Banks v. Kowalski

          MEMORANDUM AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          AVERN COHN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This is a habeas case under 28 U.S.C. § 2254. Petitioner Damien Banks (Petitioner) is a state inmate serving a sentence of 6-20 years for assault with intent to do great bodily harm less than murder, M.C.L. § 750.84, 6-20 years for conspiracy to commit assault with intent to do great bodily harm less than murder, M.C.L. § 750.157a and M.C.L. § 750.84, 15-40 years for armed robbery, M.C.L. § 750.529, and 15-40 years for conspiracy to commit armed robbery, M.C.L. § 750.157a and M.C.L. § 750.529. Petitioner filed a pro se petition for a writ of habeas corpus claiming that he is incarcerated in violation of his constitutional rights. Respondent, through the Attorney General’s Office, filed a response, arguing that Petitioner’s claims are meritless or procedurally defaulted. For the reasons which follow, the petition will be denied.

         II. Procedural History

         Petitioner was convicted following a jury trial. Petitioner filed an appeal of right. The Michigan Court of Appeals affirmed his conviction. People v. Banks, No. 319889, 2015 WL 6438128 (Mich. Ct. App. Oct. 22, 2015). Petitioner then filed a pro se application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Banks, 499 Mich. 884 (2016).

         Petitioner seeks habeas relief on the following grounds:

I. There was insufficient evidence to convict petitioner in state court of conspiracy to commit assault with intent to commit great bodily harm, armed robbery, and conspiracy to commit armed robbery, in violation of his federal constitutional right to due process.

II. Petitioner was denied his Sixth Amendment right to a fair trial and Fourteenth Amendment right to the presumption of innocence when the state trial judge introduced jury instructions which diluted the prosecution’s burden of proof and shifted the burden to the defense.

III. Petitioner was denied his Sixth Amendment constitutional right to the effective assistance of counsel at his trial, specifically when counsel: (A) failed to effectively impeach the complaining witness; (B) failed to investigate and introduce surveillance video which would have corroborated his actual innocence; and (C) failed to object to the prosecution’s use of false testimony and evidence, in violation of due process.

         III. Facts

         The material facts leading to Petitioner’s conviction are recited verbatim from the Michigan Court of Appeals’ opinion, which are presumed correct on habeas review. See 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Brad Bohen lived down the street from Tiffany Greathouse. After meeting in the neighborhood, Bohen became friends with Greathouse’s brother, Maliki Greathouse, and her boyfriend, defendant Banks. On the day in question, Bohen testified that Banks and Maliki were visiting his home when he took a phone call from his attorney. Bohen told his attorney that he had gathered sufficient money to pay a $650 retainer plus additional fees and that he wished to procure his services. When Banks and Maliki heard this conversation, they allegedly looked at each other and left.

Later that day, Bohen left his home with approximately $2, 500 in cash in his pocket. He travelled (sic) with his friend Renee Nomer and her two children to Costco and then to T.G.I. Friday’s for dinner. While inside the restaurant, Bohen fielded two phone calls from Banks. Bohen alleged that Banks wanted him to purchase some Xanax and Adderall from him. Bohen told Banks that he could meet him at the restaurant. Banks called once and claimed to be outside the restaurant. Bohen could not find him in the parking lot and returned to his table. Bohen testified that Banks called again and claimed to be waiting outside. When Bohen exited the restaurant, he saw Greathouse sitting inside a vehicle in the parking lot. Bohen asserted that Greathouse pointed toward the back of the restaurant.

Bohen walked toward the back parking lot and saw Banks and Lyons standing near the dumpster. Lyons is the boyfriend of Greathouse’s mother and Bohen had not met him before the attack. As Bohen approached the men, someone struck him from behind in the head and he fell to the ground. Banks and Lyons ran toward him, and Bohen initially believed they were coming to assist him. However, Banks and Lyons joined the fray, keeping him on the ground, and hitting and kicking him. A young female employee of the restaurant came out at the end of her shift and saw two tall, thin black men wearing hooded jackets beating a white man who was curled on the ground in fetal position. One man was using a “small, blunt object” that “looked like a hammer” to beat the victim in the head. She saw a third man standing watch. She yelled and the men ran away, with one man dropping something out of his pocket along the way. At the end of this encounter, Bohen had only $661 remaining in his pockets.

Bohen was hospitalized for five days and required surgery to remove a shard of his skull from his brain. Investigating officers brought photographic lineups to the hospital for Bohen’s review. The first included black and white photographs and Bohen was unable to identify his attackers. In the second lineup, Bohen identified Banks. In a third, Bohen selected Lyons from the array.

Following a joint trial before a single jury and several days of jury deliberations, the jury acquitted the defendants of the greatest charged offenses and convicted them of assault with intent to commit great bodily harm, armed robbery, and conspiracy to commit those offenses. These consolidated appeals followed.

People v. Banks, 2015 WL 6438128, at *1-2.

         IV. Standard of Review

         28 U.S.C. § 2254(d) 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 state court’s decision 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 shall 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)). The Supreme Court emphasized “that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 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 inconsistent with the holding in a prior decision” of the Supreme Court. Id. 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.” Id. at 103.

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