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Mushatt v. McCullick

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

June 5, 2018

Ledell Mushatt, #240886, Petitioner,
Mark McCulick, Respondent.

          Stephanie Dawkins Davis Mag. Judge



         I. Introduction

         Michigan prisoner Ledell Mushatt (“Petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of four counts of breaking and entering, Mich. Comp. Laws § 750.110, stealing from a bank, safe, vault, or other depository, Mich. Comp. Laws § 750.531, and assaulting, battering, wounding, resisting, obstructing, opposing, or endangering a person performing his or her duties, Mich. Comp. Laws § 750.81d(1), following a jury trial in the Saginaw County Circuit Court. In 2013, he was sentenced to concurrent terms of 10 to 20 years imprisonment on counts of breaking and entering and stealing from a bank, safe, vault, or other depository and two to 15 years imprisonment on counts of assaulting, battering, wounding, resisting, obstructing, opposing, or endangering a person performing his or her duties. In his pleadings, Petitioner raises claims concerning the denial of his request to substitute counsel, the legality of a search of his residence, the conduct of the prosecutor and trial counsel's failure to object to that conduct. For the reasons that follow, the petition is denied with prejudice. 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 series of break-ins that occurred in Saginaw County, Michigan in 2011. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

This case involves four incidents of breaking and entering that occurred at the following three locations in Saginaw, Michigan: 5060 State Street on June 21, 2011; 865 Midland Road on September 28, 2011; and 138 Harrow Lane on October 1, 2011 (twice). Following defendant's arrest, Saginaw Township Police Detective Mindy Worden obtained a search warrant for 5123 Mill Wheel Drive in Grand Blanc, Michigan, the purported address of defendant's girlfriend Linda Hairston. When the police arrived at Mill Wheel Drive to execute the search warrant, they discovered the home was vacant and did not match the description presented in the warrant. They did not search the premises. Following additional investigation, Worden learned defendant and his girlfriend recently resided at 11309 Grand Oak Drive in Grand Blanc, because on September 5, 2011, the Grand Blanc Police reported a domestic dispute at that address between defendant and Hairston. Worden submitted an amended affidavit and the magistrate approved a new search warrant for 11309 Grand Oak Drive. Upon searching the premises, the police obtained, among other things, a pair of dress shoes that were submitted for comparison to a footprint found at 865 Midland Road. Defendant later moved to suppress the evidence and the trial court denied his motion.
At defendant's trial, Saginaw Township Police Officer Russell Uphold testified that he chased the suspect from the scene of the 138 Harrow Lane breaking and entering and saw his face from a distance of 8 to 10 feet before the individual escaped into an adjacent neighborhood.
Uphold testified that he recognized the suspect's face, but was unable to put a name to him. Sometime later, Uphold discovered a green Cadillac near 138 Harrow Lane, and a LIEN search revealed the vehicle was registered to a person with the last name of Mushatt. Uphold testified that he recognized the name “Mushatt, ” remembered the name “Ledell Mushatt, ” and believed he could identify the suspect fleeing the scene. Uphold testified that he pulled up the name Ledell Mushatt on the Offender Tracking Information System (OTIS), and after seeing a photograph, knew “without a doubt” that the fleeing suspect was defendant.
Prior to trial, defendant filed a motion to remove his attorney, arguing that his counsel had not filed any of the “several motions” he requested including a “motion to reconsider an interlocutory appeal” filed with this Court, and “several motions for arraignment violations.” Following a motion hearing, the court denied defendant's motion.
At the beginning of the trial proceedings, defendant raised several motions in propria persona. Defendant moved to suppress his identification, arguing that Uphold's use of OTIS to obtain his photograph and Uphold's confirmation of defendant's identity while he was under arrest was improper. The court denied the motion. Defendant moved to suppress photographs taken of the interior of the green Cadillac, which the court also denied. Defendant also moved to strike any statements pertaining to his criminal history. The court excluded evidence of other breakings and entering in the area to demonstrate defendant had employed a common plan, scheme, or intent.

People v. Mushatt, No. 319343, 2015 WL 2329063, *1-2 (Mich. Ct. App.May 14, 2015) (unpublished).

         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. The court denied relief on those claims and affirmed his convictions. Id. at *2-6. Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Mushatt, 498 Mich. 921, 871 N.W.2d 189 (2015).

         Petitioner thereafter filed this federal habeas petition. He raises the following claims as grounds for relief:

I. He was denied his right to counsel of choice when he reported a breakdown in the attorney-client relationship and requested the appointment of new counsel, but the judge denied the request, made unsupported findings of fact, and failed to inquire adequately into the breakdown in the relationship.
II. The search at 11309 Oak Drive violated his Fourth Amendment rights where the police lacked probable cause for the search and the affidavit in support of the search was based on inadequate information.
III. The prosecutor violated his due process right by eliciting unfairly prejudicial testimony about his prior incarceration and defense counsel was ineffective for not objecting.

         Respondent has filed an answer to the petition contending that it should be denied because the claims are not cognizable, procedurally defaulted, and/or lack merit.

         III. Standard of Review

         The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed his habeas petition after the statute's effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. §2254(d) (1996).

         “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 [that] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) ...

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