Boyd v. Rapelje, CASE NO. 5:09-CV-10575

• Decision Date: 04 November 2011
• Docket Number: CASE NO. 5:09-CV-10575
• Parties: JAMES EARL BOYD, Petitioner, v. LLOYD RAPELJE, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

JAMES EARL BOYD, Petitioner,

v.LLOYD RAPELJE, Respondent.

CASE NO. 5:09-CV-10575

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date: November 4, 2011

HONORABLE JOHN CORBETT O'MEARA

OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS,

DENYING PENDING MOTIONS, DENYING CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. INTRODUCTION

This is a habeas case brought pursuant to 28 U.S.C. § 2254. On August 8, 2007, Michigan prisoner James Earl Boyd ("Petitioner") was convicted of one count of armed robbery, MICH. COMP. LAWS § 750.529, following a bench trial in the Kalamazoo County Circuit Court. On September 17, 2007, he was sentenced as a fourth habitual offender to nine to thirty years imprisonment. In his pleadings, Petitioner raises claims concerning the impartiality of the trial judge, his habitual offender sentencing enhancement, and the effectiveness of defense counsel. For the reasons stated, the Court finds that Petitioner's claims lack merit and do not warrant habeas relief, that his pending motions are therefore moot, and that a certificate of appealability and leave to proceed in forma pauperis on appeal should be denied.

II. FACTS AND PROCEDURAL HISTORY

Petitioner's conviction arises from an armed robbery of a convenience store on December23, 2006, in Kalamazoo County, Michigan. Petitioner entered the convenience store with another man who began interacting with the store owner, Walter Fish. Fish testified that the other man was acting very strangely. A store clerk, Ronnie Krantz, who was in another part of the store pricing items, saw Petitioner reach behind a counter where the cartons of cigarettes were kept and take a carton of cigarettes, already having one tucked underneath his arm. Petitioner began to the leave the store. Krantz attempted to stop Petitioner, but Petitioner pushed him out of the way and left.

Krantz testified that he followed Petitioner out of the store. Petitioner stopped and turned around to face him. Petitioner yelled that he had a gun, reached into his coat pocket, pulled out an orange and yellow utility/box-cutter knife, and slashed at the clerk. The blade on the knife was extended. Krantz yelled that Petitioner had a knife, put his hands up in a defensive posture, and backed away. Petitioner then turned, ran away, and got into a white Ford Explorer.

A postal employee, James Crump, was in the store at the time of the incident. Crump testified that he saw the clerk chase Petitioner out of the store, that he followed them outside, that he saw Petitioner turn around, that he heard the clerk yell that Petitioner had a knife, and that he saw the clerk move into a defensive position. Crump got into his postal vehicle and followed Petitioner for about six blocks, informing the police of the make, model, partial license plate, and location of the vehicle.

Police later spotted the vehicle parked in front of a residential property. The first officer on scene approached the vehicle, saw Petitioner move from the back seat to the front seat of the car, and pulled him out of the vehicle. The officer frisked Petitioner and found a utility knife in his jacket. At first, Petitioner denied involvement in the robbery. He later confessed to taking the cigarettes, but insisted that he did not use a knife.

Petitioner waived his right to a jury trial and requested a bench trial. The trial judge initially denied the motion, but later granted the request for a bench trial. After two days of testimony, the trial court found Petitioner guilty of armed robbery. The trial court subsequently sentenced him as a fourth habitual offender to serve nine to thirty years imprisonment.

Following his conviction and sentencing, Petitioner pursued an appeal as of right with the Michigan Court of Appeals. Appellate counsel filed an Anders¹ brief along with a motion to withdraw indicating that there were no issues for appeal. Petitioner filed a pro per brief raising claims of judicial bias, judicial conflict of interest, improper sentencing enhancement, and ineffective assistance of trial counsel. The Michigan Court of Appeals granted appellate counsel's motion to withdraw and affirmed Petitioner's conviction, stating that the appeal was "wholly frivolous." People v. Boyd, No. 281503 (Mich. Ct. App. June 13, 2008) (unpublished). Petitioner then filed a motion for reconsideration raising his ineffective assistance of appellate counsel claim. The Michigan Court of Appeals denied reconsideration. People v. Boyd, No. 281503 (Mich. Ct. App. July 16, 2008) (unpublished). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising all five claims, which was denied in a standard order. People v. Boyd, 482 Mich. 1067, 760 N.W.2d 464 (Nov. 25, 2008).

Petitioner thereafter filed his federal habeas petition, raising all five claims. Respondent filed an answer to the petition contending that Petitioner had not properly exhausted his ineffective assistance of appellate counsel claim in the state courts. Petitioner moved for a stay to allow forproper exhaustion. The Court found that Petitioner had not exhausted his ineffective assistance of appellate counsel claim in the state courts, but denied the motion to stay and dismissed the petition without prejudice. Petitioner then re-filed his petition omitting the unexhausted claim and the Court re-opened this case. Petitioner raises the following claims in his updated petition:

I. He is entitled to reversal where the trial judge admitted that it did not make any sense whatsoever for him to ask the judge for a fair trial after he told the judge "Oh man you're crazy," in response to the judge's denial of a request for a bench trial. Two weeks later, the admittedly biased judge held the very bench trial, of which he, himself, admitted that no reasonably sensible person could expect to be fair.

II. He is entitled to reversal where he was denied the right to a fair judge when the judge was his trial lawyer in an unrelated case less than two years before presiding over the present case. Trial counsel was ineffective for failing to discover this fact and request disqualification under MICH. CT. R. 2.003.

III. The trial court erred by enhancing his sentence with prior convictions rendered unconstitutional in light of Halbert v. Michigan, and defense counsel was ineffective for failing to object to the enhancement.

IV. He is entitled to a reversal where trial counsel was ineffective in failing to impeach a key witness whose testimony was dramatically different from his police statement, and where she failed to utilize video evidence which had the potential to impeach the testimony of two witnesses who proved critical evidence against him.

Respondent has filed an answer to the petition contending that it should be denied for lack of merit.

III. STANDARD OF REVIEW

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified 28 U.S.C. § 2241 et seq., govern a federal court's habeas review of a state court decision. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2241(d).

"A state court's decision is 'contrary to' . . . clearly established law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). "[T]he 'unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to 'grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, "[i]n order for a federal court find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been 'objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,' and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, _ U.S. _, 130 S. Ct. 1855, 1862 (2010) (quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The Supreme Court recently held that "a state court's determination that a claim lacks meritprecludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, _ U.S. _, 131 S. Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or...