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McGlown v. Hoffner

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

September 6, 2019

LEONARD DEE MCGLOWN, Petitioner,
v.
BONITA HOFFNER, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          Sean F. Cox United States District Judge.

         Petitioner Leonard Dee McGlown has filed a pro se habeas petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his convictions for first-degree (premeditated) murder, Mich. Comp. Laws § 750.316(1)(a), conspiracy to commit murder, Mich. Comp. Laws § 750.157a, and possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. For the reasons that follow, the petition for a writ of habeas corpus is DENIED.

         I. Background

         The Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See e.g., Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This case arises from the shooting of Marcus Newsom on February 9, 2002. According to the prosecution, defendants, along with codefendant Cordall Neal, shot the victim in his car at about 9:30 p.m. According to witness testimony, the victim was driving in a red car when a light-colored van either slowed or stopped next to the victim's car at the intersection of Park Street and College Avenue in Adrian, Michigan. Gun shots were heard, and the van left the scene immediately. The victim was found badly injured in his vehicle, which belonged to his sister, and died shortly thereafter in the hospital from multiple gunshot wounds. A few minutes after the shooting, defendants were stopped by police because they were driving in a light-colored van which matched witnesses' descriptions of the van involved in the shooting. Neal was in the driver's seat, defendant McGlown was in the passenger seat, and the Daniel defendants were in the back seat. Later, while retracing the route between the shooting and the location where defendants were stopped, police recovered two revolvers, a pistol, and three gloves that had been discarded in the roadway. Bullets from one of the revolvers were found in the victim's vehicle, and bullets from the pistol were found in the victim's body.
Defendants were subsequently charged and tried for murder. The victim's aunt testified that Neal called her after the shooting. Allegedly, Neal had been trying to shoot the victim's sister's boyfriend, Jamal Bradley, because Bradley allegedly robbed Neal's grandmother and shot Neal's uncle. Both the victim and Bradley frequently drove the victim's sister's vehicle, a red car. Neal told the victim's aunt that he had paid his twin uncles to kill Bradley. According to Neal, defendants had shot the victim by mistake because they thought it was Bradley. Neal told the victim's aunt that he was driving and fired no shots.
After a nineteen-day trial, defendants were convicted of first-degree premeditated murder, conspiracy to commit first-degree murder, and felony-firearm. At trial, all three defendants were ordered to wear electronic restraints.

People v. McGlown, No. 308231, 2014 WL 3844010, at *1 (Mich. Ct. App. Aug. 5, 2014).

         On October 26, 2011, Petitioner's jury found him guilty of first-degree murder, conspiracy to commit first-degree murder, and one count of felony-firearm. On November 18, 2011, the trial court sentenced Petitioner to two years in prison for the felony-firearm conviction, followed by life imprisonment for the murder and conspiracy convictions.

         In an appeal before the Michigan Court of Appeals, Petitioner argued that: (1) the trial court violated his right to confront the witnesses against him by admitting a witness's out-of-court testimony as substantive evidence; (2) the trial court violated his right to present a defense by recognizing a defense witness's Fifth Amendment privilege against self-incrimination even though the proposed questions could not have yielded incriminating answers; (3) the trial court violated his right to present a defense by precluding all testimony from the defense witness, rather than requiring the witness to invoke his Fifth Amendment privilege on a question-by-question basis; (4) the trial court infringed on Petitioner's right to be presumed innocent by requiring Petitioner to wear restraints or a taser device during trial; and (5) trial counsel was ineffective for failing to request a gunshot residue test on Petitioner's clothing. The Michigan Court of Appeals found no merit in these claims and affirmed Petitioner's convictions in an unpublished, per curiam opinion on August 5, 2014. See McGlown, 2014 WL 3844010.

         Petitioner raised the same five claims in the Michigan Supreme Court. He subsequently moved for permission to submit a supplemental brief in which he contended that he was innocent of first-degree murder and that his trial attorney was ineffective for not investigating and raising a defense of “mere presence.” On March 31, 2015, the Michigan Supreme Court granted Petitioner's motion to file a supplemental brief, but denied his application for leave to appeal because the court was not persuaded to review the issues presented. See People v. McGlown, 497 Mich. 982; 860 N.W.2d 628 (2015).

         On April 30, 2015, Petitioner signed and dated his habeas corpus petition, and on May 4, 2015, the Clerk of the Court filed the petition. Petitioner alleged as grounds for relief that: (1) the trial court violated his right to confront the witnesses against him by allowing a witness's prior testimony to be read into the record; (2) the trial court violated his right to present a defense by recognizing a defense witness's Fifth Amendment privilege against self-incrimination even though the proposed questions could not have yielded incriminating answers; (3) the trial court violated his right to present a defense by precluding all testimony from the defense witness, rather than requiring the witness to invoke his Fifth Amendment privilege on a question-by-question basis; (4) the trial court infringed on his right to be presumed innocent by requiring him to wear restraints or a taser device during trial; (5) trial counsel was ineffective for failing to request a gunshot residue test on Petitioner's clothing; (6) the State's highest court erred reversibly by denying his motion to remand for a hearing on his claim about trial counsel; and (7) he is innocent of first-degree murder, and trial counsel was ineffective for failing to conduct an investigation on a defense of “mere presence.” This Court granted Respondent's motion for summary judgment and dismissed the habeas petition without prejudice finding that Petitioner failed to exhaust his state remedies for claims six and seven.

         On February 23, 2018, Petitioner filed his “amended habeas corpus petition, ” (Doc. 18), deleting the two unexhausted claims and alleging the following grounds for relief: (1) the trial court violated his right to confront the witnesses against him by allowing a witness's prior testimony to be read into the record; (2) the trial court violated his right to present a defense by recognizing a defense witness's Fifth Amendment privilege against self-incrimination even though the proposed questions could not have yielded incriminating answers; (3) the trial court infringed on his right to be presumed innocent by requiring him to wear restraints or a taser device during trial; and (4) trial counsel was ineffective for failing to request a gunshot residue test on Petitioner's clothing.

         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).

         Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. See Greene v. Fisher, 565 U.S. 34, 38 (2011). Section 2254(d) “does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established law” are to be determined solely by resort to Supreme Court rulings, the decisions of lower federal courts may be instructive in assessing the reasonableness of a state court's resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F.Supp.2d 354, 359 (E.D. Mich. 2002). A federal habeas court must presume the correctness of state court factual determinations, and a petitioner may rebut this presumption only with clear and convincing evidence. See 28 U.S.C. § 2254(e) (1).

         III. Discussion

         A. Claim # 1. The unavailable witness/Confrontation Clause claims.

         Petitioner in his first claim argues that the trial court erred in declaring Mr. Slusser unavailable at trial, so as to allow his preliminary examination testimony to be read to the jury.

         Petitioner contends that the police and prosecutor failed to act with due diligence in securing Mr. Slusser's attendance at trial, thus, the judge erred in finding Mr. Slusser unavailable to testify at trial and by allowing his preliminary examination testimony to be read into evidence.

         The Michigan Court of Appeals rejected Petitioner's claim as follows:

Defendant McGlown complains that the trial court erred in admitting out-of-court testimonial statements by Ronald Slusser, a jail inmate who supplied critical evidence against him. Defendant McGlown challenges the trial court's ruling that the prosecutor employed due diligence in seeking to produce Slusser for trial, and asserts that he lacked an opportunity to fully cross-examine Slusser at the preliminary examination because some information impugning Slusser's veracity came to light only after the examination. We review the trial court's evidentiary rulings for an abuse of discretion. We review for clear error a trial court's findings of fact, including a finding of due diligence.
……………………………………………………………………………..
In this case, the parties agreed that the prosecutor had subpoenaed Slusser to appear for trial; Slusser appeared at trial and agreed that his subpoena would extend through a forthcoming trial date, and Slusser did not later reappear for trial due to his brief stay in an Indiana psychiatric hospital. The hospital intended to promptly release Slusser, but Slusser expressed an unwillingness to reappear in Michigan because of his belief that another Michigan county had issued a warrant for his arrest. The undisputed facts lead us to conclude that the trial court did not clearly err in finding Slusser unavailable on the basis that he had ...

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