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Walls v. Woods

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

September 19, 2017

THOMAS CARGILL WALLS, Petitioner,
v.
JEFFREY WOODS, Respondent,

          OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.

          HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE

         Thomas Cargill Walls, (“Petitioner”), confined at the Chippewa Correctional Facility in Kincheloe, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for assault with intent to commit murder, Mich. Comp. Laws § 750.83; and felony-firearm, Mich. Comp. Laws § 750.227b. Respondent filed an answer to the petition for writ of habeas corpus. As part of the answer, respondent argues that the petition is subject to dismissal because it contains a claim which has not been properly exhausted with the state courts. In lieu of dismissing the petition without prejudice, this Court holds the petition in abeyance and stays the proceedings under the terms outlined in this opinion to permit petitioner to return to the state courts to exhaust his additional claims. If this fails, the petition will be dismissed without prejudice.

         I. Background

         Petitioner was convicted following a jury trial in the Genesee County Circuit Court.

         Petitioner, through appellate counsel, filed a motion for the Michigan Court of Appeals to remand his case to the trial court to conduct an evidentiary hearing on his ineffective assistance of counsel claims pursuant to People v. Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973). In his motion to remand and supporting brief, petitioner alleged three ineffective assistance of trial counsel claims:

Trial counsel was ineffective for (A) failing to strike a juror who was the elder sister of a key prosecution witness, which created structural constitutional error; (B) failing to call eye witnesses who would have verified that Mr. Walls was not the shooter; and (C) failing to elicit testimony establishing that Mr. Wall was in Toledo when the shooting happened in Flint.[1]

         Petitioner also submitted a brief on appeal raising these three ineffective assistance of counsel claims.[2]

         The Michigan Court of Appeals granted petitioner's motion to remand.

         On remand, petitioner's appellate counsel filed a motion for a new trial, in which she raised only two ineffective assistance of counsel claims:

Trial counsel was ineffective for (A) failing to strike a juror who was the elder sister of a key prosecution witness, which created structural constitutional error; and (B) failing to call eye witnesses who would have verified that Mr. Walls was not the shooter.[3]

         An evidentiary hearing was conducted on May 31, 2013, June 17, 2013, and July 31, 2013. Petitioner's appellate counsel presented witnesses only on petitioner's first two ineffective assistance of counsel claims. At the conclusion of the hearing, petitioner's appellate counsel explicitly informed the trial judge that she was not pursuing petitioner's third ineffective assistance of counsel claim involving counsel's failure to present an alibi defense. (Tr. 7/31/13, p. 17). The trial judge denied petitioner's motion for a new trial. (Id., pp. 17-21).

         Following the remand, petitioner's appellate counsel filed a brief after remand, in which she raised only two ineffective assistance of counsel claims:

Trial counsel was ineffective for (A) failing to strike a juror who was the elder sister of a key prosecution witness, which created structural constitutional error; and (B) failing to call eye witnesses who would have verified that Mr. Walls was not the shooter.[4]

         Petitioner's counsel also separately filed a supplemental brief on appeal, in which she alleged that petitioner's Sixth and Fourteenth Amendment rights had been violated by the judge's scoring of petitioner's sentencing guidelines.[5]

         The Michigan Court of Appeals affirmed petitioner's conviction. People v. Walls, No. 307647, 2014 WL 238597 (Mich.Ct.App. Jan. 21, 2014).

         Petitioner filed a pro se application for leave to appeal to the Michigan Supreme Court, in which he raised three ineffective assistance of counsel claims, including the claim involving counsel's failure to call alibi witnesses. Petitioner also challenged the scoring of the sentencing guidelines.[6]

         The Michigan Supreme Court reversed in part the Michigan Court of Appeals opinion and remanded petitioner's case to the state trial court pursuant to People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015), for a determination of whether the court would have imposed the same sentence had the sentencing guidelines not been mandatory. People v. Walls, 498 Mich. 901, 870 N.W.2d 701 (Mich. 2015). The Michigan Supreme Court denied the application for leave to appeal with respect to petitioner's other issues. Id.

         On remand, the trial judge indicated that he would have imposed the same sentence even if the guidelines were not mandatory at the time of petitioner's sentence. People v. ...


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