Isom v. Palmer

• Decision Date: 16 February 2017
• Docket Number: CASE NO. 14-11479
• Parties: DONALD JAMAL ISOM, Petitioner, v. CARMEN DENISE PALMER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

DONALD JAMAL ISOM, Petitioner, v. CARMEN DENISE PALMER, Respondent.

CASE NO. 14-11479

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 16, 2017

HONORABLE SEAN F. COX

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

This matter has come before the Court on a pro se application for the writ of habeas corpus under 28 U.S.C. § 2254. Petitioner Donald Jamal Isom ("Petitioner") challenges his convictions for: second-degree murder, Mich. Comp. Laws § 750.317; conspiracy to commit armed robbery, Mich. Comp. Laws § 750.157a, Mich. Comp. Laws § 750.529; attempted armed robbery, Mich. Comp. Laws § 750.92, Mich. Comp. Laws § 750.529; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; carrying a concealed weapon (CCW), Mich. Comp. Laws § 750.227; and four counts of possessing a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. Petitioner alleges as grounds for relief allege that: (1) the trial court erroneously denied his objections to the prosecutor's use of peremptory challenges to remove two African Americans from the venire; (2) there was insufficient evidence to convict him of conspiracy to commit armed robbery; (3) there was insufficient evidence to convict him of murder; (4) he was denied a fair trial when a police witness and the prosecutor commented on his silence during questioning; (5) he was denied a fair trial by the improper joinder of counts; (6) re-sentencing is required because the trial court exceeded the sentencing guidelines without offering any explanation; (7) trial counsel was ineffective; (8) appellate counsel was ineffective for failing to raise a claim about trial counsel's ineffectiveness; and (9) he is entitled to an evidentiary hearing on his claims about trial and appellate counsel.

Respondent Carmen Denise Palmer ("Respondent") argues in an answer to the habeas petition that Petitioner procedurally defaulted his fourth and seventh claims and that the state courts' rejection of Petitioner's claims did not result in decisions that were contrary to federal law, unreasonable applications of federal law, or unreasonable determinations of the facts. The Court agrees with Respondent's assessment of Petitioner's claims. Accordingly, the habeas petition will be denied.

I. Background

Petitioner was charged in Saginaw County, Michigan with one count of first-degree (felony) murder, one count of conspiracy to commit armed robbery, two counts of attempted robbery, one count of felon in possession of a firearm, one count of carrying a concealed weapon, and five counts of felony firearm. The charges arose from two incidents that occurred early on August 26, 2006. As explained by the Michigan Court of Appeals, the two incidents involved

the attempted robbery of Raychan Williams and the shooting death of Darnell Eiland. The evidence at trial indicated that on the night of the crimes, defendant and Prophet Phillips were driving around with Doretha Ransom. The men went together to Williams's apartment, where Phillips tried to convince Williams to open the door by stating that he wanted to buy drugs. When Williams refused to open the door, defendant pointed agun at him. Williams jumped away, and defendant and Phillips returned to the car. Shortly thereafter, the three drove to another home, ostensibly to buy drugs. Defendant and Phillips went to the house while Ransom waited in the car. Ransom heard gunshots, and then defendant and Phillips returned to the car. Defendant had been shot in the hand. Defendant gave Phillips a gun, and then Phillips left. Ransom took defendant to the hospital. While defendant was being treated, Eiland's body was found. When the police came to the hospital to investigate defendant's gunshot wound and to determine if the Eiland death was related, defendant fled, but was apprehended shortly thereafter.

People v. Isom, No. 284857, 2010 WL 1404430, at *1 (Mich. Ct. App. Apr. 8, 2010).

Defendant did not testify, and his only witness was his sister, Detrianna Barnes. Ms. Barnes testified that Petitioner called her from the hospital at about 10:00 a.m. on August 26, 2006, and again about 3:00 p.m. that day. She told Petitioner to leave the hospital because somebody was going there to kill him.

Petitioner's defense was that he

was caught in an ambush, was not the shooter or that there was enough reasonable doubt as to who was the shooter, that one Jamaar Bates, who was at the scene just prior to the shooting and who subsequently discovered the body of Mr. Eiland when he returned later that morning, was more involved in [the] killing than what he claimed, and that Williams and Bates implicated [Petitioner] in the murder because of some ongoing dislike or dispute.

People v. Isom, No. 07-028598 FC 4, Op. and Order Denying Post-Appellate Relief, at 2 (Saginaw Cty. Cir. Ct. July 27, 2011), ECF No. 9-20, Pg ID 1521.

On February 14, 2008, the jury found Petitioner guilty of second-degree murder, as a lesser-included offense of first-degree murder, and the following additional offenses: conspiracy to commit armed robbery, one count of attempted robbery, felon in possession of a firearm, carrying a concealed weapon, and four counts of felony firearm. The jury acquitted Petitioner of one count of attempted robbery and the related felony-firearm count. On March 20, 2008, the trial court sentenced Petitioner to twoyears in prison for the felony-firearm convictions, followed by concurrent terms of sixty to ninety years in prison for the murder and conspiracy convictions and five to ten years in prison for the attempted-robbery, felon-in-possession, and CCW convictions.

Petitioner's initial appellate attorney filed a motion for new trial, claiming that trial counsel was ineffective for failing to request a jury instruction on self defense. Petitioner subsequently wrote to the trial court and asked the court to remove counsel from his case and strike counsel's motion for new trial. The trial court then appointed a different appellate attorney, who withdrew the motion for new trial and raised Petitioner's first six habeas claims in his appellate brief. A three-judge panel of the Michigan Court of Appeals affirmed Petitioner's convictions, see Isom, 2010 WL 1404430,¹ and on September 9, 2010, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Isom, 488 Mich. 854; 787 N.W.2d 488 (2010).

Petitioner subsequently filed a motion for relief from judgment in which he raised his seventh and eighth habeas claims regarding trial and appellate counsel. He claimed that trial counsel was ineffective for failing to present a defense of self defense, for failing to request a jury instruction on self defense, and for failing to use or consult an expert witness. He also asserted that appellate counsel was ineffective for failing to raise a claim about trial counsel's ineffectiveness.

The state trial court analyzed Petitioner's motion under Michigan Court Rule 6.508(D)(3) and denied the motion.² Although the court opined that Petitioner would have had a reasonable chance of acquittal if trial counsel had requested a jury instruction on self defense, the court nevertheless determined that Petitioner had not shown "good cause" for failing to raise his self-defense issues on appeal, because he resisted his first appellate attorney's efforts to bring the issue before the courts. See Isom, No. 07-028598 FC 4, Op. and Order Denying Post-Appellate Relief, at 3-4 (Saginaw Cty. Cir. Ct. July 27, 2011), ECF No. 9-20, Pg ID 1522-23.

Petitioner moved for reconsideration of the trial court's order on the basis that his appellate attorneys failed in their obligations and duties to assist him in bringing his self-defense claim before the Michigan Court of Appeals. In an order denying Petitioner's motion, the trial court determined that there was insufficient evidence to support a claim of self defense and, therefore, Petitioner was not entitled to such an instruction. The trial court concluded that appellate counsel's failure to preserve the issue for appeal was inconsequential. See People v. Isom, No. 07-028598 FC 4, Op. and Order Denying Relief, at 3 (Saginaw County Cir. Ct. Apr. 2, 2012), ECF No. 9-22, Pg ID 1533.

Petitioner appealed the trial court's decision without success. Both the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal for failure to establish entitlement to relief under Rule 6.508(D). See People v. Isom, No. 312567(Mich. Ct. App. Sept. 6, 2013); People v. Isom, 495 Mich. 947; 843 N.W.2d 505 (2014). On April 11, 2014, Petitioner filed his habeas corpus petition in this Court.

II. Standard of Review

"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)." Harrington v. Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state prisoner's application for the writ of habeas corpus unless the state court's adjudication of the prisoner's claims on the merits

(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).

Under the "contrary to" clause [of § 2254(d)(1)], a federal habeas court may grant the writ 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. Under the "unreasonable application"

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