Hanks v. Jackson
| Citation | 123 F.Supp.2d 1061 |
| Decision Date | 21 November 2000 |
| Docket Number | No. CIV. A. 99-40497-FL.,CIV. A. 99-40497-FL. |
| Parties | Danny Earl HANKS, Petitioner, v. Andrew JACKSON, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Danny Hanks, Lapeer, MI, Pro se.
Janet Van Cleve, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Respondent.
Petitioner, Danny Earl Hanks ("Petitioner"), presently confined at the Huron Valley Men's Correctional Facility in Ypsilanti, Michigan, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is confined in violation of his constitutional rights. In his application, petitioner challenges his convictions after a jury trial for armed robbery, M.C.L. § 750.529, unlawful driving away of a motor vehicle, M.C.L. § 750.413, and felony firearm, M.C.L. § 750.227b. Petitioner was sentenced to concurrent terms of twenty to fifty years imprisonment for armed robbery and three years and four months to five years imprisonment for unlawfully driving away a motor vehicle and a consecutive two year term for felony firearm. For the reasons set forth below, the Petition for Writ of Habeas Corpus shall be denied.
Petitioner's convictions arise out of an armed home invasion of the Marcellus, Michigan, home of Mr. Terry Ferrell and his wife Mrs. Patty Ferrell. Also present during the home invasion were the three Ferrell children, Blake, Colleen, and Tara; a young man living with the Ferrells named Nakia Davis, and three visitors named Richard Pease, Robert Pease, and Richard Clark. On October 20, 1993, while those present at the Ferrell home were watching a World Series baseball game on television, two armed men forced their way inside. One of the intruders wore a ski mask. The other, subsequently identified as Petitioner, was not masked. Both intruders were armed with handguns.
The intruders struck several of the adult male victims on the head with their handguns while pointing their guns at all of the victims. The intruders forced Patty Ferrell and one of the Ferrell daughters to show them the whereabouts of money and valuables. The intruders found and stole cash, jewelry, hunting rifles and shotguns, and some marijuana. The unmasked intruder forced Patty Ferrell to show him around the house looking for valuables. Most of the victims were immobilized with duct tape by their assailants. The intruders drove off with Mr. Pease's car. The entire criminal episode lasted about thirty or forty minutes. No identifiable fingerprints were found on any of the duct tape used to bind the victims or any objects in the victims' home.
In January of 1994 Robert Pease saw a man in the Decoy Ducks Bar in nearby Lawton, Michigan, whom he recognized as the unmasked intruder. The intruder had pointed a gun at Pease's head and hog-tied him with duct tape. Pease sat with the man at the bar and drank a beer with him. The man related that he owned a gun and recently came to the area from Kentucky. Pease went to the police with this information. Pease described the assailant as unshaven and having a pockmarked face. The unmasked intruder was described by various witnesses as being about five feet nine or ten inches tall, weighing between one hundred and fifty to one hundred and eighty-five pounds. He was wearing a jacket which obscured his body build. Witnesses described the unmasked man as being in his thirties, having wet dark brown or black hair and a mustache, and a pockmarked face.
On the basis of accounts of the home invasion and Robert Pease's subsequent viewing of the man suspected of being the unmasked intruder at the Decoy Ducks, the police constructed a photo array of six photos including one of Petitioner, which they showed to Patty Ferrell. Patty Ferrell identified the picture of Petitioner as being that of the unmasked perpetrator. Tr. Vol. II at 49-50.
Robert Pease identified Petitioner as the unmasked home invader at Petitioner's trial. Robert Pease saw the man's face at a close distance for about ten minutes during the home invasion and about ten minutes in the Decoy Ducks Bar. He described the unmasked intruder as having a pockmarked complexion. During the trial, Robert Pease was allowed to walk to the defense table and observe Petitioner from across the table, to approximate the distance from which he had seen him during the incident. Robert Pease was then asked if the marks he saw on Petitioner's face appeared to be pockmarks. He replied that they did. Tr. Vol. I at 142-43.
Terry Ferrell identified Petitioner at trial as the unmasked intruder. Terry Ferrell saw the unmasked intruder intermittently throughout home invasion as the intruder went about the house looking for valuables, demanding information from the victims about marijuana and other valuables, and tying the victims' hands and feet with duct tape.
Richard Clark was sitting in Robert Pease's car when the masked gunman told him to go into the house. Clark did so. Once inside, the unmasked gunman hit him on the head. Clark got a brief, close look at the unmasked gunman's face. Clark identified Petitioner at his trial as the unmasked gunman.
Colleen Ferrell was eight years old at the time of the crimes. Colleen Ferrell went upstairs with the unmasked intruder and showed him where some money, dope, and other items were. The lights were on. Colleen Ferrell identified Petitioner as the unmasked intruder.
Nakia Davis was a high school senior living with the Ferrells. The intruders ordered him to the ground during the home invasion. He got on the ground near some of the small children. He got a good look at the unmasked intruder. Nakia Davis looked up several time during the incident, despite being ordered not to do so. One of the intruders eventually kicked him in the ribs breaking one of them, because he kept looking up. Nakia Davis testified at Petitioner's trial that he was certain Petitioner was the unmasked intruder.
Tara Ferrell was eight years old at the time of the home invasion. She testified that she saw a man come in with a gun pointed at Robert Pease's head and that the gunman ordered them to get on the ground and not look or he would shoot them. At first she looked at the man anyway. Then she sat down on the floor and closed her eyes. Tara Ferrell identified Petitioner as the unmasked intruder.
Patricia Ferrell testified that she was in the shower when the home intrusion began. She heard her husband's voice and noticed a tone of distress in his voice, but continued showering anyway. Soon afterwards, she heard her husband's distressed voice again. She turned off the shower. Moments later the bathroom door opened and a someone flung open the shower curtain. She was face to face with an armed man who pointed a gun at her and repeatedly demanded to know where the money, guns, and dope were. Patricia Ferrell described the unmasked man as not tall, of a slight to medium build, white with a rough complexion, dark wet hair, and a rough, scruffy looking mustache. Tr. Vol. II at 21-22. He spoke decisively with a distinctive Southern accent. The man continued to demand money, guns, and dope, so she walked to her bedroom and gave the man about six hundred dollars which her husband had in his dresser drawer. After she gave him the money, they walked downstairs together.
Patricia Ferrell viewed two photo displays as part of the police investigation of the incident. She did not identify anyone at the first photo display. She identified Petitioner at the second photo display. At trial, Patricia Ferrell identified Petitioner as the unmasked gunman whom she had seen face-to-face for a considerable time while she was standing in the bathtub and he was standing just outside of it. When asked if she was certain if Petitioner was the unmasked robber, she replied: Tr. Vol. II at 39.
Petitioner presented several witnesses.
Walter Gersitz testified that he was an acquaintance of Nakia Davis and that he picked him up at the hospital after the home invasion. Upon hearing of the incident from Davis, Gersitz suspected that a man named Tim Holden had actually been the unmasked intruder. Gersitz described Tim Holden as being of uncertain height, "about one hundred and eighty pounds, pitted face, dirty, southern accent." Tr. Vol. II at 77. According to Gersitz, Holden drove a van similar to one seen outside the Ferrells' home the night of the robbery. Gersitz also testified that Nakia Davis became very upset when he saw the van parked near the home of an associate of Tim Holden later that night. On cross-examination, Gersitz admitted that Davis was generally agitated the entire time after leaving the hospital, and seemed emotionally excited, stressed, and terrified by the events which had taken place and became more excited when he recounted them.
Brenda Mitchell testified that she had known Petitioner for all of her life. Petitioner was living downstairs from her at the time of the incident. Brenda Mitchell testified that, on Wednesday, October 20, 1993, the night of the criminal episode, Petitioner was playing cards at her house with her and her friends and relatives at a regular Wednesday night card game. She remembered this particular game because October 20th was the birthday of her father, Ollice Teague. Her father had passed away in May of 1993 and this was the first anniversary of his birth after his passing. Petitioner was at her home the entire evening playing cards and drinking. He passed out on the couch at about 12:30 a.m. He got up and went to his apartment at about 4:30 a.m. Brenda Mitchell testified that, to her knowledge, Petitioner weighed about one hundred and...
To continue reading
Request your trial
-
Baker v. Barrett
...show that the sentencing court actually relied on this information and that it was materially false." Hanks v. Jackson, 123 F. Supp. 2d 1061, 1074 (E.D. Mich. 2000) (Gadola, J.). Here, petitioner does not point to any inaccurate factual information that the trial court relied on in departin......
-
Cistrunk v. Campbell
...been returned. United States v. Ash, 413 U.S. 300, 321 (1973); Van v. Jones, 475 F.3d 292, 311 (6th Cir. 2007); Hanks v. Jackson, 123 F. Supp. 2d 1061, 1071 (E.D. Mich. 2000).2 Thus, the mere fact that Petitioner's counsel of choice or counsel in general was not present during the photograp......
-
Baker v. Barrett
...“must show that the sentencing court actually relied on this information and that it was materially false.” Hanks v. Jackson, 123 F.Supp.2d 1061, 1074 (E.D.Mich.2000) (Gadola, J.). Here, petitioner does not point to any inaccurate factual information that the trial court relied on in depart......
-
Mitchell v. Vasbinder
...where there is no claim that the sentence violates the cruel and unusual punishment clause of the Eighth Amendment. Hanks v. Jackson, 123 F.Supp.2d 1061, 1075 (E.D.Mich.2000). Here, the state appellate court found that Petitioner's sentence was not disproportionate, based on his criminal hi......