Daly v. Burt
| Decision Date | 25 March 2009 |
| Docket Number | Civil Case No. 05-40186. |
| Citation | 613 F.Supp.2d 916 |
| Parties | Kevin DALY, Petitioner, v. S.L. BURT,<SMALL><SUP>1</SUP></SMALL> Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Chari K. Grove, State Appellate Defender Office, Detroit, MI, for Petitioner.
Brad H. Beaver, Michigan Department of Attorney General, Lansing, MI, for Respondent.
ORDER GRANTING PETITIONER'S APPLICATION FOR WRIT OF HABEAS CORPUS
Kevin Jonathan Daly ("Petitioner"), presently on parole under the custody of the Ann Arbor Parole Office, Ann Arbor Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254.2 In his pro se application, Petitioner challenges his conviction for attempted armed robbery, M.C.L. §§ 750.92 and 750.529; and for conspiracy to commit armed robbery, M.C.L. §§ 750.157a and 750.529. The case was referred to Magistrate Judge Paul J. Komives, who issued a Report and Recommendation recommending that the Court grant habeas corpus relief. The magistrate judge served the Report and Recommendation on the parties and notified the parties that any objections must be filed within ten days of service. Respondent filed timely objections. For the reasons stated below, the Court overrules Respondent's objections and adopts the Report and Recommendation. Accordingly, Petitioner's application for writ of habeas corpus is CONDITIONALLY GRANTED.
On February 21, 2002, police obtained a tip that a robbery was to occur at a McDonald's restaurant in South Lyon, Michigan. Pursuant to the tip, two police officers went to the McDonald's and found Petitioner and Grant Huntsman near a dumpster behind the restaurant. The officers found a ski mask on the ground near Petitioner and a hammer in Petitioner's pocket. There was also a ski mask on the ground near Huntsman and a Maglite flashlight on Huntsman's person. In addition, the police found Roger Meloche waiting in Huntman's car in a nearby apartment complex. At the station in police custody, Huntsman and Meloche provided written statements. Petitioner was also interrogated, but his responses were not written down or recorded.
Huntsman, Meloche, and Petitioner were tried together with the same jury in Oakland County Circuit Court. Before trial, Meloche moved for severance or, in the alternative, for separate juries, on the grounds that the introduction of the statements of the other two defendants would violate his Sixth Amendment rights to confrontation and cross-examination. In the an opinion and order denying the motion, the trial court found that there was no evidence that the defenses were mutually antagonistic or mutually exclusive. Further, the trial court held that "all of the statements are admissible against each defendant as statements against interest under MRE 804(b)(3)." People v. Meloche, No. 02-183788-FC, at 3 (Wayne Cty. Cir. Ct., Aug. 5, 2002). The trial court found that the Confrontation Clause was not violated as the statements bore sufficient indicia of reliability as required by People v. Poole, 444 Mich. 151, 162-163, 506 N.W.2d 505 (1993) and Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The trial court concluded that the defendants were not entitled to separate juries or trials.
At trial, Petitioner's defense theory was that he did not intend to commit armed robbery, but instead intended to break and enter the McDonald's restaurant to steal money from the safe. Both Meloche and Huntsman did not testify at trial, but the prosecution was able to admit their statements into evidence through one of the arresting officers, Officer Baker. Baker testified regarding statements made by all defendants after the arrest and while under custody.
According to Officer Baker's testimony, Petitioner told Baker that Huntsman and Petitioner intended to rob the manager when he left the restaurant with the nightly deposit, that Petitioner was not going to hurt the manager with the hammer but only carried the hammer in case a dispute arose among the defendants regarding the division of the proceeds, and that Meloche was the getaway driver and lookout.
Baker also testified to statements made by Meloche and Huntsman. According to Baker's testimony, Meloche told Baker that the plan was to rob the manager as he left the restaurant, and that Meloche did not really want to be involved, but because of peer pressure, he agreed to the least amount of participation. Officer Baker testified that Huntsman told Baker that the plan was to rob the night manager and that Huntsman did not mention breaking into the restaurant. Baker further testified that none of the defendants had told him of an intention to break into the restaurant to steal from the safe. Both Meloche and Huntsman's written statements were read and admitted into evidence. After presenting the above evidence, the prosecution rested and all three defendants moved unsuccessfully for directed verdicts. Specifically, Petitioner moved to have the charges reduced to conspiracy to commit unarmed robbery and attempted unarmed robbery.
After his failed motion, Petitioner testified on his own behalf that his intention was to break into the restaurant and to steal money from the safe. Petitioner testified that it had been his intention to break the window with the hammer, enter the restaurant, open and empty the safe, and leave. Petitioner further explained that Huntsman carried the flashlight to illuminate the dial on the safe. Petitioner claimed he knew the combination to the safe since he was a former employee of the restaurant. Petitioner explained that they were going to wear the ski masks because of the surveillance cameras in the restaurant. In addition, Petitioner pointed out that he and Huntsman were not positioned to accost the night manager because the manager would exit the side door near his car, and Petitioner and Huntsman would have had to cross a long distance in full view of the street and manager in order to reach him. Petitioner further stated that he did not tell Officer Baker that he intended to rob the manager. Petitioner maintained that he told the officer that they were waiting for the manager to leave so they could break into and rob the restaurant.
During deliberations, the jury requested copies of the written statements of all three defendants. They were only provided copies of Meloche's and Huntsman's statements, as Petitioner had not written one.
On August 12, 2002, the jury returned a verdict. Petitioner was found guilty of attempted armed robbery and conspiracy to commit armed robbery. Subsequently, Petitioner appealed his conviction. On February 12, 2004, the Michigan Court of Appeals affirmed Petitioner's conviction after finding no merit to his claims. Petitioner sought leave to appeal these same issues to the Michigan Supreme Court. On October 28, 2004, the Michigan Supreme Court denied Petitioner's application for leave to appeal. Subsequently, Petitioner filed an application for a writ of habeas corpus on the same issues, which is now before this Court. Petitioner argues that the trial court's introduction of out-of-court statements of the non-testifying codefendants and the trial court's refusal to grant Petitioner a separate trial violated his rights under the Confrontation Clause by ultimately denying him a fair trial. In the alternative, Petitioner argues that his federal constitutional right to effective assistance of counsel was violated by his counsel's failure to object to the introduction of his codefendants' statements and his failure to move for separate trials or for separate juries.
In his Report and Recommendation, the magistrate judge concluded that the state courts' resolution of Petitioner's claims were contrary to, and involved an unreasonable application of, clearly established federal law. Accordingly, the magistrate judge recommended that the Court grant Petitioner habeas corpus relief.
The Court's standard of review for a magistrate judge's Report and Recommendation depends upon whether a party files objections. If a party objects to portions of the Report and Recommendation, the Court reviews those portions de novo. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3). De novo review in these circumstances requires at least a review of the evidence before the magistrate judge; the Court may not act solely on the basis of a magistrate judge's Report and Recommendation. See 12 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 3070.2 (1997); see also Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir.1981). After reviewing the evidence, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations" of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). In this case, the respondent has filed objections to the magistrate judge's Report and Recommendation. Accordingly, the Court has conducted a de novo review of the record.
The standard of review for habeas corpus relief from state court is governed by the following statute:
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...
To continue reading
Request your trial
-
Strickland v. Warden
...123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (citations omitted) (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495). Daly v. Burt, 613 F.Supp.2d 916, 935 (E.D. Mich. 2009). The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides......
-
Guzman v. Woods
...a violation of the right to effective assistance of counsel, a habeas petitioner must satisfy two components. See Daly v. Burt, 613 F. Supp. 2d 916, 944 (E.D. Mich. 2009). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made error......
- Stepp v. Swift
-
Hairston v. City of Detroit
...to Federal Rule of Evidence 201(c), the Court may take judicial notice of the information provided on OTIS. See Daly v. Burt, 613 F. Supp. 2d 916, 920 n.2 (E.D. Mich. 2009); Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 821 n.3 (E.D. Mich. ...