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McClure v. Palmer

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

August 1, 2019

CARMEN PALMER, Respondent.



         This is a habeas case brought pursuant to 28 U.S.C. § 2254. The petitioner, Michigan state prisoner Corey Lamont McClure, challenges his convictions in the Wayne County Circuit Court of kidnapping, Mich. Comp. Laws § 750.349(1)(c), two counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(e), and three counts of armed robbery, Mich. Comp. Laws § 750.529. Petition at 2, ECF No. 1, PageID.2. Petitioner is serving a term of fourteen years, three months, to twenty-five years. Id. The petition raises one claim of ineffective assistance of trial counsel under two theories: that counsel was ineffective during plea negotiations and for failing to file a motion to suppress evidence. Id. at 3.

         For the reasons stated below, the Petition will be DENIED. The Court also DENIES Petitioner a certificate of appealability and permission to proceed on appeal in forma pauperis.


         Petitioner was convicted in Wayne County Circuit Court following a jury trial of kidnapping, two counts of first-degree criminal sexual conduct, three counts of armed robbery, and three counts of felonious assault.[1] The circumstances leading to his convictions began with Petitioner calling for in-home escort services.

         Bellayna Wells came to see Petitioner at a house on Portlance Street in Detroit, after he called in response to her ad in 7/15/13 Trial Tr. at 162, 250, ECF No. 5-6, PageID.374, 462. She was driven to the home by two friends who stayed in the car outside the house. Id. at 164, PageID.376. On her arrival, Petitioner brandished a gun at her and ordered her to the basement. Id. at 169, PageID.381. He ordered her to strip and took the money she emptied from her pockets. Id. at 173- 74, 179, PageID.385-86, 391. Petitioner demanded oral sex and she complied. Id. at 175-76, PageID.387-88. He pointed a gun at her head while he penetrated her vaginally with his penis. Id. at 176, PageID.388.

         Petitioner and Wells then went outside. When they approached her friends' car, Petitioner pointed the gun at them and demanded money. Id. at 182, PageID.394. He threatened to take the car and took the keys out of the ignition, but then returned the keys and told the women to leave. Id. at 184, PageID.396. Before they left, Petitioner took phones from both Wells and one of her friends. Id. at 183, PageID.395. The women reported the incident to the police. Id. at 186, PageID.398.

         Detroit Police Officer Robert Kane was the officer in charge of Petitioner's case. 7/17/13 Trial Tr. at 65, ECF No. 5-8, PageID.655. Wells and the other women identified Petitioner from a photo array. Id. at 81, PageID.671. Kane then sought the assistance of the “special operations division” of the Detroit Police Department for their aid in arresting Petitioner. Id. at 83, 86, PageID.673, 676. Kane discovered that Petitioner was on probation. Id. at 87, PageID.677.

         Petitioner's assigned probation officer was Marcus Robinson. Robinson accompanied Kane and special operations officers to a house on Kenmore Street in Detroit, where they determined Petitioner was. 7/16/13 Trial Tr. at 23-24, ECF No. 5-7, PageID.501-02; 7/17/13 Trial Tr. at 87, ECF No. 5-8, PageID.677. Robinson told the young woman who answered the door that they were there for a “home check”-typical for probationers. 7/16/13 Trial Tr. at 25, ECF No. 5-7, PageID.503. The officers walked through the house but left when they were told Petitioner was not home. Id. at 26, PageID.504. Five or ten minutes later, the officers returned to the house and found Petitioner hiding under a mattress in an upstairs bedroom. Id. at 27, PageID.505.

         During their search for Petitioner, but before they located him under the mattress, Robinson found what he thought was a firearm on top of the refrigerator in the kitchen. Id. at 28, PageID.506. He determined it was not a real gun, but a “facsimile.” Id. at 29, PageID.507; Trial Tr. 7/17/13 at 91, ECF No. 5-8, PageID.681. Petitioner was arrested by the Detroit Police Department. Id. at 36, PageID.514.

         Petitioner was not arrested pursuant to an arrest warrant, nor did the officers have a search warrant for the residence. Rather, this was a “home check” performed by probation officer Robinson pursuant to the rules of probation. Trial Tr. 7/17/13 at 119, ECF No. 5-8, PageID.709. Although there were no warrants for the search or the arrest, there was no need to obtain one. 7/16/13 Trial Tr. at 31, ECF No. 5-7, PageID.509. He “recovered th[e] firearm under the purview of a home check” and turned it over to the Detroit Police Department. Id. at 36, 38, PageID.514, 516.

         During cross-examination of Robinson, Petitioner's defense counsel tried to establish that the search of the Kenmore house was illegal, but the court sustained the prosecution's objection. 7/16/13 Trial Tr. at 38-39, ECF No. 5-7, PageID.516-17. Trial counsel did not raise the issue again. See 7/16/13 Trial Tr., ECF No. 5-7; 7/17/13 Trial Tr. ECF No. 5-8; 7/18/13 Trial Tr., ECF 5-9. During trial, the court dismissed the felony firearm charge against Petitioner. Trial Tr. 7/17/13 at 132, ECF No. 5-8, PageID.722. However, the court also denied trial counsel's motion for a directed verdict on the three charges of felonious assault (also known as “assault with a dangerous weapon”). Trial Tr. 7/17/13 at 123, 128, 135, ECF No. 5-8, PageID.713, 718, 725. Petitioner was convicted on all counts. 7/18/13 Trial Tr. at 16-17, ECF No. 5-9, PageID.810-11.

         Petitioner appealed his convictions to the Michigan Court of Appeals, raising the following three grounds for relief: (1) His convictions for assault with a dangerous weapon must be vacated because the firearm used in the offense was not real, (2) trial counsel was constitutionally ineffective during plea negotiations, and (3) the warrantless search of his residence by the probation officer violated the Fourth Amendment and the weapon found should have been suppressed.

         Simultaneously with his brief on appeal, Petitioner filed two motions to remand through appellate counsel. The first sought a Ginther[2]hearing to establish trial counsel's ineffectiveness for his failure to have the felonious assault charges dismissed during pre-trial plea negotiations. Mich. Ct. App. Record at 67, ECF No. 5-11, PageID.922. Petitioner's second motion sought a remand for an evidentiary hearing “For Purposes of Fourth Amendment Analysis, ” to establish the warrantless search and seizure was unconstitutional. It stated that trial counsel was ineffective for failing to move to suppress evidence obtained during that search. Id. at 61, PageID.916. The Court of Appeals denied both motions. Id. at 71, PageID.926. Petitioner did not appeal the denials.

         The Court of Appeals denied Petitioner relief on his ineffective assistance of counsel and Fourth Amendment claims but vacated the felonious assault convictions and remanded for re-sentencing “if necessary.” People v. McClure, No. 317995, 2015 WL 302683, at *6 (Mich. Ct. App. Jan. 22, 2015). Petitioner's pro per application for leave to appeal to the Michigan Supreme Court raised the same three issues that were before the court below. See Mich. Sup. Ct. Record, ECF No. 5-12. Again, the denial of the motions to remand was not included in Petitioner's application for leave. Id.

         The Michigan Supreme Court denied leave to appeal in a standard order, because it was “not persuaded that the questions presented should be reviewed by this Court.” People v. McClure, 497 Mich. 1031 (2015). Petitioner's convictions were final on August 26, 2015. He filed this petition on August 26, 2016.


         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part:

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 ...

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