United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING RESPONDENT'S MOTION FOR
ORDER DISMISSING APPLICATION FOR WRIT OF HABEAS CORPUS
HONORABLE LAURIE J. MICHELSON JUDGE
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.
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.)
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.)
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.
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;
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.)
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