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Ray v. Bauman

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

April 13, 2018

JOHN HENRY RAY, Petitioner,
CATHERINE S. BAUMAN, Warden, Alger Correctional Facility, Respondent.



         Petitioner John Henry Ray is serving a life sentence for first-degree murder. He alleged in his habeas corpus petition, among many other things, that his Sixth Amendment rights were abridged when his lawyer was excluded from a critical stage of his state prosecution. His habeas corpus case returns to this Court following a remand by the court of appeals to consider two main issues: “(1) whether there was an adjudication on the merits as to Ray's [United States v.] Cronic[, 466 U.S. 648 (1984)] claim, and (2) whether Ray is entitled to relief [on that claim] under the appropriate standard of review.” Ray v. Maclaren, 655 Fed.Appx. 301, 311 (6th Cir. 2016). The court also vacated and remanded for reconsideration this Court's decision denying relief on Ray's claim that his appellate attorney did not provide constitutionally adequate representation. Id. at 312. While those questions were under consideration, the petitioner filed a motion for relief from judgment concerning his claim under Brady v. Maryland, 373 U.S. 83 (1963), based on a newly disclosed unsealed transcript of the in camera conference between the state trial judge and the prosecutor, which did not include defense counsel, and in which it was revealed that one of the State's principal witnesses against the petitioner had been employed by the police as a paid confidential informant, before and after the murders of which the petitioner was convicted. The state attorney general has not responded to that motion. The parties presented supplemental briefs, and the Court heard oral argument.

         With the perspective furnished by the court of appeals, and the revelations from the unsealed state transcript (which the attorney general failed to file with the initial batch of Rule 5 materials), it is apparent that the petitioner raised his Cronic claim at an appropriate time in the state court, but the court evidently misunderstood the argument, and therefore never addressed it on the merits. This Court, therefore, must give it fresh review, and not apply the highly deferential standard prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The in camera conference was a critical stage of the state criminal proceedings. The petitioner's attorney was not allowed to attend. His appellate attorney's failure to raise that issue on direct appeal amounted to deficient performance, which prejudiced the petitioner. And the information revealed at that conference was exculpatory and material to the defense. The state prosecutor's failure to disclose that information violated clearly established constitutional requirements under Supreme Court jurisprudence, and that lapse undermines confidence in the outcome of the case. These flaws entitle Ray to a new trial, and, failing that, to release from state custody.



         The parties are familiar with the facts, but they are repeated here as summarized in earlier opinions. John Henry Ray was convicted along with two codefendants, Juanita Michelle-Elam and Jairus Andrae Perkins, following a jury trial in the Wayne County, Michigan circuit court. Ray was convicted of two counts of second-degree murder, two counts of first-degree felony murder, one count of killing an unborn child, two counts of assault with intent to do great bodily harm less than murder, two counts of armed robbery, one count of first-degree home invasion, one count of felon in possession of a firearm, and one count of possession of a firearm while committing a felony. He was sentenced to life imprisonment without parole for the first-degree murder convictions and lesser prison terms for the other convictions.

         The facts of the case were summarized briefly by the Michigan Court of Appeals on the three defendants' joint direct appeal as follows:

Defendant Perkins, aged twenty-one, his girlfriend, defendant Elam, aged twenty-eight, and defendant Ray, aged thirty-eight, were involved in the killing of a man, Deshone Douglas Moore, aged twenty-eight, and a pregnant woman, Amanda Zarbaugh, aged twenty, and her unborn child, during the course of an armed robbery at Zarbaugh's residence in Romulus, Michigan in July 2004. Defendant Elam was already in the house with the two victims when defendants Perkins and Ray arrived with guns. Defendant Perkins and Ray encountered Christopher Straughter and Ebonie Booker exiting the house when they arrived. Defendant Perkins ran into the house just prior to fatal shots being heard, and defendant Ray stayed outside and held the witnesses at gunpoint.

People v. Ray, No. 260161, 2006 WL 1330320, at *2 (Mich. Ct. App. May 16, 2006).

The Sixth Circuit added details, which were excerpted from the state trial court's opinion denying the petitioner's post-conviction motion for relief from judgment:
This case arises from the planned armed robbery of Christopher Straughter by Juanita Elam, her boyfriend Jarius Perkins and friend John Ray. Straughter was a robbery target because the defendants believed he was a dope dealer who carried large sums of cash.
Defendant Ray (twenty one years old) and two co-defendants Elam (twenty eight) and Perkins (thirty eight) went to Amanda Zarbaugh's house to rob Straughter. Zarbaugh was pregnant with an unborn child and was in the house with Deshone D. Moore.
Elam knew both Straughter and Zarbaugh. Elam went to Zarbaugh's alone. Elam enticed Straughter via phone to come to Zarbaugh's house under the guise that she wanted to buy drugs and to talk business with him. Elam became insistent that Straughter come to Zarbaugh's house. She said she would remain there until Straughter arrived.
Elam then called Perkins' cell phone. The inference from that call is that Elam alerted Perkins and Ray to come to the house.
Straughter came to the house and entered with Ebonie Booker. They spoke with Elam. Elam also spoke with Moore, who was in the house with Zarbaugh. Straughter and Booker headed out the front door. They encountered Perkins and Ray, who were waiting outside the house with guns. Perkins and Ray rushed Straughter and Booker with drawn handguns. Perkins and Ray robbed Straughter and Booker at gunpoint and forced them to the ground.
Ray stood over Straughter and Booker at gunpoint outside the house while Perkins went into the house. Elam, Zarbaugh and Moore were still inside the house. Shots were fired. Perkins and Elam came out of the house.
Zarbaugh and Moore were discovered executed, as was Zarbaugh's unborn child. Cash was also taken.
Straughter and Booker were threatened as they lay on the ground. They overheard discussions about killing them. They got up and ran. Straughter and Booker were shot at, but the guns did not discharge because they were either empty or jammed. Straughter and Booker continued to run from the scene. All three perpetrators, Elam, Ray and Perkins, fled the scene in Perkins' silver Explorer.

Ray v. Maclaren, 655 Fed.Appx. 301, 303 (6th Cir. 2016).

         Ray's defense at trial centered on Straughter's credibility. Ray's attorney pointed out that Straughter had made several inconsistent statements about the incident. Defense counsel acknowledged that Ray was present at the house, but he asserted that Ray never possessed a firearm, there were no shots fired outside the house, and Ray had nothing to do with the robbery or the killings. He argued that Straughter's version was not worthy of belief.

         The jury was unconvinced. The petitioner's convictions were affirmed on direct appeal (although his convictions for second-degree murder were vacated, as duplicative of the first-degree murder convictions), People v. Ray, 2006 WL 1330320, and the state supreme court denied leave to appeal, 477 Mich. 941, 723 N.W.2d 824 (2006) (Table). The petitioner then filed a post-conviction motion for relief from judgment under Michigan Court Rule 6.500, et. seq., which was denied by the trial court. People v. Ray, No. 04-008291-01 (Wayne County Circuit Court April 13, 2009). The Michigan appellate courts denied the petitioner leave to appeal. People v. Ray, No. 295244 (Mich. Ct. App. April 2, 2010); lv. den. 488 Mich. 856, 787 N.W.2d 120 (2010) (Table).


         On March 16, 2011, the petitioner filed a pro se petition for a writ of habeas corpus raising eighteen claims of constitutional error in the state court proceedings. On July 9, 2014, the Court issued an opinion denying the petition, after finding that all of the claims were without merit. However, the Court issued a certificate of appealability as to the seventeenth ground for relief, in which the question raised was “[w]hether the prisoner was deprived of counsel at a critical stage due to ex parte communications between the trial court and prosecutor.” The Sixth Circuit expanded the certificate of appealability to include a claim that the petitioner's appellate counsel was ineffective by failing to raise the Cronic issue on direct appeal. The court of appeals concluded that “the district court committed reversible error [by] failing to determine whether Ray's Cronic claim was adjudicated on the merits before applying AEDPA deference to the state court decision.” Ray, 655 Fed.Appx. at 310.

         The court of appeals noted that, because the resolution of the ineffective assistance claim would depend on resolution of the Cronic claim, it did not reach the merits of the ineffective assistance claim, and it also included that claim within the scope of the remand. Id. at 312 (“[W]e also vacate the district court's denial of habeas relief on Ray's ineffective-assistance-of- appellate-counsel claim, and remand to the district court to consider the claim in light of its resolution of Ray's Cronic claim on remand.”).

         After the case was remanded, and after the parties filed supplemental briefs on the issues noted above, the state trial court granted a motion by the Wayne County prosecutor to unseal the transcript of the in camera conference between the state court trial judge and the prosecutor. Subsequently, based on information revealed in that transcript, Ray filed a motion for relief from judgment as to the denial of his thirteenth claim, in which the question raised was “[w]hether the prosecutor committed misconduct by withholding exculpatory evidence.” The State did not file any response to that motion.


         The State raised certain procedural defenses in its answer to the petition. This Court found no need to address them, because they did not impose a jurisdictional bar and at the time no merit was found in any of the petitioner's eighteen claims. See Ray v. Perry, No. 11-11100, 2014 WL 3555968, at *4 (E.D. Mich. July 9, 2014). The State never challenged that approach on appeal, and never re-asserted those procedural defenses as grounds for affirming this Court's original decision. See Ray v. Maclaren, 655 Fed.Appx. at 305 n.4. Nonetheless, the State still relies on its statute-of-limitations and procedural default defenses, so the Court will address them here.


         AEDPA, which became effective on April 24, 1996, governs this action because the petitioner filed his petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA amended 28 U.S.C. § 2244 to include a one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir. 2003). The statute includes several events that trigger the commencement of the one-year period, but the relevant starting time here is the date Ray's state convictions became final “by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). That date, the parties agree, was February 27, 2007. The petition in this case was not filed (that is, signed and dated, see Williams v. Birkett, 670 F.3d 729, 732 n.1 (6th Cir. 2012) (explaining the “prison mailbox rule”)) until March 14, 2011.

         Ray's main argument that his filing was timely is based on the statutory tolling provision found in 28 U.S.C. § 2244(d)(2), which says that we do not count “[t]he time during which a properly filed application for State post-conviction . . . review . . . is pending.” See Holbrook v. Curtin, 833 F.3d 612, 615 (6th Cir. 2016). When the Court addressed this issue the first time around, the record of Ray's post-conviction filings was “not clear.” Ray v. Perry, 2014 WL 3555968, at *3. Since then, additional Rule 5 materials have shed some light on those state proceedings.

         Ray filed a pro se motion for relief from judgment in the trial court on March 23, 2007, 24 days into the one-year limitations period. The trial judge dismissed the motion without prejudice on June 19, 2007, but then reinstated the petitioner's motion for relief from judgment on February 12, 2008. The State contends that the limitations period was not tolled for the 237 days that elapsed between the dismissal and the reinstatement. Under that view, 261 days had elapsed on the one-year limitations period. According to the State, the petitioner had 104 days remaining after the Michigan Supreme Court denied his post-conviction appeal on September 9, 2010, to file his habeas petition, which calculates to December 23, 2010. The State insists that the March 14, 2011 filing came too late.

         It appears, however, that the post-conviction motion was “dismissed” so that the trial judge could appoint counsel for Ray, and that after a lawyer was appointed, the original motion was reinstated and supplemented. The question presented here is whether the original post-conviction motion remained “pending” during that interim. The Supreme Court has explained that “an application is pending as long as the ordinary state collateral review process is in continuance - i.e., until the completion of that process.” Carey v. Saffold, 536 U.S. 214, 219-20 (2002) (quotations omitted). “In other words, until the application has achieved final resolution through the State's post-conviction procedures, by definition it remains ‘pending.'” Id. at 220.

         The newly-furnished trial court orders show us that the first dismissal “without prejudice” did not terminate the post-conviction motion; it merely suspended it until a lawyer could be appointed for Ray. The first order reads in full:


         Defendant having filed a Motion for Relief from Judgment on March 23, 2007 and having requested counsel be appointed to represent him in this matter;

         Defendant's Motion to Appoint an attorney to represent him in a Motion for Relief from Judgment is granted;

         Defendant's Motion for Relief from Judgment is dismissed without prejudice; and

         IT IS SO ORDERED.

         Order dated June 19, 2007 [ECF Doc. 41-3] (Pg ID 3081-82). The subsequent order reopening the case and allowing appointed counsel to supplement the motion reads:


         Defendant having filed a Motion for appointment of counsel to file a motion for relief from judgment pursuant to MCR 6.500; this court having granted that motion and the State Appellate Defender's Office having been appointed to represent defendant on appeal;

         The attorney for the defendant shall file the motion for relief from judgment and brief in support thereof and the defendant's request that the case be reopened is granted; and

         IT IS SO ORDERED.

         Order dated Feb. 12, 2008 [ECF Doc. No. 41-4] (Pg ID 3083-84).

         These supplemental filings confirm what the Court supposed earlier: that “the state court's ‘dismissal without prejudice' of the first motion was not an adjudication of the motion but was rather an inartfully worded order by the judge to hold the motion in abeyance so that counsel could be appointed.” Ray v. Perry, 2014 WL 3555968, at *3. The order entered next after that plainly stated that “the defendant's request that the case be reopened is granted, ” indicating that the state court viewed the “dismissal without prejudice” not as a conclusion of proceedings on the original motion but as a pause in the proceedings to allow the motion to be reviewed and resubmitted with the assistance of counsel. There would be no logical reason to “reopen” a motion on which proceedings had been concluded by disposition on the merits. Moreover, the caption of the order plainly stated that its effect was “to re-open defendant's pro per 6500 motion and to allow supplement by appointed counsel.” That heading demonstrates without doubt that the state court viewed its action as merely resuming proceedings on the original motion, not on any fresh filing, for the purpose of considering supplements to the motion by appointed counsel.

         The state court proceedings on the original Rule 6.500 motion were “in continuance” during the period from the “dismissal” to the filing of the supplemental motion for relief from judgment. The state court's orders indicate that the motion had not “achieved final resolution through the State's post-conviction procedures” when it was held in abeyance to allow counsel to be engaged; “by definition it remain[ed] ‘pending'” for the entire time until it finally was adjudicated by the state trial court, and, thence, through the pendency of the ensuing appeal, until September 9, 2010. Carey, 536 U.S. at 219-20.

         It is undisputed that Ray's post-conviction motion here was “properly filed.” And Congress has mandated that the time during which the motion remained pending “shall not be counted toward any period of limitation.” 28 U.S.C. §2244(d)(2) (emphasis added).

         The state court finally denied relief on that motion on September 9, 2010, so the period between then and the March 23, 2007 filing date is excluded from the one-year limitation period. The arithmetic tells the rest of the story: only 24 days had run on the one-year clock before the motion was filed, and the petition filed on March 14, 2011, 186 days ...

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