Pryor v. Bock

• Decision Date: 03 April 2003
• Docket Number: No. 01-72204.,01-72204.
• Citation: 261 F.Supp.2d 805
• Parties: Donte Shontel PRYOR, Petitioner, v. Barbara BOCK,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. District Court — Eastern District of Michigan

261 F.Supp.2d 805

Donte Shontel PRYOR, Petitioner, v. Barbara BOCK,¹ Respondent.

No. 01-72204.

United States District Court, E.D. Michigan, Southern Division.

April 3, 2003.

Donte Pryor, Freeland, MI, pro se.

Craig A. Daly, Detroit, MI, for petitioner.

Jerrold E. Schrotenboer, Jackson County Prosecutor's Office, Jackson, MI, for respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

TARNOW, District Judge.

I. Introduction

Petitioner Donte Shontel Pryor, through his attorney, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the Saginaw Correctional Facility in Freeland, Michigan, pursuant to convictions for assault with intent to commit murder, carrying a concealed weapon, and possession of a firearm during the commission of a felony. He contends that his trial violated the Double Jeopardy Clause. Because the Court concludes that the Double Jeopardy Clause was not violated, the Court denies the petition.

II. Facts

Petitioner's conviction arises out of the non-fatal shooting of Raymond Weaver outside his home on April 2, 1997, in Jackson, Michigan. Mr. Weaver testified that, on that date, he was standing on the sidewalk outside his house with his friend Joseph Jewel when a car full of men drove by and started shouting at him. He identified Petitioner as one of the individuals in the car. Mr. Weaver went into his house to retrieve a gun. When he walked back outside, he saw Petitioner standing by a telephone pole with a gun. Mr. Weaver testified that Petitioner shot at him several times. Mr. Weaver returned fire once or twice. Mr. Weaver testified that another individual, Deonco Franklin, then began shooting at him, and shot him in the arm and the backside.

Petitioner presented an alibi defense. Petitioner's mother testified that Petitioner attended her birthday party in the City of Detroit on the day of the shooting. Kathy Johnson testified that she attended Petitioner's mother's birthday party and Petitioner was present.

III. Procedural History

Petitioner was charged in Jackson County Circuit Court of assault with intent to commit murder, carrying a concealed weapon, and possession of a firearm during the commission of a felony. The trial court sua sponte declared a mistrial in Petitioner's first trial after the jury was impaneled when the prosecutor informed the trial court that a prosecution witness was temporarily out of state, despite having been subpoenaed for the trial. Deonco Franklin was a codefendant in this proceeding.

Petitioner's attorney filed a motion for dismissal of the charges because retrial would violate his right to be free from double jeopardy. The trial court denied the motion. People v. Pryor, No. 97081127 (Jackson County Circuit Court Nov. 7, 1997).

Petitioner was retried three weeks after the mistrial was declared. He was convicted on all counts. On January 7, 1998, Petitioner was sentenced to twenty-five to fifty years imprisonment.

Petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claim:

The double jeopardy clause bars retrial if a court orders a mistrial in the absence of manifest necessity or defense consent. The trial court sua sponte ordered a mistrial because a police officer endorsed by the prosecution, and wanted as a witness by the defense, ignored his subpoena and left the state. The trial court erred in ordering a retrial following the mistrial.

The Michigan Court of Appeals affirmed Petitioner's conviction. People v. Pryor, No. 208796, 1999 WL 33444290 (Mich.App. May 21, 1999).

Petitioner filed an application for leave to appeal to the Michigan Supreme Court, presenting the same claim presented on direct review to the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal because there was "no majority of the Court in favor of granting leave to appeal." People v. Pryor, 462 Mich. 878, 613 N.W.2d 722 (Mich.2000). Three Justices would have granted leave to appeal, and Justice Markman abstained because he sat on the Michigan Court of Appeals' three judge panel affirming Petitioner's conviction.

Petitioner then filed the pending petition for a writ of habeas corpus, through counsel, presenting the following claim:

Was retrial of Petitioner, after the trial judge abruptly declared a mistrial sua sponte, due to the temporary absence of a police officer listed as a prosecution witness barred by the double jeopardy clause of the federal constitution where Petitioner did not retain primary control over the proceedings?

IV. Standard of Review

28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:

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 proceedings.

28 U.S.C. § 2254(d). 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 statecourt decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410-11, 120 S.Ct. 1495.

V. Analysis

Petitioner presents a single claim for habeas corpus relief. He argues that his retrial violated the Double Jeopardy Clause, and that the state court's holding that no violation occurred was contrary to and an unreasonable application of Supreme Court precedent.

The Double Jeopardy Clause of the Fifth Amendment "protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense." U.S. v. Dinitz, 424 U.S. 600, 605, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).² "As part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a `valued right to have his trial completed by a particular tribunal.'" Oregon v. Kennedy, 456 U.S. 667, 671-72, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)). Jeopardy attaches when the original jury panel is seated and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Once jeopardy attaches, a defendant may not be retried after a mistrial has been declared unless (1) there is a "manifest necessity" for a mistrial, or (2) the defendant either requests or consents to a mistrial. Dinitz, 424 U.S. at 606-07, 96 S.Ct. 1075.

In this case, the Michigan Court of Appeals held that Petitioner's retrial was permissible because Petitioner impliedly consented to the mistrial. The state court reasoned, in pertinent part:

Both the United States Constitution and the Michigan Constitution prohibit placing a defendant twice in jeopardy for a single offense, which protects a defendant against both successive prosecutions and multiple punishments for the same offense. U.S. Const. Am V; Const.1963, art. 1, § 15; ... Generally, jeopardy attaches in a jury trial once the jury is impaneled and sworn. People v. Mehall, 454 Mich. 1, 4, 557 N.W.2d 110 (1997). At that point, the defendant has a constitutional right to have his or her case completed and decided by that tribunal.... When a mistrial is declared, retrial is permissible under double jeopardy standards where (1) manifest necessity required the mistrial, or (2) the defendant consented to the mistrial and the mistrial was caused by innocent conduct on the part of the prosecutor, or judge or by factors beyond their control. Mehall, supra at 4, 557 N.W.2d 110; People v. Dawson, 431 Mich. 234, 252-53, 427 N.W.2d 886 (1988). Here, the jury was impaneled and sworn before the judge declared a mistrial. Therefore, defendant's retrial violated double jeopardy unless manifest necessity existed for the mistrial or defendant consented to the mistrial. Because we concludfe] that defendant impliedly consented to the mistrial, we hold that defendant's retrial did not violate the prohibition against double jeopardy.

In determining whether a defendant has consented to a mistrial, "[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed." People v. Benton, 402 Mich. 47, 54, 260 N.W.2d 77 (1977), citing United States v. Dinitz, 424 U.S. 600, 607-09, 96 S.Ct. 1075, 47 L.Ed.2d 267;... (1976). In that regard, the relevant issue is whether a defendant consented to the discontinuance of the trial, rather than whether he formally consented to the declaration of a mistrial.... Defendant's consent can be express or implied. People v. Hoffman, 81 MichApp. 288, 297, 265 N.W.2d 94 (1978), ... Moreover, acting on a defendant's behalf, counsel may provide the requisite consent. Benton, supra at 55, 260 N.W.2d 77; Hoffman, supra at 298, 265 N.W.2d 94.

In this case,...