Bacon v. Klee

• Decision Date: 22 October 2015
• Docket Number: Case No. 2:13-cv-10016
• Parties: CHUCK WILLIAM BACON, Petitioner, v. PAUL KLEE, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

CHUCK WILLIAM BACON, Petitioner,
v.
PAUL KLEE, Respondent.

Case No. 2:13-cv-10016

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

October 22, 2015

Honorable Patrick J. Duggan

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner Chuck William Bacon ("Petitioner"), a Michigan Department of Corrections prisoner currently confined at the Gus Harrison Correctional Facility in Adrian, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that he is being held in violation of his constitutional rights. In his application, filed through attorney Craig A. Daly, Petitioner challenges his convictions for second-degree murder, Michigan Compiled Laws § 750.317, assault with intent to commit murder, Michigan Compiled Laws § 750.83, felon in possession of a firearm, Michigan Compiled Laws § 750.224f, and possession of a firearm during the commission of a felony, Michigan Compiled Laws § 750.227b on several bases, each of which implicates his right to a fair trial. The trial court sentenced Petitioner as a

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fourth habitual offender, Michigan Compiled Laws § 769.12, to concurrent terms of sixty to ninety years on the second-degree murder and assault with intent to commit murder convictions, three to five years on the felon in possession of a firearm, to be served concurrently with the sixty to ninety year term, and to a mandatory two-year consecutive term on the felony firearm conviction.¹ For the reasons that follow, the Court will deny the petition and will also decline to issue a certificate of appealability.

I. FACTUAL AND PROCEDURAL BACKGROUND

Following a seven-day trial in the Third Judicial Circuit Court for the County of Wayne, located in Detroit, Michigan, Petitioner was pronounced guilty of the aforementioned offenses by a jury of his peers. The 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).² Treesh v. Bagley, 612 F.3d 424, 430 n.1 (6th Cir. 2010) (noting that this statutory presumption applies to

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factual findings made by state appellate courts on the basis of their review of the trial court's records) (citation omitted).

This case arose out of a neighborhood shooting. On the night of April 9, 2006, Cardaro Larkins, Darrieus Spikes, and James Singleton were near Singleton's house on James Street "chilling and rapping." Larkins was leaving for the military the next day. Around 11:30 p.m., Chuck Bacon, Sr., defendant's father and an acquaintance of the Larkins family, drove up and invited Larkins, Spikes, and Singleton to a warehouse he owned, which was used as a recording studio and after-hours club. The boys accompanied defendant's father, who let them into the studio and drove off. By 12:20 or 12:30 a.m., on April 10, 2006, the boys realized defendant's father had left and decided to steal some recording equipment from the studio. After leaving with some items, Larkins and Spikes returned to the studio to lock the studio gate and close the front door. Singleton, however, returned home.

After Larkins and Spikes returned to the studio, a Ford Crown Victoria pulled up and defendant got out of the car to go inside the studio. Defendant claimed that he had just returned from performing a rap session at a club and had returned to the studio to clean up. Defendant noticed that the studio gate and doors were open when he arrived and that the studio had been ransacked. As soon as defendant went into the studio, Spikes and Larkins ran away in different directions. Spikes last saw Larkins running near Woodlawn Street. According to Spikes, defendant followed Spikes in the Crown Victoria, got out of the car, and fired two shots at Spikes. Spikes claimed that he was unarmed during this incident and fired no shots. Spikes ran back to his neighborhood where he had agreed to meet Larkins, but Larkins did not arrive. Around 1:00 a.m., police found Larkins lying on his back in a field near Woodlawn Street. Larkins had been fatally shot in the forehead. The next morning, Spikes provided police with one of defendant's rap videos he had taken from the studio.

In contrast to this version of events, defendant claimed that after leaving the studio, he followed Larkins and the two got into a fistfight before Larkins ran away from him and toward a field. At this point, Spikes

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approached and fired four shots at defendant. Defendant retrieved a "thirty-eight," returned fire, and drove away. Defendant then picked up Lateece Turner and Indea Knox and brought them back to the studio for sex around 2:30 a.m. The women stayed with defendant at the studio until 10:00 or 11:00 a.m.

Turner later provided a statement to police in which she indicated that defendant informed her that before picking her up, he shot at someone who was stealing equipment from the studio. Although Turner affirmed this statement at an investigative subpoena hearing, she testified at trial that this version of events was not true. Instead, Turner claimed at trial that defendant had told her that he "tussled" with the person who broke into the studio and then returned fire after someone shot at him.

Knox also provided a statement at an investigative subpoena hearing. Knox indicated that defendant told her, "I had to do what I had to do," with regard to the break-in. In addition, Knox testified at the investigative subpoena hearing that she was fearful of "Chuck's family or his boys," that "everyone know[s] [defendant] did it[,]" and that "it was out that [Knox and Turner] were with [defendant] during the shooting." At trial, Knox denied making these statements and claimed that she only learned from other people in the neighborhood that someone involved in the studio break-in had been shot.

Larkins's mother, Yolanda Wilson, testified at trial that sometime after the shooting, defendant waved a gun at her and said, "[I] can't be touched." Wilson drove away, but defendant allegedly followed her in his car and tried to run her off the road.

People v. Bacon, No. 274242, 2008 WL 2356359, at *1-2 (Mich. Ct. App. June 10, 2008) (unpublished) (per curiam).

Following his convictions and the imposition of his sentence, Petitioner filed an appeal of right with the Michigan Court of Appeals. In an unpublished, per curiam opinion issued in June of 2008, the state appellate court affirmed Petitioner's

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convictions. Petitioner subsequently filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Bacon, 482 Mich. 1066, 757 N.W.2d 444 (2008).

Petitioner then filed a post-conviction motion for relief from judgment pursuant to Michigan Court Rule 6.500, which the trial court denied. People v. Bacon, No. 06-005895-01 (3d Jud. Cir. Ct., Apr. 15, 2010). The Michigan appellate courts denied leave to appeal. People v. Bacon, No. 303355 (Mich. Ct. App. Oct. 6, 2011); lv. den. 491 Mich. 941, 815 N.W.2d 484 (2012); reconsideration den. 493 Mich. 922, 823 N.W.2d 564 (2012).

On February 28, 2012, while Petitioner's first post-conviction motion was pending in the state-court system, he filed a second motion for relief from judgment in the state trial court asserting a retroactive change in the law based on the Supreme Court of the United States's decision in Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721 (2010), which held that "the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors." Id. at 213, 130 S. Ct. at 724. Based on his belief that Presley articulated a new rule made retroactive on collateral review, Petitioner's second post-conviction motion asserted that the trial court violated Petitioner's Sixth Amendment right to a public trial, a right the court allegedly violated by excluding the public as well as Petitioner's family from the courtroom during jury selection, and that

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his trial counsel provided constitutionally-inadequate representation by failing to object to the courtroom closure.

On January 3, 2013, soon after filing his second post-conviction motion, Petitioner, through counsel, filed his application for writ of habeas corpus, seeking habeas relief on the claims asserted in the Michigan appellate courts on direct review and those asserted in his first post-conviction motion. On May 6, 2013, Petitioner filed a motion to hold the habeas petition in abeyance while he finished exhausting his second post-conviction motion in the state courts, which this Court granted.

The state trial court denied Petitioner's second post-conviction motion for relief from judgment on January 8, 2013, just days after the habeas petition was filed. Citing Michigan Court Rule 6.502(G), which prohibits criminal defendants from filing a second or successive motion for relief from judgment unless there has been either a retroactive change in the law or newly-discovered evidence, the state trial court determined that Petitioner was not entitled to relief. The state court further reviewed the courtroom closure issue on the merits, applying the plain error standard of review applicable to forfeited constitutional errors prior to rejecting Petitioner's claim. People v. Bacon, No. 06-005895-01, at *2, 4 (3d Judicial Cir. Ct., Jan. 8, 2013). The Michigan Court of Appeals dismissed...