Brown v. Romanowski

• Decision Date: 01 July 2015
• Docket Number: Case No. 13-cv-11367
• Court: U.S. District Court — Eastern District of Michigan
• Parties: RYAN BROWN, Petitioner, v. KEN ROMANOWSKI, Respondent.

RYAN BROWN, Petitioner, v. KEN ROMANOWSKI, Respondent.

Case No. 13-cv-11367

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

July 1, 2015

Hon. Matthew F. Leitman

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (ECF #1), GRANTING IN PART AND DENYING IN PART CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Ryan Brown ("Petitioner") is a state prisoner in the custody of the Michigan Department of Corrections. Petitioner has filed a Petition for Writ of Habeas Corpus (the "Petition") challenging his state-court convictions of two counts of delivery of 50-450 grams of cocaine in violation of M.C.L. § 333.7401(2)(a)(iii)) and two counts of delivery of less than 50 grams of cocaine in violation of M.C.L. § 333.7401(2)(a)(iv)). (See ECF #1.) For the reasons discussed below, the Court DENIES the Petition.

RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

At Petitioner's trial, the prosecution presented evidence that Petitioner sold cocaine to Jawad Mirza ("Mirza"), a police informant, on at least four occasions. The evidence - including testimony by Mirza, Detective Sergeant Perry Dare ("Sergeant Dare"), Officer Kenneth Spencer ("Officer Spencer"), and other witnesses - is summarized as follows.

Mirza called Petitioner in September 2005 seeking to purchase one ounce of cocaine as part of a "controlled buy" operation. (See Trial Transcript I, ECF #9-4 at 122, Pg. ID 308.) Prior to the controlled buy, Sergeant Dare thoroughly searched Mirza to ensure that he was not in possession of any drugs. (See Trial Transcript II, ECF #9-5 at 271-274, Pg. ID 458-61.) Sergeant Dare then gave Mirza $800 to buy drugs from Petitioner. (See id. at 271-75, Pg. ID 458-62.) Wearing a hidden audio recording device, Mirza met with Petitioner and gave Petitioner $800; Petitioner gave Mirza 28.7 grams of cocaine. (See Tr. I at 124-25, Pg. ID 310-11; Tr. II at 275-77, Pg. ID 462-65.) Thereafter, Mirza turned over the cocaine to Sergeant Dare. (See Tr. I at 124-25, Pg. ID 310-11.)

In November 2005, Mirza called Petitioner to arrange a second controlled buy of two ounces of cocaine. (See id. at 127, Pg. ID 313.) Sergeant Dare again searched Mirza prior to the controlled buy operation. (See Tr. II at 283, Pg. ID 479.) Sergeant Dare then gave Mirza $1,700 to purchase cocaine from Petitioner.(See Tr. I at 128, Pg. ID 314.) Sergeant Dare also instructed Mirza to bring Officer Spencer - who was then working undercover - with him to meet Petitioner. (See id. at 129, Pg. ID 315.) Mirza again wore a hidden audio recording device during the controlled buy operation. (See Tr. II at 275-76, Pg. ID 462-63.) Officer Spencer and Mirza met Petitioner at the designated meeting spot. (See Tr. I at 129, Pg. ID 315.) Officer Spencer remained in the car while Mirza exited the vehicle to meet with Petitioner. (See id. at 129-32, Pg. ID 315-18.) Petitioner told Mirza that he only had one ounce of cocaine to sell, and he sold that ounce to Mirza for $850. (See id. at 131-32, Pg. ID 317-18.) Following the transaction, Mirza gave the one ounce of cocaine and remaining cash to Officer Spencer. (See id. at 132, Pg. ID 318.)

Mirza conducted a third controlled buy from Petitioner in December 2005. (See id. at 134, Pg. ID 320.) Sergeant Dare again searched Mirza and gave him $1,700 in order to buy two ounces of cocaine. (See id. at 135, Pg. ID 321.) Mirza again wore a hidden audio recording device. (See Tr. II at 275-76, Pg. ID 462-63.) Officer Spencer accompanied Mirza to the location of the buy, but Officer Spencer exited the vehicle in order to let Petitioner into the car with Mirza. (See Tr. I at 136, Pg. ID 322.) While in Mirza's car, Petitioner used Mirza's scale to weigh the cocaine, and Mirza gave him the $1,700. (See id. at 138-39, Pg. ID 324-25.)Petitioner gave Mirza the two ounces of cocaine. (See id.) After the sale, Mirza gave the cocaine to Officer Spencer. (See id. at 140, Pg. ID 326.)

On January 10, 2006, Sergeant Dare decided to conduct a "buy-bust." (See Tr. II at 286, Pg. ID 473.) Mirza called Petitioner and arranged to buy another two ounces of cocaine. (See Tr. I at 142, Pg. ID 328.) Mirza and Officer Spencer then drove to Petitioner's apartment. (See id. at 143, Pg. ID 329.) Officer Spencer exited the vehicle in order to let Petitioner into the car with Mirza. (See id. at 146, Pg. ID 332.) Petitioner handed drugs to Mirza, and Mirza began to weigh the drugs. (See id. at 146-47, Pg. ID 332-33.) Officer Spencer then gave a signal to waiting officers, and they arrested Petitioner. (See Tr. II at 228, Pg. ID 415.)

Sergeant Dare interviewed Petitioner after the arrest. (See Tr. II at 288, Pg. ID 475.) Petitioner provided a written statement in which he admitted that he sold cocaine to Mirza on four occasions. (See Tr. II at 296, Pg. ID 483.) Petitioner also admitted that "a couple" of those sales were for more than 50 grams of cocaine. (Id. at 294, Pg. ID 481.) Petitioner was then released from custody.

Petitioner was re-arrested on or about September 24, 2007 - roughly twenty months after his original arrest. (See ECF #10 at 16, Pg. ID 842.) The reason for Petitioner's arrest on or about September 24, 2007, is not clear from the record. However, it appears that on or about September 24, 2007, Petitioner was arraigned on charges that he sold cocaine to Mirza on four occassions. (See id. at 14-15, Pg.ID 840-41.) Petitioner's trial on those charges began on February 15, 2008. (See Tr. I at 1, Pg. ID 187.)

The audio recordings of Mirza's transactions with Petitioner were not available at trial. Sergeant Dare testified that he misplaced the recordings prior to Petitioner's trial when he moved his possessions to a new office. (See Tr. II at 276, Pg. ID 463.)

During Petitioner's trial, defense counsel stipulated to the admission of a laboratory report (the "Lab Report") prepared by Rachel Topacio ("Topacio") of the Oakland County Sheriff's Office. (See Tr. II at 280, Pg. ID 467.) Petitioner's counsel further stipulated that if Topacio were called as a witness, she would testify that the substance that Mirza turned over to police after the controlled buys was cocaine. (See id.) Topacio did not testify at the trial.

During closing arguments, Petitioner's counsel highlighted Petitioner's defense - that Petitioner did not sell cocaine to Mirza, but rather permitted Mirza to use Petitioner's scale to weigh cocaine that Mirza already had in his possession. (See Tr. II at 346-47, Pg. ID 533-34; see also ECF #9-11 at 44, Pg. ID 760.) This defense theory was undercut, however, by Sergeant Dare's testimony that he searched Mirza prior to each controlled buy to ensure that Mirza was not carrying any drugs. (See, e.g., Tr. II at 271-274, Pg. ID 458-61; id. at 283, Pg. ID 479.)

The jury convicted Petitioner of the four offenses with which he was charged. (See Tr. II at 372-73, Pg. ID 559-60.) In his direct appeal to the Michigan Court of Appeals, Petitioner argued that (1) his trial counsel was ineffective for failing to request separate trials on each of the charged offenses, and (2) his written confession was involuntary. (See ECF #9-7 at 9, Pg. ID 580.)

The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. See People v. Brown, No. 284568, 2009 WL 1883978 (Mich. Ct. App. June 30, 2009). Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same arguments. (See ECF #9-8 at 3-8, Pg. ID 648-53.) The Michigan Supreme Court denied the application "because [the Court was] not persuaded that the questions presented should be reviewed by th[e] Court." See People v. Brown, 777 N.W.2d 166 (Mich. 2010) (table).

Petitioner then filed a motion for relief from judgment in the state trial court (the "Motion for Relief from Judgment"). Petitioner sought relief on two grounds:

I. Defendant Ryan Brown was denied his due process right to a fair trial when exculpatory audio recordings that would have proved defendant was not the person who sold drugs to an informant and were lost during a 20-month delay in defendant's arrest and trial counsel was ineffective for failing to move for dismissal on such grounds.

II. Defendant Ryan Brown was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Section Twenty of Article One of the Michigan Constitution when trial counsel failed to investigate and when appellate counsel failed to raise the foregoing issue on direct appeal.

A. trial counsel was ineffective by failing to investigate and uncover evidence in support of defendant's claim at a Walker hearing that his statement was involuntarily made after he was threatened by police that if he did not cooperate his life and children would be taken away from him.

B. Cause and prejudice: appellate counsel was ineffective by failing to raise the foregoing issues on direct appeal satisfying the good cause requirement.

ECF #9-11 at 5, Pg. ID 721.

Petitioner later filed a Motion to Amend his Motion for Relief from Judgment (the "Motion to Amend"). (See ECF#9-12.) Therein, Petitioner sought to add the following additional grounds for relief:

III. The state violated the VI & XIV Amendment rights to a speedy trial and due process by conducting the trial more than two years after Brown's arrest which caused actual prejudice according to Barker v. Wingo.

A. Trial counsel has ineffective for failing to advise of, or demand/assert defendant's speedy trial rights.

B. Appellate counsel was ineffective for failing to raise these significant claims on direct appeal.

IV. The state violated the VI Amendment Confrontation Clause & XIV Amendment Due Process Clause when it admitted a lab report without supporting testimony which rendered the entire trial fundamentally unfair.

A. Trial counsel has ineffective for entering a conditional stipulation/failing to object to the error.

B.

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