Dunn v. Harry

• Decision Date: 29 January 2019
• Docket Number: Case No. 1:17-cv-1055
• Parties: JORDAN LEWIS DUNN, Petitioner, v. SHIRLEE HARRY, Respondent.
• Court: U.S. District Court — Western District of Michigan

JORDAN LEWIS DUNN, Petitioner, v. SHIRLEE HARRY, Respondent.

Case No. 1:17-cv-1055

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 29, 2019

Honorable Robert J. Jonker

REPORT AND RECOMMENDATION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Jordan Lewis Dunn is incarcerated with the Michigan Department of Corrections at the Michigan Reformatory (RMI) in Ionia, Michigan. Following a jury trial in the Ingham County Circuit Court, Petitioner was convicted of first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a). On July 23, 2014, the court sentenced Petitioner to life imprisonment without the possibility of parole.

On November 30, 2017, Petitioner, through his counsel, filed his habeas corpus petition. The petition raises five grounds for relief, as follows:

I. The presumption of innocence is the first rock in the foundation of our rights as citizens of the United States. It is imperative that the due process rights of each citizen are honored. Part of that protection encompasses proper jury instructions. The jury in the instant matter did not receive proper jury instructions with regard to the consideration of lesser charges that were applicable in this case. Was the outcome of Mr. Dunn's trial tainted and unreliable due to this miscarriage of justice and was trial counsel ineffective for not requesting the proper instructions

II. Every citizen accused of a crime has the right to effective assistance of counsel. This right is guaranteed by our Constitution and no one should face charges without the assistance of competent representation. During Mr. Dunn's trial, there was testimony that was presented that indicated Mr. Dunn's actions were, in fact, the result of an accident that occurred in the heat of the moment. Was trial counsel ineffective when he failed to request jury instructions on voluntary manslaughter and accident when testimony was presented to support these instructions and trial counsel argued these defenses during closing argument?

III. Every person has the constitutional right to present a defense when accused of a crime. Every person also has the constitutional right to be presumed innocent unless proven guilty, and the burden of proving guilt lies squarely on the shoulders of the government. Each element of a crime must be proven beyond a reasonable doubt. Premeditation is an element of first-degree murder. In Mr. Dunn's case, there was insufficient evidence to prove premeditation on the part of Mr. Dunn. Was Mr. Dunn wrongfully convicted due to the fact that there is insufficient evidence of premeditation or deliberate action?

IV. Due process requires that the evidence used to convict a person at trial be fair and relevant. Facebook posts claimed to have been made by Mr. Dunn were improperly admitted because they were not relevant, they were unfairly prejudicial, and they were not authenticated, and trial counsel was ineffective in not objecting to these posts. Did allowing the Facebook posts into evidence prejudice the jury and thereby render the conviction unconstitutional and was trial counsel ineffective for not objecting to their admission?

V. The right to cross-examination is fundamental and necessary to ensure the due process rights of every citizen. While expert witnesses can offer opinions, these opinions must be based on accurate and reliable information. Dr. Bechinski testified that Mr. Berlin's death was classified as a homicide because Mr. Dunn's actions were intentional. This classification, however, was based solely on the hearsay statements of others. Nothing in the injuries sustained by Mr. Berlin support the opinion that they were intentionally inflicted by anyone. Was Mr. Dunn wrongfully convicted because the expert witness was allowed to offer an unsupported opinion for the jury's consideration and was trial counsel ineffective for not objecting to his opinion testimony?

(Pet., ECF No. 1, PageID.12-23.) Respondent has filed an answer to the petition (ECF No. 6) stating that the grounds should be denied because they are without merit. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are meritless. Accordingly, I recommend that the petition be denied.

Discussion

I. Factual allegations

On October 30, 2013, Petitioner, while driving through a mobile home park in Ingham County, collided with pedestrian Ben Berlin, killing him. There were many witnesses to the collision.

The jury heard from Nicole Benn and Corey McCullough, who were riding in the vehicle with Petitioner. (Trial Tr. III, ECF No. 7-7, PageID.580-604; Trial Tr. VII, ECF No. 7-11, PageID.717-727.) The jury heard from Berlin's sons, Steven and Jordan (Trial Tr. III, ECF No. 7-7, PageID.612-624; Trial Tr. IV, ECF No. 7-8, PageID.641-650); Berlin's neighbors, Jaycen Glynn (Trial Tr. IV, ECF No. 7-8, PageID.626-641), Samantha Heier (Id., PageID.641-659), Earl Linnabary (Id., PageID.659-664), Peter Garrison (Id., PageID.664-671), and William Myers (Id., PageID.671-679); law enforcement personnel, Joshua Treat, Andy Daenzer, and Brady Delaney (Trial Trs. V & VI, ECF Nos. 7-9, 7-10); and the forensic pathologist (Trial Tr. III, ECF No. 7-7, PageID.604-611). The passengers in the truck, Berlin's sons, and Berlin's neighbors had all witnessed the incident. The stories they told varied with regard to the some of the details, but the various accounts shared a common core set of facts.

It is not disputed that Petitioner drove into the mobile home park that evening with his friend Corey McCullough to pick up another friend, Nicole Benn. Petitioner drove in fast and loud. He disregarded the speed limit and stop signs. He drew the attention and ire of parkresidents. Jaycen Glynn approached the vehicle as Corey exited to permit Nicole into the back seat. He asked that Petitioner slow down.

As Petitioner headed toward the park exit, he promptly disregarded that request and continued to ignore posted speed limits and stop signs. After Petitioner blew through one stop sign, Ben Berlin was standing by the side of the road. He yelled at Petitioner to slow down. He may have thrown in a couple of profanities for good measure. Petitioner was already past Berlin he slammed on the brakes, threw the truck into reverse, and backed the truck up to a position a few feet away from, but pointed in the direction of, Berlin.

Several people stood nearby. Berlin began to approach the truck. There are discrepancies as to how close Berlin got, but it appears that Berlin continued to yell. Petitioner held that position for some seconds, some said it was a few seconds, but at least one witness suggested it was more than 30 seconds. Then, Petitioner stepped on the gas pedal—hard—and rammed into Berlin. Berlin was thrown onto the hood and cracked his head on the windshield before the impact pushed him off the truck.

Petitioner sped away. He returned to his house and tucked his truck away in the woods on the side of his house.

After a couple of weeks in the hospital, Berlin's family made the difficult decision to take him off life-support. He died on November 11.

The prosecutor charged Petitioner with first-degree premeditated murder. The jury was instructed with regard to that charge as well as lesser-included-offense charges of second-degree murder and involuntary manslaughter. The jurors settled on first-degree murder.

The court sentenced Petitioner in accordance with the statutory mandate.

Petitioner attacked the judgment on two fronts. He moved for a new trial based, in part, on claims that his trial counsel had rendered ineffective assistance. With the assistance of counsel, he also appealed to the Michigan Court of Appeals raising the same issues he raises in this petition plus one additional issue based on the cumulative impact of the other errors. By opinion issued May 12, 2016, the appellate court rejected Petitioner's challenges to his conviction.

Petitioner then turned to the Michigan Supreme Court, again with the assistance of counsel. He filed an application for leave to appeal raising the same six issues he had raised in the court of appeals. That court denied relief on November 30, 2016. This petition followed one year later.

II. AEDPA standard

This action is governed by the AEDPA. The AEDPA "prevents federal habeas 'retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). This standard is "intentionally difficult to meet." Woods v. Donald, 575 U.S. ___, 135 S. Ct. 1372, 1376 (2015) (internal quotation omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of theSupreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams, 529 U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, "clearly established Federal law" does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court....