Lewis v. Smith

• Decision Date: 06 December 2016
• Docket Number: Case No. 1:12-cv-1109
• Parties: PATRICK LEWIS, #156554, Petitioner, v. WILLIE SMITH, Respondent.
• Court: U.S. District Court — Western District of Michigan

PATRICK LEWIS, #156554, Petitioner, v. WILLIE SMITH, Respondent.

Case No. 1:12-cv-1109

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

December 6, 2016

Honorable Robert Holmes Bell

REPORT AND RECOMMENDATION

This is a habeas corpus proceeding brought pro se by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner's convictions stem from his role in the February 16, 2001, killing of David Franklin. A Kent County Circuit Court jury found petitioner guilty of second-degree murder, Mich. Comp. Laws § 750.317, carrying a concealed weapon, Mich. Comp. Laws § 750.227, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. Petitioner was sentenced to 35 to 55 years' imprisonment for his murder conviction, three to five years' imprisonment for his carrying a concealed weapon conviction, and a consecutive two years' imprisonment for his felony-firearm conviction.

After unsuccessful attempts to overturn his conviction in state court, petitioner filed this habeas corpus petition. Petitioner seeks federal habeas corpus relief on the following grounds:

I. The trial court lost jurisdiction to try petitioner when it deprived him of an arraignment in violation of this rights under the Fourteenth Amendment's Due Process Clause.

II. Petitioner was deprived of his Sixth Amendment right to the effective assistance of counsel where the trial court erroneously ordered the withdrawal of court appointed counsel based on supposed conflict of representation.

III. Petitioner's rights under the Fourteenth Amendment's Due Process Clause were violated when the trial court denied petitioner's pro se motion asking the judge to disqualify himself and assign the matter to another judge.

IV. The trial court abused its discretion by denying petitioner access to requested discovery material, an independent expert witness, and the right to be present at every stage of trial proceedings in violation of petitioner's Fifth, Sixth, and Fourteenth Amendment rights.

V. Prosecutorial misconduct in offering into evidence a poor quality recording of a conversation between petitioner and Angela Cross and using his own version of the recording in questions to witnesses and reading it to the jury. The trial court abused its discretion in allowing the prosecutor to read his version to the jury.

VI. Petitioner was deprived of his Sixth Amendment right to the effective assistance of counsel where counsel conducted no investigation, interviewed no witnesses, subpoenaed no witnesses, failed to lodge necessary objections, failed to communicate with petitioner, failed to communicate with the investigator, and failed to contact the independent expert regarding the tape.

VII. Petitioner was deprived of his Sixth Amendment right to the effective assistance of appellate counsel where counsel failed to raise on direct appeal the issues that petitioner subsequently raised in his motion for post-conviction relief under Mich. Ct. R. 6.500.

VIII. The trial court violated petitioner's right to a speedy trial where it allowed seven or eight months to pass before bringing petitioner back to Kent County. The court allowed a total of eleven months to pass from the date of the Supreme Court's reversal to the date of the retrial. Petitioner was prejudiced by the delay.

(Amended Petition, ECF No. 5, PageID.152-64, 170-78).¹

Respondent has filed an answer to the amended petition. (Answer, ECF No. 11). Respondent argues that Grounds I through V are barred by procedural defaults and that petitioner has not established grounds to excuse those defaults. (Id. at 8, 38-61 PageID.380, 410-33). He argues that grounds VI through VIII should be denied for lack of merit. (Id. at 62-73, PageID.434-45).

Judge Bell has referred the matter to me for all purposes, including the issuance of a report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Rule 10 of the Rules Governing Section 2254 Cases in the District Courts. After review of the state-court record, I conclude petitioner has not established grounds for federal habeas corpus relief. I recommend that the petition be denied on the merits.²

Standard of Review

The Court's review of this petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA "dictates a highly deferential standard for evaluating state-court rulings which demands the state court decisions be given the benefit of the doubt." Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted). "AEDPA requires heightened respect for state court factual and legal determinations." Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). "State-court factual findings [] are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence." Davis v. Ayala, 135 S. Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) (("[A]ny claim that was adjudicated on the merits in State court proceedings' is subject to AEDPA deference.") (quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal habeas "retrials" and ensures that state court convictions are given effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It prohibits "using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Parker v. Matthews, 132 S. Ct. 2148, 2149 (2012) (per curiam).

The AEDPA standard is difficult to meet "because it was meant to be." Harrington v. Richter, 562 U.S. 86, 102 (2011). "Section 2254(d) reflects the thathabeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through appeal." Id. at 102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). Section 2254(d) states that an application for a writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication "(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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see White v. Wheeler, 136 S. Ct. 456, 460 (2015); Davis v. Ayala, 135 S. Ct. at 2198; White v. Woodall, 134 S. Ct. 1697, 1702 (2014).

The only definitive source of clearly established federal law for purposes of § 2254(d)(1) is the holdings—not dicta—of Supreme Court decisions. White v. Woodall, 134 S. Ct. at 1702; see Woods v. Donald, 135 S. Ct. at 1377 ("Because none of our cases confront 'the specific question presented by this case,' the state court's decision could not be 'contrary to' any holding from this Court."). "[W]here the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims." Id. (quotations and internal citations omitted).

An unreasonable application of the Supreme Court's holding must be "'objectively unreasonable,' not merely wrong; even 'clear error' will not suffice." Whitev. Woodall, 134 S. Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). Rather, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." White v. Woodall, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103). "[C]ircuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court,' " and "[i]t therefore cannot form the basis for habeas relief under AEDPA." Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v. Matthews, 132 S. Ct. at 2155); see Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per curiam) ("As we have repeatedly emphasized, [] circuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court.'").

"[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2) requires that this Court accord the state trial court substantial deference. If reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination. Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S. Ct. 10, 15 (2013).

Proposed Findings of Fact

A. District Court Proceedings

Petitioner received a preliminary examination in 61st District Court. (Preliminary Examination (PE), ECF No. 14, 15). On March 8, 2001, Judge Patrick Bowler bound over petitioner for trial in Kent County Circuit Court on the charges of open murder,³ carrying a concealed weapon, felony firearm, and felony murder.⁴ (PE, 309).

B. Initial Trial in Circuit Court and Related Appeals

1. Circuit Court Proceedings

Petitioner waived arraignment in Kent County Circuit Court. (PE, 309, ECF No. 15; ECF No. 2-2, PageID.121; ECF No. 13).

Petitioner was initially tried in late March and early April 2002. (see ECF No. 13; see also ECF No. 2-2, PageID.123). Judge Buth read the charges...