Hereford v. Warren

• Decision Date: 30 March 2007
• Docket Number: Civil Case No. 04-40293.
• Citation: 486 F.Supp.2d 659
• Parties: Darron Lamar HEREFORD, Petitioner, v. Millicent WARREN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

Page 659

486 F.Supp.2d 659

Darron Lamar HEREFORD, Petitioner, v. Millicent WARREN, Respondent.

Civil Case No. 04-40293.

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

March 30, 2007.

Mark N. Awada, Warren, MI, for Petitioner.

Brian O. Neill, Michigan Department of Attorney General, Lansing, MI, for Respondent.

ORDER ACCEPTING AND ADOPTING THE MAGISTRATE'S REPORT AND RECOMMENDATION

GADOLA, District Judge.

This is habeas corpus action, pursuant to 28 U.S.C. § 2254, in which Petitioner challenges his state court conviction for armed robbery. On April 26, 2006, Petitioner filed a motion for summary judgment on the issue of whether he was denied his Sixth Amendment right to counsel. The matter was referred to Magistrate Judge R. Steven Whalen for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B).

Now before the Court are Petitioner's motion for summary judgment¹ and the report and recommendation of Magistrate Judge Whalen, filed on February 21, 2007. The magistrate judge recommends that Petitioner's motion for summary judgment be granted, and that a conditional writ of habeas corpus be granted. He further recommends that if a date for a new trial is not scheduled within 120 days, Petitioner be unconditionally released. Respondent filed objections on March 1, 2007. Petitioner did not file objections or a response.

The Court's standard of review for a magistrate judge's report and recommendation depends upon whether a party files objections. If a party does not object to the report and recommendation, the Court does not need to conduct a review by any standard. See Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D.Mich.2002) (Gadola, J.). If a party objects to portions of the report and recommendation, the Court reviews those portions de novo. Lardie, 221 F.Supp.2d at 807. The Federal Rules of Civil Procedure dictate this standard of review in Rule 72(b), which states, in relevant part, that

[t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.

Fed.R.Civ.P. 72(b). Here, because Respondent filed objections, this Court reviews de novo those portions to which an objection has been made. See Lardie, 221 F.Supp.2d at 807.

De novo review in these circumstances requires at least a review of the evidence before the magistrate judge; the Court may not act solely on the basis of "a magistrate judge's report and recommendation. See 12 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 3070.2 (1997); see also Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir.1981). The Court may supplement the record by entertaining additional evidence, but is not required to do so. 12 Wright, Federal Practice § 3070.2. After reviewing the evidence, the Court is free to accept, reject, or modify the findings or recommendations of the magistrate judge. See Lardie, 221 F.Supp.2d at 807. If the Court accepts a report and recommendation, the Court is not required to state with specificity what it reviewed; it is sufficient for the Court to state that it engaged in a de novo review of the record and adopts the report and recommendation. See id.; 12 Wright, Federal Practice § 3070.2.

The Court has reviewed the Petitioner's motion for summary judgment, the magistrate judge's report and recommendation, Respondent's objections, and all other applicable filings. Having conducted this review under the de novo standard as detailed above, the Court concludes that Magistrate Judge Whalen's factual conclusions are correct and his legal reasoning sound.

ACCORDINGLY, IT IS HEREBY ORDERED that the February 21, 2007 Report and Recommendation is ACCEPTED and ADOPTED as the opinion of this Court.

IT IS FURTHER ORDERED Petitioner's Motion for Summary Judgment [docket entry # 34] is GRANTED.

IT IS FURTHER ORDERED that a CONDITIONAL Writ of habeas corpus is GRANTED; if a schedule is not set within 120 days for a new trial, Petitioner shall be unconditionally released.

SO ORDERED.

REPORT AND RECOMMENDATION

WHALEN, United States Magistrate Judge.

On October 13, 2004, Petitioner Darron Hereford filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in the Oakland County, Michigan Circuit Court for armed robbery. Before the Court is Petitioner's Motion for Summary Judgment [Docket # 34], which has been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).¹ For the reasons set forth below, I recommend that Petitioner's Motion be GRANTED, and that the Court issue a conditional writ of habeas corpus.

I. PROCEDURAL HISTORY

Petitioner, having waived his right to trial by jury, was tried in a bench trial before the Honorable Rudy J. Nichols of Oakland County Circuit Court. He was tried along with a co-defendant, Kyle Davis, although Mr. Davis elected to have a jury decide his case. Petitioner was ultimately convicted of armed robbery, M.C.L. 750.529, and sentenced to a prison term of 9 to 20 years.

Petitioner took an appeal as of right to the Michigan Court of Appeals. The Claim of Appeal was filed on May 16, 2000, and on September 6, 2000, the Petitioner, through appointed counsel, filed his brief on appeal. That brief did not address the Sixth Amendment right to counsel matter at issue in the present motion. However, while Petitioner's case was pending in the Court of Appeals, he filed a motion to file supplemental brief. That motion was granted on March 28, 2001, and Petitioner's counsel filed a supplemental brief raising arguments stemming from a previously untranscribed mid-trial bench conference between the prosecutor, co-defendant's counsel and the trial judge, concerning a prosecution witness (Alvin Smith)who was to testify at trial.² Petitioner's attorney was not present at that conference. Alvin Smith was a codefendant who had been tried and convicted separately.

On December 3, 2002, the Court of Appeals affirmed Petitioner's conviction in an unpublished per curiam decision. However, that opinion was completely silent as to the ex parte bench conference that formed the basis of Petitioner's supplemental brief. On December 23, 2002, Petitioner filed a motion for rehearing based on the court's failure to address his supplemental issues. The Court of Appeals granted the motion for rehearing, and issued a new opinion on January 28, 2003, again affirming Petitioner's conviction. Addressing the issue of the ex parte bench conference, the Court stated as follows:

"We agree with defendant that it was improper to conduct a bench conference without defense counsel's presence. See generally People v. Riggs, 223 Mich.App. 662, 677, 568 N.W.2d 101 (1997) (Sixth Amendment right to counsel attaches at `critical stage' of proceedings); People v. Gonzalez, 197 Mich.App. 385, 402, 496 N.W.2d 312 (1992) (improper ex parte communications deny right to fair trial). However, we conclude that the error was harmless beyond a reasonable doubt. See People v. Watson, 245 Mich. App. 572, 585, 629 N.W.2d 411 (2001)."

On October 8, 2003, the Michigan Supreme Court denied leave to appeal, over the dissent of Justice Kelly. On October 13, 2004, Petitioner filed his petition for writ of habeas corpus in this Court. On April 20, 2006, he filed the present Motion for Summary Judgment, raising only the issue relating to the ex parte bench conference.

II. FACTS

The charged offense involved the armed robbery of a Hungry Howie's restaurant in Southfield, Michigan. The Court of Appeals summarized the evidence against the Petitioner as follows:

"The assistant manager of the restaurant testified extensively regarding his recollections of the armed robbery. Both the assistant manager and the restaurant's part owner recalled that the assistant manager had worked with defendant for at least a month, on several occasions each week. The assistant manager testified repeatedly and with certainty that he recognized defendant as one of the robbers when defendant's mask briefly slipped from his face. A police officer who responded to the restaurant after the robbery testified that the assistant manager positively identified defendant as a participant in the robbery. Codefendant Smith also offered testimony that defendant participated in the robbery."

As to co-defendant Smith's testimony at Petitioner's trial, the Court of Appeals stated:

"Regarding defendant's challenge to the circuit court's finding that defendant possessed a gun during the robbery, codefendant Smith's testimony to this effect constituted the sole evidence of record supporting the court's finding. Smith's testimony directly contradicted the assistant manager's recollection that defendant did not have the gun during the robbery. Although Smith never testified that anyone other than defendant had the gun during the robbery, Smith's account of the crime otherwise appeared vague and somewhat inconsistent with the victim's recollections. Nonetheless, the circuit court apparently believed at least that portion of Smith's testimony recounting defendant's possession of a weapon...."

During his testimony, Smith indicated that he wanted to speak with his attorney. The court took a break so that Smith's lawyer could be located (Tr. 3-15-00, 61-63). During the break, Petitioner's attorney, William Mitchell, asked permission to attend an arraignment in another courtroom (Tr. 3-15-00, 63). After Mr. Mitchell left, the prosecutor asked to approach the bench with codefendant Davis's lawyer, Sharon Woodside:

Mr. Lynch (the prosecutor): Your Honor, may Ms. Woodside and I approach? Maybe she can speak on behalf of Mr. Mitchell.

The Court: We really...