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Reid v. Balcarcel

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

April 27, 2018

DEVONTE REID, Petitioner,
v.
ERICK BALCARCEL, [1] Respondent.

          OPINION AND ORDER DENYING (1) THE PETITION FOR A WRIT OF HABEAS CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3) LEAVE TO APPEAL IN FORMA PAUPERIS

          John Corbett O'Meara United States District Judge

         Devonte Reid, (“petitioner”), presently incarcerated at the St. Louis Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed through his attorneys, Freedman Herskovic, PLC., petitioner challenges his conviction of second-degree murder as to Tim Baker, M.C.L.A. § 750.317, two counts of assault with intent to murder as to Remecoe Baker and Shadrekis Jackson, M.C.L.A. § 750.83, and felony-firearm, M.C.L.A. § 750.227b. For the reasons stated below, the application for a writ of habeas corpus is DENIED WITH PREJUDICE.

         I. BACKGROUND

         Petitioner was convicted of the above offenses following a jury trial in the Genesee County Circuit Court. He was tried together with codefendants Latrell Demetrius Windom, and Quentin Lamar Green, but in front of separate juries. 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).

This case arises out of a fatal shooting that occurred on December 12, 2010, at the home of Tim Baker (Baker) on West Ridgeway in Flint. Remecoe Baker (Remecoe), Baker's nephew, did not have to report to work at McDonald's that day because there was a snow storm. Remecoe picked up his girlfriend, Jackson, and took her to Baker's house. Remecoe and Jackson watched a movie on his uncle's couch and both fell asleep.
Remecoe was woken up by a knock at the door and heard “a bunch of footsteps just running-seem like running in the house.” Remecoe was shot less than ten seconds later in the hand and arm. He passed out and then woke up again when he heard a gunshot outside. Jackson was lying on the floor and had also been shot. Remecoe could not say how many individuals came in and could only describe one as wearing a red hoodie.
Jackson was woken up when she heard Baker's cell phone ring. She fell back to sleep and then heard a knock on the door. Baker opened the door and let someone in. The two men were standing at the door when “some more people came ... they just opened the door and walked in.” A man said “don't move and they just started shooting.” Jackson was shot in the leg and neck and rolled from the couch to the floor. The shooting moved to the outside of the house. Jackson could not move; she played dead so that they would not do something else to her. After the shooting outside stopped, several individuals came back into the house. Jackson thought there were four individuals. All of the individuals were dressed in black, except for one man who was in a red hoodie. She heard the man in the red hoodie say “I just killed this b* * * *.” She also heard them talking about looking for something. They rummaged through the house and they also checked the basement.
Remecoe had run for cover under the basement stairs. At least two individuals came back into the house and into the basement. One voice said to “go back upstairs and check, finish checking.” The individual in the red hoodie was trying to get out the back door. Remecoe could hear people upstairs “tearing stuff up and one saying I didn't try to shoot-shoot to kill this b* * * *.”
Shelly Conway lived next door to Baker. On the night of the shooting, she noticed a vehicle parked in front of Baker's house. She heard gunshots and then Baker crawled to her house. He had been shot multiple times. Once he was safely in her home, Conway called 911. At first Baker was able to talk, but then he lost consciousness. Conway testified that “[t]he only thing I seen was at that car it was a young fella, um getting in the driver side and he took off ...” Conway saw the man get into the car, but was not sure whether she saw him shooting. He was wearing dark clothing-red or gray. In a statement to police, Conway stated that the man had a gun. The man was yelling something, but she could not discern what he was saying. Conway “can't put a face to-to no one in particular that night.”
Benny Goodman testified that he lived across the street from Baker. On the night of the shooting, Goodman was playing video games when he heard gunshots. Shootings in the neighborhood were a matter of course, so he was not particularly alarmed. Goodman first looked out the window and then went outside to get a better view. Goodman observed Baker and three other individuals “exchanging gun fire.” Baker was standing on his porch and the other individuals were in Baker's driveway. Goodman also observed a car that “took off when I first looked out the window.” It appeared to be a black Grand Am and the driver was wearing dark clothing. The three other individuals were running from Baker's house to the driveway. They were also dressed in dark clothing and one was wearing a distinctive red hoodie. Goodman observed four guns-one in Baker's hands and one in each of the three men's hands. He could not say whether the driver of the vehicle also had a gun. Goodman watched as Baker fell to the ground and crawled to a neighbor's house. Two of the individuals went back into Baker's house and the one wearing the red hoodie ran around the side of the house. Goodman observed the individual in the red hoodie after he was taken into police custody.
Officers had received a dispatch to the home on Ridgeway in response to the shooting. Defendants Green and Windom were apprehended after a foot chase. Defendant Reid was found under an overhang approximately three houses down the street from Baker's home. None of the defendants had a gun in their possession at the time of their arrests.
Corey Bracey-Bradley (sic) testified that he was the driver that day and was testifying against his co-defendants as part of a plea agreement with the prosecutor. On the night in question, Bracey-Bradley (sic) met up with Green and Windom. Bracey-Bradley (sic) was driving his girlfriend's grandmother's navy blue Impala. All three men were wearing black. They drank some cough syrup and smoked “a couple blunts” of “weed.” Green suggested they buy more weed so “we got to callin' people and see if we could find some weed.” Green found someone “on Ridgeway.”
Bracey-Bradley (sic) testified that, even though Green had money “our plans wasn't to buy no weed.” Instead, they were planning to “rob the weed house.” They stopped at the store where Green bought cigarettes and then picked up defendant Reid, who was wearing a red hoodie. “Everybody” was armed but Bracey-Bradley (sic) was not sure “who had what gun.” Bracey-Bradley (sic) had his own gun-a .40 caliber-and Green had two guns, one of which he handed to Reid when they arrived at the weed house. Bracey-Bradley (sic) acknowledged that Reid got into the car after the plans to rob Baker were finalized, but that Green handed Reid a gun and said “we're gonna go hit this lick.”
Bracey-Bradley (sic) testified that once they got to the home on Ridgeway, the plan was to “get the door open.” Bracey-Bradley (sic) and Reid went to the door first. The plan was for Windom and Green to come in behind them after the door was open. A man with dreadlocks answered the door. Bracey-Bradley (sic) explained that “after he seen the other people coming in behind us, he tried to grab me by the throat” and scratched Bracey-Bradley's (sic) neck. Bracey-Bradley (sic) “swiped [Baker's] hands down and took off.” Windom and Green came in and shouted “nobody move.” Bracey-Bradley (sic) heard gunshots as he was running back to the car, which was parked right in front of the house. He denied firing any shots.
In terms of physical evidence found while tracking the footprints in the snow, officers retrieved a black stocking knit cap, black ski mask, part of a sleeve or jacket cuff, and a .45 caliber gun. The physical evidence found in the home consisted of four bullets in the front door and eight spent .40 caliber shell casings from the living room floor. Clothes were scattered, dresser drawers were open, and the stove had been pulled away from the wall. Officers did not find shell casings outside because of the significant snowfall.
Testing of the .45 caliber gun found in the snow revealed that there were eleven live rounds and one bullet was missing. No usable fingerprints were recovered from the gun, but DNA evidence was compared to those of all the defendants. Baker and Reid were excluded as donors, but the known reference samples of Green, Windom and Bracey-Bradley(sic) could not be excluded as possible donors to the DNA. A .45 caliber bullet was taken from Baker's body in the autopsy, but it was not clear whether it came from the gun that was found. Another bullet from the victim came from a .40 caliber gun. Based on testing, the medical examiner concluded that over three handguns were used-at least one .45 caliber and at least two .40 caliber.
The officer in charge of the case, Sergeant Mike Angus, had the opportunity to interview each of the three defendants. Each of the defendants' stories changed numerous times. Green gave a written statement admitting that they went to the home on Ridgeway to buy weed. Green denied knowing that the plan was to rob Baker, though he knew that Reid was armed with a .40 caliber gun. Green initially stayed in the car, but then went to the front door to see what was taking so long. He got part way there when he heard gunshots. After the shooting, Green went back into the house with Reid and Windom. Reid nudged Jackson and said “I just shot this b* * * *.” Green ran in the backyard when police arrived. He denied ever having a weapon that day.
Like Green, Reid changed his story during the interviews. Initially, Reid denied knowing anything about the shooting. Later, Reid revised his statement. He could not remember who was driving, but described an Impala. The men were originally planning to buy a pound of marijuana, which would have cost approximately $1, 000. Reid told Angus that he, Bracey-Bradley (sic) and Windom approached the house. Reid went to use the bathroom and when he came out the homeowner got into a “tussle” with the driver. Gunfire ensued and they all ran out the front door. Angus testified about a letter that Reid wrote to Windom while awaiting trial. It suggested that Windom change his statement.
In Windom's statement to Angus, he indicated that he was with Green on foot at the time of the shooting. They were going to “get some weed.” At some point, an individual wearing red joined them, whom he identified as “Tayo” (Reid). They were on Ridgeway when Baker yelled out to them from his porch, asking if they wanted to buy some weed. When they said “no, ” Baker became belligerent and began to shoot at them. Initially, Windom told Angus that only Reid had a gun. Windom later admitted that he had a .45 caliber handgun. In a different version, Windom told Angus that while Green was planning on buying marijuana, Reid said he was going to “take” it. Windom was not sure if Reid was serious. The plan was for Reid and Green to approach the homeowner and Windom would wait outside. Reid and the homeowner started arguing once inside the house. Windom stepped into the house to see what was going on. The homeowner fired a gun and Reid fired back. Windom admitted to shooting one round out of his .45. They went back into the house after the shooting to look for people or weed in the basement. Angus told Windom that a gun was recovered near the scene. Windom admitted it was his and also indicated that Green's DNA might be found on it because Green also handled the gun. At no time in any versions of events did Windom mention Bracey-Bradley (sic), although he did reference an Impala.

People v. Reid, No. 312091, 2014 WL 1614524, at *1-4 (Mich. Ct. App. Apr. 22, 2014).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 497 Mich. 889, 854 N.W.2d 883 (2014).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. [a] The trial court violated [petitioner's] due process rights by requiring [petitioner] to appear in shackles at trial; [b] alternatively, defense trial counsel was ...

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