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Drake v. Mackie

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

June 25, 2018

Billy Gene Drake, Petitioner,
v.
Thomas Mackie, Respondent.

          Patricia T. Morris United States Magistrate Judge.

          OPINION AND ORDER DENYING THE AMENDED HABEAS CORPUS PETITION DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This matter has come before the Court on petitioner Billy Gene Drake's pro se amended petition for the writ of habeas corpus under 28 U.S.C. § 2254. The Petition challenges Petitioner's state convictions for First-Degree Murder, Mich. Comp. Laws §750.316(1)(a), Assault with Intent to Commit Murder, Mich. Comp. Laws § 750.83, and Possession of a Firearm During the Commission of a Felony (felony firearm), Mich. Comp. Laws § 750.227b. Petitioner alleges as grounds for habeas relief that his trial and appellate attorneys were ineffective and that the trial court's rulings on the availability of a witness and a request for a jury instruction were erroneous. None of these claims warrant habeas relief. Accordingly, the Petition will be denied.

         II. Background

         The charges against Petitioner arose from two shootings in Port Huron, Michigan on June 17, 2010. As explained by the state court, the shootings

claimed the life of Chester Chapman and injured Chester's cousin, Jerry Chapman. The shootings occurred a few hours after an acquaintance of defendant, Travis [Watson], was involved in an argument with Jerry's brother, Terry Chapman. The Chapman family was preparing to leave a family member's residence when defendant and Travis walked toward the residence from opposite directions. Witnesses testified that a verbal argument ensued between Travis and Terry, at which point Travis called defendant over to the residence and instructed him to “do it.” Although defendant had the gun pointed at another family member's head, Chester and Jerry were both shot. Chester died a short time later as a result of the shooting.

People v. Drake, No. 303941, 2012 WL 2335343, at *1 (Mich. Ct. App. June 19, 2012).

         Petitioner was tried before a jury in St. Clair County Circuit Court. His defense was that he was in Detroit at the time of the shootings. On March 11, 2011, the jury found Petitioner guilty, as charged, of First-Degree Murder, Assault with Intent to Commit Murder, and Felony Firearm. On April 13, 2011, the trial court sentenced Petitioner to two years in prison for the felony-firearm conviction, followed by concurrent terms of life imprisonment for the murder conviction and forty to eighty years in prison for the assault conviction.

         Petitioner appealed his convictions as of right, arguing that (1) his trial attorney was ineffective for failing to object to hearsay, (2) the trial court erroneously denied his request for a jury instruction on Manslaughter, and (3) the trial court deprived him of his right to confront a witness by ruling that a witness was unavailable. The Michigan Court of Appeals rejected Petitioner's claims and affirmed his convictions in an unpublished, per curiam opinion. See id. Petitioner raised the same issues in an application for leave to appeal in the Michigan Supreme Court. On December 26, 2012, the Michigan Supreme Court denied leave to appeal. See People v. Drake, 493 Mich. 919; 823 N.W.2d 598 (2012) (table).

         On October 9, 2013, Petitioner filed his first federal habeas corpus petition. He claimed that: (1) trial counsel was ineffective for failing to investigate and present a manslaughter defense instead of an alibi defense; (2) the trial court erroneously refused to re-read testimony to the jury during its deliberations; (3) trial counsel was ineffective for failing to present an expert witness on Deoxyribonucleic Acid (DNA); and (4) appellate counsel was ineffective for failing to present these issues to the Michigan Court of Appeals during Petitioner's appeal of right. This Court summarily dismissed the petition without prejudice because Petitioner had failed to exhaust state remedies for his claims. See Drake v. Rivard, No. 2:13-cv-14281 (E.D. Mich. Oct. 28, 2013).

         Petitioner subsequently raised his unexhausted claims in a motion for relief from judgment in the state trial court. While the post-conviction motion was pending in state court, Petitioner commenced this action. See Dkt. No. 1. In his habeas petition, he raised the three issues that he presented to the state court on direct appeal. In a separate motion, he moved to hold his habeas petition in abeyance while he continued to pursue state remedies. See Dkt. No. 3. On July 9, 2014, the Court granted Petitioner's motion for a stay and closed this case for administrative purposes. See Dkt. No. 8.

         The state trial court subsequently denied Petitioner's motion for relief from judgment because Petitioner could have raised his claims about trial counsel in the appeal of right and he failed to show that appellate counsel was ineffective for not raising the claims on appeal. The state court also found no merit in Petitioner's claims. See People v. Drake, No. 10-002434-FC (St. Clair Cty Cir. Ct. Jan. 22, 2015).

         Petitioner appealed the trial court's decision to the Michigan Court of Appeals, which denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). Specifically, the Court of Appeals stated that Petitioner could have raised his claims previously and failed to establish “good cause” for not doing so and actual prejudice from the irregularities alleged. See People v. Drake, No. 327099 (Mich. Ct. App. June 18, 2015). On May 24, 2016, the Michigan Supreme Court likewise denied leave to appeal under Michigan Court Rule 6.508(D). See People v. Drake, 499 Mich. 926; 878 N.W.2d 840 (2016) (table).

         On June 30, 2016, Petitioner returned to this Court with an Amended Habeas Corpus Petition (Dkt. No. 9) and a Motion to Re-Open this Case (Dkt. No. 11). The Amended Petition alleges as grounds for relief the three claims that Petitioner presented to the state court on direct appeal and the three claims that he raised in his state-court motion for relief from judgment and subsequent appeal. The Court granted Petitioner's Motion and re-opened this case. See Dkt. No. 15.

         Respondent Thomas Mackie argues in his Response to the Amended Petition that Petitioner's claims are procedurally defaulted, time-barred, meritless, or not cognizable on habeas review. See Dkt. No. 19. Petitioner replies that all of his claims are properly before the Court. See Dkt. No. 21.

         III. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires habeas petitioners who challenge “a matter ‘adjudicated on the merits in State court' to show that the relevant state court ‘decision' (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.'” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (quoting 28 U.S.C. § 2254(d)). “[A] federal habeas court may 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. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt,' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).

         “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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on 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.

         IV. Analysis

         A. Ineffective Assistance: Failure to Object to Alleged Hearsay

         Travis Watson voluntarily reported to the police one day after the shooting and subsequently cooperated with the police. He did not testify at Petitioner's trial, but Sergeant Joseph Platzer, the lead investigator on the case, testified that the information Travis provided to the police during an interview “was consistent with the information that [the police] obtained during [their] investigation.” See 3/8/11 Trial Tr., at 976 (Dkt. No. 20-10, p. 41 (Pg. ID 736). Petitioner alleges that his trial attorney should have objected to this testimony because Sergeant Platzer's testimony about a non-testifying co-defendant's statement was inadmissible hearsay. Petitioner also claims that Sergeant Platzer's testimony violated his right of confrontation.

         The Michigan Court of Appeals rejected Petitioner's claim on direct appeal because the officer's testimony was not specific enough to fall within the definition of hearsay and, therefore, any objection would have been overruled. The Court of Appeals concluded that defense counsel was not ineffective for failing to advance a futile argument.

         1. Clearly Established Federal Law

         To prevail on his ineffective-assistance-of-counsel claim, Petitioner must show “that counsel's performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficient-performance prong “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. “[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. at 688.

         The “prejudice” prong “requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. A defendant must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         “The standards created by Strickland and § 2254(d) are both ‘highly deferential,' and when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105 (internal and end citations omitted). “When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether ...


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