Lambeth v. Rivard, CASE NO. 2:10-CV-14353

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtGEORGE CARAM STEEH
PartiesTERRILL LASHON LAMBETH, Petitioner, v. STEVEN RIVARD, Respondent.
Decision Date12 September 2011
Docket NumberCASE NO. 2:10-CV-14353

STEVEN RIVARD, Respondent.

CASE NO. 2:10-CV-14353


Dated: September 12, 2011



Terrill Lashon Lambeth, ("Petitioner"), confined at the St. Louis Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed by attorney Kristoffer W. Tieber, petitioner challenges his conviction for first-degree premeditated murder, M.C.L.A. 750.316; and possession of a firearm in the commission of a felony, M.C.L.A. 750.227b. For the reasons stated below, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted of the above charges, following a jury trial in the Kent Count Circuit Court, in which he was tried jointly with his co-defendant and brother Sammie Rae Bailey, Jr., but with separate juries. Petitioner's conviction arose from the shooting death of Keith Hoffman in Grand Rapids, Michigan.

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On May 3, 2006, Grand Rapids Police Officer Thomas Gootjes and Officer Phil Braate were dispatched to an area near the intersection of Dallas Avenue and Prince Street in Grand Rapids, Michigan following a report of a shooting. Both officers testified that they responded to the crime scene in less than a minute after receiving the dispatch. (Tr. 3/20/07, pp. 16-17; 21-22, 30, 42-43). Officer Gootjes saw the victim lying on the ground on his side. Officer Gootjes checked the victim and found neither a pulse nor breathing but observed a number of gunshot wounds to the body. (Id., pp. 21-22, 25). Officer Gootjes noticed a small bag with a single rock of crack cocaine by the victim's mouth and a small bag of marijuana by his left hand. (Id., pp. 28-29). Officer Gootjes testified that did not see a gun around or on the victim's body. (Id., pp. 38-40). Officer Gootjes and Officer Braate testified that a small group of people, less than ten, were standing near the victim when the police arrived. These individuals backed away from the victim's body immediately when asked by Officer Gootjes to do so. Although a large group of persons began to congregate across the street, none moved close enough to the crime scene to concern Officer Gootjes. Both officers testified that they did not see anyone kneeling near or directly by the victim's body when they arrived. Officer Gootjes remained with the victim's body to assure that no one came near him. Although the persons across the street became verbally hostile, no one other than fire department personnel, ambulance personnel, or police were allowed in the immediate vicinity of the victim's body.

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(Id., pp. 21-25, 31, 44-46).

Several eyewitnesses to the shooting testified that petitioner and the co-defendant came up to the victim and began shooting at him from 20-25 feet away even as the victim attempted to turn away. (Id., pp. 106, 157, 219, 222-23, 246). These witnesses testified that they did not see the victim in the possession of a firearm at the time of the shooting. (Id., pp. 76, 163, 183-84, 224). Although two witnesses indicated that a man named Amonte McDonald had talked about taking some crack cocaine off of the victim after he had been shot, they indicated that McDonald did not actually do so. (Id., pp. 109-10, 127). The eyewitnesses testified that petitioner and his co-defendant were wearing white t-shirts. (Id., pp. 110, 151; Tr. 3/21/07, pp. 24-25, 35). One eyewitness, Charles Long, testified that it took more than twenty minutes for the police to respond to the call, (Id., p. 126), although another witness, Marion Kilgore, testified that she could not recall how soon the police responded to the scene, but indicated that "it seemed fast and it seemed long. But, it seemed fast. I'm not sure. I'm not sure." (Id., p. 75).

Charles Long testified that the taller of the two men walked up to the victim after he had already fallen to the ground, stood over him, and fired another shot. (Tr. 3/20/07, p. 106). Long stated that he stood by the victim when police arrived and testified that no one took any items from the victim's body. (Id., pp. 107, 109).

Fred Reed testified that two men came running and yelling down the street, before shooting the victim in the back. Both men had guns. Neither man had

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exchanged any words with the victim prior to shooting him. Reed testified that the men shot at the victim from about 25 feet away and after the victim fell to the ground, one of the men "run up closer and emptied the gun in him." Reed indicated that the victim fell after the first shot and "was layin' on his side, and they shot him in the back." After shooting the victim, the men fled the scene. (Id., pp. 155-58, 161, 174).

Kevin Strickland saw two men approach the victim and stated that the victim turned away like he was going to run, before being shot. Strickland did not see the victim with a gun. Strickland stated that one of the two men came over and stood over the victim and shot him again. (Id., pp. 218-19, 222-24, 246).

Dr. David Start, a forensic pathologist, performed the autopsy on the victim and located seven gunshot wounds on his body. (Tr. 3/23/07, pp. 37-38). Two of the gunshot wounds (A & B) were to the victim's forearm or wrist regions. Dr. Start indicated that a fatal gunshot (C) entered the victim's left side and traveled through his body. Dr. Start believed that this gunshot wound was consistent with the victim turning to his right away from the shooter. (Id., pp. 39-49). Dr. Start testified that gunshot wound (D) involved a bullet entering into the victim's upper mid-back—his left shoulder—and exiting the right upper side of his chest. (Id., pp. 49-50). Dr. Start acknowledged the possibility that the bullet inflicting wound D could have also re-entered the victim's body and have inflicted wound A in the lower right forearm. (Id., pp. 60-61). Dr. Start indicated that gunshot wound (E)

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began with an entrance of the bullet at the victim's upper left side of his back shoulder and exited at his lower left chin area. (Id., pp. 52-55). Dr. Start noted that the track of this bullet was consistent with a person falling down at the time he was shot. (Id., pp. 55). Dr. Start stated that gunshot wound (F) involved the bullet entering into the victim's left back/shoulder region and leaving his body around the front of his left upper arm. (Id., pp. 55-56). Dr. Start also described gunshot wound (G), which had an entrance at the lower right side of the victim's chin, before exiting towards the front of his chin. Dr. Start opined that this was further evidence that the victim was shot from behind. (Id., p. 57). Dr. Start stated that the victim's death was caused by the gunshot wounds to his chest and back and that the manner of death was a homicide. (Id., pp. 64-65). Dr. Start stated definitively that gunshot wounds C-G were inflicted when the victim had either his side or his back to the shooter or shooters. (Id., p. 85).

Subsequent to the shooting, police began searching the area for the shooters. Officers ended up at petitioner's mother's house, which was near the crime scene, where they located the co-defendant. (Tr. 3/21/07, pp. 3-16; 50-55). Officers searched the home and located an empty gun case, fresh blood droplets in the kitchen area, and two white t-shirts balled up on the bed. (Id., pp. 15-16, 50-55, 59-64, 162-78; Tr. 3/22/07, 68-73). DNA testing revealed that the blood droplets belonged to petitioner. (Tr. 3/21/07, pp. 165-71). Officers noticed an old fence that had been knocked down behind the house, which looked as though

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someone had jumped over the fence, fallen down, and possibly had been injured. The police noticed fresh minor abrasions on both petitioner and Bailey at the time of their arrests. (Tr. 3/21/07, pp. 9-11, 63-64, 76-77).

Fenis Harmon, petitioner's grandfather, testified that petitioner showed up at his house on the day of the shooting, accompanied by a woman and small child. Petitioner had also brought along a bag with two guns. Petitioner asked his grandfather if he would permit him to burn the guns there, but his grandfather refused to let him. Petitioner then asked his grandfather for some rubbing alcohol to wash his hands and also asked him the location of the nearest dumpster. (Id., pp. 106-115).

Petitioner was stopped by police on I-96 shortly after 8:30 p.m. on the night of the shooting. Petitioner was accompanied by Latrice Goree and a small child. The vehicle was full of clothing. Petitioner was placed into the back of a patrol car, which had both a visual and audio recorder running. Petitioner was heard on tape saying "There goes my life. My life's over." At another point, petitioner several times asked Goree to "Tell them I was with you." Police subsequently searched petitioner's vehicle and recovered bundles of cash totaling $10,000, which had been hidden in socks that were in the pockets of sweatpants. (Tr. 3/21/07, pp. 65-80, 84-89; 100-01).

Tina Sterling testified that in June or July of 2005, petitioner had given her and her niece, Latrice Goree, a ride to...

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