johnathan Clements. He has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent David Bergh has filed a motion to dismiss the petition for failure to exhaust all claims. (R. 6.) The Court agrees that the petition asserts both exhausted and unexhausted claims. But dismissal of the mixed petition would jeopardize the timeliness of a future petition. The Court will therefore deny the motion to dismiss and allow Petitioner to inform the Court how he wishes to proceed.

         I. Background

         Petitioner's convictions arise from the shooting death of Johnathan Clements in Hazel Park, Michigan. Petitioner set up a Craigslist ad to sell his cell phone. Clements made arrangements to buy it from Petitioner. In a statement to police, Petitioner said that he and co-defendant Lamar Deangelo Clemons intended to rob Clements rather than sell him a phone. (R. 1, PID 25.) After exchanging the cell phone for the money, Petitioner pulled out a gun and demanded that Clements return the phone. (Id.) Petitioner told police that Clements turned and fidgeted, so Petitioner thought he might be reaching for a gun and shot him. (Id.) After Clements turned again, Petitioner believed he might still be reaching for a gun, so Petitioner shot him again. (Id.)

         Following a joint trial with co-defendant Clemons, before separate juries, Petitioner was convicted of first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b), and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. On October 3, 2011, Petitioner was sentenced to life imprisonment for the murder conviction, and two years' imprisonment for the felony-firearm conviction. (See R. 7-11.)

         Petitioner filed an appeal as of right in the Michigan Court of Appeals. He raised claims that a police detective was improperly permitted to testify as to the truthfulness of certain witnesses, counsel was ineffective for failing to object to the detective's testimony, and insufficient evidence was presented to satisfy the malice element of first-degree felony murder. He raised two additional claims in a pro per supplemental brief: counsel was ineffective in not challenging the probable cause determination, and counsel was ineffective in failing to ask for an instruction on statutory involuntary manslaughter. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Lyons, No. 306462, 2013 WL 6921521 (Mich. Ct. App. Dec. 26, 2013).

         Petitioner then filed an application for leave to appeal in the Michigan Supreme Court. He raised the same claims raised in the Michigan Court of Appeals and these additional claims: (i) appellate counsel was ineffective in failing to raise claims that trial counsel was so ineffective as to result in the constructive denial of counsel, and that trial counsel was ineffective in failing to object to a Confrontation Clause violation, and that the prosecutor engaged in misconduct; (ii)

         trial counsel was ineffective in failing to conduct a reasonable investigation, timely file pretrial motions for discovery, secure production of certain witness names, subject the prosecution's case to meaningful adversarial testing, object to the admission of inadmissible evidence related to internet data compilation and telephone records, and in failing to compel the production of the prosecution's nontestifying witnesses; and (iii) prosecutorial misconduct. The Michigan Supreme Court denied leave to appeal because it was “not persuaded that the questions presented should be reviewed by this Court.” People v. Lyons, No. 148785, 847 N.W.2d 509 (Mich. June 24, 2014). Petitioner did not petition the United States Supreme Court for certiorari, nor did he file a state-court collateral appeal. (R. 1, PID 4.)

         Petitioner filed the pending habeas corpus petition on August 26, 2015. He raises these claims:

I. Petitioner was denied his constitutional right to confront and cross-examine Latasha Pettas, who did not appear at trial, when Detective Roettger was allowed to testify to the substance of Pettas's testimonial, out-of-court statement, offered into evidence against petitioner for its truth, where there was no showing of Pettas's unavailability to appear at trial.
II. The admission of incompetent and repeated testimony at trial from detective Roettger opining and commenting on the credibility and ultimate guilt of Petitioner, as well as the credibility of Joseph Browder and Latasha Pettas, was so egregious that it violated Petitioner's rights under the due process clause to a fundamentally fair trial where the central issue at trial centered solely on the credibility of Petitioner, Pettas, and Browder.
III. Petitioner was denied his constitutional right to due process and a fair trial, when the prosecutor improperly elicited an opinion about Petitioner's credibility from the law enforcement agent who interviewed him, and further sought testimony from that agent that suggested the guilt of petitioner to the jury.
IV. Petitioner was denied his constitutional right to the effective assistance of counsel due to all of the following: (i) Trial counsel failed to object on Confrontation Clause grounds to the admission of Pettas's out-of-court statement introduced at trial through the testimony of Detective Roettger. (ii) Trial counsel failed to object to the admission of Detective Roettger's opinion-testimony regarding the credibility of petitioner Lyons, Joseph Browder, and Latasha Pettas, as well as his opinion that suggested the guilt of Petitioner to the jury. (iii) Trial counsel failed to object to prosecutor misconduct.
V. Petitioner's conviction for felony murder must be reversed where the prosecution failed to present sufficient evidence of malice to satisfy the constitutional due process ...

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