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Hatten v. Rivard

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

December 6, 2017

D'SEAN HATTEN, Petitioner,
v.
STEVEN RIVARD, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          John Corbett O'Meara, United States District Judge.

         This 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 the petition.

         I. Background

         Petitioner's 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 the police.
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 prosecutor.
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 rapidly.
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).

         Following 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.

         Petitioner 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).

         Petitioner then filed the pending habeas petition. He raises these claims:

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 convictions.
VI. Constitutional due process violation.
VII. Ineffective assistance of ...

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