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Dickens v. Chapman

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

July 31, 2019

EVEREGE VERNOR DICKENS, Petitioner,
v.
WILLIS CHAPMAN,[1] Respondent.

          OPINION AND ORDER DENYING (1) THE PETITION FOR A WRIT OF HABEAS CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3) LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

         Everege Vernor Dickens, (“petitioner”), presently incarcerated at the Thumb Correctional Facility in Lapeer, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction of armed robbery, Mich. Comp. Laws § 750.529, three counts of possession of a firearm during the commission of a felony (felony-firearm), Mich. Comp. Laws § 750.227b, carjacking, Mich. Comp. Laws § 750.529a, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, third-degree fleeing and eluding a police officer, Mich. Comp. Laws § 257.602a(3), and carrying a concealed weapon (CCW), Mich. Comp. Laws § 750.227. He was sentenced, as a second habitual offender, Mich. Comp. Laws § 769. 10, to 20 to 80 years' imprisonment for the armed robbery and carjacking convictions, two years' imprisonment for each felony-firearm conviction, three to seven and one-half years' imprisonment for the felon in possession of a firearm conviction, and two to seven and one-half years' imprisonment for the third-degree fleeing and eluding a police officer and CCW convictions. For the reasons stated below, the application for a writ of habeas corpus is DENIED WITH PREJUDICE.

         I. BACKGROUND

         Petitioner was convicted of the above offenses following a jury trial in the Oakland County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).

Defendant's convictions arise from the armed robbery of an elderly man at a gas station during the lunch hour. The victim was near his Cadillac when he was approached by defendant. Defendant pointed a gun at the victim and demanded money. The victim handed over money. Defendant took the victim's keys and entered his Cadillac. The victim screamed out for help, and a store clerk came to the victim's aid and called 911.
Two police officers were returning from lunch in an unmarked police car. One of the officers saw defendant approach the victim in a deliberate manner, saw the victim back away with his hands raised, and saw defendant enter the victim's vehicle. The officer driving the unmarked vehicle attempted to block the Cadillac from leaving the gas station, but defendant struck the officers' vehicle and fled. Because the unmarked vehicle did not have appropriate lights and sirens, the officers followed defendant until marked vehicles could pursue him. Once the marked vehicles arrived on the scene, the officers that observed the carjacking returned to the gas station where it was learned that defendant brandished a weapon at the victim. Multiple officers in vehicles gave chase and performed a maneuver that caused defendant to crash the Cadillac. Defendant ignored officers' requests to raise his hands, and when he tried to flee, he was shot and fell in a grassy area. There, officers arrested him and found a loaded gun on him. Although the victim could not identify defendant at the preliminary examination, multiple officers identified defendant as the perpetrator of the offenses.

People v. Dickens, No. 314267, 2014 WL 2753708, p. 1 (Mich. Ct. App. June 17, 2014), rev'd in part, appeal denied in part, 498 Mich. 915, 871 N.W.2d 159 (2015).

         On January 5, 2016, petitioner filed with the trial court a Complaint for Writ of Habeas Corpus, which the trial court construed as a motion for relief from judgment. In his motion, he challenged the following alleged irregularities: (1) the Complaint (i.e., General Information dated June 11, 2012) was never “authorized” by a judge or magistrate rendering Defendant's conviction ‘void'; (2) the General Information dated June 11, 2012, failed to identify the specific Assistant Prosecuting Attorney charging Defendant with the offenses set forth in the General Information; and (3) the Assistant Prosecuting Attorney wrongfully sought an enhanced sentence against Defendant in this matter.

         The trial court judge denied petitioner's motion on February 16, 2016, finding that petitioner “failed to set forth any reason for his failure to raise these issues on appeal.” (Emphasis Original). The Court further found that petitioner had not shown “actual prejudice” pursuant to M.C.R. 6.508(D)(3)(b)(I), further found petitioner not entitled to relief citing M.C.R. 6.508(D)(3), and then denied his motion pursuant to M.C.R. 6.504(8)(2). People v. Dickens, No. 2012-241989-FC (Oakland Cty. Cir. Ct. Feb. 16, 2016).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. Confrontation Clause violation.
II. Failure to disclose exculpatory evidence.
III. Authentication of evidence.
IV. Ineffective assistance of trial counsel.
V. The filing of a habitual-offender notice.
VI. The mandatory guidelines/judge-found facts claim.
VII. Prosecutorial Misconduct.

         II. STANDARD OF REVIEW

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. 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.” Id. at 410-11.

         “[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)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         III. DISCUSSION

         A. Claim # 1. The Confrontation Clause.

         Petitioner alleges that his right to confrontation was violated by 1) the trial court's admission of the victim's preliminary examination testimony and 2) the prosecutor's failure to show the exercise of due diligence in making the victim available for trial.

         The Michigan Court of Appeals rejected the claim:

In the present case, defendant contends that the prosecutor failed to make a due diligence showing regarding unavailability. Here, the prosecutor advised the trial court that the victim was hospitalized for a period of days before trial after being taken to the hospital by ambulance. Although at the time of trial the victim had returned home, the prosecutor stated to the court that the victim remained in ill health and that his health would be compromised if he were to leave his home to testify in court. The trial court recognized that the prosecutor is an officer of the court and that it had no reason to disbelieve him. Defense counsel cross-examined the victim at the preliminary examination and conceded that the preliminary examination testimony was admissible if he was unavailable. Moreover, the victim's son testified at trial regarding his father's ...

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