Hawthorne v. Rivard, Civil No. 2:12-CV-13243

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtVictoria A. Roberts
PartiesJOENELLE HAWTHORNE, Petitioner v. STEVE RIVARD, Respondent
Decision Date26 November 2013
Docket NumberCivil No. 2:12-CV-13243

STEVE RIVARD, Respondent

Civil No. 2:12-CV-13243


Dated: November 26, 2013



Joenelle Hawthorne, ("Petitioner"), confined at the St. Louis Correctional Facility in St. Louis, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for first-degree premeditated murder, M.C.L.A. 750.316(1)(a), first-degree felony murder, M.C.L.A. 750.316(1)(b), felonious assault, M.C.L.A. 750.82, and possession of a firearm in the commission of a felony. M.C.L.A. 750.227b.

For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

A jury convicted Petitioner in Wayne County Circuit Court. Petitioner was tried jointly with co-defendant Dionte Marquis Neal. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F. 3d 410,

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413 (6th Cir. 2009):

Defendants' convictions arise from the fatal shooting of Fred Mumford. Mumford's roommate, Arthur Stakley, had previously allowed three men to enter Mumford's house under the pretense that they were there to meet Mumford. When Mumford returned shortly thereafter, he was shot while entering the house. He received eight gunshot wounds, causing his death. The principal issue at trial was Stakley's identification of defendants Hawthorne and Neal as the two shooters.
At trial, Stakley testified that there were two shooters, and identified Hawthorne as the taller of the two shooters. Stakley identified Hawthorne as the taller shooter in a pretrial photographic array, but then also identified David Jenkins as the taller shooter in a second photographic array. Stakley also identified Hawthorne at Hawthorne's preliminary examination, but again also identified Jenkins as the taller shooter when Stakley appeared at a second preliminary examination. When Stakley was shown photographs of both Jenkins and Hawthorne together, however, he stated that Hawthorne was the taller shooter.
Contrary to what Hawthorne argues, the circumstances support an inference of premeditation and deliberation. Viewed in a light most favorable to the prosecution, the evidence indicated that Hawthorne and two others went to Mumford's house, confronted Stakley, and forced their way inside. When Mumford returned shortly thereafter, he was shot by Hawthorne and Neal while entering the house, while his key was still in the door. The evidence that Hawthorne and Neal ambushed Mumford as he was entering the house, that Mumford was in a defenseless position when he was shot, and that Hawthorne and Neal acted in concert supports an inference that the killing was deliberate and premeditated.

People v. Hawthorne, No. 280289, Slip. Op. at 2, 4-5 (Mich.Ct.App. February 24, 2009).

Petitioner's conviction was affirmed on appeal, but the case was remanded to modify the judgment of sentence to reflect a single conviction for first-degree murder, supported by alternative theories. Id., lv. den. 485 Mich. 871, 771 N.W.2d 790 (2009).

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Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Hawthorne, No. 07-005557-01 (Wayne County Circuit Court, July 30, 2010). Petitioner's post-conviction appeal was denied. People v. Hawthorne, No. 303303 (Mich.Ct.App. September 13, 2011); lv. den. 491 Mich. 885, 809 N.W.2d 575 (2012).

Petitioner seeks a writ of habeas corpus on the following grounds: (1) The evidence was insufficient to establish Petitioner's identity, (2) trial counsel was ineffective for failing to request the appointment of an expert in eyewitness identification, (3) the evidence was insufficient to prove premeditation and deliberation, (4) Petitioner's convictions for first-degree premeditated murder and first-degree felony murder violate double jeopardy, (5) trial counsel was ineffective for: (a) failing to call alibi witnesses, (b) failing to present a defense, and (c) failing to argue the third party culpability of Arthur Stakley, (6) prior to trial the prosecutor failed to disclose six disks of recorded telephone calls of Petitioner from the jail, (7) the trial court erred in denying Petitioner's motion for a directed verdict, (8) appellate counsel was ineffective, (9) Petitioner was constructively denied the assistance of counsel at his preliminary examination when substitute counsel appeared in place of his court-appointed attorney, had not met with Petitioner prior to the preliminary examination, and did not request a continuance, (10) the trial judge pierced the veil of judicial impartiality by: (a) referring to Mr. Mumford as the victim and (b) by invading the province of the jury by stating several times that someone had been killed and the only issue was the identity of the perpetrators, (11) the trial judge failed to instruct the jurors on CJI 2d 3.7 and CJI 3.22 and trial counsel was ineffective for failing

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to object to the absence of these instructions, and (12) the prosecutor committed misconduct for vouching for his witness, and trial counsel was ineffective for failing to object.

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 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.

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 habeas court may not "issue the writ simply because that court concludes in its

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independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11.

The Supreme Court explained that "[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,'and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)(quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or...could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id.

"[I]f this standard is difficult to meet, that is because it was meant to be." Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the

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AEDPA, does not completely bar federal courts from relitigating claims previously rejected in state courts, it preserves the authority for a federal court to grant habeas relief only "in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" the Supreme Court's precedents. Id. Indeed, "Section 2254(d) reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. (citing...

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