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Smith v. Palmer

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

June 14, 2018

EDDIE DEJUAN-TOLBERT SMITH, Petitioner,
v.
CARMEN PALMER, Respondent.

          MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is a habeas case under 28 U.S.C. § 2254. Petitioner Eddie Dejuan-Tolbert Smith (Petitioner), proceeding pro se, is a state inmate serving a sentence of life without parole following his convictions on two counts of first-degree premeditated murder, M.C.L. § 750.316(1)(a); three to five years for felon in possession of a firearm, M.C.L. § 750.224f; and two years for felony-firearm. M.C.L. § 750.227b. Petitioner claims he is incarcerated in violation of his constitutional rights, raising ten (10) claims. Respondent, through the Attorney General's Office, filed a response contending that Petitioner's claims are meritless or procedurally defaulted. For the reasons that follow, the petition will be denied.

         II. Procedural History

         Petitioner was convicted following a jury trial. He filed an appeal of right. The Michigan Court of Appeals affirmed his convictions. People v. Smith, No. 315842, 2014 WL 5408966 (Mich. Ct. App. Oct. 23, 2014). Petitioner then filed a pro se application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Smith, 498 Mich. 852 (2015).

         Petitioner then filed a post-conviction motion for relief from judgment under M.C.R. 6.500, et. seq., which was denied. People v. Smith, No. 12-005270-01-FC (Wayne Cty. Cir. Ct., Aug. 20, 2015). The appellate courts denied leave to appeal. People v. Smith, No. 329975 (Mich.Ct.App. Jan. 15, 2016); lv. den. 500 Mich. 895 (2016).

         Petitioner then filed the instant petition, presenting the following claims:

I. A writ of habeas corpus should issue where informing the jury that the petitioner is charged with felony in possession of a weapon violates the petitioner's right to be tried by his jury, if he elects not to testify, without his jury knowing of his prior felony conviction and denied the petitioner his right to due process and a fair trial.
II. A writ of habeas corpus should issue where the state trial court refusal to allow defense counsel to participate in voir dire denied the petitioner the ability to pick an impartial jury; in the alternative, it was ineffective assistance of counsel to not request active participation in the process, both of which denied the petitioner his due process right to a fair trial pursuant to U.S. Const. Amends VI, XIV [ ].
III. A·writ of habeas corpus should issue where the state trial court erred and abused its discretion when it permitted the introduction of text messages allegedly sent by the victim, without first authenticating the text message as is required by MRE 901, thus, violative of petitioner's right to a fair trial.
IV. A writ of habeas corpus should issue where the state trial court violated the petitioner's due process right to a fair trial by allowing into evidence, over petitioner's objection, a close-up photograph of the victims' bodies which was so unfairly prejudicial and gruesome that their admission was more prejudicial than probative pursuant to U.S. Const. Am XIV.
V. A writ of habeas corpus should issue where repeated egregious comments by the prosecutor amounted to prosecutorial misconduct and denied the petitioner his due process right to a fair trial.
VI. A writ of habeas corpus should issue where the giving of a flight instruction was plain error and denied petitioner a fair trial, where the evidence did not support the inference that the petitioner fled from the scene pursuant to U.S. Const. Am. XIV [ ].
VII. A writ of habeas corpus should issue where petitioner received ineffective assistance of both trial and appellate counsel on their numerous errors, omissions, i.e., failing to investigate possible defenses, as well as, failing to object and preserve constitutional violations as articulated in arguments II, III and IV.
VIII. A writ of habeas corpus should issue where petitioner is actually innocent of the crimes in which he was charged and convicted based on newly discovered evidence that established factual innocence not mere insufficiency of evidence.
IX. A writ of habeas corpus should issue where petitioner was denied his constitutional right to confrontation by the prosecution introducing evidence to the jury that was taken outside the presence of petitioner and his defense counsel which eliminated any chances of this tainted and coerced evidence from being subjected to the rigors of cross-examination.
X. A writ of habeas corpus should issue where petitioner's constitutional right to be present at critical stages of his criminal proceedings violated by the prosecution when it held a confidential examination of their star witness in the absence of the petitioner and his defense counsel.

         III. Facts

         The material facts leading to petitioner's conviction are recited verbatim from the Michigan Court of Appeals' opinion affirming his conviction, 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):

Defendant's convictions arise from the shooting deaths of two young women, Shenil Jefferies and Kendra Wolfe, in June 2011. The women came to Detroit from Flint with defendant, a man known to them as “Twenty” or “Eddie.” The prosecutor's theory at trial was that defendant killed Kendra because he believed that she had “set him up, ” and he killed Shenil because of her association with Kendra. The prosecution presented evidence that shortly before the murders, Shenil called her sister, Sherel Johnson Jefferies, and indicated that they had left a strip club and were on their way to defendant's apartment. During the call, defendant purportedly took Shenil's cellular telephone and told Sherel that the women were drunk and would be fine. However, Sherel could hear the women crying and pleading for their lives, and begging defendant not to shoot them, before the telephone went dead. At one point, Sherel testified that defendant told the women that he “had too much to live for, ” and “they had to die.”
The prosecution also presented evidence that Shenil had left voicemail messages with Sashay Johnson and Laronzo Southall. Defendant's voice was identified on the voicemails, which included threats to kill the victims. In addition to the voicemail messages, the prosecution admitted, over defense counsel's objection, text messages that Shenil sent to Southall. The text messages indicated, “[t]his dude pulled a gun on me” and that “I'm about to get killed.”
The police found blood that matched Kendra's DNA at defendant's apartment, which had been vacated shortly after the offenses and appeared to have been cleaned with bleach. In addition, all of defendant's furniture and possessions had been removed from the apartment.
The victims' bodies were discovered at a vacant home. Kaitlynn Zinda, who had been involved in a sexual relationship with defendant and became pregnant, testified that the last time she saw defendant was on a weekend in June 2011. On Saturday, she picked him up outside of his apartment building and he asked her to drive to an abandoned house approximately 20 to 30 minutes away from his apartment. There, he walked to the back of the house and appeared to open the back door, then look around in the grass. He was gone for approximately five minutes. Zinda identified a photograph of the abandoned house, which was the same place where the victims' bodies were recovered. At the time, defendant told Zinda that one of his relatives had just purchased the home and that he was merely there to check on the home. After visiting the abandoned home, Zinda and defendant went to a motel to sleep. The next morning, Zinda learned from Sashay that the victims were missing. Defendant instructed Zinda not to tell Sashay he was with her, and he claimed that the women had left the strip club with different men. Defendant had Zinda drop him off at a liquor store where he said he was going to attempt to locate Kendra. After the police discovered the victims' bodies a few days later, defendant never spoke to Zinda again or returned her telephone calls. An autopsy revealed that Kendra had sustained several bruises and abrasions. The cause of death for both women was multiple gunshot wounds.

People v. Smith, 2014 WL 5408966, at * 1.

         IV. Standard of Review

         28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:

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.

         A state court's decision is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A federal habeas court shall not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.

         “[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or...could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id. To obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         Petitioner raises ten claims, some of which contain additional subclaims. The Sixth Circuit has observed: “When a party comes to us with nine grounds for reversing the district court, that usually means there are none.” Fifth Third Mortgage v. Chicago Title Ins., 692 F.3d 507, 509 (6th Cir. 2012).

         V. Analysis

         A. Procedural Default

         Respondent contends that several of Petitioner's claims are procedurally defaulted. Petitioner says that his trial counsel was ineffective for failing to preserve these claims at trial and/or that appellate counsel was ineffective for properly raise these claims on his direct appeal. Ineffective assistance of counsel may establish cause for procedural default. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000).

         A defendant must satisfy a two prong test to establish the denial of the effective assistance of counsel. First, the defendant must show that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id. In other words, the defendant must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. The Supreme Court's holding in Strickland places the burden on the defendant who raises a claim of ineffective assistance of counsel, and not the state, to show a reasonable probability that the result of the proceeding would have been different, but for counsel's allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009). The Strickland standard applies as well to claims of ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).[1]

         Here, because the cause and prejudice inquiry for the procedural default issue merges with an analysis of the merits of Petitioner's defaulted claims it is more efficient to consider the merits of these claims. See Cameron v. Birkett, 348 F.Supp.2d 825, 836 (E.D. Mich. 2004). Each of Petitioner's claims is addressed in turn below.

         B. ...


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