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Legion v. McKee

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

November 13, 2017

ANTHONY LEGION, Petitioner,
v.
KENNETH T. MCKEE, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [1] AND GRANTING IN PART AND DENYING IN PART CERTIFICATE OF APPEALABILITY

          STEPHEN J. MURPHY, III, United States District Judge

         Anthony Legion filed a petition for a writ of habeas corpus, ECF 1, challenging his convictions for first-degree murder and possession of a firearm during a felony. Legion raises four claims: (i) the admission of a non-testifying co-defendant's statement violated due process; (ii) counsel was ineffective in failing to call witness Devonte Parks or an expert witness on the reliability of eyewitness testimony; and (iii) the prosecutor knowingly presented false testimony, and (iv) Legion's default of the claim should be excused. The Court finds that Petitioner's claim that the prosecutor knowingly presented false testimony is untimely, and the remaining two claims are meritless. Thus the Court will deny the petition and grant a certificate of appealability for Legion's due process claim.

         BACKGROUND

         Legion's convictions arise from the shooting death of Jamond McIntyre during the early morning hours of January 24, 2001 in Detroit.

         Kenneth Lockhart testified that, on the night of the shooting, he was at home in a house he shared with McIntyre. Lockhart and his girlfriend, Renay Tate, spent the evening there. Shortly before midnight, McIntrye called to tell Lockhart he was on his way home and to ask Lockhart to look out for him. A short time later, McIntyre safely entered the home. Lockhart and Tate went to bed. During the early morning hours, Lockhart was awakened by the sound of gunfire. It sounded as if it were coming from the home's front porch. Lockhart called 911 and pushed Tate into the closet. He heard over 20 gunshots. As the shots sounded like they were becoming more distant, Lockhart peeked out from behind his bedroom door. He did not see anyone in the house so he retrieved a gun and returned to his own bedroom. At that point, he realized someone was in the house. He again peaked out from behind the bedroom door. He saw two men; one was going through the kitchen drawers while holding a gun in one hand and the other man ran past the bedroom door and stood to one side of the door. A third man, who Lockhart identified as Marvin Cotton, then walked into the home. Lockhart asked Cotton where McIntyre was. Cotton pointed to one of the other two men and directed the man to kill Lockhart. Lockhart began shooting and dove back into the bedroom.

         Lockhart testified that he was certain that one of the men in the home was Cotton. Lockhart had met Cotton a day or two before when Cotton, accompanied by Legion and one other man, came to the home looking for McIntyre. Lockhart initially testified on direct examination that he was 90 percent sure that one of the other two men in the home just after the shooting was Legion. Upon further questioning, he testified that he was "sure" and had "[n]o doubt" that one of the three men present when McIntyre was shot was Legion. ECF 58-10, PgID 1085-86.

         Ellis Frazier testified that he was housed in a holding cell adjacent to Cotton in the Wayne County Jail on June 28, 2011. Frazier and Cotton spoke to each other through a gap in the wall between cells. Frazier testified that he had a reputation as someone who understood the legal system and would often be asked for advice. Cotton asked Frazier about whether to waive a jury trial. Cotton proceeded to tell Frazier details of the crime for which he was awaiting trial. Cotton admitted that police knew he had been at the scene of the crime because his mother's car was identified as being parked outside McIntyre's home. Cotton admitted that he and two other men went to "Jay's" house with the intent to rob him and that he and the other two men had been at the house the previous day shooting pool. Cotton stated that when Jay tried to flee, one of the three men shot him. Cotton also stated that a man named Ken Lockhart was in the home.

         Frazier testified that a man named "Anthony" was present in the holding cell with him while he was talking to Cotton. He also testified that the man in the holding cell was not Anthony Legion. He identified a photograph of Devonte Parks as the person who was in the holding cell with him. Frazier's testimony was confusing and fluctuated between incriminating a man named Anthony and claiming that Cotton proclaimed Anthony was innocent. On the one hand, Frazier testified that, according to Cotton, Anthony and Cotton went to the basement of Jay's home to get money out of a safe. On the other hand, Frazier testified that he came forward because he heard that a third man, named "Anthony, " had been falsely accused in connection with the murder.

         Neither Legion nor his co-defendant Cotton testified at trial.

         PROCEDURAL HISTORY

         Legion and co-defendant Cotton were tried jointly before a jury in Wayne County Circuit Court. A third man, Parks, was also charged in connection with the murder. Parks's trial was severed from Legion and Cotton's joint trial and the charges against him were ultimately dismissed. See People v. Cotton, No. 238216, 2003 WL 22339219, at *4, n.3 (Mich. Ct. App. Oct. 14, 2013). Petitioner was convicted of first-degree murder and possession of a firearm during the commission of a felony. On November 14, 2001, he was sentenced to life in prison for the murder conviction, to be served consecutively to two-year imprisonment for the felony-firearm conviction.

         Following his sentence, Legion filed a motion for a new trial based on insufficiency of evidence, or in the alternative, a new trial based on ineffective assistance of counsel. Legion also requested a hearing for the purpose of creating a record of the testimony of two witnesses: Parks and an expert in eyewitness testimony. The trial court denied the motion. Petitioner then filed a motion for reconsideration and a request for a Ginther hearing regarding the denial of his motion for a new trial. The trial court denied the motion. ECF 58-16.

         Legion filed an appeal of right in the Michigan Court of Appeals raising these claims. The Michigan Court of Appeals affirmed Legion's convictions. Cotton, 2003 WL 22339219, at *5. Legion presented the same claims in an application for leave to appeal with the Michigan Supreme Court, which that court denied. People v. Legion, 470 Mich. 873 (2004).

         On June 6, 2005, Legion filed a petition for a writ of habeas corpus. ECF 1. The petition was assigned to the Honorable Paul V. Gadola. On July 10, 2007, Judge Gadola granted Legion a conditional writ of habeas corpus, finding that Legion's right of confrontation was violated by the admission of a non-testifying co-defendant's statement to a jailhouse informant. Legion v. McKee, No. 05-CV-40181, 2007 WL 2004918 (E.D. Mich. July 10, 2007) (Gadola, J.). Subsequently, on December 16, 2008, the Sixth Circuit reversed Judge Gadola's conditional grant of the writ and remanded the matter for further proceedings. On March 9, 2009, the case was reassigned to the undersigned district judge. ECF 41. Legion filed a supplemental brief on March 3, 2010, raising additional claims. ECF 42.

         The Court held Legion's habeas petition in abeyance while he returned to the state courts to exhaust his due process claim. ECF 46. Legion filed a motion for relief from judgment in the trial court raising four claims. The state trial court denied the motion. ECF 58-23. Both the Michigan Court of Appeals and Michigan Supreme Court denied Legion's leave to appeal. ECF 58-25, 58-26.

         Legion then returned to the Court and filed an amended petition as well as a pro se supplemental brief. ECF 55. Legion presents the following issues: (1) the admission of his co-defendant's statement to a jailhouse informant rendered the trial fundamentally unfair depriving Legion of his constitutional due process rights to a fair trial; (2) defense counsel was ineffective by failing to call Devonte Parks to impeach other witnesses' testimony; (3) the Court should consider Legion's false testimony claim because his failure to present on direct appeal is excusable and the prosecution failed to correct the false testimony; and (4) Legion's due process rights were violated by the prosecutor's failure to correct the jailhouse informant's false testimony that the prosecutor knew to be false. Respondent filed an answer to the petition, arguing that Legion's first, third, and fourth claims were not filed within the one-year statute of limitations and that all of the claims are meritless.

         LEGAL ...


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