Daniel v. Palmer

• Citation: 719 F.Supp.2d 817
• Decision Date: 30 June 2010
• Docket Number: Civil No. 2:07-CV-12058.
• Parties: Marvel DANIEL, Petitioner, v. Carmen PALMER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

719 F.Supp.2d 817

Marvel DANIEL, Petitioner,

v.Carmen PALMER, Respondent.

Civil No. 2:07-CV-12058.

United States District Court,

E.D. Michigan,

Southern Division.

June 30, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Bradley R. Hall, Nancy L. McGunn, Federal Defender Office, Detroit, MI, for Petitioner.

Andrew L. Shirvell, MI Dept. of Atty. Gen., Lansing, MI, for Respondent.

OPINION AND ORDER CONDITIONALLY GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS

ARTHUR J. TARNOW, Senior District Judge.

Marvel Daniel, (“petitioner”), presently confined at the Michigan Reformatory in Ionia, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ¹ In his application, filed both pro se and through Nancy L. McGunn and Bradley R. Hall, petitioner challenges his conviction for second-degree murder, M.C.L.A. 750.317. Because his counsel failed to investigate, present a defense and call witnesses, the petition for writ of habeas corpus is CONDITIONALLY GRANTED.

I. Background

Petitioner was originally charged with first-degree felony murder and first-degree premeditated murder. Following a bench trial in the Wayne County Circuit court, petitioner was convicted of the lesser included offense of second-degree murder. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming his conviction, 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):

Derrick Mitchell was shot and killed on July 12, 2003, at approximately 9:30 p.m., while in his automobile on Novara Street in Detroit. Mitchell, a known drug dealer, was shot by an unknown assailant, who was observed exiting from the passenger side of defendant's gray conversion van during the incident. After shooting Mitchell, defendant's passenger removed a gray case or object out of Mitchell's car. There was testimony that it was common knowledge in the neighborhood that Mitchell hid his drugs in stereo equipment in his car. One witness testified that defendant was driving his van at the time of the shooting. Two other witnesses also testified that defendant was driving his van at the time of the shooting, but they equivocated on this point at trial, stating that they assumed defendant was driving because they recognized the van as belonging to him. One of the prosecution's witnesses, Darius Scott, testified that, shortly after the shooting, defendant contacted him by telephone and simply stated, “yep, yep, yep, yep.” Before that time, Scott and defendant had discussed the shooting death of another drug dealer, Shawn, who sold drugs with defendant out of a house on Novara Street. Scott testified that he believed Mitchell was involved in Shawn's shooting. Defendant was arrested five months after the shooting.

Defendant offered an alibi defense. His girlfriend testified that he was at her home from 2:00 p.m. until approximately midnight on the date Mitchell was shot. During this timeframe, she had the keys to defendant's gray conversion van, and the van remained parked nearby. She testified that defendant's van could not have been near Novara Street at the time of the shooting. People v. Daniel, No. 257658, 2005 WL 3440436, at *1 (Mich.Ct.App. December 15, 2005).

Following petitioner's conviction, a Ginther hearing was conducted on petitioner's ineffective assistance of counsel claims on April 25, 2005. ² After hearing testimony and arguments from appellate counsel, the trial court denied petitioner's motion for a new trial.

Petitioner's conviction was affirmed on appeal. Id., reconsideration den. February 15, 2006; lv. den. 476 Mich. 858, 718 N.W.2d 337 (2006). Petitioner subsequently filed a petition for a writ of habeas corpus on the following grounds:

I. Petitioner was denied his state and federal constitutional rights to effective assistance of counsel by his attorney's failure to investigate, present a defense, call witnesses and make objections.

II. Petitioner was denied his state and federal constitutional rights by defense counsel's failure to move for disqualification of the trial court where that court knew that petitioner had another pending murder charge.

III. Petitioner was denied his state and federal constitutional rights by the improper closing argument where the prosecutor argued facts not in evidence and vouched for the credibility of his witnesses and defense counsel failed to object.

IV. Petitioner's state and federal constitutional rights were violated when defense counsel failed to object to the scoring of Prior Record Variable 6 and Offense Variables 5 and 6 of the sentencing guidelines, which were incorrectly scored, and where the trial court used Petitioner's sentence to send a message to the community.

On November 4, 2008, this Court granted petitioner an evidentiary hearing with respect to petitioner's first claim, which alleges that counsel was ineffective for failing to call additional alibi witnesses on his behalf at his trial. The Court also ordered an evidentiary hearing on petitioner's second claim that counsel was ineffective for failing to move to disqualify the trial court judge from presiding over his bench trial. The Court appointed counsel to represent petitioner at this evidentiary hearing and to file a supplemental brief. See Daniel v. Palmer, No. 2008 WL 4826297 (E.D.Mich. November 4, 2008). On September 11, 2009, this Court granted Petitioner's motion to expand the scope of the evidentiary hearing to permit petitioner to present evidence relating to his claim that counsel was ineffective for failing to investigate two eyewitnesses to the crime. An evidentiary hearing was conducted on petitioner's ineffective assistance of counsel claim on February 22, 2010. Petitioner and respondent have now filed supplemental briefs.

II. Standard of Review

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.

28 U.S.C. § 2254(d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir.1997).

Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1).

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, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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, 120 S.Ct. 1495. 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 410-11, 120 S.Ct. 1495.

III. Discussion

A. I. Petitioner was denied his state and federal constitutional rights to effective assistance of counsel by his attorney's failure to investigate, present a defense, call witnesses and make objections.

II. Petitioner was denied his state and federal constitutional rights by defense counsel's failure to move for disqualification of the trial court where that court knew that petitioner had another pending murder charge.

Petitioner's primary allegation is that counsel was ineffective for failing to investigate Dollie Muex and Shawn Patrick O'Neil, two eyewitnesses to the crime, as possible defense witnesses. These witnesses indicated that a white mini-van was used during the shooting, which was different in style and color from petitioner's van. Petitioner further contends that these witnesses told police that they saw more than one individual going into the victim's car after the shooting, which would have contradicted Simon Melton's testimony that he only observed one individual remove a VCR from the victim's car after the shooting.

Defense counsel testified at the Ginther hearing that he did not call Muex at trial, because she told the police that a van was involved in the chase of the victim's car, thus, corroborating the other witnesses' testimony. Counsel testified that he did not call O'Neil to testify because even though O'Neil claimed to see more than one person go into the victim's car following the shooting, counsel did not like the fact that O'Neil would testify about anyone going into the victim's car, because this would corroborate that a larceny had taken place so as to support a conviction for first-degree felony murder. (Tr. 4/25/2005, pp. 14-15).

Petitioner testified at the Ginther hearing that he and defense counsel had discussed the testimony of Mr. O'Neil and Ms. Muex, and that he had wanted his defense counsel to call those two individuals as witnesses at his trial. ( Id., p. 33). He also told trial counsel that he believed he needed an investigator to assist in his case. ( Id., p. 38).

This Court conducted an evidentiary hearing on petitioner's claim. Marveline Daniel, petitioner's mother, testified that in July 2003, at the time of the shooting, she owned a silver Chevy conversion van, which is depicted in Petitioner's Exhibits 1-A, 1-B, and 1-C. (Tr. 2/22/10, p. 7). Ms. Daniel testified that petitioner was the primary driver of the vehicle at...