United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
V. PARKER U.S. DISTRICT JUDGE
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.
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.
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.)
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
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.)
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
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.
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
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).
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 ...