Gilmore v. Sprader

• Docket Number: 2:19-cv-10631
• Decision Date: 03 June 2022
• Parties: JOSEPH LEE GILMORE, Petitioner, v. SCOTT SPRADER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

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JOSEPH LEE GILMORE, Petitioner, v. SCOTT SPRADER, Respondent.

No. 2:19-cv-10631

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

June 3, 2022

OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL

PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

Petitioner Joseph Lee Gilmore filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254. The petition challenges Gilmore's Michigan convictions for armed robbery, Mich. Comp. Laws § 750.529, first-degree home invasion, Mich. Comp. Laws § 750.110a(2), unlawful imprisonment, Mich. Comp. Laws § 750.349b, felon in possession of a firearm, Mich. Comp. Laws § 750.224f and felony firearm, second offense, Mich. Comp. Laws § 750.227b. See Pet. (ECF No. 1, PgID 1). Gilmore raises four claims about the prosecuting attorney's conduct, his trial and appellate attorneys, and the state trial court's denial of a one-day adjournment of the trial. Respondent Scott Sprader has asked the Court to deny the petition. See Answer in Opp'n to Pet. (ECF No. 9).

Having reviewed the pleadings and record, the Court agrees with Respondent that Gilmore's claims do not warrant habeas corpus relief. The Court, therefore, will deny the habeas petition and decline to issue a certificate of appealability. The Court, nevertheless, will allow Gilmore to appeal this decision in forma pauperis because he was granted pauper status in this Court, and an appeal could be taken in good faith.

I. Background

A. The Charges, Trial, and Sentence

Gilmore initially was charged in Wayne County, Michigan with two counts of armed robbery, one count of first-degree home invasion, three counts of unlawful imprisonment, one count of felon in possession of a firearm, one count of felony firearm, second offense, and one count of witness intimidation. He was tried before a jury in Wayne County Circuit Court. His first trial ended in a mistrial because the jury was unable to reach a consensus on the first eight counts, and it found Gilmore not guilty of the witness-intimidation count. See 5/16/13 Trial Tr. (ECF No. 10-14, PgID 434-39). The prosecutor then retried Gilmore on the first eight counts, and at the second trial,

the victims, Frank Graham and Italiya Anderson, identified defendant as one of the perpetrators. Although Graham never visibly observed defendant in the home during the robbery, Graham stated that he recognized defendant's voice based on previous conversations that he had with defendant during the three or four years that he had known him through their landlord-tenant relationship. In response to a question from the jury, Graham confirmed that he was “one hundred percent sure that it was [defendant's] voice” that he heard because he had talked to him “plenty of times.” Anderson, who had known defendant for eight or nine years, testified that she saw defendant in the house during the incident, specifically noticing his Cartier glasses and light skin. She also recognized defendant's voice when he spoke with the other perpetrators, asked Anderson where the money was located in the house, and instructed one of the perpetrators to check on a dog in the basement. Further, Graham testified that defendant threatened him by phone while defendant was in prison, and he identified defendant's voice on the recording of the phone call, which was admitted at trial.

People v. Gilmore, No. 318592, 2015 WL 558292, at *2 (Mich. Ct. App. Feb. 10, 2015). On August 23, 2013, the jury found Gilmore guilty of the eight counts against him. See 8/23/13 Trial Tr. at pp. 4-5 (ECF No. 10-20, PgID 1057-58).

The trial court sentenced Gilmore as follows: 270 to 750 months in prison for each robbery conviction; 110 to 240 months for the home-invasion conviction; 70 to 180 months for each unlawful-imprisonment conviction; 30 to 60 months for the felon-in-possession conviction; and 5 years for the felony-firearm conviction. See Gilmore, 2015 WL 558292, at *1. The court ordered the sentences for counts one through seven to run concurrently with each other and consecutively to the sentence for the eighth count. See Judgment of Sentence (ECF No. 10-26, PgID 1460).

B. The Direct Appeal

In an appeal of right, Gilmore argued through counsel that the trial court erred by denying his request for a one-day adjournment to present exculpatory witnesses and that the jury's verdict was based on insufficient evidence in violation of his right to due process. See Appellant's Brief (ECF No. 10-26, PgID 1475-76). In a pro se supplemental brief, Gilmore raised the same two issues and four additional claims about the trial court's failure to re-read testimony to the jury, his trial counsel's performance, the prosecutor's conduct, and the trial court's scoring of the sentencing guidelines. See Appellant's Pro Per Supplemental Brief (ECF No. 10-26, PgID 1522-23, 1528-31, 1620). The Michigan Court of Appeals affirmed Gilmore's convictions and sentences in an unpublished, per curiam opinion. See Gilmore, 2015 WL 558292.

Gilmore raised the same issues and a new claim about his appellate attorney in an application for leave to appeal in the Michigan Supreme Court. On December 23, 2015, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the questions presented to the court. See People v. Gilmore, 498 Mich. 957 (2015).

C. The First Habeas Petition and Gilmore's Motion for Relief from Judgment

In 2016, Gilmore filed a federal habeas corpus petition that was dismissed without prejudice after Gilmore filed a motion for relief from judgment in the state trial court. See Gilmore v. Burton, No. 16-cv-14512 (E.D. Mich. May 15, 2017). Gilmore's state-court motion for relief from judgment raised several issues about his trial and appellate attorneys. The trial court denied the motion on grounds that Gilmore's claims about trial counsel were barred by the principle of res judicata and that Gilmore was not prejudiced by appellate counsel's failure to (i) file a motion for new trial, (ii) petition the court for an evidentiary hearing, or (iii) raise any of the issues set forth in his motion. See People v. Gilmore, No. 12-004304-01-FH (Wayne Cnty. Cir. Ct. Aug. 9, 2017); ECF No. 10-21.

Gilmore appealed the trial court's decision without success. The Michigan Court of Appeals denied leave to appeal because Gilmore had failed to establish that the trial court erred in denying his motion for relief from judgment. See People v. Gilmore, No. 342318 (Mich. Ct. App. Apr. 26, 2018); ECF No. 10-23, PgID 1156. On December 4, 2018, the Michigan Supreme Court denied leave to appeal because Gilmore had failed to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Gilmore, 503 Mich. 914 (2018).

D. The Current Petition, Answer in Opposition, and Reply

In 2019, Gilmore commenced this case. The grounds for relief set forth in his habeas petition allege that: (1) the prosecutor violated his right to due process by using and failing to correct perjured testimony and by destroying and failing to preserve evidence; (2) trial counsel provided ineffective assistance by failing to (a) interview and compel the attendance of two key defense witnesses, (b) review phone calls for evidence of motive, and (c) contact and procure the attendance of witnesses that she promised to produce at trial; (3) appellate counsel was ineffective for failing to move for an evidentiary hearing to preserve claims about trial counsel and for failing to raise meritorious issues that were stronger than the issues which counsel raised; and (4) the trial court abused its discretion by denying Gilmore's request for a one-day adjournment to procure the attendance of key defense witnesses. See Pet. (ECF No. 1, PgID 5, 7-8, 10, 15).

Respondent argues in his answer to the petition that: Gilmore's prosecutorial-misconduct claims are procedurally defaulted and meritless; one of Gilmore's subclaims about trial counsel is procedurally defaulted and all the subclaims about trial counsel lack merit; the claims about appellate counsel lack merit; and the fourth claim regarding the denial of an adjournment is not cognizable on habeas review and lacks merit. See Answer in Opp'n to Pet. (ECF No. 9, PgID 176-78). In a reply brief, Gilmore disagrees with Respondent's arguments and maintains that none of his claims are procedurally defaulted. See Petitioner's Brief in Reply to Respondent's Answer (ECF No. 12).

II. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires prisoners who challenge “a matter ‘adjudicated on the merits in State court' to show that the relevant state court ‘decision' (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Wilson v. Sellers, 138 S.Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 2254(d)). Simply stated, “[f]ederal habeas courts must defer to reasonable state-court decisions.” Dunn v. Reeves, 141 S.Ct. 2405, 2407 (2021). This is a “highly deferential standard, ” which “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

“A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 ...