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Reid v. Rivard

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

June 20, 2017

AMONTE REID, #756082, Petitioner,
v.
STEVE RIVARD, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Amonte Reid (“petitioner”) was convicted of armed robbery, Mich. Comp. Laws § 750.529, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and two counts of possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, following a jury trial in the Oakland County Circuit Court in 2012. He was sentenced, as a third habitual offender, Mich. Comp. Laws § 769.11, to 25 to 80 years imprisonment on the armed robbery conviction, a concurrent term of four to 10 years imprisonment on the felon in possession conviction, and concurrent terms of two years imprisonment on the felony firearm convictions to be served consecutively to the other sentences. In his pleadings, he raises claims concerning the effectiveness of trial counsel and the sufficiency of the evidence. For the reasons set forth, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         The petitioner's convictions arise from his armed robbery of Matthew Fugate during a drug deal at Fugate's home in Pontiac, Michigan on December 30, 2011. The Court adopts the summary of the trial testimony as set forth in the prosecutor's brief on direct appeal to the extent that it is consistent with the record. Those facts are as follows:

Matthew Fugate testified that he lived at 842 Emerson in the City of Pontiac. (TI, 241) Matthew's brother, Robin Fugate, and Brittany [Sanchez], Robin's girlfriend, lived with defendant. On December 30, 2011, Matthew, Robin, Brittany, and a friend named Hector [Sanchez] were at the house on Emerson. At approximately 2:00 p.m., Matthew received a text from “Jack Frost Boy.” Matthew did not know his real name at the time, but knew him through an individual named Sam Sullivan. (TI, 239-244) Sullivan's street name was Jack Frost. Matthew tried to get pills from Sullivan, but Sullivan referred Matthew to Jack Frost Boy. Matthew identified defendant in court as the person he knew as Jack Frost Boy. (TI, 245-246)
Matthew explained that he had back problems and used Vicodin. He had bought Vicodin from Jack Frost Boy four or five times. Matthew stated that he had also sold Vicodin, Somas, marijuana and Xanax in the past. (TI, 247-248) Matthew texted defendant on December 30, 2011, that he would buy Vicodin from defendant. (TI, 249-252) The parties stipulated to admission of the text messages as People's exhibit (1). (TI, 250) Matthew never had any problems with the previous transactions with defendant. (TI, 256)
Defendant arrived at Matthew's home in the afternoon. Matthew heard a knock at the door and told defendant to come in. Matthew asked Robin, Brittany, and Hector to leave the room and they left. (TI, 256-257) Defendant entered the room while patting himself down and said he did not have the Vicodin with him and that he left them in the car. Defendant went back outside, came back in, and was still patting himself down. Defendant told Matthew he only had thirty Vicodin. Matthew told defendant he would take whatever he had. (TI, 268)
Matthew pulled out his wallet and his phone to calculate the cost of the thirty pills. When Matthew opened up his wallet containing four hundred dollars, defendant said, “[G]ive it all to me.” Matthew looked up and saw a silver gun pointed at him. Matthew thought he was going to die and tried to defend himself. Matthew grabbed defendant's arm with both hands and tried to knock the gun out of his hand. Matthew then hit defendant in the left jaw with his right hand, but defendant was able to turn his arm and shoot Matthew in the stomach. (TI, 268-273) Matthew indicated that he still had a scar in the middle of his stomach from the bullet wound. (TI, 269) After being shot, Matthew fell to the ground. Matthew's leg was hurting. Matthew saw his brother come running around the corner and then he heard a second shot. That was all Matthew remembered because he blacked out. (TI, 273-274) Matthew stated that he did not pull the trigger on the gun. Matthew's wallet was taken. (TI, 274)
Matthew went to Pontiac Osteopathic Hospital for medical care. As a result of the gunshot wound, Matthew got a hernia. Matthew's leg still hurts now and it was hard for him to walk up and down stairs. (TI, 276-277) While Matthew was in the hospital, a detective showed him a photo lineup of six different photos. Matthew identified photo number three as the person who shot him. Matthew circled photo number three and signed his name. The photo lineup was admitted as People's exhibit (11). (TI, 277-280) Matthew also showed the detective his phone and the text messages he had received. (TI, 280)
On cross-examination, Matthew stated that he did not tell the detective prior to the preliminary examination in March of 2012 that he was a drug dealer. (TI, 283) Matthew received a text message at 1:30 p.m. on December 30, 2011, from someone named EJ asking if he had some Somas. Matthew explained that Somas were muscle spasm pills. (TI, 285) Matthew texted Leroy, another “associate, ” asking him if he had Somas and telling him he would “grab” 86 of them from him. (TI, 286-287) Then Jack Frost Boy texted Matthew that he had 165 Vicodin pills and Matthew told him he would take 100 pills and another 65 pills later. (TI, 287-288) Matthew had not seen Hector since the day of the incident. (TI, 295-296) Matthew may have had marijuana in his system at the hospital. (TI, 298)
Raymond Wiggins, a deputy with the Oakland County Sheriff's Department, testified that on December 30, 2011, at approximately 4:24 p.m. he was dispatched to 842 Emerson in Pontiac regarding a shooting victim. (TII, 12-14) Wiggins arrived at the home and entered through the front door. Matthew Fugate was lying on the living room floor with a gunshot wound to the stomach. (TII, 16) There was also a female subject present, as well as Robin Fugate, the brother of Matthew. (TII, 18-19) Matthew appeared to be coming in and out of consciousness. Emergency medical technicians arrived and attended to Matthew's injuries. (TII, 20)
Wiggins observed one spent shell casing at the front door and another spent casing at the north end side of the house. Wiggins was advised that there were two dogs in the house and one had been shot. (TI, 22)
Brittany Sanchez testified that on December 30, 2011, she lived at 842 Emerson in Pontiac with Matthew and Robin Fugate. (TII, 26-27) Brittany was dating Robin. At approximately 4:00 p.m. on December 30, Brittany was at home with Matthew, Robin, and Hector Sanchez. (TII, 28) Hector was a friend of the Fugate brothers. (TII, 29) Brittany heard someone knock at the door and Robin told Matthew to answer the door. (TII, 29) Brittany was in the kitchen with Robin when she heard two pops. (TII, 30) Brittany ran to the back door because she was pregnant and did not want to get hurt. (TII, 30-31) Robin ran towards Matthew. (TI, 31) Brittany went to check to see if everybody was okay. Robin was on the phone to the police and Matthew was on the floor in front of the bathroom. Brittany indicated that she did not see any blood, but Matthew was hurt and could not move his right leg. (TII, 32) Robin was applying pressure to the wound. (TII, 33) Their Pit Bull puppy, Boots, was shot. (TI, 34)
On cross-examination, Brittany stated that she never saw the person that entered the house. According to Brittany, Robin and Hector were not present when Matthew had a discussion with the person that entered the house. (TII, 36)
Robin Fugate testified that he lived at 842 Emerson in Pontiac with his brother, Matthew Fugate, and his girlfriend, Brittany Sanchez. (TII, 45-46) At approximately 4:15, a person knocked at their door and Robin identified defendant in court as that person. (TII, 50-51) Matthew let defendant in. (TII, 51) Robin knew that Matthew had bought Vicodin pills from defendant a couple of times. (TII, 52) Robin stated that he was in the room while Matthew and defendant discussed some things.
Defendant left the house, went out to his car, and then walked back in patting himself down. (TII, 53) Robin left the room and went to the kitchen. While in the kitchen, Robin heard a gunshot and a thud. Robin walked towards the living room and heard a re-rack sound. Robin peeked his head around the corner and it looked like defendant was going to shoot at him, but then he turned ninety degrees and shot at the dog. (TII, 54-55) As defendant was leaving, Robin observed a gun, a wallet, and phone in defendant's hands. (TII, 55) Hector was in the living room, right next to Matthew. (TII, 56)
Robin called the police. He pulled up Matthew's shirt and observed a big hole on the left side of his stomach. Matthew was not able to move. (TII, 57) The police and emergency medical technicians arrived quickly. The police took Robin, Brittany, and Hector to the police station. (TII, 58) The police interviewed Robin and asked him to look at two photo lineups. Robin did not see defendant in the first lineup, but he did identify defendant in the second line up as the person who shot. The photo lineup was admitted as People's exhibit (12). (TII, 58-61)
On cross-examination, Robin stated that he knew Matthew was dealing in something, he just did not know what. (TII, 63) Hector was a good friend to Matthew and Robin. Matthew did not sell drugs to Hector. (TII, 64) Robin wrote out a statement to the police. Robin did not actually see defendant shoot Matthew. (TII, 67) The next day, Robin spoke with a detective. Robin denied telling the detective that he answered the door. (TII, 73) Robin stated that Hector was not in the kitchen at the time the shooting occurred, but that he was in the living room. (TII, 77-78)
Claudio Lopez, a deputy with the Oakland County Sheriff's Department, testified that on December 30, 2011, he was dispatched to 842 Emerson in Pontiac regarding a shooting that occurred at the residence. (TII, 85-86) When he arrived at the location, emergency medical services were already there and treating the victim. (TII, 85-86) The victim was lying on the floor in the living room. Lopez observed a hole in the victim's stomach and there was blood. (TII, 86-87) There was a Pit Bull dog in the bathroom with an injury to his ribcage and his foot. There was a blood trail in the living room, hallway, and bathroom. (TII, 87-88)
Rachel Grace, a firearm and tool mark examiner and crime scene investigator for the Oakland County Sheriff's Department, was qualified as an expert in the field of firearms identification. (TII, 95) On December 30, 2011, Grace went to 842 Emerson in Pontiac to process a shooting scene. (TI, 96) Grace took photographs of everything that she observed. She marked where the evidence should be, drew a sketch, and collected the evidence. (TI, 97) Grace observed and collected a fired bullet, two fired cartridge cases, and some suspected blood. (TI, 98, 108) The fired cartridges were 380 caliber Remington Peters. (TII, 110) Grace received a bullet from Pontiac Osteopathic Hospital that was taken from the victim. (TII, 112) It was determined that the two fired cartridges were fired from the same firearm. (TII, 114)
On cross-examination, Grace explained that she was not able to indicate the manufacturer of the weapon. It could have been an automatic or semi-automatic weapon. (TII, 118-119) The shells could have been fired by a .380 or a 9mm weapon. (TII, 119) Grace did not do any testing of the blood to determine if it was human blood. (TII, 120)
John MacDonald, a detective with the Oakland County Sheriff's Office, testified that he went to the scene at 842 Emerson in Pontiac on December 30, 2011. MacDonald was met by Deputy Lopez. When he entered the home, MacDonald observed a shell casing next to the door and a lot of blood next to the hallway on the living room floor. (TII, 127-129) MacDonald observed another fired cartridge case in the living rom. (TII, 130) MacDonald spoke with Matthew at Pontiac Osteopathic Hospital. Matthew was laying on his back, he had a mask for breathing, and he was in a lot of pain. (TII, 131) MacDonald had a brief conversation with Matthew and took custody of Matthew's cell phone. Matthew showed MacDonald that he had done a calculation on his cell phone of 30 Vicodin at 2.50 a piece. (TII, 131-132)
Matthew told MacDonald that he met defendant through Sam Sullivan. MacDonald spoke with Sullivan at the Pontiac police substation. (TII, 133-134) MacDonald showed photo lineups to Sullivan, Matthew, and Robin. (TII, 134-136) MacDonald interviewed defendant on January 4, 2012. MacDonald identified defendant in court as the person he interviewed. (TII, 136) Defendant signed the Miranda waiver form. (TII, 139) The video of defendant's interview was admitted as People's exhibit (31) and the transcript of the video was admitted as People's exhibit (32). (TII, 141) The video of defendant's interview was played for the jury. (TII, 147)
MacDonald stated that defendant told him he had no involvement in the incident at 842 Emerson. Defendant denied going to that location or selling pills. (TIII, 5-6) MacDonald gave defendant numerous opportunities to explain what happened. MacDonald brought up the issue of ...

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