Johnson v. Rewerts

• Decision Date: 12 April 2022
• Docket Number: 2:20-CV-12165
• Parties: TERI BERNARD JOHNSON, Petitioner, v. RANDEE REWERTS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

TERI BERNARD JOHNSON, Petitioner, v. RANDEE REWERTS, Respondent.

No. 2:20-CV-12165

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

April 12, 2022

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING THE MOTION TO APPOINT COUNSEL (ECF No 15), DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE.

Teri Bernard Johnson, (“Petitioner”), incarcerated at the Carson City Correctional Facility at Carson City Michigan, filed a pro se habeas corpus petition challenging his state convictions for assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84 carrying a concealed weapon with unlawful intent, Mich. Comp Laws § 750.226, and possession of a firearm in the commission of a felony, second offense, Mich. Comp. Laws § 750.227b(1). For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. BACKGROUND

Petitioner was convicted following a jury trial in the Wayne County Circuit Court, in which he was tried jointly with two co-defendants, Lorenzo Brown and Waddell Burney. 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, e.g., Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendants' convictions arise from the nonfatal shooting of Jamil Dismuke outside the Sam D Liquor Store in Detroit. On the night of November 22, 2014, Dismuke was walking toward the door of the store. His brother, Demond Davis, was outside the store, and their uncle, Richard Davis, was inside the store. A witness, Ashlee Kennedy, was also outside the store. Witnesses heard a barrage of gunshots, one of which struck Dismuke in the leg, causing him to fall in the store parking lot. After Richard pulled Demond inside the store, one of the defendants, allegedly Lorenzo Brown, came across the street, stood over Dismuke, and shot him in the head at close range. Richard and Demond observed this shooting on a security camera monitor inside the store. Dismuke recovered from the shooting, but sustained some degree of mental impairment.

The prosecution's theory at trial was that all three defendants were involved in firing gunshots at Dismuke, and that it was defendant Brown who shot Dismuke in the head. Kennedy initially told the police that she did not know the identities of the shooters, but she later testified pursuant to an investigative subpoena that she knew the shooters by their nicknames. She identified Brown as the person who shot Dismuke in the head. At trial, Richard testified that he saw the three defendants at the corner outside the store before the shooting started. He did not know who shot Dismuke in the head. Demond identified the defendants as the persons being at the scene. He identified Brown as the person who shot Dismuke in the head based on his observations of the shooter's clothing on the store security video. Dismuke identified Brown as the person who shot him in the head, and identified Johnson and Burney as the other individuals who shot at him.

Defendants were tried jointly before a single jury. Before trial, the trial court denied Burney's motion for a separate trial. The primary factual issue at trial was the credibility of Kennedy, Richard Davis, and Demond Davis. The prosecutor introduced the video footage from the store surveillance cameras, but the officer who obtained a copy of the video footage from the store inadvertently failed to capture approximately one minute of feed from one of the cameras. This was the camera that would have recorded the point-blank shooting of Dismuke. The jury convicted all three defendants of the weapons charges. In addition, it convicted Brown of assault with intent to commit murder, but convicted Burney and Johnson of the lesser offense of assault with intent to do great bodily harm less than murder.

People v. Brown, No. 327736, 2016 WL 6992194, at *1-2 (Mich. Ct. App. Nov. 29, 2016).

The Michigan Court of Appeals affirmed petitioner's conviction, with the exception of his public trial claim. Id. As to the public-trial claim, the court acknowledged that a courtroom closure had occurred but stated that it was not possible from the record before it to determine whether the closure was total or partial. Id., * 5. The Michigan Court of Appeals also noted that the trial court had not made any findings to support the closure. Id. The Michigan Court of Appeals remanded the case to the trial court to “mak[e] appropriate findings on the record regarding the extent of the closure (i.e., whether it involved all or only some of the spectators), whether that closure was tailored to protect the interests of avoiding witness intimidation, and whether any alternatives were available.” Id.

On remand, the trial court followed the procedure outlined by the state appellate court, finding that the closure was partial, that it was done to protect a witness, that it was no broader than necessary, and that there was no alternative to the partial closure. (ECF No. 8-11, PageID. 1223-33).

The Michigan Court of Appeals after remand held that “the closing of the courtroom was partial and did not violate any of the defendants' rights to a public trial, ” and affirmed petitioner's convictions and sentences. People v. Brown (After Remand), No. 327736, 2017 WL 1367178, at *1, *4, *8 (Mich. Ct. App. Apr. 13, 2017).

On September 12, 2017, the Michigan Supreme Court denied petitioner leave to appeal. People v. Johnson, 501 Mich. 860, 901 N.W.2d 384 (2017).

Petitioner filed his post-conviction motion for relief from judgment with the state trial court on November 19, 2018, which the trial court denied. People v. Johnson, No. 15-000469-01-FC (Wayne Cty. Cir.Ct. Mar. 25, 2019)(ECF No. 8-13). After the Michigan Court of Appeals denied petitioner leave to appeal, People v. Johnson, No. 349129 (Mich.Ct.App. July 22, 2019), post-conviction review of petitioner's case ended in the Michigan courts on June 30, 2020, when the Michigan Supreme Court denied petitioner leave to appeal. People v. Johnson, 505 Mich. 1132, 944 N.W.2d 689 (2020).

Petitioner's original habeas petition was received and filed by this Court on July 29, 2020. (ECF No. 1). Petitioner raised four claims in his initial petition. Petitioner also filed a supplemental brief on November 12, 2020, which again raised these same four claims. (ECF No. 10).

Respondent filed an answer, which was essentially a motion to dismiss the petition on the ground that petitioner's application for writ of habeas corpus was barred by the statute of limitations found in 28 U.S.C. § 2244(d)(1). The upshot of respondent's motion was that the statute of limitations expired on July 24, 2020 and that the habeas petition was untimely because it was filed five days later on July 29, 2020. Petitioner filed a motion explaining the delay and a reply to the motion to dismiss. Petitioner presented proof that he had handed his petition to prison authorities to mail to this Court on July 24, 2020, the last day of the limitations period. Relying on the prison mailbox rule, this Court's predecessor, Judge Arthur J. Tarnow found that the petition was timely filed because petitioner submitted an Expedited Legal Mail form which showed that the petition was given to prison officials to mail to this Court on July 24, 2020. Johnson v. Rewerts, No. 2:20-CV-12165, 2021 WL 4169793, at * 2 (E.D. Mich. Sept. 14, 2021). Judge Tarnow denied the motion to dismiss. Id. ^[1] Judge Tarnow granted petitioner's motion for an extension of time to file an amended petition and also ordered respondent to file an answer to the amended petition. Id. Petitioner filed an amended petition for writ of habeas corpus on December 1, 2021. (ECF No. 16).

Petitioner seeks habeas relief in his amended petition on nine grounds:

I. The trial court violated defendant's right to a public trial by removing spectators from the courtroom.

II. There was insufficient evidence of defendant's intent to do great bodily harm to support his conviction of assault with intent to do great bodily harm less than murder.

III. The prosecutor knowingly introduced the perjured testimony of witnesses Ashlee Kennedy, Jamil Dismuke, and Demond Davis.

IV. Defendant's constitutional right to be present during the proceedings was violated where he was not present at an April 14, 2015 final conference and where he was absent during trial when the trial court and the attorneys discussed Demond Davis's departure from the witness stand.

V. The trial court's ruling excluding Kennedy's first written statement violated his right to present a defense.

VI. Defendant was denied his right to a fair trial and impartial jury when evidence of his prior convictions was used in its finding of guilt or innocence, when it was provided with a copy of his felony information, which listed his prior convictions.

VII. The trial court erred in sentencing defendant as a fourth offense habitual offender because the prosecutor failed to satisfy the requirements set forth in MCL 769.13, requiring that he not only file a habitual offender notice and serve defendant with the same within 21 days after defendant's arraignment on the information but also file proof of service, MCL 769.13(2), in order to establish that defendant received notice timely.

VIII. The trial court abused its discretion and denied defendant a fair trial through improper remarks and questioning of a key witness which gave the appearance of advocacy for the prosecution.

IX. Defendant was denied the effective assistance of appellate counsel on direct appeal when appellate counsel failed to (1) adequately investigate and

...