Clark v. McLemore
| Decision Date | 14 October 2003 |
| Docket Number | No. 02-40134.,02-40134. |
| Citation | 291 F.Supp.2d 535 |
| Parties | Timothy H. CLARK, Petitioner, v. Barry McLEMORE, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Timothy Clark, Lapeer, MI, Pro se.
Raina I. Korbakis, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Barry McLemore, Warden, respondent.
Petitioner Timothy H. Clark is a state inmate currently incarcerated at the Thumb Correctional Facility in Lapeer, Michigan. He has filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his state court convictions for first-degree murder and felony firearm. For the reasons set forth below, the Court denies the petition.
Following a bench trial in Recorder's Court for the City of Detroit, Petitioner was convicted of first-degree murder, felony murder, and felony firearm. Petitioner was tried jointly with co-defendant Samuel Moore. On May 21, 1991, Petitioner was sentenced to life imprisonment for the first-degree murder and felony murder convictions, and two years imprisonment for the felony firearm convictions.
Petitioner filed an appeal in the Michigan Court of Appeals, presenting the following claims: insufficient evidence to sustain the first-degree murder and felony murder convictions, inadequate findings of fact in the trial court to support his convictions, a violation of the right of confrontation, and a violation of the guarantees against double jeopardy by convictions for both first-degree murder and felony murder. The Michigan Court of Appeals affirmed Petitioner's convictions and sentences for first-degree murder and felony firearm, and vacated his conviction and sentence for felony murder. People v. Clark, No. 144132 (Mich.Ct.App. Apr. 13, 1994).
Petitioner filed an application for leave to appeal to the Michigan Supreme Court, presenting the same claims presented to the Michigan Court of Appeals, with two additional claims: ineffective assistance of trial counsel and ineffective assistance of appellate counsel. The Michigan Supreme Court denied leave to appeal. People v. Clark, No. 99875 (Mich. Oct. 28, 1994).
Thereafter, Petitioner filed a motion for relief from judgment in the trial court, presenting the following claims: ineffective assistance of trial counsel, ineffective assistance of appellate counsel, violation of the right to due process, denial of a fair trial, and the cumulative effect of alleged errors. The trial court denied the motion for relief from judgment. People v. Clark, No. 90-012204 (Wayne County Circuit Court May 19, 2000). Petitioner filed applications for leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Court of Appeals and the Michigan Supreme Court. Both state appellate courts denied leave to appeal. People v. Clark, No. 234355 (Mich.Ct.App. Sept. 13, 2001); People v. Clark, 466 Mich. 855, 643 N.W.2d 575 (2002).
Petitioner then filed the pending petition for a writ of habeas corpus, presenting the following claims: inordinate and inexcusable delay in responding to his post-conviction motion, denial of his constitutional right to the effective assistance of trial counsel, denial of effective assistance of appellate counsel, denial of a fair and impartial trial by a fair and impartial finder of fact, and the cumulative effect of alleged errors.
This Court ordered Respondent to file an answer to the habeas corpus petition on or before August 15, 2002. Respondent failed to do so. Instead, Respondent filed a motion to enlarge the response time on August 16, 2002. Because Respondent failed to show excusable neglect for missing the filing deadline, the Court denied Respondent's motion for an extension of time on August 19, 2002. Respondent filed a Motion for Leave to File Answer Instanter on September 27, 2002, and attached a "Motion to Dismiss for Failure to Comply with the Statute of Limitations." The Court denied the Motion for Leave to File Answer Instanter, and ordered that the untimely Motion to Dismiss not be accepted for filing. See Order, filed November 7, 2002. The Court held that the petition for a writ of habeas corpus would be considered without reference to any untimely pleadings. Id. Further, the Court ordered Respondent's untimely Notice of Filing of Rule 5 Materials and Index of Record stricken. Id.
Petitioner's conviction arises out of the shooting death of Samuel Keith Moore (Keith) on October 26, 1990, in Detroit. The victim was not related to co-defendant Samuel Augustus Moore (Samuel). To avoid confusion and since several witnesses refer to the victim as Keith, the Court will refer to the victim as Keith and the co-defendant as Samuel. Petitioner and co-defendant Samuel both worked for Keith at Moore Truck and Trailer Rental.
Harry Ayres testified that he went to Moore Truck and Trailer Rental on the morning of October 26, 1990. No one appeared to be working behind the counter. After Mr. Ayres rapped on the plexiglass several times, he decided to enter the work area through the employee entrance. When he entered the employee area, Mr. Ayres saw blood on the floor. He advised his fiancee to run across the street to call 911. He proceeded to enter the work area and found Keith lying on the floor. By stipulation, the autopsy report was entered into evidence. The report indicated that Keith Moore died from two gunshot wounds to the head.
Police Sergeant Charles Davis testified that he arrested Timothy Clark and Samuel Moore separately on October 27, 1990, in connection with the shooting of Keith Moore. After being advised of his constitutional rights, Samuel stated, Tr. 5/1/91, p. 49. The trial court overruled a defense objection from Petitioner's attorney and allowed the testimony to be admitted against Samuel only.
Sergeant Ronald Sanders testified that, on October 27, 1990, after advising Petitioner of his constitutional rights, he took a statement from Petitioner. Sergeant Sanders testified that Petitioner stated that he went to Keith's business on October 26, 1990, to discuss wages that Petitioner claimed Keith owed him. Petitioner and Keith began arguing. Keith stood up and placed his hands inside his coat. Petitioner stated that he knew the victim carried a gun, so, when he saw Keith reach into his coat, Petitioner tried to leave, but the door was shut. Petitioner stated that he was scared when he found the door shut. He then pushed Keith to the side, and shot him with his own .25 caliber handgun. Petitioner further stated that, after he shot Keith, Samuel entered Keith's office. When Samuel saw what had happened, he asked Petitioner if he had gone through Keith's pockets. Petitioner said that he had not, so Samuel searched Keith's pockets. Petitioner stated that he then left the building.
Petitioner testified in his own defense. He testified that, on the day of the shooting, he was not scheduled to work, but went to Moore's Truck Rental to discuss unpaid wages with Keith. After discussing their disagreement for several minutes, the discussion became heated. Keith told Petitioner that he should leave the office if he was displeased. Keith then stood up and put his hands inside his jacket. Petitioner testified that he knew Keith carried a handgun and thought Keith was going to shoot him. Petitioner pushed Keith and tried to leave the office. He stumbled, and could not easily get to the door. Petitioner testified that he saw Keith's hands still inside his coat. He thought Keith was going to shoot him, so he shot Keith. Petitioner then left the building. He ran into Samuel, and told Samuel that he had shot Keith.
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.
28 U.S.C. § 2254(d) imposes the following standard of review on federal courts reviewing applications for a writ of habeas corpus:
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. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429 (6th Cir.1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1)1; see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir.1995) ().
The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:
A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that...
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