475 F.3d 292 (6th Cir. 2007), 04-2277, Van v. Jones

Docket Nº:04-2277.
Citation:475 F.3d 292
Party Name:Roeur VAN, Petitioner-Appellant, v. Kurt JONES, Warden, Respondent-Appellee.
Case Date:January 16, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 292

475 F.3d 292 (6th Cir. 2007)

Roeur VAN, Petitioner-Appellant,

v.

Kurt JONES, Warden, Respondent-Appellee.

No. 04-2277.

United States Court of Appeals, Sixth Circuit.

January 16, 2007

Argued: March 6, 2006.

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids No. 01-00370—Richard A. Enslen, District Judge.

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ARGUED:

Mary Beth Young, Jones Day, Columbus, Ohio, for Appellant.

William C. Campbell, Office of the Attorney General, Lansing, Michigan, for Appellee.

ON BRIEF:

Mary Beth Young, Holly H. Saigo, Jones Day, Columbus, Ohio, for Appellant.

William C. Campbell, Office of the Attorney General, Lansing, Michigan, for Appellee.

Before: BOGGS, Chief Judge; and MOORE and COOK, Circuit Judges.

COOK, J., (p.316), delivered a separate concurring opinion. MOORE, J. (pp. 316-18), delivered a separate dissenting opinion.

OPINION

BOGGS, Chief Judge.

Is a Michigan defendant's consolidation hearing a critical stage of the criminal proceeding against him? And, if so, what results from his counsel's total absence from that hearing? These questions are the nub of this case.

Roeur Van appeals the district court's denial of his petition for a writ of habeas corpus. The court issued a Certificate of Appealability with respect to whether Van's Sixth Amendment rights to counsel and a fair trial were violated when the state court consolidated his criminal trial with that of his co-defendants at a hearing ("consolidation hearing") at which Van's attorney was not present.

This is a difficult case presenting a question of first impression for a United States appellate court.1 We affirm the judgment of the district court that a Michigan consolidation hearing is not a critical stage and that the total absence of counsel at such a hearing does not require that a writ of habeas corpus issue.

I

Where a claim on habeas appeal has not been addressed by the state courts, federal courts review it de novo. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). See also Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir.2003), McKenzie v. Smith, 326 F.3d 721, 726-27 (6th Cir.2003).

This court reviews de novo mixed questions of law and fact such as issues of ineffectiveness of counsel and the harm that arises from an alleged constitutional violation. See, e.g., Mallett v. United States, 334 F.3d 491, 497 (6th Cir. 2003); Calvert v. Wilson, 288 F.3d 823, 833 (6th Cir. 2002).

II

Van was convicted on March 20, 1997, in a Michigan court of assault with the intent

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to commit murder.2 He was sentenced on April 21, 1997, to a prison term of fifteen to thirty years.

Van was a confederate of Vanna Ket. They are both Asian-Americans. Vanna and his wife Jamie Ket were married in April 1994 and separated in January 1996. Jamie then began dating Maurice Hawkins, who is African-American. Vanna knew about Jamie's new paramour. Vanna began dating Alisha Dornak, Hawkins's ex-girlfriend and the mother of Hawkins's child.

Jamie, Hawkins, and several friends, including James Evans, Dontrell Brothers, Corey Shields, and Dimitrius Brown, all African-American, congregated in Jamie's trailer on October 19, 1996, to socialize. At 1:30 in the morning on October 20,1996, the party heard a knock on the door, and Jamie answered. Vanna entered and yelled at her and called her unattractive names. He informed the assembled group "if anybody wants to trip, we can trip." Evans replied "if you want to trip, we could take it there, but I think it's time for you to leave." Vanna decided "fuck this shit" and left.

Roughly 30 to 45 minutes later, Vanna returned with several friends. Someone kicked in the door of the residence, and Vanna entered with Samean Rouen, known as "Billy." These two men moved into the mobile home and declared "[w]hat's up, niggers? What's up now?" Rouen carried a wooden instrument, possibly a 2" x 4". Vanna had a gun tucked in the back of his pants waistband. Jamie said "get that gun out of my house." Vanna then drew his gun, cocked it, pointed it at Jamie's head six to twelve inches from her face, and said "[b]itch, I'll kill you." He then pointed the gun at the others in the room. Jamie's guests stayed seated throughout this period, except Brown, who was sleeping in another room.

It was roughly at this point that defendant Roeur Van, known as "Chino," entered the house. Four others followed, all Asian-American, including a man known as Crew, but it is unclear in what order they entered the room after Van. Van held a machete. He unsheathed it and said "You know me. I'm Chino. Where's Maurice?" According to Jamie's testimony, he then "went straight for Maurice." According to other testimony, Van actually approached Shields and Brothers, but Vanna redirected him by saying "no, get Maurice." Van swung the machete at Hawkins's throat. Dontrell blocked the blow with his hand. Brothers then placed his body on Hawkins to protect him from further attacks. Vanna said repeatedly "[g]et Maurice, get Maurice." Van swung the machete again and struck Hawkins's knee. He landed another blow to Hawkins's shin. Vanna then took the machete from Van and struck Hawkins in one hand and then the other hand. Two of Hawkins's fingers "were just hanging there" after one of Vanna's blows. Meanwhile, Roeun struck one guest with both the 2" x 4" and a gun, and he pointed a gun at two of the guests. The other members of the gang attacked the guests with a crowbar, a bat, and an object that appears to have been a metal pipe or similar instrument. Soon thereafter, fearing the arrival of the police, the attackers departed.

The defendant has properly exhausted his state court remedies. The Michigan Court of Appeals affirmed his conviction on January 19, 1999. His motion in the Michigan Circuit Court for relief from

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judgment was denied on February 15, 2000. The state court of appeals affirmed the denial on August 21, 2000. The Michigan Supreme Court denied leave to appeal on January 30, 2001.

Van filed a petition for a federal writ of habeas corpus on June 13, 2001. He made two claims: 1) insufficiency of the evidence and 2) violation of his Sixth Amendment rights through the holding of a pre-trial hearing in the absence of his attorney. The magistrate judge recommended denial of the petition, while acknowledging the absence of clear precedent on Van's second claim. The district court adopted the recommendation and denied the petition on September 21, 2004. It granted a certificate of appealability (CoA) on the second claim, however. Van then sought to appeal the denial of his petition; this court construed this effort as a request for a CoA. On April 5, 2005, this court, through the order of Judge Clay, denied Van's request for a CoA on the evidentiary claim and appointed counsel with respect to the claim arising from the absence of counsel at his pretrial hearing.

III

Four of the seven assailants who were seen at the trailer were arrested and charged: Van, Vanna, Rouen, and Phoey Svay. It is not clear from the record before this court what happened to the other three. Van was charged with assault with intent to commit murder. David Zessin was appointed to represent him. On December 30,1996, the prosecution moved to consolidate the trials of the four defendants into one proceeding. The trial court held a hearing on the motion to consolidate on January 6, 1997. Zessin was notified but did not attend.

At the time of the consolidation hearing, Rouer Van was charged with one count of assault with intent to murder. Vanna Ket was charged with one count of assault with intent to murder, six counts of felonious assault with a dangerous weapon, one count of possession of a firearm during the commission of a felony, and one count of carrying a concealed weapon. Samean Rouen was charged with three counts of assault with intent to do great bodily harm, two counts of felonious assault with a dangerous weapon, and one count of possession of a firearm during the commission of a felony. Phoey Svay was charged with two counts of assault with intent to do great bodily harm.

The transcript from the consolidation hearing occupies eight pages. All four defendants were present. Each had been appointed his own lawyer. The lawyers for all the defendants but Van were present.

At the opening of the motion hearing, the prosecutor, Douglas L. Mesman, Chief Assistant Prosecuting Attorney in Grand Haven, Michigan, explained why he wanted to consolidate: "I believe it's clear from my motion that this certainly was a matter in which all defendants participated at the same time." Vanna Ket and Samean Rouen were charged simultaneously and as co-defendants, but perhaps due to clerical error, their prosecution "files" were "set on two separate dates." Roeur Van "was not apprehended until... two or three weeks after the incident." Van and Svay were charged together as co-defendants. Mesman then explained "while they all committed different crimes to a certain extent, they certainly all participated in the same incident, the same occurrence on the same date, and, in fact, have been charged as co-defendants."

Joseph C. Legatz, Vanna Ket's lawyer, then presented himself to the court and said "[w]e have no problem with the consolidation."

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He then discussed his availability for possible trial dates.

David M. Hall, Samean Rouen's lawyer, introduced himself and said "[likewise, we have no objection to the consolidation of all defenses and all charges. ... I think there are common questions of law and fact here, and I have no objection to the principal motion." He also briefly discussed...

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