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Williams v. Romanowski

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

July 21, 2017

SPENCER WILLIAMS, Petitioner,
v.
KENNETH ROMANOWSKI, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          DAVID M. LAWSON United States District Judge.

         Michigan prisoner Spencer Williams has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his convictions for assault with intent to murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony (felony firearm), after a bench trial in the Wayne County, Michigan circuit court. He was sentenced to concurrent prison terms of 18 to 30 years plus a consecutive term of two years. Williams contends that the trial evidence was insufficient to support his convictions, trial and appellate counsel were ineffective, the prosecutor committed misconduct, the trial court failed to consider a lesser included offense, and the bind-over decision was defective. The respondent filed an answer to the petition contending that it should be denied because the claims lack merit and certain claims are barred by procedural default. The Court finds that the petitioner's claims do not warrant federal habeas relief. The Court, therefore, will deny the petition.

         I.

         The petitioner's convictions arise from the non-fatal shooting of Damon Moore outside of Moore's residence in Hamtramck, Michigan in October 2009. Before trial, the petitioner was offered a plea deal in which he could plead guilty to assault with intent to murder and felony firearm in exchange for the dismissal of other charges, coupled with a sentencing agreement of consecutive prison terms of 11 to 20 plus two years. Against the advice of counsel, he rejected that offer and proceeded with a bench trial.

         At trial, 31-year-old victim Damon Moore testified that he and the petitioner were like brothers. The petitioner had dated his cousin and they had known each other for 15 years. He never had a problem with the petitioner. That changed on October 4, 2009.

         That night, Moore went to a party hosted by the petitioner's cousin, which was only a few blocks from his house. He was at the party with the petitioner and another man named Mike and he drank a few beers. At some point, the petitioner asked to borrow his car to go pick up some girls. Moore let him take the car. The petitioner was gone for several hours, perhaps as long as six hours, which upset Moore.

         When the petitioner returned, the girls were in the backseat. Moore got into his car with the petitioner, Mike, and the girls and they drove back to Moore's house sometime after midnight. Moore went into the house and spoke to his girlfriend. He then went back outside to park his car in back of the house. As he drove in the alley, the petitioner with Mike and the two girls, now in the petitioner's car, followed him. The petitioner flashed his lights. Moore stopped his car and the petitioner came over and retrieved something from Moore's car. Moore and the petitioner argued and tussled in the back of Moore's car. Mike then grabbed Moore from behind and Moore let the petitioner go. While Moore continued to tussle with Mike, the petitioner went back to his car. When Moore next saw him, he was holding a gun, which Moore described as a black and woodgrain “AK.”

         The petitioner was standing about six feet away when he shot Moore in the right thigh. Moore fell down. The petitioner walked back and forth and moved closer to Moore until he was about five feet away. According to Moore, the petitioner looked spaced out and was saying things like, “I'm gonna start killing mother fucker, mother fucker gonna stop disrespecting me.” The petitioner then shot Moore again in the calf of the same leg while continuing to mutter to himself. He then shot Moore a third time above the knee in the same leg.

         Moore was surprised by the shooting and thought that the petitioner was going to kill him. Moore also testified that the petitioner pointed the gun at his chest and tried to fire again, but it did not fire. While the petitioner was messing with the gun, someone yelled out and threatened to call the police. Moore yelled at them to take him to the hospital, but the petitioner, Mike, and the girls left the scene, driving away in both cars. Moore was woozy and next remembered waking up in the hospital. Moore underwent several surgeries and lost his right leg due to his injuries. Moore spoke with the police, his girlfriend, and his mother at the hospital and told them that the petitioner was the person who shot him.

         Moore's girlfriend, 27-year-old Tenisha Lewis, testified that she lived with Moore in the house where the shooting occurred in October 4, 2009. She recalled that Moore went to a party hosted by one of the petitioner's relatives that day and returned home late during the early morning hours. The petitioner's car was at the house while Moore was at the party. She spoke with Moore on the phone around 11:00 a.m. and then spoke to him in person when he came home around 1:00 a.m., although she was not sure of the exact time. When Moore went back outside, she got out of bed and looked out of the window. She saw Moore get into his car and the petitioner get into his own car. Moore pulled around to the back and the petitioner followed him. She went back to bed.

         A few minutes later, she heard three gunshots. She called Moore's brother and told him that she heard gunshots. The police and an ambulance arrived, as did Moore's brother. She did not see Moore's car outside after the shooting. When she visited Moore in the hospital, he told her who shot him and she reported it to the police. She did not personally witness the shooting.

         Hamtramck Police Officer Robert George testified that he was called to the scene of the shooting where he found Moore lying in the alley with gunshot wounds to his leg. Moore told him his name and then fell into unconsciousness. Moore had lost a large amount of blood and his leg looked mangled. Officer George assisted EMS in transporting Moore to the hospital. When George returned to the scene of the shooting, he recovered a shell casing that had been hidden in the blood and two bullets from holes in the asphalt where Moore had been lying on the ground.

         The parties stipulated to the admission of Moore's medical records and stipulated that the petitioner had prior felony convictions and was not eligible to possess a firearm at the time of the shooting.

         Defense counsel moved for a directed verdict; the motion was denied. The petitioner presented an alibi defense. Defense counsel indicated that there were three potential alibi witnesses: the petitioner's sister, mother, and girlfriend. The petitioner's sister was not present at trial and his mother and girlfriend refused to testify. The petitioner, however, testified on his own behalf, stating that he was 27 years old and admitting that he had prior convictions for theft and dishonesty and had used aliases in the past. The petitioner acknowledged that he was Moore's friend, that he had dated Moore's cousin, and that he had known him for 15 years. He also admitted that he did not have any problems with Moore or his girlfriend. The petitioner denied being in the Detroit area when the shooting occurred and claimed that he was in Saginaw babysitting his sister's two children at that time. He testified that he went to Saginaw on September 23, 2009 where he remained until his arrest on November 13, 2009. The petitioner theorized that Moore was pinning the shooting on him because the petitioner knew who committed the crime but refused to tell Moore. The petitioner also testified that Moore was a gang member who had been on America's Most Wanted and that Moore was blaming him for the shooting because he knew about murders that Moore had committed.

         The trial court found the petitioner guilty of assault with intent to commit murder, felon in possession, and felony firearm, explaining:

In reviewing the evidence presented in this matter, I've considered most significantly the testimony of Damon Moore and that testimony that I found to be important and to be credible was Mr. Moore's testimony that the Defendant borrowed his vehicle, that that was at a party on October 4th, 2009, that was a family member of the Defendant. Mr. Moore described it as his cousin's. And that was a 2002 Cadillac that was borrowed and the purpose of borrowing the car was that he was going to - Mr. Williams was going to find some women to bring back to the party.
Mr. Moore testified that he drank some beers at the party and that he initially said no to borrowing the car but eventually allowed Mr. Williams to borrow the car. And at one point, after several hours, he called Mr. Williams and Mr. Williams indicated he'd come back and he didn't but he did eventually come back with two girls in the back seat.
That eventually they left the party, went back to Mr. Moore's house on Lumpkin and that was also the home of Tenisha Lewis. And that Mr. Moore indicated that he went inside and spoke to Ms. Lewis and when he came back out, he got in his vehicle and was going to pull it around to the back of the alley where he was going to park it, but that the lights were flashed on the car that Mr. Williams was driving. Then he stopped and got out of the vehicle and that's when the fight ensued. He called it a tussle between himself and Mr. Williams. And that that tussle lasted for a short while and that when that broke up, I think my recollection of the testimony was it broke up in part because this individual who was identified as Mike, and say for the record that Mr. Moore testified that he didn't know Mike's last name. He said he thought it might be Mike Johnson, but wasn't sure what his name - but Mike grabbed him around the neck and they began to tussle and it was at that point that he noticed that Mr. Williams had got a gun, which he identified as an AK-47, was pointing it at him and he said that he was pointing it at the area between his stomach and his leg and he was about six feet away pointing the gun at him.
And at that point, he says he was shot by Mr. Williams in the right thigh, at which point, he fell to the ground, as he said, on his butt and his legs separated. And he indicated that at that point, the Defendant was walking back and forth about five feet away. And as he indicated in his testimony, looking spaced out and saying things like motherfucker gonna start (as spoken) disrespecting me. And at which point, he shot him again, this time in the lower leg, in the calf area. And again, he, Mr. Moore, indicated that the Defendant appeared to be talking to himself and then shot him in the leg a little above the knee and Mr. Moore indicated he thought he was going to die. And at that point, he says he heard the Defendant say, “It's time for motherfuckers to die.” And at that point, the - he said the Defendant, Mr. Williams, was pointing the gun at his chest. He tried to shoot the gun and he says he was about five feet away and the gun wouldn't fire. He heard some - and he said specifically he saw him pulling on the trigger of the gun but it wouldn't fire.
At that point he heard someone hollering, someone in the neighborhood. And Mr. Moore says I kept telling him to take me to the hospital. At that point, he says the Defendant and Mike and the two girls who were in the car drove away. And he was left there bleeding profusely from his right leg. I found his testimony to be credible, with respect to what occurred.
I also found the testimony of Tenisha Lewis to be credible. And in specific, her testimony that Damon Moore did in fact drive a black Cadillac Deville and more specifically what I found to be credible was that she saw Spencer Williams late that night or early morning when Damon Moore came back. She talked with him and then she looked out the window and she saw both Damon Moore and Spencer Williams out in front of the house and that they then - the last she saw of them the cars were driving around the corner and the next thing she knows, she heard the three shots. She went out and looked in the back alley and didn't see anything and went back in and called Damon's brother and then shortly after that she learned from the police that someone had been shot and she proceeded to Detroit Receiving Hospital where she found out in fact that it was Damon Moore that had been shot. And she did indicate that there were three shots that she heard, which was consistent with the testimony of Mr. Moore.
I'll also point out that the testimony from Police Officer Robert George I found to be credible. That in particular what I thought was interesting was that he found two bullets in the asphalt, which would indicate to me, the consistency in terms of the testimony from Mr. Moore that he was shot twice in the leg when he was laying down after he had been shot the first time and fell down. So I think it adds to the credibility and consistency of the testimony from Mr. Moore.
Now I've also considered the testimony of the one defense witness, that being the Defendant himself, Mr. Williams. I find Mr. Williams' testimony to be less than credible. I've taken into consideration the fact that as indicated in his cross- examination, he has used other names such as John Jackson and Robert Jackson. He has two prior convictions that relate to theft or dishonesty: one stealing from a mall, another regarding a sticker, an illegal sticker, that was used for his vehicle. And this indicates to me a pattern of less than honesty in terms of his characteristics.
But perhaps what is the most compelling thing about the testimony is I tried to get a better understanding of, in terms of - Mr. Williams' testimony was that he was being falsely accused by Mr. Moore because he was on America's Most Wanted and he was a gang member himself. But I just - I saw no connection between that and why he'd single out Mr. Williams. He was asked specifically by the prosecution, was there any beef between you. No, there was no beef. There was no beef between him and Ms. Lewis [sic]. So the whole concept of just blindly picking Mr. Williams as the person he's going to accuse for someone else committing this terrible act to him that nearly killed him and caused him to lose his leg, just didn't add up and didn't make sense to me. And as I indicated, I found it less than credible.
I find the testimony, with respect to not only the fact that he was shot terribly three times in the leg and left bleeding at that point, but also the testimony regarding the fact that he attempted to shoot him in the chest and made the statement regarding that it was time for him to die, to be credible. And it's on that basis that I find Mr. Williams guilty of Count 1, assault with intent to murder. Because Counts 2 and 3 were pled in the alternative, I am not ruling on those since I found him guilty of the more serious offense of assault with intent to murder.
I also find him guilty on Count 4, weapons, firearm possession by a felon. There was a stipulation as to a prior felony conviction.
. . .
I find him guilty of Count 5, felony firearm because I find that he did have possession of an assault rifle at the time of the shooting of Mr. Moore and therefore guilty of felony firearm.

Trial Tr. at 103-09 (Mar. 24, 2010) (some punctuation and grammar corrected for clarity). The trial court subsequently sentenced the petitioner to the concurrent prison terms noted earlier.

         The petitioner filed a direct appeal in the Michigan Court of Appeals raising claims concerning the sufficiency of the evidence and newly-discovered evidence. The court denied relief on those claims and affirmed his convictions. People v. Williams, No. 297732, 2011 WL 2859296 (Mich. Ct. App. July 19, 2011). The Michigan Supreme Court denied the petitioner's application for leave to appeal. People v. Williams, 490 Mich. 1003, 807 N.W.2d 317 (2012).

         The petitioner filed a motion for relief from judgment in the trial court raising claims concerning the sufficiency of the evidence, newly-discovered evidence, the effectiveness of trial and appellate counsel, the conduct of the prosecutor, the failure to consider a lesser included offense, the bind-over decision, and the validity of his sentence. The trial court denied relief, finding that the claims that had previously been raised and denied on direct appeal were barred by Michigan Court Rule 6.508(D)(2), the remaining claims were barred by Michigan Court Rule 6.508(D)(3) because the petitioner failed to establish good cause for failing to raise those claims on direct appeal, and those remaining claims also lacked merit. People v. Williams, No. 09-029211-01 (Wayne Co. Cir. Ct. Jan. 22, 2013). The Michigan Court of Appeals denied the petitioner's delayed application for leave to appeal because he failed to establish entitlement to relief under Michigan Court Rule 6.508(D). People v. Williams, No. 314833 (Mich. Ct. App. Oct. 8, 2013). The Michigan Supreme Court denied his ensuing application for leave to appeal. People v. Williams, 495 Mich. 978, 843 N.W.2d 763 (2014).

         The petitioner thereafter filed his federal habeas corpus petition, in which he raises the following claims:

I. He was deprived of his Fifth and Fourteenth Amendment rights based upon insufficient evidence to support the verdict.
II. He is entitled to an evidentiary hearing or new trial based upon newly-discovered evidence.
III. He was deprived of his Sixth Amendment right based upon ineffective assistance of trial counsel.
IV. He was deprived of his Sixth Amendment right based upon ineffective assistance ...

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