Christian v. Hoffner, Case No. 13-CV-11491

• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
• Writing for the Court: HON. MARK A. GOLDSMITH
• Docket Number: Case No. 13-CV-11491
• Parties: KINO CHRISTIAN, #721306, Petitioner, v. BONITA HOFFNER, Respondent.
• Decision Date: 12 November 2014

KINO CHRISTIAN, #721306, Petitioner,
v.
BONITA HOFFNER, Respondent.

Case No. 13-CV-11491

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

November 12, 2014

HON. MARK A. GOLDSMITH

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (Dkt. 1), DENYING PETITIONER'S MOTIONS FOR APPOINTMENT OF COUNSEL (Dkt. 18) AND EVIDENTIARY HEARING (Dkt. 19) AS MOOT, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

Petitioner Kino Christian, confined at the Gus Harrison Correctional Facility in Adrian, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), in which he challenges his conviction for first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a); assault with intent to commit murder, Mich. Comp. Laws § 750.83; carrying a concealed weapon, Mich. Comp. Laws § 750.227; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b; and being a second felony habitual offender, Mich. Comp. Laws § 769.10. For the reasons stated below, the Court denies the petition for writ of habeas corpus.¹

II. BACKGROUND

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Petitioner was convicted following a jury trial in the Genesee County Circuit Court, in which he was tried jointly with his three co-defendants, Cquan Michael Hinton, Joshun Edwards, and Dartanion Edwards. The Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review, pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).

Evidence was presented at trial that defendants Christian and Hinton approached 14-year-old Robert Person on October 9, 2007, while Person was walking with Jarylle Murphy in the vicinity of the Regency apartment complex in Flint. Christian and Hinton accused Person of being a "snitch" and threatened to "get" him for snitching. Person was still with Murphy later in the day when Murphy saw all four defendants behind them. Murphy explained that he looked back because he is self-conscious about people being behind him. Murphy spoke to Person and then looked back at the group a second time. He saw the defendants pull out guns. Murphy ran away and heard gunshots as he was running. Person died from multiple gunshot wounds. A 7.62 by 39 millimeter fired bullet was recovered from Person's body during an autopsy.

The police later recovered a .38 caliber gun that was linked to shell casings that were found at the scene of the shooting. That gun belonged to William Harris's girlfriend, but the prosecution presented evidence that defendant Christian hid the gun behind a gas station following a different shooting incident on October 13, 2007, during which Perry Manuel was shot while operating a vehicle in which defendant Christian was a passenger. On October 16, 2007, Murphy viewed a photographic lineup and identified defendant Hinton as one of the persons in the group who shot Person. In November 2007, Murphy identified the other three defendants in photographic lineups.

Robert Moore, who was lodged in jail with defendants Christian and Joshun after they were arrested, testified at trial that defendants Christian and Joshun both told him that they had killed Person and that both sought his help in killing Murphy. Another prosecution witness, Ashlie Dye, who was familiar with defendant Christian and was in the area where Person was shot, testified that she saw defendant Christian shooting at Person.

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Defense proofs indicated that three of the defendants ended up at the Terrace apartments, which is located south of the Regency apartment complex, on the night of the shooting. Defendant Dartanion presented evidence that he was with two friends when the shooting occurred, and that they eventually drove to the Terrace apartments, where Dartanion's brother Joshun told them about a boy being killed in front of the Regency apartment complex. Defendant Joshun presented evidence that he was in the parking lot at the Terrace apartments when the shooting occurred, and that he learned about the shooting from Mickey Jones, who was at the Terrace apartments. Defendant Joshun also stated that he spoke with defendant Hinton while Joshun was in the parking lot. Defendant Christian presented evidence that he was selling drugs on the night of the shooting. He testified that Manuel, Harris, and a person known as "Pooh Bear" were present, but that these individuals left with guns after receiving a telephone call. Various witnesses also testified regarding Harris and Manuel making statements about shooting Person. Jesse Mays testified that he killed Manuel, but it was determined to be a justifiable homicide. Mays testified that Manual told him approximately three weeks before he died that he had shot Person and that all four defendants were innocent.

People v. Christian, No. 291578, 2011 WL 4424347, at *2-3 (Mich. Ct. App. Sept. 22, 2011).

After his conviction, Petitioner filed a motion for a new trial (Dkt. 13-3), which was denied. People v. Christian, No. 08-22018-FC (Genesee Cnty. Cir. Ct. Aug. 16, 2010), recons. denied No. 08-22018-FC (Genesee Cnty. Cir. Ct. Sept. 7, 2010) (Dkts. 13-5, 13-6). Petitioner's conviction was affirmed on appeal. People v. Christian, No. 291578, 2011 WL 4424347, at *21 (Mich. Ct. App. Sept. 22, 2011), recons. denied No. 291578 (Mich. Ct. App. Nov. 21, 2011) (Dkt. 12-6), leave denied 819 N.W.2d 874 (Mich. 2012).

Petitioner seeks a writ of habeas corpus on the following six grounds:

i. "That the repeated instances of exclusion of the public during Petitioner's trial[,] including during voir dire, violated his constitutional right to a public trial."

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ii. "That Petitioner was deprive [sic] of his Sixth Amendment right to be present at critical stages of the trial when he was excluded from the proceedings during the courts [sic] interview with juror 11, and the courts [sic] interview with the other eleven juror's [sic]."

iii. "That Petitioner suffered sever [sic] prejudice and was denied his guaranteed and constitutionally protected right to due process when the trial court abused it's [sic] discretion by erroneously instructing the jury on flight, where no evidence produced at trial supported giving such and [sic] instruction."

iv. "That Petitioner was deprived of his constitutional right to present a defense which violated the Sixth and Fourteenth Amendment of the U.S. Constitution, when the trial court denied him the opportunity to utilize the recording of the wire worn by the prosecution's witness Moore during the presentation of the defense."

v. "That the determination by the Michigan Court of Appeals that the prosecutor did not commit misconduct by its [sic] repeated introduction of improper and highly prejudicial impeachment evidence on central issues of the case after two of its key witnesses, Marcus Turner, and Tobias Gatewood denied knowledge of the relevant events and provided no other substantive testimony for which impeachment evidence was proper, was contrary to clearly established law as determined by the U.S.S.C."

vi. "That defense counsel was constitutionally ineffective when he (A) failed to object to the repeated closure's [sic] of the courtroom to the public[,] (B) failed to object to Mr. Christian's repeated removal from the courtroom during critical stages of the proceedings[,] and (C) failed to object to the prosecution's improper use of impeachment ecidence [sic]."

See Pet. at 2-3.

III. STANDARD OF REVIEW

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Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, imposes the following standard of review for habeas cases:

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 proceeding.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.

The Supreme Court has explained that a "federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Thus, the AEDPA "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, 559 U.S. 766, 773 (2010) (quotation marks and citations omitted). A

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"state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quotation marks). The Supreme Court has emphasized "that even a strong case for...