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Gipson v. Romanowski

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

February 7, 2018

TED GIPSON, Petitioner,
v.
KENNETH ROMANOWSKI, Respondent.

          OPINION AND ORDER (1) DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND, (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS

          Denise Page Hood Chief Judge, United States District Court

         This is a habeas case brought by a Michigan prisoner under 28 U.S.C. § 2254. Ted Gipson, (“Petitioner”), was convicted after a jury trial in the Macomb Circuit Court of first-degree felony murder, Mich. Comp. Laws § 750.316, and armed robbery, Mich. Comp. Laws § 750.529, for actions taken with his brother, Scott Gipson, in the beating death of David Witting. Petitioner was sentenced to life imprisonment for the murder conviction and 285 to 480 months for the robbery conviction.

         The amended petition asserts six grounds for relief: (1) Petitioner was denied his right to a fair trial by admission of evidence of his “Murder 1” tattoo, (2) Petitioner's Fifth Amendment rights were violated by admission of his coerced statement to police, (3) Petitioner's Sixth Amendment right to counsel was violated when the prosecutor used jail-house informants to elicit incriminating statements from him, (4) Petitioner was denied his Sixth Amendment right to the effective assistance of appellate counsel, (5) the prosecutor committed misconduct by offering perjured testimony from the jail-house informants, and (6) the Michigan Court of Appeals erroneously dismissed Petitioner's application for leave to appeal following his state post-conviction proceeding.

         The Court finds that Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will also deny Petitioner a certificate of appealability, but it will grant him permission to appeal in forma pauperis.

         I. Background

         The Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's convictions arise from the beating death of defendant's drug supplier, David Witting, during a robbery. Evidence at trial indicated that defendant arranged a meeting with Witting to purchase drugs. During the transaction, defendant's brother, Scott Gipson, emerged from behind a dumpster and struck the victim on the head with a bottle. Defendant and Gipson thereafter punched and kicked the victim, who died from internal bleeding after his spleen ruptured. There is no dispute that defendant was present during the assault, and defendant admitted kicking or punching the victim once or twice, but defendant generally maintained that he did not know that Gipson was going to attack the victim, and defendant claimed that he only struck the victim when he believed the victim was going to hit him.

People v. Gipson, No. 287324, 787 N.W.2d 126, *1 (Mich. App. Jan. 28, 2010).

         Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate brief raised what now form his first two habeas claims. The Michigan Court of Appeals affirmed Petitioner's convictions in a published opinion. Id.

         Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same two claims he raised in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed. People v. Gipson, 784 N.W.2d 213 (Mich. July 26, 2010) (table).

         Petitioner then filed the instant action along with a motion to stay the case so that he could present additional claims to the state courts in a post-conviction review proceeding. The Court granted the motion.

         Petitioner then filed a motion for relief from judgment in the state trial court. The motion raised what now form Petitioner's third, fourth, and fifth habeas claims. On September 11, 2013, the trial court issued an opinion and order denying the motion. See Dkt. 20-3.

         Pursuant to Michigan Court Rule 7.205(G)(3), Petitioner had six months to file a delayed application for leave to appeal in the Michigan Court of Appeals. On March 12, 2014, the last day to file an appeal, Petitioner attempted to file a delayed application for leave to appeal. On March 24, 2014, the Michigan Court of Appeals' Clerk notified Petitioner that his application was defective because he did not provide a proof of service upon the prosecutor. On June 3, 2014, the appeal was dismissed for failure to pursue the case in conformity with the court rules. People v. Gipson, No. 320828 (Mich. Ct. App. June 3, 2014). Petitioner's motion for reconsideration was denied on July 21, 2014.

         On September 2, 2014, Petitioner attempted to file a second application for leave to appeal in the Michigan Court of Appeals. The court summarily dismissed the appeal “because appellant failed to file the application within the 6-month time period required by MCR 7.205(G)(3).” People v. Gipson, No. 323449 (Mich. Ct. App. Oct. 20, 2014).

         In the meantime, Petitioner had filed an application for leave to appeal in the Michigan Supreme Court from his first dismissed appeal to the Michigan Court of Appeals. On April 28, 2015, the Michigan Supreme Court issued an order denying leave to appeal because the court was not persuaded that the questions presented should be reviewed. People v. Gipson, 861 N.W.2d 902 (Mich. 2015) (table).

         Petitioner then returned to this Court and filed a motion to reinstate his federal habeas case and an amended petition. The Court granted the motion, and Respondent subsequently filed a responsive pleading and the relevant portions of the state court record. The matter is now ready for decision.

         II. Standard of Review

         28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was “contrary to” or resulted in an “unreasonable application of” clearly established Supreme Court law.

         “A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003), quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

         “[T]he ‘unreasonable application' prong of the statute permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529 U.S. at 413.

         “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.” Harrington v. Richter, 562 U.S. 86, 101 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). “Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103 (internal quotation omitted).

         III. Analysis

         A. Procedural Default and Statute of Limitations

         As an initial matter, Respondent asserts that several of Petitioner's claims are barred by his state court procedural default and by application of the one-year statute of limitations. Under the procedural default doctrine, a federal habeas court will not review a question of federal law if a state court's decision rests on a substantive or procedural state law ground that is independent of the federal question and is adequate to support the judgment, absent a showing of cause and prejudice to excuse the default. See Coleman v. Thompson, 501 U.S. 722, 729 (1991).

         A state court procedural default, however, is not a jurisdictional bar to a review of a habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). That is, “federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). It may be more economical for the habeas court to simply review the merits of the petitioner's claims, “for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.” Lambrix, 520 U.S. at 525. Similarly, where the statute of limitations poses complicated issues, it may be more efficient for the Court to resolve the merits of the petition against the Petitioner. See, e.g., Johnson v. Mackie, 2014 U.S. Dist. LEXIS 50896, *7, 2014 WL 1418678 (E.D. Mich. April 14, 2014).

         In the present case, the Court deems it more efficient to proceed directly to the merits of Petitioner's substantive claims, especially because Petitioner alleges that his appellate counsel was ineffective for failing to preserve the defaulted claims (habeas claim 4), and because Petitioner contends that the prison or state appellate court mishandled his appellate filings on state post-conviction review causing his default (habeas claim 6). Accordingly, the Court will bypass discussion of Respondent's procedural arguments, (and the Court therefore also need not discuss Petitioner's fourth and sixth claims which seek to undermine those defenses), as it is more efficient to resolve Petitioner's substantive claims on the merits against him.

         B. Admission of Tattoo Evidence

         Petitioner first asserts that his trial was rendered fundamentally unfair by the admission of evidence that he bore a tattoo stating “Murder One.” This claim was presented to and rejected by the Michigan Court of Appeals on the merits during Petitioner's direct appeal.

         “Errors by a state court in the admission of evidence are not cognizable in habeas proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial.” Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2006). Typically, to show a due-process violation under AEDPA rooted in an evidentiary ruling, there must be a Supreme Court case establishing a due-process right with regard to that specific kind of evidence. Collier v. Lafler, 419 F. App'x 555, 558 (6th Cir. 2011).

         The Michigan Court of Appeals denied relief with respect to Petitioner's evidentiary claim on the following basis:

Defendant argues first that the trial court erred in admitting evidence that, after the charged offenses, he obtained a tattoo that read “Murder 1” and depicted a chalk outline of a dead body underneath. Defendant argues that this evidence was irrelevant and unfairly prejudicial. We review the trial court's decision to admit this evidence for an abuse of discretion, which exists when the trial court's decision falls outside the range of principled outcomes. People v. Blackston, 481 Mich. 451, 460 (2008). Generally, “the trialcourt's decision on a close evidentiary question . . . ordinarily cannot be an abuse of discretion.” People v. Sabin, 463 Mich. 43, 67 (2000).
Generally, all relevant evidence is admissible. MRE 402; People v. Yost, 278 Mich.App. 341, 355 (2008). Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the action more probable or less probable than it would be without the evidence. MRE 401; Yost, supra at 355. Even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; Yost, supra at 407. “Unfair prejudice may exist where there is a danger that the evidence will be given undue or preemptive weight by the jury or where it would be inequitable to allow use of the evidence.” Blackston, supra at 462. The determination whether evidence should be excluded pursuant to MRE 403 is best left to the trial court's contemporaneous assessment. Id.
Defendant asserts that there are many possible reasons for the tattoo. Indeed, defendant was able to present to the jury a number of plausible theories as to why he obtained the tattoo. Those theories included referring to his dog, which was shot during the police raid on his house; and as a reminder of something he overcame in his life, because he believed he would win the case and not even be charged with the instant offenses. However, there was also evidence that defendant altered the tattoo from an outline of a body to the shape of a dog after being informed that the police wanted to photograph the tattoo. Furthermore, other possible reasons are, as argued by the prosecution, bravado or a symbolic representation of defendant's acknowledged connection to the victim's death. Under the circumstances, the tattoo was relevant to the issues of defendant's intent and culpability in the victim's death. Because the prosecution presented significant other evidence of defendant's guilt without unduly focusing on the tattoo evidence, and because defendant had the ...

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