United States District Court, E.D. Michigan, Southern Division
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
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.
Laws § 750.224f; and felony-firearm, in violation of
Mich. Comp. Laws § 750.227b. For the reasons below, the
Court will deny Clark's petition for a writ of habeas
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
(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.
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
Michigan Supreme Court denied Clark leave to appeal his
convictions. People v. Clark, 497 Mich. 853 (2014).
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).
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
[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.