United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
Corbett O'Meara, United States District Judge.
matter is before the Court on Petitioner D'Sean
Hatten's pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner was
convicted of five counts of assault with intent to murder,
Mich. Comp. Laws § 750.83, five counts of felonious
assault, Mich. Comp. Laws § 750.82, one count of
domestic violence, Mich. Comp. Laws § 750.81 and one
count of possession of a firearm during the commission of a
felony, Mich. Comp. Laws § 750.227(b). Petitioner raises
seven claims for habeas corpus relief. Respondent, through
the Attorney General's Office, has filed an answer in
opposition arguing that three of Petitioner's claims are
procedurally defaulted and that all of the claims lack merit.
The Court finds no basis for habeas corpus relief and denies
convictions arise from two shootings in the City of Detroit
in May 2013. The Michigan Court of Appeals described the
evidence adduced at trial as follows:
This case arises from two drive-by shootings that occurred in
Detroit, Michigan, on or around May 23, 2013. Storm Brooks
and defendant knew one another for approximately five years
and together have a son, TH. Storm moved in with her mother,
Rhonda Brooks, and Rhonda's husband, Lee Walker, at 19791
Rutherford in March 2013 because she and defendant had an
argument, defendant was arrested, and defendant kicked in her
door after he was released from jail. Rhonda testified that
defendant had previously broken her windows and driven his
vehicle rapidly up and down her street. Walker testified that
every time defendant and Storm had a problem, defendant would
destroy Walker's property and shoot Walker's cars.
According to Storm, she and defendant had an argument on the
phone on May 23, 2013, 1 and defendant was served
with a personal protection order (PPO) against him that day.
According to Storm, defendant came to the house at
approximately 7:00 p.m. after he was served with the PPO. He
was yelling, but Storm could not understand him.
Rhonda testified that defendant repeatedly called her on May
23, 2013. At approximately 6:00 p.m., defendant called and
said, “Everybody better get out. I'm down on the
corner watching.” Rhonda testified that defendant
sounded angry. Later that night, after defendant had come by
the house and yelled, defendant's mother called and asked
if she could pick up TH, but Storm did not think that would
be a good idea. Rhonda heard defendant in the background
threatening to come over and kick in the door. Rhonda called
Walker testified that defendant made threatening calls to
Rhonda throughout the day on May 23, 2013, and at
approximately 5:00 p.m. or 6:00 p.m., defendant drove by the
house in his burgundy Trailblazer, and was yelling what he
was going to do and that they should move out of the house.
Walker testified that at approximately midnight that night,
defendant called, said, “wakey, wakey, ” and told
them that they should get out of the house. According to
Walker, defendant said that he was on his way. At
approximately 2:00 a.m. or 2:20 a.m., shots were fired at the
house while Storm, TH, Rhonda, Walker, and Dushion Dennis,
Rhonda's nephew, were present inside the house. Walker
heard three shots. Storm grabbed TH and pulled him to the
floor. Shots were fired into the room that she was in and hit
near the floor. Storm ran upstairs with TH, called
defendant's mother, and asked her if she had seen
defendant. Defendant's mother said that she had not seen
him. Rhonda called 911.
After the first shots were fired, the lights were turned on
in the house and the occupants were waiting for the police.
Walker and Dennis were at the front door. Approximately 20
minutes after the first shooting, a second set of shots was
fired. Walker saw defendant shooting out the window on the
driver's side of a gray car, wearing a white T-shirt.
Subsequently, after the police left, Walker picked up spent
cartridges from inside the house and gave them to the
Dennis did not know defendant, but had seen him before. At
approximately 2:00 a.m. on May 23, 2013, Dennis heard shots
enter the house and saw a gray Avenger drive by the house.
Dennis told everyone to get down. He did not see who was in
the car the first time it passed. Dennis felt fragments from
the window fall on his head. While they were waiting for the
police, Dennis again saw a gray Avenger coming down the
street and the shots started again. Dennis saw defendant on
the driver's side of the vehicle, hanging out the window,
wearing a white T-shirt, holding a weapon and firing shots.
Dennis was unable to count the shots, as they were fired
While talking to the police after the shootings, Storm saw
defendant in a gray Avenger driving down the street and
pointed it out. Defendant drives a burgundy Trailblazer, but
his ex-girlfriend drove an Avenger.
Officer Raymond Buford of the Detroit Police Department
responded to a drive-by shooting at 19791 Rutherford on May
23, 2013. As he was talking to the victims, a gray Avenger
drove by and the victims indicated that it was the vehicle
that had just done the shooting. He and his partner, Officer
Philip Parham, searched the area for the vehicle. They
located and stopped the vehicle. A young woman 2
was driving, defendant was in the front passenger's seat,
and a man named Leon Pierce was also in the vehicle. The
occupants were patted down, but no gun was found. The
officers arrested defendant. Buford collected four shell
casings near a bus stop on Seven Mile Road. Buford testified
that one of the occupants of the house said that the
passenger was the person shooting. Buford had been to the
Rutherford address approximately eight months to a year
earlier, after defendant had “shot the car up”
that belonged to Storm or Walker.
1 At one point, Storm testified that they argued
on the morning of May 22, 2013.
2 Nkari Mandisa, the driver, was originally
charged along with defendant, but the charges against Mandisa
were dismissed at the preliminary examination.
People v. Hatten, No. 319417, 2015 WL 966312, *1-2
(Mich. Ct. App. March 5, 2015).
a jury trial in Wayne County Circuit Court, Petitioner was
convicted of five counts of assault with intent to murder,
five counts of felonious assault, one count of domestic
violence, and felony firearm. On November 19, 2013,
Petitioner was sentenced to 280 to 560 months'
imprisonment for each assault with intent to commit murder
conviction, 12 to 48 months' imprisonment for each
felonious assault conviction, 93 days' imprisonment for
the domestic violence conviction, and two years'
imprisonment for the felony-firearm conviction.
filed an appeal of right in the Michigan Court of Appeals
raising these claims through counsel and in a pro per
supplemental brief: (i) other acts evidence improperly
admitted; (ii) insufficient evidence; (iii) sentencing
guidelines improperly scored; (iv) ineffective assistance of
trial counsel; (v) ineffective assistance of appellate
counsel; (vi) double jeopardy violation; (vii) prosecutorial
misconduct; and (viii) court costs and attorney fees
improperly assessed. The Michigan Court of Appeals affirmed
Petitioner's convictions and sentences, but remanded to
the trial court for further proceedings to establish a
factual basis for the imposition of $600 of court costs.
Hatten, 2015 WL 966312. The Michigan Supreme Court
denied Petitioner's application for leave to appeal.
People v. Hatten, 498 Mich. 873 (Mich. 2015).
then filed the pending habeas petition. He raises these
I. Trial court abuse of discretion in allowing evidence of
“other acts.” II. Insufficient evidence to prove
guilt of offense elements beyond a reasonable doubt.
III. Violation of federal and state constitutional rights to
the effective assistance of counsel.
IV. Denial of effective assistance of counsel with
constitutional appeal as of right.
V. Violation of due process of law concerning multiple count
VI. Constitutional due process violation.
VII. Ineffective assistance of ...