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McAdoo v. Burton

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

July 16, 2018

KOLIE LANAR McADOO, Petitioner,
v.
DEWAYNE BURTON Respondent.

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

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE.

         Petitioner Kolie Lanar McAdoo, a state prisoner at the Central Michigan Correctional Facility in St. Louis, Michigan, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 2012 of breaking and entering two businesses, possession of burglar tools, and safe breaking. He was sentenced as a habitual offender to a maximum term of twenty years in prison. He alleges in his pro se petition that: (i) his arrest was illegal and his statement was inadmissible as fruit of the poisonous tree; (ii) he was denied his right of confrontation by the admission of hearsay; (iii) he was denied a fair trial by evidence of other break-ins; (iv) he was denied a fair trial by the admission of an expert witness's testimony, and defense counsel was ineffective for failing to move to exclude the testimony; (v) he was denied his right to effective assistance of counsel by counsel's failure to (a) object to the joinder of his two criminal cases, (b) request a speedy trial in the first case, and (c) request a continuance in the second case; (vi) he was denied due process by the loss or destruction of important evidence; (vii) he was denied a fair trial by the prosecutor's improper argument denigrating the defense; (viii) the trial court improperly amended the judgment of sentence; and (ix) he did not receive timely notice of the habitual offender charge, and the trial court did not address his objections or make any findings about the validity of his prior convictions. For the reasons that follow, the Court denies the petition, declines to issue a certificate of appealability, and grants leave to proceed in forma pauperis on appeal.

         I. BACKGROUND

         The charges against Petitioner arose from break-ins at two businesses on Eight Mile Road in Warren, Michigan on December 19, 2011. In case number 12-656, Petitioner was charged with breaking and entering a restaurant, safe-breaking, and possession of burglar tools. In case number 12-3414, Petitioner was charged with breaking and entering a wig shop and possession of burglar tools. The two cases were joined for a jury trial in Macomb County Circuit Court in Mount Clemens, Michigan.

         Stephen Stover testified that he was an area supervisor for Long John Silver restaurants and that, on December 19, 2011, the security bar of the door at the restaurant on Eight Mile Road in Warren was pried, and the inside panic bar was sprung from the outside of the building. In addition, both the knob to the safe and the tumbler inside the safe were broken. The business had an alarm system and a video monitor system. 10/11/12 Trial Tr. at 43-45, PageID.533-535 (Dkt. 10-19).

         Yang Sun Laby testified that she owned Susie's Wig Shop on Eight Mile Road west of Van Dyke Avenue. Her business was equipped with an alarm, but no camera. On December 19, 2011, someone from the alarm company called her house and said that somebody had broken into her shop. When she and her husband arrived at the shop, they noticed that the door was jammed and that the inside of the shop was a mess. Id. at 49-55, PageID.539-545.

         Warren police officer Randall Richardson testified that, around 3:30 a.m. on December 19, 2011, he was dispatched to a business at 3755 Eight Mile Road due to an alarm coming from the rear door and the safe. The rear door to the business appeared to have been pried, and the key holder stated that the damage was new and nobody was allowed in the business. After viewing a video from the business, Richardson issued a notice urging other officers to be on the lookout for a black male wearing a knit cap pulled over his face, a black jacket, a hoodie with a white interior, gloves, black pants, and shiny black tennis shoes with bright white soles. He could not identify the person in the video. Id. at 56-66, PageID.546-556.

         Warren police officer Jeff Stieber testified that at 5:24 a.m. on December 19, 2011, he was dispatched to Susie's Wig Shop at 7635 Eight Mile Road. The door had been pried open and someone had gone inside the business. When he exited the business, he observed a Detroit police car at a business across the street from the wig shop. He subsequently learned that there was a breaking and entering directly across the street and that the Detroit officers had Petitioner in custody about a quarter of a mile away. He went to the location where Petitioner was in custody and saw Petitioner seated in the back of a scout car. Petitioner was wearing a gray sweatshirt with a distinctive white hood under a dark-colored jacket, dark pants, a black hat, and dark shoes with bright white soles. According to Officer Stieber, the clothing was identical to the description that Officer Richardson had provided earlier that evening. Id. at 66-80, PageID.556-570.

         Detroit Police Officer Derrick Mason testified that he was on Bennett Street near Outer Drive at 5:55 a.m. on December 19, 2011, when he observed Petitioner sitting on a ledge in front of a vacant building. There was a crowbar within arm's length in the grassy area directly behind the ledge where Petitioner was seated. Petitioner was wearing all dark clothing, which was significant because the police had received notification look out for a black male in dark clothing who was breaking into businesses. Petitioner informed Officer Mason that he was waiting for the bus, but there was no bus stop nearby. After a brief investigation, the police took Petitioner into custody, and at the district office, Petitioner blurted out, “How did you guys find out it was me? I had a mask on. Are you guys going to charge me with all six businesses?” Id. at 82-103, PageID.572-593.

         Evidence technician Donald Seidl used Microsil on the tool marks at the crime scenes. Seidl explained that Microsil is a silicone putty compound, which hardens into a cast. The cast, in turn, can be compared to a tool to determine whether the tool made the pry marks. He put Microsil on the door and the safe at the restaurant and on the door at the wig shop. Id. at 104-110, PageID.594-600; 10/12/12 Trial Tr. at 3-5, PageID.605-607 (Dkt. 10-20).

         Detroit police officer David Tanner testified that he was on patrol with Officer Derrick Mason at 5:53 a.m. on December 19, 2011. They received a call regarding a breaking and entering at Cash Advance, a business on Mound Road. They received a second call to back up another scout car for a couple of breaking and entering incidents next door to each other on Eight Mile Road at Van Dyke Avenue. They also received a message from the Warren Police Department about a couple of breaking-and-entering incidents on the Warren side of Eight Mile Road, close to where the Detroit breaking and entering incidents occurred. 10/12/12 Trial Tr. at 6-15, PageID.608-617.

         Officer Tanner made contact with Petitioner on Van Dyke Avenue, south of Outer Drive. Petitioner was sitting on a three-foot wall near a vacant business, and he fit the description of the suspect that the officers were looking for. He was wearing a black jacket, gray jeans or jogging pants, a gray hooded sweatshirt, and gym shoes. Petitioner informed him that he was waiting for his cousin to pick him up. He had a flashlight in his pocket, and there was a crowbar on the ground behind him. Tanner picked up the crowbar and later seized Petitioner's clothes in the cell block at the precinct. Id. at 15-32, PageID.617-634.

         Warren police officer Richard Williams testified that he went to a Detroit police station on December 19, 2011, and took physical custody of Petitioner. He also took custody of a crowbar, a ski mask, a flashlight, gloves, shoes, and a gray hoodie. Id. at 32-37, PageID.634-639.

         Detective Kevin Borcyz of the Warren Police Department was the officer in charge of the two cases. He explained the chain of custody for the items in evidence. He also testified that the Long John Silver restaurant was about two miles west of Susie's Wig Shop, and that Petitioner was arrested less than one mile from the wig shop. Borcyz opined that the video from the restaurant and the clothes that Petitioner was wearing at his arrest provided probable cause to arrest Petitioner for the breaking and entering at the restaurant. There was a delay in bringing charges against Petitioner for the breaking and entering at the wig shop because there was no video from that location. However, after the Michigan State Police determined that the pry mark at the wig shop matched the crowbar found near Petitioner before his arrest, there was probable cause to arrest Petitioner for the breaking and entering at the wig shop. Borcyz also testified that there were six instances of breaking and entering on the same night and in the same area of Eight Mile Road and that Petitioner's thumb print was discovered on a cash register at a business on the Detroit side of Eight Mile Road. Id. at 37-64, PageID.639-666.

         The trial court qualified Lieutenant Brian Bergeron of the Michigan State Police as an expert in firearm and tool marks. Lieutenant Bergeron examined the crowbar in evidence and two Microsil casts. He opined that the tool marks at the wig shop were made by the crowbar in evidence, but he was unable to say conclusively whether the crowbar made the pry marks at the restaurant. He also could not eliminate the crowbar as the source of the marks at the restaurant. Id. at 68-84, PageID.670-688.

         Petitioner did not testify or present any witnesses. His defense was that he was innocent and that the case was one of mistaken identity.

         On October 12, 2012, the jury found Petitioner guilty, as charged, of two counts of breaking and entering a building with intent to commit a larceny, two counts of possession of burglar tools, and one count of safe-breaking. On November 20, 2012, the trial court sentenced Petitioner to three terms of ten to twenty years for the safe-breaking, breaking and entering, and possession of burglar tools in the first case and two terms of six to twenty years in prison for the breaking and entering and possession of burglar tools in the second case. The court ordered all the sentences to run concurrently.

         Petitioner, through counsel, filed a claim of appeal in the Michigan Court of Appeals, which affirmed all of Petitioner's convictions, as well as his sentence in the first case. The Court of Appeals remanded Petitioner's second case for re-sentencing because the trial court had improperly sentenced Petitioner as a habitual offender in that case. See People v. McAdoo, Nos. 313880 and 313881, 2014 WL 4263234 (Mich. Ct. App. Aug. 28, 2014).[1] Petitioner then appealed to the Michigan Supreme Court, which denied leave to appeal on March 6, 2015, because it was not persuaded to review the issues. See People v. McAdoo, 859 N.W.2d 711 (Mich. 2015).[2]

         On July 20, 2015, Petitioner commenced this action. See Pet. for Writ of Habeas Corpus (Dkt. 1). Respondent, through counsel, filed an answer to the petition, alleging that habeas claims one, three, six, and seven are procedurally defaulted and that claims one, three, four, eight, and nine are not cognizable on habeas review. Respondent further alleges that the state courts' rejection of Petitioner's claims did not result in decisions that were contrary to federal law, unreasonable applications of federal law, or unreasonable determinations of the facts. Resp't Answer in Opp'n to Pet. for Writ of Habeas Corpus at ii-iii, 74, PageID.47-48, 124 (Dkt. 9). Petitioner filed a reply in which he asks the Court to grant him a new trial on the basis that the decision of the Michigan Court of Appeals was objectively unreasonable and contrary to, or an unreasonable application of, Supreme Court precedent. Pet'r Brief in Reply to Resp't Answer to Pet. for Writ of Habeas Corpus (Dkt. 11).

         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 in the State court proceeding.

28 U.S.C. § 2254(d).

         A decision of a state court 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, 405-406 (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 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.” Id. at 411.

         The Supreme Court has explained that a “federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Thus, the AEDPA “imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt.” 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). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. Furthermore, pursuant to section 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. Habeas relief is not appropriate unless each ground that supported the state-court's decision is examined and found to be unreasonable under the AEDPA. See Wetzel v. Lambert, 520 U.S. 520, 525 (2012).

         “If this standard is difficult to meet, that is because it was meant to be.” Harrington, 562 U.S. at 102. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from re-litigating claims that have previously been rejected in the state courts, it preserves the authority for a federal court to grant habeas relief only “in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” the Supreme Court's precedents. Id. Indeed, section 2254(d) “reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. Thus, a “readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002). Therefore, in order to obtain habeas relief in federal courts, a state prisoner is required to show that the state-court's rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

         A state-court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness only with clear and convincing evidence. Id.; Warren v. Smith, 161 F.3d 358, 360-361 (6th Cir. 1998). Moreover, habeas review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Finally, a state court's review of a habeas petitioner's claim for “plain error” is equivalent to an adjudication on the merits and, therefore, AEDPA deference applies to such rulings. Stewart v. Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017).

         III. ANALYSIS

         A. The Arrest

         The first habeas claim challenges the legality of Petitioner's arrest. Petitioner contends that there was no probable cause for his arrest, that he was detained for an investigation, and that his subsequent statement to the police was inadmissible as fruit of the poisonous tree.

         The Michigan Court of Appeals reviewed this claim for “plain error” affecting Petitioner's substantial rights because Petitioner did not preserve the issue for appellate review by raising it in the trial court.[3] The Court of Appeals then analyzed Petitioner's claim and concluded that his arrest was legal because the officers had reasonable cause to believe that Petitioner had committed a felony. The Court of Appeals noted that Petitioner's clothing matched the suspect's clothing, that he had a suspicious story about why he was sitting on a ledge by a vacant building before 6:00 a.m., and that there was a crowbar lying behind him.

         This Court finds it unnecessary to address the merits of Petitioner's claim because the Supreme Court held in Stone v. Powell, 428 U.S. 465 (1976), that, “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 494 (internal footnote omitted). Petitioner asserts in his reply brief that he did not have a full and fair opportunity to raise his claim in state court due to a breakdown in Michigan's procedural mechanism for raising Fourth Amendment claims. However, “the Powell ‘opportunity for full and fair consideration' means an available avenue for the prisoner to present his claim to the state courts, not an inquiry into the adequacy of the procedure actually used to resolve that particular claim.” Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013).

         “Michigan provide[s] an adequate avenue to raise a Fourth Amendment claim.” Hurick v. Woods, 672 Fed.Appx. 520, 535 (6th Cir. 2016), cert. denied, 138 S.Ct. 96 (2017). A defendant may file a motion to suppress evidence before or during trial, People v. Ferguson, 135 N.W.2d 357, 358-359 (Mich. 1965), and an appellate court may grant relief on a Fourth Amendment claim raised for the first time on appeal “if it appears from the trial record that[, ] had a motion to suppress been made[, ] it should have been granted.” People v. Moore, 216 N.W.2d 770, 773 (Mich. 1974). Although Petitioner apparently abandoned his Fourth Amendment claim in the state trial court, he subsequently raised the claim in the Michigan Court of Appeals and in the Michigan Supreme Court. Because he had an opportunity to present his claim in state court, this Court is precluded from granting him habeas corpus relief on his Fourth Amendment claim. Rashad v. Lafler, 675 F.3d 564, 570 (6th Cir. 2012).

         B. Hearsay

         Petitioner alleges next that he was denied his right of confrontation by testimony about other break-ins on Eight Mile Road on the night in question and by Detective Borcyz' testimony that his thumb print was found at one of the Detroit businesses that was burglarized. Petitioner contends that the testimony was hearsay and that it violated his rights under the Confrontation Clause because he had no opportunity to cross-examine the witnesses who identified him as the perpetrator of the other crimes. The Michigan Court of Appeals adjudicated Petitioner's claim on the merits and concluded that the trial court erred in allowing evidence about Petitioner's fingerprint, but that the error was harmless.

         1. Clearly Established Supreme Court Law

         The Sixth Amendment to the United States Constitution guarantees defendants in criminal cases “the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. But “[a] witness's testimony against a defendant is . . . inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.” Melenez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (citing Crawford v. Washington, 541 U.S. 36, 54 (2004)).

In Melendez-Diaz, the Supreme Court held that the admission of affidavits from forensic analysts who had performed drug analysis on evidence seized from a suspect but did not themselves testify violated the Confrontation Clause. 557 U.S. at 329, 129 S.Ct. 2527. Relying heavily on this decision, the Court in Bullcoming [v. New Mexico, 564 U.S. 647 (2011)] held that the Confrontation Clause barred the admission of a blood alcohol level test where the certifying analyst did not testify and the government instead relied on the testimony of another analyst familiar with the forensic procedures. The Bullcoming Court determined that the analyst's report, like the affidavit at issue in Melendez-Diaz, was testimonial ...

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