Guilmette v. Howes
| Decision Date | 10 September 2008 |
| Docket Number | Case No. 05-CV-72646-DT. |
| Citation | 577 F.Supp.2d 904 |
| Parties | Bruce Michael GUILMETTE, Petitioner, v. Carol HOWES, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Kimberly A. Thomas, University of Michigan, Ann Arbor, MI, for Petitioner.
Brenda E. Turner, William C. Campbell, Michigan Department of Attorney General, Lansing, MI, for Respondent.
Petitioner Bruce Michael Guilmette has filed a pro se application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The habeas petition attacks Petitioner's state conviction for first-degree home invasion. The Court concluded from a review of the pleadings and record that Petitioner was deprived of effective assistance of counsel by his attorneys' failure to conduct a thorough investigation of the facts and failure to contest the prosecution's proofs on an element of the offense. Accordingly, the habeas petition is GRANTED.
Petitioner was charged in Livingston County, Michigan with breaking and entering Don and Joan McCormick's residence in Howell, Michigan on January 7, 1999. Mrs. McCormick watched television about noon that day. She saw a man walk in front of her window. The man rang her front doorbell for a long time and then walked away. She lost sight of him for a few minutes, but he came back and began ringing the doorbell again. He then banged on the door, which "came crashing open." Mrs. McCormick screamed and ran toward the kitchen. She tripped and fell, but when she glanced back, nobody was there. She looked out the window and saw the man running off the porch toward a gray Chevy minivan. He ran past the driver's door, came back around, got in the driver's side of the van, and drove away.
Mrs. McCormick identified Petitioner in two photo arrays. At the preliminary examination, she was unable to distinguish between Petitioner and his brother, who was seated nearby, but she thought that one of them was the man who broke into her home. At trial, she testified that Petitioner looked a lot like the man who was at her house.
The prosecution introduced evidence that Petitioner pleaded guilty to home invasion in another case where the modus operandi was similar. Other evidence included photographs of two footprints discovered at the McCormicks' home. Michigan State Trooper Jennifer Coulter photographed a footprint that was visible on the snowy walkway leading to the McCormicks' front door. A forensic scientist identified the approximate size of the shoe or boot and the brand of footwear which created the footprint, but the police were unable to find any footwear matching the footprint when they searched Petitioner's home on January 21, 1999.
Mrs. McCormick took a photograph of a different footprint after Trooper Coulter finished investigating the crime scene and left the premises. Her photograph depicted a partial footprint on the threshold of the front door to her home. The prosecution relied solely on that photograph to establish entry into the home.
The defense theory was one of mistaken identity. Petitioner did not testify, but he produced several witnesses. The director of a substance abuse center testified about a computer-generated receipt, which purported to show that Petitioner was present at the center on Seven Mile Road in Detroit, Michigan at 12:38 p.m. on the day of the home invasion. The director admitted that the computer did not keep accurate time and was running eighteen minutes slow when tested nineteen days after the home invasion. Consequently, the time that Petitioner actually checked into the center could have been eighteen minutes later than the time stamped on his receipt.
Four other defense witnesses (Petitioner's father, brother, former girlfriend, and mechanic) testified about the malfunctioning driver's door on Petitioner's van. The former girlfriend testified that the door was inoperable in January of 1999.
A detective testified on rebuttal that the distance between the McCormicks' residence in Howell and the substance abuse center in Detroit was fifty miles. During a test drive on January 26, 1999, the detective covered the distance in forty-five minutes, using the most direct route and driving 80 to 85 miles per mile on the highway because he thought that a person who was trying to establish an alibi defense would want to arrive at his destination as quickly as possible. The detective's trip was delayed by six minutes due to a road repair crew, which was working on the highway.
On December 9, 1999, a Livingston County circuit court jury found Petitioner guilty, as charged, of first-degree home invasion, MICH. COMP. LAWS § 750.110a(2). The trial court sentenced Petitioner as a habitual offender, fourth offense, to imprisonment for twenty to thirty years.
Petitioner appealed his conviction as of right, arguing that (1) the pretrial identification procedures were suggestive and he was entitled to counsel at the second photographic lineup, (2) the prosecution failed to produce sufficient evidence, (3) the admission of other acts evidence resulted in a miscarriage of justice, (4) the jury instructions were erroneous, and trial counsel was ineffective for failing to object to the instructions, and (5) the trial court erred when it vacated the initial sentence and then sentenced Petitioner to a longer term in prison as a habitual offender. Petitioner asserted in a pro se supplemental brief that his trial attorney was ineffective for failing to suppress and object to the photograph of a footprint taken by Mrs. McCormick after investigators left her home. He claimed that the photograph was not corroborated or authenticated and that the prosecutor improperly argued that the photograph was proof of entry into the home. The Michigan Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished per curiam opinion. See People v. Guilmette, No. 224720, 2002 WL 570934 (Mich.Ct.App. Apr. 16, 2002). On December 4, 2002, the Michigan Supreme Court denied leave to appeal. See People v. Guilmette, 467 Mich. 910, 655 N.W.2d 556 (2002) (table). Petitioner filed a petition for a writ of certiorari, which the United States Supreme Court denied on May 5, 2003. See Guilmette v. Michigan, 538 U.S. 1015, 123 S.Ct. 1932, 155 L.Ed.2d 852 (2003).
On August 5, 2003, Petitioner filed a motion for relief from judgment in which he raised his habeas claims (ineffective assistance of trial and appellate counsel). The trial court denied his motion after concluding that Petitioner's attorneys were not ineffective. Both state appellate courts denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Guilmette, No. 252592 (Mich.Ct.App. Apr. 23, 2004); People v. Guilmette, 471 Mich. 947, 690 N.W.2d 108 (2004) (table).
Petitioner filed his pro se habeas corpus petition on July 5, 2005. He raised two grounds for relief:
I. Ineffective Assistance of Counsel— Failure to Investigate, Prepare, and Assert Defenses.
II. I was denied the effective assistance of appellate counsel by counsel's failure to obtain entire record and raise issues for appeal.
Earlier this year, the Court appointed counsel for Petitioner, who moved to amend the habeas petition to include an additional argument that the pretrial photographic array was unduly suggestive. The Court denied the motion, but accepted Petitioner's supplemental brief in support of his original habeas claims.
Respondent argues that Petitioner was not represented by ineffective attorneys and that he procedurally defaulted his claims by not raising the claims on direct review of his conviction. Petitioner replies that his claims are not procedurally defaulted and, even if they were, his appellate attorney was "cause" for the procedural default.
A procedural default is "a critical failure to comply with state procedural law ...." Trest v. Cain, 522 U.S. 87, 89, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997). "Federal courts must consider four factors when assessing whether a habeas petitioner has procedurally defaulted his claims." Beuke v. Houk, 537 F.3d 618, 630 (6th Cir.2008) ().
First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule. Second, the court must decide whether the state courts actually enforced the state procedural sanction. Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.
Id. (quoting Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.2001) (quoting Maupin, 785 F.2d at 138)).
"Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground," the court must move to the fourth factor. Maupin, 785 F.2d at 138. The fourth factor allows a petitioner to avoid or excuse procedural default if he demonstrates "that there was cause for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error." Id. (quotation omitted).
The state procedural rule in question here is Michigan Court Rule 6.508(D).1 Subsection (3) of Rule 6.508(D) prohibits state courts from granting relief from judgment if the defendant alleges nonjurisdictional grounds that could have been raised on appeal from the conviction or sentence. An exception exists when the defendant demonstrates "good cause for failure to raise such grounds on appeal" and ...
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Guilmette v. Howes
...were constitutionally ineffective because they failed to investigate the differences between the two photographs. Guilmette v. Howes, 577 F.Supp.2d 904, 910-16 (E.D.Mich.2008). The district court determined that Guilmette had not procedurally defaulted this claim, citing Abela v. Martin, 38......
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Guilmette v. Howes, CASE NO. 05-CV-72646-DT
...habeas corpus and ordered the State to release Petitioner unless it granted him a new trial within ninety days. See Guilmette v. Howes, 577 F. Supp. 2d 904 (E.D. Mich. 2008). At the State's request, the Court stayed its judgment pending appellate review. See Dkt. #50. On October 21, 2010, t......