United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE MOTION FOR DISCOVERY
(ECF NO. 9), DENYING THE HABEAS CORPUS PETITION (ECF NO. 1),
GRANTING IN PART A CERTIFICATE OF APPEALABILITY, AND GRANTING
LEAVE TO APPEAL IN FORMA PAUPERIS
V. Parker U.S. District Court Judge.
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
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.
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 (“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).
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.
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.
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.
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.”
Petitioner's motion for discovery
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.)
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)).
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
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.
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.
STANDARD OF REVIEW
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
(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;
(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).
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).
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.
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).
Whether Petitioner was denied the right to a public
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.
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,
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.
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 ...