Davis v. Booker
| Citation | 594 F.Supp.2d 802 |
| Decision Date | 22 January 2009 |
| Docket Number | Case No. 02-CV-75063. |
| Parties | Thomas DAVIS, Petitioner, v. Raymond BOOKER, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions for second-degree murder and possession of a firearm during the commission of a felony. The Court appointed counsel to represent Petitioner. Counsel filed an amended petition. The Court has conducted an evidentiary hearing regarding Petitioner's ineffective assistance of trial and appellate counsel claims. The Court grants a conditional writ of habeas corpus because Petitioner was deprived of his right to the effective assistance of trial and appellate counsel and because the prosecutor committed misconduct. The Court finds that trial and appellate counsel were ineffective in failing to locate and interview a key witness, Todd Selma. Trial counsel was also ineffective in failing to meet privately with Petitioner until eight days before trial and failing to request criminal histories for prosecution witnesses. Finally, the Court finds that the prosecutor engaged in misconduct by improperly vouching for the credibility of a prosecution witness.
Petitioner's convictions arise from the shooting death of Troy Prewitt on September 14, 1998, in the city of Inkster. It was undisputed at trial that Petitioner and John Wilder went to a strip-mall parking lot in Inkster to obtain drugs on that date. The prosecution's theory of the case was that the men went to buy drugs "on credit" because neither man had any cash. After Derrick Glaze refused to give the men drugs on credit, Troy Prewitt, another drug dealer entered the parking lot. Wilder asked Prewitt to give the men drugs on credit, Prewitt declined. According to the prosecution's case, moments later, Prewitt approached the passenger side of Petitioner's vehicle, where Petitioner was seated. The men spoke and then Petitioner grabbed Prewitt's drugs, while Wilder, in the driver's seat, slowly drove off. Prewitt ran alongside the car, trying to retrieve his drugs. A shot was fired and Prewitt fell to the ground.
Wilder, who was arrested later that evening, implicated Petitioner as the passenger and the shooter. Wilder admitted that he and Petitioner went to the parking lot to obtain drugs on credit and admitted he intended to drive off without paying for the drugs, but he denied knowing defendant had a gun before hearing the gunshot.
Two witnesses, Dean Rochelle and Derrick Glaze, identified Petitioner as the shooter. Dean Rochelle testified that he was present at the scene of the shooting for the purpose of selling drugs. At approximately 2:00 p.m., he observed Wilder drive in the parking lot in a black station wagon. Petitioner was inside the car with him. Troy Prewitt arrived in the parking lot, exited his vehicle, and approached Petitioner and Wilder's car. Rochelle testified he saw Petitioner, seated in the passenger seat, grab Prewitt's drugs. The vehicle began moving. Rochelle heard a gunshot and saw Petitioner shoot Prewitt. During cross-examination, Rochelle admitted that, on the day he gave a statement to police regarding this case, he also gave a statement regarding another murder case. He admitted that the information he gave regarding the other murder case was fabricated because he was pressured by police.
Derrick Glaze testified that he was present at the scene of the shooting for the purpose of selling drugs. Wilder, who had arrived at the parking lot with Petitioner, attempted to obtain drugs from Glaze on credit. Glaze declined to extend credit. Glaze testified that he observed Wilder exit his vehicle to talk to Prewitt. Wilder then reentered his vehicle and Prewitt stood on the passenger side, where Petitioner was seated. Glaze testified that Petitioner grabbed a bag of drugs from Prewitt and the car began moving. He saw Petitioner draw a gun and heard a gunshot. Glaze denied seeing anyone else in the vehicle, but, at the preliminary examination, testified that he saw a black woman in the vehicle. When initially questioned by police immediately after the shooting, Glaze failed to inform police that he saw who fired the gun or that he saw Petitioner with a gun. In a written statement given to police, Glaze also failed to mention that he saw Petitioner with a gun.
The Court will discuss additional pertinent testimony below.
Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of second-degree murder and possession of a firearm during the commission of a felony. He was sentenced as a habitual offender to 30 to 60 years' imprisonment for the second-degree murder conviction, to be served consecutively to two years' imprisonment for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals raising the following claims:
I. There is reversible error where the prosecutor improperly vouched for a disputed accomplice witness who clearly had criminal liability.
II. A trial court commits reversible error by failing to make a prompt response to the jury's request to rehear the testimony of the disputed accomplice, John Wilder, a res gestae witness, Derrick Glaze, who had made false statements to the police and the medical examiner.
III. Thomas Davis was denied his right to counsel where his appointed attorney was not present during deliberations when the jury made a request to rehear testimony, which the trial just did not respond to promptly.
IV. The trial court commits error where, after being apprised of defendant's request for production of a witness who heard John Wilder confess to being the "shooter," fails to conduct a hearing on the police's supposed efforts to locate the witness.
V. Where defendant made a pro per request for a hearing on ineffective assistance of counsel before sentencing, the trial court should have conducted a hearing allowing defendant to make a factual record.
Petitioner also filed a motion to remand for an evidentiary hearing pursuant to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973).
The Michigan Court of Appeals remanded the matter for an evidentiary hearing on Petitioner's ineffective assistance of counsel claim.
Following the hearing, Petitioner filed a supplemental brief raising the following additional ineffective assistance of counsel claims:
I. Counsel was ineffective in failing to produce Todd Selma as a defense witness.
II. Counsel was ineffective in failing to impeach a prosecution witness with a prior retail fraud felony conviction.
III. Petitioner was deprived of his right to counsel because counsel was absent when the jury requested testimony be read back.
The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Davis, No. 221703, 2001 WL 849870 (Mich.Ct. App. July 27, 2001). Petitioner's subsequent application for leave to appeal in the Michigan Supreme Court was denied. People v. Davis, 465 Mich. 959, 640 N.W.2d 876 (2002).
Petitioner then filed a petition for habeas corpus relief on December 24, 2002. Thereafter, he filed an amended petition asserting a claim of ineffective assistance of appellate counsel. Petitioner admitted that the ineffective assistance of appellate counsel claim had not been exhausted in state court. The Court, therefore, administratively closed the case and stayed further proceedings to allow Petitioner to return to state court to exhaust his ineffective assistance of appellate counsel claim.
Petitioner filed a motion for relief from judgment in state court raising the following claims:
I. Defendant was deprived of his right to effective assistance of appellate counsel in several ways including his failure to file the pro per pleading or amend his own brief to add the additional witnesses or to secure the presence of Mr. Todd Selma, Mr. James Askew, Mr. Julius Pasley, and Mr. Preston for the Ginther hearing, and his failure to consolidate Docket No. 218315 on his direct appeal.
II. Defendant was deprived of his right to effective assistance of appellate counsel for failing to raise the claim that the prosecutor suppressed and withheld evidence favorable to the defense on direct appeal.
III. Is the payment for appellate counsel in this case, and generally, so inadequate as to constitute a denial of his right to reasonable compensation and a violation of the Michigan Constitution and the Sixth Amendment right to the effective assistance of counsel where there is no provision for the appointment of investigators or other support personnel to assist appellate counsel in locating and interviewing witnesses and the payment to attorneys is too low?
The trial court denied the ineffective assistance of appellate counsel claims for lack of merit. People v. Davis, No. 98-010911-01 (Wayne County Circuit Court Aug. 26, 2005).
Petitioner filed applications for leave to appeal in the Michigan Court of Appeals and Michigan Supreme Court. Both Michigan appellate courts denied leave to appeal "for failure to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)." People v. Davis, No. 271181 (Mich.Ct.App. Dec. 27, 2006); People v. Davis, 478 Mich. 869, 731 N.W.2d 717 (2007).
Petitioner returned to federal court and his habeas proceeding was reopened. Petitioner raises the following claims in his habeas petition:
I. A due process violation occurred where the prosecution improperly vouched for a disputed accomplice witness who clearly had criminal liability.
II. The trial...
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