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Clark v. Campbell

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

July 11, 2019

DEMETRIUS DARELL CLARK, Petitioner,
v.
SHERMAN CAMPBELL, [1] Respondent.

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

          STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE

         Petitioner Demetrius Darell Clark is confined in a Michigan prison and petitioned the Court for a writ of habeas corpus under 28 U.S.C. § 2254. Clark's imprisonment stemmed from convictions for assault with intent to commit great bodily harm less than murder, in violation of Mich. Comp. Laws § 750.84(1); armed robbery, in violation of Mich. Comp. Laws § 750.529; carrying a concealed weapon, in violation of Mich. Comp. Laws § 750.227(2); felon-in-possession, in violation of Mich.

         Comp. Laws § 750.224f; and felony-firearm, in violation of Mich. Comp. Laws § 750.227b.[2] For the reasons below, the Court will deny Clark's petition for a writ of habeas corpus.

         BACKGROUND

         Clark was convicted after being tried jointly with his co-defendants-Darryl Anthony Clark and Krystal Denise Clark-before a single jury. The convictions arose from a robbery at 15174 Grayfield Street in Detroit, Michigan, and the subsequent assault of a state trooper. The Michigan Court of Appeals detailed the testimony of five witnesses that was admitted against Clark. First,

Edward Taschereau who lived at 15174 Grayfield, recounted at trial the details of the forced entry into his residence on May 8, 2010, and identified Darryl Clark as one of the men who had come inside, held a gun to his head, and with someone resembling Demetrius Clark ransacked the house, stole property, and ran to a black car.

Clark, 2014 WL 354623, at *2. Second, Michigan State Trooper Jonathan

         Henry testified about:

(a) his observations of several men running across Fenkell Street from Grayfield, Kevin Woods (another armed robbery participant) getting inside a silver van, Darryl Clark firing two gunshots while standing next to the passenger door of a black Monte Carlo, and Darryl and Demetrius Clark getting inside the Monte Carlo, and (b) his 14 or 15-minute pursuit of the black Monte Carlo, during which he observed Demetrius Clark lean out the driver's side window and twice fire multiple shots at Henry's vehicle and a rifle barrel appear from the passenger's side window where Darryl Clark got into the car.

Id. Third, Michigan State Police laboratory technicians provided testimony "that they identified Darryl Clark's fingerprint on a bottle on the floor of the black Monte Carlo's front passenger seat, and blood with a DNA profile matching Demetrius Clark's in the Monte Carlo's back seat." Id.

         Fourth, Virginia Gonzales, an accomplice of the Clarks, testified about eight different observations:

(a) when she saw Darryl Clark leave his mother's house on May 8, 2010, he had a silver 0.22-caliber revolver in his waistband that he covered with his shirt and carried into the Monte Carlo, (b) she drove Darryl and Demetrius Clark to a parking lot near the robbery scene, where Krystal and Darryl Clark discussed the robbery target, (c) at Darryl Clark's direction, she dropped Woods off in an alley near the house and drove down Grayfield in the opposite direction of the house, a vantage point from which she observed Darryl Clark leave the car holding his gun, run across Fenkell with Demetrius Clark, approach the house and go inside, (d) she saw Darryl and Demetrius Clark leave the house and run toward the Monte Carlo, Demetrius Clark get into her rear driver's side seat while carrying a hand safe and a long gun, and heard two or three gunshots on the front passenger's side, where Darryl Clark then got into the car, (e) Darryl Clark told Gonzales to drive, which she did at approximately 70 miles per hour through mostly residential neighborhoods, (f) while driving she observed Darryl Clark shoot at the black Suburban (Henry's vehicle) that was following the Monte Carlo, heard gunshots from directly behind her seat immediately after seeing Demetrius Clark lean out the driver's side window, and heard Demetrius Clark calling Woods to advise that he and Darryl Clark had used their ammunition and Woods had to do something; (g) after the Monte Carlo got away from the black Suburban, she watched Darryl Clark reload his gun at his mother's house, saw Demetrius Clark retrieve a Play Station from Krystal Clark's van and a hand safe being opened at another sister's house, and heard Darryl and Demetrius Clark complain to Krystal Clark that the robbery had been a set up, and (h) Darryl and Krystal Clark advised Gonzales the next day to turn herself in to the police and say she had not seen Darryl or Demetrius Clark.

Id. Finally, "Darryl and Demetrius Clark stipulated that on May 8, 2010, they had prior felony convictions that precluded their right to possess firearms." Id.

         The Michigan Supreme Court denied Clark leave to appeal his convictions. People v. Clark, 497 Mich. 853 (2014).

         Clark filed a post-conviction motion for relief from judgment with the trial court pursuant to Michigan Court Rule 6.500, which was denied. See ECF 6-21 (state trial court decision denying post-conviction motion). The Michigan Court of Appeals denied Clark's delayed application for leave to appeal the trial court's decision. See ECF 6-22. The Michigan Supreme Court subsequently denied Clark leave to appeal. People v. Clark, 500 Mich. 880 (2016).

         On appeal, through counsel, Clark raised four claims.

I. Mr. Clark was denied his state and federal constitutional right[s] to due process when the jury observed him in jail clothing on the first day of trial.
II. The trial court committed plain error in failing to instruct the jury that it should view with caution the testimony of Virginia Gonzales, who was an undisputed accomplice. This denied Mr. Clark his state and federal right[s] to present a defense.
III. Mr. Clark was denied his state and federal constitutional right[s] to the effective assistance of counsel, where trial counsel failed to request a cautionary instruction on the unreliability of accomplice testimony.
IV. The trial court violated Clark's due process rights when it refused [his] request to discharge defense counsel after the attorney-client relationship had broken down.

ECF 1, PgID 2. In his post-conviction motion for relief from judgment, Clark raised the following five claims:

[V]. The trial court denied [Clark] his right to a fair and impartial jury by not dismissing a juror that the court knew was a bias[ed] juror and [Clark] was denied his right to the effective assistance of trial counsel for failing to further question, dismiss for cause or use a peremptory challenge to dismiss the same juror.
[VI]. There was insufficient evidence at trial to convict [Clark] of carrying a concealed weapon and his convictions are in violation of his [federal constitutional rights under the Fifth and Fourteenth Amendments and his Michigan constitutional rights pursuant to Art. 1, § 17].
[VII]. Where the jury could convict [Clark] of one offense based on two statutory theories of culpability, he was denied his constitutional right to due process and a unanimous jury where both theories were not made a choice on the verdict form and to the effective assistance of counsel for failing to object to the verdict form [pursuant to the Sixth and Fourteenth Amendments to the United States Constitution].
[VIII]. The sentence in this case, which was based on improperly scored legislative sentencing guidelines and incorrect sentencing information, was violative of the mandates of the guidelines and federal and state constitution[s]; and trial counsel was ineffective for failing to object [pursuant to the Fifth and Fourteenth Amendments to the United States Constitution and Michigan Constitution Art. 1, §§ 17, 20].
[IX]. [Clark] was denied the effective assistance of counsel guaranteed by the federal constitution where his appellate counsel neglected strong and critical issues which must be seen as significant and obvious.

Id. at 3-4. When Clark appealed the state trial court's denial of his motion for relief from judgment, Clark raised three claims effectively identical to those raised in his motion for relief from judgment. Compare ECF 1, PgID 4 (roman numerals II, III, and IV) with Id. at 3 (roman numerals I, III, and IV]. Clark also raised five new claims:

[X]. [Clark] was denied a fair trial as guaranteed under both federal and state constitutions, when the trial court failed to control [his] criminal proceedings by allowing [him] to be convicted and sentenced to a crime unknown to the laws of the State of Michigan. . . .
[XI]. [Clark] was denied his constitutional and fundamental due process protections to a fair trial guaranteed under both state and federal constitutions, when the prosecution committed both constitutional error and violated the public trust when it refused to protect [Clark's] due process rights, which grievous error mandates [Clark's] immediate release from custody and a bar to re-prosecution.
[XII]. Petitioner was denied his fundamental due process protections as guaranteed under both federal and state constitutions, when defense counsel abandoned [Clark] in his representation, as enumerated herein, the result of which is structural error.
[XIII]. [Clark] was denied his fundamental and constitutional right to a fair trial as guaranteed under both state and federal constitutions, when appellate counsel effectively abandoned petitioner on his appeal of right, and which constitutes structural error.
[XIV]. Relief from judgment should be granted where [Clark] can establish "good cause" for not bringing his appellate issue[s] before the court previously, simply because all the officer[s] of the court involved in [Clark's] criminal proceedings knew or should have known that the felony charge [Mich. Comp. Laws § 750.227] lodged against petitioner had no bearing on his case whatsoever; and no one corrected the error until now.

ECF 1, PgID 4-5. The Court will address each claim.

         STANDARD ...


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