Manoku v. Lafler, Case No. 09-11511

• Decision Date: 07 August 2015
• Docket Number: Case No. 09-11511
• Parties: KETJOL MANOKU, Petitioner, v. BLAINE LAFLER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

KETJOL MANOKU, Petitioner, v. BLAINE LAFLER, Respondent.

Case No. 09-11511

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 7, 2015

Honorable Patrick J. Duggan

OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

Petitioner Ketjol Manoku ("Petitioner"), a Michigan Department of Corrections prisoner currently confined at Alger Correctional Facility in Munising, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 22, 2009. In his petition, which is presently before the Court, Petitioner challenges his state-court convictions for: conspiracy to commit first-degree murder, in violation of Michigan Compiled Laws §§ 750.316(1)(a) and 750.157a; first-degree premeditated murder, Michigan Compiled Laws § 750.316(1)(a); four counts of assault with intent to commit murder, in violation of Michigan Compiled Laws § 750.83; and six counts of possession of a firearm during the commission of a felony, in violation of Michigan Compiled Laws §750.227b. The original habeas petition seeks relief on the following grounds: (1) Petitioner was denied a fair trial by the admission of prior "bad acts" evidence; (2) Petitioner was denied his right to present a defense when the trial court refused to instruct the jury on self-defense; (3) trial counsel was ineffective for advising Petitioner not to testify; (4) the trial court erred in sentencing Petitioner to life imprisonment without parole for the conspiracy conviction; and (5) Petitioner is entitled to a restitution hearing to resolve the amount of restitution. (ECF No. 1.) Upon being ordered to respond to the petition, Respondent Blaine Lafler ("Respondent") filed an answer to the petition, seeking denial of the application because Petitioner's first claim is not cognizable on habeas review, the state court's rejection of claims two and three was objectively reasonable, and the state court already granted relief on claims four and five. (ECF No. 4.) Petitioner subsequently moved for a stay so that he could exhaust state remedies for two additional claims. (ECF No. 6.) The Court granted Petitioner's motion and closed this case for administrative purposes on April 19, 2010. (ECF No. 8.)

On January 24, 2013, Petitioner moved to lift the previously-imposed stay and to amend his habeas petition with two additional claims: (6) the trial court failed to adequately ascertain whether he needed an interpreter; and (7) he was denied effective assistance of counsel by trial counsel's failure to inform the jury of his military history. (ECF No. 14.) On February 5, 2013, the Court grantedPetitioner's motion and re-opened this case. (ECF No. 15.) Respondent then filed a supplemental answer, arguing that Petitioner's recently-exhausted claims were procedurally defaulted, and, in the alternative, that the claims lacked merit. (ECF No. 19.) Petitioner filed a reply in which he maintained that his two new claims were not procedurally defaulted. (ECF No. 23.)

Having thoroughly reviewed Petitioner's seven claims and the corresponding Rule 5 materials,¹ the Court concludes that Petitioner is not entitled to the issuance of the writ for the reasons given by Respondent in his briefs. The Court will therefore deny Petitioner's application for the writ and dismiss the habeas corpus petition with prejudice. The Court will also decline to issue a certificate of appealability.

I. BACKGROUND

A. The Trial

Following a joint jury trial with co-defendants Oliger Merko ("Merko") and Edmond Zoica ("Zoica") in Oakland County Circuit Court,² Petitioner was found guilty, as charged, of: conspiracy to commit first-degree murder, in violation ofMichigan Compiled Laws §§ 750.316(1)(a) and 750.157a; first-degree premeditated murder, in violation of Michigan Compiled Laws § 750.316(1)(a); four counts of assault with intent to commit murder, in violation of Michigan Compiled Laws § 750.83; and six counts of possession of a firearm during the commission of a felony, in violation of Michigan Compiled Laws § 750.227b. The convictions arose from a shooting in the parking lot of an apartment complex in Clawson, Michigan on July 17, 2004. The Michigan Court of Appeals provided the following overview of the facts:

The incident giving rise to defendant's convictions is apparently the culmination of a rivalry between two groups of Albanian men that resulted in defendant opening fire at a minivan holding five members of the rival group after the minivan drove into a parking lot in the late night hours of July 17, 2004, where defendant and his codefendants were standing. Four of the minivan passengers were st[r]uck by bullets, one fatally, as the minivan was attempting to leave the parking lot. Over the preceding couple of days, defendant, his codefendants, and others had met together on several occasions to watch and follow members of this same group of men, as well as to discuss and plan violent action against them.

People v. Manoku, No. 270880, 2008 WL 747102, at *1 (Mich. Ct. App. Mar. 20, 2008) (unpublished). The Court of Appeals provided the following additional facts in its decision in co-defendant Merko's case:

[T]he evidence revealed that [the defendants] met together on July 15, 2004, near a coffee shop in Royal Oak where members of the rival group were patronizing, for the purpose of shooting Markiol Jaku and Martin Vucaj, members of that rival group. Because the shop was very crowded with people, the shooting did not occur. Instead, later that night or the next evening, [the defendants] proceeded to watch thecoffee shop the rival group members were fixing up to open which was called Goodfellows. [The defendants] were dressed in dark clothing and were in vehicles with tinted windows. When one of the members of the rival group left the shop, coconspirator Zoica and some of his friends followed. Zoica rolled his window down and had a handgun but did not shoot at the rival group member possibly because of heavy traffic or because they could not tail him close enough to get off a shot.

The day before the shooting, July 16, 2004, [the defendants] met at a coney island to discuss shooting members of the rival group at Goodfellows. Later that day, they also met at Manoku's apartment to discuss the shooting. They developed a plan to return to Goodfellows and "shoot up the people," meaning shoot members of the rival group. Manoku would ride on the back of a motorcycle and do the shooting. The shooting would occur the next night, July 17, 2004, the night before [Merko's] wedding.

The next day - the day of the planned shooting - they prepared for the shooting by retrieving weapons, including an AK-47 assault rifle. The assault rifle was placed in [Merko's] vehicle. After the motorcycle was in position for the shooting, the plan was changed and [the defendants] went to an apartment complex. While in the parking lot, where [the defendants] were standing by their vehicle that held the AK-47, a minivan carrying rival group members pulled into the parking lot. [Merko] quickly approached the minivan with Manoku right behind. Shortly thereafter Manoku pulled [out] his nine millimeter handgun and opened fire, shooting four of the five people in the minivan as it was attempting to leave. After disposing of evidence and agreeing to an alibi, [the defendants] went to Zoica's apartment and pretended to be having a party.

People v. Merko, No. 271800, 2008 WL 747094, at *5-*6 (Mich. Ct. App. Mar. 20, 2008) (unpublished) (alterations added). This summary of the facts is entitled to a presumption of correctness because Petitioner has not refuted the facts of thecase with clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Rice v. Collins, 546 U.S. 333, 338-39, 126 S. Ct. 969, 974 (2006).³

1. Prosecution Witnesses

The main witnesses against Petitioner were Dhimiter Quafko, Martin Vucaj, Ilirjan Dibra, Florjan Carcani, and Arjan Malushi. Dhimiter Quafko ("Quafko") testified that he was seated in the middle of the minivan, which he and his friends rode in when they left the Goodfellows coffee shop on July 17, 2004, and drove to the apartment complex in Clawson. Quafko had seen the defendants on a previous occasion, and he identified Petitioner and Merko at trial as the two men who approached the minivan on the night of July 17, 2004, when Quafko and his friends arrived at the apartment complex.

According to Quafko, Merko approached the passenger side of the van where Martin Vucaj was seated, and Petitioner approached the driver's side of thevehicle where Markiol Jaku ("Jaku") was seated. Petitioner then pulled a handgun from his waistband, racked the gun, and pointed it at Markiol Jaku in the driver's seat. Jaku hesitated for a few seconds before accelerating, moving the vehicle forward. As the car moved, Petitioner started shooting at the van. Jaku drove for a short while and then slumped over and fell unconscious.

Quafko expressed some uncertainty at trial as to whether there were one or two shooters that night, but he was sure that Petitioner had fired a gun. Quafko also claimed that there were no guns in the van, that he was unaware of a lead pipe in the van until after the shooting, and that Jaku took no aggressive action before being shot. (1/31/06 Trial Tr. 17-47, 66-67, 74-75, 108-09, 128, 134-35, 141.)

Martin Vucaj ("Vucaj") and Ilirjan Dibra ("Dibra") corroborated Quafko's testimony. Vucaj testified that he was shot in the wrist during the incident on July 17, 2004, and that both Petitioner and Merko had approached the minivan when it came into the parking lot where the shooting occurred. Vucaj knew Petitioner, and he claimed that, immediately before the shooting, Petitioner approached the driver's side where Jaku was seated and Merko approached the passenger side of the van where Vucaj was seated. According to Vucaj, Petition...