United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
Honorable Laurie J. Michelson, Judge
Lamont Banks filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his convictions
for first-degree felony murder, assault with intent to commit
murder, and several firearm offenses. As none of the
arguments raised warrant habeas corpus relief, the petition
convictions arise from a shooting that occurred at a drug
house in Detroit, Michigan in 2011. The Michigan Court of
Appeals described the relevant facts, which are presumed
correct on habeas review, Wagner v. Smith, 581 F.3d
410, 413 (6th Cir. 2009), as follows:
The prosecution charged defendant with the murders of two
people at a drug house in Detroit. At trial,  witness S.J., one
of the drug dealers who used the house to sell drugs,
testified that he awoke at the house on the morning of
November 30, 2011 to the sound of gunfire, and found that he
had suffered three gunshot wounds. He fled to an upstairs
bathroom, and heard more gunshots. After a few minutes, S.J.
attempted to go downstairs, and saw defendant near the bottom
of the steps holding a shotgun and a bag of marijuana that
the drug dealers kept in the house. S.J. retreated to the
attic until the police arrived. As officers assisted him
downstairs, the witness saw the two victims bloodied and
lying on the floor.
After a hospital stay, S.J. offered a statement on the
shooting, in which he described [Banks] as the shooter. He
subsequently identified [Banks] as the shooter in a
photographic lineup. S.J.'s identification of defendant
as the murderer was supported by testimony from a frequent
customer of the drug house, who saw a man who resembled
[Banks] leaving the house with a shotgun on the morning of
the shooting. The customer also gave a statement and
description to the police, and identified defendant as the
man he saw from a photographic lineup.
People v. Banks, No. 317804, 2015 WL 447465, *1
(Mich. Ct. App. Feb. 3, 2015) (footnotes in original).
his convictions and sentencing, Banks filed a direct appeal.
He raised several claims, including those now presented on
habeas review. The Michigan Court of Appeals denied relief
and affirmed Banks' convictions. Id. at *1-8.
Banks filed an application for leave to appeal with the
Michigan Supreme Court, which was denied in a standard order.
People v. Banks, 868 N.W.2d 638 (Mich. 2015). Banks
also filed a petition for a writ of certiorari with the
United States Supreme Court, which was denied. Banks v.
Michigan, 136 S.Ct. 1669 (2016).
thereafter filed his federal habeas petition. (ECF No. 1.) He
argues that the trial court abused its discretion and denied
him a fair trial by denying his motion for adjournment and
granting only a one-day continuance, thereby impeding defense
counsel's ability to adequately prepare for trial.
Alternatively, he argues that his counsel was ineffective for
failing to adequately impeach the prosecution witness who
identified him. Second, he argues that he was denied due
process and a fair trial by the introduction of in-court
identifications tainted by suggestive photographic lineups.
Banks asserts that the trial court abused its discretion and
denied him a fair trial by admitting, over objection,
evidence of a subsequent shooting committed by his brother.
Fourth, he asserts that the trial court denied him a fair
trial by providing the jury with a transcript of the direct
examination of the prosecution's main witness but not the
cross-examination. And lastly, Banks argues that he was
denied a fair trial by the unsupported instruction of aiding
and abetting and by defense counsel's ineffectiveness in
failing to object. None of these arguments warrant habeas
Antiterrorism and Effective Death Penalty Act (AEDPA) (and 28
U.S.C. § 2254 in particular) “confirm[s] that
state courts are the principal forum for asserting
constitutional challenges to state convictions.”
Harrington v. Richter, 562 U.S. 86, 103 (2011);
see also Cullen v. Pinholster, 563 U.S. 170, 182
(2011). If a claim was “adjudicated on the merits in
State court proceedings, ” this Court cannot grant
habeas corpus relief “unless the adjudication of the
claim . . . resulted in a decision” (1) “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) “that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.” See 28 U.S.C. § 2254(d). But
if the state courts did not adjudicate a claim “on the
merits, ” this “‘AEDPA deference' does
not apply and [this Court] will review the claim de
novo.” Bies v. Sheldon, 775 F.3d 386, 395
(6th Cir. 2014).
claims the trial court erred in denying his request for an
adjournment and only granting a one-day continuance so that
newly-appointed counsel could prepare for trial. He further
asserts that his trial counsel was ineffective for failing to
properly impeach the prosecution's star witness. The
Court will address each in turn.
Warden argues that Banks waived any challenge to the one-day
continuance because his counsel agreed to it. Therefore, in
the Warden's view, this claim is procedurally defaulted
and should not be reviewed by the Court.
Michigan Court of Appeals found that Banks “waived his
ability to challenge the length of an adjournment ‘when
defense counsel clearly expresses satisfaction with the trial
court's decision' on the adjournment.”
Banks, 2015 WL 447465, at *1 (quoting People v.
Kowalski, 803 N.W.2d 200 (Mich. 2011)). And, according
to the Michigan Court of Appeals, Banks' defense counsel
did just that when “the trial court granted an
adjournment of one day to give defense counsel an opportunity
to adequately review the record, and specifically asked the
attorney whether he would be ‘completely prepared'
to ‘go forward with the trial,' to which the
attorney responded ‘by tomorrow, I will be prepared
your Honor.'” Id. at *2.
circumstances, a federal court may not consider the federal
claims in a habeas corpus petition if a state court denies
relief because the petitioner “failed to meet a state
procedural requirement.” Coleman v. Thompson,
501 U.S. 722, 730 (1991). To cement a procedural default,
Banks must have failed to comply with a procedural rule, the
state courts must have enforced the rule against him, the
rule must be an “adequate and independent” ground
for barring habeas corpus review, and Banks cannot excuse the
default. Willis v. Smith, 351 F.3d 741, 744 (6th
Cir. 2003); Maupin v. Smith, 785 F.2d 135, 138 (6th
Cir. 1986). “A procedural default does not bar
consideration of a federal claim on either direct or habeas
review unless the last state court rendering a judgment in
the case ‘clearly and expressly' states that its
judgment rests on a state procedural bar.” Harris
v. Reed, 489 U.S. 255, 263-64 (1989). The last explained
state court ruling is used to make this determination.
Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991).
claim has been procedurally defaulted. The Michigan Court of
Appeals rendered the last reasoned opinion on the continuance
claim. In denying relief, the court relied upon a state
procedural bar-the waiver rule. Banks, 2015 WL
447465 at *1-2 (citing People v. Kowalski, 803
N.W.2d 200, 200-11 (Mich. 2011)). “The state courts
actually enforced the waiver rule, which is independent
because it does not rely on federal law and adequate because
it is firmly established and regularly followed by Michigan
courts.” Jackson v. Romanowski, No. 15-2399,
2016 WL 1458221, at *2 (6th Cir. Apr. 13, 2016) (citing
McKissic v. Birkett, 200 Fed.Appx. 463, 471 (6th
as here, [Banks] has procedurally defaulted claims,
‘federal habeas review of the claims is barred unless
the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.'”
Dufresne v. ...