Aceval v. Maclaren
| Citation | 973 F.Supp.2d 740 |
| Decision Date | 21 October 2013 |
| Docket Number | Case No. 2:12–CV–10897. |
| Parties | Alexander ACEVAL, Petitioner, v. Duncan MacLAREN, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
OPINION TEXT STARTS HERE
David L. Moffitt, Law Offices of David L. Moffitt & Associates, Bingham Farms, MI, Stuart G. Friedman, Southfield, MI, for Petitioner.
John S. Pallas, Michigan Department of Attorney General, Lansing, MI, for Respondent.
Alexander Aceval, (“Petitioner”), filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges his June 7, 2006, Wayne Circuit Court guilty plea conviction of possession with intent to deliver 1,000 or more grams of cocaine. MICH. COMP. LAWS § 333.7401(2)(a)(i). Petitioner was sentenced under the terms of his plea bargain to 10–to–15 years imprisonment. The petition raises two claims: (1) Petitioner was denied his Sixth Amendment right to counsel of choice when the trial court did not allow Petitioner to have a second retained attorney present a pretrial motion and otherwise represent Petitioner during trial proceedings; and (2) Petitioner's double jeopardy rights were violated when he was retried after the prosecutor used perjured testimony with the knowledge and consent of the trial judge at Petitioner's first trial. The Court will grant the petition on both grounds because the state courts unreasonably adjudicated the claims in light of clearly established Supreme Court law.
Petitioner's case—which would have been a fairly typical narcotics trafficking prosecution—gained notoriety when the police, prosecutor, and trial judge knowingly allowed witnesses to perjure themselves at Petitioner's first trial. Specifically, a confidential informant who stood to gain as much as $100,000 from the prosecution was allowed to lie about his involvement in the case. Police officers were also allowed to lie about their association with the informant.
As a result of their conduct, the assistant prosecuting attorney trying the case was prosecuted by the Michigan Attorney General and pled guilty to misconduct in office. She was sentenced to six months in jail, and was disbarred. Two police officers pled guilty to neglect of duty and received 90–day jail sentences. The trial judge retired and was reprimanded by the Michigan Judicial Tenure Commission.
This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir.2009):
This matter arises out of an illegal drug transaction. On March 11, 2005, police officers Robert McArthur, Scott Rechtzigel, and others, acting on informationobtained from Chad William Povish, a confidential informant (CI), were on surveillance at J Dubs bar in Riverview, Michigan. Povish previously told police officers that defendant had offered him $5,000 to transport narcotics from Detroit to Chicago. That day, the officers observed defendant, Povish, and Bryan Hill enter the bar. Defendant arrived in his own vehicle, while Povish and Hill arrived in another. Eventually the three individuals left the bar and loaded two black duffel bags into the trunk of Povish's car. Povish and Hill then drove away, while defendant drove away in his own vehicle. Subsequently, the officers stopped both vehicles and found packages of cocaine in the duffel bags located in the trunk of Povish's car. Defendant was subsequently arrested and charged with possession with intent to deliver 1,000 or more grams of cocaine, MCL333.7401(2)(a)(i), and conspiracy to commit that offense, MCL750.157a.
Before trial, defendant moved for the production of the identity of the CI. During an evidentiary hearing on June 17, 2005, defendant requested that the trial court, Judge Mary Waterstone, conduct an in camera interview of McArthur, the officer in charge of the investigation. The judge agreed, and in the conference it was revealed that McArthur and Rechtzigel knew that Povish was the CI. Further, the officer told the trial court that Povish was paid $100 for his services, plus “he was going to get ten percent, whatever we got.” The conference was sealed and the trial court denied defendant's motion.
Subsequently, defendant filed a motion to suppress certain evidence. During a hearing on September 6, 2005, Rechtzigel lied when he testified, in response to defense counsel's questioning, that he had never had any contact with Povish before March 11, 2005. The prosecutor did not object. On September 8, 2005, in another sealed in camera conference between the judge and the prosecutor, the prosecutor admitted that she knew that Rechtzigel had knowingly committed perjury but stated that she “let the perjury happen” because “I thought an objection would telegraph who the CI is.” In response, the judge stated that she thought “it was appropriate for [the witness] to do that.” Further, the court added,
The matter went to trial on September 12, 2005. At trial, the prosecutor and the judge continued their efforts to protect the CI's identity. Povish testified that he had never met Rechtzigel or McArthur before they stopped his vehicle on the day that he received the duffel bags and that neither had offered him a deal of any kind. He further testified that did not know what was in the duffel bags and that, until trial, he believed that he could be charged with a crime for his role in the incident. The prosecutor made no objection to this testimony. The prosecutor and the judge again indicated, in another sealed ex parte bench conference on September 19, 2005, that they knew Povish had perjured himself in order to conceal his identity. At the close of the trial, the jury was unable to reach a verdict and, thus, the trial court declared a mistrial.
On December 7, 2005, attorney Warren E. Harris filed an appearance to represent defendant in his retrial, again in Judge Waterstone's court. On March 6, 2006, attorney David L. Moffitt petitioned for leave to file a limited appearance solely for purposes of filing certain motions by defendant, which the trial court granted on March 17, 2006. Subsequently,at a hearing on March 28, 2006, defendant indicated that he had become aware that the CI was Povish and argued that the case should be dismissed because of the trial court's and the prosecutor's complicit misconduct in permitting perjured testimony. Defendant also requested that both the prosecuting attorney and Judge Waterstone disqualify themselves from the case. Judge Waterstone disqualified herself on the record. The following day, Judge Vera Massey—Jones, the successor judge, entered an order unsealing the three in camera interviews.
Twelve days before defendant's second trial, Harris moved to withdraw because of a breakdown in the attorney-client relationship that he attributed to Moffitt's increased involvement. After finding that Moffitt's appearance was only a limited appearance, the trial court, noting that it “can't deal with lawyers who aren't in the case all the way[,]” disallowed Moffitt from participating in the case and did not permit Harris to withdraw. The trial court stated, “And there's no way in the world I'm going to let you have a new trial lawyer come in here and mess up.” Further, the trial court indicated that the matter was set for trial on a “particular date, and it's going to go to trial that date[,]” and that there was “no way I'm going to let” you “ruin my trial docket.”
Defendant's retrial began on June 1, 2006, with Harris acting as counsel. Before trial, defendant allegedly contacted a prosecution witnesses and directed him to provide false testimony in support of the defense. After the prosecution discovered this information, it informed the trial court and defense counsel. Subsequently, the witness testified that defendant had asked him to lie and he purged his testimony. Thereafter, defendant pleaded guilty to the charge of possession with intent to distribute more than 1,000 grams of cocaine.
People v. Aceval (On Remand), 282 Mich.App. 379, 382–385, 764 N.W.2d 285 (2009).
Following sentencing, Petitioner was twice appointed appellate counsel, but both attorneys withdrew before an appeal was filed. Finally, on June 29, 2007, attorney David Moffitt filed a delayed application for leave to appeal in the Michigan Court of Appeals, which raised the following claims:
I. The Double Jeopardy Clauses of the State and Federal Constitutions Precluded the Prosecutor From Retrying Defendant Where an Intentional Prosecutorial and Judicial Criminal Misconduct Conspiracy of a Degree Unprecedented in Michigan Or Federal Judicial History Sought Unfair Conviction of Defendant.
II. Denial of Sixth Amendment Right to Counsel Invalidates Defendant's Plea-based Second Trial Conviction.
III. Ineffective Assistance of Counsel Rendered Defendant's Guilty Plea Illusory, Involuntary and Otherwise Invalid.
IV. The Numerous Due Process Violations, Individually or Collectively, Irreparably Denied Defendant-[A]ppellant His Right to a Fair trial and Any Possibility of Prevailing in Any Subsequent Trial.
V. Fraudulent Criminal Processes Were Insufficient to Afford Jurisdiction over Defendant[-]Appellant.
The Michigan Court of Appeals denied Petitioner's delayed application “for lack of merit in the grounds presented.” People v. Aceval, No. 279017 (Mich.Ct.App. October 5, 2007).
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court. The Supreme Court remanded the case to the Court of Appeals to consider “whether the defendant was denied the right to counsel of his choice under United States v. Gonzalez–Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006),” and to...
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