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Hunter v. Burt

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

January 9, 2019

Andre Lamar Hunter, #761529, Petitioner,
v.
S.L. Burt, Respondent.

          Hon. Paul L. Maloney, Judge.

          REPORT AND RECOMMENDATION

          Phillip J. Green, United States Magistrate Judge.

         This matter is before the Court on Hunter's petition for writ of habeas corpus. In accordance with 28 U.S.C. § 636(b), authorizing United States Magistrate Judges to submit proposed findings of fact and recommendations for disposition of prisoner petitions, the undersigned recommends that Hunter's petition be denied.

         Background

         In the early morning hours of January 25, 2009, David Hall was shot and killed. As a result, Petitioner was charged with first degree murder and possession of a firearm during the commission of a felony. (ECF No. 12-16 at PageID.1117). Several individuals testified at Petitioner's jury trial. The relevant portions of their testimony are summarized below.

         I. David Haines

         At approximately 3:20 a.m. on January 25, 2009, Haines, a City of Detroit police officer, was dispatched to the Tippin Inn. (ECF No. 12-17 at PageID.1293-95). Upon arrival, Haines observed a four-door Grand Prix automobile with bullet holes in both driver's side doors. (ECF No. 12-17 at PageID.1295-97). The area where this vehicle was located “was well lit” by street lights. (ECF No. 12-17 at PageID.1297-1301). Haines discovered a surveillance camera on the exterior of the bar and additional surveillance cameras inside the bar. (ECF No. 12-17 at PageID.1297-98).

         II. Ronald Gibson

         As of January 25, 2009, Gibson was assigned to the Detroit Police Department Criminal Investigation Bureau as the leader of the video forensics team. (ECF No. 12-17 at PageID.1318). On or about this date, Gibson was dispatched to the Tippin Inn to “extract video data” from the facility's surveillance cameras. (ECF No. 12-17 at PageID.1318-31). When he reviewed and edited the recovered video footage, Gibson focused on a subject wearing a “hoodie and black jacket, ” as such was consistent with the information he had been provided regarding the incident. (ECF No. 12-17 at PageID.1332). Gibson later produced a series of still photos from the video data he recovered. (ECF No. 12-17 at PageID.1324-25). Several of these photos depicted David Hall and another person being followed outside the Tippin Inn by the subject in the hoodie and black jacket. (ECF No. 12-17 at PageID.1335).

         III. Melicia Walker-Samuels

         In 2008, Walker-Samuels gave birth to a daughter. (ECF No. 12-18 at PageID.1391-92). Unbeknownst to Walker-Samuel's husband, David Hall was the father of this child. (ECF No. 12-18 at PageID.1391, 1394). At approximately 9:00 p.m. on the evening of January 24, 2009, Hall and Walker-Samuels met at a gas station. (ECF No. 12-18 at PageID.1391-94). Hall was upset that he was unable to visit with his daughter, but Walker-Samuels had not yet told her husband that he was not the father of her child. (ECF No. 12-18 at PageID.1392-96). Hall provided Walker-Samuels with items for their daughter, after which the pair departed separately. (ECF No. 12-18 at PageID.1392-94).

         Early on the morning of January 25, 2009, Hall and Walker-Samuels spoke on the telephone. (ECF No. 12-18 at PageID.1395-96). Walker-Samuels asked Hall if he would “take care of” her if she told her husband that Hall was the father of her child. (ECF No. 12-18 at PageID.1395). Hall responded, “yeah, I'm on my way.” (ECF No. 12-18 at PageID.1395). Shortly thereafter, Walker-Samuels was informed that Hall had been killed. (ECF No. 12-18 at PageID.1396-98).

         IV. Patrice Walker

         As of January 25, 2009, Walker and David Hall were in a relationship and lived together. (ECF No. 12-18 at PageID.1438-39). On the evening of January 24, 2009, Walker and Hall met with Melicia Walker-Samuels so that Hall could deliver “the things he bought for the baby.” (ECF No. 12-18 at PageID.1439-41). During this meeting, Hall and Walker-Samuels “got into a little altercation.” (ECF No. 12-18 at PageID.1440-41). Later that evening, Walker and Hall went to the Tippin Inn. (ECF No. 12-18 at PageID.1441-42). While there, Hall received a telephone call from Melicia Walker-Samuels who informed Hall that “her husband put her and the baby out.” (ECF No. 12-18 at PageID.1442).

         Following this telephone call, Walker and Hall exited the Tippin Inn and began walking toward Walker's Grand Prix automobile. (ECF No. 12-18 at PageID.1442). Before the pair could depart, however, a man wearing “a yellow hoodie and a black jacket” approached the pair and fired “two or three” shots at Hall. (ECF No. 12-18 at PageID.1443-44). Walker later selected Petitioner from a photo array presented to her by the police. (ECF No. 12-19 at PageID.1496). At trial, Walker identified Petitioner in several of the photos Ronald Gibson produced, and also directly identified Petitioner as the man who killed Hall. (ECF No. 12-18 at PageID.1447-53).

         V. Brian Bowser

         On January 25, 2009, Bowser, a City of Detroit Police Officer, was dispatched to investigate David Hall's killing. (ECF No. 12-19 at PageID.1503-04). As part of his investigation, Bowser spoke with Patrice Walker who was “visibly upset, ” but did not appear intoxicated. (ECF No. 12-19 at PageID.1504-05).

         VI. Ronald Smith

         Smith and David Hall were step-brothers and grew up together. (ECF No. 12-18 at PageID.1429). Smith had also known Petitioner for more than 20 years. (ECF No. 12-18 at PageID.1429-31). Smith was shown several of the still photos Ronald Gibson produced from the Tippin Inn video footage. (ECF No. 12-18 at PageID.1431). Smith identified Petitioner as the individual in the photos wearing “a yellow hood and a black jacket.” (ECF No. 12-18 at PageID.1431-32).

         VII. Michael Turner

         Turner and Petitioner were “close friends.” (ECF No. 12-19 at PageID.1527). Turner was at the Tippin Inn when David Hall was killed. (ECF No. 12-19 at PageID.1522-26). Turner was shown portions of the video footage recovered by Ronald Gibson, as well as several of the photos Gibson created, and he was unable to identify Petitioner in any of this material. (ECF No. 12-19 at PageID.1528-33). Turner observed the person wearing the yellow hoodie in the surveillance footage, but indicated that that person was not Petitioner. (ECF No. 12-19 at PageID.1528-34).

         VIII. Germeka Whitaker

         Whitaker and Petitioner are cousins. (ECF No. 12-19 at PageID.1579). Between 1:00-1:30 a.m. on the morning of January 25, 2009, Whitaker arrived at an “after hours” club where she and Petitioner were then working. (ECF No. 12-19 at PageID.1579-80). When Whitaker arrived at the club, Petitioner was already there “to get everything started to set up for the night.” (ECF No. 12-19 at PageID.1580).

         This club was located 20-25 minutes from the Tippin Inn. (ECF No. 12-19 at PageID.1592-94). Whitaker and Petitioner remained at this after-hours club “until the next morning.” (ECF No. 12-19 at PageID.1581-82). Whitaker was shown several of the photos Ronald Gibson produced from the Tippin Inn video footage. (ECF No. 12-19 at PageID.1582). Whitaker indicated that the person in the photos wearing the yellow hoodie was not Petitioner. (ECF No. 12-19 at PageID.1582).

         IX. Andre Hunter

         On the evening of January 24, 2009, Petitioner arrived at the Tippin Inn between 9:00-9:30 p.m. and departed “between 11:30 and 12.” (ECF No. 12-20 at PageID.1607-08). During this time, Petitioner did not see David Hall. (ECF No. 12-20 at PageID.1611). After departing the Tippin Inn, Petitioner picked up “some liquor supplies” and proceeded to the after-hours club he operated, arriving at approximately 12:45 a.m. (ECF No. 12-20 at PageID.1608). Germeka Whitaker arrived soon thereafter. (ECF No. 12-20 at PageID.1610). Petitioner did not depart the after-hours club until 6:00 or 7:00 a.m. (ECF No. 12-20 at PageID.1608). Petitioner was shown several of the photos Ronald Gibson produced from the Tippin Inn video footage. (ECF No. 12-20 at PageID.1611-13). Petitioner indicated that the person in the photos wearing the yellow hoodie was not him, as he was wearing a wine colored button-up shirt on the night in question. (ECF No. 12-20 at PageID.1611-14). Petitioner denied shooting David Hall. (ECF No. 12-20 at PageID.1615).

         Following the presentation of evidence, [1] the jury found Petitioner guilty of first-degree murder and possession of a firearm during the commission of a felony. (ECF No. 12-20 at PageID.1693-96). Petitioner was sentenced to serve life in prison on the murder conviction and a consecutive sentence of two years on the firearm conviction. (ECF No. 12-21 at PageID.1703). Petitioner appealed his conviction in the Michigan Court of Appeals. The following claims were asserted by Petitioner's attorney:

I. Was it error for the trial court judge to deny the Defendant-Appellant's requests that the jury receive the entire text of M Crim JI 7.8, Identification, where the evidence presented during his trial clearly supported the request that the entire text of the instruction be given?
II. Did the insufficient evidence presented during the Defendant-Appellant's trial on the element of identity, to support the jury's verdict of guilty beyond a reasonable doubt of one count each of first degree premeditated murder and possession of a firearm in the commission of a felony, constitute a denial of the due process of law guaranteed by the Fifth Amendment to the United [States] Constitution?

         Petitioner also submitted a pro per supplement in which he asserted the ...


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