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Wright v. Bergh

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

May 25, 2018

KELLY WRIGHT, JR. PETITIONER
v.
DAVID BERGH RESPONDENT

          MEMORANDUM OPINION AND ORDER

          William O. Bertelsman, United States District Judge

         INTRODUCTION

         In April 2009, a jury convicted Petitioner Kelly Wright, Jr. of two counts of first-degree premeditated murder, two counts of felony murder, two counts of assault with intent to commit murder, one count of first-degree criminal sexual conduct (“CSC I”), and one count of possession of a firearm during the commission of a felony (“felony firearm”). The trial court sentenced Wright, a fourth-offense habitual offender, to: (1) concurrent sentences of life imprisonment without parole on alternative theories of first-degree premeditated murder and first-degree felony murder for each of the victims, (2) 25-45 years' imprisonment for each of the assault with intent to commit murder counts, and (3) 25-45 years' imprisonment for the CSC I count, and (4) two years' imprisonment for the felony firearm conviction.

         In 2011, Wright filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) Thereafter, Wright moved to stay proceedings so that he could exhaust unexhausted claims in state court, and the Court granted the motion (the “stay-and-abey order”). (Docs. 2, 4.) The Court conditioned the stay on Wright filing a motion for relief from judgment with the state trial court within sixty days from the date of the stay-and-abey order, and subsequently filing a motion to lift the stay and an amended petition in this Court within sixty days after the conclusion of the state court proceedings. (Doc. 4.) On May 7, 2014, Wright filed a motion to lift the stay (Doc. 8), which the Court granted, (Doc. 10). Wright filed an amended petition pursuant to the Court's order, (Doc. 13), to which Respondent David Bergh (“Respondent”) responded, (Doc. 14). For the reasons set forth below, the Court will deny Wright's petition.

         FACTUAL BACKGROUND[1]

         A. The Events Underlying Wright's Conviction.

         Wright's conviction stems from events that occurred on October 21, 1987. (Doc. 15-14 at 20.) On that night, Wright and several others (including Loretta Williams, Comela Leonard, Vicki Moore, Anthony Leonard, and Wright's brother) were at a friend's apartment where they spent the evening smoking cocaine. (Id. at 1-2.) After midnight, Wright left the back room where the group was smoking cocaine only to return a short time later brandishing a gun and claiming that someone had stolen his brother's cocaine (his brother had been in the front room of the apartment). (Id. at 2.) Wright's brother then entered the room and tried to force one of the occupants, Vicki Moore, to perform oral sex on him. (Id.) She refused until Wright pointed a gun at her, after which she complied. (Id.)

         Then Wright began firing his gun at the other occupants in the room. He first fired at Loretta Williams, striking her in the chest, killing her. (Id.) The bullet passed through her body and hit Comela Leonard in the head. (Id.) While she lay there, Wright shot her again, this time in the face. (Id.) Somehow, she survived. (Id.) Wright then shot Anthony Leonard three times, killing him. (Id.) Although Wright fired at Vicki Moore, the bullet hit the bed rather than her. (Id.) Wright and his brother then left the apartment. (Id.)

         After they had gone, Comela Leonard and Vicki Moore left the apartment and flagged down a nearby police officer. (Id.) The officer took the women to the hospital, where they were treated and statements were taken. (Id.)

         B. Wright is Apprehended and Interrogated-Many Years Later.

         Years later, in November 2008, the police apprehended Wright on warrants from the above-described events. (Doc. 15-4, Hrg. Tr. 3/6/2009, at 8.) During the subsequent interrogation, Wright confessed, which his counsel later moved to suppress, arguing that any statements were not made voluntarily because Wright was under the influence of medication. (Doc. 15-5, Hrg. Tr. 3/19/2009, at 3-4.) The trial court held the requisite Walker[2] hearing and accepted testimony from both Wright and the interrogating officer.

         Detective Sergeant Jeffrey Harris, a seventeen year veteran on the force, was the police officer who interrogated Wright once he arrived at the police department from the hospital. (Doc. 15-4, Hrg. Tr. 3/6/2009, at 6, 9.) Following his arrest, Wright initially received treatment at the Detroit Receiving Hospital for swelling and pain from a fractured ankle, (id. at 48), and so he arrived at the River Rouge Police Department several hours after being arrested, (id. at 9).

         Although he did not personally book Wright, Harris observed as another officer booked Wright into the station. (Id. at 27.) During this process, the booking officer completed a health screening form, noting several observations pertaining to Wright's physical condition including that Wright did not appear to be in pain or under the influence of drugs or alcohol, and the officer also asked Wright a series of questions regarding his medical condition and history, including whether Wright required the administration of medication. (Id. at 16-20.) Harris did not observe Wright having any difficulty understanding the questions being asked. (Id. at 20.)

         Harris then began questioning Wright in the interrogation room. (Id. at 9.) It is undisputed that the interrogation lasted several hours.[3] Harris did not know that, according to Wright, when he was at the hospital, he took two Vicodin pills[4] he had on him and received one pain pill[5] from the hospital. (Doc. 15-4 at 45, 49-50.) Harris testified that generally, he would have been made aware of a suspect taking pills. (Id. at 45.)

         Harris began the interrogation by informing Wright of his constitutional rights. (Id. at 10-12.) Harris testified that he never threatened Wright or made any promises in exchange for Wright's testimony, and Wright does not suggest that he did. (Id. at 13.) Although the interrogation was lengthy, Wright was provided with food and drink upon request, and when Wright requested a chair to prop up his foot, Harris immediately provided it to him. (Id. at 21, 38-39.) Harris testified that, based on his seventeen years on the force, Wright did not appear to be under the influence of any drugs or alcohol, including prescription pills. (Id. at 14-15.)

         Wright admitted that he never asked for a lawyer at any time during the interrogation or asked that the questioning cease. (Id. at 54.) He never indicated that he needed medical treatment or that his physical discomfort was interfering with his ability to answer questions. (Id.) Additionally, Harris specifically asked Wright whether he understood why he was there and what was happening, and Wright confirmed he did. (Id. at 36.) Harris also surmised that Wright was a high school graduate and could read and write. (Id. at 44.)

         However, Wright testified that the Vicodin he took caused him to hallucinate during some of the interrogation, although he admitted he never informed Harris of this. (Id. at 54-55.) Despite these hallucinations, which he further described as “everything spin[ning], ” Wright testified he had no difficulty answering any of Harris's questions and the “spinning” did not make him uncomfortable. (Id. at 55, 61-62.)

         After hearing the testimony and reviewing the DVD of the interrogation, the trial court denied the motion to suppress, concluding that the confession was voluntary. (Doc. 15-5, Hrg. Tr. 3/19/2009, at 4.)

         C. After a Seven Day Trial, a Jury Finds Wright Guilty as Charged.

         Following trial, a jury convicted Wright of all counts charged: two counts of first-degree premeditated murder, two counts of felony murder, two counts of assault with intent to commit murder, one count of CSC I, and one count of felony firearm. The trial court sentenced Wright on April 20, 2009 to 2 years' imprisonment for the felony firearm conviction followed by concurrent sentences of life imprisonment without parole on alternative theories of first-degree premeditated murder and first-degree felony murder for each of the two victims involved; 25-45 years' imprisonment for each of the assault with intent to commit murder counts, and 25-45 years' imprisonment for the CSC I count. (Doc. 15-14 at 11-14.)

         During the sentencing hearing, as the trial court pronounced its sentence for each of the counts, counsel for both the prosecution and Mr. Wright identified perceived errors made by the trial court. (Doc. 15-13 at 13, 15.) At each objection, the trial court engaged with counsel and corrected or explained the identified issues. As pertinent to Wright's Petition, counsel suggested that the trial court's initial pronouncement suggested that the judge imposed four life sentences against Wright. (15-13 at 15-16.) However, the prosecution engaged with the trial court, explaining that the commitment order needed to specify not four life sentences, but rather two life sentences supported by two alternative theories-premeditated murder and felony murder. (Id. at 16.) The trial court agreed, (id.), and the judgment of sentence specifically reads “[n]atural life sentence for [counts] 1-4 supported by two theories, premeditated and felony murder.” (Doc. 15-14 at 11-14.)

         D. Wright Appeals and Collaterally Attacks the Judgment.

         Wright appealed his conviction and sentence, raising two arguments before the Michigan Court of Appeals. First, he argued that the trial court erred by failing to suppress the statements made during his interrogation. (See Defendant's Appellate Brief, Doc. 1 at 45.) Second, he argued that the trial court violated the Double Jeopardy Clause by imposing two life sentences for each of the murder counts. (See Id. at 51.) The appellate court rejected both of these arguments and affirmed the conviction and sentence. (See Doc. 15-14 at 1.)

         With regard to Wright's first argument, after de novo review, the appellate court concluded that the confession was voluntary. (Id. at 6.) As to Wright's second argument, the appellate court reviewed the sentence/commitment and found that it reflected one sentence supported by two theories. (Id. at 9.) Accordingly, it found no error and affirmed. (Id.) The Michigan Supreme Court denied leave to appeal. (Doc. 15-15 at 1.)

         In June of 2011, Wright filed his initial habeas petition in this Court. (Doc. 1.) In this petition, he raised the same two issues he presented on appeal to the Michigan state courts. (See id.) He also filed a motion to stay proceedings in order to exhaust additional claims in the state courts. (Doc. 2.) This Court granted the motion. (Doc. 4.)

         Thereafter, Wright filed a Motion for Relief from Judgment in the Michigan trial court. (See Doc. 15-16 at 1.) In this motion, Wright argued that trial counsel was ineffective because she: (1) failed to consult with him prior to preliminary examination; (2) failed to investigate alternative affirmative defenses; (3) failed to consult with Wright in advance of trial; (4) failed to provide discovery materials until the end of trial, despite Wright's earlier requests; (5) failed to raise the issue of Comela Leonard commenting on his guilt during her testimony; (6) failed to properly articulate the basis for the directed verdict motion; (7) argued that Wright could be convicted of two counts of felony murder and the underlying felonies, when case law provided the opposite; and (8) failed to explore inconsistencies in the ballistic evidence. (Id. at 6-7.)

         Wright also argued that he was denied a fair trial when the prosecutor used leading questions and that he was denied his right to confrontation in violation of the Fifth and Sixth Amendments when the medical examiner was permitted to testify from an unproduced medical examiner's findings. (Id. at 7.) Wright further argued that he was denied a proper felony murder instruction and that he was denied due process and a fair trial when one of the witnesses was permitted to be in the courtroom during other witnesses' testimony. (Id. at 7-8.) Finally, Wright argued that he was denied effective assistance of appellate counsel. (Id. at 8.) In May 2012, Wright filed a supplemental motion, making additional arguments and citing additional authority for the claims raised in his initial motion. (Doc. 15-17.)

         The Michigan trial court denied Wright's motion. (Doc. 15-18.) The trial court recognized that, under Michigan Court Rule 6.508(D)(3), Wright must establish his entitlement to relief:

The defendant has the burden of establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion . . . (3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates (a) good cause for failure to raise such grounds on appeal or in the prior motion, and (b) actual prejudice from the alleged irregularities that support the claim for relief.

(Id. at 2)(quoting Mich. Ct. R. 6.508(D)).

         That court acknowledged that all of Wright's claims could have been raised on direct appeal, and so it analyzed whether Wright established the requisite “good cause” for failing to raise them on appeal and “actual prejudice” from the “alleged irregularities” supporting his claim. (Id.) The court concluded Wright did not carry his burden.

         The trial court acknowledged that Wright could show “good cause” by establishing ineffective assistance of appellate counsel and proceeded to analyze that claim. (Id. at 2-3.) The court concluded that Wright could not show ineffective assistance of appellate counsel because appellate counsel is permitted to “winnow out” weaker arguments to focus on arguments more likely to prevail on appeal. (Id. at 3.) The trial court found that, in light of the evidence against Wright, the issues raised in his Motion for Relief of Judgment would likely not have prevailed even if raised on appeal. (Id. at 5.) Accordingly, Wright failed to show that appellate counsel rendered ineffective assistance and so he did not establish “good cause” as required under Michigan Court Rule 6.508(D)(3). (Id.)

         Wright next filed a delayed application for leave to appeal in the Michigan Court of Appeals, which that court denied because it concluded he failed to establish entitlement to relief under Michigan Court Rule 6.508(D). (Doc. 15-19.) Wright then filed for leave to appeal to the Michigan Supreme Court, which also denied relief under Michigan Court Rule 6.508(D). (Doc. 15-20.) The Michigan Supreme Court issued that order on February 28, 2014. (Id.)

         On May 7, 2014, Wright asked this Court to lift the stay, but he did not file an amended petition as ordered by this Court. (Doc. 8.) This Court lifted the stay and ordered Wright to file an amended petition.[6] (Doc. 10.)

         Wright filed an Amended Petition, (Doc. 13), and Respondent filed its response, (Doc. 14).

         DISCUSSION

         After careful review of Wright's Amended Petition, and for the reasons set forth below, the Court will deny Wright's requested relief. In Wright's amended petition, he lists eight claims for relief, which he entitles: (1) failure to suppress incriminating statements, (2) Double Jeopardy, (3) ineffective assistance of trial counsel, (4) fair trial issues, (5) confrontation violation, (6) jury instructions, (7) ineffective assistance of appellate counsel, and (8) denial of access to court records. (Doc. 13.) However, Wright immediately concedes that claims 4, 5, and 8 should be dismissed, and so the Court will not consider them.[7]

         First, the Court declines Respondent's invitation to deny Wright's petition because he failed to strictly comply with the Court's stay-and-abey order. Although Wright was noncompliant with the timetable set forth in the Court's stay-and-abey order, his delinquency was short (a mere four days), and his claims fail for other reasons. Accordingly, the Court will not deny Wright's petition on this basis.

         Second, Wright is not entitled to habeas relief on the two claims he raised on direct appeal (Claims 1 and 2) and his ineffective assistance of appellate counsel claim (Claim 7). The Michigan courts considered the merits of his involuntary confession and Double Jeopardy claims on direct appeal and concluded that Wright's rights had not been violated. The Michigan appellate court similarly examined Wright's claim of ineffective assistance of appellate counsel in analyzing whether he had shown good cause under the Michigan local rules so that the court could consider the claims he asserted in his Motion for Relief from Judgment. Concluding that Wright failed to demonstrate ineffective assistance of appellate counsel and thus good cause, that court refused to consider the merits of Wright's ineffective assistance of counsel claims raised in the Motion for Relief from Judgment. The decisions issued by the Michigan state courts are not contrary to or an unreasonable application of federal law. As such, this Court cannot award Wright the habeas relief he seeks.

         Third, as held by the Michigan state courts, Wright has procedurally defaulted on the remainder of his claims (Claims 3 and 6) because he failed to raise them on direct appeal. Because the state courts denied relief on procedural grounds, and this procedural ground is an adequate and independent basis for relief, this Court cannot grant Wright habeas relief on the remaining claims.

         Finally, because Wright's claims have no merit, the Court will deny Wright's request for counsel and an evidentiary hearing, and it ...


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