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Smith v. Brewer

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

July 16, 2018

ASHTON ARNIZE SMITH, Petitioner,
v.
SHAWN BREWER, Respondent.

          OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS; (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY; BUT (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          LINDA V. PARKER U.S. DISTRICT JUDGE

         Petitioner Ashton Arnize Smith (“Petitioner”), confined at the Cotton Correctional Facility in Jackson, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his Michigan convictions for second degree murder in violation of Michigan Compiled Laws § 750.317, assault with intent to do great bodily harm less than murder in violation of Michigan Compiled Laws § 750.84, and felony-firearm in violation of Michigan Compiled Laws § 750.227b. For the reasons that follow, the Court is denying Petitioner habeas relief and a certificate of appealability, but granting him leave to proceed in forma pauperis on appeal.

         I. Background

         Petitioner's convictions arose from a shooting that occurred in the early morning hours of August 30, 2008, at a townhouse in Detroit, Michigan. Tremaine Johnson and Ashley Wilson lived at the townhouse, which was two stories with a kitchen and living and dining areas on the first floor and two bedrooms and a bathroom on the second floor. (3/1/10 Trial Tr. at 58, 61, 62, ECF No. 15-4 at Pg ID 510, 514, 515.) Johnson and Wilson had been friends since middle school. (Id. at 6, Pg ID 459.) They, along with another school friend, Keith Cooper, sold marijuana from the residence. (Id. at 10-11, Pg ID 464-65.)

         Johnson, Wilson, and Cooper were at the townhouse the evening of August 29, 2008. Johnson went to sleep upstairs at around 10:00 p.m. (3/1/10 Trial Tr. at 65-66, ECF No. 15-4 at Pg ID 518-19.) Melvin Almond, Darryll Duckett, and Anthony Harris also came to the townhouse later that evening or in the early morning hours of August 30. They too were school friends with Johnson, Wilson, and Cooper.

         At Petitioner's bench trial, Almond testified that he lived in the same complex as Johnson and went to Johnson's house at about 3:00 a.m. to finish washing clothes he had started earlier that day. (2/25/10 Trial Tr. at 51-53, ECF No. 15-3 at Pg ID 323-25.) Almond explained that he did not have a washer or dryer in the apartment he lived in with his mother, but Johnson allowed Almond to use his machines. (Id.) Almond testified that he went directly into the basement, where the machines were located, when he arrived at Johnson's house. (Id. at 54, Pg ID 326.)

         About seven to eight minutes later, Almond returned to the first floor and walked toward the living room and adjacent dining room area. (Id. at 55, 64, Pg ID 327, 336.) On his way, Almond passed Petitioner in the hallway walking toward the kitchen and the stairs. (Id. at 64-66, Pg ID 336-38.) Almond testified that he did not know Petitioner. (Id. at 66, pg ID 338.) According to Almond, Petitioner had a wet towel draped over his head and was saying he was “high as hell.” (Id. at 64, Pg ID 336.)

         Almond entered the dining room area, sat down in a chair, plugged his cell phone into the wall, and began texting. (Id. at 67-68, Pg ID 339-40.) He testified that Wilson was sitting in a chair next to the dining room table playing a video game on the television in the adjacent living room. (Id. at 58-59, Pg ID 330-31.) That same chair was overturned when the police arrived after the shooting. (Id.) Cooper and Duckett were sitting on the sectional couch in the living room. (Id. 59-60, Pg ID 331-32.) Harris was asleep on the couch. (Id. at 63, Pg ID 335.)

         Within minutes of Almond sitting down, he heard gunshots, looked up, and saw Petitioner coming towards him from the hallway with a gun in his extended hand. (Id. at 69-70, Pg ID 341-42.) Standing approximately ten to fifteen feet away, Petitioner shot Almond in the upper right part of his chest. (Id. at 71-73, Pg ID 343-45.) From the ground where he fell, Almond saw Petitioner continue shooting in the direction of Wilson, Duckett, Cooper, and Harris. (Id. at 74-75, Pg ID 346-47.)

         Almond described Wilson as trying to escape the gunfire, twisting his body left to move behind the entertainment system when he was shot by Petitioner. (Id. at 76, 80-81, Pg ID 348, 352-53.) Duckett was trying to open the patio sliding door and, realizing the glass had shattered, ran through the frame and away from the townhouse. (Id. at 83-84, Pg ID 355-56.) Almond saw Petitioner chase after Duckett. (Id.)

         Almond then exited the townhouse through the front door, as did Wilson. (Id. at 85-86, Pg ID 357-58.) Almond saw Johnson jump off the townhouse roof and run across the street to seek help from a neighbor. (Id.) Almond ran down the street to his own apartment, and alerted his mother and his aunt that he had been shot. Almond's aunt then drove Almond, Wilson, and Johnson to the hospital.

         Wilson died that day of a single gunshot wound to the right buttock, which exited the right abdomen area. (2/25/10 Trial Tr. at 49, Pg ID 321.) According to the medical examiner's report, there was no evidence of close range firing. (Id.) Wilson was twenty-years old. (Id.)

         Almond testified that he did not see anyone but Petitioner with a gun inside the townhouse. (Id. at 91, Pg ID 363.) He further testified that he was unaware of the shotgun later found by police behind the couch in the living room and never saw anyone with it that evening. (Id. at 92, Pg ID 364.) According to Almond, his friends neither attacked nor made any aggressive movements toward Petitioner. (Id. at 93, Pg ID 365.)

         Duckett's and Cooper's recitations of the incident at Petitioner's trial were similar to Almond's. Duckett provided that he and Harris went to Johnson's townhouse at around midnight or 1:00 a.m. and that Wilson and Almond also were there when the incident occurred. (Id. at 131, Pg ID 403.) According to Duckett, Petitioner (whom he had never met before) and “an acquaintance” came to the house. (Id. at 136, Pg ID 408.) Petitioner left the residence for ten to twenty minutes; and, when he returned, asked Wilson if he could use the bathroom. (Id. at 138, Pg ID 410.) Wilson told Petitioner it was upstairs and Petitioner left for about five minutes. (Id. at 138-39, Pg ID 410-11.)

         Duckett testified that Petitioner then returned to the living and dining room area, pulled a pistol, and shot at Wilson and Almond. (Id. at 139, Pg ID 411.) Duckett explained that he did not actually see Petitioner take a second shot, because Duckett already had started running for the door. (Id. at 143-44, Pg ID 415-16.) Duckett ran out the back patio door and away from the townhouse. (Id. at 143-47, Pg ID 415-419.) Duckett testified that as he fled the premises, he saw Petitioner follow him and play with the gun like it was jammed. (Id. at 147-48, Pg ID 419-20.) Duckett then heard two more gunshots. (Id.)

         Duckett testified that no one argued with Petitioner before the shooting and none of his friends struggled with Petitioner for the gun or grabbed the shotgun during the entire episode. (Id. at 152-54, Pg ID 424-26.) Duckett indicated, however, that Wilson showed Petitioner the shotgun sometime after he first arrived at the townhouse, and allowed Petitioner to hold it. (Id. at 161-62, Pg Id. 433-34.) Wilson told Petitioner he had just bought the shotgun and that it did not have any bullets. (Id.) Petitioner then returned the shotgun to Wilson, who put it back behind the sectional couch. (Id. at 162, Pg ID 434.) Duckett testified that Almond was in the basement when this occurred. (Id.) According to Duckett, Petitioner also bought a marijuana cigarette from Wilson and smoked it, sharing it with Cooper. (Id. at 164, Pg ID 436.)

         At trial, Cooper did not recall when Petitioner arrived at the townhouse, but he remembered Wilson letting him in. (3/1/10 Trial Tr. at 20, ECF No. 15-4 at Pg ID 473.) According to Cooper, Petitioner asked if they wanted to smoke and he, Wilson, and Petitioner did. (Id. at 21, Pg ID 474.)

         Cooper, who testified that he was drunk during the incident, only remembered getting up and heading towards the kitchen when he saw Petitioner coming out of the kitchen shooting a gun. (Id. at 23-24, Pg ID 476-77.) Cooper ran out the front door after hearing one gunshot. (Id. at 29-30, Pg ID 482-83.)

         Petitioner testified that he went to Johnson's house at around 2:00 a.m. on August 30, in order to sell him some Cartier glasses to get money for a hotel room after his “lady friend” kicked him out of her house. (3/4/10 Trial Tr. at 68-69, Pg ID 611-62.) According to Petitioner, Johnson had offered to buy the glasses a week or so earlier. (Id.) Petitioner knew Johnson from the neighborhood and had purchased drugs from him before. (Id. at 67, Pg ID 610.)

         When Petitioner arrived at the townhouse, Wilson let him in the front door. (Id. at 69, Pg ID 612.) Petitioner testified that he knew Wilson because Wilson sold marijuana with Johnson. (Id.) According to Petitioner, Cooper, Duckett, and Almond were at the house when he arrived, as well as a guy asleep on the couch. (Id. at 69, Pg ID 612.) Petitioner described the individuals as occupying the same positions in the two rooms as Almond provided during his testimony. (Id. at 73-74, Pg ID 616-17.) According to Petitioner, the shotgun was standing up behind the sectional couch when he arrived. (Id. at 75, Pg ID 619.)

         Petitioner told Wilson why he was there and asked for Johnson, but Wilson said he was asleep. (Id. at 69-70, Pg ID 612-13.) Petitioner testified that Wilson asked to see the glasses and Petitioner handed them to him. (Id. at 70, Pg ID 613.) Petitioner told Wilson the glasses were worth $1, 700, but he bought them on the street for $300 and that was all he wanted for them. (Id. at 71, Pg ID 614.) Wilson offered Petitioner drugs in lieu of cash, but Petitioner declined saying he needed money to pay for a place to stay for the night. (Id.)

         Petitioner testified that Wilson then asked if he wanted to smoke a marijuana blunt with him, and Petitioner said yes. (Id. at 76, Pg ID 619.) After they and Almond took hits from the blunt, Petitioner asked Wilson again if he was interested in buying the glasses. (Id.) Wilson said he only could give Petitioner marijuana and cocaine for them. (Id.) Petitioner then asked Wilson to use the bathroom. (Id. at 78, Pg ID 621.)

         Petitioner testified that when he returned from using the bathroom, Duckett was in the hallway near the basement door and Almond was standing near a table in the dining room. (Id.) According to Petitioner, Wilson then walked up to him with a pistol in his hand and told him “to check them glasses in.” (Id.) Wilson then put the gun about an inch from Petitioner's chest and took the glasses off his face and passed them to Duckett or Cooper. (Id. at 78, 82, Pg ID 621, 625.) Petitioner “attacked” Wilson for the gun and they began to struggle for it, with Petitioner eventually disarming Wilson. (Id. at 82, Pg ID 625.)

         Petitioner testified that he then was going to run out the front door but worried that someone would grab the shotgun and shoot him. (Id. at 82-83, Pg ID 625-26.) He claimed that he then saw Wilson run toward the shotgun and so he shot Wilson. (Id. at 83-84, Pg ID 626-27.) Petitioner testified that Almond then went for the shotgun, so he shot him too. (Id. at 84, Pg ID 627.)

         Petitioner testified that he then was going to run out the front door, but thought that Johnson's friends in the neighborhood might have heard the gunshots, would be looking outside, and would come after him if they saw him running away. (Id. at 85, Pg ID 628.) Petitioner therefore decided to run out through the back patio door. (Id. at 86, Pg ID 629.) He first grabbed his glasses from Cooper's hands and shot twice at the glass of the door. (Id. at 86, Pg ID 629.) Petitioner testified that he then threw the gun down inside the house and fled. (Id. at 86-87, Pg ID 629-30.)

         Petitioner went to his girlfriend's house (different from his lady friend) and stayed there for the night. (Id. at 87-88, Pg ID 630-31.)

         Almond, Duckett, and Cooper testified that they did not see Petitioner wearing glasses at the time of the incident. (2/25/10 Trial Tr. at 92, 153, ECF No. 15-3 at Pg ID 364, 425; 3/1/10 Trial Tr. at 38, ECF No. 15-4 at Pg ID 491.) When asked, Almond testified that he also did not hear anyone talking to Petitioner regarding glasses. (2/25/10 Trial Tr. at 92, ECF No. 15-3 at Pg ID 364.)

         When the police searched the townhouse shortly after the shooting, they found several casings from a 9 mm gun in the living and dining room area. (2/25/10 Trial Tr. at 19-20, ECF No. 15-3 at Pg ID 290-93.) The only firearm found in the residence was a shotgun next to the sectional. (Id. at 23-24, Pg ...


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