Lavington v. Carl

• Docket Number: CIVIL 2:21-CV-11774
• Decision Date: 16 June 2022
• Citation: Lavington v. Carl, CIVIL 2:21-CV-11774 (E.D. Mich. Jun 16, 2022)
• Parties: DIONTE O. LAVINGTON, Petitioner, v. BECKY CARL, Respondent,
• Court: U.S. District Court — Eastern District of Michigan

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DIONTE O. LAVINGTON, Petitioner, v. BECKY CARL, Respondent,

CIVIL No. 2:21-CV-11774

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

June 16, 2022

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

HONORABLE SEAN F. COX, CHIEF UNITED STATES DISTRICT JUDGE.

Dionte O. Lavington, (“petitioner”), confined at the St Louis Correctional Facility in St. Louis, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for first-degree premeditated murder, Mich. Comp Laws, § 750.316(1)(a); felon in possession of a firearm Mich. Comp. Laws, § 750.224f; and possession of a firearm in the commission of a felony (felony firearm), Mich. Comp. Laws, § 750.227b.For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I.Background

Petitioner was convicted following a bench trial in the Wayne County Circuit Court.This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals's opinion, 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):

This case arises out of the death of the victim, CL, on July 19, 2017, in Detroit, Michigan.Several witnesses testified that they saw defendant and CL together at the location where CL was shot.They either saw defendant shoot CL; or they heard gunshots, following which CL was found to have been shot.The witnesses provided somewhat differing accounts, such as what other individuals, if any, were present at the scene, and minor differences in defendant's attire.Defendant testified that he was not present at the shooting, and instead he was seated on the porch of a house at least a block away with “Connie, ”“Anthony, ” and “KB.”None of those three individuals were further identified, although Connie and KB were apparently also known to some of the other witnesses.

AI testified that he was a friend of CL, and his testimony implied that he was familiar with defendant.He and CL met with defendant to purchase marijuana from defendant.Defendant and CL got into an argument regarding a small amount of money that CL owed defendant.The argument seemed to escalate and deescalate, sometimes appearing “heated” and sometimes not.Defendant appeared drunk and high on drugs, and he spoke to CL in an aggressive manner.AI left defendant and CL to go to a gas station and heard gunshots.When AI returned, defendant was gone and CL was lying on the ground, having been shot several times.AI believed defendant had “probably” been wearing a white t-shirt, black pants, and a black baseball hat.AI testified that he observed “a couple people in the area” after CL was shot, but nobody with whom he was familiar.

DB testified that he knew defendant and KB, but at the time of the shooting, he did not know who CL was.DB was driving down the street when he saw the person he later learned was CL standing alone.He then also saw defendant and KB approaching.Defendant flagged DB down, and DB stopped.Defendant then approached CL, and DB saw defendant standing less than a foot away from CL.DB heard several gunshots and drove away.DB did not observe defendant actually in possession of a gun.DB believed that defendant was wearing black pants, a black shirt or hoody, and a black baseball hat.Approximately 45 minutes later, he encountered defendant while walking, and defendant instructed DB to tell anyone who asked for “his alibi” that defendant had been at Connie's house all night.

MD testified that he knew both defendant and CL.On the night of the shooting, MD and two friends were sitting on a car in the vicinity of the shooting.MD testified that CL was behind them, and MD believed CL was “hustling.”He observed defendant“and a few other guys, ” one of whom was KB, approach CL. MD initially believed they were “just talking, ” until defendant told MD and his friends to leave.As they complied, MD observed defendant produce a pistol and start shooting at CL. MD recalled defendant wearing all black, other than red shoes with gray soles.

Defendant testified that he had been with Connie, KB, and Anthony on a porch elsewhere.He testified that he heard gunshots, but he did not see the shooting.CL's death was ruled a homicide, caused by six gunshot wounds.The gun was recovered from a large community dumpster behind Connie's house, inside a grocery bag also containing “gym shoes and some bullets.”The gun was tested for DNA.No usable DNA could be extracted from the trigger, but three DNA profiles were found on the grip, one of which was a match to defendant.Both DB and MD testified that they had seen defendant shooting a gun in the air earlier in the day, which they regarded as not unusual behavior for defendant.The parties stipulated that defendant was ineligible to possess a gun at the time of the shooting due to a prior felony conviction.The trial court found defendant guilty as noted above.

People v. Lavington, No. 344225, 2020 WL 908468, at * 1-2(Mich. Ct. App.Feb. 25, 2020), Iv. den., 507 Mich. 898, 956 N.W.2d 185(2021)(internal footnote omitted).

Petitioner seeks a writ of habeas corpus on the following grounds:

I.Defendant was deprived of due process and the right of compulsory process when the prosecution failed to notify the defense and obtain the presence of the res gestae witness who was nearby during the incident, and trial counsel was ineffective in failing to investigate and produce the witness.

II.DefendantDionte Lavington's conviction for first degree murder, felon in possession of a firearm, and felony firearm should be vacated where the prosecution failed to meet its burden of proof resulting in insufficient evidence regarding the elements of the crimes.

III.Defendant's convictions should be vacated because there was legally insufficient evidence of premeditation to support a guilty finding.

IV.Defendant was denied a fair trial and his constitutional right to present a defense because trial counsel was ineffective when he failed to present a consistent defense, failed to prepare Lavington for his testimony, failed to call his witnesses and by failing to conduct basic pre-trial investigation, all of which caused a failure to present an adequate defense.

V.Defendant is entitled to a remand for a Ginther hearing to address the ineffective assistance of counsel because the development of a factual record is required for appellate consideration.

II.Standard of Review

28 U.S.C. § 2254(d), as amended byThe Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

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.

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.Williams v. Taylor, 529 U.S. 362, 405-06(2000).An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.”Id. at 409.A federal habeas court may not “issue the writ 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 410-11.“[A]state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.”Harrington v. Richter, 562 U.S. 86, 101(2011)(citingYarborough v. Alvarado, 541 U.S. 652, 664(2004)).Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”Harrington,562 U.S. at 103.

III.Discussion

A.Claim # 1.The resgestaewitness claim.

Petitioner first claims that his due process rights were violated when the prosecutor failed to produce at trial a res gestae witness known only as “KB.”Petitioner argues that the prosecutor failed to exercise due diligence in locating this witness to make him available at trial to testify.

Violations of state law and procedure which do not infringe specific federal constitutional protections are not cognizable claims under Section 2254.Estelle v. McGuire, 502 U.S. 62 67-68(1991).Federal law does not require the production of res gestae witnesses.Johnson v. Hofbauer,159 F.Supp.2d 582, 601(E.D. Mich.2001).Michigan law's requirement that the prosecutors produce res gestae witnesses is simply a matter of state law whose enforcement is beyond the scope of federal habeas review.SeeCollier v. Lafler,419 F. App'x. 555, 559(6th Cir.2011).“[U]nder federal law, there is no obligation on the...