United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND
(3) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
MARK
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
George
Ardell Alexander, (“Petitioner”), a Michigan
prisoner, filed this action under 28 U.S.C. § 2254.
Petitioner was convicted after a jury trial in the Wayne
Circuit Court of first-degree felony murder, Mich. Comp. Laws
§ 750.316(b), and carjacking, Mich. Comp. Laws §
750.529a. Petitioner was sentenced as a fourth-time habitual
felony offender to a controlling sentence of mandatory
life-imprisonment for the murder conviction and a term of
40-to-60 years for the carjacking conviction.
The
petition raises five claims: (1) insufficient evidence was
presented at trial to sustain Petitioner's convictions,
(2) the prosecutor improperly elicited testimony from a
police officer that Petitioner invoked his right to remain
silent, (3) the trial court erroneously admitted evidence of
an excited utterance made by Petitioner's sister, (4)
Petitioner's right to confront witnesses was violated by
the admission of a witness's preliminary examination
testimony, and (5) the prosecutor committed misconduct by
suggesting that Petitioner had committed an unidentified
crime immediately prior to the instant offense.
The
Court will deny the petition because Petitioner's claims
are without merit or barred by his state court procedural
default. The Court will also deny Petitioner a certificate of
appealability, but it will grant permission to appeal in
forma pauperis.
I.
BACKGROUND
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):
At approximately 1:30 a.m. on August 5, 2014, Robert Gibbs,
Tracy Brown, Giovanni Porter, and Albert Johnson were sitting
on Gibbs' porch at 9145 Oldtown Street, Detroit,
Michigan. At that time, the group was planning to briefly
leave Gibbs' residence and drive to a nearby liquor store
to get more alcohol before the store closed at 2:00 a.m.
Suddenly, Gibbs, Brown, and Porter saw defendant, who was
wearing a brown jogging suit or track suit, sprint around the
corner where Gibbs' house was located. Defendant
continued to run and cut across Gibbs' yard. It appeared
from defendant's clothing that he had been in a fight, as
his white T-shirt was “not in place like a normal
person” and it had spots of blood on it. Defendant
repeatedly asked Johnson to drive him to the “the west
side right now, ” but Johnson refused for money-related
reasons and chastised defendant for “whooping and
hollering in front of . . . [his] neighbor's home.”
However, defendant seemed very upset or afraid of something,
and it appeared that he was “just trying to get away
from that area for some reason[.]” When defendant
continued to ask for a ride, Johnson told Gibbs, Brown, and
Porter that they should go to the store without him while he
tried to calm defendant down, expressing his belief that he
could make defendant calm down by the time they returned.
As defendant and Johnson walked toward Johnson's house,
Gibbs, Brown, and Porter drove to the liquor store. The trip
took approximately 15 minutes. When they returned to
Gibbs' residence, they did not see defendant or Johnson.
However, Gibbs, Brown, and Porter then heard defendant
repeatedly yell, “[T]hey're trying to rob me,
” as he exited Johnson's house or porch and walked
towards Johnson's truck, a burgundy F-150. The only
people in the vicinity at that time were Gibbs, Porter, and
Brown, and they saw no one else come from the direction of
Johnson's home or run away from the scene.
Defendant attempted to start Johnson's truck with the
automatic car starter remote, while continuing to state that
“they” were trying to rob him. He ultimately
entered and started defendant's truck. This concerned
Gibbs, Porter, and Brown because Johnson never let anyone
hold his car keys unless he was present and never allowed
anyone else to drive his truck.
Gibbs ran inside his house, grabbed an axe, and ran toward
the truck-which, at that point, was backing down the
driveway-in an attempt to prevent defendant from taking it.
Defendant shifted the truck into drive while it was halfway
in the street and halfway on the sidewalk and grass. He then
attempted to run over Gibbs and Brown by driving toward them
while revving the engine. Gibbs and Brown jumped out of the
way, and defendant drove over the neighbor's grass and
onto the street, turning onto the service drive and entering
westbound I-94.
After defendant left, Gibbs and Brown saw Johnson lying on
his porch steps and realized that he was dead. Gibbs saw a
little bit of blood in Johnson's mouth and a small gash
on the top of his head.
The police arrived several minutes later. Based on the
condition of the porch and the front bedroom inside
Johnson's residence, the police believed that “a
struggle” had ensued on the porch and “a
ruckus” had occurred in the bedroom. Several items and
blood samples were collected and sent to the Michigan State
Police Crime Laboratory for DNA testing.
Katrina Johnson lived next door to defendant's sister,
Monica, on Ford Street on the west side of Detroit. In the
early morning hours of August 5, 2014, she had just returned
home from work when she “heard a big bang” that
“almost sounded like a car crash.” She looked out
the window and saw a burgundy F-150 truck. The truck had
driven into a hole in the street and struck a blue Suburban
that was parked in front of the hole. Katrina then saw
defendant, who was wearing a brown hooded jogging suit, exit
the vehicle. Defendant walked between Katrina's house and
the home of her other neighbor, Sunny Willingham, and
attempted to jump over Willingham's gate. Defendant was
unable to do so, and the gate “made a lot of
noise.” Next, defendant quickly walked in front of
Katrina's house, going to his sister's house on the
other side. As defendant walked by within inches of
Katrina's open window, defendant and Katrina gestured in
acknowledgement of each other.
At approximately 7:00 a.m., defendant's sister, Monica,
knocked on Katrina's door. When Monica sat down with
Katrina and Katrina's aunt, she immediately told them
that “her brother had just killed someone[.]”
When Katrina asked Monica if she was sure, Monica responded
that “she was very sure” and provided the
following description of the crime to Katrina:
She said her brother was on the east side. She didn't
give an exact location, [stating] that somebody that he was
acquainted with he had murdered and took his vehicle and I
said, well, what kind of vehicle was it? I saw your brother
just a few hours ago. She said, it's a F-150, and I said,
I saw him, you know, in the vehicle, which was prior, maybe
four hours prior and she said, yeah, we had to pull the
vehicle around the corner and I left the keys on the
dashboard.
Additionally, Monica told Katrina that she had
defendant's clothing in the shopping bag and she intended
to wash the clothes. Katrina left while Monica was still at
her house. Based on the information from Monica, Katrina
first went to see if the F-150 was still parked in the same
place that she had seen it on her street and discovered that
it was not. It was parked one block away near the corner of
LaBelle and LaSalle, as Monica had indicated. Katrina
immediately went to the police to report her findings.
Later in the morning on August 5, 2014, defendant was
arrested after he surrendered to the police. The arrest
occurred after he emerged from 2446 Ford Street, Detroit
Michigan, while wearing a brown track suit.
Dr. Chantel Njiwaji, a doctor of forensic pathology employed
by the Wayne County Medical Examiner's Office, performed
an autopsy on Johnson's body. She classified
Johnson's death as a homicide and was able to determine
that “[t]he cause of death was blunt chest trauma and
manual strangulation, ” although either of those causes
were sufficient on their own to cause Johnson's death.
She could not determine which injury occurred first and
identified a variety of injuries on the inside and outside of
his body.
People v. Alexander, 2016 WL 3767486, at *1-3 (Mich.
Ct. App. Jul. 14, 2016) (footnote omitted). Following his
trial, Petitioner filed a claim of appeal in the Michigan
Court of Appeals. His brief on appeal filed by his appellate
counsel raised six claims, from which the narrower set of his
habeas claims were derived. The Michigan Court of Appeals
affirmed Petitioner's convictions in an unpublished
opinion. Id.
Petitioner
subsequently filed an application for leave to appeal in the
Michigan Supreme Court. The court denied the application
because it was not persuaded that the questions presented
should be reviewed. People v. Alexander, 895 N.W.2d
187 (Mich. 2017) (Table).
II.
...