Ray v. Bauman

• Decision Date: 13 April 2018
• Docket Number: Case Number 11-11100
• Citation: 326 F.Supp.3d 445
• Parties: John Henry RAY, Petitioner, v. Catherine S. BAUMAN, Warden, Alger Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

326 F.Supp.3d 445

John Henry RAY, Petitioner,

v.Catherine S. BAUMAN, Warden, Alger Correctional Facility, Respondent.

Case Number 11-11100

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

Signed April 13, 2018

Benton C. Martin, Federal Defender Office, Detroit, MI, Michele E. Gutrick, Hogan Lovells, Washington, DC, for Petitioner.

Bruce H. Edwards, John S. Pallas, Mark G. Sands, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS (AFTER REMAND)

DAVID M. LAWSON, United States District Judge

Petitioner John Henry Ray is serving a life sentence for first-degree murder. He alleged in his habeas corpus petition, among many other things, that his Sixth Amendment rights were abridged when his lawyer was excluded from a critical stage of his state prosecution. His habeas corpus case returns to this Court following a remand by the court of appeals to consider two main issues: "(1) whether there was an adjudication on the merits as to Ray's [ United States v. ] Cronic [, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ] claim, and (2) whether Ray is entitled to relief [on that claim] under the appropriate standard of review." Ray v. Maclaren , 655 Fed.Appx. 301, 311 (6th Cir. 2016). The court also vacated and remanded for reconsideration this Court's decision denying relief on Ray's claim that his appellate attorney did not provide constitutionally adequate representation. Id. at 312. While those questions were under consideration, the petitioner filed a motion for relief from judgment concerning his claim under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), based on a newly disclosed unsealed transcript of the in camera conference between the state trial judge and the prosecutor, which did not include defense counsel, and in which it was revealed that one of the State's principal witnesses against the petitioner had been employed by the police as a paid confidential informant, before and after the murders of which the petitioner was convicted. The state attorney general has not responded to that motion. The parties presented supplemental briefs, and the Court heard oral argument.

With the perspective furnished by the court of appeals, and the revelations from the unsealed state transcript (which the attorney general failed to file with the initial batch of Rule 5 materials), it is apparent that the petitioner raised his Cronic claim at an appropriate time in the state court, but the court evidently misunderstood the argument, and therefore never addressed it on the merits. This Court, therefore, must give it fresh review, and not apply the highly deferential standard prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The in camera conference was a critical stage of the state criminal proceedings. The petitioner's attorney was not allowed to attend. His appellate attorney's failure to raise that issue on direct appeal amounted to deficient performance, which prejudiced the petitioner. And the information revealed at that conference was exculpatory and material to the defense. The state prosecutor's failure to disclose that information violated clearly established constitutional requirements under Supreme Court jurisprudence, and that lapse undermines confidence in the outcome of the case. These flaws entitle Ray to a new trial, and, failing that, to release from state custody.

I.

A.

The parties are familiar with the facts, but they are repeated here as summarized in earlier opinions. John Henry Ray was convicted along with two codefendants, Juanita Michelle-Elam and Jairus Andrae Perkins, following a jury trial in the Wayne County, Michigan circuit court. Ray was convicted of two counts of second-degree murder, two counts of first-degree felony murder, one count of killing an unborn child, two counts of assault with intent to do great bodily harm less than murder, two counts of armed robbery, one count of first-degree home invasion, one count of felon in possession of a firearm, and one count of possession of a firearm while committing a felony. He was sentenced to life imprisonment without parole for the first-degree murder convictions and lesser prison terms for the other convictions.

The facts of the case were summarized briefly by the Michigan Court of Appeals on the three defendants' joint direct appeal as follows:

Defendant Perkins, aged twenty-one, his girlfriend, defendant Elam, aged twenty-eight, and defendant Ray, aged thirty-eight, were involved in the killing of a man, Deshone Douglas Moore, aged twenty-eight, and a pregnant woman, Amanda Zarbaugh, aged twenty, and her unborn child, during the course of an armed robbery at Zarbaugh's residence in Romulus, Michigan in July 2004. Defendant Elam was already in the house with the two victims when defendants Perkins and Ray arrived with guns. Defendant Perkins and Ray encountered Christopher Straughter and Ebonie Booker exiting the house when they arrived. Defendant Perkins ran into the house just prior to fatal shots being heard, and defendant Ray stayed outside and held the witnesses at gunpoint.

People v. Ray , No. 260161, 2006 WL 1330320, at *2 (Mich. Ct. App. May 16, 2006).

The Sixth Circuit added details, which were excerpted from the state trial court's opinion denying the petitioner's post-conviction motion for relief from judgment:

This case arises from the planned armed robbery of Christopher Straughter by Juanita Elam, her boyfriend Jarius Perkins and friend John Ray. Straughter was a robbery target because the defendants believed he was a dope dealer who carried large sums of cash.

Defendant Ray (twenty one years old) and two co-defendants Elam (twenty eight) and Perkins (thirty eight) went to Amanda Zarbaugh's house to rob Straughter. Zarbaugh was pregnant with an unborn child and was in the house with Deshone D. Moore.

Elam knew both Straughter and Zarbaugh. Elam went to Zarbaugh's alone. Elam enticed Straughter via phone to come to Zarbaugh's house under the guise that she wanted to buy drugs and to talk business with him. Elam became insistent that Straughter come to Zarbaugh's house. She said she would remain there until Straughter arrived.

Elam then called Perkins' cell phone. The inference from that call is that Elam alerted Perkins and Ray to come to the house.

Straughter came to the house and entered with Ebonie Booker. They spoke with Elam. Elam also spoke with Moore, who was in the house with Zarbaugh. Straughter and Booker headed out the front door. They encountered Perkins and Ray, who were waiting outside the house with guns. Perkins and Ray rushed Straughter and Booker with drawn handguns. Perkins and Ray robbed Straughter and Booker at gunpoint and forced them to the ground.

Ray stood over Straughter and Booker at gunpoint outside the house while Perkins went into the house. Elam, Zarbaugh and Moore were still inside the house. Shots were fired. Perkins and Elam came out of the house.

Zarbaugh and Moore were discovered executed, as was Zarbaugh's unborn child. Cash was also taken.

Straughter and Booker were threatened as they lay on the ground. They overheard discussions about killing them. They got up and ran. Straughter and Booker were shot at, but the guns did not discharge because they were either empty or jammed. Straughter and Booker continued to run from the scene. All three perpetrators, Elam, Ray and Perkins, fled the scene in Perkins' silver Explorer.

Ray v. Maclaren , 655 Fed.Appx. 301, 303 (6th Cir. 2016).

Ray's defense at trial centered on Straughter's credibility. Ray's attorney pointed out that Straughter had made several inconsistent statements about the incident. Defense counsel acknowledged that Ray was present at the house, but he asserted that Ray never possessed a firearm, there were no shots fired outside the house, and Ray had nothing to do with the robbery or the killings. He argued that Straughter's version was not worthy of belief.

The jury was unconvinced. The petitioner's convictions were affirmed on direct appeal (although his convictions for second-degree murder were vacated, as duplicative of the first-degree murder convictions), People v. Ray , 2006 WL 1330320, and the state supreme court denied leave to appeal, 477 Mich. 941, 723 N.W.2d 824 (2006) (Table). The petitioner then filed a post-conviction motion for relief from judgment under Michigan Court Rule 6.500, et. seq. , which was denied by the trial court. People v. Ray , No. 04-008291-01 (Wayne County Circuit Court April 13, 2009). The Michigan appellate courts denied the petitioner leave to appeal. People v. Ray , No. 295244 (Mich. Ct. App. April 2, 2010); lv. den. 488 Mich. 856, 787 N.W.2d 120 (2010) (Table).

B.

On March 16, 2011, the petitioner filed a pro se petition for a writ of habeas corpus raising eighteen claims of constitutional error in the state court proceedings. On July 9, 2014, the Court issued an opinion denying the petition, after finding that all of the claims were without merit. However, the Court issued a certificate of appealability as to the seventeenth ground for relief, in which the question raised was "[w]hether the prisoner was deprived of counsel at a critical stage due to ex parte communications between the trial court and prosecutor." The Sixth Circuit expanded the certificate of appealability to include a claim that the petitioner's appellate counsel was ineffective by failing to raise the Cronic issue on direct appeal. The court of appeals concluded that "the district court committed reversible error [by] failing to determine whether Ray's Cronic claim was adjudicated on the merits before applying AEDPA deference to the state court decision." Ray , 655 Fed.Appx. at 310.

The court of appeals noted that, because the resolution of the ineffective assistance claim would depend on resolution of the Cronic claim, it did not reach the merits of the ineffective assistance claim,...