Friday v. Pitcher

• Decision Date: 21 March 2002
• Docket Number: No. CIV.01-CV-71184-DT.,CIV.01-CV-71184-DT.
• Citation: 200 F.Supp.2d 725
• Parties: Mario Darnell FRIDAY, # 240462, Petitioner, v. Terry PITCHER, Respondent,
• Court: U.S. District Court — Eastern District of Michigan

Page 725

200 F.Supp.2d 725

Mario Darnell FRIDAY, # 240462, Petitioner, v.Terry PITCHER, Respondent,

No. CIV.01-CV-71184-DT.

United States District Court, E.D. Michigan, Southern Division.

March 21, 2002.

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Mario Friday, Muskegon, MI, pro se.

Brenda E. Turner, Brad H. Beaver, Michigan Department of Attorney, General Habeas Corpus Division, Lansing, for Respondent.

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS

STEEH, District Judge.

I.Introduction

Mario Darnell Friday, ("petitioner"), presently confined at the Muskegon Correctional Facility in Muskegon, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254.In his application, filed pro se, petitioner challenges the legality of his conviction after a bench trial in the Recorder's Court for the City of Detroit of one count of second degree murder, M.C.L. § 750.317, and one count of possession of a firearm during the commission of a felony ("felony firearm").M.C.L. § 750.227b. Petitioner was sentenced to twenty-five to sixty-five years imprisonment for second degree murder and a consecutive two years imprisonment for felony firearm.Petitioner challenges his sentence for second degree murder, as well as his conviction of that crime.The Court concludes for the following reasons that the petition must be denied.

II.Factual Background

Petitioner was convicted of murdering Frank Marzett on December 22, 1993.¹"The trial court found as fact at the conclusion of trial that defendant, without the slightest justification or legitimate concern for his own safety, shot the victim in the back five times with a semi-automatic pistol."People v. Friday, Michigan Court of AppealsDocket No. 182604(July 29, 1997).The evidence established that petitioner and Mr. Marzett were members of a group which stole cars.The evidence also showed that petitioner and Mr. Marzett had a dispute over one of the cars members of the group may have stolen.Tony Ingram testified that petitioner had accused Mr. Marzett of taking one of his friend's cars and threatened to catch him.

Petitioner testified on his own behalf that, immediately before he shot the victim, the victim "turned around and went in his pocket on me."Trial Transcript ("Tr.")November 10, 1994at 82.Petitioner admitted never seeing a gun on Mr. Marzett.Petitioner further testified that, although he did not know if the victim was pulling something out of his pocket or what the victim was doing, he(petitioner)"was in fear for my life."Id. at 83.Petitioner denied having intended to shoot Mr. Marzett.However, petitioner also testified that he shot Mr. Marzett in the back from a distance of about three to five feet.Mr. Marzett ran away when petitioner began shooting at him, but petitioner kept firing anyway.

Petitioner acknowledged that he fired several shots at Mr. Marzett.He was not sure how many.Five shell casings fired from the murder weapon were found at the scene.Petitioner also testified that he pulled the trigger only once, but the gun kept firing.Tr.November 10, 1994at 86-88, 107-110.However, it was stipulated that the murder weapon was recovered and "test fired and found to be normally operable.And that it is a semi-automatic and not fully automatic."Id. at 61-62.In other words, it was stipulated that the trigger had to be pressed separately for every shot the gun fired.Pressing the trigger once and holding it down would only fire one shot.Pressing the trigger and releasing it without pressing it again would only fire one shot.To fire five shots, the trigger had to be pressed five times after being released following each shot fired.

Forensic evidence showed that two .22 caliber bullets struck Mr. Marzett in the back of his upper right arm.A third .22 caliber bullet struck him in the left shoulder blade.This bullet passed through the shoulder area, passed through the left lung, aorta, trachea, and right lung, and then exited the body through the right upper chest area.It was this bullet which caused Mr. Marzett's death.

III.Procedural History

Petitioner was convicted of second degree murder and felony firearm on November 14, 1994, after a bench trial before Judge Vera Massey Jones of the Recorder's Court for the City of Detroit.Petitioner was sentenced on November 30, 1994, to twenty-five to sixty-five years for second degree murder and a consecutive two year term for felony firearm.

Petitioner appealed his conviction as of right to the Michigan Court of Appeals, raising a single issue:

I.The sentence imposed is disproportionate to this eighteen year old high school student with no prior criminal record, especially because the sentencing court focused on the defendant's lifestyle and associations rather than on the instant offense.

Petitioner subsequently returned to the trial court and filed a motion for relief from judgment raising the following claims:

I.Petitioner's second degree murder conviction is supported by insufficient evidence.

II.Petitioner's arrest was illegal as was the failure to provide him counsel or a parent at the time of arrest.

III.The arrest warrant was invalid.

IV.Petitioner received ineffective assistance of appellate counsel in his appeal of right.

V.Petitioner received ineffective assistance of trial counsel.

The trial court denied the motion in an order dated March 18, 1999.The trial court's order briefly states that petitioner's claims lack merit, summarizing the matter as follows:

An evidentiary hearing was held wherein defendant admitted that he freely gave a statement to the police concerning the murder.The evidence at that hearing established that the defendant was brought to the police station by his mother.Further, the defendant made the statement within 45 minutes of arriving at the station.Therefore, no unlawful detention occurred.Evidence of malice was shown by multiple gun shots.One being to the back of the deceased.

It would have been a waste of time for appellate counsel to raise these issues.Appellate counsel raised the only meritorious issue.

People v. Friday, Order, Third Judicial Circuit Court Criminal DivisionDocket No. 94-0000918(March 18, 1999).

The trial court's order also states:

Thus, defendant has failed to show good cause for failure to raise these issues in prior appeals.Nor has defendant established that he is entitled to the relief request [sic].

Id.

Petitioner sought leave to appeal the trial court's denial of his motion for relief from judgment in the Michigan Court of Appeals.The Michigan Court of Appeals denied petitioner's delayed application for leave to appeal"for failure to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)."People v. Friday, Michigan Court of AppealsDocket No. 219419(March 22, 2000).

The Michigan Supreme Court denied petitioner's delayed application for leave to appeal"because the defendant has failed to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D)."People v. Friday, Michigan Supreme CourtDocket No. 116838(September 26, 2000).

On or about March 27, 2001, petitioner filed the instant petition for a writ of habeas corpus in this Court, raising the following claims for relief:

I.Petitioner's second degree murder conviction is supported by insufficient evidence.

II.Petitioner was denied due process and equal protection when he was arrested and detained as a juvenile without probable cause and was interrogated by the police without an attorney or adult present.

III.Petitioner was arrested without a valid warrant.

IV.Petitioner was denied the effective assistance of appellate counsel in his appeal of right.

V.Petitioner was denied the effective assistance of trial counsel.

VI.Petitioner's constitutional rights were violated by application of Michigan's automatic juvenile waiver statute, M.C.L. 600.606.

VII.Petitioner's twenty-five to sixty-five year sentence for second degree murder violates the Eighth Amendment's prohibition against cruel and unusual punishment.²

Respondent has answered the petition.Respondent asserts that review of all of petitioner's claims for habeas relief is barred by his procedural default of failing to properly raise the claims in his appeal of right or in his motion for relief from judgment and having no available procedure to present these claims the Michigan state courts at this time.Respondent notes that the orders of the Michigan Court of Appeals and Michigan Supreme Court may be regarded as ambiguous unexplained orders which do not clearly and explicitly rely on procedural default as their basis of decision, because these courts' orders only cite M.C.R. 6.508(D), without indicating that these courts meant to invoke the procedural default provision of that rule, M.C.R. 6.508(D)(3).But see, Simpson v. Jones,238 F.3d 399, 407(6th Cir.2000).However, respondent adds that, assuming that the state appellate courts' orders constitute unexplained orders, this Court must read through the appellate courts' orders to the last explained order, the trial court's order denying petitioner's motion for relief from judgment.As noted, the trial court's order denying relief denied petitioner's claims on the merits and also stated that petitioner had not shown good cause for his failure to raise his claims in his prior appeals.The latter statement by the trial court was a clear and explicit reference to the procedural bar of M.C.R. 6.508(D)(3).

IV.Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132,110 Stat. 1214("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus.The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996.Because petitioner's application was filed after April 24, 1996, the provisions of the...