United States District Court, W.D. Michigan, Northern Division
ALBERT L. WOODS, Petitioner,
JEFFREY WOODS, Respondent.
HONORABLE GORDON J. QUIST JUDGE
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Albert L. Woods is
incarcerated with the Michigan Department of Corrections at
the Kinross Correctional Facility (KCF) in Kincheloe,
Michigan. Following a six-day jury trial in the Kent County
Circuit Court, Petitioner was convicted of one count of armed
robbery and one count of conspiracy to commit armed robbery,
Mich. Comp. Laws § 750.529. On July 2, 2012, the court
sentenced Petitioner to prison terms of 25 to 50 years for
timely filed habeas corpus petition raises five grounds for
relief, paraphrased as follows:
I. Was Petitioner's arrest illegal, where an arrest
warrant was not obtained for two more days, accordingly any
statements made or evidence obtained as a consequence of the
arrest must be suppressed. Counsel was ineffective for
failing to file a motion to suppress.
II. Were Petitioner's Fourth Amendment rights violated
when, without a warrant, the police placed a GPS tracking
device on Petitioner's vehicle without a warrant. Counsel
was ineffective for failing to move to suppress, any and all
results of this warrantless search, and a remand should be
held for an evidentiary hearing.
III. Petitioner was denied a fair trial when the government
violated Petitioner's due process rights when upon
request the government did not produce discovery.
IV. Petitioner was deprived of due process when the trial
judge imposed a retaliatory sentence for failing to accept a
plea bargain, and instead choosing a trial.
V. Petitioner's counsel was ineffective and the trial
court abused its discretion in denying a motion to hold an
VI. Petitioner's Sixth Amendment rights were violated
when the prosecutor was allowed to present reports through a
witness other than the individual who prepared the reports.
(Pet., ECF No. 1, PageID.16-26.) Respondent has filed an
answer to the petition (ECF No. 13) stating that the grounds
should be denied because they are non-cognizable,
procedurally defaulted, and meritless. Upon review and
applying the standards of the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214
(AEDPA), I find that the grounds are procedurally defaulted
or meritless. Accordingly, I recommend that the petition be
denied. Moreover, I recommend that Petitioner's motion to
produce documents (ECF No. 15), Petitioner motion to stay
(ECF No. 18), and Petitioner's motion to amend (ECF No.
19) be denied.
habeas issues focus on deficiencies before the trial, during
the trial outside the presence of the jury, and after the
verdict. Petitioner argues that much of the evidence admitted
at his trial should have been suppressed or excluded; but he
does not argue that the evidence admitted was insufficient.
Because Petitioner does not question the sufficiency of the
evidence in this Court, and because he does not contest the
factual summary offered by the Michigan Court of Appeals, the
Court will rely on that summary:
In the early morning hours of September 1, 2011, two masked
men robbed a McDonald's restaurant on Alpine Road in
Grand Rapids at gun point. The robbers entered the dining
room through a door that mistakenly had been left unlocked.
After ordering the restaurant's three employees to lie on
the ground, the masked men forced the store manager to give
them the contents of the safe. The robbers absconded with
$400 worth of paper gift certificates and $3, 233.73 in cash.
The victims were only able to describe their assailants as
African-American males who wore dark or black clothes. The
victims agreed that one of the men carried a revolver.
Surveillance footage also revealed that the robbers wore
white cloth gloves.
As the robbers fled the scene, surveillance cameras captured
their images and showed the men entering an older black
Camaro. The men were witnessed by two employees of a nearby
Wal-Mart. And a man, who had been at the drive-through window
during the robbery, testified that he saw a dull black Camaro
drive away at a high rate of speed.
Later that morning, a Kent County Sheriff's deputy
located a dull black, older Camaro parked in a nearby
apartment complex, York Creek. Sheriff's deputies
conducted visual surveillance of the vehicle from 8:00 a.m.
until 4:00 p.m. The deputies executed a search warrant for
the vehicle's interior and found several white gloves.
Inside one glove, investigating deputies found DNA evidence,
which later testing matched to defendant. Without first
securing a warrant, the deputies placed a magnetic GPS
tracking system under the vehicle's rear bumper. The
deputies then discontinued visual surveillance.
Within ten minutes of leaving the scene, the deputies
received a text message from the GPS system indicating that
the Camaro was in motion. Several units followed the vehicle
until its driver committed a traffic infraction. A fully
marked sheriff's vehicle effectuated a traffic stop and
the detectives approached. Defendant was the lone occupant of
the car. He indicated that he had purchased the vehicle only
two hours earlier but could not remember where he made the
purchase. And a certificate found in defendant's wallet
showed that he had secured insurance for the vehicle four
One deputy directed defendant to exit the vehicle and
conducted a pat-down search, finding several large rolls of
currency in defendant's pocket. The funds were of various
denominations (193 singles, 53 fives, 13 tens, 33 twenties,
and 2 fifties), totaling $1, 348. Defendant claimed that the
funds were the proceeds of a check he had just cashed. Yet,
defendant could not tell the officers the amount of the check
or how much money he had on his person. The deputies seized
the currency, as well as defendant's wallet and cell
phone, and took defendant into custody.
The officers secured a warrant to search the contents of
defendant's cell phone. The deputies found a video of
defendant and another man, codefendant Cedric Welch, Jr.,
pretending to swim in a pile of money. They also found
pictures of defendant and Welch holding a large amount of
currency near their faces. The video had been e-mailed to
defendant's Google account from an account owned by
Welch. The pictures and the video were all taken or
transferred on the morning of September 1, following the time
of the robbery.
After taking defendant into custody, the deputies executed a
search warrant at his apartment. They found 18 booklets of
McDonald's paper gift certificates. They also found dark
clothing lying on the ground outside of the master bedroom
closet. There were spores on the pants matching plant life
found along the trail between the Camaro's parking spot
and the York Creek apartment of Welch's girlfriend. The
deputies matched the still photographs of defendant and Welch
holding currency to this location.
The deputies secured a warrant to search an apartment in York
Creek belonging to Welch's girlfriend. The video of the
men swimming in money was matched to this location. The
officers then secured a search warrant for the home where
Welch resided with his parents. In Welch's bedroom, the
deputies found a plastic case for a revolver-style Daisy air
gun. There was an alternate second barrel inside the case,
but the revolver was never found. The deputies also never
recovered the remainder of the currency. Of note,
investigation of defendant's and Welch's cell phone
records revealed that they were in the area of the Alpine
Road McDonald's near the time of the robbery.
Welch apparently was not arrested immediately. On November 2,
2012, defendant used a recorded jail telephone to contact
Welch. The conversation was very cryptic and defendant
immediately instructed Welch not to use any names. Defendant
instructed Welch to send a text message to defendant's
cell phone that would activate a Prey software application he
had downloaded onto his phone. This task was never
(Mich. Ct. App. Op., ECF No. 14-10, PageID.703.)
jury deliberated for about a day and a half before returning
its verdict finding Petitioner guilty of armed robbery and
conspiracy to commit armed robbery. The jury continued its
deliberations with regard to Petitioner's co-defendant
Welch even after it returned its verdict with respect to
Petitioner. The jury could not reach a verdict with regard to
directly appealed his convictions and sentences to the
Michigan Court of Appeals (MCOA). In the brief Petitioner
filed with the assistance of counsel, he raised seven issues
including his habeas issue I (MCOA appeal brief issue I),
habeas issue II (MCOA appeal brief issue II), habeas issue IV
(MCOA appeal brief issue VI), habeas issue V (MCOA appeal
brief issue VII), and habeas issue VI (MCOA appeal brief
issue VII). Petitioner also filed a Standard 4
brief raising five additional issues, including
habeas issue III (MCOA Std. 4 brief issue III or
Thus, Petitioner raised all of the issues he raises in this
Court in his direct appeal to the Michigan Court of Appeals.
opinion issued December 19, 2013, the court of appeals
affirmed the trial court with respect to all of the issues
Petitioner raised, except one. (Mich. Ct. App. Op., ECF No.
14-10, PageID.703-720.) The court agreed with Petitioner that
the trial court erred with respect to scoring a particular
offense variable under the Michigan sentencing guidelines.
(Id., PageID.717-720.) The court of appeals remanded
the case to the trial court for resentencing.
trial court resentenced Petitioner to 22 to 50 years on each
count on January 27, 2014. (Sentencing II Tr., ECF No.
14-12.) Petitioner, with the assistance of counsel, directly
appealed his new sentence. At the same time, Petitioner
continued to pursue the direct appeal of his initial
convictions. Petitioner filed a pro per application for leave
to appeal in the Michigan Supreme Court (MSC). He raised five
issues, including habeas issue I (MSC issue II), habeas issue
II (MSC issue I), habeas issue V (MSC issue V), and habeas
issue VI (MSC issue IV).
did not raise his habeas issues III or IV in the Michigan
Supreme Court. The supreme court denied leave by order
entered June 24, 2014. (Mich. Order, ECF No. 14-11,
Michigan Court of Appeals denied relief on Petitioner's
challenge to his resentencing by opinion issued May 26, 2015.
(Mich. Ct. App. Op., ECF No. 14-15, PageID.1030-1032.)
Petitioner did not further pursue his appeal of the
resentencing in the Michigan Supreme Court. (Affid. of Larry
Royster, ECF No. 14-16, PageID.1078.)
before the Michigan Court of Appeals issued its resentencing
appeal opinion, Petitioner filed a motion for relief from
judgment in the trial court raising sixteen new issues. (Mot.
for Relief from J., ECF No. 14-13.) On May 12, 2015, two
weeks before the court of appeals rejected Petitioner's
second appeal, the trial court denied Petitioner's motion
under all three of the circumstances identified in Michigan
Court Rule 6.508(D) that preclude relief: (1) Petitioner
sought relief from a judgment of conviction that was still
subject to challenge on appeal; (2) Petitioner sought relief
on grounds that had already been decided against him on his
initial appeal; and (3) Petitioner raised grounds for relief
that could have been raised on appeal, but were not, and he
had failed to show cause to excuse the failure and resulting
prejudice, or actual innocence. (Kent Cty. Cir. Ct. Order,
ECF No. 14-14, PageID.1028-1029.)
sought leave to appeal the circuit court's denial of his
motion in the Michigan Court of Appeals. He reduced the
number of issues raised, however, from sixteen to eight. The
court of appeals denied relief by order entered January 8,
2016. (Mich. Ct. App. Order, ECF No. 14-17, PageID.1079.) The
court of appeals concluded that relief on the issues raised
was barred, not by all three circumstances from Rule
6.508(D), but by only one: Petitioner had failed to establish
cause for failing to raise the issues previously or
prejudice, and his failure was not excused by his actual
raised the same eight issues in the Michigan Supreme Court by
way of an application for leave to appeal the court of
appeals order. That court denied leave by pro forma order
entered November 30, 2016. (Mich. Order, ECF No. 14-18,
PageID.1144.) The court of appeals' order is the
“last reasoned decision” stating why the motion
for relief from judgment was denied. Accordingly, under
Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991), it
is the decision this Court will rely upon in determining the
reason for the rejection of Petitioner's claims.
filed the instant petition a few months later. After
Respondent filed the answer, Petitioner sought several
different types of relief from this Court. First, Petitioner
asked the Court to order Respondent to produce the Rule 5
materials. (Pet'r's Mot., ECF No. 15.) It appears
that Petitioner's receipt of those materials may have
been delayed by a prison transfer. Based on Petitioner's
subsequent reply brief (Pet'r's Reply Br., ECF No.
20), it appears he has received the materials he sought.
Second, Petitioner asked the Court for an ...