Harris v. Booker, Case No. 04-CV-74766-DT

• Court: U.S. District Court — Eastern District of Michigan
• Writing for the Court: AVERN COHN
• Citation: 738 F.Supp.2d 734
• Parties: Erwin HARRIS, Petitioner, v. Raymond BOOKER, Respondent.
• Decision Date: 08 September 2010
• Docket Number: Case No. 04-CV-74766-DT

738 F.Supp.2d 734

Erwin HARRIS, Petitioner,
v.
Raymond BOOKER, Respondent.

Case No. 04-CV-74766-DT.

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

Sept. 8, 2010.

738 F.Supp.2d 735

Federal Defender, Federal Defender Office, Flint, MI, Andrew N. Wise, Federal Defender Office, Detroit, MI, for Petitioner.

Brad H. Beaver, Michigan Department of Attorney General, Lansing, MI, for Respondent.

MEMORANDUM AND ORDER GRANTING HABEAS RELIEF ON DUE PROCESS CLAIM

AVERN COHN, District Judge.

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Michigan parolee Erwin Harris ("Petitioner") ¹ was convicted of two counts of armed robbery and two counts of possession of a firearm during the commission of a felony following a jury trial in the Washtenaw County Circuit Court in 1999. He was sentenced to concurrent terms of 10 to 20 years on the armed robbery convictions and to concurrent terms of two years imprisonment on the felony firearm convictions, to be served consecutively to the armed robbery sentences.

In his habeas application, Petitioner raised claims challenging the sufficiency of the evidence for one of the armed robbery convictions and for both of the felony firearm convictions, as well as a due process claim. On October 16, 2006, 2006 WL 2946771, the Court issued a Memorandum and Order denying Petitioner relief on his insufficient evidence claims, and dismissing the due process claim without prejudice to allow him to properly exhaust that issue in the state courts. See Dkt. # 24. Petitioner completed his remedies in the state courts and has returned to the Court to proceed on the now-exhausted due process claim. The parties have filed supplemental papers in support of their positions. The matter is ready for decision. For the reasons that follow, Petitioner is entitled to habeas relief on his due process claim.

II. Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed his habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in custody 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.

28 U.S.C. § 2254(d) (1996).

"A state court's decision is 'contrary to' ... clearly established law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.' " Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (quoting

738 F.Supp.2d 736

Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); see also Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). "[T]he 'unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to 'grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495); see also Bell, 535 U.S. at 694, 122 S.Ct. 1843. "In order for a federal court find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been 'objectively unreasonable.' " Wiggins, 539 U.S. at 520-21, 123 S.Ct. 2527 (citations omitted); see also Williams, 529 U.S. at 409, 120 S.Ct. 1495.

Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. See Williams, 529 U.S. at 412, 120 S.Ct. 1495; see also Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Section 2254(d) "does not require citation of [Supreme Court] cases—indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); see also Mitchell, 540 U.S. at 16, 124 S.Ct. 7. While the requirements of "clearly established law" are to be determined solely by the Supreme Court's holdings, the decisions of lower federal courts are useful in assessing the reasonableness of the state court's resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.2003); Dickens v. Jones, 203 F.Supp.2d 354, 359 (E.D.Mich.2002) (Tarnow, J.).

Lastly, this Court must presume that state court factual determinations are correct. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.1998).

III. Relevant Facts

Petitioner's convictions arise from an incident in which he and Eugene Mays robbed two people at a gas station in Washtenaw County, Michigan on September 28, 1998. The Michigan Supreme Court described the facts, which are presumed correct on habeas review, see Monroe v. Smith, 197 F.Supp.2d 753, 758 (E.D.Mich.2001), aff'd 41 Fed.Appx. 730 (6th Cir.2002), as follows:

Harris drove Eugene Mays to a gasoline station. Mays had a sawed-off shotgun in the vehicle. Harris first entered the store on the pretense of asking for directions. After leaving the store, he reentered moments later followed by Mays, who was wielding the shotgun. While Mays pointed the gun at the clerk, Harris approached a customer from behind and proceeded to remove the customer's wallet and other items from his pockets. The clerk refused to give Mays any money and pushed a button that locked the cash register. Although Harris repeatedly directed Mays to "pop," or shoot, the clerk after he locked the register, the two men left the store without physically harming either the clerk or the customer.

Defendant Harris was convicted by a jury on two counts of armed robbery, two counts of felony-firearm on an aiding and abetting theory, and one count of fleeing and eluding the police.

738 F.Supp.2d 737

People v. Moore, 470 Mich. 56, 60-61, 679 N.W.2d 41 (2004) (footnotes omitted).

As part of his direct appeal, Petitioner challenged the sufficiency of the evidence to support his felony firearm convictions asserting that the prosecution failed to present evidence that he assisted Mays in obtaining or retaining the firearm used during the robberies. Michigan's felony firearm statute provides, in relevant part:

A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony ... is guilty of a felony, and shall be imprisoned for 2 years.

Mich. Comp. Laws § 750.227b(1). The purpose of the felony firearm statute is to enhance the penalty for possessing firearms during the commission of felonies and to deter the use of guns. See Wayne Co. Prosecutor v. Recorder's Ct. Judge, 406 Mich. 374 391, 280 N.W.2d 793 (1979), overruled in part on other grounds, People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984). The aiding and abetting statute provides:

Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.

Mich. Comp. Laws § 767.39. The purpose of the aiding and abetting statute is to abolish the distinction between accessories and principals to an offense so that both may be punished equally upon conviction for the crime. See People v. Palmer, 392 Mich. 370, 378, 220 N.W.2d 393 (1974).

In People v. Johnson, 411 Mich. 50, 303 N.W.2d 442 (1981), the Michigan Supreme Court held that a person could be convicted of aiding and abetting felony firearm only if he or she aided the principal in either "obtaining" or "retaining" possession of the firearm used during the attempted or completed felony. Johnson, 411 Mich. at 54, 303 N.W.2d 442. That standard was in effect at the time of Petitioner's crimes.

Citing Johnson, the Michigan Court of Appeals ruled that the prosecution presented sufficient evidence to support Petitioner's felony firearm convictions under an aiding and abetting theory. The court relied on evidence that Petitioner drove his armed accomplice, Mays, to the robbery and encouraged him to use the gun during the robbery. See People v. Harris, No. 222468, 2001 WL 849867 (Mich.App. July 27, 2001) (unpublished).

The Michigan Supreme Court disagreed, finding that the prosecution failed to present sufficient evidence to support Petitioner's felony firearm convictions under the existing Johnson standard for aiding and abetting felony firearm, i.e., the prosecution failed to show that Petitioner assisted Mays in obtaining or retaining possession of the gun, and stating that Petitioner's felony firearm convictions would be reversed under that standard. See Harris, 470 Mich. at 65-66, 679 N.W.2d 41. The Michigan Supreme Court then overruled Johnson, finding that its holding was overly narrow, and held that while a...