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Hinton v. Napel

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

March 27, 2018

COREY HINTON, #646238, Petitioner,
v.
ROBERT NAPEL, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          DENISE PAGE HOOD CHIEF JUDGE.

         I. Introduction

         Michigan prisoner Corey Hinton (“Petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in violation of his constitutional rights. Petitioner was convicted of first-degree felony murder, Mich. Comp. Laws § 750.316, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, following a jury trial in the Wayne County Circuit Court. He was sentenced to life imprisonment without parole, a concurrent term of one to seven and one-half years imprisonment, and a consecutive term of two years imprisonment on those convictions. In his pleadings, Petitioner raises claims concerning the non-production of a witness and the admission of his prior testimony, the jury instructions, the composition of the jury, and the effectiveness of trial and appellate counsel. For the reasons that follow, the Court denies with prejudice the habeas petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's convictions arise from the shooting death of Robert Shields in Ecorse, Michigan on March 2, 2010. The testimony at trial revealed that Petitioner shot Shields in the back while they were driving in a van with several other young men after a drug deal went awry. Shields' body was left in the street and the men drove away. The men abandoned the van and fled on foot. Petitioner claimed that he acted in self-defense.

         At trial, Durrell Thornton testified that when he was visiting a friend in River Rouge in the morning on March 2, 2010, he met Robert Shields for the first time. Shields said that he wanted to buy some marijuana and crack cocaine. 6/22/10 Trial Tr., pp. 111-12. In response, Thornton called another friend, Antonio Broadnax, in order to contact Petitioner and facilitate the drug deal. Id. at 113. Four or five men, including Broadnax, Petitioner, Tony Bouie, and Denzel Fowler, came to the house in a white van and met with Shields outside. Id. at 115-16. Shields came back into the house saying that they did not have what he wanted, but then went back outside. The van also left, but Thornton did not see where Shields went. Id. at 117-19. Thornton returned to his own home a short time later. Id. at 120.

         Tony Bouie testified that he was riding in the van with Broadnax (who was driving), Petitioner, Fowler, and Brandon Crawford on March 2, 2010 smoking some marijuana while others were drinking when Broadnax received a call from Thornton about a drug deal. Id. at 147-51. They drove to River Rouge and Thornton and Shields came outside. Id. at 150-51. Shields got into the van and sat and talked to Petitioner. Id. at 151. The music in the van was loud so he did not hear their conversation. Id. at 152. Bouie saw Shields run into the steering wheel, heard a gunshot, and saw that Shields had been shot in the back. Id. at 153. Petitioner was holding the gun. Id. No one else had a weapon. Id. at 157. Broadnax jumped out of the van and Shields fell out of the same door of the van. Broadnax got back into the van and they drove to an alley where they abandoned the van and ran away. Id. at 153-54. While fleeing, Bouie, Broadnax, and Petitioner obtained a ride from Julian Agee, and Bouie and Broadnax went to Bouie's house. Id. at 155-56. Upon further questioning, Bouie recalled telling the police that he looked back in the van, saw Petitioner with a gun, and heard him say to Shields, “Put your hands up before I shoot you, ” id. at 166-67, or “Don't move before I shoot you.” Id. at 195-96. Bouie did not see any physical altercation between Shields and Petitioner before the shooting. 6/23/10 Trial Tr., p. 15.

         Bouie also testified that he received a call from Petitioner, who was trying to disguise his voice to sound like Broadnax, after the shooting. Petitioner told him to say the shooting was self-defense. Id. at 26-27. Bouie also spoke with Petitioner at the Ecorse Police Department lockup. Petitioner again told him to say it was self-defense and that Shields had a gun. Petitioner also warned him not to go to court because they would all get locked up. Id. at 28-29.

         Antonio Broadnax testified that he picked up Petitioner and Bouie in his white van on March 2, 2010 and then they picked up Fowler and Crawford. While they were out, Petitioner asked him to drive to a house in River Rouge because he had to handle some business. Id. at 77-80. Broadnax later realized Petitioner was going to sell marijuana. When Shields was in the van, Broadnax was driving and not paying much attention to the passengers. He then heard a commotion arise between Petitioner and Shields in the back of the van. Id. at 82. Shields lunged toward Broadnax grabbing the steering wheel. Broadnax heard a gunshot and saw that Shields was shot in the lower back. Petitioner had the gun. Id. at 83. No one else had a gun that he saw. Id. at 84. Broadnax put the car in park and hopped out of the van. Shields fell out onto the street. Id. at 84-85. Broadnax got back into the van, drove around the corner, and parked behind a friend's apartment. They then fled the area on foot. Id. at 85-86. Broadnax and Bouie stayed together and were picked up, along with Petitioner, by Julian Agee and taken to Bouie's house. Id. at 87-88. Only Broadnax and Bouie went in the house. Id. at 88. Broadnax called the police and reported his van stolen, but police officers subsequently came to his house and arrested him. Id. at 89. He was taken to a holding cell at the Ecorse Police Department. Id. Broadnax was initially charged with the crime, but accepted a deal in which he pleaded guilty to accessory after the fact and agreed to testify at trial. Id. at 90-91. Broadnax did not see Petitioner buy or have a gun before the shooting and did not know that he was going to shoot Shields. Id. at 92.

         Denzel Fowler testified that he was with Crawford when they were picked up by Broadnax, Bouie, and Petitioner in a van on March 2, 2010. 6/24/10 Trial Tr., pp. 59-60. Petitioner asked him if he still had a gun for sale, and Fowler said that he did. Petitioner agreed to buy it for $50.00, paid him the money, and retrieved the gun from where Fowler had hidden it in the bushes. Id. at 61-62. He was drinking some liquor and others were smoking marijuana while they drove around and eventually went to a neighborhood in River Rouge. Id. at 64. A white man (Shields) got into the van and they drove away. Id. at 65. The music was loud, but Fowler heard some “loudness” from the rear of the van. When he looked back, he saw Shields running up to grab the steering wheel, and then he heard a gunshot. Id. at 66. Petitioner had the gun. Id. at 67. Broadnax hopped out of the van while it was still rolling and Shields fell out of the van. Id. at 67-68. No one else had any weapons. Id. at 68. They drove away, parked the van, and ran. Id. at 69. He and Crawford went to Crawford's house. Id. Fowler went to the police station voluntarily and gave a statement the next day. While he was in lockup, he heard Petitioner telling Bouie to say it was self-defense. Id. at 71.

         Brandon Crawford did not appear for trial. After hearing from a police officer assigned to the case, the trial court ruled that the prosecution exercised due diligence in attempting to produce him and allowed his preliminary examination testimony to be read into the record. 6/22/10 Trial Tr., pp. 5-20. Crawford testified that he went to Fowler's house in the morning on March 2, 2010 and they were picked up in a white van containing Broadnax, Bouie, and Petitioner. 6/24/10 Trial Tr., p. 109-10. They planned to drink alcohol and smoke marijuana. Id. at 111. Petitioner said he had to go “catch a sale” for marijuana and they drove to a neighborhood in River Rouge. Id. at 111-12. A white man (Shields) got into the van. There was an argument over the marijuana between Shields and Petitioner. Crawford then heard Shields “pleading for his life, ” saw Shields move toward the steering wheel, and heard a gunshot. Id. at 114-15. He saw Petitioner with the gun. Id. at 116. Broadnax was so shocked that he hopped out of the van, causing Shields to fall out onto the street. Id. at 119. At this point, they were in Ecorse. Broadnax got back into the van and they drove around the corner, exited the van, and ran away. Id. at 120-22. Crawford and Fowler ran off together to Crawford's house and did not stay with the other men. Id. at 122, 124. Crawford went to the police station the next day and gave a statement. Id. at 127-28.

         Petitioner testified in his own defense at trial. He acknowledged that he was friends with Broadnax, Bouie, Crawford, and Fowler and was acquainted with Thornton. Id. at 162-63. He was at the gas station with Bouie in the morning on March 2, 2010 when Broadnax picked them up in his white van. Id. at 164-65. He said that they always drink, smoke marijuana, and “catch sales” in the van. Id. at 165. As they were getting in the van, Broadnax received a call about a drug deal. They drove to a house in River Rouge. Thornton came out and told Broadnax that he sold Shields a gun and Shields was trying to sell him a cell phone. Id. at 166-67. Shields got into the van. Broadnax showed him the marijuana and there was a dispute about its quantity. Id. at 170. They left in the van and picked up Fowler and Crawford. Petitioner saw Fowler pass Crawford a gun. Id. at 173. They returned to the house where Shields was to sell him the marijuana. According to Petitioner, no one was drinking or smoking at that time. Id. at 176. Shields came outside and got into the van. Shields pulled out his wallet and asked to see the marijuana. Id. at 177. Broadnax passed the bag of marijuana to Bouie who showed it to Shields. Shields then took out his own bag of marijuana and said, “This is what weed is supposed to look like.” Bouie asked to see Shields' marijuana, Shields gave it to him, and Bouie refused to return it. Id. at 178-79. Shields and Bouie argued and tussled. Id. at 179-80. During the fight, Shields pulled out a gun. Id. at 181. Petitioner then sees Crawford pointing his gun at Shields. Fowler and Bouie were telling Crawford to shoot, but he did not do so. Id. at 182-83. Bouie was holding down Shields' shooting hand, but Shields was trying to raise his gun, so Petitioner grabbed the gun from Crawford and shot Shields just as he turned toward the front of the van. Id. at 184, 187. Shields grabbed the steering wheel and swerved the van. Broadnax stopped the van and hopped out. Shields then either fell out of the van or was thrown out. Id. at 188. Broadnax got back in the van and they drove to an alley. They all exited the van and ran. Id. at 189. Petitioner, Broadnax, and Bouie ran away together, flagged down Julian Agee, and obtained a ride to Bouie's house. Id. at 190. Petitioner testified that Bouie took Shields' wallet and Fowler took both guns. Id. at 191. At Bouie's house, they smoked some marijuana and split the $60 from Shields' wallet between the three of them. Id. at 192. Petitioner was arrested the next day. Id. at 193. Petitioner stipulated that he had a prior felony conviction and was unable to possess a firearm at the time of the shooting.

         At the close of trial, the jury convicted Petitioner of first-degree felony murder, felon in possession of a firearm, and felony firearm.

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals. Appellate counsel raised the following claims: (1) the trial court violated due process by instructing the jury that it could consider his previous, unnamed conviction when evaluating his testimony and failing to give a limiting instruction on the proper use of that evidence, and (2) trial counsel was ineffective for failing to object to the jury instruction. Petitioner raised the following additional claims in a supplemental brief: (3) the trial court erred in ruling that the prosecution exercised due diligence in attempting to locate witness Brandon Crawford and admitting his preliminary examination testimony, and (4) he was denied his right to a jury drawn from a fair cross-section of the community, equal protection, and the effectiveness of counsel where the jury array only included four African-Americans and counsel objected only verbally. The court denied relief on the claims and affirmed his convictions. People v. Hinton, No. 299877, 2012 WL 130423 (Mich. Ct. App. Jan. 17, 2012) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Hinton, 492 Mich. 866, 819 N.W.2d 895 (2012).

         Petitioner subsequently filed a motion for relief from judgment with the state trial court. He raised the following claims: (1) trial counsel was ineffective for failing to investigate an insanity defense and his capacity to stand trial and (2) appellate counsel was ineffective for raising that issue on direct appeal. The trial court denied relief on those claims finding that Petitioner had not shown good cause or actual prejudice under Michigan Court Rule 6.508(D)(3) as the underlying claim lacked merit. People v. Hinton, No. 10-003149-FC (Wayne Co. Cir. Ct. Nov. 25, 2013). Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied for failure to meet the burden of establishing entitlement to relief under Michigan Court Rule 6.508(D). The court specifically cited Michigan Court Rule 6.508(D)(3)(a) and ruled that Petitioner alleged grounds for relief that could have been raised previously and that he failed to establish good cause for failing to do so. People v. Hinton, No. 320097 (Mich. Ct. App. March 18, 2014). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied for failure to meet the burden of establishing entitlement to relief under Michigan Court Rule 6.508(D). People v. Hinton, 497 Mich. 888, 854 N.W.2d 733 (2014).

         Petitioner thereafter filed his federal habeas petition raising the following claims:

I. The trial court abused its discretion in ruling that the prosecution had shown due diligence in attempting to subpoena, locate and produce Brandon Crawford, and permitting his prior recorded testimony to be read to the jury under MRE 804(A)(5), thus denying Petitioner his state and federal constitutional rights to confrontation.
II. He was denied his constitutional rights to due process of law and a fair trial when the trial judge failed to give the jury a curative or limiting instruction on the use of a prior conviction, the relevance of which was only for consideration of the felon in possession of a firearm charge against him, and actually gave a standard instruction advising the jury that it could consider the conviction in evaluating his testimony, despite the fact that his attorney did not object to the error.
III. He was denied his federal and state constitutional right to (1) an impartial jury drawn from a fair cross-section of the community, (2) equal protection of the law, and (3) the effective assistance of counsel, where there were four African-American persons in the array from which his jury was selected and counsel only objected verbally; he therefore is entitled to an evidentiary hearing to support his claims.
IV. He was denied his state and federal constitutional right to the effective assistance of counsel where defense counsel failed to adequately investigate and pursue his mental illness status prior to trial.
V. Petitioner was denied his right to effective appellate counsel when his appellate counsel failed to raise the prior issue on direct appeal.

         Respondent has filed an answer to the petition contending that it should be Petitioner has filed a reply to that answer.

         III. Standard of Review

         The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed his habeas petition after the AEDPA's effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:

         An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(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) (1996).

         “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 [that] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per v. Cone, 535 U.S. 685, 694 (2002).

         “[T]he ‘unreasonable application' prong of § 2254(d)(1) 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); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable, ' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been ‘objectively unreasonable.'” Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' and ‘demands that state-court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

         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) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. In order to obtain habeas relief in federal court, a state prisoner must show that the state court's rejection of his 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.; see also White v. Woodall, U.S., 134 S.Ct. 1697, 1702 (2014). Federal judges “are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Woods v. Donald, U.S., 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. Woods v. Etherton, ___ U.S. ___, 136 S.Ct. 1149, 1152 (2016).

         Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held on numerous occasions that it is not ‘an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71-72. Section 2254(d) “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.'” Harrington, 562 U.S. at 100. Furthermore, it “does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16.

         The requirements of clearly established law are to be determined solely by Supreme Court precedent. Therefore, “circuit precedent does not constitute ‘clearly established Federal law as determined by the Supreme Court'” and it cannot provide the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam); see also Lopez v. Smith, ___ U.S. ___ 135 S.Ct. 1, 2 (2014) (per curiam). The decisions of lower federal courts, however, may be useful in assessing the reasonableness of the state court's resolution of an issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F.Supp. 354, 359 (E.D. Mich. 2002).

         A state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Habeas review is ‚Äúlimited to the record that ...


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