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Kelley v. Burton

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

May 1, 2019

DEWAYNE BURTON, [1] Respondent.



         Marcus Mandelle Kelley, (“Petitioner”), confined at the Richard A. Handlon Correctional Facility in Ionia, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, through his attorney Phillip D. Comorski, challenging his convictions for two counts of delivery of 50 grams or more, but less than 450 grams, of cocaine, M.C.L. § 333.7401(2) (a)(iii), two counts of delivery of less than 50 grams of cocaine, M.C.L. § 333.7401(2)(a)(iv), and one count of conspiracy to deliver 50 grams or more, but less than 450 grams, of cocaine, M.C.L. § 750.157a; M.C.L. § 333.7401(2)(a)(iii). He was sentenced, as a fourth habitual offender, M.C.L. § 769.12, to 9 to 40 years' imprisonment for each count. For the reasons that follow, the petition for a writ of habeas corpus is GRANTED.

         I. Background

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

This case arises from defendant's having sold crack cocaine to a police informant on four occasions from January 26, 2011, to February 3, 2011.

People v. Kelley, No. 310325, 2013 WL 5763056, at *1 (Mich. Ct. App. Oct. 24, 2013).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 495 Mich. 950, 843 N.W.2d 516 (2014); reconsideration den. 497 Mich. 857, 852 N.W.2d 160 (2014).

         Petitioner then filed a post-conviction motion for relief from judgment with the trial court, pursuant to M.C.R. 6.500, et. seq., which was denied. People v. Kelley, No. 11-236105-FH (Oakland County Circuit Court, Jan. 5, 2016); reconsideration den. No. 11-236105-FH (Oakland County Circuit Court, Feb. 2, 2016). The Michigan appellate courts denied petitioner leave to appeal. People v. Kelley, No. 334239 (Mich. Ct. App. Dec. 21, 2016); lv. den. 501 Mich. 924, 903 N.W.2d 563 (2017); reconsideration den. 501 Mich. 1041, 908 N.W.2d 895 (2018).

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

I. There was insufficient evidence to establish that petitioner's identity as the perpetrator of the crime.
II. Petitioner was denied effective assistance of counsel, where counsel failed to object to detective Mark Ferguson's hearsay testimony regarding alleged narcotic transactions that were recorded with hidden recording devices, failed to call a potentially exculpatory witness, failed to introduce evidence that the license plate on the car petitioner was observed driving was a different make and model and was registered to an out-of-state owner, and failed to assert petitioner's right to a speedy trial.
III. Petitioner was denied due process of law where the prosecutor engaged in prosecutorial misconduct at trial.
IV. Petitioner was denied due process of law where newly discovered evidence indicated that the prosecutor used perjured testimony at trial, proof of this false testimony was not available prior to petitioner's trial.

         II. Standard of Review

         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.

         III. Discussion

         The Court discusses petitioner's fourth claim, because this is the claim upon which the Court grants relief. Petitioner alleges that his due process rights were violated by the prosecutor's use of perjured testimony, which was not discoverable prior to trial.

         Petitioner claims that the prosecutor or the police violated Brady v. Maryland, 373 U.S. 83, 87 (1963) and Giglio v. United States, 405 U.S. 150, 153 (1972) by withholding or failing to disclose that the officer in charge of the case, Detective Mark Ferguson, lied in a prior drug matter and was being investigated by the Oakland County Sheriff's department. Detective Ferguson was being investigated, but was not fired for his perjury and misconduct until after petitioner's trial. After the detective had been discharged, the Oakland County Prosecutor dismissed sixteen cases involving Detective Ferguson. The record reflects that Mark Ferguson also withheld information pertaining to the background of his confidential informant. It is petitioner's contention that this evidence of corruption on the part of Detective Mark Ferguson in the performance of his duties would have affected the credibility of the prosecution witnesses and undermine confidence in the verdict. The Court grants relief on this claim.

         Petitioner's trial began on February 6, 2012, and continued on February 7, 2012, when testimony was provided by the three (3) prosecution witnesses, ending with closing arguments and the verdict presented by the jury.

         Michael Zion, the informant, testified that he contacted Detective Mark Ferguson in early January 2011, to try to obtain leniency involving a pending retail fraud charge, in exchange for providing information regarding drug trafficking in the City of Pontiac, Michigan. (T. 2/7/2012, pp. 28-29). Zion, however, informed Ferguson that he only knew one individual named “Marc, ” from whom he could buy drugs. (Id. at 49). Zion further testified that he did not use drugs when he contacted Ferguson and did not use drugs prior to picking up the retail fraud charge. (Id.). The record reflects that Zion had a phone number for “Marc, ” without explanation as to how it was obtained. Zion testified that he contacted “Marc” a few times after he spoke with Ferguson, but before the first controlled buy. The remainder of Zion's testimony pertains to the details of each of the controlled drug transactions.

         Detective Mark Ferguson testified that he was contacted by Michael Zion at his office in Pontiac, in the early part of January 2011. (Id. pp. 82-83, 102). He did not make a determination if Zion was a user or if he could sell drugs on the street. (Id. at 102). However, Ferguson did conduct a background check. (Id. at 102-103). The remainder of Ferguson's testimony, as follows, is consistent with Zion's.

         Ferguson testified that the first controlled buy occurred on January 26, 2011, at a BP gas station, where Zion was wired, searched, and given money to purchase $ 300.00 worth of cocaine. (Id., pp. 83-87). Ferguson also testified that “I told other officers, undercover officers where the deal was going to take place, they -- they usually go in front of me, before me, set up in the area to get a good eye on us going in.” (Id., p. 85).

         All subsequent buys occurred at the 456 Montana address.

         The second controlled buy took place the following day on January 27, 2011. Zion was wired, searched, and provided with $ 600.00 to purchase cocaine. (Id., pp. 89-91). Ferguson testified, “I met up with Mr. Zion prior to, the deal was already set up, through him and Mr. Kelley to purchase cocaine, I then instructed other officers to go in the area of Montana Street, I searched Mr. Zion, searched his vehicle, gave him the recording device, a live recording device.” (Id., p. 90).

         On the third controlled buy, which took place on January 28, 2011, Zion was again wired, searched, and provided this time with $ 2400.00. (Id. at 84-91). Ferguson also testified that he sent other undercover officers to the 456 Montana address prior to the third controlled buy. (Id. at 92). Ferguson testified that at some point “[Zion] exited, got back in his vehicle, he then called me on the phone, stated Mr. Kelley told him to go around the corner to the store to get some razor blades.” (Id.).

         The fourth controlled buy occurred on February 3, 2011. Ferguson testified that he doubled the $ 2400.00 amount, but then decreased his request when Marc started acting “weird.” (Id. at 95). Ferguson also testified that he had debriefed his officers because he had intended to arrest petitioner following this drug buy. It was during this drug buy that Zion was thrown against a wall and searched. It was also during the fourth drug buy that Zion exited the front of the house to go to the store to buy cigarettes (Id. at 96-97, 115).

         In summary, Ferguson testified that he obtained 120 grams of cocaine from the four (4) controlled buys, by providing approximately $ 5000, 00 in funds during the controlled buys. Ferguson further testified that this, in his experience, was a large amount of cocaine and was not for personal use. (Id. 99). Based on the amount of cocaine, Ferguson classified petitioner as “a mid-level drug dealer.”

         The prosecution called Rachel Topacio as their third and final witness. Ms. Topacio testified that she is “a forensic chemist, with the Oakland County Sheriff's Office, in the forensic lab.” (Id. at 119). Topacio testified that she tested each of the four substances and the results of each tested substance contained the presence of cocaine. (Id. at 124-128). No other witnesses were called at petitioner's trial.

         Following the trial, and before sentencing, petitioner filed a motion for a new trial. Among his claims, he alleged that trial counsel was ineffective for not contacting and calling the ex-girlfriend of the informant Michael Zion. The record references a letter sent by Zion's former girlfriend to petitioner a few days before trial, asking for petitioner's help in a matter pending in another court. She is also the mother of Zion's child. The girlfriend indicated in her letter that although she does not know petitioner, she wanted to express her sympathy as to his situation. She wrote that Zion “turned into a snitch 3 years ago to get off a felony, and possession charge, ” and indicated that Zion was a crack user. ECF 5-5 PgID.430, 5-8 PgID.751-752, . Defense counsel informed the court that petitioner provided the letter to his trial counsel, but counsel failed to file any witness list before trial. ECF 5-5 PgID.431.

         The trial court judge denied the motion for a new trial finding that the evidence against petitioner was substantial and there was not a reasonable probability that absent trial counsel's errors, the outcome of the trial would have been different. Id. at 434-435.

         Petitioner filed a motion for relief from judgment on February 17, 2015, with several attachments, alleging that appellate counsel was ineffective by refusing to raise the issue that Detective Mark Ferguson provided false testimony at his trial. ECF 5-9, PgId.916.

         The trial court judge rejected his claim finding that “appellate counsel opined that Officer Ferguson's [firing by the Oakland County Sheriff's Department] would not benefit defendant because defendant's case was based largely on a confidential informant's testimony that he purchased drugs from defendant and was not based exclusively on Officer Ferguson's testimony.” People v. Ferguson, 11-236105-FH, Slip. Op. at *2-3 (Oakland County Circuit Court Jan. 5, 2016). The trial court then found that “there was sufficient evidence to convict defendant even without Officer Ferguson's testimony and defendant has not shown any false testimony by Officer Ferguson, defendant has not shown that he was prejudiced by appellate counsel's failure to raise the credibility issue on appeal.” (Id. at 3). The trial judge did not expressly adjudicate ...

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