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Smith v. Hoffner

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

April 8, 2019

DARYL EDWARD SMITH, Petitioner,
v.
BONITA HOFFNER, Respondent.

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

          HONORABLE GERSHWIN A DRAIN UNITED STATES DISTRICT JUDGE

         Daryl Edward Smith, (“petitioner”), confined at the Carson City Correctional Facility in Carson City, Michigan, filed a petition for writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2254, challenging his conviction of possession with intent to deliver 450 grams or more, but less than 1, 000 grams of cocaine, MICH. COMP. LAWS § 333.7401(2)(a)(ii). For the reasons that follow, the petition for writ of habeas corpus is DENIED.

         I. BACKGROUND

         Petitioner was convicted following a jury trial in the Genesee 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 Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

The search and seizure in this case was based on a multijurisdictional drug enforcement unit's, the Flint Area Narcotics Group (FANG), investigating an anonymous tip. Michigan State Police Lieutenant David Rampy testified that he had received a telephone tip on August 14, 2009 with respect to a black male, bald with glasses, driving a black possibly Ford Fusion traveling northbound on I-75, with cocaine in the vehicle. Rampy described that twice before August 14, 2009, at two-week intervals, he had received identical tips; FANG members undertook unsuccessful surveillance activities on each prior occasion.
William Renye, a Grand Blanc Township police officer and member of FANG testified that on the day of the stop, he had received information about an anonymous tip of a black Ford vehicle driving northbound I-75 that was occupied by a black male, having a bald head in his 40's wearing glasses that would be in route to the Flint area with a lot of cocaine. Kenneth Shingleton testified that he worked as a Michigan State Police trooper and had assisted FANG in a traffic stop of defendant. He had heard the radio traffic regarding the anonymous tip and that another officer had observed a vehicle matching the tip description traveling northbound on I-75 and being driven by a black male with glasses and a bald head. Trooper Shingleton observed the suspect vehicle being driven at 80 miles per hour in a 70-mile-per-hour zone and saw defendant's car twice change lanes without signaling. Shingleton requested by radio that a marked police car stop the suspect car. Rampy also testified that he saw the car and driver matching the tip's description heading north on I-75 and “paced” it at approximately 75 miles per hour in a 70-mile- per-hour speed zone.
Michigan State Police trooper Steven Skrbec testified that he stopped defendant's car on August 14, 2009, on the basis of FANG team member reports that the car had improperly changed lanes and was speeding. Skrbec testified that defendant cooperatively provided his driver's license, but would not consent to a search of the car. Grand Blanc Township police sergeant Matthew Simpson testified regarding his expertise as a canine officer searching for drugs and that he went to the a [sic] traffic stop of defendant after hearing a radio call for canine assistance. Simpson testified it took him 10 minutes to arrive with his dog after hearing the radio request. Shingleton testified it took between 15 and 20 minutes from initiating the traffic stop to the arrival of the police dog; Renye thought the drug dog arrived around 15 minutes after the beginning of the stop; Rampy estimated that it took between 20 and 25 minutes for the canine officer to arrive. Defendant estimated that around 10 minutes elapsed between the commencement of the traffic stop and the call for canine assistance, and then another 10 minutes elapsed before the canine officer arrived.
Simpson testified his dog circled the black Fusion and on reaching the driver's side of the car the dog gave a positive alert, biting the handle on the rear door. Simpson testified this action signaled the presence of marijuana, methamphetamines, heroin or cocaine in that area of the car. Shingleton testified that within one to three minutes the police dog began biting and scratching at a driver's-side door handle, which prompted officers to search the black Fusion. On opening the trunk, Shingleton observed a yellow plastic bag near the spare tire. Flint Police officer Scott Watson assisted Shingleton and also described finding yellow plastic baggie containing white powder in the trunk of the Fusion.
Defendant testified that Watson told him that the police pulled him over because he had a Detroit license plate and that “guys come from Detroit all the time carrying large amounts of cocaine.” Defendant also testified that when he asked why he was stopped, Renye said that “we been following you since Grand Blanc, so speeding, changing lanes, pick something.”
The trial court denied the motion to suppress, finding that the police had articulable suspicion that criminal activity was afoot which justified the stop. Specifically, that the police corroborated the tip information that (1) a black Ford Fusion auto would be travelling (2) northbound on (3) I-75 carrying cocaine and driven by (4) a black male (5) who was bald and (6) wearing glasses (7) on August 14, 2009. The court further determined that the time elapsed from the traffic stop to conducting the search with the dog was not unreasonable.
* * *
After other officers found the apparent cocaine inside the black Fusion, Officer Renye arrested defendant and advised him of his Miranda rights. Renye testified that defendant acknowledged his rights, waived them and stated that “the cocaine [in the black Fusion] was his”; the cocaine and packaging weighed 501 grams; he bought the cocaine in Detroit and paid $12, 000 for it; and that he intended to sell the cocaine for $16, 000 in Flint.
At trial, an expert in latent fingerprint print examination testified that a latent fingerprint on a Ziploc bag recovered from the black Fusion's trunk and concluded that the print matched defendant's right middle fingerprint. An expert chemical analyst testified that the 490.9 grams of the substance he tested contained cocaine. Officer Watson testified that in his training and experience the 490-gram quantity of cocaine that was seized was meant for delivery.

People v. Smith, No. 305437, 2013 WL 5857567, at *1-2, 8 (Mich. Ct. App. Oct. 31, 2013) (internal footnote omitted). Petitioner's conviction was affirmed on appeal. Id., lv. den. 496 Mich. 857, 847 N.W.2d 618 (2014).

         Petitioner filed a post-conviction motion for relief from judgment, which the trial court denied. People v. Smith, No. 10-027124-FH (Genesee Cty.Cir.Ct., Feb. 16, 2016). The Michigan appellate courts denied petitioner leave to appeal. People v. Smith, No. 331910 (Mich.Ct.App. July 25, 2016); lv. den. 500 Mich. 947, 890 N.W.2d 357 (2017).

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

I. The Michigan Supreme Court erred when it ruled that the trial court did not commit reversible error when it denied the Defendant's motion for relief from judgment pursuant to MCR 6.508(D)(3)(a) and (b), where Defendant's claims were not procedurally barred, where Defendant's claim of ineffective assistance of counsel was sufficient to establish both cause and prejudice, and where Defendant's claims were clearly meritorious.
II. The Petitioner was deprived of his liberty and the effective assistance of counsel where counsel was absent during most of the pretrial period which is a critical stage of the trial proceedings and failed to subject the prosecution's case to meaningful adversarial testing in violation of the Sixth Amendment and caused the adversarial process to become tainted and prejudiced, where the errors and deficiencies of counsel individually and cumulatively prejudiced Mr. Smith.
III. The trial court abused its discretion and violated the Petitioner's Fourteenth Amendment right to due process of law and a fair trial, where the trial court abused its discretion when it denied Petitioner's motion for a continuance where Petitioner filed a motion for self-representation on the morning of trial, and required additional time to prepare his defense in light of counsel's ineffectiveness.
IV. The Petitioner was denied his Fourteenth Amendment constitutional right to due process of law where the trial clerk committed fraud upon the court where he/she concealed all knowledge and records of Petitioner's April 12, 2011 jury trial proceedings, created a false register of actions sheet, and prohibited the Petitioner and his appellate counsel from being able to effectuate a full and adequate direct appeal of right which severely prejudiced the Petitioner.
V. Mr. Smith's right of self-representation was violated because he was not present for the objections, arguments or “arrangements” that were made concerning the improper restraints.
VI. The trial court violated Mr. Smith's state and federal constitutional right to due process of law where he was shackled during trial. A new trial is warranted because at least one juror was aware of the restraints and the error is inherently prejudicial.
VII. The trial court erred in denying Mr. Smith's motion to suppress where the investigatory detention was in violation of the Fourth Amendment and where the seizure and subsequent search led to discovery of key prosecution evidence.

         II. STANDARD OF REVIEW

         Title 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.” Id. 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).

         Petitioner's second, third, and fourth claims were denied in part by the trial court on post-conviction review pursuant to M.C.R. 6.508(D)(3), on the ground that petitioner failed to show cause and prejudice for not raising these claims on his direct appeal. Although the state court judge mentioned M.C.R. 6.508(D)(3), the AEDPA's deferential standard of review also applies to the judge's opinion because he alternatively rejected the claims on the merits. See Moritz v. Lafler, 525 Fed.Appx. 277, 284 (6th Cir. 2013).[1]

         III. DISCUSSION

         A. Claim # 1. The ...


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