Brown v. Berghuis
| Decision Date | 29 July 2009 |
| Docket Number | No. 07-CV-12264-DT.,07-CV-12264-DT. |
| Citation | 638 F.Supp.2d 795 |
| Parties | Warren A. BROWN, Petitioner, v. Mary BERGHUIS, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Mark N. Awada, Warren, MI, Raina I. Korbakis, Michigan Department of Attorney General, Lansing, MI, for Petitioner.
Raina I. Korbakis, Michigan Department of Attorney General, Lansing, MI, for Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING PLAINTIFF'S HABEAS CORPUS ACTION
This matter having come before the Court on the July 10, 2009 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 no timely objections to the Magistrate Judge's Report and Recommendation having been filed; and the Court having reviewed the Magistrate Judge's Report and Recommendation 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 July 10 2009 [Dkt. # 11] 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.
I. RECOMMENDATION ....................................................... 803
II. REPORT ............................................................... 803
A. Procedural History ............................................... 803
B. Factual Background Underlying Petitioner's Conviction ............ 805
C. Standard of Review ............................................... 805
D. Illegal Search (Claim I) ......................................... 806
1. State Court Proceedings ...................................... 806
2. Analysis ..................................................... 811
E. Evidentiary Claims (Claims II & III) ............................. 813
1. Clearly Established Law ...................................... 813
2. Evidence Regarding Ownership of Money ........................ 813
3. Drug Profile Evidence ........................................ 817
F. Right to Present a Defense (Claim IV) ............................ 817
1. Clearly Established Law ...................................... 817
2. Analysis ..................................................... 818
G. Sentencing Claim (Claim V) ....................................... 821
H. Ineffective Assistance of Counsel (Claim VI) ..................... 822
1. Clearly Established Law ...................................... 822
2. Analysis ..................................................... 823
a. Suppression Hearing Representation ....................... 823
b. Drafting of Forfeiture Pleading .......................... 824
I. Cumulative Error (Claim VII) ..................................... 825
J. Conclusion ....................................................... 825
III. NOTICE TO PARTIES REGARDING OBJECTIONS .............................. 825
I. RECOMMENDATION: The Court should deny petitioner's application for the writ of habeas corpus.
II. REPORT:
A. Procedural History
1. Petitioner Warren A. Brown is a state prisoner, currently confined at the Michigan Reformatory in Ionia, Michigan.
2. On May 2, 2002, petitioner was convicted of possession with intent to deliver 650 grams or more of cocaine, MICH. COMP. LAWS § 333.7401(2)(a)(i); possession with intent to deliver marijuana, MICH. COMP. LAWS § 333.7401(2)(d)(iii); and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, following a jury trial in the Wayne County Circuit Court. On May 16, 2002, he was sentenced to a term of life imprisonment on the cocaine conviction, a concurrent term of 20-48 months' imprisonment on the marijuana conviction, and a mandatory consecutive term of two years' imprisonment on the felony firearm conviction.
3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through counsel, the following claims:
I. Whether the defendant's rights under the Fourth Amendment of the United States Constitution as well as the Due Process Clause of the Fourteenth Amendment to the United States Constitution and/or under the similar provisions of the Michigan Constitution were violated by the trial court's denial of defendant's Motion to Suppress and defendant's request for an evidentiary hearing of defendant's Motion to Suppress, when there was substantial evidentiary and testimonial support as well as newly discovered evidence supporting defendant's allegations of fraud upon the court, misrepresentation and other misconduct by the prosecutor's crucial police witness at the prior hearing and where the testimony challenged was necessary for a finding of probable cause?
II. Whether the court erred reversibly in ruling that the Officer in Charge could testify that the defendant had sought the return of the money found with the drugs based upon the "Wherefore Clause" in the Answer to Complaint for Forfeiture which was entered into evidence as an admission of a party-opponent where the testimony provided the only direct evidence connecting the defendant with the narcotics and denied the defendant due process of law under the state and federal constitutions through the introduction of the fruit of an illegal search.
III. Whether the court erred in permitting the Officer in Charge to present drug profile evidence, over a defense objection, and erred further in permitting the evidence to be used as substantive evidence of guilt and thereafter further erred by refusing to give the jury a limiting instruction, over a defense objection, requiring reversal?
IV. Whether the court erred reversibly where the court refused to order the production of Officer Delford Fort who was present at the scene and who was listed as a defense witness for over one year and was necessary for the defense and where the predecessor Judge did order the production of the witness or a missing witness instruction and where the prosecutor engaged in misconduct where the prosecutor previously agreed to produce the witness and stated that she could not where the error denied the defendant the right to present a defense and thereby denied due process of law under the state and federal constitutions?
V. Whether the defendant must be resentenced where the sentencing Judge was under the misapprehension of law that a conviction for possession with intent to deliver over 650 grams of cocaine allowed him no discretion but to sentence the defendant to life in prison without parole and where there is no evidence that the judge exercised any discretion at all.
VI. Whether the defendant received ineffective assistance of counsel at the suppression hearing requiring rehearing as well as ineffective assistance of counsel in the drafting of the "wherefore clause" of the forfeiture complaint in such a manner that it was considered by the trial court an admission of a party-opponent of ownership of the money found with the narcotics violating the defendant['s] state and federal constitutional right to the effective assistance of counsel.
VII. Whether the cumulative effect of these errors deprived the defendant a fair trial and whether the result was a miscarriage of justice?
The court of appeals found no merit to petitioner's claims, and affirmed his conviction and sentence. See People v. Brown, No. 245177, 2005 WL 2679688 (Mich.Ct. App. Oct. 20, 2005) (per curiam).
4. Petitioner sought leave to appeal these issues to the Michigan Supreme Court. The Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Brown, 475 Mich. 868, 714 N.W.2d 318 (2006).
5. Petitioner, through counsel, filed the instant application for a writ of habeas corpus on May 24, 2007. As grounds for the writ of habeas corpus, he raises the seven claims that he raised in the state courts.
6. Respondent filed her answer on November 30, 2007. She contends that petitioner's claims are not cognizable, without merit, or procedurally defaulted.
7. Petitioner filed a reply to respondent's answer on January 14, 2008.
B. Factual Background Underlying Petitioner's Conviction
Petitioner's conviction arises from the recovery of drugs and firearms from an apartment owned by petitioner. As summarized by the Michigan Court of Appeals, the evidence adduced at trial showed that
[a]fter obtaining a warrant to search an apartment and take defendant into custody, the police searched an upper apartment in a building owned by defendant. That apartment was occupied by the sister of defendant's girlfriend. According to the police, while searching that apartment, they were informed that defendant had run into his girlfriend's apartment, which was located on the lower floor of the same building. The police entered defendant's girlfriend's apartment to arrest defendant. After securing the lower apartment, the police obtained a warrant to search the apartment. The police subsequently found large amounts of cash, drugs, and weapons inside the lower apartment.
Brown, 2005 WL 2679688, at *1.
C. Standard of Review
Because petitioner's application was filed after ...
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