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Mitchell v. MacLaren

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

October 25, 2017

VAUGHN MITCHELL, Petitioner,
v.
DUNCAN MACLAREN, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING IN PART THE CERTIFICATE OF APPEALABILITY

          LINDA V. PARKER, U.S. DISTRICT JUDGE.

         Vaughn Mitchell (“Petitioner”) confined at the Kinross Correctional Facility in Kincheloe, Michigan, through counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mitchell challenges his convictions for first-degree felony murder, first-degree premeditated murder, carjacking, and possession of a firearm during the commission of a felony. For the reasons stated below, the petition for a writ of habeas corpus is denied.

         I. Background

         Mitchell's convictions arise from a shooting in Detroit that resulted in the death of Michael Jorden. The Michigan Court of Appeals described the circumstances leading to Mitchell's convictions as follows:

Defendant's convictions arose out of the June 21, 2008, shooting death of Michael Jorden during an apparent dispute over a gun and associated carjacking. Defendant was tried jointly with his father, codefendant Vaughn Brown, before separate juries. Brown was not a part of defendant's life growing up, and they had a strained relationship. They had reconnected a few years before the shooting.
At the joint trial, Ellis Odum testified that he lived across the street from defendant. On the evening of the shooting, Odum saw several young people socializing on the street, including the victim and defendant. Brown was sitting in his van, which was parked on the street. Brown's brother testified that the rear window of the van was darkly tinted and one could not see through it at night. Odum testified that later that night, when he went inside his house, he heard approximately six gunshots. When it became quiet, Odum went outside and saw someone “moving from the field [vacant lot] and coming down toward the street light.” Odum eventually recognized the person as defendant. In defendant's hand was a .32 or .38 short-barrel revolver, which he then placed in his pocket. When Odum asked him what was going on, defendant said, “sh-h-h, it's me.” Defendant then crossed the street and entered the passenger side of Brown's van. Odum continued:
Upon getting into the passenger side of his father's vehicle, I'm watching, then I conversate, he pulls up to in front of my house, no headlights. Upon pulling up in front of my house, I can hear-we both heard-you can hear noise coming from the left. At that point in time, they cut out their headlights. I look, you can see the [victim's] body, like, near the curb, you see him coming toward the curb. He pulled right to him, to the side of him, and he reached out of the driver's side and shot him about 5 times.
Odum explained that Brown was in the driver's seat and defendant was in the passenger seat. The driver's side of the van pulled up alongside the victim's body, which was on Odum's side of the street. Odum believed that Brown reached out of the van and shot the victim. He could not determine the type of gun in Brown's hand. After “firing shots into him, they went to go speed off, and they got to the corner, and he stopped, and [defendant] got out, he ran back to his body.” Defendant had a gun. He looked around, took the contents of the victim's pockets, “ran across the street and jumped and got into the [victim's] vehicle and drove off in the vehicle.” Odum testified that he was aware the victim owned a revolver like the one he saw in defendant's hand. Approximately a week before the shooting, defendant had the victim's gun and showed it to Odum. The victim wanted his gun back or $150. Odum believed that defendant had agreed to pay and that Brown was bringing defendant the money.
Detective Sergeant William Tyrrell, a firearms examiner with the State Police Crime Laboratory, testified at trial as a ballistics expert. Two bullets were recovered from the victim's body. Detective Sergeant Tyrrell concluded, based on the rifling of the bullets, that the bullets were fired by two different weapons. The diameter of the bullets indicated that the weapons were a nine millimeter, a 357, or a 38 special. There were no weapons to examine.
Detective Dale Collins interviewed defendant after his arrest. The videotaped interview was admitted at the joint trial and played for defendant's jury.1 During the interview, defendant stated that in March or April 2008, he owned a Smith & Wesson long-nosed 38 special handgun, and that he and the victim had “done some bullshit together.” Defendant asked the victim to keep his gun because he did not want it in his vehicle. When defendant asked for the gun to be returned, the victim offered an excuse for not having it. Sometime later, the victim came across a different .38-caliber gun and gave it to his brother Mark, who had apparently partnered with defendant to sell marijuana. Mark then gave the gun to defendant. A few days later, the victim asked for the gun, but defendant refused. Later, when the victim again asked for the gun, defendant asked the victim for his own gun in return.
1The videotape was not played for Brown's jury.
According to defendant, the victim had promised Brown2 the gun in defendant's possession as payment for a debt. On the day of the shooting, when Brown asked defendant for the gun, defendant said the victim no longer had a gun to give. Brown called the victim. That night, defendant was outside with a group of people, and had the gun on him, when the victim drove up demanding the gun. Defendant told the victim to “chalk that up baby-tit for a tat-where mine at.” The victim disagreed and demanded $150 for his gun. Defendant walked away and explained the situation to Brown. He and Brown went to the store together, and Brown suggested that defendant fight the victim. Defendant said he “don't really know how to fight for fun” and “[i]f I get into a fist fight one of us have to go.” Brown then suggested that defendant hit the victim in the knees with a club or a bat to let him know that he was serious. Defendant planned to beat the victim with an old tie rod.
2During the interview, defendant declined to identify Brown, referring to him as John Doe.
When defendant and Brown returned from the store, they parked further down the street. The victim approached Brown's van and again demanded money or his gun. Defendant stepped out of the van, leaving the gun inside. When the victim reached for the gun, defendant hit him with the tie rod and hit him again as he was trying to run away. The victim ran toward a vacant lot, “leaking out of his head, ” and his pants fell down as he was running. Defendant ran after him because he believed that the victim was going to retrieve his AK- 47, and defendant began “beating this muthafucka brains in with this gun.” At that point, the victim was on the ground, near the curb.
After the beating, defendant looked through the victim's pockets and took “maybe ten dollars.” He then walked back to Brown's van, still holding the gun. He entered the van, and they “pulled up the street.” Defendant “heard some shots fired” and then jumped out of the van. He denied shooting the victim and taking the victim's keys or car. He did not know who took the car.
At the joint trial, defendant testified on his own behalf, admitting the truth of most of his statement to the police. He admitted beating the victim, but denied shooting him or taking his car. Defendant testified that Brown shot the victim. According to defendant, after he beat the victim and entered Brown's van, Brown drove to where the victim was lying and shot him several times. Defendant jumped out of the van and ran away.
Brown testified [before both his and Mitchell's juries] that he did not know the victim. On the night of the shooting, defendant called him. He believed that defendant was going to ask him for money, so he drove his van to the street where defendant lived. Defendant approached the van and asked whether you are “even” with another person if the other person loses something of yours and you tell them that you lost something of theirs. Later, defendant spoke to the victim next to the van and Brown overheard the victim say that he wanted money for his “piece.” Defendant then grabbed an item from the floor of the van and started chasing the victim, hitting him with the item. Defendant then shot the victim five times. Brown drove his van slowly up the street. He saw the victim on the ground and defendant running toward the van, flagging him down. Defendant got in the van. But when Brown began driving, defendant asked him to pull over to the other side of the street and stop. Defendant then leaned across Brown, reached out the driver's window, and shot the victim five more times, holding the gun with both hands. Brown drove around the corner, stopped, and then defendant jumped out and disappeared.
Brown's jury was unable to reach a verdict, and he was later retried and acquitted. Defendant was convicted and sentenced as indicated.

People v. Mitchell, No. 293284, 2011 WL 5064301, at *1-3 (Mich. Ct. App. Oct. 25, 2011).

         After Mitchell's arrest, he participated in a videotaped interview concerning the shooting with Detroit Police Detective Dale Collins. Defense counsel filed a pre-trial motion to suppress Mitchell's custodial statements. The trial court denied the motion. (ECF No. 10-4 at Pg ID 408-413.) Following a jury trial in Wayne County Circuit Court, Petitioner was convicted and sentenced as follows: two concurrent terms of life imprisonment for each murder conviction, 15 to 25 years' imprisonment for the carjacking conviction, and two years' imprisonment for the felony-firearm conviction.

         Mitchell filed an appeal of right in the Michigan Court of Appeals, raising the following claims: (i) Mitchell's custodial statement should have been suppressed because Mitchell's right to have an attorney present before and during questioning was not made clear to him; (ii) mid-stream Miranda warnings violated Mitchell's rights to remain silent and to an attorney; (iii) Mitchell's jury should not have been allowed to hear testimony of co-defendant; (iv) bullets should have been excluded from evidence because a chain of custody was not properly established; (v) prosecutor engaged in several instances of misconduct; (vi) newly-discovered evidence showed that a police sergeant committed perjury regarding the chain of custody of the bullets; (vii) jury instructions failed to convey necessary intent element; (viii) defense counsel was ineffective and a Ginther hearing should be ordered; (ix) cumulative effect of alleged errors denied Mitchell a fair trial; and (x) convictions for first-degree premeditated murder and first-degree felony murder of one victim violated double jeopardy. The Michigan Court of Appeals denied relief on Petitioner's claim that the prosecutor failed to establish a proper chain of custody for the bullets. The court remanded the case for an evidentiary hearing “regarding defendant's interaction with the police and the totality of circumstances surrounding the police's interrogation of defendant” and the claim that a police sergeant gave perjured testimony regarding the chain of custody of the bullets. Mitchell, 2011 WL 5064301, at *13. The Michigan Court of Appeals declined to address the additional issues raised by Mitchell until after proceedings on remand were completed. Id.

         The State appealed the decision to the Michigan Supreme Court. The Michigan Supreme Court reversed the court of appeals' grant of a remand and found no Miranda violation. People v. Mitchell, 822 N.W.2d 224, 224 (Mich. 2012). The court also remanded the case to the court of appeals to address the claims it previously declined to review. Id. at 225. On remand, the Michigan Court of Appeals denied Petitioner's remaining claims, with the exception of his double jeopardy claim. People v. Mitchell, No. 293284, 2013 WL 951192, at *7 (Mich. Ct. App. Feb. 26, 2013). The Michigan Court of Appeals held that Mitchell's convictions and sentences for first-degree premeditated murder and first-degree felony murder arising out of the death of a single victim violated the Fifth Amendment Double Jeopardy Clause. Id. The court of appeals remanded the case for modification of the Judgment of Sentence to reflect a single conviction and sentence for first-degree murder supported by two different theories. Id.

         Mitchell, through counsel, then filed this habeas corpus petition. He raises these claims:

I. The Michigan courts unreasonably applied clearly established federal law and unreasonably determined the facts in upholding Mr. Mitchell's convictions where the prosecution was permitted to offer evidence that Mr. Mitchell had made incriminating statements after he had invoked his right to counsel, where Mr. Mitchell asked the interrogating officer if an attorney could be appointed to be with him during questioning, and the officer affirmatively told him that an attorney would only be appointed for him “down the line, ” when the case went to court, thereby failing to reasonably convey to Mr. Mitchell his right to have an attorney present both before and during questioning; thus necessitating the issuance of the writ.
II. The Michigan courts unreasonably applied clearly established federal law and unreasonably determined the facts in upholding Mr. Mitchell's convictions where the prosecution was permitted to offer evidence that Mr. Mitchell had made incriminating statements which were intentionally elicited from him following an earlier un-Mirandized interrogation during which Mr. Mitchell made incriminating statements, and which took place prior to taking Mr. Mitchell to a room where a video camera recorded the communication of purported Miranda warnings and a lengthy interrogation, and where this “midstream” recitation of the Miranda warnings violated Mr. Mitchell's rights to remain silent and his right to counsel; thus necessitating the issuance of the writ.
III. The Michigan courts unreasonably applied clearly established federal law and unreasonably determined the facts in upholding Mr. Mitchell's convictions where the trial court erroneously instructed the jury that it could convict Mr. Mitchell of first-degree premeditated murder if it found that his co-defendant intended to kill the decedent and also committed the acts that resulted in death, which failure deprived the defendant of his right to a properly instructed jury and his right to a fair trial; thus necessitating the issuance of the writ.
IV. The Michigan courts unreasonably applied clearly established federal law and unreasonably determined the facts in upholding Mr. Mitchell's convictions where the trial prosecutor deprived Mr. Mitchell of his federal constitution[al] rights to due process and a fair trial under U.S. Const. Ams. V, XIV, with severe, outcome-determinative misconduct.
V. This Court should preside over an evidentiary hearing where the Michigan courts unreasonably applied clearly established federal law and unreasonably determined the facts in upholding Mr. Mitchell's convictions where his trial counsel failed to request an evidentiary hearing regarding his un-Mirandized interrogation; failed to object to prosecutorial misconduct; and failed to object to a serious instructional error, which failures constituted a deficient performance which deprived Mr. Mitchell of a fair trial.
VI. The Michigan courts unreasonably applied clearly established Federal law and unreasonably determined the facts in upholding Mr. Mitchell's convictions where, the state courts failed to fi[n]d that, even if no single assignment of error is sufficient for reversal, the totality of trial errors denied Mr. Mitchell a fair trial.
VII. Assuming arguendo that the standard of review set forth in 28 USC § 2254([d])(1) precludes relief in this action, the Court should not apply that standard because it is unconstitutional.

         II. Standard

         Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, imposes the following standard of review for 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.

         A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000) (O'Connor, J., concurring). An “unreasonable application” asks the question of whether the application of clearly established federal law is objectively reasonable. Id. at 409. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411.

         The AEDPA “imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotations omitted). 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) (quotation omitted). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102.

         Pursuant to section 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. Although § 2254(d), as amended by the AEDPA, does not completely bar federal courts from re-litigating claims that have previously been rejected in the state courts, a federal court may grant habeas relief only “in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” the Supreme Court's precedents. Id. A “readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002).

         A state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness only with clear and convincing evidence. Id. Moreover, for claims that were adjudicated on the merits in state court, habeas review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. Discussion

         A. Evidentiary Hearing

         Mitchell seeks an evidentiary hearing on his claims that his custodial statement should have been suppressed and that his trial attorney was ineffective. The Court finds that Mitchell is not entitled to an evidentiary hearing because the state court decided these claims on the merits.

         In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court held that a federal court's review of a state court decision “[u]nder § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits” because the federal habeas scheme was designed to leave “primary responsibility with the state courts.” Id. at 181-82. Consequently, “[i]t would be contrary to that purpose to allow a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo.” Id. at 182. Put simply, “review under § 2254(d)(1) focuses on what a state court knew and did.” Id. Where, as here, a state court has issued a decision on the merits, “district courts are precluded from conducting evidentiary hearings to supplement existing state court records.” Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013).

         B. Claims I & II: Admission of Petitioner's Custodial Statement

         Following his arrest, Mitchell gave a statement to police confessing to being at the scene of the murder, beating the victim, and taking some money and drugs from the victim's pocket, but denying shooting the victim or taking his vehicle. Defense counsel filed a pretrial motion to suppress the statement, which was denied. This statement was videotaped and played for Mitchell's jury. A transcript of the interview was also admitted into evidence. Mitchell's first two claims for relief center on the admission of this statement. He argues that the statement should have been suppressed because it was tainted by misleading advice from the interrogating officer concerning Mitchell's right to the appointment of counsel. He also argues that the statement should have been suppressed because of a previous interrogation that occurred before police advised Mitchell of his constitutional rights. Mitchell makes reference in his first point heading to a claim that his incriminating statements came after he invoked his right to counsel. He does not reference or support this claim anywhere else in the petition or brief in support. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (alteration in original) (quoting Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm'n, 59 F.3d 284, 293-94 (1st Cir. 1995)). This claim is waived.

         1. State Court Proceedings

         On September 10, 2008, Detective Dale Collins interviewed Mitchell about the shooting death of Michael Jorden. Mitchell gave a videotaped statement admitting to beating Jorden, but denying shooting him or taking his vehicle. This was not the first conversation between Mitchell and Collins. Respondent argues that it was the second. Mitchell maintains that he was interrogated three times and only advised of his Miranda rights before the third, videotaped interrogation.

         Detective Collins testified that the un-taped conversation lasted approximately five minutes and that he informed Mitchell during that conversation that he knew Mitchell had been involved in a homicide and that there was an eyewitness to the shooting. (ECF No. 10-10 at Pg ID 937.) During this pre-Miranda conversation, Detective Collins asked Mitchell if he had any involvement in the homicide. (Id.) Detective Collins testified that, “when [Mitchell] started ...


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