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Brandon v. Burt

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

January 17, 2018

SHERRY BURT, Respondent.


          RAY KENT United States Magistrate Judge

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Matthew Brandon is incarcerated with the Michigan Department of Corrections at the Baraga Correctional Facility (AMF) in Baraga, Baraga County, Michigan. On July 2, 2014, a Kent County Circuit Court jury found Petitioner guilty of being a felon in possession, Mich. Comp. Laws § 750.224f, carrying a concealed weapon, Mich. Comp. Laws § 750.227, and possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. On July 30, 2014, the court sentenced Petitioner as a fourth-offense felony offender, Mich. Comp. Laws § 769.12, to terms of two to five years on both the felon-in-possession and carrying-concealed convictions, and a consecutive two year term on the felony-firearm conviction.

         On February 8, 2017, [1] Petitioner filed his habeas corpus petition raising two grounds for relief, as follows:


(Pet., ECF No.1-1, PageID.8.) Respondent has filed an answer to the petition (ECF No. 5) stating that the grounds should be denied because they are procedurally defaulted and/or lack merit. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are meritless. Accordingly, I recommend that the petition be denied.


         I. Factual allegations

         The instant case arose from a traffic stop of a vehicle on February 8, 2014, from which Petitioner, a passenger in the vehicle, ran. While running, Petitioner apparently lost his cell phone and discarded a pistol. Petitioner was charged with the three offenses on which the jury found Petitioner guilty, and, following a preliminary examination on February 21, 2014, he was bound over on those charges. (Prelim. Exam. Tr., ECF No. 6-2, PageID.118.) Petitioner subsequently was charged with being a fourth-offense felony offender, to which he ultimately pleaded guilty.

         During jury selection, a later-seated juror was asked if he had heard the earlier voir dire questions. In response, the juror stated that defense counsel had “defended my daughter . . . in Wyoming court, and I don't think he treated her fairly.” (T. Tr. I, ECF No. 6-3, PageID.144.) Defense counsel immediately sought a sidebar, and the juror was excused for cause. The court took a recess, and defense counsel moved to excuse the entire panel. Counsel contended that the jury had been tainted by the juror's statement and that counsel believed that the statement could not be cured and would prevent his client from getting a fair trial. Defense counsel indicated that he would investigate what representation he had provided to the juror's daughter. (Id.) The prosecutor responded that disparaging remarks against police officers or attorneys occasionally occurred and did not necessarily taint the panel. (Id., PageID.144-145.) The court took a recess, but when it returned, it simply resumed voir dire, without placing on the record a ruling on the motion. (Id.) Somewhat later, defense counsel, in questioning a new juror, made a brief reference to not remembering the juror who had previously complained about defense counsel's performance in the juror's daughter's case. Defense counsel again asked for a sidebar, which was held. (Id., PageID.146.) Notwithstanding the court's failure to expressly rule on the motion on the record, defense counsel subsequently twice expressed satisfaction with the jury. (Id., PageID.148-149.)

         Grand Rapids Police Canine Officer Todd Wuis testified that he had been an officer for fourteen years and a canine officer for two years at the time of his testimony, and he was a relatively new handler at the time of the incident in question. His police dog was named Boris. According to Wuis, he received three or four calls a night that required a canine. (T. Tr. I, ECF No. 6-3, PageID.159.) At approximately 9:00 p.m. on February 8, 2014, Wuis pulled over a small, red vehicle in the area of Cherry and Charles Streets, because it did not appear to have a license plate. Due to the snow on the back window of the vehicle, Wuis was unable to see the temporary paper license plate. When the vehicle pulled over, the front passenger door opened, and a black male dressed in black jumped out, began running north on Cherry Street, and continued north on Packard Street. Wuis called out for the man to stop, but Wuis needed to remain with the driver and the vehicle. Wuis radioed other officers to advise them of the man running and to seek backup. Three to five minutes later, after other officers arrived to assist, Wuis removed Boris from the cruiser, placed him in a tracking harness, and began to track the suspect from the sidewalk next to the stopped car. (Id., PageID.159-160, 164.) Boris indicated that he had picked up a good scent, and he began pulling hard at the lead, heading north along Packard until they reached 124 Packard. At the driveway of that house, they turned onto fresh snow showing one set of fresh tracks. When they came to a 6-foot privacy fence, Boris indicated that he wanted to climb over. Because of the snow, however, Boris could not jump it. Wuis therefore picked Boris up and over the fence before joining him. At this point, Boris was tracking the scent, but Wuis could see that they were following fresh footprints. They arrived at 716 Lake Drive shortly after Petitioner was taken into custody by Officer Snyder. (Id., PageID.161.) After arriving at the arrest site, Officer Wuis backtracked to look for anything that might have been dropped. He directed Boris to “port, ” or search the ground for items with fresh human scent. As they walked back along the same route to the site of the stop, they discovered a cell phone dropped on the sidewalk, which they picked up. Boris continued to search the same area excitedly, before pushing his snout into a snowbank and then indicating to Wuis. Wuis looked into the hole being dug and saw the handle of a handgun in the snowbank, just a couple of feet from where he found the phone. (Id., PageID.162.) The gun was photographed where it was found, but the phone was not. (Id., PageID.162, 165.) Petitioner admitted to Wuis that he was the person who ran from the vehicle and that the phone was his. (Id., PageID.163, 165-166.)

         Grand Rapids Police Officer Andrew Snyder testified that he was on patrol duty the night of February 8, 2014. He heard that Officer Wuis had made a traffic stop and had reported that the passenger, an African American man dressed in black, had run from the vehicle. Snyder was nearby at the time. (Id., PageID.155.) Snyder drove west on Lake Drive, looking for the man described. As he looked up the driveway at 716 Lake Drive, he saw someone or something dark, lying on the walkway in the fresh snow. Snyder stopped and shone his spotlight, causing him to see it was a man dressed in black, who started to stand up. Snyder jumped out of his vehicle, and, as the man began to rise, Snyder drew his weapon and took the man into custody. Snyder identified Petitioner as the man he arrested. After arresting Petitioner, Snyder walked along to driveway, to see if he could discover if something had been discarded. As he was doing that, the canine team came through the backyard of 716 Lake Drive, along obviously fresh tracks in the snow. Petitioner initially denied having run from the vehicle. However, after a cell phone was discovered, Petitioner acknowledged that the phone was his. (Id., PageID 156.)

         Grand Rapids Police Detective Case Weston testified that he followed up on the recovery of the gun. He personally took DNA swabs both from the recovered gun and from Petitioner. He conveyed both to the crime lab, along with the gun itself. The lab reported that the gun was operable, but the lab could not recover latent prints from the weapon or cartridges. Weston received a DNA report from Krik Deleeuw, the DNA agent at the Michigan State Police. (Id., 170-171.)

         Kirk DeLeeuw testified as an expert in DNA and serology. (T. Tr. II, ECF No. 6-4, PageID.179.) DeLeeuw processed the reference samples he received from the gun and from Petitioner. (Id., PageID.180.) He reported that he was unable to obtain sufficient DNA information from the handgun to establish a DNA profile. He compared what he had to the DNA profile he obtained from Petitioner's swab. DeLeeuw testified that the comparison was inconclusive because of the poor DNA sample from the gun. (Id.)

         Grand Rapids Police crime-scene technician Kyle Grant testified that he was asked to process a scene near Cherry and Charles Streets on February 8, 2014. He photographed a gun that was in a snow bank. The cell phone had already been picked up, but he placed a marker where officers told him the phone was found. The marker was five or six feet away from the gun. Grant identified the photograph. Grant also processed the gun for fingerprints, using the superglue-fume method. He found no usable latent prints. (Id., PageID.184.)

         After less than two hours' deliberation, the jury found Petitioner guilty of carrying a concealed weapon, being a felon in possession, and felony firearm. (Id., PageID.197-198.) At the sentencing hearing held on July 30, 2017, Petitioner maintained his innocence of the offense and requested leniency. (Sentencing Tr., ECF No. 6-5, PageID.201.) Because Petitioner was on parole at the time of the offense, the court sentenced him to imprisonment for two years on the felony-firearm conviction, to be served consecutively to the offenses for which he was on parole. In addition, the court sentenced Petitioner to the statutory maximum of two to five years' imprisonment on each of the other two charges, without adding time for Petitioner being a fourth-offense felony offender, to be served consecutively to the felony-firearm sentence, but concurrently with one another. (Id.)

         Petitioner appealed his convictions to the Michigan Court of Appeals. In the brief filed by counsel on March 1, 2015, Petitioner raised the two grounds presented in the instant petition. (Def.-Appellant's Br. on Appeal, ECF No. 6-6, PageID.221.) Petitioner filed a supplemental brief on appeal, adding a claim that his felony-firearm sentence should not run consecutively to the carrying-concealed sentence. (Def.-Appellant's Supp. Br. on Appeal, ECF No. 6-6, PageID.239.) In an unpublished opinion issued on April 21, 2016, the court denied relief on the first two grounds, but found the sentencing claim supported. It therefore affirmed the convictions, but remanded the case to the trial court for correction of the sentence to provide that Petitioner's felony-firearm sentence ran concurrently with the carrying-concealed conviction. (Mich. Ct. App. Op., ECF No. 6-6, PageID.203-206.)

         Petitioner filed an application for leave to appeal to the Michigan Supreme Court, again raising the two grounds presented to the court of appeals, but adding a claim that trial counsel rendered ineffective assistance of counsel. (Pet'r's Appl. for Leave to Appeal, ECF No. 6-7, PageID.279.) On December 13, 2016, Petitioner filed his initial petition in this Court, raising the three issues he raised in the Michigan Supreme Court. By opinion, order, and judgment entered January 17, 2017, the Court dismissed the initial petition for failure to exhaust. (Brandon v. Burt, No. 1:16-cv-1433 (W.D. Mich.), ECF Nos. 4, 5, 6.) Instead of returning to the state courts to exhaust his ineffective assistance of counsel claim, Petitioner filed the instant petition raising only the two exhausted claims.

         II. A ...

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