Donaldson v. Palmer, CASE NO. 08-11144
| Decision Date | 25 March 2011 |
| Docket Number | CASE NO. 08-11144 |
| Parties | KENDALL DONALDSON, Petitioner, v. CARMEN PALMER, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
HONORABLE ARTHUR J. TARNOW
This matter is pending before the Court on petitioner Kendall Donaldson's habeas corpus petition under 28 U.S.C. § 2254. Also pending before the Court are Petitioner's motion to file instanter a supplemental brief and his motion for immediate release from custody. The habeas petition challenges Petitioner's Wayne County convictions for armed robbery, assault with a dangerous weapon (felonious assault), felon in possession of a firearm, and possession of a firearm during the commission of a felony. Petitioner claims that the prosecutor committed misconduct, the pretrial identification procedure was defective, trial and appellate counsel were ineffective, and there was insufficient evidence to convict him of armed robbery.
Respondent argues in an answer to the petition that several of Petitioner's claims are procedurally defaulted and that the remaining claims lack merit. Procedural default is not ajurisdictional limitation, Pudelski v. Wilson, 576 F.3d 595, 606 (6th Cir. 2009), cert, denied, __ U.S. 130 S. Ct. 3274 (2010), and the Court has determined that Petitioner is not entitled to the relief he seeks. Consequently, the Court will adjudicate Petitioner's claims on their merits rather than analyze whether they are procedurally defaulted. The habeas petition and motion for immediate release from custody are denied. The motion to file instanter a supplemental brief is granted, and the supplemental brief filed on January 5, 2011, has been considered.
This case arises from two robberies that occurred in Detroit early on October 3, 2002. The first robbery occurred at the Deluxe Coney Island restaurant at 12:34 a.m. that day. The Court will refer to this robbery as the Coney Island robbery. Petitioner was charged in the Coney Island case with two counts of armed robbery, one count of felon in possession of a firearm, and one count of possession of a firearm during the commission of, or attempt to commit, a felony (felony firearm). The victims were Ben Robinson and Charles Giles.
The second robbery occurred at a night club known as the Gold Coast Lounge, which was located about half a block away from the Deluxe Coney Island restaurant. The Court will refer to this robbery as the Gold Coast robbery. For this robbery, Petitioner was charged with two counts of armed robbery, one count of assault with intent to commit murder, one count of felon in possession of a firearm, and one count of felony firearm. The victims were John Pierce and Eugene Szymanski.
Petitioner was tried jointly with his co-defendant, Darrell Solomon, but before a separate jury.1 The prosecutor's theory was that, within a period of fifteen minutes, Petitioner robbed the Coney Island restaurant, went next door and robbed the Gold Coast Lounge, rode down the street in a vehicle, and was standing in front of another Coney Island restaurant when the police observed him and proceeded to arrest him. Petitioner's defense was that he was mis-identified as one of the robbers of the Coney Island victims and that it was physically impossible for him to commit the Gold Coast robbery because he was already in police custody for the Coney Island robbery when the Gold Coast robbery occurred.
The evidence at trial established that two men took money and credit cards from Ben Robinson and Charles Giles at the Coney Island restaurant on Seven Mile Road in Detroit at 12:34 a.m. on October 3, 2002. Both robbers were armed, and they wore panty hose over their faces. They were accompanied by a third man, who remained at the door of the restaurant. Ben Robinson was seated with his back to the door when the robbers entered the restaurant. He was unable to identify Petitioner in a photographic array, but he testified at trial that he thought the two defendants were the people who robbed him. Charles Giles was seated facing the door of the restaurant, and he identified Petitioner in both the photographic array and at trial as one of the robbers.
On the same night, John Pierce and Eugene Szymanski were working outside the Gold Coast Lounge when two men approached Pierce and Szymanski and inquired about the Lounge.As Petitioner pulled out a handgun, Szymanski threw a flashlight at him. Petitioner shot Szymanski in the abdomen and took over a thousand dollars from Pierce.
The timing of the second robbery was in dispute. Police officer Laron Simmons testified at trial that he received a call about the Gold Coast robbery about 1:30 a.m. on October 3, 2002. John Pierce initially told the police that the robbery occurred approximately 2:30 a.m., but at trial, he claimed that he could have wrong by as much as an hour. Eugene Szymanski informed the police that the robbery occurred around 1:45 a.m., and at the preliminary examination, he testified that the robbery occurred between 2:00 and 3:00 a.m. At trial, however, he maintained that the robbery occurred before 1:00 a.m.
Petitioner was arrested a mile or two from the scene of the robberies after the police observed two men fitting the description given of the robbers. The police chased Petitioner on foot. They lost sight of him briefly and then found him hiding under a vehicle. One officer testified that Petitioner was arrested at 12:40 or 12:45 a.m. Three other police officers testified that Petitioner was arrested between 12:55 a.m. and 1:15 a.m. After the arrest, an officer drove Petitioner back to the Coney Island restaurant and transferred him to another squad car where Darrell Solomon was seated. Petitioner informed the officers that his name was Jeffrey Cope.
According to Police Officer Samuel Dunnigan, Petitioner was inattentive during a subsequent custodial interview. Petitioner kept trying to hear what was being said in the next room where Darrell Solomon was being interviewed. After the interview, Petitioner barged into the room where Solomon was being interviewed and told Solomon not to say anything because the police were trying to "railroad" him.
Solomon implicated Petitioner and himself in the Coney Island robbery during his interview with the police, but he claimed at trial that he had told the officers what they wanted to hear because he was promised release if he implicated Petitioner. Solomon and Petitioner testified at trial that they were elsewhere at the time of the robberies and did not commit the charged offenses. They also denied knowing each other before their arrests.
On March 6, 2003, a Wayne County Circuit Court jury found Petitioner guilty of: (1) four counts of armed robbery, Mich. Comp. Laws § 750.529; (2) two counts of felony firearm, Mich. Comp. Laws § 750.227b; (3) two counts of felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and (4) one count of felonious assault, Mich. Comp. Laws § 750.82, as a lesser-included offense of assault with intent to commit murder. Petitioner was sentenced to two years in prison for the felony firearm convictions, followed by concurrent terms of fifteen to twenty-two and a half years for each armed robbery conviction, 2 three to five years for each felon-in-possession conviction, and two to four years for the felonious assault conviction.
On appeal, Petitioner argued through counsel that (1) the trial court erred in failing to suppress evidence of a photographic line-up and (2) there was insufficient evidence to convict him of the Gold Coast robbery. These claims constitute habeas claims three and six. Petitioner raised three additional issues in a pro se supplemental brief: (1) his trial attorney was ineffectivefor failing to obtain and introduce Eugene Szymanski's medical records for impeachment at trial on the assault charge and for failing to review a videotape of the Coney Island robbery before trial; (2) he was denied the assistance of counsel during a critical stage of the proceedings; and (3) the prosecutor allowed false testimony go uncorrected. The Michigan Court of Appeals rejected Petitioner's claims and affirmed his convictions in an unpublished, per curiam opinion. See People v. Donaldson, Nos. 248597 and 248634, 2004 WL 2101736 (Mich. Ct. App. Sept. 21, 2004). On June 28, 2005, the Michigan Supreme Court denied leave to appeal, because it was not persuaded to review the issues. See People v. Donaldson, 472 Mich. 938; 698 N.W.2d 394 (2005) (table).
In 2006, Petitioner filed a pro se motion for relief from judgment in which he raised his remaining habeas claims. The trial court denied Petitioner's motion in a reasoned opinion, and the Michigan Court of Appeals denied leave to appeal the trial court's decision "for failure to meet the burden of establishing entitlement to relief under [Michigan Court Rule] 6.508(D)." People v. Donaldson, No. 272647 (Mich. Ct. App. Apr. 20, 2007). On October 29, 2007, the Michigan Supreme Court denied leave to appeal for the same reason. See People v. Donaldson, 480 Mich. 921; 740 N.W.2d 267 (2007) (table).
On March 17, 2008, Petitioner filed a pro se habeas corpus petition in this Court, raising the following eight claims:
I. Petitioner was denied his right to a fair trial when the Prosecutor repeatedly commented on the witnesses' credibility, denigrating trial counsel['s] defense as a fabrication and calling Petitioner a liar.
II. Petitioner was denied his right to effective assistance of counsel when counsel failed to object to the Prosecutor's closing arguments.
III. Petitioner was denied his right to due process when the trial court failed to suppress the...
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