Payne v. Smith
| Decision Date | 28 May 2002 |
| Docket Number | No. Civ.A. 00-CV-71383-DT.,Civ.A. 00-CV-71383-DT. |
| Citation | 207 F.Supp.2d 627 |
| Parties | Roger PAYNE III, Petitioner, v. David SMITH, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
O'MEARA, District Judge.
Petitioner Roger Payne, III, a state prisoner presently confined at the Straits Correctional Facility in Kincheloe, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 Petitioner was convicted of armed robbery and felony firearm following a jury trial in the Wayne County Circuit Court in 1982. He was sentenced to 25-50 years imprisonment on the robbery conviction and a consecutive term of two years imprisonment on the firearm conviction. In his pleadings, Petitioner asserts claims concerning Michigan's procedural default rule, ineffective assistance of counsel, sentencing errors, the right to counsel and waiver of that right, sufficiency of evidence, the propriety of a photo array, involuntary confession, failure to produce a witness, prosecutorial misconduct, and the jury instructions. For the reasons stated below, the petition for a writ of habeas corpus is denied.
Petitioner's convictions arise from the armed robbery of a market in Dearborn, Michigan on September 28, 1981. The Michigan Court of Appeals set forth the relevant facts as follows:
Defendant's convictions stemmed from the robbery of the Gold Star Market in Dearborn one evening. The market owner, Nassir Jaber, testified that he had been robbed at gunpoint by a man wearing a hard hat, accompanied by a tall black woman with a ring in her nostril. A boy who noticed the car used by the robbers wrote down its license plate number. The car was traced to Melvin Keahy, who told police defendant had borrowed it on the evening of the robbery and that defendant had been accompanied by "Nan," a tall black woman with a ring in her nose. Police confiscated a white hard hat that Keahy identified as belonging to defendant. Defendant and his companion, Nanette Watkins, were arrested in Texas and extradited to Michigan. After their arrival, defendant made a statement in which he confessed.
People v. Payne, No. 70537, *1 (Mich.Ct. App. Oct. 4, 1994) (unpublished).
Based upon these facts and the evidence presented at trial, the jury found Petitioner guilty of armed robbery and felony firearm. The trial court sentenced him to consecutive terms of 25-50 years imprisonment and two years imprisonment on those convictions.
Following sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, asserting the following claims through counsel:
I. The trial judge erred in allowing him to represent himself without fully advising him of the dangers of self-representation and ascertaining that the waiver of counsel was knowing, voluntary, and intelligent.
II. Because he was the focus of the investigation and there was probable cause for an arrest warrant, the police should have conducted a corporeal rather than a photographic line-up or, at a minimum, counsel should have been present when the complainant viewed the photographs.
III. The trial judge erred in finding that the prosecutor used due diligence in attempting to subpoena two endorsed, but unproduced, res gestae witnesses.
IV. He was denied a fair trial where in closing argument the prosecutor implicitly commented on his failure to testify, shifted the burden of proof, and argued without evidentiary support that he had fought extradition from Texas.
V. The trial judge erred in denying his request for an instruction that if circumstantial evidence is open to two reasonable interpretations, the jury must accept the inference consistent with innocence.
VI. The trial judge erred in instructing the jury that he could not be convicted of the felony firearm if he was acquitted of armed robbery.
Petitioner also raised the following claims in a supplemental pleading:
I. His felony firearm conviction should be reversed because there was insufficient evidence of operability.
II. The loss of material evidence violated his due process right to a fair trial.
III. His conviction was obtained as a direct result of a coerced confession in violation of the United States and Michigan Constitutions.
IV. It was error for the trial court to aggravate his sentence because he exercised his right to trial and had a pending charge.
While the appeal was pending, the Michigan Court of Appeals remanded the matter to the trial court for a hearing on Petitioner's res gestae witness claim. Petitioner also sought a remand to the trial court for a hearing on whether trial counsel was ineffective for failing to investigate and prepare a defense, but the Michigan Court of Appeals denied the request. The Michigan Court of Appeals thereafter affirmed Petitioner's convictions and sentence in an unpublished, per curiam decision. People v. Payne, No. 70537 (Mich. Ct.App. Oct. 4, 1984). Petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Payne, No. 74635 (Mich. March 28, 1985).
On December 4, 1985, Petitioner filed an application for leave to file a delayed motion for evidentiary hearing and new trial with the trial court, raising the following issues:
I. He was denied the effective assistance of counsel where counsel failed to challenge the legality of the arrest warrant.
II. He was denied a fair trial when he was not given an opportunity to retain counsel and was forced into a hybrid arrangement.
III. He was denied the effective assistance of counsel where counsel limited the Wade hearing to whether the photo array was permissible and whether counsel should have been present during that photo showing.
IV. He was denied the effective assistance of counsel where counsel failed to challenge the admissibility of the confession on Sixth Amendment grounds.
V. He was denied a fair trial where the prosecution failed to produce all res gestae witnesses.
VI. He was denied a fair trial where the prosecution and the police deliberately withheld information concerning a res gestae witness.
VII. He was denied a fair trial where the jury was exposed to a proposed exhibit—the white hard hat—before its admissibility had been determined.
VIII. He was denied a fair trial because he did not have the benefit of a properly-instructed jury.
IX. He was denied the effective assistance of counsel because counsel did not conscientiously protect his interests.
The trial court issued a written opinion denying Petitioner's motion on March 25, 1996. Petitioner's motion for reconsideration was also denied. Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied on March 4, 1987. Petitioner then filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied on August 28, 1987.2
Petitioner also filed an application for leave to file a delayed motion for rehearing or reconsideration in the Michigan Court of Appeals, raising the res gestae witness claim, the jury instruction claim, the vindictive sentencing claim, the involuntary confession claim, and the prosecutorial misconduct claim. The Michigan Court of Appeals denied the application. People v. Payne, Nos. 111984, 112753 (Mich.Ct.App. April 13, 1989). Petitioner also filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Payne, Nos. 86152, 86153 (Mich. Feb. 26, 1990).
On April 12, 1994, Petitioner filed a motion for relief from judgment with the trial court asserting the following claims:
I. His convictions were obtained through the use of an involuntary confession in violation of the 5th and 14 Amendments.
II. His convictions were obtained through the use of a statement made in the absence of counsel in violation of the 6th and 14th Amendments.
III. He was denied the effective assistance of trial and appellate counsel for failure to raise these issues.
The trial court denied the motion on August 3, 1994. Petitioner's motion for reconsideration was also denied. Petitioner filed a delayed application for leave to appeal this decision with the Michigan Court of Appeals, which was denied. People v. Payne, No. 182819 (Mich.Ct.App. April 4, 1995). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Payne, No. 102922, 450 Mich. 958, 548 N.W.2d 631 (Mich. Dec.27, 1995).
On April 23, 1997, Petitioner submitted a second motion for relief from judgment with the trial court asserting the following claims in his initial and supplemental pleadings:
I. He was denied the effective assistance of counsel where he rejected a plea offer of 3-5 years on the armed robbery count on counsel's advice and received a sentence of 25-50 years after trial.
II. His indeterminate sentence of 25-50 years is the result of judicial vindictiveness where he received a much higher sentence than that offered in the plea agreement after exercising his right to a jury trial.
III. His sentence of 25-50 years imprisonment is and abuse of discretion because it was designed to circumvent the legislative intent of the Indeterminate Sentencing Act and the "Lifer Law."
IV. He is entitled to an evidentiary hearing to further develop the record in support of his ineffective assistance of counsel claim.
V. The retroactive application of the state law amendments which increased intervals between parole interviews enhanced his...
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