Hence v. Smith
| Decision Date | 10 February 1999 |
| Docket Number | No. Civ. 97-CV-40461-FL.,Civ. 97-CV-40461-FL. |
| Citation | 37 F.Supp.2d 970 |
| Parties | Henry Lee HENCE, Jr., Petitioner, v. David SMITH, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Henry Lee Hence, Jr., Adrian, MI, pro se.
Vincent J. Leone, Michigan Department of Attorney General, Habeas Corpus Division Lansing, MI, for Respondent.
Petitioner, Henry Lee Hence, Jr. ("petitioner"), presently confined at the Gus Harrison Correctional Facility in Adrian, Michigan, seeks the issuance of a writ of a habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction and sentence on one count of first degree murder, M.C.L. 750.316; M.S.A. 28.548 and one count of conspiracy to commit first degree murder M.C.L. 750.157a; M.C.L. 750.316; M.S.A. 28.354(1); M.S.A 28.548. For the reasons stated below, petitioner's application for writ of habeas corpus is denied.
Petitioner was charged along with co-defendant Raymond Gallagher with first degree murder and conspiracy to commit first degree murder for the death of Leon Sommers. He was convicted of these offenses after a joint trial with Gallagher in the Wayne County Circuit Court. Another co-conspirator, Norman Wayne Robinson, was tried and convicted separately of second degree murder. A fourth accomplice, Phillip Edmonds, was given immunity from prosecution in exchange for his testimony.
On May 11, 1978, Leon Sommers was found by his wife shot to death in their Taylor, Michigan home. It was later determined that Sommers had been shot with his own weapon. Subsequent investigation revealed that Sommers had previously testified in a federal district court in Ohio against co-defendant Gallagher, after which Gallagher was convicted of interstate transportation of a stolen motor vehicle. Phillip Edmonds testified that Gallagher hired him to have Sommers killed in retaliation for his testimony against Gallagher. Edmonds testified that he hired Norman Robinson and petitioner to kill Sommers.1 Edmonds met with Robinson and petitioner in April of 1978 to plan the murder. According to Edmonds, petitioner came to the meeting carrying a briefcase which contained a .38 caliber blue steel revolver.2 Edmonds testified in exchange for immunity from prosecution for the murder of Sommers. There was also an agreement by the Oakland County Prosecutor to drop habitual offender charges against Edmonds in exchange for his testimony in this case.3
Robinson testified that he and petitioner actually carried out the murder, with Hence shooting the victim.4 Norman Wayne Robinson had been convicted of second degree murder in a separate trial for his involvement in this crime and had received a life sentence. Robinson agreed to testify against petitioner in exchange for a promise from the prosecutor that they would ask the sentencing judge to reduce Robinson's sentence to fifteen (15) to thirty (30) years.5 Robinson testified that he and petitioner went to the victim's house and bound his wrists with tape. Robinson stated that petitioner shot the victim while he was in the victim's garage obtaining some marijuana.6
Petitioner was subsequently arrested during a traffic stop by a Georgia state trooper outside of Atlanta, Georgia on August 10, 1978. After being detained, petitioner attempted to flee from the police by escaping from the patrol car, but was apprehended shortly thereafter. During a search of the vehicle that petitioner was driving, police discovered a briefcase which contained four weapons inside of it, including a .38 caliber revolver. Police also recovered a digital watch from petitioner.7 Robinson and Edmonds testified that the revolver recovered from petitioner at the time of his arrest looked similar to the .38 revolver that petitioner brought with him to a meeting with Robinson and Edmonds in April of 1978 and to the shooting on May 11, 1978.8 The victim's wife had testified that a digital watch belonging to the victim had been taken from the house during the killing.9 The prosecution contended that the digital watch taken from petitioner at the time of his arrest was actually the victim's watch.10
Petitioner raised an alibi defense at trial that he was at home with his wife and a friend the day of the shooting. Petitioner denied being at work on the day in question and stated he had been with his friend all day.11 After his testimony, the prosecutor called the records keeper from Chrysler Corporation, who testified that a time card belonging to petitioner showed that it had been punched in at 3:25 p.m. and punched out at 12:04 a.m. on May 11, 1978.12 Robinson was also called as a alibi rebuttal witness by the prosecution as well, in which he testified that after the killing, he and petitioner had used cocaine with two females.13
Petitioner also contended that he had purchased the digital watch and produced a sales tag to substantiate his claim. After testifying, but before closing arguments the sales tag was allegedly lost. The parties agreed to make a reproduction of the exhibit, although petitioner objected to the procedure. Following the trial, an evidentiary hearing was conducted in which co-defendant Gallagher testified that petitioner's attorney had brought the sales tag into the lockup to discuss it with petitioner during a break in the trial. As the lawyer left, the tag inadvertently fell to the floor and petitioner placed his foot over it. Petitioner told Gallagher that the sales tag was "bogue" and flushed it down the toilet in the cell. The trial court found that petitioner had deliberately destroyed the sales tag.14
Petitioner and Gallagher were both convicted of first degree murder and conspiracy to commit murder. Petitioner's conviction was affirmed by the Michigan Court of Appeals in a published opinion on October 6, 1981.15 Petitioner never filed an application for leave to appeal with the Michigan Supreme Court.
During the pendency of petitioner's appeal, the Wayne County Circuit Court conducted an evidentiary hearing on co-defendant Gallagher's claim of ineffective assistance of counsel. After taking testimony, Judge Victor Baum found that there was evidence that another person, referred to only as "B.S." may have had a motive to have Sommers killed to prevent him from cooperating with law enforcement authorities in a narcotics investigation against "B.S." The trial court further found that Gallagher's attorney had been a long-time friend and attorney of "B.S." The trial court concluded that because of the attorney's long-standing personal and professional relationship with "B.S.", he did not pursue a theory that "B.S.", and not Gallagher, had ordered the killing of Sommers. The trial court concluded that this conflict of interest deprived Gallagher of the effective assistance of counsel.16 The Michigan Court of Appeals affirmed the grant of a new trial for Gallagher, also on the ground that his trial attorney's conflict of interest deprived Gallagher of the effective assistance of counsel.17
Petitioner subsequently filed a delayed motion for a new trial, contending that this evidence that another person besides Gallagher may have ordered Edmonds to have Sommers killed was exculpatory evidence, which the prosecution withheld from him in violation of his due process rights. The trial court denied petitioner's motion for a new trial.18 The Michigan Court of Appeals denied petitioner's application for leave to appeal. On August 28, 1985, the Michigan Supreme Court denied petitioner leave to appeal.19
In 1987, some eight years after petitioner's conviction, Norman Wayne Robinson supplied petitioner with an affidavit, in which he purportedly recanted his testimony against petitioner and indicated that he had committed perjury when he had testified that petitioner had shot and killed Sommers.20 Petitioner filed a motion for a new trial based in part on Robinson's affidavit. After the trial court initially denied the motion without a hearing, the Michigan Court of Appeals remanded the matter back to the Wayne County Circuit Court for an evidentiary hearing.21 After hearing testimony, the Wayne County Circuit Court denied petitioner's motion for a new trial.22 The Michigan Court of Appeals denied leave to appeal on August 2, 1990.23 The Michigan Supreme Court rejected petitioner's application for leave to appeal on April 29, 1991.24
Petitioner has filed this application for a writ of habeas corpus on numerous grounds, which have been consolidated into six different issues:
I. DID THE PROSECUTOR VIOLATE PETITIONER'S DUE PROCESS RIGHTS BY WITHHOLDING POTENTIALLY EXCULPATORY EVIDENCE THAT AN ALTERNATIVE SUSPECT MAY HAVE ORDERED THE KILLING OF LEON SOMMERS?
II. WAS PETITIONER DENIED RELIEF FROM HIS CONVICTION BY EITHER THE MICHIGAN TRIAL OR APPELLATE COURTS BECAUSE OF HIS RACE AND ECONOMIC STATUS, IN VIOLATION OF THE EQUAL PROTECTION CLAUSE?
III. WAS PETITIONER DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN HIS POST-CONVICTION PROCEEDINGS?
IV. DID THE STATE COURTS ERR IN DENYING PETITIONER A NEW TRIAL WHERE PETITIONER PRESENTED NEWLY DISCOVERED EVIDENCE IN THE FORM OF NORMAN WAYNE ROBINSON'S AFFIDAVIT, IN WHICH ROBINSON RECANTED HIS TRIAL TESTIMONY?
V. DID THE STATE TRIAL COURT ERR IN ALLOWING AN UNENDORSED WITNESS TO TESTIFY AND IN ALLOWING THE PROSECUTOR TO PRESENT WITNESSES TO REBUT PETITIONER'S ALIBI DEFENSE, WHEN THE WITNESSES HAD NOT BEEN ON THE PROSECUTOR'S ALIBI REBUTTAL WITNESS NOTICE?
VI. WAS PETITIONER DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY?
For the reasons stated below, the petition is denied.
Review of a state court's decision under 28 U.S.C. § 2254 is governed by the standards established by the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (...
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