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Putman v. Winn

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

May 30, 2018

Michael Putman, Plaintiff,
Thomas Winn, Defendant.


          Hon. Gershwin A. Drain, United States District Court Judge

         I. Introduction

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Michael Putman (“Petitioner”) was convicted of second-degree murder, two counts of assault with intent to murder, armed robbery, and possession of a firearm during the commission of a felony following a jury trial in the Wayne County Circuit Court. Dkt. No. 1, pg. 15 (Pg. ID 15). He was sentenced to 25 to 50 years imprisonment on the murder conviction, concurrent terms of 15 to 30 years imprisonment on the assault with intent to murder and armed robbery convictions, and a consecutive term of two years imprisonment on the felony firearm conviction in 2013. Id. In his pro se petition, he raises claims concerning the oath to witnesses, the admission of police testimony discussing an anonymous tip, the effectiveness of trial counsel, and a perceived inconsistency in the verdict. Id. at pgs. 5-10 (Pg. ID 5-10). For the reasons stated below, the Court denies the habeas petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's convictions arise from a robbery at a residence that resulted in the shooting of three people, one fatally, in Detroit, Michigan on May 21, 2013. Dkt. No. 11-9, pg. 7 (Pg. ID 1057). Defense counsel on direct appeal summarized the trial testimony as follows:

Terry Craig stated that Lovanier Craig was his wife. At about 1:30 a.m. May 21, 2013 he received information from their daughter LaToya Johnson and went to a house on Wetherby. At about 8:00 that morning he identified her body to the Wayne County Medical Examiner. (T2 36-39).
Donald Davie stated on May 20, 2013 he was at 8108 Wetherby with Craig, Lewis, Giddings and Appellant, whom he knew as "Nephew". Appellant had been there at about 7:00 p.m. Ten or fifteen minutes after he returned he said "Run that shit", which Davie interpreted as a slang term for a robbery. He then shot Davie in the chest using a .38 revolver. Craig got up, tried to run and inquired why Appellant shot Davie. Appellant replied "I said run all that shit" and shot Craig in the upper torso. Giddings ran toward the basement followed by Lewis. Davie then heard two more shots fired. Appellant then went upstairs, returned and opened the door. Davie heard two additional voices. Appellant then took Craig's purse, said "Come on. I got what I came for" and left. (T2 45-48, 54-60). Giddings returned from the basement and called 911. (T261-62). He was hospitalized two weeks. During that time he was shown a photo lineup, from which he identified a person other than Appellant, and later shown a second array from which he identified Appellant. (T2 62-74, 132).
Allecia Wilson is an expert in forensic pathology. On May 21, 2013 she performed an autopsy on Louvanier Craig. (T2 105-108). Wilson located gunshot wounds which entered the outer part of the right upper arm, exited the inside of the right upper arm, reentered on the right side of the chest, traversed the right side of the lungs, the heart and left side of the lungs and lodged under the skin on the left side of the chest, where it was recovered. (T2 108-113). [S]he found the cause of death was the gunshot wound to the right arm and chest. The manner of death was homicide. (T2 116).
Layman Giddings stated he knew Craig from the neighborhood and attended school with Lewis and Davie. (T2 133-134). At about 11:00 p.m. May 20, 2013 he went to 8108 Wetherby to visit Craig. Lewis and Davie were already present. Appellant, whom he knew as "Mike" arrived later. (T2 134-137, 167). Appellant was talking to Craig and then held a .32 or .38 caliber handgun to Davie, said "you know what it is" and shot Davie in the chest. He saw Lewis stand and heard another shot. When Appellant turned to Craig, he got up and ran to the basement. Lewis followed. He stayed there twenty minutes before exiting. He later returned. Craig was on the floor bleeding from the mouth and unresponsive. Davie was slumped on a couch bleeding from the chest. Lewis was in the basement. Appellant was gone. He used Craig's phone to call 911. Police arrived forty minutes later. (T2 141-151, 177-183). He did not see Appellant go into anybody's pockets, drawers or purses. (T2 172). He told the 911 operator he knew nothing, left when the police arrived and did not make a statement until the next day. He identified Appellant from a photo lineup. (T2 153-159).
Steven Lewis stated he was friends with Craig and went to 8108 Wetherby to socialize with her. He knew Giddings and Davie from the neighborhood. He did not previously know Appellant. He arrived at about 11:45 p.m. Giddings and Davie were already present. Appellant was present, left and returned ten to fifteen minutes before the shooting. (T2 188-192). Lewis recalled hearing Appellant say "You know what this is." He then heard a gunshot. He and Giddings ran toward the basement. He tripped and fell on his back. Looking up he saw Appellant stand over him with a revolver and shoot him. (T2 197-202). Giddings later left the basement and called for help. (T2 203). He made a police statement, (T2 210-219), and identified a photo of Appellant. (T2 207-209).
Detroit Police Officer Jermaine Owens stated that in the early morning hours of May 21, 2013 he and his partner, Michael Johnson, went to 8108 Wetherby on a report of a shooting. (T3 4-5). He saw an unresponsive woman laying in the doorway; a man lying on the dining room floor responsive but unable to speak, with blood near his throat and on his chest. He also heard screams from a man in the basement. (T3 6-8, 12-15). Johnson remained at the house while he canvassed the area for witnesses. (T3 10, 19). He notified homicide, who called in evidence technicians. (T3 21).
Detroit Police Officer Rick Fields is an evidence technician. (T3 23). On May 21, 2013 he arrived to process 8108 Wetherby. He found two cell phones on the living room floor and a purse on the table. He drew a sketch. (T3 24-27, 29-30). Partner Mary Gross took photographs. (T3 29). He did attempt to collect fingerprints, blood, DNA or other forensic from the house. (T3 42-51).
Detroit Police Officer Derrick Thomas arrived at 3:25 a.m. with Sergeant Mackie and Officers Bruce and Mullins. He was in charge of the scene. The decedent was still present. (T3 56-59). He did not find any weapons or casings. (T3 64). Drug paraphernalia was spread throughout the house. (T3 66). He did not direct the collection of any any fingerprints or DNA. (T3 67-68).
Detroit Police Sergeant Steven Ford was the officer in charge of the case. The phones were returned to Davie. The purse had already been handled by others, had no evidentiary value and was turned over to Craig's family. The bullet recovered by the coroner was placed on evidence and sent to the S[t]ate Police for identification and ballistics processing. (T3 85-88). He interviewed witnesses and showed them arrays which included a photograph [of] Appellant based upon an anonymous Crime Stoppers tip reporting a person named "Mike" on Central was the shooter. (T3 90-102, 129-133).
Following Appellant's arrest, he was interviewed by Ford, who was advised of his rights and gave an unsigned statement that at about 12:50 a.m. May 21, 2013 he left his house on Central and went with his girlfriend Anna Green to her house on Bassett where he was with her, her brother Marquise, her mother and her stepfather Big Ralph. And that two of the phones in his pocket belonged to him. A third belonged to his father, but was inoperable. (T3 102-108). As to Appellant and the decedent. Ford obtained warrants to search the phone records as to cell towers, owner's information, text messages and call logs. (T3 109-110). He obtained certified records of information between January 1, 2013 and June 19, 2013, which included 911 calls at 1:42 a.m., 1:51 a.m. and 1:58 a.m. May 21, 2013 on Craig's phone, text messages sent by Appellant's phone at 3:04 a.m. and 4:28 a.m. May 21, 2013 requesting urgent assistance and various calls between Appellant's phone and his girlfriend's phone on May 20, 21, 22, 23, 15, 27, 28, 29, 2013. (T3 111-124, 135).
Detroit Police Sergeant Kenneth Gardner, an expert in cell phone forensic analysis, (T3 146-153), stated he reviewed Appellant's cell phone records and prepared a spreadsheet plotting the dates, times and locations of the calls placed by and to Appellant's phone on May 20, 21, 2013. (T3 153-156). According to his analysis, at 1:20 a.m. Appellant's phone was registered at 7735 Central, the location of cell tower 110, which is one of three towers within range of the site of the shooting but quite a distance away from Bassett Street. (T3 160-17 6). The People then rested. (T3 181-182).
For the defense, Anna Green stated that on May 21, 2013 Appellant was her boyfriend of eight months. On that date, she arrived at his home on Central at 5:00 or 6:00 p.m. She then drove him to her mother's house on Bassett. He stayed with her there until May 27, 2013. (T3 182-199).
Lenise Bradley stated that she is Green's mother. Bradley recalled seeing Green and Appellant arrive at her Bassett Street home at 12:45 a.m. May 20, 2013. She further recalled seeing them there the next morning when she left to do errands. (T4 7-14). The Defense then rested (T4 17).

Dkt. No. 11-9, pgs. 7-10 (Pg. ID 1057-60).

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising the same claims presented on habeas review. Dkt. No. 11-9, pg. 31 (Pg. ID 1081). The court denied relief on those claims and affirmed his convictions. People v. Putman, 309 Mich.App. 240 (2015); Dkt. No. 11-9 pgs. 25-30 (Pg. ID 1075-80). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Putman, 868 N.W.2d 636 (2015).

         Petitioner thereafter filed his federal habeas petition on July 19, 2016. Dkt. No. 1. He raises the following claims:

I. He was denied a fair trial where witnesses were never sworn to testify under oath pursuant to MRE 603; MCL 600.1432 thereby denying him his constitutional right to due process of law ...

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