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Jones v. Bauman

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

July 24, 2018

MARK ANTHONY JONES, JR., #894464, Petitioner,
v.
CATHERINE BAUMAN, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, BUT GRANTING A CERTIFICATE OF APPEALABILITY AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Mark Anthony Jones, Jr. (“Petitioner”) was convicted of first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b), armed robbery, Mich. Comp. Laws § 750.529, carjacking, Mich. Comp. Laws § 750.529a, entering without breaking, Mich. Comp. Laws § 750.111, carrying a concealed weapon, Mich. Comp. Laws § 750.227, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, following a jury trial in the Genesee County Circuit Court. He was sentenced to 40 to 60 years imprisonment on the murder conviction, a concurrent terms of 23 years 9 months to 38 years 4 months on the armed robbery and carjacking convictions, concurrent terms of 2 to 5 years imprisonment on the entering without breaking and concealed weapons convictions, and a consecutive term of 2 years imprisonment on the felony firearm conviction in 2014.

         In his pleadings, Petitioner raises claims concerning the voluntariness of his confession to police, the admission of other acts evidence, the prosecution's due diligence in attempting to locate a witness and the admission of that witness's prior preliminary examination testimony, and the validity of his sentence. For the reasons set forth, the Court denies the petition for a writ of habeas corpus. The Court, however, grants a certificate of appealability on Petitioner's claim concerning the voluntariness of his confession and grants him leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's convictions arise from the shooting death and robbery of an elderly woman at her home in Flint, Michigan in November, 2010. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

On November 17, 2010, 73-year-old Merlyne Wray's son-in-law came to visit her during his lunch break and found her asleep in her chair. Upon further examination, however, he realized that Merlyne was dead. He immediately called 911 and his wife. They noted that Merlyne's white Chevy Malibu was missing and that her home had been somewhat ransacked. Merlyne kept a clean and tidy home, but the drawer next to the chair she was sitting in had been taken out and papers were strewn about. Both bedrooms had also been disturbed. In fact, Merlyne had been shot.
Tips from neighbors led police to 2718 Raskob where police recovered Merlyne's Malibu. The house itself was abandoned, but additional tips led police to 2702 Raskob where several individuals who were seen around the car were located. Officers watched individuals coming and going from the house. One of the individuals whom officers hoped to question ran into a home at 2712 Sloan. The occupants on Sloan gave consent to search the home and officers found defendant lying in a bed. Defendant and several others were arrested and interviewed.[1] Defendant had several cell phones in his possession-one for 275-8517. Officers were given permission to search the home at 2702 Raskob where they found the victim's wallet and two cell phones.
Defendant ultimately confessed to the shooting. At the time of his confession, defendant was 14 years old and in seventh grade, having been held back twice. Although he acknowledged sharing a marijuana “blunt” three hours prior to the interview, defendant denied being under the influence of drugs or alcohol. Defendant initially denied any involvement and, after over an hour of questioning, Officer Shawn Ellis requested Officer Harlan Green transport defendant to the detention center. However, instead of immediately transporting defendant, Green had a conversation with defendant that was not recorded.
Green asked for an opportunity to speak with defendant. Green had been involved in a case dealing with defendant's father, Mark Anthony, Sr., who spent time in federal prison on drug charges. Green told defendant that defendant may have been one of the babies he saw on the night his father was arrested. Green testified that he spoke to defendant as a father would to his son and denied threatening defendant or defendant's family in any way. He wanted defendant to consider the fact that defendant's father was absent for most of his life and that defendant may want to have a family one day and be there for them in a way that his own father was not.
After this conversation, defendant's demeanor changed and he began to cry. Green told Ellis that defendant would like to speak with him again. During this second interview, defendant confessed to murdering Merlyne. Defendant used to see Merlyne when he walked to the bus stop. He knew she lived there by herself. Defendant was alone on the day of the murder, having walked to Merlyne's home. He knocked on the front door. Merlyne opened the door. Defendant told her he had an emergency and asked to use the phone. Merlyne was ready to help, but defendant shot her once, using a .357 revolver that he had stolen a week before when he walked into an unlocked home on Herrick Street and took it. Defendant did not know why he shot her. After shooting the victim, defendant checked the house for money and keys. Defendant took the keys to the Malibu, which were by the door. Defendant found $60 in the dresser in the living room. He also took a wallet and a cell phone. Defendant told his cousin, Antonio Allen, what happened. Defendant gave Antonio the gun and asked him to hide it. He also gave Antonio the car keys.[2]
Ellis and his partner then interviewed Antonio a second time and Antonio provided additional details. Based on the information provided, Ellis returned to 2702 Raskob and located the keys to the Malibu in a “fake” fireplace in the basement. Officers also proceeded to 3128 Raskob and found two weapons.
Information from Merlyne's credit union indicated that her debit/credit card was used after her death. In addition, a person called the credit union on several occasions for information about the account and how to change the account's PIN. The caller was a young male and quite obviously not the victim. The number called from was 275-8517, which was defendant's cell phone number. Items purchased after Merlyne's death included an on-line purchase from Finish Line for two pairs of Nike tennis shoes. The items were billed to Merlyne's name, with a billing address of 828 Leland Street, although the shipping address was 2618 Gibson Street-defendant's address. The card was also used for at least two transactions with Page Plus to add minutes to a phone. The incoming phone number to the call center for the transactions was 6184420, another of defendant's cell phone numbers. After listening to the customer service recordings, Officer Ellis identified defendant as the caller. Merlyne's card was also used at the 7-11 store at Flushing and Ballenger.
However, in terms of physical evidence connecting defendant to the crime, only defendant's partial palm print match was lifted from the front passenger panel of the Malibu. Other items were either not tested or inconclusive. It was defendant's theory of the case that his cousin Antonio and others were responsible for Merlyne's death.
As will be discussed in Issue III, Antonio's April 12, 2011 preliminary examination transcript was then read into the record. At the time of the preliminary hearing, Antonio was 16 years old and was placed at the Lakeside Academy for Children by the Juvenile Court. On November 16 or 17, defendant called Antonio and told him to meet him at the corner because defendant was not at Antonio's “baby mama house.” Defendant was in a white Malibu. Antonio asked defendant where he got the car. Defendant told Antonio what happened as they drove: “He said he shot her. I said, ‘You shot who?' He said he shot her. I said, ‘What'd you do that for?' And then he didn't tell me.”
The following day, defendant picked up Antonio again and they went to their aunt's house on Raskob. Defendant went to the store and Antonio was in the basement when his aunt called him upstairs because the police were there. Antonio was arrested and taken to the police department for interviewing. He told them the truth-that defendant told Antonio he had taken the Malibu from the lady's house. Defendant had also shown Antonio the wallet he took from Merlyne's house. It still had her ID in it. Defendant allowed Antonio to use Merlyne's card to reactivate his phone. The card numbers had been written on a piece of paper. Antonio also saw a .357 in the car, which the police ultimately recovered.
During cross-examination, Antonio testified that his parents were not present when police interviewed him. He sat in the police cruiser for two hours and then in a cell for an additional three hours before being questioned. Antonio found out the next day that he had been charged with open murder. Antonio was released from juvenile detention after a month. The prosecutor told Antonio that if he would “commit and take the Accessory after the Fact of the murder charge, that I can leave. And they was going to drop the Felony Firearm.” Antonio anticipated spending six to nine months in juvenile detention in exchange for his testimony; he had been threatened with seven years' imprisonment if he failed to testify.
The jury found defendant guilty of first-degree felony murder, armed robbery, carjacking, entering with intent without breaking, carrying a concealed weapon, and felon-firearm. He was sentenced as outlined above.

People v. Jones, No.321986, 2015 WL 6161651, *1-3 (Mich. Ct. App. Oct. 20, 2105) (unpublished).

         Prior to trial, Petitioner moved to suppress his confession asserting that it was involuntary due to his age, education, learning disability, lack of communication with his parents, and the conduct of the police. The trial court conducted an evidentiary hearing and ruled that the confession was voluntary under the totality of the circumstances. Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was granted. On appeal, the Michigan Court of Appeals agreed that the confession was voluntary and affirmed the trial court's decision to admit the confession. People v. Jones, No. 308482, 2012 WL 4839858 (Mich. Ct. App. Oct. 11, 2012) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Jones, 494 Mich. 852, 830 N.W.2d 137 (2013). Petitioner filed a motion for reconsideration, which was also denied. People v. Jones, 495 Mich. 855, 835 N.W.2d 583 (2013).

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals asserting that the trial court erred in admitting other bad acts evidence, that the trial court erred in admitting Antonio Allen's preliminary examination testimony where the prosecution failed to exercise due diligence in securing his presence at trial, and that his sentence is disproportionate. The court denied relief on those claims and affirmed his convictions and sentence. Jones, 2015 WL 6161651 at *4-15. Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Jones, 499 Mich. 884, 876 N.W.2d 555 (2016).

         Petitioner thereafter filed his federal habeas petition raising the same claims presented to the state courts on interlocutory and direct appeal. Respondent filed an answer to the petition contending that it should be denied for lack of merit.

         III. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners ...


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