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Hawkins v. D'Amour

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

July 11, 2018

JEFFREY HAWKINS, Petitioner,
v.
ANDREA D'AMOUR, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          LINDA V. PARKER U.S. DISTRICT JUDGE

         Jeffrey Hawkins (“Petitioner”) filed this habeas case under 28 U.S.C. § 2254. Petitioner was the Fire Chief for the City of Pontiac. During an FBI investigation into corruption by Pontiac city officials, allegations surfaced that Petitioner attempted to solicit bribes from a bar. Petitioner subsequently was charged with two counts of public official accepting a bribe in violation of Michigan Compiled Laws § 750.118. A jury convicted Petitioner of one count and the state court sentenced him to 180 days in jail and four years of probation.

         Petitioner raises two claims in support of his request for federal habeas relief: (1) ineffective assistance of trial counsel, and (2) insufficient evidence to establish that he was a public official. The Court finds that Petitioner's claims are without merit because they hinge on false premises. First, that the prosecutor was required to prove that Petitioner's position as Fire Chief constituted public office. In fact, the question was one of state law for the state courts to decide. Second, that Petitioner's trial counsel delayed providing Petitioner a form to perfect his appeal of right. For these reasons, the Court is denying Petitioner habeas relief. The Court also is denying Petitioner a certificate of appealability.

         I. Background

         At Petitioner's trial, Jose Santiago testified that he managed a bar in Pontiac. Santiago was cooperating with FBI special agents working on the corruption investigation when Petitioner serendipitously approached him for a bribe. Petitioner told Santiago that Santiago's bar had fire code violations, but a cash contribution of between $500 and $1000 would resolve the matter. (4/16/13 Trial Tr. at 40-50, ECF No. 8-5 at Pg ID 416-26.) Santiago informed FBI special agents about the meeting, and they gave him cash and a hidden voice recorder. Santiago subsequently recorded a conversation with Petitioner in which he paid Petitioner the money. The audio recording was played for the jury. (Id. at 85-102, Pg ID 461-78.)

         FBI Special Agent Brett Leatherman testified that while acting in an undercover capacity he had a second meeting with Petitioner. Petitioner attempted to solicit a bribe from Leatherman. The meeting was recorded, and the audiotape was played for the jury. (4/19/13 Trial Tr. at 10-20, ECF No. 8-9 at Pg ID 892- 902.) Leatherman and other federal officers discovered that there were actually no relevant code violations.

         Nearly every witness testifying at Petitioner's trial referred to him as the Fire Chief for the City of Pontiac. David Kotal, whose business repaired the city's fire trucks, testified that Petitioner was the fire chief and sent the trucks to him for repair. (4/18/13 Trial Tr. at 11-12, ECF No. 8-7 at Pg ID 670-71.) Darryl Fowlkes testified that he worked for the Pontiac Fire Department from November 1986 until January 30, 2012. (Id. at 14-15, Pg ID 674-75.) Fowlkes testified that Petitioner was the fire chief when he first started working in the department. (Id. at 17, Pg ID 676.) Vallard Gross testified that he was the Chief of Police for Pontiac and that Petitioner was the fire chief. (Id. at 51-52, Pg ID 710-11.) Karl Kubler testified that he worked on heating and cooling systems at the Pontiac Fire Department, and that Petitioner was the fire chief who contracted with him for services. (Id. at 63-64, Pg ID 722-23.)

         Petitioner's trial counsel moved for a directed verdict of acquittal following the close of the prosecutor's proofs, arguing that no evidence was presented proving beyond a reasonable doubt that Petitioner's position as fire chief constituted public office. Citing double-jeopardy concerns, the trial court deferred ruling until after the jury reached a verdict.

         The jury could not reach a verdict on the first count against Petitioner concerning the Santiago bribe, but found him guilty on the second count concerning the Leatherman solicitation. Petitioner renewed his motion for a directed verdict prior to sentencing, and the trial court denied it by order dated June 13, 2013. (ECF No. 8-13 at Pg Id. 1045.)

         Petitioner's appellate counsel filed a delayed application for leave to appeal in the Michigan Court of Appeals, raising two claims:

I. Defendant was denied the effective assistance of counsel.
II. The trial court erred by finding that the People had presented evidence on each and every element of the charged offense.

         Petitioner also filed a motion to remand the case to the trial court for an evidentiary hearing on his ineffective assistance of counsel claim. The Michigan Court of Appeals denied Petitioner's delayed application “for lack of merit in the grounds presented, ” and denied the motion to remand. People v. Hawkins, No. 321158 (Mich. Ct. App. Sept. 22, 2014).

         Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be ...


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