Lewis v. Macauley

• Docket Number: 21-cv-10186
• Decision Date: 01 August 2023
• Parties: GARY PATRICK LEWIS, Petitioner, v. MATT MACAULEY, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

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GARY PATRICK LEWIS, Petitioner, v. MATT MACAULEY, Respondent.

No. 21-cv-10186

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

August 1, 2023

OPINION & ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY & DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE

I. Introduction

This is a pro se habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Gary Patrick Lewis (“Petitioner”) was convicted of one count of second-degree arson, MICH. COMP. LAWS § 750.73(1), and four counts of third-degree arson, MICH. COMP. LAWS § 750.74, following a jury trial in the Wayne County Circuit Court. He was sentenced, as a fourth habitual offender, MICH COMP. LAWS § 769.12, to concurrent terms of 17 to 30 years imprisonment on those convictions in 2014. In his pleadings, Petitioner raises claims concerning his right to counsel at the preliminary examination, the use of a photographic array, the admission of voice identification testimony, the effectiveness of trial counsel, and the police loss/destruction of evidence. For the reasons set forth herein, the Court denies the habeas petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner's convictions arise from a series of fires at several abandoned buildings in Detroit, Michigan on March 2, 2014. The Michigan Court of Appeals described the underlying facts, which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

A. PRELIMINARY EXAM

At the start of defendant's preliminary examination, the trial court asked defendant to state his full name on the record. In response, defendant stated, “I'm not talking. I don't have no attorney. This man disrespecting me. You all violating my rights. I'm through with it. I'm through with it.” The trial court then stated that it had appointed lawyers for defendant on multiple occasions, that defendant had indicated his displeasure with each of the lawyers that were appointed, and that defendant had in fact grieved each of the prior counsel.

In light of this, the trial court found that defendant had “elected that he would prefer not to have a lawyer to represent him and we're going to proceed.” In response, defendant stated, “I never said that.” The trial court then reiterated that the preliminary examination would proceed and that defendant's former trial counsel, Brian Scherer, would act as stand-by counsel.

As the prosecution called Mollison Folson to testify, defendant stated, “I'm not going to participate in this legal bullshit.” The court then warned defendant that he would be expelled from the courtroom if he continued his outburst. Defendant continued to interrupt the court while using profane language, so the trial court expelled defendant from the courtroom. After defendant was removed, the trial court told Scherer that he was free to leave as well. The court then continued with the preliminary examination, and after hearing testimony from six witnesses, the trial court held that there was sufficient probable cause to bind defendant over for trial.

B. TRIAL

After defendant was bound over for trial, the following evidence was presented to the jury. At 10:30 a.m. on March 2, 2014, Folson observed defendant walking down Russell Street in Detroit. Folson heard defendant yelling loudly about how he had observed a white man raping several women. Folson then observed defendant walk into a vacant home located at 20527 Russell for 10 minutes. When defendant exited the home, he spoke with Folson briefly and then left. An hour later, Folson observed firemen attempting to put out a fire at 20527 Russell.

At 11:30 a.m., Raven Jackson and her husband, Christopher Goward, were loading up a van in front of their home, located at 20514 Hull in Detroit. Jackson and Goward observed defendant yelling and walking down their street. They then observed defendant enter the vacant house next-door, located at 20520 Hull. Approximately four minutes later, Jackson and Goward observed smoke coming out of 20520 Hull. The home eventually began burning and the fire spread and damaged 20514 Hull.

On the same day, Ronnie Blanton was taking pictures of a vacant house located at 20438 Hawthorne in Detroit. While he was taking pictures, Blanton observed defendant walking down Hawthorne and yelling into a cellular phone. Defendant then walked into a vacant house next door, located at 20430 Hawthorne. After defendant exited the home, Blanton observed smoke coming from the home. Blanton's coworker, David Forman, approached defendant, at which point defendant threatened to shoot Forman. Blanton asked defendant if he set the home on fire, but defendant did not respond. The fire eventually spread to 20438 Hawthorne and damaged the home.

Lieutenant Jamel Mayers and Lieutenant Dennis Richardson were dispatched to Hawthorne Street to investigate the fires. Upon arriving, Blanton provided the officers with a description of defendant. Mayers and Richardson then began to search the area for defendant. After driving around, they spotted defendant and ordered him to stop. Defendant began to flee, but Mayers and Richardson were able to apprehend him. A search of defendant's pocket revealed four cigarette lighters.

People v. Lewis, No. 325782, 2016 WL 3945944, at *1-2 (Mich. Ct. App. July 21, 2016) (footnote omitted), rev'd in part, 501 Mich. 1, 903 N.W.2d 816 (2017).

Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising several claims, including those raised on habeas corpus review. The court vacated his convictions based on the Michigan Supreme Court's prior interpretation of federal law, ruling that the absence of counsel at the preliminary examination was a structural error requiring automatic reversal, and remanded the case to the trial court for a new trial. Id. at *2.

The prosecution filed an application for leave to appeal in the Michigan Supreme Court challenging that ruling, and Petitioner filed an application for leave to appeal as a cross-appellant. Following briefing and argument, the Michigan Supreme Court ruled that the deprivation of counsel at a preliminary examination is subject to harmless-error review based upon the United States Supreme Court's decision in Coleman v. Alabama, 399 U.S. 1 (1970), reversed the judgment of the Michigan Court of Appeals, vacated Part II of its opinion, and remanded the case to the Michigan Court of Appeals to determine whether the error was harmless and, if so, to address Petitioner's sentencing claim. People v. Lewis, 501 Mich. 1, 903 N.W.2d 816 (2017).

On remand, the Michigan Court of Appeals ruled that the lack of counsel at the preliminary examination was harmless error and affirmed Petitioner's convictions, but remanded the case to the trial court to determine whether it would have imposed a materially different sentence in light of People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015). People v. Lewis (On Remand), 322 Mich.App. 22, 910 N.W.2d 404 (2017). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Lewis, 503 Mich. 1028, 926 N.W.2d 579 (2019). Petitioner also filed a petition for a writ of certiorari with the United States Supreme Court, which was denied. Lewis v. Michigan, 140 S.Ct. 843 (2020).

Petitioner thereafter filed his federal habeas corpus petition raising the following claims:

I. He was denied his Sixth Amendment right to counsel at the preliminary examination.

II. He was denied a fair trial by the use of photographic lineups, when he was in custody without counsel, and trial counsel was ineffective for failing to move to suppress photographic lineups and for failing to request a corporeal lineup.

III. He was denied his right to a due process of law by the admission of a suggestive voice identification, and trial counsel was ineffective for failing to suppress the suggestive voice and in-court identifications.

IV. He was denied his right to a due process of law when important evidence was lost or destroyed by the police.

(ECF No. 1, Pet.) Respondent has filed an answer to the habeas petition contending that it should be denied because certain claims (or portions thereof) are procedurally defaulted and all of the claims lack merit. (ECF No. 9, Resp.)

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part:

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) (1996).

“A state court's decision is ‘contrary to' clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme...