Harris v. Bauman

• Decision Date: 09 August 2016
• Docket Number: CIVIL NO. 4:14-CV-11604
• Parties: LEON JUNIOR HARRIS, Petitioner, v. CATHERINE BAUMAN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

LEON JUNIOR HARRIS, Petitioner, v. CATHERINE BAUMAN, Respondent.

CIVIL NO. 4:14-CV-11604

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 9, 2016

HONORABLE LINDA V. PARKER UNITED STATES DISTRICT COURT

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

Leon Harris ("Petitioner"), confined at the Oaks Correctional Facility in Manistee, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, Petitioner challenges his conviction for assault with intent to commit murder, M.C.L.A. 750.83; and felony firearm, M.C.L.A. 750.227b. For the reasons stated below, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

I. Background

Petitioner was charged with first-degree murder, assault with intent to commit murder, and felony-firearm. Following a jury trial in the Wayne County Circuit Court, Petitioner was acquitted of the first-degree murder charge, but convicted of the remaining charges.

Louis Hence testified that on April 7, 2007, he went with his cousin Rico Hence to a house at 9300 Forrer in Detroit, Michigan. (Tr. 122 June 23, 2009.) Louis and Rico entered and saw Jermaine Johnson, a friend from the neighborhood. (Id. at 122-24.) Rico informed Johnson that he was there to see Petitioner. (Id. at 125.) When Petitioner arrived at the house, Rico told Louis to go to the back of the house, but Louis left the room and stood around the corner. (Id. at 127-28.)

Louis Hence could hear Petitioner speaking with Rico, but he could not hear the precise nature of the conversation. (Id. at 130.) Rico sounded aggressive, as though he was taunting Petitioner. (Id.) Petitioner and Rico began fighting with one another. (Id. at 130-31.) Louis Hence testified that Johnson ran out the front door. (Id. at 133.) Louis ran out behind him. (Id.) Louis Hence testified that he did not have a gun, and to his knowledge, Rico did not have one either. (Id. at 160-61, 166). While running away from the house, Louis Hence heard multiple gunshots fired from inside the house. (Id. at 134.) As Louis continued running, he heard more gunshots. (Id. at 135.) One of the gunshots struck Louis in the back. (Id. at 136.) Louis turned around and observed a person wearing dark clothes jump off the porch and run away from the house. (Id. at 137.) Louis kept running, but noticed that he was bleeding heavily, sohe stopped at a house and called his girlfriend to come pick him up and take him to the hospital. (Id. at 138.)

The following morning, police were called to an abandoned Saturn SUV blocking an alley in the area of West Bethune and 12th Street, which is approximately 8-10 miles from 9300 Forrer Street. (Id. at 190-91.) The police discovered Rico Hence's body, covered with a black coat, in the rear cargo area of the vehicle. (Id.) One of Rico's shoes was missing and his pants were pulled down below his waist. (Id. at 225, 227-28).

Police searched 9300 Forrer and recovered four 40 caliber shell casings and bullet fragments in the living room. (Id. at 208-09.) Near the side door of the house, the police found a white Nike gym shoe and a black sweatshirt jacket with two bullet holes and a substantial amount of blood. (Id. at 210-11.) Police noticed a pool of blood in the living room and a blood trail that went from the kitchen, down the stairs to the side door, along the side of the house, and to a tree in the backyard. (Id. at 212-14.) Police saw tire tracks near a tree, which suggested that an injured person had been taken away from the location in a car. (Id. at 213.) Police also discovered two additional spent 40 caliber Smith and Wesson casings directly across from the house, about 130 feet southwest of the front of the house, and a fired bullet that had struck a vehicle parked 137 feet southwest of the house. (Id. at 233-37.) The Michigan StatePolice determined that the four casings found in the house and the two casings found on the street were all discharged from the same firearm. (Id., pp. 243-48.)

Jermaine Johnson testified for the defense. Johnson indicated that he, Rico, and Petitioner were all friends. (Tr. 26 June 24, 2008.) Rico had been at the house on Forrer Street earlier on the day of the shooting, and the men made plans to go to a bar later that night. (Id. at 28.)When Rico returned to the house with his cousin Louis around 9:30 p.m., Johnson complained that he had taken too long and that he wanted to eat. (Id. at 29.) Johnson testified that Rico pulled out a gun, pointed it at Johnson's stomach, and said "eat on this." (Id.) Rico then asked Louis to come inside the house. (Id. at 31-33.) Rico closed the door, patted Johnson down, before taking his money and cell phone. (Id. at 33-35.) Johnson testified that Louis Hence was also armed with a gun and stood behind Rico during the robbery. (Id. at 35. ) Rico struck Johnson in the face with the gun, and also stated that he had asked Petitioner for some money at the casino, but that Petitioner would not give it to him, and that consequently, he was going to take everything from Johnson that night, including his life. (Id. at 35-38.)

Petitioner arrived shortly thereafter to the house. Rico ordered told Louis to go behind a wall. (Id. at 42.) When Petitioner came inside, Rico pointed the gun at Harris and ordered him to put his hands up. (Id. at 43.) Rico then ordered Petitioner to call his girlfriend to tell her to bring over all of the money Petitioner had. (Id. at 45.)When Rico started to fumble around with some money that had been given to him, Petitioner grabbed Rico's gun and the two men began struggling over it. (Id. at 46.) As Rico began calling for Louis, Johnson ran out the front door. (Id. at 47.) Johnson testified that Louis ran out from behind the wall and chased him out the door. (Id. at 48.) Johnson heard three shots fired from inside the house and then two more outside, which he testified came from Louis shooting at him. (Id. at 48-49.) Johnson ran to Debra Ann Miller-Jones' house and banged hysterically at the door. (Id. At 50-51.) Johnson informed her that Petitioner was dead and that "they tried to stick him up." (Id. at 77-80.)

Petitioner's conviction was affirmed on appeal. People v. Harris, No. 287169 (Mich. Ct. App. Jan. 4, 2011); lv. den. 489 Mich. 900; 796 N.W. 2d 92 (2011).

Petitioner filed a post-conviction motion for relief from judgment, which the trial court denied. People v. Harris, No. 08-002516-01 (Wayne County Circuit Court, May 16, 2012). The Michigan appellate courts denied Petitioner leave to appeal. People v. Harris, No. 311500 (Mich. Ct. App. June 14, 2013); lv. den. 495 Mich. 939; 843 N.W.2d 212 (2014).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. There was insufficient evidence at trial to convict petitioner of assault with intent to commit murder and/or of using a firearm during the commission of a felony where there was ample support for his argumentthat he was acting in self-defense/defense of others.

II. The jury instruction regarding petitioner's alleged "flight" from the scene was erroneous as a matter of law and fact, warranting reversal.

III. The United States and Michigan Constitutions guarantee a criminal petitioner's right to the effective assistance of counsel. Petitioner's defense counsel was constitutionally deficient, given that: (A) Counsel failed to investigate the physical evidence that the Detroit Police Department lost or mishandled; (B) Counsel failed to provide evidence that would have convinced the jury that petitioner acted in defense of others; and (C) Counsel's failure to move to dismiss or to request an appropriate instruction based on the loss of the potentially exculpatory evidence denied petitioner a fair trial.

IV. Appellate counsel was ineffective or error is plain for not arguing the following: (A) Prosecution failed to inform petitioner of the information attained by police that there was possible video evidence and an interview of Derrick Robinson which would have shown that the victim had a weapon and was firing it at petitioner's friend. The failure to provide this evidence violated Brady v. Maryland, 373 U.S. 83 (1963). Alternatively, the petitioner is entitled to a new trial based on newly discovered evidence that supports the defense theory that petitioner was acting in defense of others. (B) Petitioner was deprived of his constitutional right to the effective assistance of counsel when his attorney failed to offer evidence that trial counsel was negligent in his efforts to represent petitioner.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person incustody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal...