Berry v. Mintzes
Decision Date | 21 December 1981 |
Docket Number | Civ. No. 80-72037. |
Citation | 529 F. Supp. 1067 |
Parties | Thomas BERRY, Jr., Petitioner, v. Barry MINTZES, Warden, Respondent. |
Court | U.S. District Court — Western District of Michigan |
David M. Lawson, Lawson & Lawson, P.C., Southfield, Mich., for petitioner.
Frank J. Kelley, Atty. Gen., C. Michael Mathis, Asst. Atty. Gen., William L. Cahalan, Wayne Co. Pros. Atty., Andrea L. Solak, Asst. Pros. Atty., Detroit, Mich., for respondent.
Before me is a petition for a writ of habeas corpus, 28 U.S.C. § 2254. Petitioner Thomas Berry, Jr. was convicted of first degree murder in the Recorder's Court for the City of Detroit on May 18, 1964 and sentenced to a term of life imprisonment. He has been in the custody of the Michigan Department of Corrections since that time.
Petitioner was arrested and arraigned on a criminal warrant charging first degree murder on October 25, 1963. Three days later counsel was appointed for him. He was arraigned on an information charging first degree murder on December 11, 1963. On May 18, 1964 petitioner and his counsel appeared for trial. Petitioner indicated through his counsel and in a colloquy with the trial judge that he desired to plead guilty to an "open" charge of murder. Pursuant to M.C.L.A. § 750.318, a person charged with murder who desires to plead guilty may plead to an "open" charge of murder, waive his right to a jury trial and have the trial judge conduct an evidentiary hearing to determine whether the conviction will be murder in the first or second degree.1
Petitioner then executed a written waiver of his right to a jury trial and with counsel present tendered a plea of guilty to an open murder charge. The trial judge then conducted an evidentiary hearing during which petitioner, his co-defendant and several witnesses testified. At the conclusion of testimony and argument of counsel, the trial judge found petitioner guilty of first degree (premeditated) murder. He was sentenced to life imprisonment on July 2, 1964; under Michigan law life imprisonment without parole is mandatory for first degree murder. M.C.L.A. §§ 750.316; 791.234.
The petition now before me alleges that petitioner:
The petition was filed in pro per on June 2, 1980. An answer was filed by the Michigan Attorney General on October 31, 1980 asserting the petition was without merit. On March 5, 1981, I appointed counsel to represent petitioner. The following day I ordered a testimonial hearing with petitioner present and directed that the Prosecuting Attorney for Wayne County be invited to join in the defense. The Prosecuting Attorney filed an appearance on March 13, 1981.
A testimonial hearing was held on April 23, 1981 at which petitioner alone testified. Respondent's counsel advised me at that time they had been unable to reach petitioner's trial counsel, the assistant prosecutor or the trial judge at the May 18, 1964 proceeding. Various documents, including the transcript of the plea proceeding, were received in evidence.
Post-hearing briefs were filed by both parties in September 1981 after which I heard argument. At my request respondent has filed an affidavit setting forth petitioner's prior criminal record.
Petitioner's journey through Michigan's criminal justice system and the federal courts has been long and tortuous. I relate the course of events in detail (as I have been able to determine it) because it reveals how many times petitioner has made many of the same arguments he now raises without receiving more than a cryptic response save in one instance.2
To continue reading
Request your trial-
Rogers v. Klee
...does not extend to third parties called as witnesses at trial. United States v. Nobles, 422 U.S. 225, 234 (1975); Berry v. Mintzes, 529 F. Supp. 1067, 1075 (E.D. Mich. 1981). While the United States Court of Appeals for the Sixth Circuit has indicated that the use of a witness's coerced tes......
-
Duvall v. Bell
...not extend to third parties called as witnesses at trial. See United States v. Nobles, 422 U.S. 225, 234 (1975); Berry v. Mintzes, 529 F. Supp. 1067, 1075 (E.D. Mich. 1981); People v. Jones, 115 Mich.App. 543, 548, 321 N.W.2d 723 (1982), aff'd 419 Mich. 577 (1984). While the United States C......
-
Currie v. Rapelje
...does not extend to third parties called as witnesses at trial. United States v. Nobles, 422 U.S. 225, 234 (1975); Berry v. Mintzes, 529 F. Supp. 1067, 1075 (E.D. Mich. 1981); People v. Jones, 115 Mich. App. 543, 548, 321 N.W.2d 723 (1982), aff'd 419 Mich. 577, 358 N.W.2d 837 (1984). While t......
-
People v. Watkins, Docket No. 225572.
...and without undue influence." 6. The defendant in Berry also petitioned for a writ of habeas corpus in federal court. Berry v. Mintzes, 529 F.Supp. 1067 (E.D.Mich., 1981). When the district court denied his petition, Berry appealed to the United States Sixth Circuit Court of Appeals, which ......