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Farquharson v. Horton

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

January 13, 2020

KERRICK FARQUHARSON, #538192, Petitioner,
v.
CONNIE HORTON, [1] Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, GRANTING A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Kerrick Farquharson (“Petitioner”) was convicted of second-degree murder, Mich. Comp. Laws § 750.317, assault with intent to commit murder, Mich. Comp. Laws § 750.83, and possession of a firearm during the commission of a felony (“felony firearm”), Mich. Comp. Laws § 750.227b, following a jury trial in the Genesee County Circuit Court. He was sentenced to 37 years 6 months to 75 years imprisonment on the murder conviction, a concurrent term of 23 years 9 months to 50 years imprisonment on the assault conviction, and a consecutive term of 2 years imprisonment on the felony firearm conviction in 2009. In his petition, he raises claims concerning the effectiveness of trial and appellate counsel, the admission of certain evidence, the jury instructions and verdict form, and his right to a speedy trial. For the reasons set forth, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's convictions arise from a shooting outside of a Flint nightclub in 2005 that resulted in the death of one man and an injury to his sister. The Michigan Court of Appeals described the underlying facts, 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), as follows:

Defendant's convictions arise from a shooting outside a nightclub in Flint during the early morning hours of January 30, 2005. David Colen was fatally shot and his sister, Denise Colen, was shot in the face, leaving her permanently blind. The evidence showed that defendant went to the nightclub with Otis Dickerson and George Smith, but waited in a car outside the club because he was not old enough to enter. Dickerson and David Colen became involved in a fight inside the club, and several other persons joined the fight and began attacking Colen. After the fight broke up, David and Denise Colen left the nightclub, and Dickerson and Smith also left. The Colens passed Dickerson's car while walking to their own car. According to Dickerson, Smith, and another witness, Delon Savage, defendant jumped out of Dickerson's car and shot both David and Denise Colen as they attempted to get into their car.
Two witnesses, Andre Mathis and Tyrone Savage, died before trial. Mathis was fatally shot on December 29, 2005, and Savage was shot on January 2, 2007. In May 2006, the trial court granted defendant's pretrial motion to admit Mathis's prior testimony, given pursuant to an investigative subpoena, in which Mathis had identified Dickerson as the shooter. The prosecution appealed that decision. This Court held that Mathis's prior testimony was admissible under MRE 804(b)(10), provided the prosecution had a similar motive to develop Mathis's testimony at the investigative-subpoena hearing. People v. Farquharson, 274 Mich.App. 268, 278-279, 731 N.W.2d 797 (2007), lv den 478 Mich. 931, 732 N.W.2d 901 (2007). This Court declined to address defendant's argument that his constitutional right to present a defense would be violated if he were precluded from presenting Mathis's prior testimony because the prosecution had not raised that issue and defendant had not filed a cross appeal. Id. at 279, 731 N.W.2d 797. This Court remanded the case for further proceedings consistent with its opinion. Id.
On remand, in January 2008, the trial court determined that the prosecution did not have the same motive to develop Mathis's testimony during the investigative-subpoena hearing, but ruled that the prior testimony was admissible to protect defendant's constitutional right to present a defense. The prosecution filed another application for leave to appeal, this time arguing that the trial court improperly exceeded the scope of this Court's prior remand order by admitting Mathis's prior testimony on the basis of defendant's constitutional argument. After this Court denied the application, People v. Farquharson, unpublished order of the Court of Appeals, entered January 30, 2008 (Docket No. 283300), the prosecution moved to adjourn the trial to enable it to pursue an application for leave to appeal with the Supreme Court. The trial court denied the motion to adjourn, following which the prosecution dismissed all charges and filed an application for leave to appeal with the Supreme Court. On March 24, 2008, the Supreme Court dismissed the application “[b]ecause the application sought to appeal a ruling made in connection with charges that have since been dismissed by the prosecutor.” People v. Farquharson, unpublished order of the Michigan Supreme Court, entered March 24, 2008 (Docket No. 135744).
Defendant was re-arraigned on October 13, 2008. Two weeks later, the prosecution filed a complaint for superintending control in this Court, seeking to reverse the trial court's January 2008, order admitting Mathis's prior investigative subpoena testimony. This Court denied the complaint on November 14, 2008, “due to the fact that plaintiff has other adequate legal remedies available.” In re Farquharson, unpublished order of the Court of appeals, entered November 14, 2008 (Docket No. 288558), lv den 483 Mich. 901, 761 N.W.2d 97 (2009). Trial thereafter began in December 2008. Mathis's prior investigative-subpoena testimony was introduced at defendant's trial.[1] The jury found defendant guilty of second-degree murder, assault with intent to commit murder, and felony-firearm.

People v. Farquharson, No. 290765, 2010 WL 4628648, *1-2 (Mich. Ct. App. Nov. 16, 2010) (unpublished) (footnote in original).

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising claims concerning the admission of drug activity evidence, the admission of Otis Dickerson's testimony about being shot at 10 times due to the case, Delone Savage's testimony that his brother Tyrone was killed by Raymond McClure, and George Smith's testimony that Petitioner has assaulted someone, the trial court's refusal to suppress a letter seized from Petitioner's jail cell, his right to a speedy trial, the effectiveness of trial counsel, and the scoring of the sentencing guidelines. The court denied relief on those claims and affirmed his convictions and sentences. Id. at pp. 2-8. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Farquharson, 490 Mich. 896, 804 N.W.2d 556 (2011).

         Petitioner subsequently filed a motion for relief from judgment and a motion for an evidentiary hearing with the trial court raising claims concerning the effectiveness of appellate counsel relative to his speedy trial claim, the effectiveness of trial counsel in refusing his demands to accept a plea offer and the effectiveness of appellate counsel in failing to move for an evidentiary hearing on this issue, the effectiveness of appellate counsel for failing to pursue a juror coercion claim, the jury instructions were coercive and deviated from the standard verdict form, and the effectiveness of trial counsel in presenting a defense. The court granted an evidentiary (“Ginther”) hearing on the plea offer issue, but denied relief on the other claims pursuant to Michigan Court Rule 6.508(D)(3), and further ruled that Petitioner failed to show that defense counsel was ineffective. People v. Farquharson, No. 08-23682-FC (Genesee Co. Cir. Ct. March 9, 2015 Opin.). The trial court then conducted the evidentiary hearing on the plea offer issue, found that the defense attorneys' version of events as to the plea offer were more credible than Petitioner's version, and denied relief on the merits of the claim. Id. (June 24, 2015 Opin.). The court also denied reconsideration. Id. (July 20, 2015 Opin.). Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied because he “failed to establish that the trial court erred in denying his motion for relief from judgment.” People v. Farquharson, No. 330646 (Mich. Ct. App. April 28, 2016). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied because he “failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Farquharson, 500 Mich. 933, 889 N.W.2d 499 (2017).

         Petitioner thereafter filed his federal habeas petition, raising the following claims:

I. He was denied his right to effective assistance of counsel when counsel failed to object to inflammatory drug evidence that was prejudicial and irrelevant to the charges, which deprived him of his right to a fair trial.
II. He was denied his right to a fair trial based on inflammatory evidence that was seized.
III. He was denied his right to effective assistance of counsel when counsel failed to inform him on the deadline to accept a guilty plea.
IV. He was denied his right to a fair trial when the trial court's verbal instructions to the jury were improper because they directed the jury to find him guilty of at least second-degree murder and those instructions were reinforced by a constitutionally defective verdict form.
V. He was denied effective assistance of appellate counsel on direct appeal when counsel failed to raise improper jury instructions and flawed verdict form.
VI. He was deprived of his right to a speedy trial.
VII. He was denied his right to effective assistance of counsel when counsel failed to request a speedy trial.

         Respondent has filed an answer to the petition contending that it should be denied because certain claims are barred by procedural default and all of the claims lack merit. Petitioner has filed replies to that answer.

         III. Standard of Review

         Federal law 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 proceedings.

28 U.S.C. § 2254(d).

         “A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

         “[T]he ‘unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been ‘objectively unreasonable.'” Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus 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) (quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

         The United States Supreme Court has held that “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. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). 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. Thus, in order to obtain federal habeas relief, a state prisoner must show that the state court's rejection of a 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.; see also White v. Woodall, 572 U.S. 415, 419-20 (2014). Federal judges “are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Woods v. Donald, __U.S.__, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. Woods v. Etherton, __ U.S.__, 136 S.Ct. 1149, 1152 (2016).

         Section 2254(d)(1) limits a federal court's review to deciding 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. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held on numerous occasions that it is not ‘an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71-72. Section 2254(d) “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.'” Harrington, 562 U.S. at 100. It also “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); see also Mitchell, 540 U.S. at 16.

         The requirements of “clearly established law” are to be determined solely by Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court, '” and “[i]t therefore cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 567 U.S.__, 132 S.Ct. 2148, 2155 (2012) (per curiam); see also Lopez v. Smith, 574 U.S. 1, __, 135 S.Ct. 1, 2 (2014) (per curiam). The decisions of lower federal courts may be useful in assessing the reasonableness of the state court's decision. 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).

         Lastly, a state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Moreover, habeas review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         IV. Analysis

         A. Procedural Default

         As an initial matter, Respondent argues that several of Petitioner's habeas claims are barred by procedural default because he did not properly raise the issues in the state courts and/or first raised them on state collateral review and the state courts denied relief based upon Michigan Court Rule 6.508(D). On habeas review, however, federal courts “are not required to address a procedural-default issue before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). The Supreme Court has explained the rationale behind such a policy: “Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.” Lambrix, 520 U.S. at 525. Such is the case here. The procedural issues are somewhat complex and intertwined with the substantive claims, and the substantive claims are more readily decided on the merits. Accordingly, the Court need not address the procedural default issue and shall proceed to the merits of Petitioner's claims.

         B. ...


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