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Johnson v. Winn

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

August 27, 2019

TRE JOHNSHON, #929384, Petitioner,
v.
THOMAS WINN, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          LINDA V. PARKER, U.S. DISTRICT JUDGE.

         Tre Johnson (“Petitioner”) is presently in the custody of the Michigan Department of Corrections, pursuant to convictions for first-degree murder based on alternative theories of premeditated murder and felony murder, possession of a firearm during the commission of a felony, and unlawfully driving away an automobile. His petition raises three claims for relief: his involuntary confession should have been suppressed; insufficient evidence supported the convictions; and the jury was improperly instructed that Petitioner had a duty to retreat and counsel was ineffective for failing to object to the instruction. The Court finds that none of Petitioner's claims satisfy the strict standards for habeas corpus relief. The petition will be denied.

         I. Background

         Petitioner's convictions arise from the shooting death of Leonard Graham, III. The Michigan Court of Appeals set forth the following relevant facts in its decision affirming Petitioner's convictions:

Defendant was convicted of fatally shooting 24-year-old Leonard Graham on September 15, 2013, in Southfield, Michigan. On September 14, Graham drove his white Chevrolet Impala to defendant's apartment, where he, defendant, and two female friends celebrated Graham's birthday by watching a boxing match. In the early morning hours of September 15, Graham's two female friends left, leaving defendant and a sleeping Graham in the apartment. Graham's whereabouts were thereafter unknown for several days until his body was found in a wooded area near defendant's apartment. Graham died from a single gunshot to the back of his head.
Before Graham's body was found, defendant told Graham's father that he had not seen Graham since Graham was picked up by one of Graham's relatives. In the meantime, defendant had been driving Graham's Impala, and had told his girlfriend and the mother of his child, Paris Wilson, that the vehicle belonged to him. When Graham's father went to defendant's apartment and confronted defendant, he observed baby items in the car and it appeared as though defendant and Wilson were “moving into the car.” Defendant had also covered or replaced a sticker on Graham's Impala, gave Wilson a spare key to the car, and talked about having the color of the car changed. Wilson was not concerned that the car belonged to Graham because, at some time before September 14, defendant said that the person for whom he was house-sitting was going to give him a white Impala so he could get to work. However, Wilson subsequently testified that defendant did not have a job.
After obtaining a warrant, the police executed a search at defendant's apartment shortly after midnight on Friday, September 20. In the living room, the police observed what appeared to be drops of blood underneath a sofa on the carpet. By the time the police completed their search, Graham's body had been found outside the residence. The case was turned over to the Southfield Police.
Before Graham's body was found, defendant's father had taken defendant to the Wixom police station on September 19, at approximately 6:00 p.m., where defendant was interviewed by Wixom Detective Michael Desrosiers. During this initial interview, which lasted approximately one hour and 20 minutes, defendant was not in custody. Defendant denied knowing Graham's whereabouts. Defendant stated that Graham and two girls came to his apartment to watch a boxing match. Graham and the girls drank and smoked marijuana, but defendant did not. At one point, the alcohol caused Graham to vomit, but Graham cleaned it up. Graham lied down on a couch and, after the boxing match concluded, the two girls left. The next morning, Graham drove defendant to his parents' Detroit house and dropped him off. Defendant went to church that morning and did not see Graham again until Tuesday. On Tuesday, Graham came to the apartment, the two played video games, and ultimately Graham asked defendant if he had a shotgun because he needed to take care of a few things. Defendant responded that the one in the apartment was broken. Graham left, leaving his car keys behind. Defendant claimed that Tuesday was the last time he saw or talked to Graham.
Subsequently, defendant voluntarily went to the Oakland County Sheriff's Office, where he was interviewed by Deputy Christopher Lanfear at approximately midnight; defendant was not in custody at the time. Initially, defendant's statement was consistent with what he told Detective Desrosiers, but the deputy advised defendant that he did not quite believe his story. Defendant then stated that, on Tuesday, he heard a gunshot as Graham and another man, whom he did not know, were leaving the apartment. When he looked out the window, he observed the unknown man drag Graham's body, put it in a car, and drive away. In response, Deputy Lanfear told defendant that the story did not make sense, that he should tell the truth, and that, if he did something in self-defense, he should explain his position. Defendant then stated that there was a struggle between him and Graham in the living room, and he shot Graham one time in the head, at close range, with a .357 pistol. Defendant ultimately wrapped Graham's body in bedding and put it outside in some bushes. Following the interview with Deputy Lanfear, defendant remained at the Sheriff's Department until the Southfield Police arrived.
Southfield Police Detectives William Smarsty and Wojaciechowski interviewed defendant on September 20, at approximately 3:30 a.m. By the time of the interview, Graham's body had been found in the woods and blood had been found in defendant's apartment. Detective Smarsty testified that he read defendant his constitutional rights, and defendant stated that he understood, waived his rights, and agreed to speak with the detectives. Defendant was in custody at this time. Defendant again stated that Graham went to his house to watch a pay-per-view fight on television and there were a couple of girls there also. Graham drank and smoked marijuana, and eventually threw up in the kitchen from drinking too many shots. After the girls left, Graham repeatedly messed with him, and defendant told Graham to turn down the radio because he wanted to sleep to prepare for church. Defendant and Graham engaged in a pushing match, fell onto the couch, and were face-to-face as Graham held him around the neck; defendant could not breathe. After the detectives told defendant that the scenario was impossible and demonstrated that Graham's arms would have had to have been across the back of defendant's neck, not around the front of it, defendant stated, “That's how it was.” Defendant further stated that he was lying on top of Graham, face-to-face, and, with his left arm, he reached underneath the couch's arm rest to retrieve his gun and fired one shot to the back of Graham's head; the gun was very close to Graham's head. Afterward, defendant picked up Graham's feet and put them on the couch. Because he was scared, defendant took Graham's car keys and cell phone and left the apartment. Defendant stated that, after unloading the gun, he took it to his parents' house on Burgess[]; he also stated that there was a box of ammunition under a bed. Defendant explained how he cleaned up the couch with household cleaners. On Sunday night, defendant wrapped Graham's body in bedding and dragged him into the woods. Defendant admitted that he put a sticker on Graham's car to try to disguise it. Later, defendant claimed that he put the sticker on the car before watching the fight to play a joke on Graham.
Detective Smarsty testified that he went to the Burgess house and recovered the gun and a box of ammunition under the bed. Michigan State Police Sergeant Shawn Kolonic, who testified at trial as an expert in the area of firearms and tool marks, examined the recovered .357 Magnum Ruger revolver, as well as the fired bullet jacket fragment, fired bullet core, and metallic fragment removed from Graham's skull. He determined that the bullet jacket fragment came from the .357 revolver. Cheryl Loewe, the Oakland County Deputy Medical Examiner, performed the autopsy on September 20, and was qualified at trial as an expert in forensic pathology. Lowe explained that Graham had one gunshot entrance wound on the back of his head, and there was no evidence of close range firing. After being shot, Graham would have died within seconds. Graham had no bruises or injuries on his body, was wrapped in bedding, and was not wearing shoes.[]
Detective Smarsty testified that at approximately 5:30 p.m., he spoke with defendant again after learning from the medical examiner that the gunshot had to have been fired from at least two feet away, as opposed to close range. Defendant had been in the holding cell at the Southfield Jail, with access to a bed, bathroom, food, and water. Detective Smarsty testified that during the follow-up interview, defendant initially stayed with his last version until the detectives explained the medical examiner's findings, i.e., that the gunshot could not have been taken at close range because there was no stippling or gun residue on Graham's skull. Defendant then stated that Graham had choked him face-to-face for close to 10 seconds before they both went and sat on the couch. Graham tripped him again, and they messed around some more before Graham sat on the couch and defendant sat on the love seat-a separate couch. Defendant then got up, grabbed the gun underneath the armrest of the couch, took a few steps back, pointed the gun at Graham's head, and took one shot. Defendant stated that Graham did not see him take the gun out. Defendant claimed that Graham had pushed him, tripped him, and choked him. Defendant stated that he did not have any injuries, specifically no bleeding or bruising. While initially stating that “Graham “shouldn't have choked [him], ” defendant eventually acknowledged that he had gone too far.
Detective Smarsty explained that given the lack of injuries to defendant, they had a specialist take photographs of defendant's body to show that there were no injuries and trauma evidence from an altercation or incident. The detective also testified that based on the booking information, defendant is six-feet tall and weighed 150 pounds. Based on the medical examiner report, Graham was 6'2” and weighed 136 pounds. During the interview, defendant described himself as “little”, noting that Graham was more muscular than him. Defendant told Detective Smarsty that he made some calls on Graham's phone, but never texted on it. However, Graham's father and friend had received text messages from Graham's phone on Sunday and Monday. On Monday, September 16, defendant sold Graham's phone to a Metro PCS on Eight Mile Road in Detroit and received $200. Graham's phone was never recovered.

People v. Johnson, No. 321575, 2015 WL 5495975, at *1-3 (Mich. Ct. App. Sept. 17, 2015). These facts 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).

         Petitioner was convicted by a jury in Oakland County Circuit Court and, on April 21, 2014, sentenced to life imprisonment for the murder conviction, to be served consecutively to concurrent prison terms of two years for the felony-firearm conviction and 213 days for the unlawfully driving away an automobile conviction.

         Petitioner's convictions were affirmed on appeal. Johnson, 2015 WL 5495975, leave to appeal denied, 876 N.W.2d 554 (Mich. 2016).

         Petitioner then filed the pending petition for a writ of habeas corpus. He asserts the following grounds for relief:

I. Petitioner's confession to police and waiver of his Miranda rights were involuntary and, thus, the trial court erred in denying his motion to suppress them and allowing their introduction at trial.
II. The evidence of premeditation was insufficient.
III. The prosecutor and trial court erroneously urged the jury to consider whether Petitioner was required to retreat.

         II. Standard

         Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 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 411.

         The AEDPA “imposes a highly deferential standard for evaluating state-court rulings, ” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations omitted). 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)). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. Pursuant to section 2254(d), “a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are ...


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