Banks v. Winn

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          Honorable Laurie J. Michelson, Judge

         Nasir 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 is denied.

         I.

         Banks' 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, ^[1] 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.^[2]

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.^[3] 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).

         Following 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).

         Banks 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.

         Third, 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 relief.

         II.

         The 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).

         A.

         Banks 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.

         The 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.

         The 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.

         In most 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).

         This 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 Cir. 2006)).

         “Where, 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. ...