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Woods v. Woods

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

January 18, 2019

ALBERT L. WOODS, Petitioner,
v.
JEFFREY WOODS, Respondent.

          HONORABLE GORDON J. QUIST JUDGE

          REPORT AND RECOMMENDATION

          TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE

         This is 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 each conviction.

         Petitioner's 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 evidentiary hearing.
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.

         I. Factual allegations

         Petitioner's 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 days earlier.
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 accomplished.

(Mich. Ct. App. Op., ECF No. 14-10, PageID.703.)

         The 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 Welch.[1]

         Petitioner 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[2] raising five additional issues, including habeas issue III (MCOA Std. 4 brief issue III or II[3]). Thus, Petitioner raised all of the issues he raises in this Court in his direct appeal to the Michigan Court of Appeals.

         By 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.

         The 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).

         Petitioner 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, PageID.870.)

         The 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.)

         Just 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.)

         Petitioner 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 innocence. (Id.)

         Petitioner 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.

         Petitioner 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 ...


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