Diaz v. Howes

• Decision Date: 09 February 2015
• Docket Number: Case No. 1:09-cv-610
• Parties: MIGUEL DIAZ, Petitioner, v. CAROL R. HOWES, Respondent.
• Court: U.S. District Court — Western District of Michigan

MIGUEL DIAZ, Petitioner, v. CAROL R. HOWES, Respondent.

Case No. 1:09-cv-610

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 9, 2015

Hon. Robert J. Jonker

REPORT AND RECOMMENDATION ON REMAND

I. Introduction

Petitioner, Miguel Diaz, is a prisoner currently incarcerated at a Michigan correctional facility. Diaz, through counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The undersigned reviewed the petition and recommended that it be dismissed. See Report and Recommendation ("R&R") (June 15, 2012) (docket no. 24). In reaching this determination, the undersigned noted the deficiencies in the materials provided to the Court by both petitioner's counsel and respondent's counsel. The parties' briefing of the habeas issues was, to say the least, incomplete and confusing. Petitioner filed objections to the R&R which were based, in large part, on 106 pages of documents which were not part of this Court's record and which had not previously been submitted to the Court. For her part, respondent filed 129 pages of supplemental Rule 5 materials which included one of Diaz' post-trial motions. See Rule 5 material (docket no. 27). After reviewing the objections, the District Judge remanded this matter to the undersigned for consideration of the issues "on the complete record." See Order of Remand (docket no. 30). After determining that the additional records submitted by the parties were themselves incomplete, theundesigned directed respondent to file supplemental Rule 5 materials which related to all of petitioner's state court criminal proceedings. In response to this motion, respondent filed an additional 988 pages of Rule 5 materials. See Rule 5 materials (docket no. 32). Having finally received a complete record of petitioner's state criminal proceedings, the Court is now in a position to address Diaz' habeas petition.

II. Factual Background

On January 26, 1998, Diaz was charged in two-count felony information charging him with conspiracy to deliver cocaine (Count 1) and the delivery of cocaine (Count 2). Information (docket no. 32-2 at p. ID# 581). The trial court granted petitioner's motion to quash the delivery charge, but denied the motion with respect to the conspiracy charge. Following a jury trial in Branch County, Diaz was convicted of conspiracy to deliver between 225 and 650 grams of a mixture containing cocaine, M.C.L. §§ 750.157a and 333.7401(2)(a)(ii). See People v. Diaz, No. 227045, 2002 WL 31450796 at *1 (Mich. App. Nov. 1, 2002).¹ On March 22, 2000, Branch County Circuit Court Judge Michael H. Cherry (some times referred to as the "trial court" or "Judge Cherry") sentenced him to a term of twenty to thirty years imprisonment. Id.; Sent. Trans. (March 22, 2000) (docket no. 15). Diaz' conviction arose from the following facts established at trial:

Just after midnight on June 15, 1997, the Branch County Sheriff's Department and several other law enforcement agencies executed simultaneous search warrants on two homes in Branch County. They also made twenty-two arrests. The search and arrest warrants were the culmination of an eighteen-month investigation. The main target of that investigation was Christopher Smith. He and his wife Brenda were arrested during the raid on his home. Janet Palmateer and Wendy Smith, Christopher's sister, were arrested at the raid on Janet's home.

Christopher, Brenda and Janet were arrested for delivery of cocaine. Wendy was arrested for disorderly conduct.

After Wendy posted bond and obtained release from jail, she contacted Sergeant Dennis Gatke, who was in charge of the narcotics investigations. She wanted to assist her family and friends in getting out of jail. Janet, who was still in jail, also contacted Gatke. After speaking with the women separately, Gatke set up telephone surveillance at Janet's home. Wendy, who agreed to cooperate with police, planned to handle recorded telephone calls from Janet's home. Three telephone calls between Wendy and defendant were recorded between June 18 and June 20, 1997. [FN1] During the calls, talking in slang, Wendy and defendant arranged a transaction of cash for "shit," "junks," "product," or "stuff." Wendy testified that they were discussing the sale of cocaine. Defendant testified that they were discussing the sale of cheap cars. [FN2] Calls between Wendy and Carlos Reyes, as well as calls between Wendy and Luis Soto, were also recorded. The tapes were transcribed and played for the jury.

[FN1. Gatke testified that he knew of defendant's existence before speaking with Wendy and Janet. Christopher's home was in close proximity to the jail and Gatke drove by it several times a day. During his investigation, he "ran" the license plate of a car that he saw outside of Christopher's house. It was registered to defendant.]

[FN2. Defendant's testimony in this regard was lacking. He could not innocently explain all of the statements and language heard on the tapes. For example, he could not explain the discussion about the price per "OZ." He admitted that he did not sell cars by the OZ.]

Wendy testified that she had known defendant for six or eight months before her arrest. Wendy also testified that she had previously acted as a courier for Christopher, and that she had met defendant twenty or thirty times in Chicago. Wendy would take money from Christopher and bring it to defendant. She was usually not privy to the amount of money she was carrying, but she knew that she once transported $30,000. In exchange for the cash, defendant gave cocaine directly to Wendy to bring back to Christopher. Defendant once gave Wendy a brick of cocaine, the size of two real bricks, to carry from Chicago back to Michigan. However, Wendy testified that she never saw defendant in Michigan.

On March 15, 1997, Wendy went to Chicago with Janet and her husband. Wendy wanted to buy Janet an ounce of cocaine for a birthday present. Wendy contacted defendant and he met them at a gas station in Chicago. Wendy and Janet entered defendant's car. Wendy gave defendant $1,000 and obtained the ounce of cocaine. At that time, defendant asked Wendy and Janet if they were interested in doing business with him because Christopher was using increasing amounts ofcocaine and was unreliable. Wendy and Janet informed defendant that they would discuss the matter. The following day, they agreed to get involved.

Wendy testified that, thereafter, Janet was responsible for making the arrangements with defendant to obtain the cocaine. Reyes and Soto would deliver the cocaine to various places, including Janet's home, an area behind an abandoned storage facility in Coldwater, or different freeway exits in Indiana just across the Michigan state line. The deliveries occurred approximately once a week. Wendy testified that she and Janet usually obtained one to three ounces at a time. They used some of the cocaine and sold the rest to buyers in Coldwater and Lansing. In particular, they sold cocaine to two men in Lansing. Defendant knew about these two buyers because he asked Wendy to contact them.

Janet confirmed Wendy's testimony. Janet testified that she first met defendant when she and Wendy picked up a car from his house in Chicago. No cocaine transaction took place at that time. On March 15, 1997, Janet, her husband and Wendy went to Chicago. Wendy paid defendant $1,000 for an ounce of cocaine. During the transaction, defendant asked them to go into business. They thought about it and later agreed. They met defendant in La Porte, Indiana, and gave him $1,100. The following day, he gave them three ounces of cocaine. This type of dealing continued between that time and the June 1997 arrests. Janet and Wendy obtained cocaine one to three times per week in amounts varying from one to six ounces. Janet testified that she would page defendant and he would return her call. She would then make arrangements with him. Usually, she would also specify a place to meet Reyes and Soto, who were defendant's delivery boys. Sometimes, however, they would call her directly to make delivery arrangements. Janet testified that she received the cocaine directly from defendant on only two occasions. The cocaine money was either given to Reyes and Soto, or was sent through Western Union. According to Janet, defendant was aware that she and Wendy were dealing to the men in Lansing. Defendant asked Janet to encourage the "boys in Lansing" to buy more. Janet testified that she never saw defendant with Reyes or Soto.

At trial, Wendy testified that defendant told her and the others that if they ever needed help, he would get them out of jail. When Wendy contacted defendant after the arrests, he told her that if she collected more money, he would send more cocaine to sell. She could use the money to get the others out of jail. Wendy did not do so. Instead, she contacted Gatke and the telephone surveillance began. Wendy admitted that she was disappointed that defendant refused to help. She also testified that defendant owed her $3,000 for a prepaid drug sale that was set to take place the day after the arrests. It never took place and defendant did not give back the money.

On June 20, 1997, after the last recorded conversation between defendant and Wendy, Gatke prepared Wendy to make a controlled buy of cocaine at an exit off the toll road in Elkhart, Indiana. Gatke and a reserve police officer, Chip Gerber, droveWendy to the meeting point in Janet's vehicle. The group met with members of the Elkhart County narcotic task force, who were on surveillance ready to make arrests after the deal transpired.

After waiting some time, Wendy indicated that the delivery men had arrived. She exited Janet's vehicle and approached the contact vehicle. Gatke and Gerber, posing as the buyers from Lansing, waited in the car. They watched Wendy enter the suspect vehicle. Approximately four minutes later, she exited. She tipped her hat to indicate that the deal was consummated. Whe

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