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Johnson v. Smith

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

July 14, 2017

THOMAS WAYNE JOHNSON, Petitioner,
v.
WILLIE SMITH, Respondent.

          OPINION AND ORDER DENYING PETITIONER'S APPLICATION FOR A WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE

         Petitioner has filed a pro se habeas corpus petition challenging his state convictions for four counts of assault with intent to rob while armed, Mich. Comp. Laws § 750.89. Petitioner is serving a sentence of twenty-five to forty years in prison. He alleges as grounds for relief that (1) the prosecutor failed to disclose favorable evidence to the defense, and trial counsel was ineffective for failing to investigate and impeach the co-defendant with details of his plea and sentencing agreement; (2) the trial court violated his right to due process by admitting evidence of his unrelated arrest for domestic violence, and trial counsel was ineffective for failing to move to redact petitioner's statement to the police that he had a prior conviction for robbery; (3) the prosecutor violated his right to due process during closing arguments, and trial counsel was ineffective for failing to object to the prosecutor's remarks; and (4) the trial court violated his right to due process by (a) empaneling jurors who were referred to only by number and (b) failing to give a proper cautionary jury instruction. For the reasons stated below, the Court shall deny the petition.

         I. Background

         The charges against petitioner arose from an incident involving four teenaged victims. Petitioner was tried before a jury in Macomb County Circuit Court where three of the teenage victims testified and the fourth victim's testimony from the preliminary examination was read into the record. The victims testified that at about 8:00 p.m. on March 10, 2011, as they were walking home from a Burger King restaurant, two men approached them from behind. The two men got in front of the victims and told them to empty their pockets. One of the suspects was a tall, young black man who wore dark clothing. The other suspect was shorter and light-skinned; he wore a red bandana or “du-rag” and a red shirt, and he had a knife. The suspects said that they had kids to feed, but the victims told the suspects that they did not have anything on them. The suspects then told the victims to cross the street. The teenagers proceeded to cross the street and go home. The suspects also walked away, but they said that they were “LA Blood.” The police were called and obtained a description of the suspects from the victims.

         Police officer Thomas Rebant of the Eastpointe Police Department heard about the incident when he reported for duty that night. He and other officers were told to be on the lookout for a black male and a short, white male who could be Hispanic or a light-skinned Black and who was wearing a red bandana. Rebant proceeded to investigate a complaint about some tires being slashed on Stephens Street in Eastpointe. At the Stephens Street home, two witnesses informed him that the person who had punctured the car tires was present in the upstairs flat. Petitioner's sister and her boyfriend lived in the downstairs flat. Rebant found petitioner hiding behind the furnace in the basement of the house and arrested him. Petitioner was wearing a red du-rag and a red shirt, and he had a little bit of facial hair.

         Rebant told the jury that he was familiar with the Johnsons because he had arrested petitioner for domestic violence involving his sister about a week before the incident in Warren. At the booking on the domestic violence charge, petitioner informed him that he was a member of the LA Bloods, which is a Los Angeles gang.

         Detective Stephen Mills of the Warren Police Department interviewed petitioner at the Eastpointe Police Department. When he informed petitioner that there was an attempted armed robbery in Warren, petitioner stated that it was not him, that he had just got out of prison for robbery, and that, when he robbed people, they come away with no money because he knew how to do it. Petitioner also mentioned that he was an LA Blood, and before he was asked about any weapons, petitioner mentioned that his co-defendant had the knife.

         Continuing, Detective Mills stated that petitioner initially refused to participate in a line-up, but when Mills showed a photo array to petitioner's attorney, the attorney requested a physical line-up. A line-up was held six or seven weeks after the crime. None of the victims identified petitioner at the line-up, but there was a change in petitioner's appearance, as he had a beard at the line-up.

         Petitioner's co-defendant testified at trial in leg chains and handcuffs. He stated that he was fifteen years old at the time of the crime, that he had pled guilty to four counts of assault with intent to rob while armed, and that he was confined at the Wolverine secure treatment facility. He explained that he and petitioner had approached four people coming out of a Burger King on March 10, 2011, and that petitioner had ordered the people to empty their pockets. Petitioner was carrying a butcher knife during the incident, and he told the victims that he had kids who needed to eat. But he and petitioner got nothing from the victims, and the two of them walked away after petitioner told the victims to walk on the other side of the street. On re-direct examination, the co-defendant stated that he had confessed to the robbery when he was first arrested and that he was not offered anything for his testimony.

         The only defense witness was petitioner's mother, Beverly Grundvig. She testified that she was at the Stephens Street address before the tires were slashed and that petitioner was staying at the neighbor's home at the time, babysitting the neighbor's son.

         On April 13, 2012, after deliberating for twenty-two minutes or less, the jury found petitioner guilty, as charged, of four counts of assault with intent to commit murder. On May 10, 2012, the trial court sentenced petitioner as a habitual offender to four concurrent terms of twenty-five to forty years in prison.

         Petitioner raised his habeas claims on appeal from his convictions. At his request, the Michigan Court of Appeals remanded his case to the trial court for an evidentiary hearing on his claims that trial counsel was ineffective and that the prosecutor had failed to disclose certain evidence about the co-defendant's guilty plea. On remand, petitioner moved for a new trial. The trial court held a hearing on petitioner's motion and then denied the motion for new trial. Following the remand, the Michigan Court of Appeals affirmed petitioner's conviction in an unpublished, per curiam opinion. See People v. Johnson, No. 310799 (Mich. Ct. App. Nov. 14, 2013). On April 28, 2014, the Michigan Supreme Court denied leave to appeal on the grounds that it was not persuaded to review the questions presented to it. See People v. Johnson, 495 Mich. 994; 845 N.W.2d 495 (2014). Petitioner filed the instant habeas petition on February 12, 2015.

         Respondent argues that petitioner procedurally defaulted his second and third claims. A procedural default is “a critical failure to comply with state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). It “is not a jurisdictional matter, ” id., and to obtain habeas relief on procedurally defaulted claims a petitioner “must establish cause and prejudice for the defaults” and “also show that the claims are meritorious.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010) (internal citation omitted).

         Petitioner's claims lack merit for the reasons given below. And because “federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits, ” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003), the Court “cut[s] to the merits here, since the cause-and-prejudice analysis adds nothing but complexity to the case.” Babick, 620 F.3d at 576.

         II. Legal Standards

         A. Generally

         The following standard applies in federal habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). “A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). “[T]he ‘unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's cases but unreasonably applies that principle to the facts' of petitioner's case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable, ' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been ‘objectively unreasonable.'” Wiggins, 539 U.S. at 520-21 (internal citation omitted); see also Williams, 529 U.S. at 409. Section 2254(d) “thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt.' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).

         The United States Supreme Court has held that “a state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The Court emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. Pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. Thus, in order to obtain federal habeas relief, a state prisoner must show that the state court's rejection of his claims “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Section 2254(d) “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.'” Harrington, 562 U.S. at 100. Further, it “does not require citation of [Supreme Court] cases - indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). While the requirements of “clearly established law” are to be determined solely by Supreme Court precedent, the decisions of lower federal courts may be useful in assessing the reasonableness of a state court's resolution of an issue. See Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007).

         Further, a state court's factual determinations are entitled to a presumption of correctness on federal habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

         B. Ineffective-Assistance-of-Counsel Claims

         Three of petitioner's grounds for relief include allegations that his trial counsel was ineffective. To prevail on a claim about trial counsel, a defendant must demonstrate “that counsel's performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's performance is deficient if “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. The defendant must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687.

         The prejudice prong of the Strickland test “requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. The defendant must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “This does not require a showing that counsel's actions ‘more likely than not altered the outcome, '” but “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington, 562 U.S. at 111-12 (quoting Strickland, 466 U.S. at 693). In a habeas case, moreover, review of an ineffective assistance of counsel claim

is “doubly deferential, ” Cullen v. Pinholster, 563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), because counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, ” Burt v. Titlow, 571 U.S. __, __, 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); internal quotation marks omitted). In such circumstances, federal courts are to afford “both the state court and the defense attorney the benefit of the doubt.” Burt, supra, 134 S.Ct. at 13.

Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (per curiam).

         III. Analysis

         A. Brady and Trial Counsel

         1. The Brady Claim

         In his first claim, petitioner alleges that the prosecutor failed to disclose that petitioner's co-defendant agreed to testify against petitioner and pled guilty to the same charges that petitioner faced in exchange for a sentence as a juvenile. The trial court held an evidentiary hearing on this issue and determined that petitioner failed to establish a Brady violation. The court stated that the prosecution did not suppress the evidence and even if the co-defendant's plea was not disclosed to the defense, there was no reasonable possibility that the outcome of the trial would have been different.

         The Michigan Court of Appeals agreed with the trial court that there was no Brady violation. The Court of Appeals stated that, because the co-defendant did not receive any benefit in exchange for his testimony in petitioner's case, the prosecution did not possess favorable impeachment evidence. The Court of Appeals also stated that there was no indication in the record that the prosecutor suppressed any details of the co-defendant's plea agreement or that defense counsel could not have obtained those details with reasonable diligence. Finally, the Court of Appeals stated that, even if the details of the co-defendant's plea agreement had been presented to the jury, there was no reasonable ...


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