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Clark v. Brewer

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

April 24, 2018

DWAYNE LAVON CLARK, Petitioner,
v.
SHAWN BREWER, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) GRANTING CERTIFICATE OF APPEALABILITY WITH RESPECT TO PETITIONER'S SECOND CLAIM, AND (3) DENYING CERTIFICATE OF APPEALABILITY WITH RESPECT TO PETITIONER'S OTHER CLAIMS

          Hon. Victoria A. Roberts Judge

         This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254. A jury convicted Dwayne Lavon Clark in two consolidated cases in the Wayne Circuit Court of three counts of armed robbery, Mich. Comp. Laws § 750.529, two counts of carjacking, Mich. Comp. Laws § 750.529a, two counts of carrying a concealed weapon, Mich. Comp. Laws § 750.227, felon-in-possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of felony (felony-firearm), Mich. Comp. Laws § 750.227b. The Court sentenced Petitioner as a fourth-time habitual felony offender to sentences, including 35-to-60 year terms for the armed robbery and carjacking convictions, and a mandatory 2-year consecutive term for the felony-firearm conviction.

         Clark raises five claims: (1) the trial court erroneously consolidated Petitioner's two cases for trial, (2) Petitioner was denied his right to present a defense when the trial court ruled that Petitioner could not present an alibi witness as a result of his failure to file a timely notice of alibi, (3) Petitioner was denied his right to a fair and impartial jury where a member of the jury was employed as a prison administrator who was involved in previous disciplinary actions against Clark, (4) Petitioner was denied his right to a public trial where the courtroom was closed after jury selection, and (5) insufficient evidence was presented at trial to prove beyond a reasonable doubt that Petitioner was guilty of one of the offenses under an aiding and abetting theory.

         The Court finds that the state court adjudication of Petitioner's claims complied with the requirements of clearly established Supreme Court law. Therefore, the petition will be denied. The Court will, however, grant a certificate of appealability with respect to Petitioner's second claim and deny a certificate of appealability with respect to others.

         I. Background

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

These cases arise from two carjacking incidents occurring in Detroit, Michigan on September 30, 2012. Defendant was tried for offenses relating to both incidents in a single trial before a single jury.
A. DOCKET NO. 316547
On September 30, 2012, at approximately 2:45 a.m., Megan Farris, Nicole McDougal, and Lakesha Payton were in Farris's automobile near in [sic] Detroit. Farris testified that she recalled that McDougal was driving, Farris was in the front passenger's seat, and Payton was in the back seat. They pulled into a driveway of a house where they were dropping off McDougal. McDougal got out of the car and walked toward the passenger's side, while Farris got out of the car and walked toward the driver's side. Payton was getting out of the back seat and getting into the front passenger's seat. Farris had shut the driver's door when a man, whom she later identified as co-defendant Tracy Wells, came to the door, opened it, pointed a gun toward Farris's head, and told her to get out of the car and leave her things. There was also a man on the other side of the vehicle, but Farris did not see him. Farris heard McDougal say that the other man also had a gun, but Farris did not see it. Farris got out of the vehicle, dropped her phone on the ground, and left her purse in the vehicle. Farris saw the man on the other side of the vehicle patting down Payton. Wells then got into the vehicle and started backing up, almost striking Payton; the other man pulled Payton out of the way of the vehicle. The vehicle drove off. Farris later identified Wells in a live lineup.
McDougal testified that she recalled Farris being in the back seat and Payton being in the front passenger's seat when they pulled into the driveway. McDougal got out of the car and began to walk behind the vehicle. She heard someone say “drop everything you got and get out the car.” She turned around, at which point someone else approached her and said, “turn around and drop everything.” The person had a black gun pointed at her. McDougal dropped her cell phone, keys, and wallet. The man picked up her cell phone and wallet, but not the keys. McDougal saw the vehicle backing up quickly and heard the man that was near her say, “don't hit her.” McDougal then yelled, “please don't hit her with the truck, ” referring to Payton. The man pulled Payton out of the way and then jumped into the vehicle. McDougal did not see either man's face.
Payton testified that she recalled being in the back seat of the vehicle and that Farris was in the front seat. She testified that Wells opened Farris's door and pointed a gun at her, and that she saw another man behind McDougal. As Payton was walking toward the back of the vehicle, the man on her side of the vehicle told her to stop and patted her down. Payton identified that man as defendant. Payton saw that defendant had a black gun, which she believed was an automatic, when Wells was backing up the vehicle and defendant pulled her back. Payton testified that she saw defendant's face when he got into the vehicle. Payton later identified defendant in a photographic lineup. Payton admitted that at a live lineup she stated that Wells was the person who was behind McDougal and who patted down Payton. Payton testified that she told a detective that she wanted to correct that statement. Officer Mark Burke, assigned to the Commercial Auto Theft Section (CATS) of the Detroit Police Department, also testified that Payton identified Wells at a live lineup, but testified that she never indicated she wanted to change her statement.
B. DOCKET NO. 316546
On September 30, 2012, at approximately 11:50 p.m., Christina Ringo and Mohamed Qatanani drove to a party store in Detroit. They were in a gray Malibu that Ringo was renting because she had been in an automobile accident. Qatanani was driving and parked directly in front of the store. He then got out of the vehicle and went into the store. Another gray Malibu pulled up and parked on the left side of Ringo's vehicle. Ringo's car was facing the store, while the other Malibu was facing the street. Ringo testified that there were “a bunch of guys” in the other Malibu. The driver of the other Malibu got out of the vehicle, took a few puffs of a cigarette, and threw the cigarette down. Ringo testified that the man in the passenger's seat, whom Ringo identified as defendant, then moved over to the driver's seat of that vehicle. The driver looked as if he was going into the store, but then entered the driver's side of Ringo's vehicle. He turned to Ringo, put a black gun to Ringo's stomach, and said, “get the f*** out the car, and give me your purse.” Ringo grabbed her purse and tried to get out of the car, but the man grabbed her and put the gun to her face. He said, “I'm gonna tell you one more time, get the f*** out of the car, and leave your mother f***in' purse.” The man snatched Ringo's purse and pushed her out of the car. The man then drove away and the other Malibu followed. At a live lineup, Ringo later identified the man who took her purse and got into her vehicle as Wells. Ringo identified defendant in a photographic lineup as the person who drove off in the other Malibu.
Qatanani returned to the party store the day after the incident and one of the owners, Rob, showed him a security camera video on his computer. According to Qatanani, the video showed a gray Malibu parked next to Ringo's car and also showed the driver get out and enter Ringo's car. The video showed the man in the passenger's seat move over into the driver's seat. Qatanani obtained a copy of the video on flash drive, but was unable to get the video to play. Qatanani went back to the store and the owner played the video again. Qatanani was unable to locate the flash drive at the time of trial. Officer Lewis Jackson, Jr., also assigned to CATS, testified that he visited the party store two weeks after the incident and he was told by a manager of the store that the video was no longer available because it was taped over after a certain number of days.
Robert Sokana, one of the operators of the party store, testified that he viewed the security video the day of the incident and gave Qatanani a copy of the video the next day. Sokana testified that the video showed “more than two, ” possibly “three or four” men who had arrived in the other Malibu go in and out of the store a few times before the carjacking. At one point, they drove across the street, then returned and did a U-turn in the parking lot before parking next to Ringo's vehicle. According to Sokana, the vehicle that the men arrived in left first and Ringo's vehicle followed.
C. FACTS IN COMMON TO BOTH DOCKETS
Keyona Harris testified that defendant was the father of her child. The police came to her house at 14828 Northlawn on October 5, 2012 with a search warrant. Defendant did not live there, but she told police that defendant had been staying with her. Harris did not own a gun, but a gun was found in her home that day. Harris testified that defendant would come to her house with a man named either Rah-Rah or Ron Ron, and Wells. Sergeant Robert Wellman of CATS executed the search warrant at that address. Wellman believed the home to be defendant's residence. The officers discovered a black .357 revolver in the closet of the home. The gun was not submitted for fingerprint analysis. Defendant did not testify at trial. The parties stipulated that defendant had been previously convicted of a felony and was ineligible to own a firearm.

People v. Clark, No. 316546; 316547, 2015 WL 248659, at *1-3 (Mich. Ct. App. Jan. 20, 2015).

         Petitioner filed a direct appeal from both convictions. His appellate counsel filed two appellate briefs, one raising what now form all five of his habeas claims, and the other raising the same claims but omitting the sufficiency of the evidence claim. The Michigan Court of Appeals consolidated the appeals and affirmed Petitioner's convictions in an unpublished opinion. Id. Petitioner filed two applications for leave to appeal in the Michigan Supreme Court, raising the same claims. The Michigan Supreme Court denied the application because it was not persuaded that the question presented should be reviewed. People v. Nichols, 858 N.W.2d 456 (Mich. 2015).

         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) (per curiam), 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.” Richter, 562 U.S. at 103 (internal quotation omitted).

         III. Analysis

         A. Joinder of Cases for Trial

         Petitioner's first claim asserts that the trial court erroneously consolidated his two cases for trial. He claims that the consolidation unfairly allowed the jury to hear the testimony of unrelated victims describing offenses occurring under different circumstances. Petitioner asserts that the prosecution did not present any evidence that the two crimes were part of a series of connected acts, and the improper consolidation allowed the prosecutor to show “guilt by pattern of behavior.” Dkt. 1, Brief at 17.

         After discussing state law rules governing joinder of cases, the Michigan Court of Appeals found that the trial court did not abuse its discretion in joining the two cases for trial:

Here, the trial court ruled that defendant's cases could be tried together because, although they involved “two separate incidents, ” they were “close enough in time involving the same circumstance.” The trial court also ruled that there would not be separate juries and stated that the cases were “part of like a similar sequence of events.” The trial court subsequently reaffirmed its ruling, stating “we have the same people doing something similar.”
The trial court did not violate Michigan Court Rule 6.120 by consolidating defendant's cases because the offenses were “related.” Mich. Ct. R. 6.120(B)(1). The record evidence supports the conclusion that defendant was involved in a scheme to perpetrate carjackings and armed robberies on female victims at night. Similar to the offenses in Williams, 483 Mich. at 234-235, the offenses in this case were related not merely because they involved similar conduct, but because they were “a series of acts constituting parts of a single scheme or plan.” Rule 6.120(B)(1)(c). The scheme or plan was evidenced by the same co-perpetrator in each case, similar victims, similar circumstances, and the fact that the acts occurred on the same day.

Clark, 2015 WL 248659, at *4.

         The claim is not cognizable on federal habeas review because improper joinder does not, by itself, violate clearly established Supreme Court law. In United States v. Lane, the Supreme Court suggested that misjoinder could rise “to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.” 474 U.S. 438, 446, n. 8 (1986). Nevertheless, the Sixth Circuit noted that this language in Lane concerning a trial court's failure to sever criminal charges is dicta and did not constitute clearly established federal law. See Mayfield v. Morrow, 528 F. App'x. 538, 541-42 (6th Cir. 2013). Because “‘clearly established Federal law' for purposes of § 2254(d)(1) refers to ‘the holdings, as opposed to the dicta, of [the Supreme] Court's decisions[.], '” Id. (quoting Williams, 529 U.S. at 412), the Sixth Circuit concluded that a federal habeas petitioner could not rely on Lane to obtain habeas relief on his claim that he had been deprived of his right to a fair trial when the judge denied his motion to sever different rape charges. Id. Simply stated, there are no “Supreme Court cases holding that a defendant in a criminal case has a constitutional right to a separate trial on each of the charges against him.” Rodriguez v. Jones, 625 F.Supp.2d 552, 560-61 (E.D. Mich. 2009). Petitioner's citation to lower federal court cases concerning the erroneous admission of other bad acts evidence do not apply to this case where all the evidence pertained to one or both of the charged offenses.

         Because Petitioner's claim cannot be supported by clearly established Supreme Court law, the Michigan Court of Appeals' rejection of Petitioner's improper joinder claim is insulated from federal habeas review under § 2254(d). See Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey v. ...


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