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Tinsley v. Burgh

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

June 19, 2018

CHOYA ANTHONY TINSLEY, Petitioner,
v.
DAVID BERGH, Respondent.

          OPINION & ORDER (1) DENYING THE AMENDED PETITION (Dkt. 18), (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE

         Michigan prisoner Choya Anthony Tinsley (“Petitioner”) filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254, challenging his convictions for first-degree murder, assault with intent to commit murder, and possession of a firearm during the commission of a felony. The convictions followed a jury trial in the Circuit Court for Wayne County, Michigan. Petitioner was sentenced to a life sentence for the murder conviction, a concurrent term of 171 months to twenty years in prison for the assault conviction, and a consecutive term of two years in prison for the felony-firearm conviction. In his petition (Dkt. 18), Petitioner alleges: (i) the prosecution suppressed material evidence; (ii) trial counsel's failure to investigate and produce crucial witnesses violated his Sixth Amendment right to effective assistance of counsel; (iii) the prosecutor's misconduct deprived him of a fair trial and due process; (iv) the prosecutor's failure to disclose an eyewitness's reward for testifying deprived him of a fair trial and due process; and (v) trial counsel's failure to object to the prosecutor's misconduct violated his Sixth Amendment right to effective assistance of counsel. Brief in Support of Amended Pet. at ii (Dkt. 18). For the reasons stated below, the Court denies the amended petition, denies a certificate of appealability, and grants leave to appeal in forma pauperis.

         I. BACKGROUND

         The Court recites verbatim the relevant facts relied on by the Michigan Court of Appeals:

Defendant's convictions arose from the October 20, 2006, shooting death of Charles Mosley and the nonfatal shooting of Mosley's girlfriend, Darlene Russell. Both victims were shot while sitting inside an automobile at a gas station in Detroit. Russell identified defendant as the shooter. According to Russell, defendant and an accomplice previously confronted both of them at Mosley's home on October 1, 2006, and threatened them with guns. Defendant was separately charged with felonious assault and felony-firearm in connection with the October 1 incident.
This case was originally consolidated with the felonious assault case. At a previous trial in July and August 2007, the jury found defendant guilty of felonious assault and felony-firearm in connection with the October 1 incident, but was unable to reach a verdict with respect to the charges in this case, relating to the October 20 incident. Defendant was retried on those charges in May 2008. Defendant presented an alibi defense and argued that witness descriptions of the shooting were inconsistent with his appearance on the date of the offense.

See People v. Tinsley, No. 287470, 2010 WL 4671122, at *1 (Mich. Ct. App. Nov. 18, 2010).

         At trial, Ms. Russell testified in detail about the events of October 1 and October 20, 2006. Regarding the incident at Mosley's house on October 1, 2006, Russell stated that she did not know Petitioner at the time, but that Mosley had said Petitioner was Chakan Tinsley's brother. She subsequently heard Petitioner question Mosley about Petitioner's sister. As the conversation between Petitioner and Mosley became louder, Petitioner pulled out a gun and backed Mosley into the hallway. Petitioner's accomplice also had a gun, and she told both men to get out of the house.

         After the men left the residence, she reported the incident to the police. Later, at Petitioner's preliminary examination, she informed Sergeant Diaz that she thought a man in the courthouse was the same man who was with Petitioner at Mosley's house on October 1. She subsequently learned that the man's name was Chivas Dooley.

         Regarding the incident on October 20, 2006, Russell testified that she and Mosley were sitting in Mosley's car at a gas station when she heard a gunshot, which broke the glass in the window behind the driver's door. She turned and saw a man shooting a gun as he ran toward Mosley's car. A bullet hit Mosley and incapacitated him. The shooter then approached the car and fired more gunshots. He shot her in the abdomen before running away. Nobody else was near the car at the time. Ms. Russell stated that the shooter had a beard, was not very tall, was stocky, and was wearing a tan, three-quarter length jacket. 5/12/08 Trial Tr. at 139-192 (Dkt. 11-39).

         Russell explained that, after the shooting at approximately 1:40 p.m., she called the 911 operator and reported that she and Mosley had been shot. She did not tell the operator that Petitioner had shot her because she was not asked who shot her, and the point of her call was to describe her location and to get help. Later that day, at the hospital, she informed Officer Malone that it was Petitioner who had shot her and Mosley. She asked Officer Malone to call Sergeant Eby because Eby was the officer who had taken her report about the assault at Mosley's house on October 1. On the following day, she identified Petitioner in a photographic array. At trial, she had no doubt that Petitioner was the man who shot her. 5/13/08 Trial Tr. at 15-116 (Dkt. 11-40).

         Detroit Police Officer Emily Kincaid testified that, on October 1, 2006, she was dispatched to a home on Strathmore Street in Detroit for a felonious assault. When she arrived at the house, Mosley informed her that two men whom he permitted to enter his house had subsequently pulled out guns and pointed their guns at him. Mosley identified one of the men as his ex-girlfriend's brother, Choya Tinsley, and he said that Petitioner had told him to stop disrespecting his sister. Mosley thought that Petitioner was angry with him because Mosley had provided Petitioner's sister with a leased vehicle and taken the vehicle back after he broke up with her.

         Officer Kincaid also responded to the shooting at the gas station near Strathmore and Fenkell Streets on October 20, 2006. The victim was no longer there, but she determined that the victim's car belonged to Mosley. She then realized that Mosley was the person she had spoken with two weeks earlier on the felonious assault case. She informed the officers at the scene what she knew about the felonious assault case, and later that day, she relayed the same information to Sergeant Eby, who was in charge of the felonious assault case. Id. at 117-149.

         Detroit Police Officer Donald Rem was the evidence technician assigned to the case. He responded to the shooting scene on Fenkell Street at 2:35 p.m. on October 20, 2006. He collected eight spent casings from outside the victim's vehicle and one fired bullet from inside the vehicle. The rear driver's side window of the car had been shattered, and he concluded from the casings that the shooter had used a semi-automatic weapon. No. weapon was recovered at the scene. Id. at 149-194.

         Emergency Medical Technician Rae C. Johnson was dispatched to the shooting scene at 1:41 p.m. on October 20, 2006. Mosley was seated in the driver's seat of the car and had no vital signs. Ms. Russell was seated in the passenger seat and had gunshot wounds, but she got out of the car and told Johnson that the shooter had been at her house previously. Russell did not mention the shooter's name, nor describe the shooter to Johnson. Id. at 194-231.

         Eric Pringle testified that he heard gunshots while he was driving near the gas station in question. He made a U-turn and then parked across the street where he watched a hunched-over person creeping or tip-toeing toward a gray Cadillac near the gas pumps. The person was a stocky male with a thin goatee; he was five feet, ten inches tall or less; and he was wearing a white tee shirt, blue jeans, a Woodland army-print fatigue jacket, beige Timberland boots, work gloves, and a skull cap. No. one else was near the victim's car at the time, and after a series of gunshots, the man ran away and got into a green Lincoln Continental. On cross-examination, Pringle admitted that he must not have told the police in his written statement on October 21, 2006, that the gunman had a goatee. 5/14/08 Trial Tr. at 4-52 (Dkt. 11-41).

         Police Officer Michael Malone responded to the gas station and spoke with some officers who were already there. He then went to Sinai-Grace Hospital where Mosley was pronounced dead. Ms. Russell was also at the hospital. She told him that Petitioner had shot her, and she suggested that Malone contact Sergeant Eby who was investigating Petitioner for another matter involving Russell and Mosley. He recognized Petitioner's name and then realized that Petitioner was the man who was wanted in the felonious assault case. Id. at 52-75.

         Chelsea Mosley testified that Charles Mosley was her father and that Chakan Tinsley was her father's ex-girlfriend. She stated that Mosley's relationship with Chakan ended in June of 2006. Chelsea did not get along with Chakan, in part, because she thought that Chakan was using her father for his leased Cadillac. On October 1, 2006, her father called her and said that Chakan's brother and a friend had come over to Mosley's house, pointed guns at him, and threatened to kill him. Ms. Russell told her the same thing. Id. at 76-119.

         Sergeant Todd Eby was in charge of the felonious-assault case that resulted from the incident at Mosley's home on October 1, 2006. He became involved in the case after reading a police report compiled by the officers who had responded to Mosley's home after the felonious assault. On October 4, 2006, he spoke with Mosley who feared for his life after the incident that occurred at his home. As a result of his conversations with Mosley and Ms. Russell, he prepared an arrest warrant for the county prosecutor's office to review. Petitioner was the suspect named on the warrant, and on October 6, the warrant was issued for his arrest in connection with the incident at Mosley's home. He directed Officer Malone to arrest Petitioner, but while Petitioner was at large, Mosley repeatedly called him to learn whether Petitioner had been apprehended. He later learned about the shootings at the gas station, and after Petitioner's first trial, he sought a warrant for Chivas Dooley in connection with the incident that had occurred at Mosley's home on October 1. Id., pp. 121-39.

         Police Officer Joseph Stephens testified that Chivas Dooley was a friend of his and that he met Petitioner during a traffic stop in September of 2006. Later, that same day, he met Petitioner at the home of Dooley's mother. He recognized Petitioner from the traffic stop earlier in the day.

         In October of 2006, he learned that there was a warrant for Petitioner's arrest on a charge of felonious assault. He then contacted Dooley and asked Dooley to get in touch with Petitioner and have Petitioner report to the police. On October 20, 2006, Stephens responded to the gas station where the shootings occurred. He acquired some information and then contacted Dooley and asked Dooley to bring Petitioner to the precinct. Dooley showed up at the precinct, but Petitioner was not with him. Id. at 139-180.

         Jesse Ace testified that he lived near Fenkell and Strathmore Streets where the shooting occurred and that Mosley had lived down the street from him on Strathmore. On October 20, 2006, Ace was at home when he heard seven or eight gunshots coming from the area near the gas station. A minute or two later, he saw a young stocky black male with an automatic gun in his hand run past his house. The man was about five feet, six inches tall and nineteen to twenty years old. He was wearing a brown jacket, and he ran toward an older green Lincoln, which was moving slowly down the street. The car stopped, and after the gunman got into the Lincoln, it sped off. At trial, Ace stated that he did not see the gunman's face and that he was not sure whether he could identify the person. 5/15/08 Trial Tr. at 6-29 (Dkt. 11-42).

         David Vroman testified as an expert in firearms identification and toolmarking. In his opinion, the three fired slugs and eight casings in evidence came from the same source, and they were consistent with being fired from a semi-automatic gun, as opposed to a revolver. Id. at 33-89.

         Dr. Francisco Diaz performed the autopsy on Mosley and testified that Mosley died from multiple gunshots. He classified the manner of death as a homicide. Id. at 89-96.

         Daniel Baxter was working as a paramedic with Rae Ashford Johnson on October 20, 2006. The two of them responded to the shooting scene at 1:41 p.m. that day. The man in the driver's seat of the Cadillac at the gas station was deceased. The female passenger was wounded, but alive and frantic. Id. at 123-146.

         Pauletta Taylor's testimony from a prior court proceeding was read into the record because she was unavailable at Petitioner's trial. She testified that, in October of 2006, she owned a candy store across from the gas station at Fenkell and Strathmore Streets. About 1:30 or 1:40 p.m. on October 20, 2006, she heard five or six gunshots and saw someone shooting into the back window of a Cadillac. She knew Mosley and eventually recognized the Cadillac as Mosley's vehicle. The shooter was the only person near the Cadillac, and he ran up Strathmore Street where he got in the passenger side of a dark green car. She then ran back into her store and called the 911 operator. She later told the police that the gunman was a black male between five feet, seven inches and five feet, eight inches tall and “kinda thick.” He was wearing a tan army fatigue jacket with a hood. She did not see the gunman's face, and she did not see the driver of the green car. 5/19/08 Trial Tr. at 9-48.

         Sergeant Gary Diaz testified that, at Petitioner's preliminary examination, he saw Chivas Dooley speaking with Officer Laneisha Jones in the hallway outside the courtroom. Later, he observed Dooley in the courtroom when Ms. Russell was testifying. He did not know Dooley at the time, but Ms. Russell informed him that she thought Dooley was one of the men who had assaulted Mosley at Mosley's house. Russell also pointed out Dooley in the hallway at Petitioner's first trial, but when he approached Dooley, Dooley declined to give his name. He later attempted to interview Dooley in a conference room in the courthouse. He did not threaten Dooley, but he did tell Dooley that Dooley would not be able to testify in court if he didn't speak with him. Dooley, nevertheless, declined to give a statement and said that Diaz could wait until they went to court to hear what he had to say.

         On the issue of Ms. Russell's 911 call, Diaz testified that he attempted to acquire a recording of the call before the preliminary examination, but he received no response to his request. He submitted another written request after the preliminary examination and was told to check the dates and times because the communications office had no record of calls for the date and time that he had written on the form. He then realized that he had written the wrong date on the second request. He subsequently made a third request and was advised by the supervisor of communications that the police purge 911 recordings after ninety days. By the time he made his third request, the ninety days had expired, and the tapes had been eliminated. Id. at 56-144.

         Petitioner presented four witnesses in his defense. The first defense witness, Mario Jackson, testified that he and some of his co-workers stopped at the gas station near Fenkell and Strathmore Streets about 1:00 p.m. on October 20, 2006. He waited in their van while the driver of the van went inside the gas station. As he waited, he saw a young man in a camouflage jacket approach a Cadillac and fire gunshots through the driver's back window. The gunman was thin, in his early twenties, five feet, eight inches tall, and clean-shaven. Jackson stated that, although he saw the man's face on October 20, 2006, and would be able to identify him if he saw him again, he did not see the gunman in the courtroom. He became involved in the case because his friend “Bo” was Petitioner's brother, and Bo told him that his brother was a suspect in a homicide case. 5/20/08 Trial Tr. at 5-36 (Dkt. 11-44).

         The second defense witness was Victor Burnett who stated that he was Petitioner's barber. He claimed that Petitioner and someone that he knew as Alonzo, Zo, or Chivas came into his barber shop about 11:00 a.m. on October 20, 2006. Petitioner had a full beard at the time. He trimmed Petitioner's beard and cut his hair after Chivas left the shop to take care of some business. When Chivas returned, he gave Chivas a haircut. Petitioner left the shop about 1:00 p.m. and returned about twenty minutes later. Both Petitioner and Chivas then left the shop. He learned about the shooting from Chivas a few days later. Petitioner's name was mentioned during that conversation. He and Chivas then recapped what had happened on the day of the shooting. Chivas also told him about the situation at the house on Strathmore where he had “got[ten] into it . . . with the guy.” Burnett admitted that he had refused to make a statement at the prosecutor's office. He explained that he had felt threatened by the prosecutor and Diaz at the time because Diaz stood in front of the door and told him that he could not testify if he did not make a statement. Id. at 37-86.

         Chivas Dooley testified that he and Petitioner were good friends. He claimed to have heard about the shooting from Officer Joe Stevens, who told him that people were saying Petitioner shot somebody. Another friend, Officer Mike Crosby, also called him and asked him about Petitioner's whereabouts. He told both officers that Petitioner was with him, and he relayed the officers' information to Petitioner.

         Continuing, Dooley testified that, about 9:00 a.m. on October 20, 2006, he picked up Petitioner at Petitioner's home. They went to Dooley's mother's home and then he took care of some personal business in Centerline while Petitioner went to the store next door. From there, they went to a Coney Island restaurant on Eight Mile Road and Wyoming. They left there about 10:58 a.m. and went to Victor Burnett's barber shop to get haircuts. Petitioner had a full beard before and after the haircut. Dooley left the shop while Petitioner was in the barber chair. He returned to the barber shop about 11:40 a.m., and after Burnett finished with Petitioner, Dooley had his hair cut. Meanwhile, Petitioner left the shop in Dooley's black Mercedes. Petitioner was gone about fifteen minutes, and they stayed in the barber shop another ten or fifteen minutes after Petitioner returned to the shop. The two of them left the shop about 12:25 or 12:30 p.m. From there, they went to the storage yard, the Coney Island, a gas station on Seven Mile and Rutherford, another gas station at Six Mile and Southfield, and then to Petitioner's home. By then it was after 1:00 p.m. They left Petitioner's house to pick up their children from various schools. He finally dropped Petitioner off at home about 4:00 p.m.

         Dooley admitted that he was present at Petitioner's preliminary examination and that he spoke with Officer Laneisha Jones in the hallway before the examination. He also admitted that he had refused to provide a statement when the prosecutor and Diaz attempted to interview him in the prosecutor's office. He stated that the prosecutor and Diaz had been hostile toward him and had told him that he could not testify if he did not make a statement. He claimed, however, that he told Officers Stevens, Crosby, and Dale Collins where he and Petitioner had been on the day of the shooting. He also claimed that Petitioner had been wearing work clothes and a blue jacket on the day of the shooting. Id. at 88-137; see also 5/21/08 Trial Tr. at 5-129 (Dkt. 11-45).

         The fourth and final witness was Petitioner's fiancée, Rekita Reno. Ms. Reno testified that she and Petitioner were living together in October of 2006 and that Petitioner was home when she left for work at 7:45 a.m. on the day of the shooting. She did not see him again until 5:00 p.m. when she came home from work, but he was working with Chivas Dooley, and she did text him by cell phone before noon that day. Although she did not get a response to her text, she had informed Petitioner that her cousin's car would not start and that her cousin needed a boost. Petitioner had a beard at the time, and he was wearing a blue jacket that day. He spent that night at home with her, but he disappeared within days of the murder, which she learned about from the police. She next saw Petitioner on November 2, 2006, when he surrendered to the police with the help of his lawyer. 5/21/08 Trial Tr. at 150-69 (Dkt. 11-45).

         The prosecution's rebuttal witness was police officer Dale Collins, who testified that he went to the crime scene and then went back to the precinct where he observed Chivas Dooley talking with some other officers. He did not know Dooley at the time, but he had the impression that Dooley was trying to find out what the police knew about the shooting. Dooley never indicated that he wanted to speak with Collins, and he never said that he had information about the homicide. Id. at 131-49.

         On May 22, 2008, the jury found Petitioner guilty, as charged, of first-degree, premeditated murder, Mich. Comp. Laws § 750.316(1)(a), assault with intent to commit murder, Mich. Comp. Laws § 750.83, and felony firearm, Mich. Comp. Laws § 750.227b. 5/22/08 Trial Tr. at. 82-83 (Dkt. 11-46). On June 12, 2008, the trial court sentenced Petitioner to life imprisonment for the murder conviction, a concurrent term of 171 months (fourteen years, three months) to twenty years in prison for the assault conviction, and a consecutive term of two years in prison for the felony-firearm conviction. Sentencing Tr. at 8 (Dkt. 11-47).

         Petitioner, through counsel, filed a claim of appeal with the Michigan Court of Appeals, alleging that his trial attorney was ineffective for failing to call crucial witnesses at trial and failing to request a missing-evidence instruction. He also alleged that the trial court erred in failing to dismiss the charges after the destruction of a 911 tape and failing to instruct the jury on the missing evidence. Petitioner also filed a pro se supplemental brief, raising the following claims about the prosecutor's conduct: the prosecution presented false and misleading evidence, made disparaging comments about defense counsel, improperly argued extraneous matters to the jury, failed to endorse a key witness, and suppressed photographic evidence. Petitioner also argued that defense counsel was ineffective for failing to object to the prosecutor's conduct and establish that there was no warrant for Dooley's arrest. The Michigan Court of Appeals rejected these claims and affirmed Petitioner's conviction in an unpublished, per curiam opinion. See Tinsley, 2010 WL 4671122 (Mich. Ct. App. 2010). Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims. On June 28, 2011, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Tinsley, 799 N.W.2d 6 (Mich. 2011) (table).

         On June 29, 2012, Petitioner commenced this action, filing a pro se petition for writ of habeas corpus. Pet. for Writ of Habeas Corpus (Dkt. 1). Respondent, through counsel, filed an answer to the petition, alleging that Petitioner's claims were either procedurally defaulted or meritless. Answer in Opposition to Pet. for Writ of Habeas Corpus (Dkt. 12). Petitioner then moved for a stay so that he could return to state court and exhaust state remedies for his claim that he had newly-discovered evidence about the prosecutor's withholding of material evidence. Mot. for Stay and Abeyance (Dkt. 13). On July 17, 2013, the Court granted Petitioner's motion for a stay and abeyance of the habeas proceedings and closed this case for administrative purposes. Opinion and Order (Dkt. 16.)

         Petitioner, through counsel, then filed a motion for relief from judgment in the state trial court, arguing that he was entitled to a new trial because the prosecution violated his right to a fair trial by intentionally suppressing material 911 recordings. The trial court denied Petitioner's motion, and the Michigan Court of Appeals denied leave to appeal because Petitioner had failed to meet the burden of establishing entitlement to relief under Michigan Court Rule 6.508(D). See People v. Tinsley, No. 323659 (Mich. Ct. App. Oct. 24, 2014). The Michigan Supreme Court likewise denied leave to appeal for failure to meet the burden of establishing entitlement to relief under Rule 6.508(D). See People v. Tinsley, 866 N.W.2d 429 (Mich. 2015).

         On September 22, 2015, Petitioner returned to this Court and filed an amended petition. Amended Pet. for Writ of Habeas Corpus (Dkt. 18). The Court then re-opened this case and directed Respondent to file a supplemental answer. Opinion and Order (Dkt. 19). Respondent subsequently filed an answer to the amended petition in which he incorporated by reference his prior answer. He also argued that Petitioner's first claim was procedurally defaulted, his new claims were time-barred, and the state-court decisions were not contrary to federal law, unreasonable applications of federal law, or unreasonable determinations of the facts. Answer in Opposition to Amended Pet. for Writ of Habeas Corpus (Dkt. 20). Petitioner filed a reply, stating that his claims were not procedurally defaulted or barred by the statute of limitations, that his claims had substantial merit, and that he is actually innocent. He urges the Court to review his claims on their merits. Reply to Pet. for Writ of Habeas Corpus (Dkt. 25).

         II. STANDARD OF REVIEW

         Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 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 ...

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