Burton v. Renico

• Decision Date: 06 December 2004
• Docket Number: No. 02-2489.,02-2489.
• Citation: 391 F.3d 764
• Parties: Kumal BURTON, Petitioner-Appellant, v. Paul RENICO, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

391 F.3d 764

Kumal BURTON, Petitioner-Appellant, v. Paul RENICO, Warden, Respondent-Appellee.

No. 02-2489.

United States Court of Appeals, Sixth Circuit.

Argued: August 11, 2004.

Decided and Filed: December 6, 2004.

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ARGUED:

James Sterling Lawrence, Detroit, Michigan, for Appellant. Debra M. Gagliardi, Office of the Attorney General, Lansing, Michigan, for Appellee.

ON BRIEF:

Laura Graves Moody, Office of the Attorney General, Lansing, Michigan, for Appellee.

Before: SILER, MOORE, and COLE, Circuit Judges.

OPINION

MOORE, Circuit Judge.

On May 26, 1995, Petitioner-Appellant, Kumal Burton, was convicted of first-degree murder in violation of Mich. Comp. Laws § 750.316 and possession of a firearm during the commission of a felony in violation of Mich. Comp. Laws § 750.227b. On June 28, 1995, Burton was sentenced to life imprisonment for his first-degree murder conviction and two years' imprisonment for the firearm charge. Burton now appeals the district court's decision denying his petition for a writ of habeas corpus. We AFFIRM.

I. BACKGROUND

Burton's convictions arise from the June 3, 1994 shooting death of Sherman McClayton in the parking lot of the Black and Tan Bar in Lansing, Michigan. At some time before 2:00 a.m. on June 3, 1994, Burton and McClayton had a disagreement at the Black and Tan Bar, with McClayton apparently telling Burton (a Detroit resident) that he did not like people from Detroit. Later, at around 2:00 a.m., Burton arrived at the West Lapeer Street residence of Markita Robinson. Markita Robinson and her sister, Nikita Robinson, testified that Burton retrieved a firearm from the residence and said he was going to kill McClayton. Burton then left the residence and drove back to the Black and Tan Bar. When Burton arrived, several people were standing in the parking lot near a food truck selling chicken. Burton parked his car and stepped out of the vehicle. Burton and McClayton frowned or scowled at one another, and then Burton fired several shots at McClayton, got in his car, and drove away. Burton returned to the West Lapeer residence around 2:30 a.m., told the Robinson sisters that he had killed McClayton, and asked the Robinsons to take the gun, which was hot and smelled of smoke.

Several months later, in September 1994, Burton and an acquaintance, Jackie Robinson Harris, were watching television when a news broadcaster announced that Burton was the shooter in the McClayton incident. Upon hearing the announcement, Burton grabbed his keys and left, saying, "I'm out of here." Later that evening, Burton said he was returning to Detroit. Burton was subsequently arrested in Detroit in December 1994, and on January 11, 1995, the State of Michigan filed an information charging Burton with first-degree murder and possession of a firearm during the commission of a felony.

Following Burton's arrest, George Zulakis, a court-appointed attorney, was assigned to represent Burton. On January 20, 1995, Ingham County Circuit Court Judge Carolyn Stell set the case for trial on February 27, 1995. Burton's family collected the funds necessary to retain private counsel for Burton, and on January 26, 1995, Thomas Warshaw filed with the Ingham County Circuit Court a notice of his substitution as counsel in place of Zulakis.

In early to mid February 1995, Warshaw filed a motion with the Ingham County Circuit Court to adjourn trial. Warshaw, apparently unaware of the court's procedural rules, failed to contact the court clerk to set a hearing date for the motion, and the motion was not heard until February 22, 1995, which was only five days before Burton's scheduled trial date and was the last day when pre-trial motions would be heard. During the hearing on the motion to adjourn, Warshaw stated that he would need additional time to prepare, particularly in light of discovery materials he had only recently received from Zulakis. Although the prosecution stipulated to the adjournment, Judge Stell denied Warshaw's motion. Warshaw then moved to withdraw from the case, and Judge Stell granted his motion. Burton was not in attendance at the motion hearing.

For unknown reasons, Burton's trial did not commence on February 27, 1995 as scheduled. Rather, on March 16, 1995, Judge Stell recused herself, and the case was reassigned to Judge William Collette. On May 11, 1995, Judge Collette heard the prosecution's Motion to Clarify Defendant's Representation. At the hearing, Judge Collette offered to adjourn trial so Burton could retain other counsel. Burton declined, however, stating that he liked his current court-appointed counsel, Joseph Brehler, and that Warshaw was no longer available because Burton lacked the funds to retain Warshaw and because a disagreement with Warshaw had since developed.

Burton's trial commenced on May 22, 1995. Burton did not take the stand. A jury convicted Burton on both counts, and he was sentenced to life imprisonment for first-degree murder and two years' imprisonment for possession of a firearm during the commission of a felony.

Burton appealed his conviction to the Michigan Court of Appeals, alleging that: (1) Judge Stell's refusal to grant a continuance violated his right to counsel under the Michigan and U.S. constitutions; (2) the trial court erred in not instructing the jury regarding the lesser-included offense of voluntary manslaughter; (3) he had been deprived of his constitutional right to a jury drawn from a fair cross-section of the community; (4) the prosecution deprived him of his right to a fair trial by using false and perjured testimony; and (5) the cumulative effect of the aforementioned trial errors deprived him of his right to a fair trial.¹ The Michigan Court of Appeals denied Burton's appeal and affirmed his conviction on August 22, 1997. The Michigan Supreme Court denied Burton's Delayed Pro. Per. Application for Leave to Appeal, stating in its order that the court was "not persuaded that the questions presented should be reviewed by this Court." Joint Appendix ("J.A.") at 144 (Mich. Sup.Ct. Order July 28, 1998).

Burton next sought post-conviction relief in the Michigan courts, filing a Motion for Relief from Judgment in the Ingham County Circuit Court. Burton asserted several new bases for relief: (1) that he had been denied a fair trial based on the admission of other-acts evidence regarding guns stored at a "safe house" and possible intimidation of prosecution witnesses; (2) that the prosecutor had engaged in misconduct by telling the jury they had a duty to convict and by commenting on defense counsel's failure to say that Burton was not guilty; (3) that the trial court erred in instructing the jury regarding flight; (4) that the trial court provided an erroneous instruction to the jury regarding the elements for establishing murder; (5) that the prosecutor erred in introducing evidence that Burton had been in jail with one of the prosecution's witnesses; and (6) that his sentence constituted cruel and unusual punishment under the Michigan constitution and violated Michigan statutory law. The Ingham County Circuit Court denied Burton's motion on November 22, 1999, stating that:

Each of the grounds claimed by the Defendant could have easily been raised in the prior appeal filed on behalf of this Defendant. To merely state that prior counsel's failure to raise the points claimed somehow creates good cause would, in and of itself, obviate MCR 6.508(D)(3).

In addition, the Court finds no merit to the claims as asserted by this Defendant. This Court, after a careful review of the brief of the Defendant and the response filed by the prosecution, does not find that there are any grounds for relief from judgment and, accordingly, the motion is denied.

J.A. at 93-94 (Ingham County Cir. Ct. Op. and Order Nov. 22, 1999). Burton filed a Delayed Application for Leave to Appeal with the Michigan Court of Appeals, which denied relief "for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." J.A. at 145 (Mich. Ct.App. Order Jan. 18, 2001). The Michigan Court of Appeals denied Burton's Motions for Rehearing and Leave to File Amended Delayed Application for Leave to Appeal on March 1, 2001. Burton then filed with the Michigan Supreme Court a Delayed Application for Leave to Appeal from the Michigan Court of Appeals's January 18, 2001 decision, which the Michigan Supreme Court denied on the basis that Burton "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." J.A. at 146 (Mich. Sup.Ct. Order July 30, 2001).

Burton then turned to the federal courts, filing a petition for a writ of habeas corpus with the U.S. District Court for the Eastern District of Michigan on August 3, 2001. Burton's petition asserted several grounds for relief: (1) that he had been denied the right to retain counsel of choice; (2) that the trial court improperly admitted other-acts evidence; (3) that the trial judge improperly admitted testimony regarding his pre-trial incarceration; (4) that the trial court gave irrelevant and prejudicial jury instructions regarding flight; (5) that the trial judge omitted from the jury instructions an element of the crime of murder; (6) that the prosecutor engaged in misconduct by arguing to the jury that they had a duty to convict and commenting during closing arguments that defense counsel failed to state that Burton was not guilty; and (7) that his counsel on direct appeal had been constitutionally ineffective. The district court denied Burton's right to counsel of choice claim on the merits, concluding that Burton's right to counsel of choice was preserved when Judge Collette offered to adjourn trial so that Burton could engage new retained counsel. The district court also denied Burton's remaining claims on the basis that Burton had procedurally defaulted such claims by failing to raise them on direct appeal. Because Burton failed to...