Bell v. Howes

• Decision Date: 28 December 2010
• Docket Number: Case No. 2:06–CV–15086.
• Citation: 757 F.Supp.2d 720
• Parties: Arthur BELL, Petitioner,v.Carol HOWES, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

757 F.Supp.2d 720

Arthur BELL, Petitioner,

v.Carol HOWES, Respondent.

Case No. 2:06–CV–15086.

United States District Court, E.D. Michigan, Southern Division.

Dec. 28, 2010.

Bradley R. Hall, Federal Defender Office, Detroit, MI, Joan E. Morgan, Sylvan Lake, MI, for Petitioner.John S. Pallas, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS

ARTHUR J. TARNOW, Senior District Judge.

This matter is before the Court on Petitioner Arthur Bell's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Bell challenges his convictions for first-degree felony murder and possession of a firearm during commission of a felony. The Court finds that the state court's decision regarding Bell's Brady claim was an unreasonable application of Supreme Court precedent. The Court further finds that trial counsel was ineffective in failing to present alibi witnesses and the state court's conclusion to the contrary was an unreasonable application of Supreme Court precedent. The Court grants a conditional writ of habeas corpus.

I. Facts

Bell's convictions arise from the shooting death of William Matthew Thompson in the City of Detroit on September 22, 1988. Thompson died from two gunshot wounds to the back and two blunt force injuries to his head.

Priscilla Matthews testified that she was Thompson's girlfriend. Thompson was a drug dealer who worked for Bell's co-defendant Bobby Mims. Mims suspected Thompson of stealing drugs from him. Matthews testified that, on September 22, 1988, she was staying at a motel room in the Grand 20 motel in the City of Detroit with Thompson. She had been with Thompson at the motel since approximately 3:00 a.m. that morning. At approximately 7:00 p.m. she called her sister to check on her son. Her sister told her that three men had been coming over to the house looking for Thompson and her. The three men were “Oddie,” “Mark,” and “Chill.” Matthews identified Bell's codefendant Mims as “Oddie,” and “Mark” as Mark Sylvertooth. She testified that the man she knew as “Chill” was not in the courtroom. She called the house again at 10:00 p.m. and spoke to her cousin, Thomas Boyd. Boyd informed her that the three men kept coming over and threatening to kill Thompson because he had stolen drugs from them.

Matthews testified that a little later that evening she and Thompson were watching television when the door of the hotel room was kicked open. She testified that Sylvertooth entered the room carrying a gun and a meat cleaver. A man she knew as “Chill” entered with a gun in his hand. The two men carried Thompson naked from the hotel room, shoved him in a car, and drove off. When Thompson was being thrown into the car, she was standing in the doorway of the motel room and she saw Sylvertooth, “Chill,” and Mims by the vehicle. The car then sped away.

Matthews called 911. After she did so, she heard a vehicle drive into the parking lot. She went to the motel room door and saw Mims. He summoned her downstairs. She went because she feared she would otherwise be shot. Mims was standing outside the vehicle. He had on a light-colored suit that had blood spots on it. He was also carrying a handgun. Mims asked her where the missing drugs were. As he was questioning her, “Chill” ran past her and into the motel room. “Chill” was only up in the room for a few moments. Matthews concluded that he found what he was looking for because he returned quickly and Mims and “Chill” got back in the car and drove away. As the car was leaving, she recorded a license plate of 046HF. (The vehicle in which Thompson's body was later recovered bore a license plate of 046–WFH.) Matthews returned to the hotel, where the mattress had been pulled off the bed. She waited for police to arrive. When the police arrived they questioned her in the hotel room. As they were questioning her, she heard a report on a police radio that shots had been fired in the area. She concluded that the shooting likely involved Thompson.

She went with police around the corner and saw the vehicle that Thompson had been placed in, parked, with one of the doors open. She saw Thompson slumped in the back seat. She went to the hospital when Thompson was taken there by ambulance and was told that he was dead on arrival. Although Matthews failed to identify Bell in a lineup, testimony regarding a lineup was not elicited at trial.

Police Officer Kevin Clark testified that he was working undercover on the night of the shooting. He heard a gunshot. He and his partner drove in the direction of the gunshot. They came upon a light-colored vehicle with its driver's side door open. Officer Clark observed a black male attempting to steer the vehicle to the curb. The man saw Officer Clark, hollered something into the vehicle and he and two additional men fled. Officer Clark observed a man lying in the back seat of the car, who was later determined to be Thompson. His partner chased the fleeing men, but was unable to apprehend them. Officer Clark was unable to identify any of the men.

Mark Sylvertooth provided the only testimony placing Bell at the shooting. He identified Bell as the shooter. Sylvertooth testified that, on the night of September 22, he, Bell, Mims, and a man known as “Otto” went to Thompson's motel room. He testified that he and Bell broke into the motel room and grabbed Thompson. Mims subsequently severely beat Thompson. Mims left the vehicle and was not present during the shooting. Otto, Bell and Sylvertooth took Thompson to a dark viaduct where Bell shot Thompson. Sylvertooth testified pursuant to two deals with the prosecutor. The first provided a ten year minimum sentence in exchange for his testimony against Bell's co-defendant, Mims. The second, revised deal provided for a 7–1/2 year minimum sentence in exchange for his testimony against Bell.

No witnesses were presented for the defense.

II. Procedural History

Following a joint bench trial in Recorder's Court for the City of Detroit with co-defendant Bobby Mims, Bell was convicted of first-degree premeditated murder, first-degree felony murder, kidnapping, and felony firearm. On July 3, 1989, Bell was sentenced to life imprisonment without parole on each murder conviction, to be served consecutively to two-years' imprisonment for the felony-firearm conviction. He was not sentenced on the kidnapping conviction because it was the predicate felony for the felony-murder conviction. The first-degree premeditated murder sentence was vacated on double jeopardy grounds.

Bell filed an appeal of right in the Michigan Court of Appeals raising a claim that counsel was ineffective in failing to interview and present two alibi witnesses and failing to demand production of witness Durone Jenkins.¹ Bell also filed a motion to remand for a hearing on the claim that trial counsel was ineffective. The Michigan Court of Appeals granted the motion to remand for an evidentiary hearing on Bell's ineffective assistance of counsel claim. People v. Bell, No. 120770 (Mich.Ct.App. Apr. 23, 1990).

The trial court conducted an evidentiary hearing on May 31, 1990. At the conclusion of the evidentiary hearing, the trial court issued its finding that trial counsel was not ineffective.

The matter was then returned to the Michigan Court of Appeals, which affirmed Bell's convictions. People v. Bell, No. 120770 (Mich.Ct.App. Sept. 2, 1992).

Bell filed an application for leave to appeal to the Michigan Supreme Court, presenting two claims: (i) trial counsel was ineffective in failing to: interview and present two alibi witnesses, move for a separate trial, move for a change of venue, and investigate and prepare a defense; and (ii) the trial court improperly reviewed and referenced the preliminary examination transcript during the prosecution's cross-examination of a witness. The Michigan Supreme Court denied leave to appeal. People v. Bell, 442 Mich. 877, 500 N.W.2d 473 (Mich.1993).

On October 31, 2006, Bell filed a pro se petition for writ of habeas corpus in this Court, raising the following claims:

I. Conspiracy of my former trial counsel and state prosecutor to deprive me of my Sixth Amendment right to present witnesses, alibi witnesses, etc.

II. Petitioner's imprisonment also resulted from perjured testimony, knowingly used by the state to obtain his conviction.

III. The trial court, Judge Baxter, conspired to deprive Petitioner of a fair and impartial Ginther hearing.

IV. Petitioner was denied the effective assistance of appellate counsel where both appellate counsels were a part of the conspiracy.

Respondent filed a motion to dismiss on the ground that the petition was not timely filed. Bell responded that the limitations period should be tolled because he is actually innocent. On December 19, 2007, the Court granted Bell's Motion for Appointment of Counsel, appointing the Federal Defender Office to represent Bell and to investigate and prepare a brief regarding Bell's actual innocence claim and any other issues pertinent to the resolution of the petition. The Court also denied without prejudice Respondent's Motion to Dismiss for Failure to Comply with the Statute of Limitations pending receipt and consideration of supplemental briefs.

Bell, through counsel, filed a “Motion for Leave to Amend Pro Se Petition for Writ of Habeas Corpus and to Stay Federal Habeas Proceedings” (Motion to Amend and Stay). In the Motion to Amend and Stay, Bell's counsel stated that, through his investigation of claims relevant to the petition, he discovered material evidence relevant to Bell's defense and habeas petition which previously had been withheld from Bell. Bell sought leave to amend his petition to include a claim that the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and a stay of further habeas proceedings while Bell returned to state court to exhaust his unexhausted Brady violation claim...