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McMahon v. DeAngelo-Kipp

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

September 9, 2019

ROBERT J. MCMAHON, Petitioner,
v.
JODI DeANGELO-KIPP, Respondent.

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

          NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE

         Petitioner Robert McMahon, currently in the custody of the Michigan Department of Corrections, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his convictions for bank robbery, Mich. Comp. Laws § 750.531, and two counts of armed robbery, Mich. Comp. Laws § 750.529, for which he is serving three concurrent sentences of 126 months to 20 years' imprisonment. He raises a single claim for relief: his Fifth Amendment right to counsel was violated by the admission into evidence of his statements to police made after he invoked his right to counsel. For the reasons explained below, the Court denies the petition.

         I. Background

         This case arises from a robbery at the Genesis Credit Union in Waterford Township on July 10, 2010. Caterri McCleery and Jennifer Hanson were working as tellers that day. Caterri McCleery testified that, at about 10:00 a.m., a man wearing a black mask and sunglasses and carrying a gun entered the bank. 10/25/10 Tr. at 34. The man approached McCleery's teller window, told a customer standing at the window to leave, threw a bag at McCleery and demanded she fill it with money. Id. at 34-35. He also ordered all of the other customers out of the bank. Id. at 35. McCleery told him that she did not have any money because her teller drawer was at the drive-through window. Id. at 35-36. He asked for her personal money. She told him that she did not have very much, but that her purse was locked up by the drive-through window. Id. at 41.

         The man then took the bag away from McCleery and gave it to another teller, Jennifer Hanson, telling her to give him money. Id. at 36. He still had his gun in hand and showed Hanson that he also had a box cutter. Id. at 38. Hanson told the man that she did not have a cash drawer and was using a cash dispenser unit, which was on a time lock. Id. He then asked her for her personal money. Id. Hanson told the man that she did not have her purse with her. Id.

         The man was enraged that no one in a bank seemed able to give him any money. Id. at 39. McCleery told him that she could get money from her cash drawer at the drive-through window. Id. She walked to the window and put about $1, 700 in the bag. Id. The man then left the bank.

         Jennifer Hanson's testimony was consistent with McCleery's. Hanson testified that the robber asked for personal money from Hanson and McCleery, and that, ultimately, McCleery retrieved cash from the drive-through window and gave it to the robber.

         Deborah Giles was using a drive-through automatic teller machine at the Genesis Credit Union at the time of the robbery. While using the ATM, she became aware the credit union was being robbed. Id. at 18-19. Giles saw a young man exit the bank, carrying a bag and wearing a hoodie. Id. at 20. Giles followed the man in her vehicle. At the end of an alley, she saw a red vehicle, but no man. She presumed he got into the red vehicle and followed that vehicle. Id. at 22-25. When she caught up to the vehicle, she saw the driver was a female with a ponytail. She also saw that someone was hunched down in the back seat. Id. at 27. Giles recorded the license plate number and provided it to the police. Id. at 30.

         Kip Quarton testified that, on July 10, 2010, at approximately 10:30 a.m., Petitioner called him asking to be picked up. Id. at 183. Petitioner told Quarton that he had money with which to repay Quarton for a past debt. Id. When Quarton picked up Petitioner, Petitioner told Quarton that he had just robbed a bank and gave Quarton $50. Id. at 184-85.

         Waterford Police Department police officer Matt Reid testified that he responded to the report of a robbery at the credit union. After following leads related to the license plate number reported by Giles, Officer Reid observed Petitioner walking down a street in Waterford. Id. At 147-48. Officer Reid handcuffed Petitioner and found a large amount of cash in Petitioner's pocket. Id. at 148-150. The cash totaled $1, 714. Id. at 150. Police learned that Petitioner had been near a business called Michigan Court Services. Police Officer Christopher Metikosh testified that he looked in a dumpster near that business and found a knit cap, hoodie, a pair of pants, and what appeared to be a Beretta 9 mm handgun. Officer Metikosh testified that the gun appeared real, although it was not.

         Police detective Gregory Drumb testified that he interviewed Petitioner after his arrest. He testified that, after Petitioner was advised of his rights under Miranda, Petitioner confessed to robbing the bank.

         Petitioner testified in his own defense. He admitted intending to rob the bank, but denied demanding personal property from either of the tellers. He theorized that McCleery and Hanson were mistaken in their testimony because the day was so stressful for them.

         Petitioner was convicted of bank robbery and two counts of armed robbery. On November 24, 2010, he was sentenced to 126 months to 20 years for each of his three convictions.

         Petitioner filed an appeal of right in the Michigan Court of Appeals, raising four claims for relief, including the Fifth Amendment claim raised in the pending habeas petition. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. McMahon, No. 302037, 2012 WL 3020391 (Mich. Ct. App. July 24, 2012). The Michigan Supreme Court denied leave to appeal, People v. McMahon, 493 Mich. 930 (Mich. Jan. 25, 2013), and denied reconsideration. People v. McMahon, 494 Mich. 873 (Mich. June 25, 2013).

         Petitioner filed a motion for relief from judgment in the trial court, raising claims unrelated to the claim raised in this petition. The trial court denied the motion. See 12/12/2014 Order, People v. McMahon, No. 10-233010, ECF No. 7-13. The Michigan Court of Appeals denied leave to appeal, People v. McMahon, No. 327879 (Mich. Ct. App. July 29, 2015), as did the Michigan Supreme Court. People v. McMahon, 499 Mich. 927 (Mich. 2016).

Petitioner then filed this habeas corpus petition, raising a single claim for relief:
The trial court violated McMahon's constitutional rights by admitting his statements to police where they were obtained in violation of his ...

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