Ivory v. Romanowski, Case Number 2:13-cv-14717
| Decision Date | 05 October 2015 |
| Docket Number | Case Number 2:13-cv-14717 |
| Parties | BERNARD IVORY, Petitioner, v. KENNETH ROMANOWSKI, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Arthur J. Tarnow
Petitioner Bernard Ivory has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted after a bench trial in the Wayne Circuit Court of two counts of assault with intent to commit murder, MICH. COMP. LAWS § 750.83, and one count each of possession of a firearm by a felon, MICH. COMP. LAWS § 750.224f, and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. As a result of his convictions, Petitioner is serving concurrent terms of 18 years and 8 month-to-25 years for the assault convictions, 2-to-5 years for the felon in possession conviction, and a consecutive two-year term for the felony-firearm conviction. The petition raises two claims: 1) the state courts erred in failing to remand Petitioner's case for an evidentiary hearing onhis ineffective assistance of counsel claim, and 2) Petitioner was denied the effective assistance of trial counsel. The Court will deny the petition because the claims are without merit. The Court will, however, grant Petitioner a certificate of appealability and grant Petitioner permission to proceed on appeal in forma pauperis.
At Petitioner's bench trial, Kassem Bazzi testified that he owned a home on Ashton Avenue in Detroit that he had rented to Theresa McCoy. The difficulties that eventually gave rise to the shooting began in the early afternoon of October 27, 2009, when Kassem went to the house to evict McCoy. Kassem had not initiated any legal eviction proceedings, but explained at trial that "it was just between me and Ms. McCoy."
Kassem arrived at the house to evict McCoy with two relatives, Ahmad Bazzi and Ali Bazzi. The people at the house, McCoy, her boyfriend Toryanno Griffin, and her friend Cherrell Landsfair, were upset. Griffin testified during the defense case that Ali kicked the door in, knocking over McCoy's daughter. Landsfair then slapped Ali. The police were called, and when they arrived they told the Bazzis to leave the area, and they told McCoy to vacate the rental by 8:00 p.m.
The scene was thus set for a showdown that evening. Kassem arrived alone first in his car. He instructed several family members to meet him at the house. A few minutes later, another vehicle containing Sarah Jabr, Ali Bazzi, and Ahmad Bazzi,arrived. A third car containing Mohamed Bazzi and Ahmed Bazzi arrived last. Ahmed Bazzi was armed with a handgun.
According to the Bazzis, they were planning to wait in their vehicles until the house was vacated, and then they planned to change the locks on the door and leave. For a time, things remained relatively peaceful as the Bazzis waited in the their cars while furniture was being moved out of the house.
Sarah Jabr testified that during this period of time she saw a man she later identify as Petitioner staring at the vehicles as he paced near the house. Petitioner lived in another house on Ashton with Landsfair, and the two were friends with McCoy and Griffin. Eventually, Petitioner came over to Jabr's vehicle and asked them if they had a problem. According to Jabr, Ahmed Bazzi replied that there was no problem and they were waiting for McCoy to finish moving out so they could change the locks. A few minutes later, Petitioner returned to the car and asked if anyone had a gun, and Jabr replied that they were not armed. Some of the the Bazzis noticed another man, later identified simply as D.P., also standing nearby.
That is when Jabr and other Bazzis testified that Landsfair came running from another house, yelling. Jabr got out of the vehicle to confront Landsfair. Some testimony suggested that Jabr was upset at Landsfair for slapping her boyfriend Ali earlier in the day, and she was desirous of the confrontation. In any event, Landsfair produced a knife and started stabbing Jabr, who fell to the ground. Ali Bazzi exitedthe vehicle and started to pull Landsfair off, who continued to stab Jabr. The other Bazzis attempted to assist, and according to Mohammed Bazzi, it might have appeared that they were all ganging up on Landsfair. As a result, Petitioner intervened and tried to push the Bazzis off Landsfair. Eventually, Ali was able to separate the two women.
Then matters escalated. Several of the Bazzis testified that they saw Petitioner and the other man, D.P., draw handguns and start shooting in their direction. Jabr, Kassem, Mohamed, and Ahmad, all identified Petitioner as one of the shooters. Jabr testified that D.P. also participated in the shooting. Ahmed and Mohamed Bazzi exited their vehicle, Ahmed drew his handgun, and he fired back.
Ahmed was shot in the arm and dropped his gun. Mohammed was shot in the chest. The remaining Bazzis helped load their wounded into cars and rushed them to the hospital. Only Kassem Bazzi remained at the scene. He testified that he felt no need to intervene because "it wasn't [his] problem to begin with." T 8/10, p. 149. Petitioner, D.P., and Landsfair all fled. McCoy and Griffin stayed and finished moving their belongings out of the house.
The defense case presented a different narrative. Griffin testified that the Bazzis left after the police ordered them to around noon, but returned at 2:00 p.m. or 3:00 p.m. and waited outside. Griffin estimated that Petitioner came at 6:00 p.m. to help. Griffin said that the Bazzis had been yelling out of the vehicles to see if McCoy was done moving, so Griffin, Petitioner, and D.P. went to talk to them. During thisconversation, Petitioner told the Bazzis that he would have Landsfair apologize for slapping Ali, and then he called her.
According to Griffin, when Landsfair came down the street from her home, she was not screaming or acting aggressively. Nevertheless, the Bazzis exited their cars and Sarah started fighting with her. Next, Griffin saw one of the Bazzis hit Petitioner in the head with a gun. Petitioner fell, and then Griffin heard gunshots, but he could not see the shooter. Everyone dispersed. Griffin testified that neither he, D.P., nor Petitioner had a gun.
Petitioner testified in his own defense. Petitioner explained that Griffin "didn't tell the whole truth" on the witness stand. Petitioner explained that Griffin had called him about the Bazzis several times on October 27. Petitioner initially advised Griffin to call the police because Kassem did not have an eviction notice. Later, Griffin called at about 5:00 p.m., asking for help with the move, but Petitioner did not arrive until about 7:45 p.m. The Bazzis were not outside yet.
When the Bazzis arrived, Petitioner went to one of he vehicles to ask for more moving time. The driver agreed and said they were just there "for the red head girl in there who slapped my brother earlier today."
Petitioner testified that he, Griffin, and D.P. tried to defuse the situation when Landsfair and Jabr started their altercation, but the Bazzis said they had Jabr there specifically to fight Landsfair. Petitioner offered to have Landsfair apologize instead.Petitioner claimed that as Landsfair approached, Jabr jumped out of the car wearing gloves and challenged her to a fight.
Petitioner and Ali ran toward the women. Griffin, D. P., and the other Bazzis followed. As Petitioner ran, he saw two men exit a black car, wearing all black. These men reached the women first. Petitioner claimed that he was breaking up the fight when Ali kicked Landsfair in the face. Petitioner pushed Ali away, but then Mohamed pushed Petitioner and pointed a gun in his face.
Mohamed punched Petitioner and fired a shot at the same time. Petitioner saw another man in the street fire two more shots and Petitioner heard three shots from behind him on the left, so he pretended to be shot and fell down. Petitioner identified the shooter in the street as one of the men that exited the black car when he was running toward Landsfair and Sarah.
Petitioner testified that when he spoke to Griffin after the incident Griffin said that D.P. shot back once when the shooting began. Petitioner further testified that he was angry that Griffin failed to testify regarding the fact that D.P. was a shooter. Petitioner testified that he was unarmed at the time of the shooting.
Following closing arguments, the trial court found Petitioner guilty of the offenses listed above.
Petitioner then filed a claim of appeal in the Michigan Court of Appeals. His appellate brief raised what now forms his second habeas claim, asserting that he wasdenied the effective assistance of counsel. The Michigan Court of Appeals affirmed the convictions in an unpublished opinion, and it also sua sponte remanded the case for resentencing. People v. Ivory, No. 300861, 2011 WL 6279243 (Mich. Ct. App. Dec. 15, 2011).
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims of ineffective assistance of counsel. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed by the Court. People v. Ivory, 815 N.W.2d 474 (Mich. 2012) (table).
Meanwhile, pursuant to the remand order, the trial court resentenced Petitioner, and it increased the maximum sentence of his assault with intent to murder conviction from 20 years-to-28 years and 2 months.
Petitioner filed a claim of appeal from the resentencing, asserting guideline scoring errors, vindictiveness, and that his original maximum sentence should be reinstated. The Court of Appeals issued an opinion reversing the increased sentence and reimposing Petitioner's original term. People v. Ivory, No. 310380, 2013 WL 5731732 (Mich. Ct. App. Oct. 22, 2013).
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