Drain v. Woods, Case No. 10–11306.

• Citation: 902 F.Supp.2d 1006
• Decision Date: 02 November 2012
• Docket Number: Case No. 10–11306.
• Parties: James DRAIN, Petitioner, v. Jeffrey WOODS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

902 F.Supp.2d 1006

James DRAIN, Petitioner,

v.Jeffrey WOODS, Respondent.

Case No. 10–11306.

United States District Court,

E.D. Michigan,

Southern Division.

Nov. 2, 2012.

Craig A. Daly, Detroit, MI, for Petitioner.

Mark G. Sands, Michigan Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER CONDITIONALLY GRANTING A WRIT OF HABEAS CORPUS

ARTHUR J. TARNOW, Senior District Judge.

Petitioner James Drain has filed an application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The pleading challenges Petitioner's convictions for first-degree murder and two firearm offenses. Petitioner raises several claims regarding the selection of his jury, the sufficiency of the evidence, the jury instructions, the testimony of a key prosecution witness, his trial attorney, the state court's denial of his motion for an evidentiary hearing, and the prosecutor's conduct.

The Court finds that the prosecuting attorney violated Petitioner's right to equal protection of the law by using peremptory challenges to excuse prospective jurors on the basis of race. Alternatively, Petitioner's trial attorney was ineffective for failing to object to the prosecutor's discriminatory use of peremptory challenges and to the trial court's procedures during voir dire. The habeas petition will be conditionally granted on those two grounds.

I. BACKGROUND

A. The Trial, Motion for New Trial, and Sentence

Petitioner was charged in Wayne County, Michigan with first-degree (premeditated) murder, felon in possession of a firearm, and possession of a firearm during the commission of, or attempt to commit, a felony (felony firearm). The charges arose from the fatal shooting of thirty-nine-year-old Angela Jones on Parker Street in Detroit on December 4, 2001.

There was no physical evidence linking Petitioner to the crime. The primary evidence against him was the testimony of Collandria (Andria) Baker, who testified at Petitioner's jury trial that

she saw the victim, Angela Jones[,] sitting in her car parked on Kerch[e]val Street in the City of Detroit at about 2:30 am. Ms. Baker walked up, leaned into the car and asked Ms. Jones what she was doing there so late. Ms. Jones responded that she could ask Ms. Baker the same thing. Ms. Baker asked again and Ms. Jones told her to leave and mind her own business. Ms. Baker persisted and Ms. Jones said she was going to meet “Moosey,” the defendant's street name. Ms. Baker testified that when she stood up she saw the defendant about 3 feet away from the victim's car. The prosecutor asked Ms. Baker to point to something in the courtroom to establish the approximate distance that she saw the defendant. Ms. Baker pointed to Investigator Fisher sitting at the prosecutor's table. The court and the prosecutor verified that Investigator Fisher was about 15 feet from the witness. Ms. Baker testified that she walked away from the victim's car to go to a drug house when she heard gunshots. Ms. Baker testified that from the porch of the drug house down the street she saw sparks coming off the gun in the defendant's hand as he shot into the victim's car. Ms. Baker testified that she ran away in fear and heard the defendant call out to her as she ran, “Baybay is that your black ass?” ¹ Ms. Baker testified that she did not go [to] the police because she was scared. Ms. Baker testified that three weeks later she saw the defendant at a local store where she heard him say he wasn't afraid of anyone telling because he did not mind “laying a bitch down,” which Baker thought was a reference to her. Approximately a month after the murder Ms. Baker told a relative of the victim that she had been in the area when Ms. Baker was murdered. The family member contacted the police who then asked Ms. Baker for information about what she might have seen.

FN 1. Ms. Baker testified that Baybay was her nick name.

Op. and Order Granting Def.'s Mot. for Relief from J., at 2–3, No. 02–004012–01 (Wayne Cnty. Cir. Ct. Dec. 13, 2006) (unpublished) (footnote in original).

Ms. Baker also testified that Petitioner's girlfriend, Simone Griffin, made a threatening call to her after Baker testified at the preliminary examination. Ms. Griffin asked Ms. Baker why Baker said “all that stuff” about Petitioner at the court hearing. Griffin then warned Ms. Baker to “watch her back” because something was going to happen to her house.

There was additional evidence that Angela Jones' vehicle crashed into a parked car after the shooting. A police officer found Ms. Jones slumped over in her car. Willie Nabors testified that he heard the crash and observed a man in a silver car drive slowly by the crash site and say, “The old girl been shot.”

The chief medical examiner for the county testified that the victim sustained three gunshot wounds: one on the top of the head and two on the left upper back. One of the gunshot wounds to the back was superficial, but the other one was fatal. The bullet passed through the main artery of the lung and dropped into the heart. The manner of death was homicide, but there was no evidence of close-range firing.

Petitioner did not testify, but he presented two witnesses. His first witness was his girlfriend, Simone Griffin, who denied threatening Ms. Baker. The second defense witness was Edward Blackburn, a private investigator, who testified that the police investigation was unusual because fingerprints collected at the scene were misplaced initially, but found at the last minute, In addition, there was no traffic accident report about the victim's car crashing into a parked car after the shooting.

Petitioner's defense was that Ms. Baker's testimony was unreliable and unbelievable. Defense counsel argued to the jury that Petitioner was innocent, that Ms. Baker was a liar, and that it was physically impossible for Ms. Baker to see the shooting from the drug house where she went after speaking with Ms. Jones. Defense counsel asserted that the real perpetrator was the unidentified man who drove by the victim's car after the shooting and said, “The ol' girl is dead.”

The trial court instructed the jury on second-degree murder as a lesser offense of first-degree murder. On June 18, 2002, the jury found Petitioner guilty of first-degree murder, felon in possession of a firearm, and felony firearm.

Before Petitioner was sentenced, he moved for a new trial on the ground that the prosecution's primary witness, Andria Baker, lied at trial. The trial court held an evidentiary hearing and denied Petitioner's motion for new trial after concluding that Petitioner did not meet his burden of proving that Ms. Baker was truly recanting her trial testimony. The court then sentenced Petitioner to time served (133 days) for the felon-in-possession conviction, to two years in prison for the felony firearm conviction, and to a consecutive term of life imprisonment without the possibility of parole for the murder conviction.

B. The Direct Appeal, Motion for Relief from Judgment, and State Collateral Appeal

In an appeal of right, Petitioner claimed through counsel that: (1) the prosecutor improperly excluded African Americans from the jury panel; (2) the evidence was insufficient to sustain his murder conviction; (3) the trial court's failure to instruct the jury on the order of deliberations deprived him of fair consideration of the lesser-included offense of second-degree murder, and trial counsel was ineffective for failing to object; and (4) the trial court abused its discretion when denying his motion for a new trial.

The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished, per curiam opinion. See People v. Drain, No. 246014, 2004 WL 1459414 (Mich.Ct.App. June 29, 2004). In a subsequent application to the Michigan Supreme Court, Petitioner raised the same claims, and an additional claim that trial counsel was ineffective for failing to present an alibi witness and for advising him not to testify. The Michigan Supreme Court denied leave to appeal on February 28, 2005, because it was not persuaded to review the issues. See People v. Drain, 472 Mich. 867, 692 N.W.2d 841 (2005) (table).

In May 2006, Petitioner filed a motion for relief from judgment. He alleged that (1) trial and appellate counsel were ineffective, (2) the trial court erred when it instructed the jurors that they could infer an intent to kill from the use of a dangerous weapon, (3) the prosecutor committed misconduct, and (4) there was good cause for his failure to raise his claims on direct appeal and actual prejudice from the alleged irregularities. Petitioner's claim about trial counsel alleged that counsel was ineffective for failing to object to (a) the trial court's procedure for handling the Batson¹ violation, (b) prosecutorial misconduct, and (c) an erroneous jury instruction. Petitioner claimed that appellate counsel was ineffective for failing to raise a claim about trial counsel's ineffectiveness. In his prosecutorial-misconduct claim, Petitioner alleged that the prosecutor deprived him of a fair trial by (a) informing the jury about prior proceedings, which allowed the case to proceed as far as it did, (b) misleading the jury on the elements of premeditation and deliberation, (c) eliciting evidence to bolster the prosecution's main witness, and (d) using inadmissible hearsay in her argument to the jury.

The trial court held oral arguments on Petitioner's motion and then issued a lengthy written opinion granting the motion. The trial court held that trial counsel was ineffective for failing to object to the Batson violation, to the trial court's procedures under Batson, to the prosecutor's reference to prior proceedings, and to the prosecutor's use of Ms. Baker's prior consistent statements. The trial court also held that the prosecutor deprived Petitioner of due process by (1) referring to prior court proceedings and (2) eliciting and usingMs. Baker's prior consistent statements to bolster Baker's testimony.

The prosecution ap...