Baker v. Barrett

• Decision Date: 14 March 2014
• Docket Number: CASE NO. 2:13-CV-11092
• Parties: DANNIE RAY BAKER, Petitioner, v. JOE BARRETT, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

DANNIE RAY BAKER, Petitioner, v. JOE BARRETT, Respondent.

CASE NO. 2:13-CV-11092

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date: March 14, 2014

CHIEF JUDGE GERALD E. ROSEN

MAGISTRATE JUDGE PAUL J. KOMIVES

REPORT AND RECOMMENDATION

Table of Contents

I. RECOMMENDATION................................................................ 2

II. REPORT ........................................................................... 2

A. Procedural History ............................................................ 2

B. Factual Background Underlying Petitioner's Conviction............................... 5

C. Procedural Default ............................................................ 8

D. Standard of Review ............................................................ 9

E. Prosecutorial Misconduct/Double Jeopardy (Claim III)............................... 12

1. Clearly Established Law................................................ 12

2. Analysis............................................................. 13

a. Sufficiency of the Evidence ........................................... 13

b. Double Jeopardy .............................................. 14

F. Jury Selection (Claim IV) ...................................................... 17

1. Biased Juror ......................................................... 17

a. Clearly Established Law.............................................. 17

b. Analysis .......................................................... 18

2. Peremptory Challenge.................................................. 21

G. Right to Present a Defense (Claim V) ............................................. 22

1. Clearly Established Law................................................ 22

2. Analysis............................................................. 23

H. Prejudicial Evidence (Claim VI)................................................. 26

I. Sentencing (Claim VII) ........................................................ 28

J. Cumulative Error (Claim VIII) .................................................. 30

K. Ineffective Assistance of Counsel (Claims I & II) .................................... 31

1. Clearly Established Law................................................ 31

2. Trial Counsel......................................................... 33

a. Plea Advice........................................................ 33

b. IntoxicationDefense................................................. 36

c. ConfirmingExpert'sFactsandData..................................... 37

d. Failing to Call Witnesses............................................. 38

e. Failing to Object to Prosecutorial Misconduct............................. 40

3. Appellate Counsel..................................................... 42

L. Recommendation Regarding Certificate of Appealability.............................. 431. Legal Standard ....................................................... 43

2. Analysis............................................................. 45

M. Conclusion.................................................................. 45

III. NOTICE TO PARTIES REGARDING OBJECTIONS...................................... 45

* * * * *

I. RECOMMENDATION: The Court should deny petitioner's application for the writ of habeas corpus and should deny petitioner a certificate of appealability.

II. REPORT:

A. Procedural History

1. Petitioner Dannie Ray Baker is a state prisoner, currently confined at the Cooper Street Correctional Facility in Jackson, Michigan.

2. On July 22, 2008, petitioner was convicted of negligent homicide, MICH. COMP. LAWS § 750.324; operating a motor vehicle while intoxicated causing death (OWI), MICH. COMP. LAWS § 257.625(4); and operating a vehicle while license suspended causing death, MICH. COMP. LAWS § 257.904(4), following a jury trial in the Wayne County Circuit Court. On August 12, 2008, he was sentenced to two concurrent terms of 10-15 years' imprisonment on the OWI and suspended license convictions, and to a concurrent term of 16-24 months' imprisonment on the negligent homicide conviction.

3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through counsel, the following claims:

I. THE TRIAL COURT IMPROPERLY ADMITTED UNDULY PREJUDICIAL TESTIMONY ELABORATELY DESCRIBING THE DECEDENT'S INJURIES AND PHOTOGRAPHS DEPICTING HER INJURIES AT THE ACCIDENT SCENE.

II. MR. BAKER IS ENTITLED TO RESENTENCING WHERE THE TRIAL COURT ERRED IN DEPARTING UPWARD FROM THE SENTENCING GUIDELINES WITHOUT SUBSTANTIAL AND COMPELLING

REASONS.

III. THE TRIAL COURT ERRONEOUSLY APPLIED JAIL CREDIT TO ONLY ONE OF MR. BAKER'S THREE CONCURRENT SENTENCES.

IV. THE PRESENTENCE REPORT MUST BE CORRECTED TO ACCURATELY DESCRIBE THE CONVICTION OFFENSE.

The court of appeals found no merit to petitioner's first three claims, and affirmed his convictions and sentences. However, the court remanded for correction of the presentence report. See People v. Baker, No. 287849, 2010 WL 746396 (Mich. Ct. App. Mar. 4, 2010) (per curiam).

4. Petitioner, proceeding pro se, sought leave to appeal these issues to the Michigan Supreme Court. Petitioner also raised two additional claims:

I. THE TRIAL COURT IMPROPERLY DENIED THE DEFENSE COUNSEL THE USE OF A PEREMPTORY CHALLENGE (INSANITY) DURING THE JURY SELECTION PROCESS ESSENTIALLY DENYING THE DEFENDANT HIS RIGHT TO OBTAIN A FAIR AND IMPARTIAL JURY, IN VIOLATION OF DEFENDANT'S 5TH AND 14TH FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR HEARING.

II. THE TRIAL COURT IMPROPERLY DENIED THE DEFENDANT THE USE OF AN EXPERT WITNESS'S OPINION WHICH WOULD HAVE STATED DEFENDANT'S LEVEL OF INTOXICATION BY VARIOUS BLOOD ALCOHOL LEVELS. THE NET EFFECT OF THIS RULING DAMAGED THE CREDIBILITY OF DR. SHIENER WITH THE JURY.

The Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Baker, 488 Mich. 870, 788 N.W.2d 428 (2010).

5. Petitioner subsequently filed a motion for relief from judgment in the trial court pursuant to MICH. CT. R. 6.500-.508, raising the following claims:

I. DEFENDANT WAS DENIED FEDERAL AND STATE DUE PROCESS WHERE APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILURE TO RAISE THE CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE THE DEFENDANT TO ACCEPT A FAVORABLE PLEA BARGAIN.

II. DEFENDANT WAS DENIED FEDERAL AND STATE DUE PROCESS WHERE TRIAL COUNSEL WAS INEFFECTIVE FOR: (A) NOT ADVISING THE ACCEPTANCE OF A PLEA AGREEMENT; (B) NOT DEVELOPING INVOLUNTARY INTOXICATION DEFENSE; (C) NOT CONFIRMING FACTS AND DATA PER MRE 705; AND (D) NOT CALLING VARIOUS WITNESSES.

III. DEFENDANT WAS DENIED FEDERAL AND STATE DUE PROCESS BY HIS TRIAL COUNSEL'S INEFFECTIVENESS BY NOT OBJECTING TO THE PROSECUTORIAL MISCONDUCT OF VIOLATING MICHIGAN RULES OF EVIDENCE 701, 702, 703 AND 705.

IV. DEFENDANT WAS DENIED FEDERAL AND STATE CONSTITUTIONAL RIGHTS OF DUE PROCESS BY THE PROSECUTORIAL MISCONDUCT OF MULTIPLE, SIMULTANEOUS CHARGES CREATING DOUBLE JEOPARDY BY THE CHARGING OFFENSES.

V. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT DISMISSING JUROR NO. 7 AND DENYING THE DEFENSE THE USE OF PEREMPTORY CHALLENGE DURING JURY SELECTION.

VI. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENSE THE USE OF EXPERT WITNESS FACTS AND DATA, PER MRE 705.

VII. THE CUMULATIVE EFFECT OF THE ABOVE UNCONSTITUTIONAL FEDERAL AND STATE VIOLATIONS DICTATE A REVERSAL AND/OR REMAND BECAUSE THERE IS REASONABLE PROBABILITY THAT THE ERRORS WERE SO SERIOUS THAT THEY COULD HAVE CHANGED THE OUTCOME OF THE TRIAL.

On November 17, 2011, the trial court denied petitioner's motion for relief from judgment, concluding that petitioner's claims were barred by MICH. CT. R. 6.508(D)(3) because he failed to raise the claims on direct appeal and could not show actual prejudice. In making this determination, the trial court rejected the merits of each claim. See People v. Baker, No. 07-023800-01-FH (Wayne County, Mich., Cir. Ct. Nov. 17, 2011) [hereinafter "Trial Ct. op."]. The Michigan Court of Appeals and Michigan Supreme Court denied petitioner's applications for leave to appeal in standard orders.

See People v. Baker, 493 Mich. 894, 822 N.W.2d 564 (2012); People v. Baker, No. 308257 (Mich. Ct. App. June 19, 2012).

6. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus on March 11, 2013. As grounds for the writ of habeas corpus, he raises the first two claims raised on direct appeal in the Michigan Court of Appeals, the second through sixth claims raised in his motion for relief from judgment, and a claim of cumulative error.

7. Respondent filed his answer on September 23, 2013. He contends that petitioner's second through fifth and eighth claims, as well as portions of his first claim, are barred by petitioner's procedural default in the state courts. Respondent also argues that each of petitioner's claims is without merit.

8. Petitioner filed a reply to respondent's answer on November 12, 2013.

B. Factual Background Underlying Petitioner's Conviction

Petitioner's conviction arises from a traffic accident on Michigan Avenue in the city of Inkster on November 9, 2007. On that date, petitioner was scheduled to report to the Inkster Police Department to spend the weekend in jail.¹ Shortly before arriving petitioner consumed half to three-quarters of a pint of vodka, and took two Ambien sleeping pills. He did so, he claimed, to help him sleep while at the jail. Petitioner claimed that he did not know what the pills were that he took, but had gotten them from his girlfriend's mother. When he arrived at the jail, communication assistant Christine Millisor noticed the smell of alcohol on petitioner, and informed Officer Doug Parson of this fact. Eventually Lieutenant Thomas Diaz administered a preliminary breath test to petitioner,which produced a result of .09. Diaz told Baker that he would have to leave, as jail policy disallowed weekenders to report under the influence of drugs or alcohol. Petitioner falsely informed petitioner that he had been dropped off at the station. Diaz told pe...