United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING THE PETITION FOR A WRIT OF
HONORABLE DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
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
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
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.
Standard of Review
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;
(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.
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.
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.
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.
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.
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
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.
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).
subsequent buys occurred at the 456 Montana address.
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).
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.).
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).
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
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
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
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.
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,
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 ...