Baker v. Barrett
Decision Date | 22 April 2014 |
Docket Number | No. 13–CV–11092.,13–CV–11092. |
Parties | Dannie Ray BAKER, Petitioner, v. Joe BARRETT, Respondent. |
Court | U.S. District Court — Eastern District of Michigan |
Dannie Baker, Jackson, MI, pro se.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING HABEAS CORPUS ACTION
This matter having come before the Court on the March 14, 2014 Report and Recommendation of United States Magistrate Judge Paul J. Komives recommending that the Court deny Plaintiff's petition for a writ of habeas corpus and that this case, accordingly, be dismissed; and Petitioner having timely filed Objections; and the Court having reviewed the Magistrate Judge's Report and Recommendation, Petitioner's Objections, and the Court's file of this action and having concluded that, for the reasons stated in the Report and Recommendation, Plaintiff's petition for habeas corpus relief should be denied; and the Court being otherwise fully advised in the premises,
NOW, THEREFORE, IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation of March 14, 2014 [Dkt. # 24] be, and hereby is, adopted by this Court.
IT IS FURTHER ORDERED that, for the reasons set forth in the Magistrate Judge's Report and Recommendation, Plaintiff's petition for habeas corpus relief [Dkt. # 1] be, and hereby is DENIED and the above-captioned case, therefore, is DISMISSED.
IT IS FURTHER ORDERED that for the reasons stated in the Report and Recommendation, the Court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate of appealability or grant leave to proceed on appeal in forma pauperis.
Table of Contents
I.
RECOMMENDATION
821
II.
REPORT
821
A.
Procedural History
821
B.
Factual Background Underlying Petitioner's Conviction
824
C.
Procedural Default
825
D.
Standard of Review
826
E.
Prosecutorial Misconduct/Double Jeopardy (Claim III)
828
1.
Clearly Established Law
828
2.
Analysis
828
a.
Sufficiency of the Evidence
828
b.
Double Jeopardy
829
F.
Jury Selection (Claim IV)
831
1.
Biased Juror
831
a.
Clearly Established Law
831
b.
Analysis
831
2.
Peremptory Challenge
833
G.
Right to Present a Defense (Claim V)
833
1.
Clearly Established Law
834
2.
Analysis
834
H.
Prejudicial Evidence (Claim VI )
836
I.
Sentencing (Claim VII)
837
J.
Cumulative Error (Claim VIII)
838
K.
Ineffective Assistance of Counsel (Claims I & II)
838
1.
Clearly Established Law
839
2.
Trial Counsel
840
a.
Plea Advice
840
b.
Intoxication Defense
842
c.
Confirming Expert's Facts and Data
843
d.
Failing to Call Witnesses
843
e.
Failing to Object to Prosecutorial Misconduct
844
3.
Appellate Counsel
845
L.
Recommendation Regarding Certificate of Appealability
846
1.
Legal Standard
846
2.
Analysis
847
M.
Conclusion
847
III.
NOTICE TO PARTIES REGARDING OBJECTIONS
847
* * * * * *
The Court should deny petitioner's application for the writ of habeas corpus and should deny petitioner a certificate of appealability.
A. Procedural History
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.
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:
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:
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 petitioner to call for a ride, and petitioner left the station.
Later that evening, Deborah Harvel was driving on Michigan Avenue, and was stopped at a red light at the intersection of Henry Ruff Street, about a mile away from the police station. She...
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