Moritz v. Woods

• Decision Date: 21 February 2012
• Docket Number: Case No. 2:07–CV–15369.
• Citation: 844 F.Supp.2d 831
• Parties: Conny MORITZ, Petitioner, v. Jeffrey WOODS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

844 F.Supp.2d 831

Conny MORITZ, Petitioner,

v.Jeffrey WOODS, Respondent.

Case No. 2:07–CV–15369.

United States District Court,

E.D. Michigan,

Southern Division.

Feb. 21, 2012.

Conny Moritz, Kincheloe, MI, pro se.

Andrea M. Christensen, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER CONDITIONALLY GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS

ARTHUR J. TARNOW, Senior District Judge.

Conny Moritz, (“Petitioner”), presently confined at the Chippewa Correctional Facility in Kincheloe, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for kidnapping, M.C.L.A. 750.349; first-degree home invasion, M.C.L.A. 750.110a(2); carrying a dangerous weapon with unlawful intent, M.C.L.A. 750.226; assault with a dangerous weapon, M.C.L.A. 750.82; and possession of a firearm in the commission of a felony, M.C.L.A. 750.227b. ¹ This Court finds that petitioner did not knowingly and intelligently waive his Sixth Amendment right to be represented by his retained prepared counsel during a critical stage of his trial, namely, when the trial court was deciding whether or not to give a supplemental jury instruction to the deadlocked jury and when the deadlocked jury was given a supplemental jury instruction to continue with their deliberations. Because this is a structural error, the grant of habeas corpus is automatic. The petition for writ of habeas corpus is therefore CONDITIONALLY GRANTED.

I. Background

Petitioner was convicted following a jury trial in the Macomb County Circuit Court. Petitioner was originally sentenced on August 13, 2003 but was re-sentenced by the trial court on August 3, 2004. Petitioner's conviction was affirmed on appeal, but his case was remanded for re-sentencing. People v. Moritz, No. 251265, 258436, 2006 WL 2220966 (Mich.Ct.App. August 3, 2006); ²lv. den.477 Mich. 975, 725 N.W.2d 21 (2006).

Petitioner was re-sentenced on November 16, 2006. The Michigan appellate courts affirmed petitioner's re-sentencing. People v. Moritz, No. 275210 (Mich.Ct.App. January 10, 2008); lv. den.480 Mich. 1190, 747 N.W.2d 302 (2008).

While petitioner's second appeal was pending in the state courts, petitioner filed an application for writ of habeas corpus. On January 3, 2008, the Court held the petition for writ of habeas corpus in abeyance pending the completion of petitioner's resentencing appeals in the Michigan Court of Appeals and Michigan Supreme Court. The Court also administratively closed the case. See Moritz v. Lafler, No. 2008 WL 62458 (E.D.Mich. January 3, 2008). On March 19, 2008, the Court amended its prior order of January 3, 2008 and held the petition in abeyance to permit petitioner to seek post-conviction review in order to exhaust additional claims. Moritz v. Lafler, No. 2008 WL 783751 (E.D.Mich. March 19, 2008).

Petitioner filed a post-conviction motion for relief from judgment, which the trial court denied. People v. Moritz, No. 2003–0991–FC (Macomb County Circuit Court, July 2, 2008). The Michigan appellate courts denied petitioner's post-conviction appeal. People v. Moritz, No. 286628 (Mich.Ct.App. March 4, 2009); lv. den.485 Mich. 891, 772 N.W.2d 410 (2009).

On December 4, 2009, this Court reinstated the petition to the Court's active docket and permitted petitioner to file an amended petition for writ of habeas corpus, in which he seeks habeas relief on the following grounds:

I. Petitioner's Sixth Amendment right to confront the witness against him at trial was violated when the trial court found a witness unavailable for trial and allowed that witness' preliminary examination testimony to be read to the jury.

II. The court's imposition of sentence based on facts that were not found by a jury beyond a reasonable doubt violates the Fifth and Sixth Amendments of the United States Constitution, contrary to Blakely v. Washington, U.S. v. Booker, and Apprendi.

III. The trial court abused its discretion in ordering consecutive sentences.

IV. Petitioner is entitled to re-sentencing before a different judge where the sentencing judge continuously refuses to allow Petitioner allocution before pronouncing sentence.

V. The trial court violated Petitioner's Sixth Amendment constitutional right to counsel of choice when it replaced defense counsel without obtaining Petitioner's consent or waiver.

VI. Petitioner was denied his Sixth and Fourteenth Amendment constitutional right to counsel where his retained counsel was absent at a critical stage.

VII. Petitioner was denied his Sixth and Fourteenth Amendment right to the effective assistance of counsel where his trial counsel failed to (A) present the defenses that Petitioner had legal authority over complainant and consent; (B) move for the introduction of complainant's prior false allegations, and (C) do the above which, when considered cumulatively, prejudiced the Petitioner.

VIII. Petitioner was denied his Fourteenth Amendment due process right to a fair trial where the Prosecutor knowingly used false and perjured testimony.

IX. The Due Process Clause of the Fourteenth Amendment was violated where the Prosecutor failed to disclose favorable evidence.

X. Petitioner's due process rights were violated where his sentence was based on inaccurate information in violation of the Fourteenth Amendment which entitles him to re-sentencing.

XI. Petitioner was denied his Sixth and Fourteenth Amendment right to the effective assistance of appellate counsel where all three of his appellate counsels failed to raise habeas claims V through X which establishes good cause for Petitioner's failure to raise those issues on direct review.

II. Standard of Review

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir.1997).

Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1).

A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409, 120 S.Ct. 1495. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410–11, 120 S.Ct. 1495.

III. Discussion

A. Claims # V and # VI. Petitioner was deprived of his Sixth Amendment right to counsel of choice during a critical stage of the proceedings and did not knowingly and intelligently waive his right to be represented by his retained counsel when the judge decided to give and gave the deadlocked jurors a supplemental jury instruction to continue with their deliberations without retained counsel being present.

The Court will discuss petitioner's fifth and sixth claims first, because these are the claims that the Court is granting habeas relief on. Petitioner contends in these two related claims that he was denied his Sixth Amendment right to the counsel of his choice when the trial judge had another attorney whom petitioner did not choose to represent him stand in for retained counsel when the judge decided to give and gave the jurors a deadlocked jury instruction. Petitioner further contends that he did not knowingly and intelligently waive his Sixth Amendment right to counsel of his choice.

Respondent contends that petitioner's fifth and sixth claims are procedurally defaulted, because he raised them for the first time in his post-conviction motion for relief from judgment and failed to show cause for failing to raise this issue in his appeal of right, as well as prejudice, as required by M.C.R. 6.508(D)(3). Michigan Court Rule 6.508(D)(3) provides that a court may not grant relief to a defendant if the motion for relief from judgment alleges grounds for relief which could have been raised on direct appeal, absent a showing of good cause for the failure to raise such grounds previously and actual prejudice resulting therefrom.

The Supreme Court has noted that “a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on the procedural bar.” Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). “The Sixth Circuit has observed that ‘there must be unambiguous state-court reliance on a procedural default for it to block’ a federal court from reviewing a state court decision.” Stokes v. Scutt, 821 F.Supp.2d 898, 906 (E.D.Mich.2011) (quoting Bowling v. Parker, 344 F.3d 487, 498 (6th Cir.2003) (citing Gall v. Parker, 231 F.3d 265, 321 (6th Cir.2000))). If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last reasoned state court judgment rejecting the federal claim and apply a presumption that later unexplained orders...