Flakes v. Palmer

• Decision Date: 05 December 2018
• Docket Number: Case No. 1:13-cv-889
• Parties: BRANDON JASON FLAKES, # 603408, Petitioner, v. CARMEN PALMER, Respondent.
• Court: U.S. District Court — Western District of Michigan

BRANDON JASON FLAKES, # 603408, Petitioner, v. CARMEN PALMER, Respondent.

Case No. 1:13-cv-889

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

December 5, 2018

Honorable Paul L. Maloney

REPORT AND RECOMMENDATION

This is a habeas corpus proceeding brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner's convictions stem from the October 31, 2006, killing of Linzy Reeves. On April 27, 2010, a Kent County Circuit Court jury found petitioner guilty of second-degree murder, MICH. COMP. LAWS § 750.317, and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. Petitioner was sentenced as a third-offense habitual offender to life imprisonment for the murder conviction and to two years' imprisonment for the felony-firearm conviction.

After unsuccessful attempts to overturn his conviction in state court, petitioner filed this habeas corpus petition. Petitioner seeks federal habeas corpus relief on the same six grounds rejected by Michigan's courts:

I. Petitioner's due process rights were violated by the introduction of irrelevant and unfairly prejudicial testimony advising the jury of petitioner's incarceration and drug dealing.

II. Petitioner was deprived of due process by prosecutorial misconduct. Trial counsel was ineffective when he failed to object.

III. Petitioner's due process rights were violated where the instructions on second-degree murder excluded an element from the offense. Trial counsel was ineffective when he failed to object.

IV. Petitioner was entitled to a lesser included offense instruction of manslaughter. Trial counsel was ineffective when he failed to request such an instruction.

V. The evidence presented at trial was insufficient to support the jury's verdict finding petitioner guilty of second-degree murder.

VI. Petitioner's appellate counsel was ineffective for failure to file a timely motion for a new trial.

(Amended Petition at 6-16, ECF No. 10, PageID.174-84).

Respondent argues that the petition should be denied because all grounds raised by petitioner lack merit. Further, respondent argues that Grounds I through IV are also barred by procedural default.¹ (ECF No. 17).

Judge Maloney has referred the matter to me for all purposes, including the issuance of a report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Rule 10 of the Rules Governing Section 2254 Cases in the District Courts. After review of the state-court record, I conclude petitioner has not established grounds for federal habeas corpus relief. Petitioner has not shown that the state court decisions rejectingthe grounds raised in the petition were "contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States," or that they were "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). I recommend that the petition be denied on the merits.

Standard of Review

The Court's review of this petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA "dictates a highly deferential standard for evaluating state-court rulings which demands the state court decisions be given the benefit of the doubt." Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted). "AEDPA requires heightened respect for state court factual and legal determinations." Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). "State-court factual findings [] are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence." Davis v. Ayala, 135 S. Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((" '[A]ny claim that was adjudicated on the merits in State court proceedings' is subject to AEDPA deference.") (quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal habeas "retrials" and ensures that state court convictions are giveneffect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It prohibits " 'using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.' " Parker v. Matthews, 567 U.S. 37, 38 (2012) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 779 (2010)).

The AEDPA standard is difficult to meet "because it was meant to be." Harrington v. Richter, 562 U.S. 86, 102 (2011). "Section 2254(d) reflects that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through appeal." Id. at 102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). Section 2254(d) states that an application for a 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); see White v. Wheeler, 136 S. Ct. 456, 460 (2015); Davis v. Ayala, 135 S. Ct. at 2198; White v. Woodall, 134 S. Ct. 1697, 1702 (2014).

The only definitive source of clearly established federal law for purposes of § 2254(d)(1) is the holdings - not dicta - of Supreme Court decisions. White v. Woodall, 134 S. Ct. at 1702; see Woods v. Donald, 135 S. Ct. at 1377 ("Because noneof our cases confront 'the specific question presented by this case,' the state court's decision could not be 'contrary to' any holding from this Court.). "[W]here the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims." Id. (quotations and internal citations omitted).

An unreasonable application of the Supreme Court's holding must be " 'objectively unreasonable,' not merely wrong; even 'clear error' will not suffice." White v. Woodall, 134 S. Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)); see Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per curiam). Rather, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." White v. Woodall, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103); see also Dunn v. Madison, 138 S. Ct. 9, 11 (2017) (per curiam). "[C]ircuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court,' " and "[i]t therefore cannot form the basis for habeas relief under AEDPA." Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v. Matthews, 567 U.S. at 48-49); see Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per curiam) ("As we have repeatedly emphasized, [] circuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court.' ").

"[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254(d)(2) requires that this Court accord the state trial court substantial deference. If reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination. Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S. Ct. 10, 15 (2013).

Proposed Findings of Fact

A. Circuit Court Proceedings

Petitioner was charged with first-degree felony murder and possession of a firearm during the commission of a felony. His eight-day trial concluded with the jury's verdict finding petitioner guilty of second-degree murder and the firearm charge. (Trial Transcripts, TT I - TT VII,² ECF No. 18-5 through 18-14).

On the night of October 31, 2006, Linzy Reeves was shot and killed. Johnnie Griggs testified that on that night he was selling drugs with petitioner near his aunt's house. Linzy Reeves pulled up in his car and petitioner approached it. Mr. Reeves was also attempting to sell drugs. (TT V at 7-16, 55-59, ECF No. 18-10, PageID.642-44, 654-55). When petitioner returned, he indicated to Johnnie Griggs that he wanted to rob Mr. Reeves. Petitioner asked Johnnie Griggs for the nine-millimeter Hi-Point handgun. Johnnie Griggs then retrieved the loaded gun from his aunt's house and gave it to petitioner. Johnnie Griggs then left in a car driven by Jennifer Griggs, hissister, and his cousin, Gary Griggs. (Id. at 16-22, 36-37, 59, 63, PageID.644-46, 649, 655-56).

A short time later, petitioner called Johnnie Griggs and indicated that he had an emergency and he needed to be picked up. When they retrieved petitioner, he was frantic and bleeding from his left hand. Petitioner related that, while he was trying to rob Linzy Reeves, they fought for possession of the gun. Petitioner was bleeding from a hole in his left hand. Jennifer Griggs drove to a Walgreen's store where Johnnie Griggs went inside and obtained bandages for petitioner's injured hand. Petitioner still had the gun after the incident, but the gun's slide was "locked back" and its clip...