Pettiford v. Bergh, CASE NO. 10-14781

• Decision Date: 06 December 2013
• Docket Number: CASE NO. 10-14781
• Parties: ROOSEVELT PETTIFORD, Petitioner, v. DAVID BERGH, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

ROOSEVELT PETTIFORD, Petitioner, v. DAVID BERGH, Respondent.

CASE NO. 10-14781

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: December 6, 2013

HONORABLE GEORGE CARAM STEEH

OPINION AND ORDER

DENYING THE PETITION FOR WRIT OF HABEAS CORPUS

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner Roosevelt Pettiford has filed an application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The habeas petition challenges petitioner's Wayne County convictions for first-degree (premeditated) murder, Mich. Comp. Laws § 750.316(1)(a), felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. Respondent David Bergh urges the Court to deny the habeas petition on the basis that the state court's adjudication of petitioner's claims was objectively reasonable and is not contrary to, or an unreasonable application of, Supreme Court precedent. Having reviewed the pleadings and state court record, the Court agrees that petitioner's claims do not warrant habeas corpus relief. The habeas petition, therefore, is denied.

I. Background

A. The Facts

Petitioner was tried before a jury in Wayne County Circuit Court where the evidence established that:

[t]he victim, Vinson Lamont Ellington, was shot to death in Detroit on November 1, 2005. The shooting occurred between 11:30 a.m. and noon, at a gas station located near the intersection of Oakland Street and East Grand Boulevard. The victim was pumping gas when a lone assailant killed him with multiple gunshots. Chief Wayne County Medical Examiner Dr. Carl Schmidt testified that the victim endured 11 gunshot wounds, including two to his face, two in his neck, two to the back of his right shoulder, and one each to his upper chest, right lower back, right hip, right buttock, and left forearm. Schmidt opined that no evidence of close-range gunfire existed on the victim's body, and that "a high velocity weapon was used."¹

Several eyewitnesses offered at trial their recollections of the November 1, 2005 shooting. Ninth-grade teacher LaDonna Morrow and one of her students, Taylor Hanserd, testified that while driving west on East Grand Boulevard toward a red traffic light, they heard three gunshots emanating from a gas station on the right side of the road. Morrow and Hanserd recounted that after Morrow stopped at the traffic light, they saw the victim pumping gas into a station wagon, and a dark green Cadillac Escalade parked on the opposite side of the gas pumps. Morrow and Hanserd similarly described that they also saw an African-American man wearing a black, hooded coat; they watched as the victim fell to the ground, the hooded man moved closer to the victim, within several feet, and continued shooting a gun at the victim,² then ran behind the gas station and into the passenger's seat of a green 1997 Chevrolet conversion van with tan or beige stripes. Neither Morrow nor Hanserd could describe the shooter's face because his hood obscured it, and neither heard any verbal exchange between the victim and the shooter.

Both Morrow and Hanserd saw an African-American woman on a sidewalk across the street from the gas station running away from it, the Escalade pull away from the station, and a white Detroit police car that had been parked at or near the gas station drive away from the scene after the shots rang out. Morrow then drove away and she or the student called 911.

Evan James Nayfa testified that on November 1, 2005, he lived in a second-floor apartment across the street from, and "[j]ust east of," the East Grand Boulevard gas station where the shooting occurred. Nayfa recalled that within 15 minutes of noon, he heard three gunshots that prompted him to look out his window toward the gas station. From 30 or 40 feet away, Nayfa "saw a station wagon at the pump" nearest his vantage point, "the victim as he was falling to the ground," and "the shooter at the front of [the victim's] vehicle." According to Nayfa, the assailant, an African-American male who wore a black coat with its hood raised, "was running up towards [the victim], and he kind of stood in a stance at the front of the victim's car. . . . And I'd say from there he shot about six or seven more times" with a "very large" "automatic weapon."³ Nayfa described that the shooter then fled behind the gas station and into the driver's side of "a green conversion van" with "tan decals and a raised roof"; Nayfa disbelieved that the van contained any other occupants.⁴ "A couple minutes" later, Nayfa and his roommate ventured across the street, where the victim laid on the ground, silent and unmoving, and where many other people they did not know gathered around. Nayfa thereafter encountered the police and participated in a photographic lineup at the police station; Nayfa could not identify with certainty anyone as the shooter, but suggested that two of the photographs most resembled the shooter; a photograph of defendant was one of the two that Nayfa selected.⁵

The prosecutor presented evidence that one eyewitness to the shooting had identified defendant as the victim's assailant. Yolanda Browning testified that she had grown up in the same area of Detroit as the victim and defendant, and had known them both for at least 20 years.

Browning recounted that on November 1, 2005, she lived a couple of blocks away from the East Grand Boulevard gas station, and that she had started walking toward the gas station that morning intending to meet the victim, whom she had called requesting to purchase crack cocaine. Browning conceded at trial that she had heard some gunshots while walking toward the gas station, but insisted that she had not viewed any portion of the shooting, or any people or vehicles around the gas station, because the shots prompted her to "turn[ ] around and r[u]n" home.

At trial, however, Browning confirmed that in a statement recorded by the police on November 1, 2005, her initials appeared alongside the following details: "Roosevelt did it [the shooting]"; Roosevelt's last name was Pettiford; Browning replied affirmatively to the police question, "Did you actually see Roosevelt fire the gun?"; Browning described Roosevelt as a "[b]lack male, thirty, five nine, a hundred and seventy-five pounds, medium complexion, short Afro, light [mustache] with black marks on his face and a big ass head"; Browning had known defendant all her life, and believed he lived "[o]n Rosedale at Oakland about three or four houses off the corner with the white picket fence . . . south side of the street"; that she "saw [the victim] going back to his car from the gas station at Oakland and East Grand Boulevard"; "[t]hat's when I saw Roosevelt shoot [the victim]"; that defendant had shot the victim from "[c]lose range, he just walked up on him and started shooting"; that defendant had fired his first shot while pointing a gun "[a]t [the victim's] face. It looked like it could have been his eye"; and that she had an "open" view of the shooting from about 25 feet away because she "could see straight to the East Grand Boulevard."⁶

Scott Shea, a Detroit police homicide officer, testified that he participated in a November 7, 2005 follow-up interview of Browning, precipitated when a colleague of Shea's telephoned Browning to arrange the discussion. Shea recounted that he first asked Browning "if she knew the gentleman that she named in her prior statement," and that Browning responded affirmatively, without hesitation or qualification. Shea described that the officer-in-charge of the case then showed Browning a mug shot photograph of defendant and inquired (1) whether she knew "this person," to which Browning responded, "Yeah, that's Roosevelt," (2) how she knew defendant, which she answered, "We went to school together. I've been knowing him my whole life," (3) whether she saw defendant on November 1, 2005, to which she replied, "Yes," "I saw him at the gas station at Oakland and East Grand Boulevard," (4) "what didRoosevelt do[,]" which she answered, "When he shot [the victim]," (5) if she had witnessed the shooting, and Browning responded, "I saw the first shot and then I took off running," "Roosevelt was shooting and he shot [the victim]," (6) "did you see Roosevelt with a gun[,]" which she answered, "Yeah, but I don't know what type of gun it was," and (7) whether anyone had accompanied defendant at the gas station, to which she replied, "No." Shea added that Browning then reviewed the statement he had handwritten and signed both pages. Shea denied that Browning ever had suggested to the police that she could not see the shooting clearly because she was not wearing her glasses, or that she had fabricated her summary of events to gain a measure of revenge against defendant for abusing her niece.

Detroit police homicide officer David Moore also testified about his interaction with Browning approximately a week after the shooting. Moore recalled that at police headquarters he talked for about 35 or 45 minutes with Browning, who had arrived alone and voiced concern regarding her participation in defendant's case, specifically "[t]hat she had heard conversations throughout the neighborhood that she was coming down to the police station and talking too much," felt "concerned about any kind of repercussions or anything like that." According to Moore, he and Browning also discussed the November 1, 2005 shooting at headquarters, then spent five or 10 minutes together revisiting the scene of the shooting. Moore described that Browning again recounted with specificity her unequivocal observations of the shooting, including that defendant had shot the victim near the gas pumps. Moore denied that Browning thereafter reported to police any qualifications of her shooting account.⁷

Thomas Hill testified that he had known both the victim and defendant for more than 20 years, that they all resided in the same

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