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Stalling v. Burt

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

July 12, 2017

ANTONIO STALLING, Petitioner,
v.
S.L. BURT, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) GRANTING A CERTIFICATE OF APPEALABILITY WITH RESPECT TO PETITIONER'S FIRST AND FIFTH CLAIMS, AND (3) DENYING A CERTIFICATE OF APPEALABILITY WITH RESPECT TO HIS REMAINING CLAIMS

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         Michigan prisoner Antonio Stalling (“Petitioner”) filed this habeas case under 28 U.S.C. § 2254. Petitioner is challenging his convictions after a jury trial in the Wayne County Circuit Court of assault with intent to murder, possession of a firearm by a felon, and possession of a firearm during the commission of a felony. The trial judge sentenced Petitioner to terms of incarceration of 15 to 25 years for the assault with intent to murder conviction, 1 to 5 years for the felon in possession conviction, and a consecutive 2-year term for the felony-firearm conviction.

         In support of his request for habeas relief, Petitioner raises five claims: (1) Petitioner was denied his confrontation rights when he was precluded from questioning the victim whether the prosecutor threatened him with perjury; (2) Petitioner was denied the effective assistance of trial counsel; (3) the prosecutor committed acts of misconduct; (4) there was insufficient evidence presented at trial; and (5) Petitioner was denied his right to a public trial when the courtroom doors were locking during opening statements and closing arguments.

         The Court finds that Petitioner's claims are without merit. Therefore, it is denying Petitioner relief. The Court is granting Petitioner a certificate of appealability with respect to his first and fifth claims, however.

         I. Background

         Petitioner was charged with the above-described offenses in connection with the shooting of his cousin, Isaac Johnson, on December 31, 2011.

         At Petitioner's preliminary examination, Johnson testified that he was forty-seven years old, and he identified Petitioner as his first cousin. (2/3/12 Tr. at 11, ECF No. 7-2 at Pg ID 258.) Johnson testified that at the time of the shooting, he was returning to his house at 12107 Otsego in Detroit. (Id.) Johnson lived on the second floor of a two-story flat, and Petitioner's mother lived on the first floor. (Id. at 12, Pg ID 259.)

         Johnson testified that when he returned home from the store at about 11:00 p.m. on New Year's eve, he went up the side stairs to the second floor front porch and was opening the door when Petitioner exited the side door of the lower flat. (Id. at 12-13, Pg ID 259-60.) According to Johnson, the area was well lit by a light on the side of a neighboring house. (Id. at 13, Pg ID 260.) Nothing was covering Petitioner's face. (Id. at 15, Pg ID 262.)

         Johnson greeted Petitioner, but then Petitioner pulled a handgun from his waistband and started firing up at Johnson from the porch below. (Id. at 13-14, Pg ID 260-61.) Johnson was hit in the leg and foot. (Id. at 14-16, Pg ID 261-63.) Johnson retrieved his own weapon from his flat, but by the time he returned outside, Petitioner had fled down the street, entered a burgundy car, and drove away. (Id. at 16, Pg ID 263.) Petitioner spent three days in the hospital. (Id. at 18, Pg ID 265.)

         On January 5, 2012, Johnson went to the police station. (Id. at 16-17, Pg ID 263-64.) While leaving, Johnson noticed that his car was being followed by a vehicle resembling the burgundy car Petitioner drove away on New Year's eve. (Id. at 17, Pg ID 264.) Johnson slowed his vehicle down, and the other car pulled alongside him. (Id.) Petitioner was the driver. (Id. at 18, Pg ID 265.) Johnson lowered his window and expressed his disappointment in what Petitioner had done. (Id.) Petitioner smiled and sped away. (Id.)

         At a later date, one of Petitioner's friends approached Johnson and offered him $3, 000 to drop the charges against Petitioner. (Id. at 26-27, Pg ID 273-74.) Johnson refused. (Id.)

         Petitioner's trial commenced about three months after the preliminary examination, on May 23, 2012. (5/23/12 Trial Tr., ECF No. 7-3.) The prosecutor informed the trial judge before jury selection that Johnson was now reluctant to testify because he had been assaulted and threatened. (Id. at 3-4, Pg ID 295-96.) The prosecutor further informed the court that Johnson was told he could be locked up if he did not appear in court, and an officer had been dispatched to locate and produce Johnson for trial. (Id. at 4, Pg ID 296.)

         When Johnson appeared, the prosecutor examined him outside the presence of the jury. (Id. at 91-93, Pg ID 384-86.) Johnson testified that he did not want to testify because he had been threatened. (Id. at 93, Pg ID 395.) Johnson also testified that he was now unsure whether he was shot by Petitioner or Petitioner's brother, who Johnson claimed looked exactly like Petitioner. (Id. at 93-94, Pg ID 385-86.) Johnson indicated that “a lot of people” had told him that Petitioner was not the shooter. (Id. at 94, Pg ID 386.) The judge appointed counsel for Johnson because of the possibility he might perjure himself at trial. (Id. at 94-95, Pg ID 386-88.) The trial then proceeded, with the state calling Johnson as its first witness. (Id. at 98, 115, Pg Id. 390, 407.)

         Johnson testified that on December 31, 2011, his son and young nephews were staying at his flat. (Id. at 118, Pg ID 410.) He went to the store and returned at around 11:00 p.m. (Id. 118, 120, Pg ID 410, 412.) Johnson testified that as he was opening the front door to his second-floor flat, he heard someone exit the side door of the flat below and saw someone wearing a hoodie and grey pants, who he thought was Petitioner. (Id. at 120, Pg ID 412.) Johnson claimed that it was kind of dark. (Id. at 121, Pg ID 413.) He equivocated as to whether the person was Petitioner or Petitioner's brother:

And I looked, and at first I thought it was my cousin Tone [Petitioner], but I came to realize I don't - I don't know for sure now, you know.
I testified that it was him but I don't know now, you know.
I looked immediately, I thought it was my cousin Tone. I so messed up that I really just said, what up, Tone. I thought it was him. But like I said, it was either him or his brother. All I know is I was angry, I said it was Tone, though, ‘cause it looked more like Tone.

(Id. at 120-124; Pg ID 412-16; see also id. at 144-45, Pg ID 436-37.) Johnson testified that Petitioner and his brother look exactly alike. (Id. at 125, Pg Id. 417.)

         Johnson testified that the person pulled out a gun and shot at him about eight or nine times, striking his leg, thighs, and foot. (Id. at 144, 150, Pg ID 436, 442.)

         The prosecutor questioned Johnson about any threats he received since his preliminary examination testimony. (Id. at 123, Pg ID 415.) Johnson testified about “[s]ome guys” in a truck hitting him on the head with a gun and trying to get him into their vehicle. (Id.) Johnson claimed they “knocked [him] out” and took his wallet, but were unable to get him into the car because “some cars intervened.” (Id.) According to Johnson, a “home boy” called “Head” offered him money not to prosecute Petitioner. (Id. at 158, 162, Pg ID 450, 454.)

         Johnson also testified that after leaving the police station on January 5, 2012, he saw Petitioner driving in a car that looked like the one he saw on the night he was shot. (Id. at 130-31, Pg ID 422-23.) Johnson testified that when Petitioner pulled up next to Petitioner's car, Johnson said “I wouldn't have never did you like that, you know” and Petitioner responded “do what?” (Id. at 134, Pg ID 426.) According to Johnson, when he told Petitioner what he did, Petitioner said nothing and just drove away. (Id.)

         The prosecutor pressed Johnson about a statement he gave to the police after the encounter, which led to Johnson testifying that Petitioner said he saw Johnson leave the police station and that if he was going to testify, he “ain't gonna make it to testify[.]” (Id. at 135-36, Pg ID 428-29.) Johnson then acknowledged that what he actually reported Petitioner saying is: “you hoe ass nigger, you won't make it to testify.” (Id. at 137, Pg ID 429.) Johnson admitted that he also told the police on January 5 that Petitioner shot him and that he believed he was going to kill him. (Id. at 138-39, Pg ID 430-31.)

         At various points during her questioning of Johnson, the prosecutor read questions posed to him at Petitioner's preliminary examination and his answers, highlighting the inconsistencies in Johnson's testimony shortly after the incident and since being threatened.

         On cross-examination, Johnson indicated that Petitioner had not threatened him since the shooting, but Petitioner's brother had. (Id. at 169, Pg ID 461.) Johnson also claimed that he did not really know what Petitioner said to him during their encounter after Johnson left the police station. (Id. at 183, Pg ID 475.) Johnson also testified that Petitioner had not threatened him before the shooting. (Id. at 174, Pg ID 466.) He described an argument between himself, Petitioner, and Petitioner's brother before the shooting, but said it really was something between himself and the brother. (Id.) Johnson also conveyed that he and Petitioner had resolved their disagreement. (Id. at 201-02, Pg ID 493-94.)

         Petitioner's trial attorney challenged Johnson's conviction that Petitioner was the shooter, to which Johnson responded:

I can't - like I said, you have to see his brother to believe me. So like I said, if it's him, I want him in jail. But I don't know if it's really him. They said it's his brother that did it.
I was angry. I'm going to tell you, I was - I just knew it was him. I said it was him because I, like I said, it looked like him and I couldn't say nothing else. I said it was him because, like I said, him and his brother look alike.

(Id. at 173-76, Pg ID 463-67.) Johnson testified that Petitioner and his brother in fact look like twins. (Id. at 201, pg ID 493.) When defense counsel asked Johnson if he could tell the jury to a certainty that Petitioner shot him, Johnson responded: “No.” (Id. at 178, pg ID 470.)

         Petitioner's trial counsel brought out that when the police responded to the scene of the shooting, Johnson described the person who shot him as an “unknown black male.” (Id. at 176-177, Pg Id. 176-77.) Johnson testified that it was dark at the time of the incident and claimed that there was no light shining on the person who shot him. (Id. at 177-78, Pg ID 469-70.) Johnson admitted that he used marijuana on the night of the shooting. (Id. at 186, Pg ID 478.)

         Following Johnson's testimony, at the beginning of the second day of Petitioner's trial, the prosecutor played a recording of a phone call Petitioner placed from jail on January 24, 2012. (5/24/12 Trial Tr. at 6-8, ECF No. 7-4 at Pg ID -523-25.) During the call, Petitioner talked about the idea of waiving the preliminary examination, explaining:

see, anything happens, he get killed or anything, well, then, you know what I'm saying? . . . they can't still go on and prosecute me because there's not going to be a record of saying I did this to him. … The thing that he already wrote said I did to him, that-they can't use that in court. he got to be on the record saying something.

(Id.)

         The prosecution then called two Detroit police officers to testify. Officer Lori Briggs, an evidence technician, testified about the condition of the scene of the shooting, which she examined a couple of days after the incident. (Id. at 11-16, Pg ID 528-33.) Officer Adam Szlarski testified that on January 5, 2012, he arrested Petitioner after a high-speed chase that ended when Petitioner crashed a burgundy colored Nissan. (Id. at 18-24, Pg ID 535-41.)

         Martina Allen testified for the defense. She testified that Petitioner is her boyfriend and that she spent New Year's eve with Petitioner, beginning at about five or six p.m. (Id. at 32-33, Pg ID 549-50.) Allen told the jury that she and Petitioner cleaned his house, went to her house at about eight or nine p.m., and then spent the remainder of the evening together cooking and watching movies. (Id. at 33-34, Pg ID 550-51.)

         Claude May testified that he lives next door to the house where Johnson lived on the night of the shooting. (Id. at 56, Pg ID 573.) May arrived home from church services between nine and nine thirty p.m. on December 31, 2011. (Id.) May and his brother were about to leave May's house to go to a restaurant when May heard four or five close gunshots and observed a man running between his car, which was parked half up the driveway, and the porch next door. (Id. at 56-59, 74, Pg ID 573-76, 591.) May saw the man run up the street and get into a car that was a brighter red than burgundy. (Id. at 61-63, Pg ID 578-80.)

         May described the man he saw as a “bigger guy”, with a dark complexion, a beard, wearing a hoodie. (Id. at 82, 79, Pg ID 579, 596.) May indicated that he weighs 331 pounds and the shooter was big like himself. (Id. at 70, Pg ID 587.) May testified that he knows Petitioner, and the man he saw that night was not him. (Id. at 63-64, Pg ID 580-81.) May also knows Petitioner's brother, who he described as shorter than Petitioner, but slim as well. (Id. at 70-71, Pg ID 587-88.) No Detroit police officer ever contacted May about the shooting. (Id. at 64-65, at Pg ID 581-82.) A private investigator, who the prosecutor suggested worked for the defense, left a card in May's door and May called him.

         Following arguments and instructions, the jury found Petitioner guilty of the offenses described above. (Id. at 145-46, pg ID 662-63.) Defense counsel subsequently filed a motion for new trial based on juror and prosecutorial misconduct. On November 28, 2012, the court denied the motion for new trial.

         On June 13, 2012, the date scheduled for sentencing, defense counsel moved to withdraw because of a breakdown in the attorney-client relationship. (6/13/12 Tr. at 4, Pg ID 672.) The trial judge granted the motion and Petitioner retained new counsel who appeared at the new sentencing date, June 25, 2012. (Id.; 6/25/12 Tr. at 3, Pg ID 7-6 at Pg ID 677.) On that date, the trial court sentenced Petitioner as outlined earlier.

         Petitioner then filed a direct appeal in the Michigan Court of Appeals, raising the following claims:

I. The trial judge's ruling denied the defendant due process of law in the following ways: 1. The trial court abused its discretion when it barred the defense from cross examining the complainant about threats and promises made by the prosecutor in return for his testimony. 2. The trial court abused its discretion when it permitted the prosecutor to play the recorded jail phone call.
II. Conduct by the prosecutor denied appellant a fair trial in the following ways: 1. The prosecutor vouched for her case, engaged in bolstering, argued facts not in evidence, argued facts she knew not to be true, and offered her personal opinion. 2. The prosecutor, in argument and by manner, denigrated defense counsel and shifted the burden of proof and misstated facts. 3. The prosecutor misstated the law. 4. The prosecutor commented on the defendant's right to counsel. 5. The prosecution introduced evidence of alleged threats to the witness which were neither proved nor connected to the defendant and argued that the defendant was a man of bad character. 6. The prosecution asked for sympathy for the complainant.
III. Defendant was denied the effective assistance of counsel in the following ways: 1. Defense counsel failed to call as a witness Deborah Hunter, the person who lived in the downstairs flat. 2. Trial counsel failed to object to prosecutorial misconduct. 3. Trial counsel failed to ask for a limiting instruction in regard to the stipulation that defendant had been convicted of a felony. 4. Counsel failed to move to strike the testimony concerning threats not made by defendant. 5. Counsel failed to object to the reading of examination testimony which implicated the defendant's right to counsel. 6. Trial counsel failed to object to the violation of his client's right to a public trial.
IV. There was insufficient evidence to support the verdict because the proofs were deficient both on the intent element and on defendant's connection to the crime.
V. Appellant's constitutional right to a public trial was violated when the trial judge locked the court room door during ...

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