Lee v. Haas, Case Number: 2:10-CV-12202

• Citation: 197 F.Supp.3d 960
• Decision Date: 24 June 2016
• Docket Number: Case Number: 2:10-CV-12202
• Parties: Larry LEE, Petitioner, v. Randall HAAS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

197 F.Supp.3d 960

Larry LEE, Petitioner,
v.
Randall HAAS, Respondent.

Case Number: 2:10-CV-12202

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

Signed June 24, 2016

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John R. Minock, Cramer, Minock & Sweeney, P.L.C., Ann Arbor, MI, for Petitioner.

Bruce H. Edwards, Michigan Attorney General's Office, Lansing, MI, for Respondent.

AMENDED OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING CERTIFICATE OF APPEALABILITY¹

ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE

Petitioner Larry Lee filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for one count of third-degree criminal sexual conduct and one count of fourth-degree criminal sexual conduct. At the time he filed the petition, Petitioner was in the custody of the Michigan Department of Corrections.² He claims that his convictions were obtained in violation of his Sixth Amendment right to self-representation

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and that his appellate counsel was ineffective in failing to raise this claim on direct review. Respondent has filed a response arguing that Petitioner's self-representation claim is procedurally defaulted and meritless and that his ineffective assistance of appellate counsel claim is untimely.

Petitioner repeatedly, timely, and unequivocally asserted his right to self-representation. Despite this, the trial court failed to acknowledge, honor or inquire into Petitioner's request, and appellate counsel failed to raise the issue on appeal. The court finds that Petitioner's ineffective assistance of appellate counsel claim is timely and that Petitioner is entitled to habeas relief on this claim. Petitioner's self-representation claim is procedurally defaulted and the court denies relief on that claim, but grants a certificate of appealability.

I. BACKGROUND

Petitioner was convicted as set forth above following a jury trial in Washtenaw County Circuit Court. The Michigan Court of Appeals set forth the relevant facts as follows:

Defendant, an openly homosexual man, was convicted of sexually assaulting two heterosexual men while they were sleeping or incapacitated. The victims did not know each other and only saw each other in relation to this case. On March 6, 2006, DL was at an Ann Arbor bar with Mike Allers and others. While there, DL met defendant. During the night, DL and others "were taking turns buying rounds" of drinks. When the bar closed at 2:00 a.m., approximately 15 people, including defendant, went to DL's apartment for an after-party. After socializing until about 4:00 a.m., DL went to bed while people were still in his apartment. Allers testified that he saw DL sleeping under the covers in his bed. When Allers left the party, he observed defendant performing oral sex on another male in the hallway of the apartment building. DL testified that he later awoke to the sensation of someone performing oral sex on him. When DL looked down, his boxers had been pulled down and defendant's face was next to his genitals. In response to DL's questions, defendant indicated that DL wanted it. DL was "in shock," "very upset," and demanded that defendant leave. When defendant failed to comply, DL left the room. Defendant eventually left by cab. At trial, DL denied being flirtatious or sexually aggressive toward defendant. Allers corroborated DL's statements in this regard.

In contrast, defendant testified that DL initiated their sexual encounter. DL was allegedly flirtatious and sexually aggressive throughout the night, and told defendant that he was "heteroflexible."¹Defendant claimed that DL chased him around the apartment, followed him into the bathroom, kissed him on the lips, and grabbed his penis, causing defendant to fall backward and knock the sink off the wall. Defendant was upset and left in a cab. Defendant denied pulling down DL's boxers, performing oral sex on DL, or performing oral sex with another male in the hallway of the building.

On June 3, 2006, CB attended a party with his fraternity brother, Luke Stein; approximately 50 people attended the party. CB consumed several alcoholic beverages over the course of the evening. CB remembered using the bathroom at about 2:30 a.m. CB's next memory was briefly waking up in a bedroom with his pants down, boots off, and defendant performing oral sex on him. CB heard defendant say, "let me finish," and he blacked out again. CB woke at dawn, was taken out to a cab, and told to "shut up." CB recalled waking up in his bed the next afternoon. He subsequently reported

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the sexual assault. CB did not recall seeing defendant at the party and denied socializing, flirting, or kissing him. CB denied consenting to any sexual act with defendant.

Stein saw defendant at the party. Stein last saw CB around 1:45 a.m., and Stein was asked to leave the party about 2:00 a.m. According to Stein, on the next afternoon, CB was crying, "really upset," and "still seemed like he was intoxicated in some way." After CB told Stein what had occurred, Stein drove him to the police station to report the sexual assault. Stein testified that CB had never expressed a sexual interest in men and was dating a woman.

Defendant testified that CB initiated their sexual encounter, which defendant described as consensual. At the party, CB allegedly was flirtatious, complimentary, and asked to accompany defendant to his apartment. At the apartment, CB and defendant kissed and performed oral sex on each other. CB allegedly wanted to have intercourse during their encounter, which defendant declined. Defendant claimed that CB's demeanor changed after CB ejaculated because he was concerned that others would think he was a homosexual. Defendant testified that CB did not appear intoxicated during their sexual encounter.

Bianca Johnson, defendant's former close friend, testified that defendant expressed a sexual interest in young, straight, white men but also disliked those same men for how they treated women. Defendant allegedly pursued straight white men to humiliate them and "pay them back" for their treatment of women. Defendant denied expressing any intent to "pay back" straight men. The defense presented two additional witnesses, who testified that defendant never expressed a desire to "get back" at white males.

(28)-

¹DL denied making this statement.

People v. Lee , Nos. 277551, 2008 WL 4276473, *1–2 (Mich.Ct.App. Sept. 16, 2008).

On March 13, 2007, Petitioner was sentenced to 3 to 15 year's imprisonment for the third-degree criminal sexual conduct conviction and 9 months in jail for the fourth-degree criminal sexual conduct conviction. Petitioner filed an appeal of right in the Michigan Court of Appeals. He raised these claims through counsel: (i) ineffective assistance of counsel; (ii) trial court failed to conduct adequate inquiry into breakdown of attorney-client relationship; (iii) denied right to present a defense; and (iv) trial court erred in denying motion to sever. Petitioner filed a pro se supplemental brief raising ten additional claims. A self-representation claim was not raised until Petitioner filed a motion for leave to add additional constitutional claims to his Standard 4 brief in the Michigan Court of Appeals. (See Dkt. # 25-6, Pg. ID 872) The Court of Appeals denied Petitioner's motion to add claims, stating that, "Administrative Order 2004-6, Standard 4, provides that the defendant's filing shall consist of one brief filed with or without an appropriate accompanying motion. It does not provide for the filing of multiple briefs by the defendant. The brief filed with the motion is returned with this order." (Id. at Pg. ID 871.) The Michigan Court of Appeals affirmed Petitioner's convictions. Id. Petitioner filed an application for leave to appeal to the Michigan Supreme Court, raising the same claims raised through counsel in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Lee , 483 Mich. 1132, 767 N.W.2d 450 (Mich.2009).

Petitioner then filed a habeas corpus petition, which the court held in abeyance pending exhaustion of state court remedies.

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Petitioner filed a motion for relief from judgment in the trial court raising these claims: (i) denied right to self-representation; (ii) denied right to be represented by counsel of his own choosing; and (iii) received ineffective assistance of trial and appellate counsel. The trial court denied the motion. (See Dkt. # 37-5.) Both the Michigan Court of Appeals and Michigan Supreme Court denied Petitioner's application for leave to appeal the trial court's decision. People v. Lee , No. 313359 (Mich. Ct. App. Sept. 24, 2013); People v. Lee , 495 Mich. 963, 843 N.W.2d 744 (Mich.2014).

Petitioner then returned to this court and filed an amended petition. He presents these claims for habeas relief:

I. Petitioner wrote to the trial judge and said he wanted to represent himself. When Petitioner attempted to raise the issue in court, the trial judge actively prevented him from making a record. The trial judge's failure to conduct any inquiry into Petitioner's assertion of the right to self-representation was structural error.

II.

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