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Robinson v. McKee

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

July 30, 2019

GARY LEE ROBINSON, Petitioner,
v.
KENNETH McKEE, Respondent.

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

          VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE

         This matter came before the Court on petitioner Gary Lee Robinson's pro se habeas corpus petition, which challenges Petitioner's convictions for first-degree murder, Mich. Comp. Laws § 750.316(1)(a), felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b.

         Petitioner alleges as grounds for relief that: (1) his incriminating statement to the police was involuntary and inadmissible at trial; (2) the state trial court violated his constitutional right to a public trial; (3 - 4) his trial attorney was ineffective for failing to (a) object to the closure of the courtroom and (b) advise him of his right to testify at an evidentiary hearing; and (5) appellate counsel was ineffective for failing to investigate or raise a significant and obvious claim about trial counsel. The State urges the Court to deny the petition because Petitioner procedurally defaulted two of his claims and because the state-court decisions were objectively reasonable.

         The Court agrees that Petitioner's claims do not warrant habeas relief. Accordingly, the petition will be denied.

         I. Background

         The county prosecutor initially charged Petitioner with four crimes: first-degree, premeditated murder, felon in possession of a firearm, carrying a concealed weapon, and possession of a firearm during the commission of, or attempt to commit, a felony. The charges arose from the fatal shooting of Gregory Ingram in Flint, Michigan on February 26, 2010. In a pretrial statement to the police, Petitioner admitted that he fired his assault rifle at Ingram about ten times. Petitioner's pretrial attorney moved to suppress Petitioner's statement, but the trial court denied the motion after conducting an evidentiary hearing.

         A different attorney represented Petitioner at trial in Genesee County Circuit Court. Petitioner was tried with co-defendants Dequeze Dixon and Calvin LeSears, but each defendant had his own jury. The state appellate court accurately summarized the facts as follows:

The primary witness was Jason Sutton, who was present during the murder but uninvolved. He testified that he knew Robinson and Dixon already at the time, but he discovered LeSears's identity later. Sutton testified that he was picked up by defendants while walking home. Dixon was driving a vehicle owned by his girlfriend, Devonda Jiles. Either Dixon or Robinson told Sutton, “If we didn't know who you was, we were going to get you.” They drove past the victim, at which point Dixon said, “There's Greg, let's get on him.” Robinson got out of the car first, and then Dixon turned the car around and parked, whereupon Dixon and LeSears also got out. Sutton remained in the vehicle using his telephone.
Sutton testified that he heard a barrage of gunfire from multiple guns: an assault rifle, a shotgun, and a handgun. He saw all three defendants outside shooting the victim. A medical examination would later identify the victim's cause of death as multiple gunshot wounds from at least three different kinds of guns. When defendants returned to the vehicle, Sutton observed Robinson with an assault rifle, Dixon with a shotgun, and LeSears with a handgun. Dixon advised Sutton that they would kill him if he told anyone about the events of the evening. They then dropped Sutton off at his house. Sutton continued to associate with defendants out of fear that they would believe he had told authorities about the shooting. A few weeks later, Sutton was again in the same vehicle with Dixon and Sutton's cousin, when police attempted to pull the vehicle over, apparently for unrelated reasons.
All of the occupants jumped out and fled; Sutton was the only one apprehended. He was taken into custody for fleeing and eluding, and Jiles's car was impounded. When Jiles discovered that her car had been impounded, she falsely informed 9- 1-1 and a police officer that her vehicle had been stolen. While incarcerated, Sutton asked to talk to the police about the victim's murder. After Sutton was interviewed, Robinson was arrested two days later, and Dixon was arrested later that same day. Sutton subsequently picked LeSears out of a photographic lineup as the third individual, asserting that he was about 80 percent certain. LeSears was arrested about a month later for an unrelated matter, after which Sutton identified LeSears with certainty out of a physical lineup.

People v. Robinson, No. 304936, 2013 WL 4866316, at *1 (Mich. Ct. App. Sept. 12, 2013) (unpublished).

         The prosecutor's theory was that Petitioner caused Ingram's death or aided and abetted his co-defendants in killing Ingram. Petitioner did not testify or present any witnesses. His theory of the case was that Ingram was not credible and that his statements to the police were involuntary because the police interrogated him over a period of approximately fourteen hours and lied to him during the interrogation.

         The jury was unable to reach a verdict on the third count (carrying a concealed weapon). The prosecutor then dismissed that count, and the jury found Petitioner guilty, as charged, of first-degree murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony. On June 21, 2011, the trial court sentenced Petitioner to life imprisonment for the murder conviction, a concurrent term of two to five years in prison for the felon-in-possession conviction, and a consecutive term of two years for the felony-firearm conviction with credit for 459 days already spent in custody.

         Petitioner argued in an appeal of right that: (1) his statement to the police was inadmissible at trial because the police violated his constitutional right against self-incrimination; (2) the exclusion of the public from his trial violated his constitutional right to a public trial; and (3) defense counsel was ineffective for failing to object to the closure of the courtroom to the public. The Michigan Court of Appeals rejected these claims and affirmed Petitioner's convictions in a per curiam opinion. See id. Petitioner raised the same three claims in the Michigan Supreme Court, which denied leave to appeal on January 31, 2014. See People v. Robinson, 495 Mich. 936; 843 N.W.2d 202 (2014) (table).

         On September 3, 2014, Petitioner signed and dated his habeas corpus petition, and on September 9, 2014, the Clerk of the Court filed the petition. The grounds for relief set forth in the initial petition are the same three claims that Petitioner raised on direct appeal from his convictions.

         The State argued in an answer to the petition that Petitioner procedurally defaulted his second claim (denial of the right to a public trial) and that his other claims lack merit. Petitioner moved to supplement his petition and to stay his case while he exhausted state remedies for two new claims about his first trial attorney and his appellate attorney. On May 5, 2015, the Court granted Petitioner's motions and closed this case for administrative purposes.

         Petitioner subsequently filed a pro se motion for relief from judgment in the state trial court. He claimed that: (1) his first attorney failed to advise him of his right to testify at the evidentiary hearing on his motion to suppress his custodial statement, and (2) his appellate attorney failed to investigate and raise his claim about trial counsel. The trial court denied Petitioner's motion because Petitioner failed to satisfy the “cause and prejudice” requirements of Michigan Court Rule 6.508(D)(3)(a) and (b) and because the motion lacked merit. See People v. Robinson, No. 10-26762-FC (Genesee Cty. Cir. Ct. July 13, 2015) (unpublished).

         Petitioner appealed the trial court's decision without success. The Michigan Court of Appeals denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Robinson, No. 328876 (Mich. Ct. App. Nov. 4, 2015) (unpublished). On September 27, 2016, the Michigan Supreme Court denied leave to appeal for the same reason. See People v. Robinson, 500 Mich. 864; 884 N.W.2d 791 (2016) (table).

         On December 6, 2016, Petitioner returned to federal court and filed a motion to re-open this case. Although he did not file a separate amended petition, the motion includes a brief, which addresses the three claims that Petitioner raised in his initial petition and the two new claims that he raised during post-appellate proceedings in state court. The State filed a supplemental answer in which it argued that Petitioner procedurally defaulted his claim about his pretrial attorney and that his claim about appellate counsel lacked merit.

         II. Standard of Review

          The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires habeas petitioners who challenge “a matter ‘adjudicated on the merits in State court' to show that the relevant state court ‘decision' (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.' ” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (quoting 28 U.S.C. § 2254(d)). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt,' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).

         “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103. A state-court's factual determinations are presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. Analysis

         A. Petitioner's Pretrial Statement to the Police

          Petitioner alleges that the prosecutor violated his right to a fair trial by introducing in evidence his pretrial statement to the police. Petitioner contends that the police violated his Fifth Amendment right not to incriminate himself by continuing to interrogate him after he said he was done and had nothing to say. He further alleges that the police coerced him into confessing by isolating him and repeatedly interviewing him.

         The Michigan Court of Appeals summarized the facts leading to Petitioner's confession as follows:

[D]efendant was read his Miranda[1] rights, and defendant waived those rights. The interviewing officer asked defendant some preliminary questions to establish defendant's identity and coherence. The first interview lasted approximately three hours and ended when defendant “denied any knowledge of the homicide, stated that he wasn't involved.” Although defendant placed his head down on the table and appeared tired, defendant continued to be questioned. At the end of that interview, defendant was returned to a holding cell.
Defendant was given some food and was interviewed a second time after the police continued their investigation and obtained more information. Defendant was not re-read his Miranda rights, but he was advised that he was still under arrest and he verified that he recalled and understood his rights. Robinson was specifically asked about the homicide and informed that Dixon had been arrested. Defendant stated, “I'm done, I got nothing to say.” The police continued to question defendant, noting that Dixon and Sutton had both given statements that Robinson participated in the homicide. Defendant did not specifically ask to terminate the questioning or request an attorney, but he eventually said, “I'm ready to go and I'm done with it.” The interview was terminated after less than half an hour, after which an evidence technician took defendant's shoes into evidence.
Later that night, while the police officer was interviewing Dixon, Robinson asked to talk to the police officer. Robinson confirmed that he understood his rights and made an inculpatory statement regarding his involvement in the Ingram homicide and verbally provided a statement that was written out by the interviewing officer. Robinson then added information pertaining to the location of the gun used during the homicide, indicated his willingness to take police to the location, and signed the statement. In his own hand, Robinson also wrote out apologies to the prosecutor and Ingram's aunt. Following an inquiry regarding his treatment, Robinson agreed to write down that he had been treated fairly.

Robinson, 2013 WL 4866316, at *2 (footnote in original as note 2).

         The officer in charge of the case, Sergeant Mitch Brown, testified at the pretrial evidentiary hearing on Petitioner's motion to suppress his statement

that Robinson . . . never requested an attorney or to stop the interviews. He acknowledged that he was not always truthful with Robinson during the interviews, in part, suggesting that Dixon and Sutton had “put it all on him.” He also acknowledged the possibility that he raised his voice during the interview.
He opined that a suspect's indication that he refused to answer a specific question did not require termination of the interview.

Id. The trial court denied Petitioner's motion to suppress his statement, and at trial, the prosecutor played a videotape of the three custodial interviews for the jury. The prosecutor also provided the jury with a transcript of the interviews.

         Petitioner raised his current claim on direct review of his convictions. The Michigan Court of Appeals adjudicated his claim on the merits and concluded that Petitioner's statement to the police was voluntary and admissible.

         1. Miranda

         Petitioner claims that the police violated his right not to incriminate himself by not advising him of his constitutional rights before the second and third interviews and by continuing to interrogate him after he indicated that he had nothing more to say. Petitioner also asserts that the waiver of his rights was not voluntary because he was held in a cell for an entire day and was subjected to repeated and prolonged questioning and coercive behavior.

         a. Clearly Established Federal Law

          The Fifth Amendment to the United States Constitution provides that “[n]o person shall be . . . compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. “To give force to the Constitution's protection against compelled self-incrimination, the [Supreme] Court established in Miranda [v. Arizona, 384 U.S. 436 (1966)] ‘certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.'” Florida v. Powell, 559 U.S. 50, 59 (2010) (quoting Duckworth v. Eagan, 492 U.S. 195, 201 (1989)). “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444.

After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. Id., at 473-474, 86 S.Ct. 1602. Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present. Id., at 474, 86 S.Ct. 1602. Critically, however, a suspect can waive these rights. Id., at 475, 86 S.Ct. 1602. To establish a valid waiver, the State must show that the waiver was knowing, intelligent, and voluntary under the “high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).” Id., at 475, 86 S.Ct. 1602.

Maryland v. Shatzer, 559 U.S. 98, 104 (2010). One form of waiver occurs when “the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

         b. The Advice of Rights

          It is clear from the record that Sergeant Brown advised Petitioner of his constitutional rights during the first interview and that Petitioner waived his rights and voluntarily agreed to speak with Sergeant Brown at the interview. See 3/18/10 Interview Tr. at 15-16 (Part One), ECF No. 7-2, PageID. 147-48. Although Petitioner did not sign a written waiver of his rights, “there is no requirement that Miranda rights can be waived only in writing.” United States v. Stevens, 445 F.2d 304, 305 (6th Cir. 1971).

         Sergeant Brown did not re-read Petitioner's constitutional rights to him before the second and third interviews. However, he did remind Petitioner of their prior discussion regarding his constitutional rights, Petitioner claimed to remember the prior discussion, [2] and the length of the time between the interviews was not excessive. The second interview occurred about five and a quarter hours after the first interview, and the third interview occurred about three and a half hours after the second interview.

         “[C]ourts have generally rejected a per se rule as to when a suspect must be readvised of his rights after the passage of time or a change in questioners.” United States v. Andaverde, 64 F.3d 1305, 1312 (9th Cir. 1995). In fact, a number of federal circuit courts of appeals “have ruled that re-warning is not required simply because time has elapsed.” United States v. Weekley, 130 F.3d 747, 751 (6th Cir. 1997) (collecting cases); see also United States v. Pruden, 398 F.3d 241, 246 (3d Cir. 2005) (“Miranda . . . does not necessarily require that a suspect be warned anew each time he is questioned.”) (citing Guam v. Dela Pena, 72 F.3d 767, 769-70 (9th Cir. 1995) (finding that a fifteen-hour delay between waiver and statement does not require new warning and waiver)).

         Even a three-day delay between the advice of rights and a subsequent interrogation is acceptable if the suspect was clearly aware of his rights, understood those rights, was questioned by the same police officer who reminded him of his rights, and there is no evidence of coercion or promises or that anything affected the suspect's understanding of his rights. United States v. White, 68 Fed.Appx. 535, 538 (6th Cir. 2003). Petitioner clearly was aware of, and understood, his rights. Sergeant Brown questioned him during each of the interviews[3] and reminded Petitioner of his rights, there is no evidence that anything affected Petitioner's understanding of his rights. He also was not coerced or promised anything other than an explanation to the prosecutor. Therefore, Petitioner's confession was not involuntary simply because Sergeant Brown did not re-read his constitutional rights to him before the second and third interviews.

         c. The Waivers

          Petitioner maintains that he did not voluntarily waive his constitutional rights. The ...


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