Mitchell v. Bauman

• Decision Date: 27 August 2012
• Docket Number: CASE NO. 2:10-CV-12054
• Parties: DARNELL MITCHELL, Petitioner, v. CATHERINE S. BAUMAN, Respondent.1
• Court: U.S. District Court — Eastern District of Michigan

DARNELL MITCHELL, Petitioner,

v.CATHERINE S. BAUMAN, Respondent.¹

CASE NO. 2:10-CV-12054

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date: August 27, 2012

JUDGE NANCY G. EDMUNDS

MAGISTRATE JUDGE PAUL J. KOMIVES

REPORT AND RECOMMENDATION

Table of Contents

I. RECOMMENDATION................................................................ 2

II. REPORT ........................................................................... 2

A. Procedural History ............................................................ 2

B. Factual Background Underlying Petitioner's Conviction............................... 5

C. Procedural Default ............................................................ 9

D. Standard of Review ............................................................ 9

E. Suggestive Identification (Claim I) ............................................... 12

1. Clearly Established Law................................................ 12

2. Analysis............................................................. 13

F. Insufficient Evidence & Newly Discovered Evidence (Claims III & V).................... 14

1. Sufficiency of the Evidence .............................................. 15

a. Clearly Established Law.............................................. 15

b. Analysis .......................................................... 16

2. Newly Discovered Evidence & Innocence................................... 19

G. Ineffective Assistance of Counsel (Claims II, IV & VI) ................................ 24

1. Clearly Established Law................................................ 24

2. Trial Counsel......................................................... 26

a. Failure to Object to Suggestive Identification (Claim II)..................... 26

b. Failure to Obtain Expert Witnesses (Claim IV(A)) ......................... 26

c. Failure to Investigate and Call Alibi Witnesses (Claim IV(B)) ................ 29

3. Appellate Counsel..................................................... 30

H. Recommendation Regarding Certificate of Appealability.............................. 31

1. Legal Standard ....................................................... 31

2. Analysis............................................................. 32

I. Conclusion.................................................................. 33

III. NOTICE TO PARTIES REGARDING OBJECTIONS...................................... 34

I. RECOMMENDATION: The Court should deny petitioner's application for the writ of habeas corpus. If the Court accepts this recommendation, the Court should grant petitioner a certificate of appealability on his identification claim, and should deny petitioner a certificate of appealability with respect to his remaining claims.

II. REPORT:

A. Procedural History

1. Petitioner Darnell Mitchell is a state prisoner, currently confined at the Alger Correctional Facility in Munising, Michigan.

2. On February 7, 2005, petitioner was convicted of two counts of assault with intent to rob while armed, MICH. COMP. LAWS § 750.89; felon in possession of a firearm, MICH. COMP. LAWS § 750.224f; and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, following a jury trial in the Wayne County Circuit Court. On March 1, 2005, he was sentenced to a term of concurrent terms of 16-30 years' imprisonment on each of the assault convictions and 3-5 years' imprisonment on the felon in possession conviction, and to a mandatory consecutive term of two years' imprisonment on the felony-firearm conviction.

3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through counsel, the following claims:

I. THE TRIAL COURT VIOLATED MR. MITCHELL'S DUE PROCESS CLAUSE RIGHT TO BE FREE OF SUGGESTIVE IDENTIFICATION EVIDENCE WHERE OFFICER FITZGERALD IDENTIFIED MR. MITCHELL ONLY AFTER THE CONCLUSION OF THE PRELIMINARY EXAMINATION DESPITE HIS FAILURE TO PREVIOUSLY IDENTIFY ANYONE.

II. TRIAL COUNSEL WAS INEFFECTIVE BY ALLOWING MR. MITCHELL'S DUE PROCESS RIGHTS TO BE VIOLATED BY FAILING TO OBJECT TO THE ADMISSION OF THE UNDULY SUGGESTIVE

IDENTIFICATION TESTIMONY OF OFFICER FITZGERALD.

III. MR. MITCHELL'S DUE PROCESS RIGHT TO BE CONVICTED ONLY ON THE BASIS OF LEGALLY SUFFICIENT EVIDENCE WAS VIOLATED WHEN MR. MITCHELL WAS CONVICTED OF THE ATTEMPTED ARMED ROBBERY OF FITZGERALD AND BOONE, FELONY FIREARM AND FELON IN POSSESSION OF A FIREARM WHERE THE PROSECUTOR FAILED TO PROVE THAT DEFENDANT COMMITTED THE ROBBERY.

The court of appeals found no merit to petitioner's claims, and affirmed his conviction and sentence. See People v. Mitchell, No. 261372, 2006 WL 1688163 (Mich. Ct. App. June 20, 2006) (per curiam).

4. Petitioner sought leave to appeal these issues to the Michigan Supreme Court. The Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Mitchell, 477 Mich. 1003, 726 N.W.2d 13 (2007).

5. Petitioner subsequently filed a motion for relief from judgment in the trial court pursuant to MICH. CT. R. 6.500-.508, raising the following claims:

I. THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS TRIAL COUNSEL: (A) FAILED TO OBJECT TO TRIAL COURT'S DENIAL OF JURY REQUEST FOR PRELIMINARY EXAMINATION TRANSCRIPTS; (B) FAILED TO ENTER PRELIMINARY EXAMINATION TRANSCRIPTS AS EVIDENCE INTO THE TRIAL RECORD; (C) FAILED TO PROPERLY IMPEACH THE PROSECUTION WITNESS, MENTA BOONE; (D) FAILED TO QUESTION WITNESS MENTA BOONE REGARDING POLICE CONDUCT IN OBTAINING HER IDENTIFICATION OF DEFENDANT; (E) FAILED TO OBTAIN EXPERT WITNESS TESTIMONY REGARDING WITNESS MENTA BOONE'S IDENTIFICATION OF DEFENDANT; (F) FAILED TO OBTAIN EXPERT WITNESS TESTIMONY REGARDING WITNESS MENTA BOONE'S INTOXICATION DURING TIMES RELEVANT TO THE CRIMES CHARGED AGAINST DEFENDANT; AND (G) FAILED TO INVESTIGATE THE CASE AGAINST DEFENDANT AND OBTAIN THE TESTIMONY OF ALIBI WITNESSES IDENTIFIED TO COUNSEL BY DEFENDANT.

II. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW WHERE THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING COMMENTS TO THE JURY THAT WERE CONDUCIVE TO HASTY DELIBERATIONS AND BY REFUSING A JURY REQUEST FOR PRELIMINARY EXAMINATION TRANSCRIPTS.

III. PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW WHERE THE PROSECUTOR ELICITED FALSE TESTIMONY FROM THE WITNESS, MENTA BOONE, AND ALLOWED THAT TESTIMONY TO GO UNCORRECTED.

IV. DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW IS VIOLATED WHERE, IN LIGHT OF THE COURT OF APPEALS DECISION IN THE CASE AT BAR, AND, WHEN VIEWED IN CONTEXT OF THE INSTANT CLAIMS FOR RELIEF, THE TESTIMONY OF MENTA BOONE DOES NOT CONSTITUTE SUFFICIENT EVIDENCE UPON WHICH DEFENDANT COULD BE CONVICTED OF THE CRIMES CHARGED BY A RATIONAL TRIER OF FACT.

V. DEFENDANT SHOULD BE GRANTED A NEW TRIAL ON THE BASIS OF NEWLY DISCOVERED EVIDENCE, THE SIGNED AFFIDAVITS OF WITNESSES WHO ATTEST THAT THE DEFENDANT COULD NOT HAVE BEEN PRESENT WHEN THE CRIMES HE WAS CONVICTED OF OCCURRED.

VI. DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED WHERE APPELLATE COUNSEL PERFORMED INEFFECTIVELY BY FAILING TO RAISE OBVIOUS AND SIGNIFICANT ISSUES WHEN THERE WAS A SIGNIFICANT LIKELIHOOD THAT THESE ISSUES WOULD HAVE MADE A DIFFERENCE IN THE OUTCOME OF DEFENDANT'S APPEAL.

On June 23, 2008, the trial court denied petitioner's motion for relief from judgment, concluding that petitioner's claims were without merit and that petitioner could not show good cause for, and actual prejudice attributable to, his failure to raise the claims on direct appeal, as required by MICH. CT. R. 6.508(D)(3). See People v. Mitchell, No. 04-011670-01 (Wayne County, Mich., Cir. Ct. June 23,2008). The Michigan Court of Appeals and Michigan Supreme Court denied petitioner's applications for leave to appeal in standard orders. See People v. Mitchell, 485 Mich. 1075, 777 N.W.2d 174 (2010); People v. Mitchell, No. 289735 (Mich. Ct. App. June 10, 2009).

6. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus on May 21, 2010. As grounds for the writ of habeas corpus, he raises the three claims that he raised on direct appeal, as well the first two ineffective assistance of trial counsel claims, newly discovered evidence claim, and ineffective assistance of appellate counsel claims that he raised in his motion for relief from judgment.

7. Respondent filed her answer on December 2, 2010. She contends that petitioner's latter three claims are barred by petitioner's procedural default in the state courts.²

B. Factual Background Underlying Petitioner's Conviction

Petitioner's conviction arises from the robbery of Robert Fitzgerald, an off-duty police officer, and Menta Boone, a prostitute. In addition to the charges on which petitioner was convicted, petitioner was also charged with two counts of assault with intent to commit murder. The jury acquitted him of these charges. The evidence adduced at trial was accurately summarized inpetitioner's brief on direct appeal:

This case stems from the attempted robbery of an off-duty officer and prostitute whom the officer solicited for sexual acts. When the off-duty officer parked his vehicle on the service drive to exchange money for sex, a group of males approached the car armed with a shotgun and a jack handle and attempted to rob the officer and the prostitute. The robbery failed as the officer resisted the robbery, the individuals fled, a shot from a shotgun was fired hitting the back windshield and the officer with fragments of the pellets. The officer fired back not hitting anyone. The individuals escaped.

The prosecutor claimed that Menta Boone, the prostitute, stated to investigating officers that she recognized one of the individuals. Based on Boone's description, the police arrested Mr. Mitchell.

The defense asserted that the officer could not identify the person with the shotgun, allegedly Mr.

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