Dillard v. Prelesnik

• Decision Date: 18 July 2001
• Docket Number: No. CIV.A.00-71114-DT.,CIV.A.00-71114-DT.
• Citation: Dillard v. Prelesnik, 156 F.Supp.2d 798 (E.D. Mich. 2001)
• Parties: Henry Lee DILLARD, # 245428, Petitioner, v. John PRELESNIK, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

156 F.Supp.2d 798

Henry Lee DILLARD, # 245428, Petitioner, v.John PRELESNIK, Respondent.

No. CIV.A.00-71114-DT.

United States District Court, E.D. Michigan, Southern Division.

July 18, 2001.

COPYRIGHT MATERIAL OMITTED

Henry Dillard, Handlon Michigan Training Unit, Ionia, MI, pro se.

Debra M. Gagliardi, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for John Prelesnik, respondents.

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

ROSEN, District Judge.

I.Introduction

Petitioner, Henry Lee Dillard("Petitioner"), presently confined at the Handlon Michigan Training Unit in Ionia, Michigan, has filed this pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254.In his application, Petitioner attacks his conviction of second degree murder, M.C.L. 750.317 and possession of a firearm during the commission of a felony, M.C.L. 750.227b. Petitioner was sentenced to consecutive prison terms of twenty-five to forty years and two years for these crimes.Petitioner contends that his conviction for second degree murder is supported by constitutionally insufficient evidence.

II.Factual Background

Petitioner's convictions arise from the murder of Donald Wright on July 19, 1994.Wright was shot to death in his parked car at about 11:00 p.m. Wright was sleeping in his car outside Timbertown Automotive, an auto repair shop where he worked.Wright planned to stay there until his workday began the next morning.

Petitioner, his co-defendantToby Roger Davis, and two other men, Edward Christopher and Edwin Ellis Rodgers, were riding around in Petitioner's car that night.Christopher and Rodgers witnessed the shooting and heard Davis and Petitioner talk about it afterwards.Christopher and Rodgers were not prosecuted.Both testified for the prosecution.

The evidence indicated that Petitioner's co-defendant, Toby Roger Davis, approached the victim's car on the driver's side and fired the first shot at the victim.Edward Christopher testified that, after Davis had fired the first shot, Petitioner jumped out of his vehicle and then joined Davis at the driver's side window of the victim's car.¹Christopher heard another shot while both Davis and Petitioner were at the driver's window.Christopher could not tell who fired the second shot.Christopher saw Petitioner reach into the victim's car through a window and carry something away.Petitioner had some money in his hands when he returned to his car after the shooting.Upon returning to their car, Davis and Petitioner both claimed to have shot the victim in the head.Trial Transcript Volume III ("Tr. Vol.III")at 85-92.

Donald Wright was killed by a gunshot to the head.Wright was apparently shot while sleeping in his car near his place of employment.The fatal bullet entered his head on the left side of his head above his ear, passed through his brain, and exited out of his right forehead.Wright also had a wound on the little finger of his right hand.This wound may or may not have been caused by the bullet which killed Wright.A nine millimeter bullet and a .22 caliber bullet were found in the victim's car.The bullet's entry wound in Wright's head was about ten millimeters in diameter.A.22 caliber bullet generally does not make an entry wound that large.

There was an exit wound from which the bullet left the victim's head through his right forehead.A nine millimeter handgun round is much more powerful than a .22 caliber round.Generally, .22 caliber bullet fired into a person's skull will stay inside the skull after passing through the brain.However, a 9 millimeter bullet has substantially more force.When fired into a human skull, it often exits through the opposite side of the skull after passing through the brain.Tr. Vol. IIIat 149-54.

Based on these facts, forensic pathologist Dr. Kanu Virani opined that the 9 mm bullet caused Donald Wright's death.Tr. Vol. IIIat 164.Dr. Virani also noted, however, that it was very unlikely but not impossible, that the victim had been killed by the .22 caliber bullet.

Edwin Rodgers testified that, after Davis fired the first shot, Petitioner approached the victim's vehicle on the passenger side and fired a shot.The second shot was fired only a few seconds after the first shot.Rodgers thought Petitioner was carrying a gun which was smaller than the gun Davis carried.Rodgers testified that he heard Petitioner and Davis argue about who had shot the victim in the head.Tr. Vol. IVat 15-67.

Kent Gardner, an expert on firearms identification, testified that 9mm guns are generally larger than .22 caliber guns, but that both of these calibers are available in guns various sizes.

Petitioner did not testify at trial.Petitioner contends that the evidence shows that his co-defendantToby Davis fired the shot which killed Donald Wright.Further, Petitioner argues, there was insufficient evidence to show that he aided and abetted Davis in the killing.

III.Procedural History

Petitioner appealed as of right to the Michigan Court of Appeals.Petitioner raised the following claims:

I. Defendant-Appellant's conviction for murder in the second degree was obtained without sufficient evidence to prove guilt beyond a reasonable doubt.

II.Failure to grant separate trials for the Defendant-Appellant and his co-defendant resulted in prejudicial error.

III.The sentence imposed was not proportionate to the crime.

IV.The sentence imposed by the trial court was so disparate that it amounts to cruel and unusual punishment and thereby violates the United States and Michigan Constitutions.

Petitioner's appeal was consolidated with the appeal of his co-defendant.People v. Toby Roger Davis and Henry Lee Dillard, Michigan Court of AppealsDocket Nos. 189228and189232(October 23, 1995).The Michigan Court of Appeals affirmed Petitioner's convictions and sentences.The Michigan Court of Appeals rejected Petitioner's insufficiency of the evidence claim, reasoning as follows:

In order to be convicted of second-degree murder, the following elements must be established beyond a reasonable doubt: that defendant caused a death with malice and without justification or excuse.People v. Neal,201 Mich.App. 650, 654, 506 N.W.2d 618(1993).Defendant takes issue only with whether there was sufficient evidence from which a jury could have concluded that the cause the death of the victim.While much evidence pointed at Davis as being the shooter who delivered the fatal bullet, there was evidence pointing directly at Dillard, including that Dillard fired a second shot into the victim's car and claimed that he fired the fatal bullet.Dillard also bragged to a witness that he was the shooter at the second crime scene.The bullets from the that crime scene matched the nine-millimeter bullet suspected to have caused Wright's death.The jury could have believed that Dillard, and not Davis, had the nine-millimeter gun responsible for the death.Moreover, there was testimony that it was not impossible that the .22-caliber bullet caused the death.Therefore, even if Dillard had the .22-caliber gun and not the nine-millimeter gun, the jury could have believed that he fired the fatal shot, especially where the jury could have inferred from other evidence that Davis' shot, the first shot, may have just hit Wright in the hand and not the head.Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have determinated that the essential elements of the crime were proven beyond a reasonable doubt.People v. Wolfe,440 Mich. 508, 515, 489 N.W.2d 748(1992).

More importantly, we note that Dillard could have been found guilty on an aiding and abetting theory as opposed to being found guilty as the principal.There was ample evidence to support his conviction as an aider and abettor.Dillard ignores this aspect of the case in its entirety when making his arguments on appeal.

People v. Davis and Dillard,Nos. 189228and189932at 5-6.

Petitioner's application for leave to appeal in the Michigan Supreme Court raising the same issues was denied, with Justices Cavanagh and Kelly indicating that they would grant leave to appeal.People v. Dillard,459 Mich. 945, 590 N.W.2d 66(1999).

Petitioner has filed the present application for a writ of habeas corpus raising the following claim as grounds for relief:

I. PETITIONER'S CONVICTION OF SECOND DEGREE MURDER IS NOT SUPPORTED BY CONSTITUTIONALLY SUFFICIENT EVIDENCE.

Respondent has filed an Answer to the petition and contends that it should be denied because the Michigan appellate courts' denial of Petitioner's sufficiency of the evidence claim was a reasonable application of applicable federal constitutional precedent.

IV.Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996Pub.L. No. 104-132,110 Stat. 1214(April 24, 1996)("AEDPA" or "the Act"), govern this case because petitioner filed his habeas corpus petition after the effective date of the Act.Lindh v. Murphy,521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481(1997).

As amended, 28 U.S.C. § 2254(d) provides that:

(d) 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.

The United States Supreme Court has recently addressed the question of the proper interpretation of the amendments to the habeas corpus statute concerning entitlement to relief.The Supreme...