Johnson v. Warren

Decision Date15 November 2004
Docket NumberNo. CIV. 03-40154.,CIV. 03-40154.
PartiesWarren Lee JOHNSON, Petitioner, v. Millicent WARREN, Respondent,
CourtU.S. District Court — Eastern District of Michigan

Earl R. Spuhler, Rogers City, MI, for Warren Johnson, Petitioner.

Debra M. Gagliardi, Michigan Department of Attorney General, Habeas Corpus Division, Brenda E. Turner, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Millicent Warren, Warden, Respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

GADOLA, District Judge.

Warren Lee Johnson, ("petitioner"), presently confined at the Thumb Correctional Facility in Lapeer, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed through counsel, petitioner challenges his conviction on one count of armed robbery, Mich. Comp. Laws 750.529, one count of first-degree home invasion, Mich. Comp. Laws 750.110a(2), one count of possession of a firearm in the commission of a felony, Mich. Comp. Laws 750.227b, and being a fourth felony habitual offender, Mich. Comp. Laws 769.12. For the reasons stated below, the Court will deny petitioner's application for writ of habeas corpus.

I. Background

Petitioner was convicted of the above offenses following a jury trial in the Isabella County Circuit Court. Petitioner was sentenced to 300 to 450 months on the armed robbery conviction, 160 to 240 months on the first-degree home invasion conviction, and received a consecutive two-year sentence on the felony firearm conviction. The convictions were based on the following events.

On August 11, 1995, Matthew Benedict returned to his home in Coldwater Township, Michigan, where he lived with his parents. As Benedict approached the house, he noticed an unfamiliar motor vehicle parked in the driveway. The vehicle's motor was running and the driver's side door was open. Benedict remained inside of his car. A person later identified as petitioner exited the garage, pointed a handgun at Benedict and ordered him to leave. Benedict observed another man inside of the garage who was holding some rifles and other items that belonged to his family. Benedict left his house and went to call the police. When Benedict returned to the house with a sheriff's deputy, Benedict and the deputy noticed that cupboard doors and drawers were opened and items had been thrown about. Three firearms, some ammunition, a coin collection, and some rings had been stolen from the house.

Benedict subsequently identified petitioner in a live corporeal line-up as the man who had pointed a firearm at him in the driveway of his home. Benedict also identified a number of items that had been taken from his home, including an assault rifle, ammunition, and parts of his coin collection.

Undersheriff William Burns arrested petitioner and advised him of his Miranda warnings. After being advised of his constitutional rights, petitioner admitted to Burns that he had been present at the Benedicts' house at the time of the break-in. Petitioner told Burns that his co-defendant, Timothy Longnecker, had asked him to go with him to his brother's house. Once the two men arrived at this house, Longnecker entered the house. Longnecker returned shortly thereafter and asked petitioner to go into the house and retrieve some guns that were on the bed in the basement of the home. Petitioner told Burns that he and Longnecker were wearing gloves when they entered the home. Petitioner admitted removing three guns from the house. When petitioner was in the garage, he claimed that he observed Longnecker pointing a gun at someone who was sitting in a car parked in the driveway and ordering that person to leave. Petitioner told Burns that he and Longnecker left the house and hid the weapons in the woods.

Petitioner told Burns that Longnecker later asked him to help retrieve the guns from the woods because someone had either purchased the guns or was interested in purchasing them. Longnecker and petitioner recovered the weapons and took them to Bar One. Pawnshop owner A.J. Baba testified that Longnecker spoke to him on August 12, 1995 at Bar One about buying some guns. Baba told Longnecker that a man named Glen Dixon might be interested in purchasing them. Baba also indicated that Longnecker and a man who was with him then spoke with Dixon about buying the weapons. Detective Bart Dexter of the Midland County Sheriff's Department testified that he recovered an assault rifle and a shot gun that had been stolen from the Benedict home from Dixon.

Petitioner's father, James Johnson, testified that his son and Longnecker came to his house on August 11, 1995 and stayed for three hours. Longnecker told James Johnson that he and petitioner had just robbed a house and had stolen guns. Longnecker indicated that he had also pulled a gun on a boy and ordered him to leave the yard.

Petitioner's conviction was affirmed on appeal. People v. Johnson, 192067, 1997 WL 33343862 (Mich.Ct.App. Oct. 31, 1997); lv. den. 459 Mich. 856, 583 N.W.2d 901 (1998). Petitioner subsequently filed a petition for writ of habeas corpus, which was dismissed without prejudice on the stipulation of the parties. Johnson v. McLemore, No. 99-74282 (E.D.Mich. Oct. 24, 2000). Petitioner then filed a post-conviction motion for relief from judgment, which the state trial court denied. People v. Johnson, 95-7400-FC (Isabella County Cir. Ct., Apr. 12, 2001). The Michigan Court of Appeals granted petitioner leave to appeal, but ultimately affirmed the trial court's denial of the post-conviction motion. People v. Johnson, 235484, 2002 WL 31058064 (Mich.Ct.App. Sept. 13, 2002). The Michigan Supreme Court denied petitioner leave to appeal. People v. Johnson, 468 Mich. 877, 659 N.W.2d 235 (2003).

Petitioner has now filed this petition for writ of habeas corpus, in which he raises the following claims:

I. Petitioner was denied due process because the prosecutor introduced evidence that the line-up, which was extremely suggestive, had been approved by counsel for petitioner [who] was not present for the line-up.

II. Petitioner was denied due process because he was sentenced by a judge who had previously represented him in a criminal matter before he became a judge [although] he should have been automatically disqualified from sitting as a sentencing judge.

III. The jury instructions given at trial were erroneous and undercut the reasonable doubt standard in violation of the defendant's Sixth and Fourteenth Amendment right to due process and a fair trial.

IV. Petitioner was denied the effective assistance of trial and appellate counsel in violation of the Sixth Amendment to the United States Constitution.

V. Petitioner has shown cause and prejudice and is entitled to relief.

Pet. at 2.

II. Standard of Review

Congress has provided by statute that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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).

A decision of a state court is "contrary to" clearly established federal law 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. An "unreasonable application" occurs if the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411, 120 S.Ct. 1495.

III. Discussion
A. Motion for the Appointment of Counsel

On April 30, 2004, petitioner moved for the appointment of counsel, after his petition was filed through counsel. In the motion, petitioner indicates that he is unable to afford counsel, the issues involved in the case are complex, he has a limited knowledge of the law and is being assisted by a prisoner who is a paralegal, and the ends of justice would be served by the appointment of counsel. Petitioner does not mention that an attorney had filed the petition in this case. In a letter written to petitioner by attorney Jeanice Dagher-Margosian, a copy of which was filed with this court (see docket entry 17), Ms. Dagher-Margosian indicates that petitioner's counsel had recently died and she was helping other lawyers to manage the transfer of his cases. Ms. Dagher-Margosian also suggested that petitioner send a notice to this Court that he be allowed to proceed pro per, rather than requesting the appointment of another attorney.

There is no constitutional right to counsel in habeas proceedings. Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir.2002). "Habeas corpus is an extraordinary remedy for unusual cases" and the appointment of counsel is within the discretion of the Court and required only if, given the difficulty of the case and petitioner's ability, the petitioner could not obtain justice without an attorney, he could not obtain a lawyer on his own, and he would have a reasonable chance of winning with the assistance of counsel. See ...

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