Hardaway v. Burt, CASE NO. 13-13144

• Decision Date: 09 May 2016
• Docket Number: CASE NO. 13-13144
• Parties: HOLLAND HARDAWAY, Petitioner, v. SHARON L. BURT, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

HOLLAND HARDAWAY, Petitioner, v. SHARON L. BURT, Respondent.

CASE NO. 13-13144

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 9, 2016

HONORABLE GEORGE CARAM STEEH

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

State prisoner Holland Hardaway ("petitioner") has filed a pro se application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The habeas petition challenges petitioner's 1994 conviction for second-degree murder, Mich. Comp. Laws § 750.317, and possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. Petitioner currently is serving a sentence of forty to eighty years in prison for the murder conviction. He alleges in his habeas petition that: (1) his trial attorney was ineffective; (2) the trial court violated the Michigan Code of Judicial Conduct and his right to due process by failing to disqualify itself and by denying his request to appeal the court's ruling; (3) the trial court violated his right to present a defense and to confront the witnesses against him by limiting his cross-examination of a witness; (4) the jury instruction on intent was defective; (5) the trial court's instruction to the deadlocked jury was an incorrect statement of the law; (6) the prosecutor committed misconduct by arguing facts not in evidence and by commenting on a possible motive for the shooting; (7) the prosecutor withheld exculpatory material about a witness's prior statements; and (8) he was denied a meaningful and speedy appeal. Petitioner procedurally defaulted some of these claims, and the state appellate court's rejection of the remaining claims was objectively reasonable. The Court therefore will deny the habeas petition.

I. Background

A. The Charges, Verdict, Sentence, and First Appeal

Petitioner was charged in Wayne County, Michigan with one count of open murder,¹ one count of assault with intent to commit murder, and one count of felony firearm, second offense. The evidence at petitioner's jury trial in the former Recorder's Court for the City of Detroit established that

[o]n the evening of October 2, 1993, undercover Detroit police officers Clifton Counts and Norman Spruiel parked their unmarked cars on a dead end street and stood outside discussing the details of a manhunt they were conducting to find a murder suspect. Wendell Hardaway, defendant's cousin, owned an auto body repair shop nearby. He claimed that a suspicious-looking vehicle drove by and parked down the street. Defendant and Gregory McDonald were also at the shop working on cars. Defendant briefly went home but returned to assist Wendell in closing and securing the shop for the night. Defendant admittedly retrieved a rifle from his home before returning to the shop. Defendant claimed that his cousin was nervous about the suspicious vehicle parked down the road.

Defendant testified that he saw a man with a gun standing by a parked vehicle. Defendant claims to have stopped his vehicle to ask the man "what he was doing." According to defendant's version of events, the armed man fired at him and defendant shot back in self-defense. Defendant denied knowing that Spruiel was a police officer.

Officer Counts, on the other hand, testified that defendant drove slowly by in a black Camaro twice while he and Officer Spruiel talked. At some point, two men in a gold car—Wendell Hardaway and McDonald—drove adjacent to the officers and shined the car's headlights on them. The men queried "what's happening," at which point Counts asserted that he revealed his badge and told the men to move along. Defendant then drove up in his Camaro, pulled to a stop and alighted from the vehicle. Counts saw defendant holding a rifle and heard four shots. Counts saw Spruiel collapse and heard defendant say, "[F]ucking police." Counts shot toward defendant and the gold car, whose passenger also had a gun. Defendant and his associates in the gold car returned fire and then drove away from the scene. Spruiel died from his gunshot wounds.

People v. Hardaway, No. 304814, 2013 WL 132710, at *1 (Mich. Ct. App. Jan. 10, 2013).

On May 18, 1994, the jury acquitted petitioner of the assault charge, but found him guilty of second-degree murder and felony firearm. On June 8, 1994, the trial court sentenced petitioner to five years in prison for the felony firearm conviction and to a consecutive term of forty to eighty years in prison for the murder conviction.

Petitioner filed a claim of appeal through trial counsel, but the Michigan Court of Appeals dismissed the appeal for want of prosecution because the defense attorney failed to file a timely appellate brief. See People v. Hardaway, No. 177099 (Mich. Ct. App. Aug. 18, 1995). Petitioner then filed a delayed application for leave to appeal through another attorney. The Michigan Court of Appeals dismissed the delayed application as untimely. See People v. Hardaway, No. 202045 (Mich. Ct. App. Sept. 25, 1997). On September 29, 1998, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the questions presented to it. See People v. Hardaway, 459 Mich. 876; 585 N.W.2d 303 (1998) (table).

B. The Post-Conviction Motion and Subsequent Appeal

On or about December 21, 1998, petitioner filed a motion for relief from judgment in which he alleged that: (1) the trial court's comments to the deadlocked jury were coercive; (2) the trial court's failure to read the medical examiner's testimony to the jury deprived him of a fair trial; (3) the trial court abused her discretion in denying petitioner's motion for mistrial; (4) the prosecutor's statements resulted in misconduct; and (5) he was denied a fair trial due to ineffective assistance of counsel. The trial court denied petitioner's motion on the merits. The Michigan Court of Appeals denied leave to appeal "for lack of merit in the grounds presented," People v. Hardaway, No. 222000 (Mich. Ct. App. Mar. 30, 2000), and on December 12, 2000, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Hardaway, 463 Mich. 934; 622 N.W.2d 64 (2000) (table).²

C. The First Habeas Corpus Petition

In 2001, petitioner filed a federal habeas corpus petition in which he alleged that: (1) the trial court gave a coercive deadlocked-jury instruction; (2) trial counsel was ineffective for failing to (a) object to the trial court's refusal to read back testimony and (b) file a timely appellate brief; (3) the trial court erred in denying the jury's request to re-read testimony; and (4) the prosecutor (a) made an argument unsupported by the evidence and (b) improperly cross-examined petitioner on the arrest of his girlfriend.

The Court initially dismissed the habeas petition for failure to comply with the one-year statute of limitations for habeas petitions. See Hardaway v. Robinson, No. 01-70230 (E.D. Mich. Mar. 8, 2002). Petitioner appealed the Court's decision, but theUnited States Court of Appeals denied a certificate of appealability because petitioner failed to make a substantial showing of the denial of a federal constitutional right. See Hardaway v. Robinson, No. 02-1415 (6th Cir. Oct. 7, 2002). On March 24, 2003, the United States Supreme Court denied petitioner's application for a writ of certiorari. See Hardaway v. Robinson, 538 U.S. 926 (2003).

Petitioner subsequently moved for relief from judgment under Federal Rule of Civil Procedure 60(b) on the ground that the Court erred when it concluded that the statute of limitations ran more than one year. The Court then reinstated the habeas petition and vacated its judgment. See Hardaway v. Robinson, No. 01-70230 (E.D. Mich. Mar. 11, 2005, and Mar. 23, 2006). The Court subsequently denied petitioner's habeas corpus petition on the merits. See Hardaway v. Robinson, No. 01-70230 (E.D. Mich. Jan. 3, 2008). The Court granted a certificate of appealability on two issues: (1) whether the state trial court's supplemental jury instruction to the deliberating jury was coercive; and (2) whether petitioner's first appellate attorney was ineffective for failing to file a timely appellate brief.

The United States Court of Appeals for the Sixth Circuit found no merit in petitioner's claim about the allegedly coercive jury instruction. The Sixth Circuit nevertheless held that appellate counsel's failure to file a timely appellate brief deprived petitioner of a direct appeal, which was not cured by the ability to appeal from later state collateral proceedings. Accordingly, the Court of Appeals reversed this Court's denial of habeas relief and remanded the case with instructions to issue a conditional writ directing the state to afford petitioner a direct appeal. See Hardaway v. Robinson, 637F.3d 640 (6th Cir. 2011), amended, 655 F.3d 445 (6th Cir. 2011). On remand, this Court granted a conditional writ of habeas corpus on petitioner's claim that his first appellate attorney was ineffective. See Hardaway v. Robinson, No. 01-70230 (E.D. Mich. June 23, 2011).

D. The Appeal of Right and Second Habeas Corpus Petition

Following this Court's grant of a conditional writ of habeas corpus, the state court appointed counsel for petitioner and provided him with a new appeal of right. The Michigan Court of Appeals subsequently affirmed petitioner's convictions and sentence. See People v. Hardaway, No. 304814, 2013 WL 132710 (Mich. Ct. App. Jan. 10, 2013). On May 28, 2013, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the questions presented to it. See People v. Hardaway, 494 Mich. 856; 830 N.W.2d 393 (2013) (table).

Finally, on July 19, 2013, petitioner filed the habeas corpus petition now before the Court. Respondent asserts in an answer to the petition that petitioner failed to exhaust state remedies for his eighth claim and that petitioner procedurally...