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Dent v. Bergh

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

September 13, 2017

JAMES DENT, #214488, Petitioner,
v.
DAVID BERGH, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          John Corbett O'Meara United States District Judge.

         I. Introduction

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner James Dent (“Petitioner”) was convicted of possession with intent to deliver between 50 and 450 grams of cocaine, possession of less than 25 grams of heroin, felon in possession of a firearm, and possession of a firearm during the commission of a felony following a jury trial in the Oakland County Circuit Court. He was sentenced to concurrent terms of 12 to 40 years imprisonment, two to eight years imprisonment, and seven months to 10 years imprisonment, and to a consecutive term of two years imprisonment, on those convictions in 2008. In his petition, he raises claims concerning the search and seizure of evidence, the conduct of the prosecutor, and the effectiveness of trial and appellate counsel. For the reasons set forth, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's convictions arise from a raid of his residence and vehicles in Pontiac, Michigan in 2007. Respondent has provided a summary of the relevant trial testimony, which the Court adopts to the extent that it is consistent with the record. Those facts are as follows:

Law enforcement obtained search warrants for several residences, including a residence used by Dent. Officer Daniel Main, during his pre-raid surveillance of the home, observed Dent at the residence three or four times. (10/1/08 Tr. at 10-11, 100.) On a couple of occasions, Officer Main observed Dent leave the residence in a gray Ford Explorer. (10/1/08 Tr. at 11-12.)
Police Officer Charles Janczarek, a member of the Pontiac Police Department at the time of Dent's crimes and an expert recognized by the trial court, testified that he participated in narcotics-related searches. (9/25/08 Tr. at 157-59.) On March 24, 2007, Officer Janczarek participated in the execution of a search warrant at 240 South Anderson in Pontiac. (9/25/08 Tr. at 160.) He observed three individuals outside the residence, including Dent. (9/26/08 Tr. at 20.)
After the house was secured, Officer Janczarek went back outside where he searched Dent. (9/26/08 Tr. at 23.) Dent had $129 and a key ring with several keys. (9/26/08 Tr. at 23-24.) Dent acknowledged that he knew the police were going to come to the house because his brother had been arrested. (9/26/08 Tr. at 24.) Dent admitted that the Ford Explorer parked in the driveway contained a press and the Cadillac contained a grinder. (9/26/08 Tr. at 24.) Dent admitted that he owned the Cadillac. (9/26/08 Tr. at 26-27.) A search of the Law Enforcement Information Network and the Cadillac's registration and proof of insurance confirmed Dent's statements. (9/26/08 Tr. at 26, 28.) The keys on the key ring recovered from his person matched the vehicles. (9/26/08 Tr. at 27.) Documents within the vehicles connected Dent to both the Explorer and the Cadillac and the address of 240 South Anderson. (9/26/08 Tr. at 30-32.)
In the Cadillac, Officer Janczarek found a grocery bag containing fifty-eight grams of cocaine. (9/26/08 Tr. at 33-34.) The vehicle search also revealed an electronic coffee grinder, two flour sifters, and plastic bags with suspected heroin residue. (9/26/08 Tr. at 35-38, 40-42.) In the very back of the Explorer, there was a “three ton press.” (10/1/08 Tr. at 30.) Officer Main, an expert in narcotics investigations and trafficking, testified that the press would be used to package narcotics into bulk form. (10/1/08 Tr. at 8, 50.)
During his search of the Explorer, Officer Main found two “lottery folds” with heroin on them in a cup holder. (10/1/08 Tr. at 14-17.) A lottery fold is a small piece of lottery ticket folded to form a small pouch. (10/1/08 Tr. at 14.) He also found a black case that contained a digital scale and a plastic container. (10/1/08 Tr. at 18.)
According to Officer Main, typically, digital scales are used to weigh narcotics. (10/1/08 Tr. at 19.) The plastic container turned out to be the top to the electric grinder that was found in the Cadillac. (10/1/08 Tr. at 20.) Officer Main found a letter on the floorboard addressed to “James Dent's family” at 240 South Anderson. (10/1/08 Tr. at 23.) According to Officer Main, the letter contained information on how to launder money. (10/1/08 Tr. at 29, 109.)
Dent admitted to the officers that the house contained firearms that had belonged to his father, who had been deceased for more than thirty years. (9/26/08 Tr. at 50, 131-33.) He also admitted that he could not be around guns because he was a convicted felon. (9/26/08 Tr. at 50, 132.)
In the east bedroom, there was a bed and some male clothing consistent with Dent's size. (9/26/08 Tr. at 53-54.) On top of the dresser there was a baggie containing a tannish brown residue consistent in texture and color with heroin. (9/26/08 Tr. at 54-57.) Officer Janczarek found two identification cards bearing Dent's name and several other items with Dent's name and address at 240 South Anderson, including documents related to the Cadillac and Explorer. (9/26/08 Tr. at 58-59, 62-63.) Officer Janczarek did not find any documents related to other people. (9/26/08 Tr. at 102.) There were no firearms found in the east bedroom (9/26/08 Tr. at 67, 85.)
The west bedroom had women's clothing in it. (10/1/08 Tr. at 32.) Inside the closet, there were clothes hanging and in between the clothes was a 12-gauge shotgun with a shortened barrel. (10/1/08 Tr. at 34, 36.) Behind the clothes was a .22-caliber rifle. (10/1/08 Tr. at 35.) On a dresser, there were envelopes containing $9, 665 in U.S. currency. (10/1/08 Tr. at 38.) Officer Main also found six boxes of ammunition on the floor, including .45-caliber, 200 range jacketed hollow points and ammunition for an assault rifle. (10/1/08 Tr. at 41-43.) None of the ammunition matched the firearms found in the bedroom. (10/1/08 Tr. at 45.) Officers found another 12-gauge shotgun in the closet of the third bedroom. (10/1/08 Tr. at 46.)
Dent told the police that he was living at 240 South Anderson because there was black mold in his Detroit home. (9/26/08 Tr. at 104-05.)
Officer Main opined that the evidence presented in this case is consistent with intent to deliver and distribute illegal drugs rather than personal use. (10/1/08 Tr. at 59-60.) Officer Main based his conclusion on factors such as the amount of cocaine, the several boxes of plastic baggies, the digital scale, the aluminum foil and plastic wrap, the electric grinder, the sifters, the amount of currency and the firearms. (10/1/08 Tr. at 60-63.) Officer Main also testified that Dent's observed actions, what appeared to be hand-to-hand drug transactions, were consistent with drug trafficking. (10/1/08 Tr. at 101, 103.)
Evelyn Dent testified on her son's behalf. (10/2/08 Tr. at 33.) Ms. Dent testified that Dent comes and goes from her home at 240 South Anderson. (10/2/08 Tr. at 35.) She also explained that some of her children receive mail at her house. (10/2/08 Tr. at 42.) Ms. Dent testified that Dent lived in Detroit, but that he had been living with her because of a black mold problem in his home. (10/2/08 Tr. at 69, 71.)
Ms. Dent was not present when the search warrant was executed. (10/2/08 Tr. at 43.) Upon returning from shopping, she saw the search occurring but she just kept going. (10/2/08 Tr. at 45.) Ms. Dent had “nothing to hide so [she] just went on.” (10/2/08 Tr. at 45.) The guns in her closet belonged to her husband. (10/2/08 Tr. at 53.) She said the ammunition came from her brother in the 1980s or 1990s. (10/2/08 Tr. at 56-57.) At no point during the investigation or pendency of the case did Ms. Dent tell anyone about the ownership of the firearms. (10/2/08 Tr. at 80-81.) During a phone call with the prosecutor a few days before trial, she could not articulate what she planned to testify to regarding the firearms; she had to call trial counsel to find out. (10/2/08 Tr. at 82.)
According to Ms. Dent, the money that was recovered during the search warrant belongs to her from gifts, payment to care for children, and Social Security and Veterans Benefits from her mother. (10/2/08 Tr. at 61-62.) Ms. Dent had been accumulating the money since 2004. (10/2/08 Tr. at 63.) She intended to give it to her children in the event that she or her mother died. (10/2/08 Tr. at 63.) She never told anyone about the money during the pendency of Dent's case. (10/2/08 Tr. at 81.)

Resp. Answer, pp. 4-9.

         Following his convictions and sentencing, Petitioner pursued an appeal of right with the Michigan Court of Appeals raising the following claims:

I. The Court violated Defendant's right to be free from unreasonable search and seizure under the Fourth Amendment when it declined to suppress evidence seized under a warrant where the supporting affidavit failed to establish probable cause to believe that evidence would be found at the stated location in a case where the good faith exception is inapplicable.
II. Defendant is entitled to a new trial where plain error occurred in the trial court's failure to instruct the jury on the difference between expert witness testimony and fact testimony where a police officer at trial was a fact witness and at the same time gave expert opinions regarding evidence he personally seized in the execution of a search warrant.
III. Defendant was denied due process when he was convicted of possession of a firearm during the commission of a felony where there was legally insufficient evidence of constructive possession of any firearm.
IV. Defendant must be resentenced where an objected-to error in the scoring of Prior Record Variable Two inflated the sentencing range for the offense of possession with intent to deliver cocaine.

         The court denied relief on those claims and affirmed Petitioner's convictions and sentences. People v. Dent, No. 290832, 2010 WL 3656028, *1-9 (Mich. Ct. App. Sept. 21, 2010) (unpublished).

         Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the same claims, which was denied in a standard order. People v. Dent, 489 Mich. 870, 795 N.W.2d 594 (2011).

         Petitioner then filed a motion for relief from judgment with the state trial ...


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