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Dumas v. Mackie

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

May 24, 2018

TERRY DUMAS, Petitioner,
v.
THOMAS MACKIE, 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

          THOMAS L. LUDINGTON United States District Judge

         On August 22, 2016, Petitioner Terry Dumas filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. In the petition, Dumas challenges his convictions for first-degree felony murder, two counts of armed robbery, assault with intent to murder, two counts of torture, two counts of unlawful imprisonment, and possession of a firearm during the commission of a felony. Those convictions came following a joint trial with separate juries with co-defendants Tony Horton and Taywon Williams in the Wayne County Circuit Court. Petitioner was sentenced to life imprisonment without parole on the murder conviction, concurrent terms of 30 to 45 years imprisonment on the armed robbery, assault, and torture convictions, concurrent terms of 10 to 15 years imprisonment on the unlawful imprisonment convictions, and a consecutive term of two years imprisonment on the felony firearm conviction in 2012.

         In his pleadings, Petitioner raises claims concerning the reading of the jury's verdict and the effectiveness of trial counsel. For the reasons set forth, the Court will deny the petition for a writ of habeas corpus. The Court also deny a certificate of appealability and leave to proceed in forma pauperis on appeal.

         I.

         Petitioner's convictions arise from the shooting death of Williams Abrams and the shooting assault of Jeffrey Herron during a robbery that was planned for a drug transaction in Detroit, Michigan on August 10, 2011. As discussed by Petitioner's defense counsel in his brief on appeal, the Michigan Court of Appeals summarized the incident in co-defendant Taywon Williams' appeal case as follows:

[Petitioner's] convictions arise from his participation with six other assailants in a criminal episode to rob Jeffrey Herron and William Abrams during a prearranged drug transaction, which ultimately led to the death of Abrams and the shooting assault of Herron on August 10, 2011, in the city of Detroit. Herron had known [Williams] and codefendants Tony Horton, Tonyea Horton, Terry Dumas, and Christopher Lewis Herron for several years from their eastside neighborhood. Herron, acting on behalf of himself and Abrams, arranged to purchase a large sum of Oxycontin pills from Tony. The next day, Tony summoned Herron to his house, claiming to have acquired the requested drugs. Herron went to the front door, leaving Abrams in the car, and Tony told Herron to have Abrams join them. After both victims were inside, Herron noticed that the pills were not visible and inquired about them. At that moment, Williams and four other assailants emerged from hiding and ambushed the victims. They were armed with firearms and wearing rubber gloves. The victims were held at gunpoint as they were robbed, ordered to the floor, and bound with rope and duct tape. Herron testified that Williams and codefendant Lewis tied him up, and that Williams put duct tape around his head to cover his mouth. Lewis testified at trial that he tied up Herron, and Williams tied up Abrams and taped both victims' mouths. Herron testified that he and Abrams thereafter remained captive for several hours, during which they were hogtied with their hands and feet fastened behind their backs, kicked, taunted, and threatened. Eventually, the victims were “wiped down, ” carried from the house, and placed in the rear of Herron's car. Herron testified that Williams used a rag to wipe the tape on Herron's head. Tony, accompanied by one other assailant, drove the victims from the east side to the west side of Detroit, parked Herron's car on a side street, open the backdoor, and opened fire on both victims, killing Abrams. Herron, who had been shot in the head and chest, “play[ed] dead” until Tony and his associate left the scene.

People v. Williams, No. 311755, 2014 WL 2917256, *1 (Mich. Ct. App. June 24, 2014) (unpublished).

         Petitioner's counsel also summarized the process the trial court adopted to accommodate the joint trial but separate juries:

The Prosecutor gave his Horton closing argument. The next day, the Horton jury heard Defendant Horton's closing and the prosecution's rebuttal, as well as their instructions. (JT XVII p. 1-108) The Prosecutor gave his closing to the Dumas Jury. (JT XVII p. 110-130) Defendant Dumas' attorney Terry Price gave his closing the next morning. (JT XVIII p. 17-53) Now, the Horton Jury came back with a verdict, which was sealed. Judge Boykin instructed the Dumas jury. The case proceeded with closing arguments for the Williams jury.
On July 2, 2012 the Dumas jury came back with a verdict, which was sealed. (JT XIX p. 15-18) However, the jury was discharged without their sealed verdicts being read in court. The Williams jury continued to deliberate, and when they returned their verdict, [it was read] (JT XIX p. 26-35) Then, the Horton verdict was unsealed and read. (JT XIX p. 35-36).

Pet. App. Brf. at 9-10 (footnotes omitted). The Court will accept Petitioner's facts as true to the extent that they are consistent with the record. The state court record further shows that the trial court polled Petitioner's jury after sealing the verdict and that each juror affirmed that the verdict in the sealed envelope was his/her true verdict. 7/2/12 Trial Tr. at 15-18. Additionally, Petitioner's verdict was unsealed and read in open court, with Petitioner and counsel present, on July 3, 2012. 7/3/12 Trial Tr. at 14-15.

         Following his convictions and sentencing, Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals raising the same claims presented on habeas review. The court denied the application. People v. Dumas, No. 11-008346-FC (Mich. Ct. App. Dec. 19, 2014). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Dumas, 499 Mich. 880, 876 N.W.2d 533 (2016).

         Petitioner thereafter filed his federal habeas petition. He raises the following claims:

I. His convictions must be vacated where the sealed verdict of the jury was not read in open court and where the verdict ...

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