Willingham v. Bauman

          OPINION

          Paul L. Maloney United States District Judge

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Discussion

         I. Factual allegations

         Petitioner Toshi Edward Willingham is incarcerated with the Michigan Department of Corrections at the Alger Correctional Facility (LMF) in Alger County, Michigan. Following a two-day jury trial in the Berrien County Circuit Court, Petitioner was convicted of assault with intent to murder (AWIM), in violation of Mich. Comp. Laws § 750.83, and possession of a firearm during the commission of a felony (felony firearm), in violation of Mich. Comp. Laws § 750.227b. On December 8, 2015, the court sentenced Petitioner as a fourth habitual offender, Mich. Comp. Laws § 769.12, to a prison term of 30 to 90 years for AWIM, to be served consecutively to a prison term of 2 years for felony firearm.

         On October 31, 2019, Petitioner timely filed his habeas corpus petition raising five grounds for relief, as follows:

I. Petitioner's Fifth and Fourteenth Amendment rights to due process of law were violated because the evidence was insufficient to convict him of the crimes charged.

II. The trial court committed an error of law and abused its discretion by admitting evidence of a 911 call and interview with Ashley Davis because (1) the evidence was not admissible under Mich. Comp. Laws § 768.27(c) and (2) admission of the evidence violated Petitioner's right of confrontation and his right to a fair trial by the admission of testimonial hearsay in violation of the Fifth, Sixth, and Fourteenth Amendments.

III. The trial court erred with regard to the scoring of OV-6; alternatively, counsel was ineffective for failing to object in violation of the Sixth and Fourteenth Amendments.

IV. Petitioner was improperly sentenced as a fourth habitual offender where the prosecutor failed to properly specify the alleged convictions, any possible convictions were either misdemeanors or pleas where Petitioner was not represented by counsel and in the alternative, Petitioner's counsel was ineffective for failing to object; in violation of the Sixth and Fourteenth Amendments.

V. Petitioner was denied his due process right to a fair trial where the trial court allowed the admittance of a firearm as an exhibit that was not found in the possession or vicinity of Petitioner and in the alternative counsel was ineffective for failing to object or file a motion for the suppression of the highly prejudicial evidence; in violation of the Fifth, Sixth, and Fourteenth Amendments.

         (Pet., ECF No. 1-1, PageID.16-44.)

         Petitioner's convictions stem from an incident on May 11, 2015. The Michigan Court of Appeals described the incident, and the evidence admitted at Petitioner's trial, as follows:

On May 11, 2015, Ashley Davis went to J&B's Liquor Store (J&B's) with Demetrious Howard and Kashmir Zahoui. Davis spoke with her cousin, Angela Hemphill, in J&B's parking lot. While Davis and Hemphill were talking, Zahoui told Davis that defendant, whom Davis had dated in the past, was behind her. Davis wanted to avoid defendant because she had fought with defendant's sister just a few days before. She returned to Howard's car, but defendant confronted her before she could leave.

Hemphill testified that an argument between defendant and Davis ensued and that as Howard began driving away, Davis called defendant or his sister a “bitch, ” and in response defendant took out a firearm and started shooting at Howard's car as it drove away. Because Davis was unavailable for trial, Benton Harbor Public Safety Department Officer Benjamin Ingersoll testified to Davis's account of the events as relayed to him during an interview conducted shortly after the shooting. According to Ingersoll, Davis indicated that she and Howard were leaving J&B's parking lot when defendant pulled out a gun and started shooting at Howard's car.

Howard was also unavailable for trial, but a recording of his preliminary examination testimony was played for the jury. Howard testified that defendant was not the man who had shot at his car. Rather, the man who had shot at the car later approached Howard, identified himself as “Boo Man, ” apologized, and offered to pay for damages to the vehicle. Ingersoll testified, to the contrary, that when he interviewed Howard about the shooting, Howard stated that an unnamed person had come up to his car before the shooting and said to him, “Drive off, I'm gonna shoot, ” at which point Howard drove from the parking lot and the person shot at Howard's car. Ingersoll also testified that Howard never mentioned a person named “Boo Man” at any point after the shooting.

Davis called 911 from Howard's car. A recording of the 911 call was played for the jury. In the call, Davis stated that defendant had shot at her and that she was not going back to J&B's because she did not think that it was safe. Ingersoll met Davis at her home while another officer went to J&B's to secure the scene. At Davis's home, Ingersoll interviewed Davis and Hemphill, and recorded those interviews with his body camera. Recordings of those interviews were played for the jury. Ingersoll also investigated Howard's car at Davis's home and confirmed that four bullets had impacted the car.

The officer who responded to J&B's canvassed the parking lot and found seven shell casings. Ingersoll also canvassed J&B's at a later time and found an eighth shell casing. The shell casings were sent to the Michigan State Police (MSP) for analysis. An expert in firearm examinations testified that the casings were from nine-millimeter luger rounds that required a nine-millimeter caliber luger firearm to fire.

In an unrelated investigation, Benton Township Police Department Detective Brian Smit found a gun during a search of the residence where a Daniel Autry was staying. Shortly before the gun was found, defendant's brother, Kayjuan Spears, was seen leaving the home. The gun was sent to the MSP for analysis. An expert in firearm examinations testified that the gun was a nine-millimeter caliber luger firearm capable of firing the ammunition from the casings that were recovered at J&B's. The expert further concluded, based on his examination of four of the eight casings, that the ammunition was fired from the firearm that had been recovered by Smit. The results of the examination of the other four casings were inconclusive.

Defendant was subsequently interviewed by MSP Detective Sergeant Michael Logan. According to Logan, defendant originally told him that he had purchased the gun for $150 from a man nicknamed “Little Joe” and that he had sold the gun to Autry for $300 in May 2015. However, in a subsequent interview, defendant said that those statements were not true and that he had made them up to protect his brother, whom he knew was under investigation. Defendant stated that the only time he had handled the gun was when his brother handed it to him and he posed for a picture with it. That picture was entered into evidence at defendant's trial.

         (Mich. Ct. App. Op., ECF No. 1-6, PageID.102-103.)

         Before trial, the prosecution moved to admit the recordings of Ashley Davis's 911 call and her interview with the police under Mich. Comp. Laws § 768.27c. That statute permits the admission of a statement by a declarant if the following apply:

(a) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.

(b) The action in which the evidence is offered under this section is an offense involving domestic violence.

(c) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of a statement made more than 5 years before the filing of the current action or proceeding is inadmissible under this section.

(d) The statement was made under circumstances that would indicate the statement's trustworthiness.

(e) The statement was made to a law enforcement officer.

         Mich. Comp. Laws § 768.27c(1). The statute defines domestic violence to include “causing or attempting to cause physical or mental harm to a . . . household member . . . [and p]lacing a . . . household member in fear of physical or mental harm.” Mich. Comp. Laws § 768.27c(5)(b). The definition of household member, in turn, includes “[a]n individual with whom the person has or has had a dating relationship.” Mich. Comp. Laws § 768.27c(5)(c)(iv). Davis and Petitioner had dated.

         Petitioner objected arguing that Davis's statements did not meet any hearsay exception, were not admissible under the cited statute, and, even if admissible, would violate Petitioner's Confrontation Clause rights. The court heard argument on the prosecutor's motion and concluded that the statements were admissible under the statute. In addition, the court determined the statements would have been admissible under the Michigan Rules of Evidence as excited utterances and present sense impressions. Finally, the court determined that admission of Davis's statements did not violate the Confrontation Clause because they were not testimonial; instead, they were made to assist the police in addressing an ongoing emergency. (Pet., ECF No. 1-1, PageID.26-28.)

         At sentencing, Petitioner objected to several errors in the presentence investigation report (PSIR). Most significantly, Petitioner contended that he could not be sentenced as a fourth habitual offender because an Illinois conviction for “resisting and obstructing” was a misdemeanor and because a predicate offense of marijuana possession relied upon by the prosecutor simply did not exist. The court concluded that the “resisting and obstructing” offense would be considered a felony in Michigan and, therefore, counted as a predicate felony for habitual offender status. The court never ruled on Petitioner's other objections and, when the court asked counsel whether he had any other additions or deletions to the PSIR, counsel told the court all concerns had been addressed.

         Petitioner directly appealed his convictions to the Michigan Court of Appeals. In a brief filed with the assistance of counsel, Petitioner raised the first four habeas issues identified above. In a supplemental pro per brief, Petitioner raised his fifth habeas issue. By unpublished opinion issued August 15, 2017, the court of appeals affirmed the trial court.

         Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the same five issues he raises in his petition. By order entered September 12, 2018, the supreme court denied leave. (Mich. Order, ECF No. 1-7, PageID.114.) Petitioner did not file a petition for certiorari in the United States Supreme Court. (Pet., ECF No. 1, PageID.3.) Instead, Petitioner filed the instant petition.

         II. AEDPA standard

         This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA “prevents federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. __, 135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 574 U.S. 1, 4 (2014); Marshall v. Rodgers, 569 U.S. 58, 64 (2013); Parker v. Matthews, 567 U.S. 37, 48-49 (2012); Williams, 529 U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal ...