Mason v. Rivard

• Decision Date: 30 November 2020
• Docket Number: CASE NO. 2:13-cv-12126
• Parties: DE'VAUGHN DAMIEL MASON, Petitioner, v. STEVEN RIVARD, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

DE'VAUGHN DAMIEL MASON, Petitioner, v. STEVEN RIVARD, Respondent.

CASE NO. 2:13-cv-12126

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

November 30, 2020

HONORABLE ARTHUR J. TARNOW

OPINION AND ORDER DENYING THE AMENDED HABEAS CORPUS PETITION, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

This matter has come before the Court on petitioner De'Vaughn Damiel Mason's pro se amended habeas corpus petition, which challenges Petitioner's convictions for assault with intent to commit murder, Mich. Comp. Laws § 750.83, possession of a firearm during the commission of a felony, second offense ("felony firearm"), Mich. Comp. Laws § 750.227b, and felon in possession of a firearm ("felon in possession"), Mich. Comp. Laws § 750.224f. Petitioner raises six claims regarding his right to present a defense, the oath read to the jury, the state trial judge's conduct, Petitioner's trial and appellate attorneys, and the lack of an evidentiary hearing during post-conviction proceedings in state court. The State urges the Court to deny the amended petition on grounds that Petitioner did not comply with the Court's abeyance order and his claims are not cognizable on habeas review, are procedurally defaulted, or are meritless. Having reviewed the state-court record and the parties' pleadings, the Court concludes that Petitioner is not entitled to relief. Accordingly, the Court will deny the amended petition on the merits.

I. Background

A. The Charges, Trial, Sentence, and Direct Appeal

Petitioner was charged with assault with intent to commit murder or assault with intent to commit great bodily harm less than murder, felony firearm, second offense, and felon in possession. The charges against Petitioner arose from a shooting outside the Suite 100 nightclub in Detroit, Michigan on March 19, 2010. Petitioner was tried before a jury in Wayne County Circuit Court. The Michigan Court of Appeals briefly summarized the evidence trial as follows:

Several witnesses testified that defendant, who was working as a bouncer at the nightclub, shot Albert Sadler in the arm following a dispute involving defendant's refusal to admit Sadler's companions into the nightclub without proper identification. Defendant's theory of defense at trial was that he was inside the nightclub at the time of the shooting and was misidentified as the shooter.

People v. Mason, No. 300008, 2011 WL 6186955 at *1 (Mich. Ct. App. Dec. 13, 2011).

On July 16, 2010, the jury found Petitioner guilty of assault with intent to commit murder, felony firearm, and felon in possession of a firearm. On August 6, 2010, the trial court sentenced Petitioner to five years in prison for the felony-firearmconviction, followed by concurrent prison terms of twenty-five to fifty years for the assault conviction, and five to ten years for the felon-in-possession conviction.

In an appeal of right, Petitioner argued through counsel that the trial court deprived him of his right to present a defense by limiting his questioning of witnesses. The Michigan Court of Appeals found no merit in Petitioner's claim and affirmed his convictions. See id.

Petitioner raised the same issue and an additional claim about appellate counsel in an application for leave to appeal in the Michigan Supreme Court. On May 21, 2012, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the questions presented to the court. See People v. Mason, 491 Mich. 920; 812 N.W.2d 745 (2012).

B. The Initial Petition and Post-Appellate Proceedings in State Court

In 2013, Petitioner filed his initial habeas corpus petition, which raised the two claims that Petitioner presented to the Michigan Supreme Court on direct appeal: denial of the right to present a defense and ineffective assistance of appellate counsel. See ECF No. 9. In a motion attached to the petition, see id. at PageID.74-91, Petitioner asked the Court to hold his habeas petition in abeyance while he exhausted additional state remedies.

On April 24, 2014, the Court granted Petitioner's motion for a stay. See ECF No. 19. The order directed Petitioner to file a motion for relief from judgment in thestate trial court within ninety days of the Court's order and to file an amended petition and a motion to re-open this case within ninety days of exhausting state remedies if he were unsuccessful in state court. The order also closed this case for administrative purposes.

On June 30, 2014, Petitioner filed a motion for relief from judgment in which he argued that: (1) the trial court failed to read a proper oath to the jury; in the alternative, defense counsel was ineffective for failing to object; (2) the trial court assumed the prosecutor's role and pierced the veil of impartiality; (3) trial counsel made various mistakes and omissions; and (4) appellate counsel (a) prevented him from raising issues in a pro se supplemental brief and (b) failed to raise issues about trial counsel's ineffectiveness and the trial court's abuse of discretion. See ECF No. 27-3.

The successor trial court denied Petitioner's motion because Petitioner had not shown "good cause" for failing to raise the first three issues on direct appeal and "actual prejudice" or a significant possibility that he was innocent. The successor court also found no merit in Petitioner's claims, including his claim about appellate counsel. See People v. Mason, 10-003885-01-FC (Wayne Cty. Cir. Ct. Sept. 5, 2014); ECF No. 27-4.

Petitioner moved for reconsideration, see ECF No. 27-5, but the successor court denied his motion. The court stated that it did not err in denying relief on theissue about the jury's oath. The court declined to revisit the issue about the trial judge's questioning of witnesses, and the court stated that Petitioner had not shown how the court erred in denying relief on the issue of trial counsel's failure to move to suppress photos of the crime scene. The court found the issues to be without merit, and it concluded that Petitioner was not denied effective appellate assistance when the issues were not presented on direct appeal. See People v. Mason, No. 10-003885-01-FC (Wayne Cty. Cir. Ct. Oct. 1, 2014); ECF No. 27-6.

Petitioner appealed the trial court's decision without success. The Michigan Court of Appeals denied leave to appeal because Petitioner failed to establish entitlement to relief under Michigan Court Rule 6.508(D). The Court of Appeals stated that Petitioner alleged "grounds for relief that could have been raised previously and he has failed to establish both good cause for failing to previously raise the issues and actual prejudice from the irregularities alleged, and has not established that good cause should be waived." See People v. Mason, No. 326262 (Mich. Ct. App. May 21, 2015) (citing Mich. Ct. Rule 6.508(D)(3)(a) and (b)); ECF No. 27-7, PageID.1172.

Petitioner then applied for leave to appeal in the Michigan Supreme Court. On February 2, 2016, the Michigan Supreme Court denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Mason, 499 Mich. 856; 873 N.W.2d 315 (2016).

C. The Amended Petition and Request to Compel Discovery

On October 20, 2017, Petitioner filed a motion to re-open this case, an amended habeas petition, and a motion for equitable tolling of the statute of limitations. See ECF Nos. 20-22. He argues in the amended petition that:

1. the trial court deprived him of due process and his right to present a defense by limiting his questioning of prosecution witnesses;

2. the trial court violated his right to due process by failing to read the proper oath to the jury; alternatively, defense counsel was ineffective for failing to object;

3. the trial judge violated his right to a fair trial by assuming the role of a prosecutor, questioning prosecution witnesses, and piercing the veil of impartiality;

4. he was denied effective assistance of counsel by counsel's failure to (a) advocate for him without being deflected by conflicting considerations, (b) investigate the case (c) file pretrial motions to suppress evidence, (d) present a defense, and (e) object to the trial judge's questioning of witnesses;

5. he was denied his constitutional right to effective appellate counsel during the appeal of right because counsel (a) prevented him from raising issues in a pro se supplemental brief and (b) failed to raise issues about trial counsel's ineffectiveness and the trial judge's abuse of discretion; and

6. the trial court erred when evaluating Petitioner's claims about counsel and by not recognizing the need for an evidentiary hearing.

See ECF No. 22 at PageID.890-910; see also ECF No. 24 (Brief in Support of Amended Pet.). In his motion for equitable tolling, Petitioner asked the Court to treat his amended petition as timely and to allow him to proceed. ECF No. 21, PageID.936.

On May 21, 2018, the Court granted Petitioner's motion to re-open his case and allowed him to proceed with his case, despite his failure to comply with the Court's previous order to return to federal court within ninety days of exhausting state remedies for new claims. See ECF No. 25. The Court declined to say whether any of Petitioner's claims were barred by the habeas statute of limitations. See id. at PageID.941-942. On July 19, 2018, the State filed an answer to the amended petition and supplemental state-court documents. See ECF Nos. 26 and 27.

Petitioner subsequently filed a motion to hold his petition in abeyance while he attempted to obtain documents from the Detroit Police Department and the Michigan Department of Corrections. See ECF No. 30. On November 14, 2018, the Court granted Petitioner's motion, and gave Petitioner 120 days from the date of the order to obtain the documents and to submit a reply to the State's response to his amended petition. See ECF No. 31.

Petitioner subsequently filed a reply to the State's response and a motion to...