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Edwards v. McCullick

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

July 17, 2018

DEMETRIUS WILLIAM EDWARDS, Petitioner,
v.
MARK MCCULLICK, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) GRANTING A CERTIFICATE OF APPEALABILITY WITH RESPECT TO PETITIONER'S THIRD CLAIM, AND (3) DENYING A CERTIFICATE OF APPEALABILITY WITH RESPECT TO PETITIONER'S REMAINING CLAIMS

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254.[1] Petitioner Demetrius William Edwards was convicted after a bench trial in the Wayne Circuit Court of first-degree felony murder, Mich. Comp. Laws § 750.316. Petitioner was sentenced to life imprisonment.

         The petition raises four claims: (1) Petitioner's right to a public trial was violated when the courtroom was cleared of members of the public during his preliminary examination, (2) Petitioner was denied adequate notice of the charges because the felony information omitted the element of malice from the felony murder charge, (3) Petitioner's right to be personally present, his right to confront witnesses, and his right to counsel were violated during two mid-trial visits to the crime scene, and (4) Petitioner was denied the effective assistance of counsel by his attorney's failure to investigate prosecution witness Deonte Smith prior to trial.

         The Court finds that Petitioner's claims are without merit or barred by his state court procedural defaults. Therefore, the petition will be denied. The Court will, however, grant a certificate of appealability with respect to Petitioner's third claim, but it will deny a certificate of appealability with respect to his other claims.

         I. Background

         The Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This case is the latest and-with life sentences-now the last of these young defendants' routine disrespect for the rule of law. The facts of this case stretch back to the evening of September 24, 2010. On that day, Edwards was free on a GPS tether to “settle [his] affairs, ” having been sentenced just the day before for a prior armed robbery conviction. Apparently, those affairs included a trip to the Eastland Mall with Royster and two acquaintances, Devante Smith and Jaisaun Holt.
Around 8:30 p.m., the decedent, Cedell Leverett, was sitting in the driver's seat of his Mercedes parked in the valet area of Eastland Mall. Another car was parked nearby. Deborah Gaca observed Edwards get out of the other car, and run towards the valet area in a crouched position. Edwards was holding a gun. Royster, who was standing outside the driver's side of the other car, yelled, “Pop him, pop that mother f***** good.” Edwards then fired four shots into the Mercedes at close range, killing Leverett. Edwards ran back to the other car, which was backing out, and fled the scene. Police subsequently arrived and found over $3, 000 in the decedent's pocket. Corroborating Edwards's and Royster's presence at the Eastland Mall during this time were a surveillance video and Edwards's tether records.
Holt confirmed in a police interview (which he later disavowed at trial) that Edwards intended “to get [the decedent's] glasses and he hit him, ” before Royster whisked them away in the car. Although Holt also elaborated that Edwards claimed to have shot the decedent after the decedent brandished a firearm, police found no weapons in or around the Mercedes or on the decedent's person during their investigation immediately after the shooting. Devante claimed the others left the Eastland Mall without him.
Deonte Smith, Devante's brother, provided further information regarding the shooting during a police interview. Deonte stated that he saw defendants, Holt, and his brother (Devante) at a high school football game sometime after the shooting. At the game, “they” told Deonte they had seen a man walking around the Eastland Mall with a diamond watch and $12, 000 to $15, 000 cash in his pocket. Holt kept tabs on this man and reported to Edwards by phone. Edwards “bragged” to Deonte that he tracked the man outside and tried to rob the man of his watch, but because the man was reaching for something, Edwards shot him. Others at the football game told Edwards he was stupid for not getting anything.
About a week after the shooting, a security officer at the Northland Mall in Southfield saw Edwards toss a gun under an SUV in the parking lot while fleeing a fight. Edwards was arrested at the scene. Royster was apparently arrested shortly thereafter. Subsequent tests of the gun revealed that this weapon had fired the shell casings and bullet fragments found in and around the Mercedes and inside the decedent at the Eastland Mall one week earlier. In addition, police interviewed another individual who had previously accompanied the decedent on the day of his death and whom the police found at the scene of the Eastland Mall after the shooting. That individual surrendered a diamond watch and sunglasses. Notably, the decedent's daughter saw the decedent wearing a diamond watch and sunglasses earlier that same day.
The case subsequently proceeded to trial at the conclusion of which the court made its findings on the record. As noted, the court acquitted defendants of first-degree premeditated murder, but found them guilty of the offenses at issue. Defendants were sentenced, and this appeal followed.

People v. Edwards, 2015 WL 1069275, at *1-2 (Mich. Ct. App. March 10, 2015).

         Following his conviction and sentence, Petitioner filed an appeal of right. His appellate counsel filed an amended brief on appeal, raising what now form his four habeas claims among the six claims raised:

I. Defendant Edwards was deprived of his structural right to a public trial when the district court judge expelled the members of the public in attendance at the preliminary examination at the end of business hours and proceeded to conduct the preliminary examination in the complete absence of the general public and ultimately secured testimony from Deonte Smith, this error seriously affecting the fairness, integrity, and public reputation of the judicial proceedings because the preliminary examination testimony of Deonte Smith which was secured in violation of defendant Edwards' Sixth Amendment right to a public trial was ultimately introduced at the trial itself and relied upon by the trier of fact.
II. Reversal is required where the trial court failed to comply with MCR 6.402(b) by neglecting “by personally addressing the defendant” to ascertain, whether defendant Edwards had voluntarily chosen to give up his Sixth Amendment right to trial by jury, given the strong presumption against waiver of fundamental constitutional rights and that waiver cannot be presumed to be voluntarily from a silent record.
III. The felony murder conviction must be vacated where the trial court judge's factual findings were fundamentally inconsistent with the guilty of felony murder verdict, given that the trial court judge acquitted defendant Edwards of felony murder when he concluded that there was no proof of malice and when he declared that he did.
IV. Violation of defendant Edwards' Sixth and Fourteenth Amendment right to adequate notice of charge require reversal, where defendant Edwards was charged with felony murder, but the felony information and the statute itself omitted the essential mens rea of malice element, leaving Defendant Edwards completely unaware of the prosecution's duty to prove this element and hindering his ability to prepare to disprove it.
V. Defendant Edwards was (1) deprived of his right to be present during all critical stages of the proceedings where he was excluded from the viewing of the alleged scene of the crime over his objection, without adequate justification for his exclusion; (2) denied his right to confrontation when one of the star witnesses was permitted to attend the viewing of the alleged scene of the crime and permitted to provide additional testimony in defendant Edwards' absence; (3) deprived of his Sixth Amendment right to counsel during a critical stage of the proceedings when the trial court judge who was also the trier of fact reported to the alleged scene of the crime, for a second time, without defendant Edwards, his attorney, or the prosecutor and relied on evidence that he gathered during his solo viewing to convict defendant Edwards.
VI. Defendant Edwards was deprived of his Sixth Amendment right to the effective assistance of counsel where trial court counsel failed to conduct a pretrial investigatory interview of essential prosecution witness Deonte Smith, who was the only witness who supported that the homicide occurred during the commission of an attempted larceny.

         Petitioner also filed a supplemental pro se brief raising an additional five claims:

I. Mr. Edwards is entitled to a new trial because the constitutional requirement that the felony information set forth every element of the crime charged was abdicated where the felony murder statute does not completely define the crime of felony murder, and the felony information in this case lacked the essential element of malice contrary to U.S. Const. Ams. VI, XIV, resulting in a failure to charge a criminal offense, thus this portion of the information must be quashed.
II. Mr. Edwards is entitled to a new trial because he was denied his Sixth and Fourteenth Amendment right to a public trial by the court's removal of the public from the preliminary examination at the end of business hours, and proceeded with the examination to secure the testimony of Mr. Deonte Smith, who for some unknown reason did not want to testify in public. Smith subsequently refused to testify at trial on the ground of privilege and his recorded testimony was used to convict Mr. Edwards, then a new trial is required.
III. Mr. Edwards is entitled to a new trial because the trial court's factual findings were inconsistent with the guilty of felony murder verdict to the extent that the trial judge concluded that Appellant did not initially intend to kill the decedent. Thus, Appellant's felony murder conviction must be vacated in absence of a judicial finding of the element of malice.
IV. Mr. Edwards is entitled to a new trial because trial counsel was ineffective for failing to object to: (a) the felony information which charged no crime, (b) the closure of the courtroom during preliminary examination, (c) the trial court's failure to comply with MCR 6.402, (d) the trial court's second visit to the crime scene without counsel or notice to defendant and opportunity to be heard on any objections, and failing to investigate contrary to U.S. Const. Ams. VI and XIV; Const. 1963, Art. I, sec. 20.
V. Mr. Edwards is entitled to a new trial because the register of actions show that there was no criminal complaint filed in this case and the filing of a recommendation for a warrant does not constitute a complaint as defined by MCR 6.101. Thus, in absence of a filed complaint, lawful judicial authority is absent and the proceedings are without legal force or effect.

         The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion. Edwards, 2015 WL 1069275. Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court filed by his current counsel. The application raised what now form his four habeas claims, as well as additional claims not present in this action. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed. People v. Edwards, 870 N.W.2d 68 (Mich. Oct. 15, 2015)(Table).

         II. Standard of Review

         28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was “contrary to” or resulted in an “unreasonable application of” clearly established Supreme Court law.

         “A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

         “[T]he ‘unreasonable application' prong of the statute permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003), quoting Williams, 529 U.S. at 413.

         “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). “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. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103 (internal quotation omitted).

         III. Analysis

         A. Public Trial

         Petitioner's first claim asserts that his right to a public trial was violated when the state district judge cleared members of the public from the courtroom during the first day of the preliminary examination. Petitioner claims that the error was prejudicial because after the courtroom was cleared witness Deonte Smith provided what Petitioner claims is the only evidence that the murders were perpetrated during the course of a robbery. Respondent asserts in part that the claim is procedurally defaulted because no contemporaneous objection was made to the closure of the courtroom.[2]

         The Sixth Amendment to the United States Constitution guarantees that a criminal defendant, “shall enjoy the right to a . . . public trial.” U.S. Const. Amend. VI. This right is made applicable to the States through the Fourteenth Amendment. Presley v. Georgia, 558 U.S. 209, 212 (2010) (citing In re Oliver, 333 U.S. 257 (1948)). “The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” Id., at 270 n.25 (quotation marks and citation omitted). “In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.” Waller v. Georgia, 467 U.S. 39, 46 (1984).

         The Waller Court identified four factors a court must consider, and findings a court must make, before excluding members of the public from the courtroom: (i)“the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, ” (ii) “the closure must be no broader than necessary to protect that interest, ” (iii) “the trial court must consider reasonable alternatives to closing the proceeding, ” and (iv) “it must make findings adequate to support the closure.” Id. at 48.

         Like many other constitutional rights held by the criminally accused, however, the right to a public trial may be forfeited or waived if not asserted. See Levine v. United States, 362 U.S. 610, 619 (1960) (“The continuing exclusion of the public in this case is not to be deemed contrary to the requirements of the Due Process Clause without a request having been made to the trial judge to open the courtroom at the final stage of the proceeding, thereby giving notice of the claim now made and affording the judge an opportunity to avoid reliance on it. This was not a case of the kind of secrecy that deprived petitioner of effective legal assistance and rendered irrelevant his failure to insist upon the claim he now makes. Counsel was present throughout, and it is not claimed that he was not fully aware of the exclusion of the general public.”).

         As the Sixth Circuit explained:

While we agree that the right to a public trial is an important structural right, it is also one that can be waived when a defendant fails to object to the closure of the courtroom, assuming the justification for closure is sufficient to overcome the public and media's First Amendment right to an open and public trial proceeding. See Freytag v. Commissioner, 501 U.S. 868, 896 (1991) (“[T]he Sixth Amendment right to a trial that is ‘public,' provide[s] benefits to the entire society more important than many structural guarantees; but if the litigant does not assert [it] in a timely fashion, he is foreclosed.”) (collecting cases); see also Peretz v. United States, 501 U.S. 923, 936-37 (1991) (citing Levine v. United States, 362 U.S. 610, 619 (1960)). Because [the habeas petitioner] failed to object to the closure, his claim is procedurally defaulted unless he can show cause and prejudice for the default. Coleman v. Thompson, 501 U.S. 722, 750 (1991).”

Johnson v. Sherry, 586 F.3d 439, 444 (6th Cir. 2009).

         Here, neither counsel for Petitioner nor counsel for his co-defendant objected to the removal of members of the public during the preliminary examination.

         The record indicates that for about a half-hour during the first day of the preliminary examination, proceedings were interrupted by repeated disturbances by members of the public, prompting the court to remove member of the public from the hearing. In the midst of an otherwise unremarkable examination of a witness by the prosecutor during the preliminary examination, there appears an alarming entry in the record: “(At 3:54 p.m. to 3:55 p.m., riot in courtroom).” Dkt. 7-3, at 76. The next fifteen pages of the record describe the tumult in the courtroom and the court's efforts to retain control over the proceedings:

• The court warns anyone that is standing that they will be arrested. Id. at 76.
• A police officer orders an unidentified man out of the courtroom. Id.
• The court warns the people in the courtroom about the dangers of a mob mentality. Id. at 77.
• Two people leave the courtroom crying. Id.
• A member of the public accuses one of the defendants of saying, “that's why that ...

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