Dorn v. Curtin

Decision Date13 July 2015
Docket NumberCase No. 1:12-cv-872
PartiesJOHN DORN, Petitioner, v. CINDI CURTIN, Respondent.
CourtU.S. District Court — Western District of Michigan
Honorable Gordon J. Quist
REPORT AND RECOMMENDATION

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Following a jury trial in the Kalamazoo County Circuit Court, Petitioner was convicted of assault with intent to commit great bodily harm less than murder (GBH), MICH. COMP. LAWS § 750.84, and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. On May 11, 1998, Petitioner was sentenced as a fourth felony offender, MICH. COMP. LAWS § 769.12, to consecutive prison terms of 15 to 30 years on the GBH conviction and 2 years on the felony-firearm conviction. In his pro se petition, Petitioner raises three grounds for relief, as follows:

I. John Dorn was deprived of his constitutional right to the effective assistance of counsel.
II. John Dorn was deprived of his constitutional right to be sentenced based upon accurate information and constitutionally permissible sentencing considerations.
III. John Dorn's constitutional right to a speedy appeal was violated by the 12-year delay in affording him an appeal of right.

(Pet. at 31, 37, 40, docket #1.) Respondent has filed an answer to the petition (docket #6) stating that the grounds should be denied because they are procedurally defaulted, noncognizable or without merit. Upon review and applying the AEDPA standards, I find that Petitioner's claims are without merit, procedurally barred or noncognizable. Accordingly, I recommend that the petition be denied.

Procedural History
A. Trial Court Proceedings

The state prosecution arose from an incident in which Petitioner shot a man in the leg. Petitioner was charged with assault with intent to murder, MICH. COMP. LAWS § 750.83, being a felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, and felony firearm, MICH. COMP. LAWS § 750.227b. Following a preliminary examination on October 29, 1997, Petitioner was bound over on all charges. (Prelim. Hr'g Tr. at 76-77, docket #24.) A supplemental information was filed charging petitioner as a habitual offender, fourth offense. (See Cir. Ct. Register of Actions at 2, docket #8.) Petitioner was tried before a jury beginning April 7, 1998, and concluding on April 10, 1998.1

On the opening day of trial, the prosecutor dismissed the felon-in-possession charge. (Tr. I at 5-6.) In addition, the parties stipulated that Petitioner's HIV status was irrelevant to the case, and the court ordered that the witnesses be cautioned not to inject the issue into the case. (Id. at 4-5.) Finally, the court entered a sequestration order excluding witnesses from the courtroom until after they testified and directing them not to discuss their testimony. (Id. at 6-7.) The courtexpressly inquired whether Petitioner's partner, Steve Hegler, would be testifying, as Hegler was present in the courtroom. Defense counsel stated, "He's not a witness, Your Honor." (Id. at 11.)

Walter Anderson testified that he did not know Petitioner until a week or two before he was shot on October 20, 1997, though Anderson knew of Petitioner from his cousin, Steven Hegler, who had been in a relationship with Petitioner for nine years. (Tr. II at 91-92.) On the evening he met Petitioner, Anderson had gone to the Zoo Bar in Portage, Michigan. (Id. at 93.) At about 3:00 a.m., after the bar had closed, Anderson walked to Bronson Park. Although he originally was accompanied by friends, he lost sight of them and walked on alone, stopping at a gas station to pick up a pack of cigarettes and a Sprite. (Id. at 93, 95-96.) At the park, Anderson met some other friends and then decided to leave, telling the men who were there to let his other friends know that he had walked home. Anderson walked as far as Church and Ransom, when Petitioner rode up to Anderson on a bicycle, expressing interest in hooking up, or having sex with, Anderson. (Id. at 96-97.) Anderson and Petitioner went to Anderson's house and had sex. (Id. at 97-98.) Two days after his encounter with Petitioner, Anderson saw Hegler at the Rexal and, feeling guilty, told him what had happened. (Id.) Hegler was upset with Petitioner and Anderson. (Id. at 98.) Anderson felt bad because Hegler had recently had been hurt in an altercation with other people and was going through a bad time. (Id.) After hearing the news, Hegler left the home in which he had been living with Petitioner and went to stay with a cousin. (Id. at 100.)

On the night of October 19-20, 1997, Anderson went to the Zoo Bar, as he always did on Sunday nights. (Id. at 100.) Also as he normally did, Anderson left the Zoo Bar and walked to Bronson Park. (Id. at 101.) During the course of the evening, Anderson had a few drinks, but he did not feel intoxicated at the time he walked toward Bronson Park. (Id. at 102.) Anderson wasaccompanied by Frank McCone,2 Lamar (Jamaun) Harkness and Lindsay Bates. (Id. at 102-03.) McCone and Bates took a detour to McCone's house to get something to eat. (Id. at 103.) Harkness and Anderson walked on to Bronson Park, where they saw a few friends. (Id.) Petitioner came up to Anderson and told him that he wanted to talk about why Anderson had told Hegler that they had "messed around." (Id. at 104.) When Petitioner initially spoke to Anderson, Petitioner's voice was a bit angry. As they began speaking, Petitioner began jabbing his finger into Anderson's chest and demanding an explanation. (Id.) Anderson pushed Petitioner's hand away and told Petitioner that, if he wished to talk, he didn't need to put his hands on Anderson; Anderson was willing to talk. (Id. at 105.) Petitioner again pointed his finger against Anderson's chest, and Anderson stepped back. (Id. at 177.) Anderson's friend, Willie McCree, got between the two and said, "John, get out of his face. . . . You're not gonna do nothing to him. If you put your hands on him I'm gonna f--- you up." (Id. at 106.) McCree and Petitioner then had a verbal confrontation. After awhile, Anderson stated that, if Petitioner wished to talk, Anderson was willing to talk to him. (Id. at 107.) McCree walked back to the other friends. (Id. at 117.) Anderson then saw Petitioner pick up a black gun from the grass, which he placed behind his back, in his belt loop. (Id. at 117-18.) Anderson did not leave at that time because he was afraid that Petitioner might use the gun on him. (Id. at 119.)

Petitioner pulled Anderson's shoulder close, and the two walked the distance of about four parking meters from the corner, where they began to talk. (Id. at 108.) The discussion again became heated, with Petitioner demanding to know why Anderson had told Hegler about the affair. (Id. at 116.) Anderson made a response and then started to walk away. He saw his friends, includingMcCree, getting into their cars and leaving, but Lamar Harkness was still there, and Anderson walked over toward him. (Id. at 120-21.) Anderson told Harkness that he was ready to leave and suggested that they go. Harkness asked what was going on, but Anderson just said, "Let's go." (Id. at 121.) They walked from the First Congregational Church to the corner of Park and Academy, where they made a right. They headed north for seven or eight steps, after which Petitioner grabbed Anderson by the collar and put something metal and hard to the back of Anderson's head. (Id. at 121-22.) Anderson told Petitioner to take the gun off of his head. Petitioner then said, "[S]hut up, bitch, before I blow your brains out." (Id. at 122.) Petitioner moved Anderson backwards into the middle of Park and Academy Streets. Petitioner then walked around to the front of Anderson, and put the gun against Anderson's forehead. (Id. at 123.) Petitioner stated, "I'm gonna teach you about breaking up . . . other people's happy homes. (Id. at 125.) Petitioner kept his arm straight out, with the gun pointed upward into Anderson's face. (Id.) Anderson took a few steps back, and Petitioner mumbled something, after which Anderson saw him become more hostile. (Id. at 126.) Petitioner repeated, "I'm gonna teach you about breaking up my happy home." (Id.) Petitioner dropped the gun somewhat, pointing below Anderson's waist. (Id. at 126.) Petitioner fired two shots. (Id. at 127.)

Anderson froze at first, not feeling anything. (Id. at 128.) After a few seconds, still not realizing that he had been shot, Anderson had the impulse to attack Petitioner, thinking, "[I]f you don't attack him he gonna shoot you." (Id. at 129.) Anderson lunged toward Petitioner and grabbed Petitioner around the neck with his right hand. He knocked Petitioner off balance, and Petitioner's arm came up. (Id. at 130.) Anderson grabbed Petitioner's right wrist with his left hand and struggled for the gun. (Id. at 130-31.) He held Petitioner's arm up, pushing it away from pointingat his face. (Id. at 132-33.) Petitioner continued to struggle, and four more shots were discharged into the air. (Id. at 133-34.) Petitioner then jerked away a few feet, before attempting to fire two more shots at Anderson's chest. (Id. at 134-35.) Although the trigger was pulled twice, it only clicked, because there were no more bullets. (Id. at 137.) Anderson said, "What you gonna do now, bitch? You outa bullets." (Id. at 138.) Petitioner responded, "You need to go home you little bitch." (Id.) Anderson then looked down and saw that he had been shot in the lower right leg. (Id. at 138.) Anderson turned and walked toward Harkness. (Id. at 139.) Harkness asked what was going on, what had happened. Anderson said, "Jamaun, . . . Hold me up. . . . I can't walk. . . . I've been shot. (Id.) Harkness had placed an arm around Anderson, but thought Anderson was not serious, until Anderson turned his right leg to the side, showing the bloody hole in his pants leg. (Id. at 140.) Harkness and Anderson walked to the Amoco Gas...

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