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Anderson v. Winn

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

April 30, 2019

STEVEN B. ANDERSON, Plaintiff,
v.
THOMAS WINN, Defendant.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS

          TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE.

         Steven B. Anderson, (“Petitioner”), a Michigan prisoner, filed this action under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Kalamazoo Circuit Court of first-degree premeditated murder, Mich. Comp. Laws § 750.316, assault with intent to commit murder, Mich. Comp. Laws § 750.83, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and three counts of possession of a firearm during the commission of a felony. Mich. Comp. Laws § 750.227b. Petitioner was sentenced as a third-time habitual felony offender to a controlling sentence of life imprisonment for the murder conviction and lesser terms for his other offenses.

         The petition raises ten claims: (1) the prosecutor committed misconduct by introducing false testimony, (2) Petitioner was denied the effective assistance of trial and appellate counsel, (3) the trial court erred in admitting hearsay, (4) the trial court erred in failing to intervene when the prosecutor committed misconduct, (5) the prosecutor engaged in additional acts of misconduct, (6) the prosecutor withheld exculpatory evidence, (7) Petitioner's trial counsel was ineffective for additional reasons, (8) the trial court lacked jurisdiction, (9) the jury's verdict was against the great weight of the evidence, and (10) the ineffectiveness of Petitioner's appellate counsel constitutes cause to excuse any procedural default of the claims raised on state post-conviction review.

         The Court denies the petition because Petitioner's claims are without merit or barred by his state court procedural default. The Court also denies Petitioner a certificate of appealability, but grants permission to appeal in forma pauperis.

         I. Background

         The Michigan Court of Appeals summarized the facts surrounding Petitioner's case as follows:

The prosecution arises out of a shooting in Kalamazoo in which one man was killed and a second man was injured. There was strong evidence reflecting that the attack on the two victims was perpetrated by Anderson, Wright, who had allegedly been assaulted weeks earlier by, among others, the homicide victim, and Jaquan Henderson, who was convicted of second-degree murder and other charges following a separate trial. The evidence showed that, during the commission of the offenses, Wright wielded and fired a .44 caliber handgun, Henderson employed a .380 caliber weapon, and that Anderson discharged a shotgun. The evidence further indicated that the surviving victim had been struck by shotgun fire, while the deceased was hit by a gunfire from a .44 caliber firearm.

People v. Anderson, 2014 WL 2931820, at *1 (Mich. Ct. App. June 26, 2014).

         The evidence presented at trial indicated that on December 17, 2011, Romney Hunter and other men assaulted and robbed Robert Wright. Wright was hospitalized after the assault. Wright told the police he did not know who assaulted him.

         A few weeks later, during the early evening hours of January 8, 2012, Hunter and Troy Whitfield were standing outside a residential address in Kalamazoo, while friends were drinking and working on a vehicle parked in the driveway. Whitfield heard shots, so he jumped in the back of the vehicle, and he and two other men drove away. Whitfield sustained two shots to his leg.

         When Whitfield and the others returned to the scene, Whitfield saw Hunter lying on the ground at the end of the driveway. Hunter had been shot in the chest and killed. An ambulance arrived and transported Whitfield to the hospital.

         On the ground at the scene of the shooting the police found Petitioner's cell phone. They also found several spent casings and an empty 12-gauge shotgun shell. A shotgun consistent with the shell found at the scene was subsequently located in the Kalamazoo River.

         Santrell Sandifer testified that on January 8, 2012, he was with Petitioner when Petitioner saw Hunter. Petitioner called Wright and told him that he spotted one of the guys that jumped him. They met up with Wright, and Petitioner handed him a handgun. Henderson was also present. Sandifer was charged with two counts of accessory after the fact and testified as a prosecution witness pursuant to a plea agreement.

         Sandifer testified that Petitioner, Wright, and Henderson walked towards the house where the shooting eventually happened, while Sandifer drove past them. Sandifer heard gunshots. He saw Petitioner running through a field, and he saw Henderson and Wright running down the street.

         Petitioner got in Sandifer's car and they drove to Bernice Wyatt's house; Wyatt was Petitioner's girlfriend. Sandifer saw Petitioner pull a shotgun out of his pants leg. Petitioner said that the shotgun jammed and that he had lost his cell phone. (The shotgun later found in the Kalamazoo River, which matched the shotgun shell discovered at the scene of the shooting, was also jammed.) Sandifer later heard Petitioner call Wyatt and tell her to have someone take the guns to his sister's house.

         Joshua Shoffner testified that he was friends with Petitioner. He identified photographs of the men brandishing guns that were consistent with those used in the shooting. On the evening of January 8, 2012, Shoffner was at Wyatt's home. Petitioner told Shoffner that he was present at a shooting and that his shotgun jammed after he shot it. Petitioner also said that he dropped his cell phone at the scene.

         Later, at Wyatt's direction, Shoffner took a garbage bag to another house. He saw the barrel of a shotgun poking out of the bag. The next morning Shoffner heard Petitioner talking to someone on the phone about getting rid of something in the river.

         Claudia Ford testified that Wright was the father of her children. On January 8, 2012, Ford heard Wright call Petitioner and Henderson. She was also present in the car with Wright when he met Petitioner and Sandifer. She did not see any guns, but she heard a reference to the shotgun. Ford testified that they drove to the area of the shooting, and Henderson and his brother arrived in another vehicle. Ford testified pursuant to a plea agreement in a pending drug case.

         Ford observed Wright, Petitioner, and Henderson walk off. She did not see any weapons. Ford heard gunshots. She saw Henderson get into one vehicle while Wright walked back from the location of the shooting.

         Sheila Mister testified that a few days after the shooting, Shoffner brought a black garbage bag to her home. He placed it on her back porch, where it remained until it was removed a few days later.

         Prior to Petitioner's trial, co-defendant Jaquan Henderson was tried and convicted of second-degree murder. When the prosecutor called Henderson as a witness, Petitioner's counsel objected, arguing that the prosecutor was knowingly presenting false testimony. Defense counsel noted that Henderson testified in his own defense at his trial that he lied to the police during interviews, and that the prosecutor conducted a lengthy cross examination “where it was apparent that [the prosecutor] caught Mr. Henderson, again, even lying during his own trial.” ECF No. 8-10 PageID.696.

         Defense counsel indicated that she had reviewed Henderson's trial transcripts, and that “it was very apparent to the prosecution that he was not truthful at his own testimony. There were numerous pages where he was cross-examined by the - by the prosecutor where it came off that he was not truthful. So, I - I have no faith that this man will uphold his oath to tell the truth today. He's not been truthful up until this point.” Id. at PageID.696-97.

         The prosecutor responded:

[W]hat was given in terms of any, I guess, incentive to testify on Mr. Henderson's behalf is that when he testifies, the thing that I can do for him is, I will write to the prison as it relates to his cooperation in this matter and I will explain fully what he has done in that regards. It was also discussed with his appellate attorney and that Mr. Henderson should be aware, that if his appeal somehow was successful that anything he says here in court today that he could not be facing charges on any more serious matter if it went back, because that was first-degree open - murder back then. The jury came with second-degree. So, whatever happens here, if his appeals granted, it would still go back and he would be subject to not the more serious first-degree - life time without parole offense. And, I believe that Mr. Henderson was made aware of that.

Id. at PageID.699-700.

         The trial court overruled the objection, stating:

That's certainly something that the attorneys can explore given what was indicated in the police reports. I don't know what's in there. I don't have those in front of me. Given his testimony at trial - but, I'm not here to make a decision as to whether or not somebody's lying or not. That's up to the jury. They can certainly make that determination on their own, and unfortunately there are folks that do not tell the truth under oath. And, again, that's for the jury to sort out. I don't - I'm not aware of any authority I have to exclude someone just because they have said an inconsistent statement, or again, have lied in the past. That's not for me to determine. That's for all of you to question with regards to cross-examination.

Id. at PageID.700.

         Defense counsel renewed the objection later in the trial, noting that Henderson had taken a polygraph examination which indicated he was being deceptive. ECF No. 8-11 PageID.755-56. The prosecutor informed the court that the polygraph questions related to a firearm and what he may have done with it during the commission of the offense. The detectives then re-interviewed him, and he gave further information. Id. at PageID.756. The prosecutor added, “Let's be clear, I'm not putting up a witness who I believe will lie intentionally about any material fact in this case.” Id. at PageID.756-57.

         Henderson testified that he was then in prison because of his role in the shooting. He was testifying in exchange for the prosecutor writing a letter to the prison authorities. Henderson testified that had known Wright for about a year. Henderson met Petitioner on the night of the incident. On January 8, 2012, Wright called Henderson and told him to meet him in a residential neighborhood. When Henderson arrived, Wright asked him to beat up a guy who was around the corner because the guy had jumped him.

         Petitioner and Sandifer then arrived. Wright told Petitioner that he was going to have Henderson “whoop” the guy. Petitioner said “I ain't come to watch nobody fight. I'm fixin' to body one of them.” Id. at PageID.716. ...


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