Stewart v. Wolfenbarger
| Citation | 468 F.3d 338 |
| Decision Date | 09 November 2006 |
| Docket Number | No. 04-2419.,04-2419. |
| Parties | Joseph STEWART, Petitioner-Appellant, v. Hugh WOLFENBARGER, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ARGUED: Matthew E. Liebson, Thompson Hine, Cleveland, OH, for Appellant. Debra M. Gagliardi, Office of the Attorney General, Lansing, MI, for Appellee. ON BRIEF: Matthew E. Liebson, Leslie W. Jacobs, Thompson Hine, Cleveland, OH, for Appellant. Brad H. Beaver, Office of the Attorney General, Lansing, MI, for Appellee.
Before BATCHELDER, CLAY, and ROGERS, Circuit Judges.
Petitioner Joseph Stewart appeals the October 20, 2004 order of the United States District Court for the Eastern District of Michigan denying his application for habeas relief under 28 U.S.C. § 2254. Petitioner is currently incarcerated in Michigan state prison after a conviction for first degree murder. For the reasons set forth below, we REVERSE the order of the district court and GRANT the petition for writ of habeas corpus.
On October 26, 1996, a state grand jury charged Petitioner with first degree murder. On February 11, 1998, a jury found Petitioner guilty of first degree murder. On March 3, 1998, the state trial court sentenced Petitioner to life imprisonment without the possibility of parole.
After the trial, Petitioner filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial. People v. Stewart, No. 211361, 2001 WL 1277451, at *1 (Mich.Ct.App. Oct. 23, 2001) (unpublished decision). Petitioner based his motions on ineffective assistance of counsel due to a conflict of interest and the failure of counsel to call several favorable witnesses. Id. Without conducting an evidentiary hearing on Petitioner's claims, the state trial court denied the motions. Id. Petitioner appealed, and the state court of appeals remanded the case to the state trial court to conduct an evidentiary hearing as to Petitioner's claims of ineffective assistance of counsel. Id. The state trial court conducted an evidentiary hearing, and on July 10, 2001, the state trial court denied Petitioner's motion for a new trial. Id. On October 23, 2001, the state court of appeals affirmed this decision. Id. at *6. The state supreme court denied Petitioner leave to appeal.
On December 16, 2003, Petitioner filed an application for habeas relief under 28 U.S.C. § 2254. Petitioner asserted eight grounds for relief. On October 19, 2004, the district court denied the application for habeas relief. The district court granted a certificate of appealability as to five of the eight grounds for relief. This Court affirmed that decision.
On April 22, 1996, Terrence Black was shot and killed in Detroit, Michigan, between 11 a.m. and 12 p.m. On October 26, 1996, a state grand jury charged Roland Johnson ("Johnson") and Petitioner with first degree murder in connection with the shooting. The police arrested Johnson, and he retained Mary Ellen O'Connell ("O'Connell") as counsel. On January 10, 1997, the state prosecutor dismissed without prejudice the charge against Johnson. The prosecutor had determined that the witness against Johnson, Anthony Gardner ("Gardner"), had committed perjury.
On July 21, 1997, the police arrested Petitioner. Stewart, 2001 WL 1277451, at *2 n. 3. Prior to his arrest, Petitioner spoke to an attorney, Juan Mateo ("Mateo"). Petitioner was unable to secure Mateo as his counsel because he did not pay Mateo's retainer fee. After Petitioner's arrest, Petitioner secured O'Connell as his counsel. Id. Johnson's family referred O'Connell to Petitioner.
On February 5, 1998, on the first day of trial, there was a commotion outside of the courtroom where, in the presence of jurors, friends and relatives of the victim accused Petitioner of murdering the victim. After the jury was brought in the courtroom, the judge explained that while some people believed Petitioner murdered the victim, such belief was not evidence. The judge then asked the jury if any one of them believed that they could not be fair or impartial due to the prior commotion, and no juror replied in the affirmative.
In its case in chief, the prosecution called Ramone McBurroughs ("McBurroughs") as a witness. McBurroughs testified that on April 22, 1996, he was a passenger in a car, a black Chevy Impala, driven by Petitioner. There were two other persons in the car; "Peb" (a nickname for Johnson) and a person unknown to McBurroughs. McBurroughs testified that Petitioner was in the driver seat, Johnson was in the passenger seat, McBurroughs was in the back seat directly behind Petitioner, and the unknown person was in the back seat directly behind Johnson. McBurroughs testified that he saw the victim driving a truck, and the two cars stopped next to each other. The cars were facing the same direction, with the Chevy on the driver side of the pickup. The passenger side window of the Chevy and the driver side window of the pickup were rolled down. McBurroughs testified that Petitioner and the victim exchanged words and he then heard gun fire. He testified that he saw Petitioner holding a gun and pointing the gun across Johnson and at the victim. McBurroughs testified that he, Petitioner, and the victim were friends, but he was not personally aware of any problem between Petitioner and the victim.
The prosecution then called Darvin Green ("Green"), the brother of the victim. Green testified that on April 22, 1996, he was looking out the window of his residence and saw a black Chevy Impala stop next to the victim's truck. Green testified that he could not see who was in the Chevy. He testified that he saw the victim leaning out the window of the truck and laughing. Green then heard a gun shot, so he ran to get his own gun. Green heard a total of four or five shots. Green admitted that he did not know who fired the shots.
The prosecution then called Laning Davidson ("Davidson"), a county medical examiner. Davidson testified that the victim suffered from a single gunshot wound to his flank. He testified that this wound was the cause of death.
The prosecution then called Lillie Drake ("Drake"), a police officer. Drake testified that she saw the victim's truck, which had crashed into a fence. She observed bullet holes in the truck. The victim, who was unconscious, was removed from the truck. Drake testified that she found shell casings in the street.
The prosecution then called Robert Simpson ("Simpson"). Simpson testified that he was at a friend's house on April 22, 1996, between 11:00 a.m. and 1 p.m. Petitioner and Johnson arrived at the house. Petitioner asked Simpson if he knew where the victim was. Simpson testified that Petitioner was excited. He testified that Petitioner stated he was going to kill the victim. Simpson testified that he saw Petitioner leave and get into a black Chevy Impala. He testified that he saw McBurroughs also get into the Chevy, as well as Johnson. Simpson admitted that he was a good friend of the victim.
The prosecution then called Paul Kulsea ("Kulsea"), a police officer and evidence technician. Kulsea collected evidence with respect to the April 22, 1996 shooting. He observed three bullet holes in the victim's truck: one through the side of the bed, one through the roof support directly behind the door, and one through the door. He also found a handgun in the glove box. The handgun did not have a round in the chamber, although it did have a full magazine.
The prosecution then called Christopher Vintevoghel ("Vintevoghel"), a police officer. He testified that he took a statement from McBurroughs without any form of coercion.
The prosecution then called Anthony Woodford ("Woodford"), a police officer. Woodford testified that, upon arresting Petitioner, Woodford discovered Petitioner had an Ohio identification card under a different name. Woodford also discovered an application for a Michigan driver's license under that same name.
Petitioner then presented his case in chief. He called William Peterson ("Peterson"), a police officer, as a witness. Peterson testified that he did not speak to Simpson in connection with his investigation of the shooting.
Petitioner then requested to recall McBurroughs for further impeachment. The state trial court denied Petitioner's request.
Petitioner then called Neil Ziegler ("Ziegler"). Ziegler testified that he, Petitioner, William Foster ("Foster"), and Gerald Hill ("Hill") drove to Atlanta, Georgia on April 19, 1996. At that point, the prosecution objected on the ground that the alibi notice did not contain the location asserted by the alibi; it only contained the names of the alibi witnesses. The state trial court agreed, but for reasons that are unclear to this Court, the state trial court allowed Petitioner to continue to question Ziegler. The state trial court, however, disallowed the testimony of the other alibi witnesses, Foster and Hill. Ziegler testified that the group returned to Michigan between 1 p.m. and 1:30 p.m. on April 22, 1996. Ziegler admitted that he lived at "One Lafayette Place, Apartment 1401," the address that was used on an application for a Michigan driver's license submitted by one "Brian Steven Gresham," an alias used by Petitioner on an Ohio identification card.
As stated above, the state trial court conducted an evidentiary hearing with respect to Petitioner's claims of ineffective assistance of counsel.
O'Connell testified at the evidentiary hearing. She testified that she had represented Johnson in connection with the events of April 22, 1996, but that case was dismissed. She then represented Petitioner in connection with those same events. She did not see a conflict of interest in representing Petitioner after representing...
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