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Robinson v. Horton

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

July 27, 2018

LAMARR VALDEZ ROBINSON, Petitioner,
v.
CONNIE HORTON, [1] Respondent.

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

          DENISE PAGE HOOD CHIEF JUDGE

         Lamarr Valdez Robinson, (“Petitioner”), confined at the Chippewa Correctional Facility in Kincheloe, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for assault with intent to commit murder, M.C.L.A. § 750.83, felon in possession of a firearm, M.C.L.A. § 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), M.C.L.A. § 750.227b. The trial court sentenced petitioner as a fourth habitual offender, M.C.L.A. § 769.12, to concurrent terms of 47-1/2 to 120 years' imprisonment for the assault and felon-in-possession convictions, to be served consecutive to two years' imprisonment for the felony-firearm conviction. For the reasons that follow, the petition for a writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted following a jury trial in the Wayne County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

A jury convicted the 39-year-old defendant of shooting 20-year-old Jamel Chubb at a Detroit gas station on May 13, 2010. The prosecution presented evidence that defendant and Chubb were both dating 19-year-old Jessica Taylor, whom defendant had been dating for a couple of years. Defendant learned about the relationship between Taylor and Chubb, and thereafter followed them on multiple occasions and sent several text messages to both Taylor and Chubb. On the day of the shooting, the men had a brief encounter at Taylor's mother's Livonia residence. Upon leaving, defendant told Taylor, “Don't let me catch y'all in the hood.” Later that day, Chubb, Taylor, Jasmine Miller, and Kayana Davies were all at Miller's Detroit residence, and ultimately went to a local gas station. The gas station surveillance video captured an individual wearing a hoodie and riding a bike approach Chubb and shoot him as he was pumping gas. Taylor, who was in the front passenger seat of the vehicle, identified defendant as the shooter. Cellular phone tracking evidence also placed defendant in the area of the gas station at the time of the shooting. The defense theory at trial was misidentification, and the defense argued, inter alia, that Taylor's identification was not credible and the cell phone tracking evidence was not reliable.

People v. Robinson, No. 321841, 2015 WL 6438239, at *1 (Mich. Ct. App. Oct. 22, 2015).

         Petitioner's conviction was affirmed. Id., lv. den. 499 Mich. 916; 877 N.W.2d 729 (2016).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. Defense counsel stipulated to the admission of cell phone tower evidence placing someone using a phone used by the petitioner in the general area.
II. Defense counsel stipulated to the introduction of testimony of irrelevant sex tapes, did not object to lines of questioning regarding those tapes and did not object to the introduction of text messages or testimony portraying petitioner in a bad light.
III. Defense counsel failed to object to the prosecutor's misconduct of referencing facts not in evidence and the prosecutor's appeal to sympathy in both opening and closing arguments. Defense counsel's failure to object denied petitioner of his right to effective counsel and due process of law.
IV. The prosecution failed to produce sufficient evidence to identify petitioner as a perpetrator of the offenses beyond a reasonable doubt.
V. Petitioner was denied the effective assistance of counsel contrary to the Sixth Amendment where counsel failed to call material and alibi witness; for an expert witness; the cumulative effect of error deprived petitioner of a fair trial and due process.
VI. Petitioner was denied due process of law and a fair trial by the presentation of false evidence known to be such by the prosecutor.
VII. Petitioner is entitled to resentencing under Alleyne v. United States, 133 SCT 2151 (2013). Where OV4, OV5, and OV7 were not found by a jury due process requires that petitioner be sentenced on accurate information.
VIII. Petitioner was denied a fair trial and impartial trial by aggressively questioning Kayana Davies and using tones to intimidate a witness; trial judge was apparently bias during sentencing by supporting the people's position on sentencing.

         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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.

         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, 405-06 (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 410-11. “[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)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain habeas relief in federal court, 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 habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         III. Discussion

         A. Claims ## 1, 2, 3, and 5. Ineffective assistance of counsel.

         Petitioner alleges that he was denied due process and the effective assistance of counsel when trial counsel stipulated to testimony given by an expert for the prosecution, when trial counsel stipulated and failed to object to irrelevant testimony, when trial counsel failed to object to prosecutorial misconduct, and when trial counsel failed to call various witnesses.

         To show that he was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id. Petitioner must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “Strickland's test for prejudice is a demanding one. ‘The likelihood of a different result must be substantial, not just conceivable.'” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011)(quoting Harrington, 562 U.S. at 112). The Supreme Court's holding in Strickland places the burden on the defendant who raises a claim of ineffective assistance of counsel, and not the state, to show a reasonable probability that the result of the proceeding would have been different, but for counsel's allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).

         On habeas review, “the question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.'” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Harrington v. Richter, 562 U.S. at 101. Indeed, “because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a Strickland claim brought by a habeas petitioner. Id. This means that on habeas review of a state court conviction, “[A] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Harrington, 562 U.S. at 101. “Surmounting Strickland's high bar is never an easy task.” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). Finally, a reviewing court must not merely give defense counsel the benefit of the doubt, but must also affirmatively entertain the range of possible reasons that counsel may have had for proceeding as he or she did. Cullen v. Pinholster, 563 U.S. 170, 196 (2011).

         Petitioner first alleges that trial counsel was ineffective by stipulating to testimony given by the prosecution's expert witness.

         The trial court judge qualified Larry Smith as an expert in “the workings of Metro PSC” and how it stored, recorded and registered data, finding that “[S]mith's testimony, which was based on the cell phone records as well as Smith's specialized knowledge regarding Metro PCS cell phone towers, helped the jury understand information at issue in the case that an average juror would not have previously known.” People v. Robinson, 2015 WL 6438239, at *2. The Michigan Court of Appeals also found that “[a]ny objection by defense counsel to Smith testifying in that capacity [] would have been futile.” Id.

         Federal habeas courts “‘must defer to a state court's interpretation of its own rules of evidence and procedure' when assessing a habeas petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005)(quoting Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)). Because the Michigan Court of Appeals determined that this evidence was admissible under Michigan law, this Court must defer to that determination in resolving petitioner's ineffective assistance of counsel claim. See Brooks v. Anderson, 292 Fed.Appx. 431, 437-38 (6th Cir. 2008). The failure to object to relevant and admissible evidence is not ineffective assistance of counsel. See Alder v. Burt, 240 F.Supp.2d 651, 673 (E.D. Mich. 2003).

         Petitioner has failed to show a reasonable probability that Larry Smith's expert testimony would have been excluded had an objection been made by trial counsel. Therefore, petitioner is not entitled to habeas relief based on trial counsel's failure to object to the admission of this evidence. See Pillette v. Berghuis, 630 F.Supp.2d 791, 802 (E.D. Mich. 2009); aff'd in part and rev'd in part on other grds, 408 Fed.Appx. 873 (6th Cir. 2010); cert. den. 132 S.Ct. 125 (2011). Petitioner is not entitled to relief on his first claim.

         Petitioner alleges that he was denied the effective assistance of trial counsel when counsel stipulated to the introduction of testimony regarding irrelevant sex tapes and text messages.

         Petitioner claims that trial counsel was ineffective by failing to object to this evidence because it was not admissible under M.R.E. 404(b) and it was too prejudicial.

         When defense counsel focuses on some issues to the exclusion of others, there is a strong presumption that he or she did so for tactical reasons, rather than through sheer neglect, and this presumption has particular force where an ineffective assistance of counsel claim is asserted by a federal habeas petitioner based solely on the trial record, where a reviewing court “may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.” See Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)(quoting Massaro v. United States, 538 U.S. 500, 505 (2003)). In the present case, counsel may very well have made a strategic decision not to object to this testimony, so as to avoid bringing undue attention to the evidence. See Cobb v. Perini, 832 F.2d 342, 347-48 (6th Cir. 1987). “[N]ot drawing attention to [a] statement may be perfectly sound from a tactical standpoint[, ].”United States v. Caver, 470 F.3d 220, 244 (6th Cir. 2006). Stated differently, petitioner is unable to show that counsel's failure to object to this evidence—thus drawing attention to it—was deficient, so as to support an ineffective assistance of counsel claim. See Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010).

         Furthermore, the Michigan Court of Appeals found that “[t]he challenged evidence was relevant to factual issues in this case.” People v. Robinson, 2015 WL 6438239, at *3. The Michigan Court of Appeals also found that the evidence was not unduly prejudicial, and that “defendant has not shown that defense counsel's failure to object to the evidence was objectively unreasonable.” Id. at *4. Petitioner is not entitled to habeas relief on his ineffective assistance of trial counsel claim pertaining to the admission of testimony regarding the sex tapes or text messages, because the evidence was admissible and was found to be not unduly prejudicial. Petitioner is not entitled to relief on his second claim.

         Petitioner alleges that counsel was ineffective for failing to object to various forms of prosecutorial misconduct. Petitioner first claims that the prosecutor improperly referenced facts not in evidence in both opening and closing argument. Petitioner further claims that the ...


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