Mizori v. Berghuis

Decision Date08 July 2016
Docket NumberCase No. 1:11-cv-00455-RHB-PJG
PartiesKOVAN SADIQ MIZORI #691412, Petitioner, v. MARY BERGHUIS, Respondent.
CourtU.S. District Court — Western District of Michigan
Hon. Robert Holmes Bell
REPORT AND RECOMMENDATION

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner was convicted of two counts of assault with intent to commit murder, in violation of Mich. Comp. Laws § 750.83. He is serving concurrent sentences of 135 months to 30 years and 14 to 30 years, respectively.

Petitioner raises the following grounds for relief:

I. THE TRIAL COURT ENGAGED IN AN UNREASONABLE APPLICATION OF FEDERAL LAW IN FAILING TO ANSWER THE JURORS' QUESTIONS CONCERNING THE ELEMENT OF "INTENT" AFTER THE JURORS SENT THE JUDGE A NOTE INDICATING CONFUSION OVER THIS PARTICULAR ELEMENT OF THE CHARGED OFFENSES, AND COUNSEL'S FAILURE TO OBJECT OR OTHERWISE ENSURE THAT THE JURORS' QUESTIONS WERE PROPERLY ANSWERED OR ADDRESSED CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
II. PETITIONER WAS DENIED HIS RIGHT OF CONFRONTATION AND HIS RIGHT TO A FAIR TRIAL BY THE INTRODUCTION INTO EVIDENCE INADMISSIBLE HEARSAY, AND COUNSEL'S FAILURE TO OBJECT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
III. PETITIONER WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR IMPROPERLY IMPEACHED SEVERAL DEFENSE WITNESSES BY QUESTIONING THEM AS TO WHY THEY HAD NOT COME TO THE POLICE WITH THE INFORMATION THEY POSSESSED CONCERNING THE INCIDENT, THEREBY IMPLYING THAT THEIR TESTIMONY WAS FABRICATED, AND COUNSEL'S FAILURE TO OBJECT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
IV. THE PROSECUTOR VIOLATED PETITIONER'S DUE PROCESS RIGHTS BY MAKING AN IMPROPER CIVIC DUTY ARGUMENT TO THE JURY, AND COUNSEL'S FAILURE TO OBJECT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
V. THE EVIDENCE WAS INSUFFICIENT FOR A CONVICTION OF ASSAULT WITH INTENT TO MURDER.
VI. THE COURT IMPOSED A SENTENCE UNDER IMPROPERLY INFLATED SENTENCING GUIDELINES.
VII. THE TRIAL COURT VIOLATED PETITIONER'S DUE PROCESS RIGHTS BY SCORING SENTENCING GUIDELINE OFFENSE VARIABLES AND INCREASING THE STATUTORY SENTENCING GUIDELINE RANGE BASED ON DISPUTED FACTS WHICH THE PROSECUTOR DID NOT CHARGE AND PROVE BEYOND A REASONABLE DOUBT TO A JURY.

(Petition at 2-3, ECF No. 1, PageID.2-3). Respondent contends that petitioner's first four claims are procedurally defaulted, and in the alternative lack merit; that the sixth claim does not present a cognizable basis for federal habeas relief; and that the remaining claims are without merit. (Answer at 14-28, ECF No. 6, PageID.120-34).

Upon review and applying the standards established in the Antiterrorism and Effective Death Penalty Act of 1996, PUB. L. 104-132, 110 STAT. 1214 (AEDPA), I find that petitioner has failed to present a cognizable claim with respect to the sixth ground and, alternatively that it lacks merit. I find that the remaining claims are without merit.

Procedural History
A. Trial Court Proceedings

Petitioner's convictions for assault with intent to commit murder arise from a brawl that occurred outside the Eagles club in Lansing, Michigan, on June 2, 2007. Rudolfo "Rudy" Garcia and Gordon Dewey were each hit on the head by an individual wielding a wooden baseball bat while the two men were trying to break up a fight. Petitioner was tried before a jury for four days, beginning May 19, 2008, and concluding with the jury's verdict on May 23, 2008, finding him guilty of the aforementioned offenses.1

Rudy Garcia testified that he was attending a party at the Eagles club when, around midnight, he heard of a fight taking place outside the club. (Tr. I at 110-11, 118). He went outside and observed a number of different fights taking place in the parking lot. (Id. at 118-20). Mr. Garcia encountered Gordon Dewey in the parking lot, and the two attempted to stop the fighting. (Id. at 121-23). Soon thereafter, Mr. Garcia was hit in the face from behind. (Id. at 123). He was knocked unconscious and suffered a fractured jaw, a shattered lip, and the loss of five teeth. (Id. at 123-24, 126). Mr. Garcia did not see the person who hit him. (Id. at 125). He was taken to the hospital for treatment (receiving seven stitches) and released later that night. (Id. at 125-26).

Gordon Dewey testified that he was a trustee of the Eagles club, and that he was present the night of June 2, 2007, to oversee the operations at the club. (Tr. I at 158-59, 162). At around midnight, Mr. Dewey went out to the parking lot with the Eagles club president, Ernesto Gomez, to investigate a report of a fight. (Id. at 163-64). He was hit in the head from behind while attempting to break up a fight, but he did not see the person who hit him.2 (Id. at 176-77). The blow left a dent and a cut in the side of his head, requiring a number of stitches. (Id. at 177-79, 181). Mr. Dewey was hospitalized for three days in the intensive care unit. (Id. at 181). After his discharge from the hospital, Mr. Dewey required the assistance of a home health-care aid. (Id. at 181-82). His injury later required surgery to relieve pressure on the brain. (Id. at 182).

Darian Bachman, Mr. Garcia's nephew, testified that he went to the party at the Eagles club the night of June 2, 2007, with his mother. (Tr. I at 199-201). At around midnight, he left the club with his mother and Mr. Garcia. (Id. at 201-02). While Mr. Garcia was trying to break up a fight in the parking lot, Mr. Bachman observed a man approach Mr. Garcia from behind and hit him on the head with a wooden bat. (Id. at 203-06). He noted that the perpetrator took a full-swing at Mr. Garcia's head: "like a baseball, full baseball swing." (Id. at 229). Mr. Bachman identified petitioner in court as the one who hit Mr. Garcia with the bat. (Id. at 207). He described the clothing petitioner was wearing at the time of the assault as a red T-shirt and a redbaseball hat.3 (Id. at 220). Mr. Bachman testified that he had previously, and without hesitation, picked petitioner's photograph out of a six-person photo lineup, and that he was a hundred percent certain of the identification.4 (Id. at 210, 215, 229).

Lidia Bachman, one of Mr. Garcia's sisters and Darian Bachman's mother, testified that an Hispanic man came up to her and her sister at approximately 11:30 p.m. during the last dance after the lights had been turned up, and he put his arms on them. (Tr. II at 254-59, 265). She described the clothing the man was wearing as a red baseball cap, a red shirt, and some dark blue jeans. (Id. at 262). Ms. Bachman identified petitioner at trial as that man. (Id. at 260). She walked outside the club about fifteen minutes later and observed a "[v]ery chaotic" scene in which a number of individuals were fighting. (Id. at 265-67). Mr. Garcia was attempting to separate some of them. (Id. at 268-69). She later saw Mr. Garcia walking her son Darian toward her van while she was assisting someone else who was getting beaten up. (Id. at 270). She saw someone in the area her brother was located get hit with a bat, but she did not know at the time who had been hit, as the victim had his backturned to her. (Id. at 271-72). Ms. Bachman observed Mr. Dewey direct the man with the bat to leave. (Id. at 274). Immediately thereafter, when Mr. Dewey turned his attention to Ms. Bachman, the man hit Mr. Dewey on the head with the bat. (Id.). Mr. Dewey's eyes rolled back in his head. (Id. at 276). The perpetrator threw the bat down and ran away. (Id. at 281-82). Ms. Bachman identified petitioner as the person who hit Mr. Dewey with the bat. (Id. at 274). She had previously identified petitioner from a photo lineup.5 (Id. at 284-85).

Maribell Garcia, another of Rudy Garcia's sisters, testified that she attended the June 2, 2007, party at the Eagles club. (Tr. II at 316-17, 321). She witnessed the assaults on both Rudy Garcia and Gordon Dewey. (Id. at 326, 332). She described how the perpetrator used a wooden baseball bat to strike each of them on the head. (Id. at 327-28, 332-33). Ms. Garcia noted that the perpetrator "was happy that he hit [Rudy Garcia] in the face and [Mr. Garcia] went down on his knees." (Id. at 328). She testified that the perpetrator was wearing dark jeans, a red shirt, and a baseball cap.6 (Id.). Ms. Garcia identified petitioner in court as the perpetrator, and she previously identified him from a photo lineup during a meeting with the prosecutor. (Id. at 329-30, 339-41). She testified that petitioner dropped the bat and got into a car. (Id. at 333-34). She confronted petitioner about the fact that he had assaulted her brother,and she grabbed his hat, throwing it to the ground. (Id. at 333-35). Petitioner hit Ms. Garcia in the shoulder; he picked up his hat; and left in the car - at that time, Ms. Garcia could hear the sirens of the approaching police vehicles. (Id. at 336-38, 365).

Lisa Leal testified that she had an "open house" party at the Eagles club on June 2, 2007, for her daughter. (Tr. III at 522-23). There were approximately 300 people invited. (Id. at 524). As she was carrying items out to her car after the party (sometime after 11:30 p.m.), she observed people fighting in the parking lot. (Id. at 526-28). She called the police. (Id. at 528). Ms. Leal witnessed an individual she knew by the name "Govan" hit "an old man" with a bat. (Id. at 528-29). She did not know the name of the old man who was hit. (Id. at 529). Ms. Leal picked petitioner out of a photo lineup as the person she knew by the name Govan and who she had seen hit the old man with a bat. (Id. at 532-34).7

Ms. Leal's daughter, Raquel, testified that she knew petitioner by the name Govan, and that her mother had met him "a couple times" prior to the June 2, 2007, Eagles club party. (Tr. III at 558-64). She identified petitioner at trial as Govan. (Id. at 564-65).

Officer Aaron Terrill testified that he was dispatched to the Eagles club at approximately 12:20 a.m. regarding an assault with a bat. (Tr. I at 230-31). While Officer Terrill was...

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