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Robinson v. Perry

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

July 19, 2017

CLETE ROBINSON, Petitioner,
v.
MITCH PERRY, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [1], DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          LAURIE J. MICHELSON U.S. DISTRICT JUDGE.

         Petitioner Clete Robinson was at a Detroit home when police executed a search warrant, finding marijuana and heroin. A Wayne County Circuit Court jury convicted Robinson on two possession charges, and he is serving a sentence of 6 to 20 years' imprisonment. Before the Court is his pro se habeas petition under 28 U.S.C. § 2254, which raises two claims: (1) insufficiency of the evidence, and (2) the trial judge abused his discretion by denying Robinson's request for a continuance on the trial's first day so that he could obtain new counsel. For the reasons that follow, the Court will deny the petition.

         I.

         A Detroit police “raid crew” executed a search warrant at a home on Mapleridge in Detroit on April 12, 2011. (R. 8-6, PID 243.) One of the officers, Neil Gensler, testified that as the crew ran up to the house yelling, “Police” and “Search warrant, ” he saw Petitioner Clete Robinson slam a kitchen stove shut and then slam the front door shut as well. (R. 8-6, PID 245, 253.) After the police forced open the front door, they found Robinson and his co-defendant, Zajuan Nenrod, in the kitchen and several others in the living room. (R. 8-6, PID 254-55.) Officer Gensler opened the stove and found marijuana and what he believed was heroin. (R. 8-6, PID 256.) He also found a digital scale, some ziplock bags, and what appeared to be a “tally sheet” in the kitchen. (R. 8-6, PID 260-62.) Another officer, Maureen Whiten, found a plastic bag with suspected heroin inside the pocket of a coat hanging on the door knob of a bedroom. (R. 8-6, PID 311-12.) Subsequent analysis revealed that it was 68.14 grams of heroin, with an estimated street value of close to $70, 000. (R. 8-6, PID 333-34.) In the same bedroom as the coat with heroin, police also found Robinson's birth certificate, photos of Robinson and Nenrod together, and documents connecting Nenrod to the home, including a utility bill. (R. 8-6, PID 324-30.) Police found other evidence connecting Robinson to the house: the key to the front door in his pocket. (R. 8-6, PID 324.)

         A Wayne County Circuit Court jury convicted Robinson of possession with intent to deliver more than 50 but less than 450 grams of heroin in violation of Michigan Compiled Laws § 333.7401(2)(a)(iii) and possession of marijuana in violation of Michigan Compiled Laws § 333.7403(2)(d). The trial court sentenced him to 6 to 20 years' imprisonment for the heroin offense, concurrent with a 20-day sentence (time served) for the marijuana offense. (R. 8-8, PID 569.)

         Following Robinson's conviction, he moved the Michigan Court of Appeals for a remand to the trial court under Michigan Court Rule 7.211(C)(1)(a) (which allows for certain pre-direct appeal remands) to explore a potential appellate claim that the trial court abused its discretion by not granting a continuance on the trial's first day so that Robinson could obtain substitute counsel or get more time for his existing counsel to contact a potential witness Robinson had asked him to call. (R. 8-8, PID 575.) (As the Court will discuss later, the witness was someone else who was at the home during the raid.) The Michigan Court of Appeals summarily denied the motion for Robinson's “failure to persuade the Court of the necessity of a remand.” (R. 8-8, PID 603.)

         Robinson then appealed his conviction to the Michigan Court of Appeals, raising two claims: (1) the evidence was insufficient to prove that he constructively possessed the heroin found in the coat, and (2) the trial judge abused his discretion by not granting a continuance either to appoint new counsel or to allow Robinson's existing counsel time to investigate and prepare the potential witness. (R. 8-8, PID 607.) After consolidating Robinson's appeal with Nenrod's, the Michigan Court of Appeals affirmed Robinson's conviction in an explained decision. See People v. Nenrod, No. 308340, 2013 WL 6083721, at *1 (Mich. Ct. App. Nov. 19, 2013) (per curiam).

         Robinson raised essentially the same claims in a pro se application for leave to appeal to the Michigan Supreme Court. (R. 8-9, PID 645.) The Michigan Supreme Court denied the application in a summary order because it was “not persuaded that the questions presented should be reviewed.” (Id. at PID 640.) Robinson filed his federal habeas petition in October 2014, raising essentially the same claims again: (1) “Insufficiency of Evidence” and (2) “Abuse of Discretion” (again addressing the continuance and substitution of counsel issue). (R. 1, PID 4, 6.)

         Robinson did not petition the United States Supreme Court for certiorari or file for state-court post-conviction relief. He asked this Court to stay his case so he could exhaust unspecified claims in state court, but the Court denied his request. (R. 12.)

         II.

         As will be discussed, the Michigan Court of Appeals decided both of Robinson's claims “on the merits, ” so this Court's standard of review stems from the Antiterrorism and Effective Death Penalty Act of 1996, which prohibits this Court from granting habeas corpus relief unless the adjudication “(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.” See 28 U.S.C. § 2254(d).

         III.

         A.

         Robinson first claims that the evidence at trial was insufficient to establish that he possessed 50 or more grams of heroin with the intent to distribute it. More specifically, he challenges the sufficiency of the evidence that he constructively ...


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