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Hayes v. Burt

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

January 9, 2018

SHERRY BURT, Respondent.


          Linda V. Parker U.S. District Court Judge.


         This matter is before the Court on Petitioner Darnell Ellsworth Hayes' pro se motion for discovery and petition for the writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is challenging his convictions under Michigan law for first-degree (felony) murder, assault with intent to commit murder, conspiracy to commit armed robbery, felon in possession of a firearm, and possession of a firearm during the commission, or attempt to commit, a felony. As grounds for relief, Petitioner alleges that: (1) the exclusion of the public for a key portion of his trial violated his constitutional right to a public trial; (2) defense counsel was ineffective for failing to object to the closure of the courtroom; (3) the trial court deprived him of a fair trial by permitting testimony that a key witness was reluctant 2 to testify due to intimidation by a gang and unspecified threats; (4) the admission of testimony regarding his “mug shot” and arrest for an unrelated charge of disorderly conduct violated his right to a fair trial; (5) the felony information failed to comport with the notice requirements for felony murder; (6) prosecutorial misconduct deprived him of due process; and (7) trial counsel's failure to make objections, request a cautionary jury instruction, and move for a mistrial deprived him of effective assistance.

         In an answer to the petition filed through counsel, Respondent argues that Petitioner is not entitled to discovery, he procedurally defaulted four of his seven habeas claims, and the state courts' rejection of Petitioner's claims did not result in decisions that were contrary to federal law, unreasonable applications of federal law, or unreasonable determinations of the facts. The Court agrees that Petitioner is not entitled to discovery and that habeas relief is not warranted on any of Petitioner's claims. Accordingly, the Court is denying Petitioner habeas corpus relief and his motion for discovery.


         Petitioner was charged in the Circuit Court for Wayne County, Michigan, with felony murder, premeditated murder, assault with intent to commit murder, conspiracy to commit armed robbery, felon in possession, and felony firearm. The 3 charges arose from the shooting of Philden Reid (“Reid”) and Brian Tilles[1] (“Tilles”) in Detroit, Michigan, on May 8, 2009. Reid died from his gunshot wounds, but Tilles survived and was the main witness at Petitioner's trial. Petitioner and his two co-defendants (Derrico Searcy and Delmerey Morris) were tried before a single jury in Wayne County Circuit Court where

[t]he prosecution's theory . . . was that Reid was shot during the defendants' planned attempt to rob him of his expensive designer sunglasses and money. The prosecution's principal witness, [Tilles], was with the defendants during the offense. According to [Tilles], the group of neighborhood friends, which also included Rob Stringer, was outside talking when Reid drove by wearing the sunglasses and flashing money. Upon observing Reid, defendant Hayes remarked, “There go a lick, ” identifying Reid as an easy robbery victim. About five minutes later, the five men got into defendant Searcy's Jeep and observed Reid's vehicle at a nearby intersection. Defendant Hayes stated, “There go the lick, ” and told defendant Morris, who was seated behind defendant Hayes, to give him a firearm that defendant Morris had in his pocket. While still seated in the Jeep, which was next to Reid's vehicle, defendant Hayes opened the passenger door and fired several shots toward Reid's vehicle, then stepped out of the Jeep and continued shooting. In the meantime, [Tilles] and Stringer fled from the backseat of the Jeep and, while running, [Tilles] was accidentally shot by defendant 4 Hayes. Defendant Morris and Stringer carried [Tilles] to the Jeep, defendant Hayes reentered the vehicle, and defendant Searcy drove the men away from the scene. Reid received two gunshot wounds, one to the back and one to the thigh, and died at the scene. The defense theory for all three defendants was that they were not involved in Reid's death or an attempted robbery, and that [Tilles] was not a credible witness.

People v. Hayes, No. 308527, 2014 WL 1267264, at *1 (Mich. Ct. App. Mar. 27, 2014).

         On October 24, 2011, the jury found Petitioner guilty of felony murder, second-degree murder (as a lesser-included offense of premeditated murder), assault with intent to commit murder, conspiracy to commit armed robbery, felon in possession, and felony firearm. The trial court sentenced Petitioner to two years in prison for the felony-firearm conviction, followed by concurrent terms of life imprisonment for the murder convictions, thirty to sixty years in prison for the assault and conspiracy convictions, and forty to sixty months in prison for the felon-in-possession conviction.

         Petitioner raised his habeas claims in an appeal as of right. The Michigan Court of Appeals vacated Petitioner's conviction and sentence for second-degree murder and remanded Petitioner's case to the trial court to correct a clerical error in his judgment of sentence. The Court of Appeals affirmed Petitioner's convictions and sentence in all other respects. See id. Petitioner appealed to the 5 Michigan Supreme Court, but the State Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Hayes, 849 N.W.2d 380 (Mich. 2014). On January 8, 2015, Petitioner filed his pending federal habeas corpus petition.


         A. Procedural default

         Respondent argues in her answer to the petition that Petitioner procedurally defaulted his first, fourth, fifth, and sixth grounds for habeas relief by failing to object to the claimed errors at trial. To obtain habeas relief on procedurally defaulted claims, a petitioner must establish “cause” for the defaults and “also show that the claims are meritorious.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). Petitioner argued in a motion to amend, which the Court granted (see ECF Nos. 7 and 8), that his trial attorney was “cause” for his failure to object at trial. Petitioner also raises independent claims of ineffective assistance of counsel in his habeas petition.

         The Court finds it more efficient to address the merits of Petitioner's claims than to analyze whether the claims are procedurally defaulted. Accordingly, the Court excuses the alleged procedural defaults and “cut[s] to the merits here, ” as “the cause-and-prejudice analysis adds nothing but complexity to the case.” Id.

         B. Petitioner's motion for discovery

         In his motion for discovery, filed March 21, 2017, Petitioner alleges that “new developments” suggest Tilles fabricated his testimony and that detectives had specific information concerning this fabrication. Petitioner claims the new developments show there was a miscarriage of justice in his case and that the prosecutor presented false evidence in violation of Giglio v. United States, 405 U.S. 150 (1972), and withheld favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). To prove his claims, Petitioner seeks a copy of the Detroit Police Department's homicide file and the Wayne County prosecutor's office file. Respondent opposes any request by Petitioner for discovery. (See Answer in Opp'n to Pet. for Writ of Habeas Corpus at 66-67, ECF No. 5 at Pg ID 158-59.)

         “[H]abeas actions are civil cases.” Rumsfeld v. Padilla, 542 U.S. 426, 452 (2004) (Kennedy, J., concurring). However, habeas petitioners, unlike the usual civil litigants in federal court, are not entitled to discovery as a matter of course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Although Rule 6(a) of the Rules Governing § 2254 Proceedings provides that “[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedures, ” this rule “makes it clear that the scope and extent of such discovery is a matter confided to the discretion of the District Court.” Bracy, 520 U.S. at 909. Discovery is appropriate only when “specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.” Id. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). “‘Conclusory allegations are not enough to warrant discovery under [Rule 6]; the petitioner must set forth specific allegations of fact.'” Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004) (quoting Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994)).

         The primary issue at Petitioner's trial was whether Tilles was a credible witness. The parties addressed Tilles' credibility during voir dire, in their opening statements, during the prosecution's case in chief, when cross-examining Tilles, and in their closing arguments. To support their respective positions, the prosecution admitted evidence to show that Tilles' testimony was corroborated, and defense counsel cross-examined Tilles about inconsistencies in his testimony. Tilles' criminal history was made known to the jury, and defense counsel suggested that Tilles was a liar, a sheep in wolves' clothing, and perhaps the person who shot Reid. In short, “the issue of [Tilles'] credibility, including his motivation for testifying and the existence of other possible influences on his testimony, was explored at length by all three defendants.” Hayes, 2014 WL 1267264, at *8.

         Furthermore, before trial, the prosecutor provided the defense attorneys 4, 000 minutes of audiotaped conversations between Tilles and the officer in charge of the case while Tilles was in jail or in prison. The purpose of reviewing the tapes was to determine whether Tilles was promised anything for his cooperation in the case and whether the prosecution was withholding evidence of promises made to Tilles. (10/6/11 Hr'g Tr. at 5-11, ECF No. 6-4 at Pg ID 251-57.) Petitioner and his co-defendants also were given the name of Tilles' aunt who supposedly described Tilles as a liar. (Id. at 11-12, Pg ID 256-57.) It therefore appears that Petitioner had ample opportunity to conduct discovery before trial regarding the motivations behind and credibility of Tilles' testimony.

         Although Petitioner now maintains that detectives knew Tilles was fabricating his testimony, Petitioner has not revealed the source of this information, except to say that family members continue to investigate his case. Further, because Tilles' credibility was attacked thoroughly at trial, Petitioner fails to demonstrate that the facts, if more fully developed, would entitle him to relief. He has not shown good cause for discovery. The Court therefore is denying Petitioner's motion for discovery (ECF No. 9) and is proceeding to address his habeas claims, using the following standard of review.


         “The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the court may not grant a state prisoner's application for the writ of habeas corpus unless the state court's adjudication of the prisoner's claims on the merits

(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.

28 U.S.C. § 2254(d).

         “[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. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt, ' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).

         “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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         Furthermore, a state court's determination of a factual issue is presumed to be correct unless the petitioner rebuts the presumption of correctness with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Holland v. Rivard, 800 F.3d 224, 242 (6th Cir. 2015), cert. denied, 136 S.Ct. 1384 (2016). In addition, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         V. ANALYSIS

         A. Whether Petitioner was denied the right to a public trial

         In his first ground for habeas relief, Petitioner alleges that the exclusion of the general public from his trial while Tilles testified violated Petitioner's constitutional right to a public trial. The prosecutor moved to close the courtroom during Tilles' testimony because one or more people had threatened Tilles while he was incarcerated. Petitioner contends that the request was inappropriate because the prosecutor failed to show that he (Petitioner) or any of the spectators had threatened Tilles.

         Petitioner blames the trial court for failing to (1) inquire into the potential intimidation and threats, (2) apply the four-part test set forth in Waller v. Georgia, 467 U.S. 39 (1984), (3) consider any alternatives to closing the courtroom, and (4) make any factual findings. The Michigan Court of Appeals reviewed Petitioner's claim for “plain error affecting [Petitioner's] substantial rights” because Petitioner did not preserve his claim for appellate review by objecting to the partial closure during trial. Counsel for one of his co-defendants objected, however.

         The Michigan Court of Appeals concluded that there was no merit to Petitioner's claim, finding first that the trial judge only partially closed the trial because the defendants' parents were allowed to remain in the courtroom during Tilles' testimony. Hayes, 2014 WL 1267264, at *6. The appellate court then reasoned:

The record establishes a substantial reason for the partial courtroom closure, namely the avoidance of witness intimidation, and that the closure did not unnecessarily interfere with defendant Hayes's right to a public trial. The nature of the offenses involved a group of friends who participated in a murder during an attempted robbery. [Tilles] was with the defendants at the time of the crimes and decided to testify against them after they were no longer on good terms. Before [Tilles] testified, the prosecutor asked the trial court to exclude the public from the courtroom. The prosecutor explained that [Tilles], the prosecution's chief witness, had been threatened after he started testifying in these cases, and that he had to be moved from several different prisons because of the threats. The prosecutor argued that this history demonstrated a likelihood that [Tilles] could be inhibited when testifying in open court if the defendants' parents, family, and friends were present in the courtroom.

Id. For the reasons that follow, the state court's decision was neither contrary nor an unreasonable application of clearly established federal law, and it was not based on an unreasonable determination of the facts in light of the evidence presented.

         1. Applicable Law

         The Sixth Amendment to the United States Constitution guarantees that a criminal defendant, “shall enjoy the right to a . . . public trial.” U.S. Const. amend. VI. This right is made applicable to the States through the Fourteenth Amendment. Presley v. Georgia, 558 U.S. 209, 212 (2010) (citing In re Oliver, 333 U.S. 257 (1948)). “The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” In re Oliver, 333 U.S. at 270 n.25 (quotation marks and citation omitted). “In ...

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