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Nelson v. Burton

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

February 20, 2018

Reginald DeWayne Nelson, # 233909, Petitioner,
v.
DeWayne Burton, Respondent.

          Honorable Paul L. Maloney, Judge.

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE.

         This is a habeas corpus proceeding brought by a state prisoner pursuant to 28 U.S.C. § 2254. On July 19, 2011, a Muskegon County Circuit Court jury found petitioner guilty of possession with intent to deliver fifty to 450 grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iii), second subsequent offense, Mich. Comp. Laws § 333.7413(1)(a); possession of marijuana with intent to deliver, Mich. Comp. Laws § 333.7401(2)(d)(iii); and possession of a firearm by a felon (felon in possession), Mich. Comp. Laws § 750.224f. On September 6, 2011, petitioner was sentenced as a third-offense habitual offender, Mich. Comp. Laws § 769.11, to concurrent prison terms of life imprisonment without the possibility of parole for his second conviction of possession with intent to deliver fifty to 450 grams of cocaine, four to eight years' imprisonment for his possession with intent to deliver less than five kilograms of marijuana conviction, and four to ten years' imprisonment for his felon-in-possession conviction.

         After unsuccessful attempts to overturn his convictions in Michigan's courts, petitioner filed his federal habeas corpus petition. He asks this Court to overturn his convictions on grounds rejected by the Michigan Court of Appeals:

I. Petitioner's Fourteenth Amendment right to due process of law was violated where his possession with intent to deliver cocaine and marijuana convictions were obtained through the use of insufficient evidence, contrary to Jackson v. Virginia.
II. Petitioner's Sixth Amendment confrontation rights and his Fourteenth Amendment due process rights to a fair trial, were grossly violated, where the prosecution refused to identify and/or produce a confidential informant who was the linchpin of the charges against petitioner, during trial, so that petitioner could confront his accuser, even after knowing that this confidential informant's statement to police was testimonial, contrary to Crawford v. Washington, Davis v. Washington, and Roviaro v. United States.
III. Petitioner's Fourteenth Amendment right to due process of law and a fair trial, were violated, through multiple acts of prosecutorial misconduct, where the state impermissibly used confidential informant information given to police, as direct evidence of petitioner's guilt without producing this informant during trial, and the state improperly questioned petitioner in a manner that was unprofessional, improper, intimidating and highly prejudicial, contrary to Berger v. United States and Donnelly v. DeChristoforo.
IV. Petitioner was deprived of his Sixth Amendment right to effective assistance of counsel when his trial attorney “failed to subpoena petitioner's alibi witness, and failed to investigate and interview a key witness; counsel was also ineffective for failing to object to the prosecutor's improper cross-examination of petitioner, contrary to Strickland v. Washington.”

(ECF No. 1, PageID.4-5).

         Respondent argues that the petition should be denied because all grounds raised by petitioner lack merit. (ECF No. 12). Further, respondent argues that Ground III and the Confrontation Clause component of Ground II are barred by procedural defaults and petitioner has not established grounds to overcome those defaults.[1] (Id. at PageID.218-21, 224-27, 231-32, 241).

         Judge Maloney has referred the matter to me for all purposes, including the issuance of a report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Rule 10 of the Rules Governing Section 2254 Cases in the District Courts. After review of the state-court record, I conclude petitioner has not established grounds for federal habeas corpus relief. Petitioner has not shown that the state court decision rejecting the grounds raised in the petition was “contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States” or that it 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). I recommend that the petition be denied on the merits.

         Standard of Review

         The Court's review of this petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly deferential standard for evaluating state-court rulings which demands the state court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted). “AEDPA requires heightened respect for state court factual and legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). “State-court factual findings [] are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

         If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((“[A]ny claim that was adjudicated on the merits in State court proceedings= is subject to AEDPA deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal habeas “retrials” and ensures that state court convictions are given effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It prohibits “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews, 132 S.Ct. 2148, 2149 (2012) (per curiam).

         The AEDPA standard is difficult to meet “because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). “Section 2254(d) reflects that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through appeal.” Id. at 102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). Section 2254(d) states that an application for a writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication “(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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see White v. Wheeler, 136 S.Ct. 456, 460 (2015); Davis v. Ayala, 135 S.Ct. at 2198; White v. Woodall, 134 S.Ct. 1697, 1702 (2014).

         The only definitive source of clearly established federal law for purposes of ' 2254(d)(1) is the holdings - not dicta - of Supreme Court decisions. White v. Woodall, 134 S.Ct. at 1702; see Woods v. Donald, 135 S.Ct. at 1377 (“Because none of our cases confront ‘the specific question presented by this case, ' the state court's decision could not be ‘contrary to' any holding from this Court.). “[W]here the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” Id. (quotations and internal citations omitted).

         An unreasonable application of the Supreme Court's holding must be “'objectively unreasonable, ' not merely wrong; even ‘clear error' will not suffice.” White v. Woodall, 134 S.Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). Rather, “[a]s 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.” White v. Woodall, 134 S.Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103). “[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court, ' ” and A[i]t therefore cannot form the basis for habeas relief under AEDPA.” Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v. Matthews, 132 S.Ct. at 2155); see Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (per curiam) (“As we have repeatedly emphasized, [] circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court.' ”).

         “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2) requires that this Court accord the state trial court substantial deference. If reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination. Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S.Ct. 10, 15 (2013).

         Proposed Findings of Fact

         A. Circuit Court Proceedings

         1. Pretrial Motion

         Petitioner's attorney filed a number of pretrial motions, including a motion to have the court order the prosecution to reveal the confidential informant referred to in the search warrant for the residence at 209 East Columbia in Muskegon Heights, Michigan. On March 14, 2011, the trial court judge conducted a hearing on the motion. (ECF No. 13-6, PageID.309-15). On March 21, 2011, the judge entered his opinion and order denying the motion. He found that the identity of the confidential informant, standing alone, would not be relevant because he was not a witness to any crime that occurred on December 4, 2010, the date the controlled substances were seized under the search warrant. (ECF No. 13-17, PageID.1537). The content of the communication made by the confidential informant to the police was that he saw cocaine inside 209 East Columbia within 48 hours of December 4, 2010. The court was not prepared to adopt a rule that, “every time a confidential informant tells the police that he saw drugs in a residence, the confidential informant's identity must be disclosed so that he can reveal the people who were in the drug house, in order to determine if those individuals were the dealers, as opposed to a defendant who might have been absent at the time of the confidential informant's observations.” (Id.). Further, the judge found:

[T]he mere possibility that persons other than [petitioner] were in 209 E. Columbia at the time of the confidential informant's observation has little relevance as to whether or not the controlled substances were under the exclusive control or joint control of [petitioner]. Notwithstanding, the prosecution still bears the burden of proof beyond a reasonable doubt that [petitioner] actually possessed the controlled substances.

(Id.).

         2. Trial

         Petitioner's trial began on July 12, 2011, and it concluded on July 19, 2011, with the jury's verdict convicting petition of the offenses identified above. (Trial Transcripts, TT I- TT V, ECF No. 13-10 through 13-15).

         The West Michigan Enforcement Team (WEMET) is a multi-jurisdictional law enforcement drug task force. On December 4, 2008, they received a tip from a confidential informant regarding illegal drugs observed at 209 East Columbia in Muskegon Heights, Michigan, and the police obtained and executed a search warrant. (TT II at 5-7, 111, ECF No. 13-11, PageID.617-19, 723). The house at 209 East Columbia was leased to petitioner. (TT II at 115-34, ECF No. 13-11, PageID.730-46; TT IV at 39-40, 74-75, 83, ECF No. 13-13, PageID.1121-22, 1156-57, 1165). The door was locked and forced entry was required. (TT I at 196-97, ECF No. 13-10, PageID.556-57). The house was small and sparsely furnished. (TT II at 8-9, ECF No. 13-11, PageID.618-19).

         In the kitchen, inside a cold air vent underneath the stove, police found a bag with a plastic container inside that contained 247 grams of cocaine. (TT I at 235, ECF No. 13-10, PageID.595; TT II at 12-14, 93, ECF No. 13-11, PageID.624-26, 705). Police discovered four separate packages of marijuana inside the freezer. (TT II at 57, 199, ECF No. 13-11, PageID.669, 811). A Coffee-mate container found in the kitchen had a false bottom. Crack cocaine was found inside the false bottom, individually packaged for sale on the street. Police recovered a latex glove from the trash. Inside the glove was a mixture of DNA consistent with petitioner being one of the contributors. A box of gloves was found in a drawer next to the refrigerator. (TT II at 52-58, 199, ECF No 13-11, PageID.664-70, 811; TT III at 72-106, ECF No. 13-12, PageID.902-36).

         In the bedroom, police found a duffle bag containing a plastic baggie of marijuana and men's clothing. (TT II at 15-16, ECF No. 13-11, PageID.627-28). There was a coffee grinder on a small table. Testimony indicated that such grinders are used to make cocaine into a finer powder. (Id. at 17-18, PageID.629-30).

         On an entertainment center, police found bottles of Inositol, a product used as a cocaine cutting agent. (Id. at 18-19, PageID.631-32). On the same entertainment center, police found mail addressed to petitioner, several items such as utility bills having the 209 East Columbia address, and some mail had another address, petitioner's mother's address at 2030 Sixth Street, Muskegon Heights, Michigan. (Id. at 19-40, PageID.631-52). Petitioner was on parole in 2008, and he had given his mother's residence at 2030 Sixth Street as his address. He never advised his parole agent that he had leased the house 209 East Columbia. (TT I at 167-72, ECF No. 13-10, PageID.527-32). Other than a bulk mail flier, none of the mail found at 209 East Columbia was addressed to anyone other than petitioner. (TT II at 112, ECF No. 13-11, PageID.724).

         Police found a plate, spoon, and a bag containing cocaine residue on a shelf of the entertainment center. The fingerprint from petitioner's left middle finger was found on that plate. (TT II at 42-43, ECF No. 13-11, PageID.654-55; TT III at 37, 44, 46, ECF No. 13-12, PageID.867, 874, 876). Police also recovered two digital scales of a type commonly used in the drug trade. (TT II at 46-48, ECF No. 13-11, PageID.658-60).

         Petitioner wears size 12 shoes. In the bedroom at 209 East Columbia, police found three shoeboxes for size 12 shoes and a pair of size 12 shoes. A black handgun was found underneath the bed. The gun had been reported as stolen from a location near the Michigan/Indiana border. A total of six casings were in the gun, five live rounds and one spent round. (TT I at 219, ECF No. 13-10, PageID.579; TT II at 49-52, 148-49, ECF No. 13-11, PageID.661-64, 760-61).

         In the basement, police found two gallon size bags, which contained a total of thirteen sandwich-size bags. Each of the smaller bags contained between 28 and 29 grams of marijuana (approximately an ounce), a weight typical for sale. (TT I at 235-37, PageID.595-97; TT II, 59-61, 108, ECF No. 13-11, PageID.671-73, 720)

         A search warrant was obtained for petitioner's mother's residence at 2030 Sixth Street, Muskegon Heights, Michigan. No mail addressed to petitioner was found at that location. (TT I at 195-99, ECF No. 13-10, PageID.555-559; TT III at 145, ECF No. 13-12, PageID.975). Police found no evidence that petitioner had been living in the basement. (TT II at 63-65, ECF No. 13-11, PageID.675-77; TT III at 143, 148, ECF No. 13-12, PageID.973, 978). Petitioner's mother testified. She denied telling WEMET officers that petitioner did not live with her and that he was living at 209 East Columbia. (TT III at 5-18, ECF No.13-12, PageID.835-48). The prosecution provided impeaching testimony through the officer who had received her statements. (TT III at 145-48, ECF No. 13-12, PageID.975-78).

         A search warrant was obtained for a residence at 1356 Ducey in Muskegon, Michigan. A white Chevy Blazer was found parked at that residence. Petitioner and Katwanna Harris had a child together. The baby had been born in October 2008, and Ms. Harris and the baby were living at 1356 Ducey. In the nursery, police found petitioner's lease agreement for the property at 209 East Columbia. Police also discovered a black duffel bag on the floor in the closet. Inside the bag were two handguns and nine or ten boxes of ammunition. (TT I at 227-30, ECF No. 13-10, PageID.587-90; TT II at 65-69, 201-15, ECF No. 13-11, PageID.677-81, 813-27; TT III at 13, ECF No. 13-12, PageID.843; TT IV at 39, ECF No.13-13, PageID.1121)

         Petitioner owned a white Chevy Blazer. (TT II at 125, ECF No. 13-11, PageID.737; TT III at 147, ECF No. 13-12, PageID.997). A white Chevy Blazer had been seen at 209 East Columbia when the police began their surveillance. It was registered to Ms. Harris. A black male drove the Blazer from 209 East Columbia, and the police lost it in traffic. The white Blazer was found at 1356 Ducey and a small baggie of cocaine was found on the floorboard. (TT I at 240, ECF No. 13-10, PageID.600; TT II, at ...


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