MARK A. GOLDSMITH, District Judge.
Aaron Daniels ("Petitioner"), a Michigan prisoner, filed this action under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Wayne Circuit Court of first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a), first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b), armed robbery, Mich. Comp. Laws § 750.529, assault with intent to rob while armed, Mich. Comp. Laws § 750.89, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. Petitioner was sentenced to mandatory life imprisonment for the murder convictions and lesser terms for the other offenses.
The amended petition raises eleven claims: (1) the trial court erroneously denied Petitioner's motion for substitute counsel made three weeks prior to trial, (2) the trial court erred in failing to instruct the jury on the lesser offense of voluntary manslaughter, (3) Petitioner was denied the effective assistance of appellate counsel when his appellate attorney failed to seek a remand hearing to expand the record in support of his first claim, (4) Petitioner's right to a public trial was violated when the courtroom was closed during jury selection, (5) Petitioner's trial counsel was ineffective for failing to object to the closure of the courtroom, (6) the trial court engaged in prohibited ex parte communication with the jury, (7) Petitioner was abandoned by his trial and appellate counsel, (8) Petitioner was deprived of his right to appeal by the loss of transcripts, (9) the trial court erred in instructing the jury, (10) Petitioner was denied his right to present a defense by his counsel's failure to call rebuttal witnesses, and (11) Petitioner's appellate counsel was ineffective for failing to raise his state post-conviction review proceeding claims on direct appeal.
The Court will deny the petition because Petitioner's claims are without merit or barred by his state court procedural default. The Court will also deny Petitioner a certificate of appealability and deny permission to appeal in forma pauperis.
Petitioner's convictions stem from the shooting death of Allen Jenkins that occurred outside a Coney Island Restaurant in Detroit on January 10, 2010. On that date Jenkins, Rod Wilson, and Kevin Estell drove together to the MGM Grand Hotel. On their way back from the casino, Estelle received a call from Lakisha Crowley. Crowley asked to be driven home from a party. The men picked up Crowley and another young woman, Jazmine Young. Jenkins dropped Estell at his home, and then the four remaining individuals — Jenkins, Wilson, Crowley, and Young — proceeded to drive to the Coney Island Restaurant at the request of Crowley. Crowley wanted Jenkins to pick up a third young woman who said she had been sexually assaulted at the party.
Witnesses testified that the incident occurred soon after Jenkins parked his vehicle behind a green Taurus and a white Mercedes Benz near the Coney Island. 7/27/2010 Tr., Ex. 11 to Rule 5 Filing, at 190-191, 218-220 (Dkt. 28-11); 7/28/2010 Tr., Ex. 12 to Rule 5 Filing, at 9-14; 8/2/2010 Tr., Ex. 14 to Rule 5 Filing, at 29-32 (Dkt. 28-14). Young and Crowley got out of Jenkins' vehicle, and a group of men got out of the Mercedes and approached Jenkins' vehicle. 7/28/2010 Tr. at 15-16. According to Wilson, Petitioner's co-defendant Martez Bickham opened the door and pointed a gun at Wilson's stomach.
Wilson jumped out and ran behind the restaurant.
The girls at the scene referred to the men from the Mercedes as the "Brick Boys." Based on this information, Wilson's cousin showed him photographs from her Facebook account, and Wilson identified the two assailants. 7/28/2010 Tr. at 31-36. At a subsequent photographic identification procedure at the police station, Wilson indicated that he was 60-70% sure that Petitioner was the shooter.
Alexis Tyson testified that she was in the Taurus when the incident occurred. She had been at the party at a hotel with the Brick Boys earlier on that date, and she identified the people on surveillance videos taken from both the hotel and the Coney Island. She identified Petitioner, whom she knew, as the man who shot Jenkins. 7/28/2010 Tr. at 171-187. The videos from the surveillance systems were played for the jury.
Lakisha Crowley likewise testified regarding knowing the Brick Boys and attending the party. She testified to riding in Jenkins' vehicle to the Coney Island. She described the altercation in the parking lot, and she also identified Petitioner as the shooter. 8/2/2010 Tr. at 34-39.
Based on this evidence, Petitioner and his co-defendant were found guilty of the charged offenses by separate juries.
Following sentencing, Petitioner was appointed appellate counsel who filed a claim of appeal. Petitioner's brief on appeal raised two claims:
The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion.
Petitioner then filed an application for leave to Appeal in the Michigan Supreme Court that raised the same two claims. Petitioner also included a new third claim:
The Michigan Supreme Court denied the application for leave to appeal by standard form order.
Petitioner then commenced the present action by filing a petition for writ of habeas corpus raising the three claims that he presented to the state courts on direct appeal. He also filed a motion to stay the case so that he could return to the state courts and exhaust his remedies with respect to an additional set of claims. The Court granted the motion to stay, and it ordered Petitioner to file a motion for relief from judgment in the trial court within thirty days and then to file a motion to reopen the case within thirty days of exhausting his state court remedies.
Petitioner timely filed a motion for relief from judgment in the trial court, raising eight claims:
The course of proceedings in the state court and this Court became protracted after Petitioner prematurely filed an amended habeas petition before the state trial court issued an order denying his motion for relief from judgment, and then by Petitioner's failure to appeal the trial court's eventual order denying his motion.
On August 20, 2014, Petitioner Daniels filed an amended petition, incorrectly representing that he had exhausted his new claims. This Court reopened the case to its active docket.
On February 20, 2015, Respondent filed a motion to vacate the order reopening the case, noting that the trial court had denied the motion for relief from judgment on December 1, 2014, but that Petitioner had not appealed that decision to the Michigan Court of Appeals. Petitioner acknowledged the mistake, and on March 18, 2015, he filed a motion to strike his motion to reopen the case and to reinstate the stay. The Court issued an order vacating the order reopening the case and reinstating the stay order while Petitioner completed exhaustion of his state court remedies.
Petitioner, however, had never attempted to appeal the denial of his motion for relief from judgment. Instead, on February 23, 2016, Petitioner filed a second motion for relief from judgment, raising the same issues he raised in his first motion. Petitioner asserted in the motion that he never received the December 1, 2014, order denying his first motion. That assertion, though, is belied by Petitioner's statement in his March 18, 2015 motion acknowledging the denial of his motion for relief from judgment on a date in which he still had the ability to file an appeal in the Michigan Court of Appeals.
On June 5, 2018, the trial court issued an order denying the second motion for relief from judgment on the ground that Petitioner failed to demonstrate entitlement to file a successive motion under Michigan Court Rule 6.502(G)(2). Petitioner did not attempt to appeal this order to the Michigan Court of Appeals.
Meanwhile, on April 20, 2017, Petitioner had filed a "Motion to Strike Petition for Writ of Habeas Corpus and Reinstate." The motion did not clearly state the requested relief, but it stated obliquely "defendant respectfully ask that this honorable court reinstate his appeal. And allow the defendant to properly file his said federal habeas petition." 4/20/2017 Pet. Mot. at 3 (Dkt. 14). The Court noted that it appeared from the state court record that Petitioner never appealed the denial of his motion for relief from judgment to the Michigan Court of Appeals and the time for doing so had expired. The Court reinstated the case to the active docket, and it ordered Petitioner to file an amended petition, and the Respondent to file a responsive pleading and any additional documents contained in the state court record.
On February 26, 2018, Petitioner thereafter filed a third motion to hold his petition in abeyance so that he could yet again attempt to exhaust his state court remedies with respect to his postconviction claims. Petitioner also filed an amended petition, indicating clearly that he wished to raise in this action all the claims he raised on direct appeal and in his motion for relief from judgment.
On May 9, 2018, in answer to the motion and amended petition, Respondent filed a motion to vacate the Court's previous order reopening the case. Respondent noted that Petitioner never appealed the denial of his first motion for relief from judgment to the state appellate courts, and that the case should continue to be held in abeyance pending a renewed effort by Petitioner to pursue state appellate review.
On August 29, 2018, the Court denied Petitioner's motion to hold the amended petition in abeyance, as well as Respondent's motion to vacate its order reopening the case. The Court once again noted that Petitioner's time to appeal the order denying his first motion for relief from judgment had expired, and that Petitioner no longer had any available avenue to fully exhaust his claims. The Court ordered Respondent to file a responsive pleading to Petitioner's amended petition.
At some point the state trial court's December 1, 2014, order denying the first motion for relief from judgment was lost, and after receiving an extension of time to do so, Respondent has to date been unable to locate a copy of the order. The parties filed motions requesting an order from this Court compelling the trial court to issue a new order denying Petitioner's first motion for relief from judgment. The Court denied the motions, noting that neither party cited any authority standing for the proposition that the Court had authority to compel the state court to reissue an order.
Thereafter, Respondent finally filed its responsive pleading as well as a copy of the relevant portions of the state court record, (Dkts. 27 and 28), and Petitioner filed a reply brief. (Dkt. 30).
The case is now ready for decision.
Title 28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was "contrary to" or resulted in an "unreasonable application of" clearly established Supreme Court law.
"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 [this] precedent.'"
"[T]he `unreasonable application' prong of the statute 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."
"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."
Petitioner's first claim asserts that the trial court erred in failing to grant his request for substitute counsel made about three weeks prior to trial. The Michigan Court of Appeals rejected the claim on the merits during Petitioner's direct appeal:
Under clearly established Supreme Court law, the body of law against which the state court adjudication of Petitioner's claim must be measured, a court reviewing the denial of substitution of counsel should consider "the timeliness of the motion; the adequacy of the [trial] court's inquiry into the defendant's complaint; and the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client's own responsibility, if any, for that conflict)."
Clearly established Supreme Court law does not require a searching inquiry by the trial judge into the nature of a defendant's dissatisfaction with his counsel prior to denying a motion for substitution of counsel.
Here the record shows that a little more than three weeks prior to the start of trial, Petitioner's trial counsel informed the court that Petitioner was requesting the appointment of a new attorney. 7/1/2010 Tr., Ex. 5 to Rule 5 Filing, at 3. Counsel informed the court that he was not moving to withdraw, and he was prepared to go to trial despite Petitioner's expressed dissatisfaction with him.
Petitioner explained:
Defense counsel indicated that he was not "going against" Petitioner, but that he could not say more because of attorney-client privilege.
Petitioner renewed his request at two subsequent pretrial hearings, but again he never made allegations that his counsel was rendering ineffective assistance of counsel or that there was a complete breakdown in the relationship that prevented effective representation.
A court reviewing a request for substitute counsel may consider the extent of the defendant's own responsibility for any conflict or breakdown in communication.
The trial court noted that the request was made relatively late in the process, being first made with only a few weeks remaining before the start of trial. The court allowed Petitioner to explain the reasons behind the requests, and Petitioner's responses did not suggest that his counsel was ineffective but that there were personal difficulties between counsel and Petitioner and his family members. Nor did the response suggest a complete breakdown in communication or an irreconcilable conflict between Petitioner and defense counsel.
Petitioner asserts in his third claim that his appellate counsel was ineffective for failing to better develop this claim on appeal by asking for a remand. Petitioner asserts that a remand hearing was necessary to demonstrate that substitute counsel was warranted on the basis that trial counsel was providing ineffective assistance of counsel. The argument fails because Petitioner failed to proffer any evidence, either to this Court or to the Michigan Supreme Court, to show that his trial counsel was ineffective for reasons not already expressed by Petitioner at the pretrial hearings.
Petitioner's first and third claims, therefore, do not warrant relief.
Petitioner's second claim asserts that the trial court erred in failing to instruct the jury on the lesser offense of voluntary manslaughter. The Michigan Court of Appeals rejected this claim on the merits:
This decision did not contravene clearly established Supreme Court law. The Supreme Court has declined to determine whether the Due Process Clause requires that a state trial court instruct a jury on a lesser included offense in a non-capital case.
Petitioner's remaining claims were presented to the state trial court in his motion for relief from judgment while this proceeding was stayed. Petitioner, however, failed to appeal the denial of his motion to the Michigan Court of Appeals, and his inability to appeal that order prevents him from ever satisfying the exhaustion requirement. The net result is that Petitioner's state post-conviction review claims are now deemed to be procedurally defaulted, and Petitioner has failed to demonstrate cause to excuse the default, barring review of these claims.
A petitioner seeking habeas corpus relief from a state court judgment must first exhaust all state remedies.
Ordinarily, a habeas petitioner who presents unexhausted claims are required to return to the state courts to satisfy the requirement. Here, however, Petitioner no longer has a procedural mechanism to satisfy the exhaustion requirement. Petitioner is time-barred from appealing the denial of his motion for relief from judgment.
Because Petitioner failed to properly exhaust his habeas claims and now lacks an available remedy to do so, his claims are deemed procedurally defaulted.
Petitioner cannot establish cause to excuse his default. First, Petitioner asserts that the failure to appeal the denial of his motion for relief from judgment resulted from a lack of notice that that his motion was denied. This allegation is belied by the record. On March 18, 2015, with three months remaining to file an appeal, Petitioner filed a motion in this case to strike his motion to reopen the case and to reinstate the stay. In the motion, Petitioner indicated his knowledge that the trial court had denied his motion for relief from judgment, yet inexplicably he failed to do so. Petitioner cannot point to his pro se status or ignorance of the exhaustion requirement to establish cause.
Furthermore, Petitioner cannot claim that his appellate counsel's failure to raise the claims on direct appeal constitutes cause to excuse his own failure to exhaust his new claims on state post-conviction review. While ineffective assistance of appellate counsel may excuse a failure to raise the claims on direct appeal, it does not speak to or excuse Petitioner's failure to exhaust his claims by appealing the denial of his motion for relief from judgment.
Finally, Petitioner has also not shown that a fundamental miscarriage of justice has occurred. The miscarriage of justice exception requires a showing that a constitutional violation probably resulted in the conviction of one who is actually innocent.
As none of Petitioner's claims merit relief, the petition will be denied.
Before Petitioner may appeal this decision, the Court must determine whether to issue a certificate of appealability.
If Petitioner chooses to appeal the Court's decision, however, he may proceed in forma pauperis because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).
Accordingly, the Court 1) denies without prejudice the petition for a writ of habeas corpus, 2) denies a certificate of appealability, and 3) grants permission to appeal in forma pauperis.
SO ORDERED.