United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, GRANTING A CERTIFICATE OF APPEALABILITY WITH RESPECT
TO PETITIONER'S THIRD CLAIM, AND GRANTING PERMISSION FOR
LEAVE TO APPEAL IN FORMA PAUPERIS
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
Smith, (“Petitioner”), was convicted in Wayne
County Circuit Court of two counts of first-degree murder,
Mich. Comp. Laws. § 750.316(1)(a), two counts of
torture, Mich. Comp. Laws. § 750.85, and possession of a
firearm during the commission of a felony, Mich. Comp. Laws.
§ 750.227b. Petitioner was sentenced to life
imprisonment for the murder convictions, twenty-three to
fifty years for the torture convictions, and a consecutive
two-year term for the firearm conviction.
amended habeas petition raises three claims: (1)
petitioner's statement to police should have been
suppressed when he read aloud the waiver of rights form
incorrectly and the interrogating officer failed to correct
the mistake, (2) the trial court erroneously admitted the
recording of a 911 call made by the victims' young
daughter, and (3) petitioner was denied the effective
assistance of trial and appellate counsel. The petition will
be denied because the claims are without merit. The Court
will grant petitioner a certificate of appealability with
respect to his third claim, deny a certificate of
appealability with respect to his other two claims, and grant
leave to proceed in forma pauperis on appeal.
case involves the March 1, 2010, murder of Monica Botello and
Percil Carson at their Detroit home. Petitioner was tried
twice. After the first trial, petitioner's co-defendant,
Derrick Smith, was convicted of murder, torture, and
felony-firearm. The jury was unable to reach a verdict on the
charges against petitioner.
petitioner's second trial, evidence was presented that he
and Derrick went to the victims' residence under the
pretense of completing a drug transaction. As the money was
being counted, Derrick and petitioner drew handguns.
Petitioner ordered Botello and her two young daughters into a
bathroom at gunpoint. Botello was later taken out of the
bathroom, and the men bound her and Carson's wrists with
duct tape. Carson begged for his life, pleading with the two
men that he had a family. Derrick and petitioner directed
Botello and Carson into the basement, where they were laid
across a couch and their mouths duct-taped. Carson was shot
once in the front of the head, and Botello was shot once in
the back of the head.
one of Botello's daughters in the bathroom,
eight-year-old Tayonna, heard Carson's pleas, her parents
forced into the basement, and gunshots. She called 911 after
Derrick and petitioner left the house. Tayonna described the
two perpetrators to the operator and said a man, who she
later identified as petitioner, forced her into the bathroom
at gunpoint. The day after the murders, Tayonna again
described the perpetrators. She also later picked petitioner
at a photographic identification procedure. Petitioner
refused to participate in a live line-up.
witness, Shantell Crankfield, also picked petitioner out of a
photographic identification array as the man who was with
Derrick and Carson at the house on the evening of the
murders. Crankfield left shortly before the incident
was apprehended about six months after the crime. In his
statement to police, he admitted to being in the victims'
house, but he claimed that he did nothing to aid Derrick, who
he claims was solely responsible for binding, robbing, and
killing the two victims. Petitioner's defense was that
Derrick called him and asked him to come to Carson's
house to facilitate a drug deal. When petitioner saw that
Derrick planned to rob Carson, he escorted the children to
the bathroom for their own protection and then left the
premises. The prosecutor relied on Tayonna's statements
and testimony that petitioner was armed with a gun and forced
them into the bathroom to discredit petitioner's version
of events, and she asserted that petitioner's conduct at
a minimum constituted aiding and abetting Derrick's
on this evidence, the jury found petitioner guilty of the
offenses indicated above. Following his conviction and
sentence, petitioner filed a claim of appeal in the Michigan
Court of Appeals. His appellate brief raised the following
I. [Petitioner] did not voluntarily, knowingly and
intelligently waive his constitutional rights when he did not
read the waiver of right's form correctly and the
interrogator failed to correct him.
II. The trial court admitted irrelevant and prejudicial
evidence in violation of Michigan Rules of Evidence 401 and
403 when it admitted Tayonna Botello's 911 call.
Michigan Court of Appeals affirmed petitioner's
conviction in an unpublished opinion. People v.
Smith, No. 306574 (Mich. Ct. App. Nov. 27, 2012).
Petitioner subsequently filed an application for leave to
appeal in the Michigan Supreme Court, raising the same claims
as in the Michigan Court of Appeals. The Michigan Supreme
Court denied the application because it was not persuaded
that the questions presented. People v. Smith, 829
N.W.2d 203 (Mich. 2013).
then filed his federal habeas petition along with a motion to
stay the petition so he could return to the state court to
exhaust a claim of ineffective assistance of counsel claim.
The Court granted petitioner's motion to stay.
then returned to the state trial court and filed a motion for
relief from judgment, raising claims regarding the
effectiveness of his trial and appellate counsel. Petitioner
claimed this his trial counsel was ineffective for failing to
call two defense witnesses, Jeffery Haugabook and Nina
Funchess, who testified at the first trial. Haugabook
testified at the first trial that Derrick was with someone
other than petitioner, a different “young un, ”
at a Wal-Mart when the robbery was discussed and planned.
Funchess also testified at the first trial that she saw
Derrick both before and after the crimes, but petitioner was
not with him.
September 16, 2014, the trial court denied the motion for
relief on the merits, finding that petitioner's counsel
did not perform deficiently, and that petitioner was not
prejudiced by his counsel's performance in light of the
strength of the evidence indicating his guilt. See
Wayne County Circuit Court Sept. 16, 2014, Opinion and Order.
The Court also found that petitioner failed to demonstrate
actual prejudice as required under Michigan Court Rule
then filed an application for leave to appeal in the Michigan
Court of Appeals. The Michigan Court of Appeals denied the
application for failure to establish entitlement to relief
under Michigan Court Rule 6.508(D) and for “failure to
establish that good cause should be waived.” People
v. Smith, No. 326534 (Mich. Ct. App. June 2, 2015).
Petitioner applied for leave to appeal this decision in the
Michigan Supreme Court, but was also denied relief under Rule
6.508(D). People v. Smith, 878 N.W.2d 870 (Mich.
thereafter filed an amended petition and motion to life the
stay, which the Court granted. Respondent responded, and the
matter is now ready for decision.