Dickens v. Jones

Decision Date23 April 2002
Docket NumberCivil No. 01-CV-70984-DT.
Citation203 F.Supp.2d 354
PartiesMarvin Dwayne DICKENS, Petitioner, v. Kurt JONES, Respondent.
CourtU.S. District Court — Eastern District of Michigan

R. Steven Whalen, Detroit, MI, for petitioner.

Brenda E. Turner, Laura G. Moody, Lansing, MI, for respondent.

OPINION AND ORDER CONDITIONALLY GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS1

TARNOW, District Judge.

Marvin Dwayne Dickens, ("petitioner"), presently confined at the Carson City Correctional Facility in Carson City, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed through his attorney, petitioner challenges his conviction of one count of second degree murder, M.C.L.A. 750.317; M.S.A. 28.549, one count of assault with intent to do great bodily harm less than murder, M.C.L.A. 750.84; M.S.A. 28.279, and one count of possession of a firearm in the commission of a felony. M.C.L.A. 750.227b; M.S.A. 28.424(2). For the reasons stated below, the Court will conditionally grant a writ of habeas corpus and will remand the matter to the juvenile division of the Wayne County Probate Court for a hearing to determine whether the probate court should have waived its jurisdiction over petitioner and allowed him to be tried in the Detroit Recorder's Court as an adult.

I. Background

The offenses for which petitioner was convicted of were committed on March 3, 1987 in Detroit, Michigan. Petitioner was only sixteen years old at the time that this offense was committed. Petitioner contends that because he was only sixteen years old when the crimes were committed, the Detroit Recorder's Court lacked jurisdiction to hear his case in the absence of a waiver of jurisdiction from the juvenile division of the Wayne County Probate Court. Petitioner further alleges that his trial counsel was ineffective for failing to request removal of his case to the juvenile division of the probate court upon discovering that petitioner was only sixteen years old at the time that these offenses were committed.

At the beginning of petitioner's bench trial in the Detroit Recorder's Court on July 5, 1988, the assistant prosecutor, Augustus Hutting, informed the trial court in his opening statement that in June of 1987, petitioner was arrested by Detroit Police for a curfew violation because he was under seventeen years of age. (Trial Transcript, hereinafter "T.", 07/05/88, p. 11). Petitioner was convicted of these offenses on July 11, 1988.

Petitioner's conviction was affirmed on direct appeal by the Michigan Court of Appeals. People v. Dickens, 121293 (Mich. Ct.App. April 27, 1992). Petitioner failed to appeal this decision to the Michigan Supreme Court.

On October 26, 1992, petitioner sent a letter to the trial court, in which he questioned the trial court's jurisdiction to try petitioner as an adult without a waiver from the juvenile court, based on M.C.L.A. 712A.3; M.S.A. 27.3178(598.3). Petitioner also alleged that his trial counsel was ineffective for failing to raise the issue of the trial court's lack of jurisdiction to conduct the trial without a waiver from the juvenile court. The trial court construed the letter as a motion for relief from judgment, and denied the motion on the merits. People v. Dickens, 87-05383 (Detroit Recorder's Court, January 7, 1993).

Petitioner thereafter filed a motion for relief from judgment through counsel with the Detroit Recorder's Court, in which he again raised these two issues, as well as several other claims that are not part of this petition. Attached to this motion for relief from judgment was a birth certificate which indicated that petitioner's date of birth was April 5, 1970.2 The trial court denied petitioner's motion as procedurally flawed and without merit. People v. Dickens, 87-05383 (Detroit Recorder's Court, August 3, 1994). The Michigan Court of Appeals denied petitioner's delayed application pursuant to M.C.R. 6.508(D). People v. Dickens, 180473 (Mich.Ct.App. February 13, 1995). The Michigan Supreme Court denied leave to appeal, because the they were "not persuaded that the questions presented should be reviewed by this Court." People v. Dickens, 450 Mich. 956, 548 N.W.2d 630 (1995).

Petitioner subsequently filed a petition for writ of habeas corpus with this Court, in which he raised the two claims that he raises in the instant petition. On April 3, 1998, Magistrate Judge Donald A. Scheer issued a report and recommendation that the petition for writ of habeas corpus be dismissed. On May 26, 1998, Judge Barbara K. Hackett issued all parties an order to show cause to address the question of whether the Detroit Recorder's Court had jurisdiction to try petitioner as an adult. Several additional pleadings were filed by the parties in response to this order. A hearing was also conducted on the order to show cause.

On September 11, 1998, Judge Hackett accepted Magistrate Judge Scheer's report and recommendation and dismissed the petition without prejudice. Dickens v. Stegall, U.S.D.C. 96-CV-60301-AA (E.D.Mich. September 11, 1998). Judge Hackett dismissed the petition without prejudice, because petitioner had failed to raise the jurisdictional issue that he now raises in his first claim in this petition as a federal constitutional claim in the state courts. Judge Hackett found that this claim was not "patently frivolous or devoid of merit." Judge Hackett noted that at a hearing conducted to determine whether the Detroit Recorder's Court had jurisdiction to hear petitioner's case, it was revealed that the prosecutor informed the trial court in his opening statement that petitioner was a juvenile when he committed these offenses. Judge Hackett found that the trial court was therefore cognizant of petitioner's status as a juvenile at the time of these offenses, and the trial court's "failure to transfer petitioner's case to the juvenile division of the probate court denied the probate court the exercise of its exclusive jurisdiction." Id. at *4. Judge Hackett further found that the trial court's failure to transfer the case to the juvenile division represented a deprivation of due process. Id.

Petitioner thereafter filed a second motion for relief from judgment with the Detroit Recorder's Court, in which he raised the jurisdictional claim as a federal issue. The trial court denied petitioner's motion pursuant to M.C.R. 6.508(D)(2), because the issue had already been raised in a prior motion for relief from judgment. The trial court further denied the motion, because petitioner had failed to establish good cause, pursuant to M.C.R. 6.508(D)(3), for failing to raise the issue on direct appeal. People v. Dickens, 87-05383 (Wayne County Circuit Court, Criminal Division, May 21, 1999). The Michigan appellate courts denied petitioner's application for leave to appeal pursuant to M.C.R. 6.508(D). People v. Dickens, 224555 (Mich.Ct.App. August 21, 2000); lv. den. 463 Mich. 952, 622 N.W.2d 789 (2001). Petitioner thereafter filed an application for a writ of habeas corpus on the following grounds:

I. The trial court was without jurisdiction to try and sentence the petitioner as an adult, and the convictions and sentences violate the due process clause of the Fourteenth Amendment, where the petitioner was a juvenile at the time of the offense, and where the trial court was made aware that petitioner was a juvenile at the time of the offense, yet failed to mandatorily remand the case to the juvenile division of the probate court, which, under the statutory scheme in effect [at the time], had exclusive jurisdiction over this case.

II. The petitioner was denied his Sixth and Fourteenth Amendment right to the effective assistance of counsel where his trial attorney failed to request removal of this case to the juvenile division of probate court, which had exclusive jurisdiction, as a result of which the petitioner was given a very lengthy adult sentence which the trial court was without jurisdiction to impose.

Respondent argued that petitioner's claims were procedurally defaulted and barred by the one year statute of limitations contained within 28 U.S.C. § 2244(d)(1). On November 16, 2001, this Court denied the respondent's argument that the instant petition was barred by the statute of limitations, finding that the limitations period was equitably tolled during the time that petitioner's first application for writ of habeas corpus was pending before Judge Hackett. The Court further found that the instant claims were not procedurally defaulted for three reasons.3 The Court first noted that because petitioner was alleging a jurisdictional defect in his first claim, he was not required under Michigan law to satisfy the "cause and prejudice" standard contained in M.C.R. 6.508(D)(3). Secondly, the Court found that in light of the Michigan Supreme Court's comments in People v. Jackson, 465 Mich. 390, 633 N.W.2d 825, 834, fn. 10 (2001), this Court could not construe the orders from the Michigan Court of Appeals and the Michigan Supreme Court which denied petitioner relief pursuant to M.C.R. 6508(D) to be a procedural default and not a decision on the merits, where the form orders did not indicate that relief was being denied pursuant to subsection 3 of that rule. Finally, the Court found that appellate counsel was ineffective for failing to raise the two issues contained in this petition on the direct appeal and petitioner had therefore established cause for failing to raise the issues on direct appeal.4

The Court ordered petitioner and respondent to submit supplemental briefs which addressed the issue of which remedy, if any, would be appropriate for the alleged constitutional violation in this case. Oral arguments were conducted in this case on April 12, 2002.

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...

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