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Bass v. Kowalski

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

April 13, 2018

JESHKAIF DOMINIQUE BASS, Petitioner,
v.
JACK KOWALSKI, Respondent.

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Discussion

         I. Factual allegations

         Petitioner Jeshkaif Dominique Bass is incarcerated with the Michigan Department of Corrections at the Earnest C. Brooks Correctional Facility (LRF) in Muskegon County, Michigan. On May 8, 2015, a Muskegon County Circuit Court jury found Petitioner guilty to one count of assault with intent to murder, Mich. Comp. Laws § 750.83, one count of being a felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and two counts of possessing a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. On June 10, 2015, the trial court sentenced Petitioner to imprisonment for 27 to 49 years for the assault conviction, 1 to 20 years for the felon-in-possession conviction, and 2 years for each of the felony-firearm convictions.

         On February 26, 2018, Petitioner filed his habeas corpus petition. Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner placed his petition in the prison mailing system on February 26, 2018. (Pet., ECF No. 1, PageID.13.)

         The petition raises two grounds for relief, as follows:

I. THE TRIAL COURT DEPRIVE[D] [PETITIONER] OF HIS CONSTITUTIONAL RIGHT TO A TRIAL BY AN IMPARTIAL JURY WHERE IT PERMITTED THE PROSECUTION TO RETROACTIVELY USE A PEREMPTORY CHALLENGE AGAINST A JUROR WHO APPEARED SYMPATHETIC TO THE DEFENSE, AFTER THE STATE HAD BEGUN TO PUT ON EVIDENCE. ACCORDINGLY [PETITIONER] MUST [] BE GRANTED A NEW TRIAL.
II. THE TRIAL COURT VIOLATED [PETITIONER'S] CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESS AGAINST HIM IN A CRIMINAL PROCEEDING WHERE IT IMPERMISSIBLY DETERMINED A WITNESS TO BE UNAVAILABLE AND ADMITTED PRELIMINARY EXAMINATION TESTIMONY TO BE READ TO THE JURY BY A PROSECUTOR.

(Pet., ECF No.1-2, PageID.71, 75.)

         A. Background Facts

         The Michigan Court of Appeals summarized the relevant background facts, which are not disputed by Petitioner:

         This case arises from an altercation between defendant and the victim, Steven Bailey. Defendant produced a handgun during an argument and shot Bailey non-fatally. Numerous witnesses testified to having witnessed the altercation. Two witnesses testified to seeing defendant fire the gun.

On the morning of the second day of trial, Juror Two indicated to the court clerk that he had had a “change of heart.” The trial court spoke to the juror outside the presence of the rest of the jury. The juror stated that he was a member of the Jehovah's Witness faith and that he had religious or moral concerns about sitting in judgment over defendant. The prosecution asked that the juror be excused. Defense counsel expressed some concerns about a mistrial if another juror were to be excused later in the trial, but ultimately stated, “[b]eyond that I would leave it to the Court's discretion.” The trial court excused the juror and the trial continued with 12 jurors (thus, with no alternate jurors remaining). On that same day, the trial court received information regarding another juror experiencing emotional issues. According to Aron McConaughy, a deputy with the Muskegon County Sheriff's Department, he heard someone crying in the parking lot during the trial's lunch break. McConaughy testified that, upon further inspection, he realized that it was a juror. McConaughy stated that when he asked the juror what was wrong, she explained that her husband had died eight months before and that she was feeling “emotionally distraught.” McConaughy testified that the juror indicated that she did not want to discuss the issue with him further and that she had not approached him directly to talk. The trial court did not call the juror into the courtroom to inquire about this incident and proceeded with the trial.
At trial, the prosecution moved to introduce the preliminary examination testimony of Lameke Strickland, the victim's sister, who had testified at the preliminary examination hearing that she had seen defendant fire the gun. The prosecution argued that Strickland was an unavailable witness whose prior testimony was admissible under MRE 804(b)(1). In support of its argument that it had used due diligence in attempting to procure Strickland to testify at trial, the prosecution offered the testimony of two police officers, John Holtz of the Muskegon County Sheriff's Department and Steven Winston of the Muskegon Heights Police Department. Holtz testified that he had attempted without success to serve Strickland with a subpoena by attempting to locate her at her last known address, by searching various databases and visiting the other addresses associated with her name, and by speaking with several members of her family. Holtz testified that he had performed all of his searches using the surname “Bailey, ” and did not search using the surname “Strickland, ” because that name was not on the subpoena.
Winston testified that he checked a database for Strickland using both of the surnames. Winston also contacted Strickland's mother, who told him that Strickland was out of town and would not be back for several weeks, although she would not reveal where Strickland was. The trial court found that the prosecution had shown due diligence, found Strickland unavailable, and allowed her preliminary examination testimony to be read for the jury.

(Mich. Ct. App. Op., ECF No. 1-1, PageID.28-29 (footnote omitted).)

         B. ...


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