Redding v. Horton

• Decision Date: 30 April 2021
• Docket Number: Case No. 19-13599
• Parties: JERMIAL ALI REDDING, Petitioner, v. CONNIE HORTON, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

JERMIAL ALI REDDING, Petitioner, v. CONNIE HORTON, Respondent.

Case No. 19-13599

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

April 30, 2021

Stephanie Dawkins Davis United States District Judge

OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

Jermial Ali Redding, ("Petitioner"), incarcerated at the Chippewa Correctional Facility in Kincheloe, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for armed robbery, Mich. Comp. Laws § 750.529, carrying a concealed weapon, Mich. Comp. Laws § 750.227, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, possession of a firearm in the commission of a felony (felony-firearm), Mich. Comp. Laws § 750.227b, and being a fourth felony habitual offender, Mich. Comp. Laws § 769.12.

For the reasons that follow, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

I. BACKGROUND

Petitioner was convicted following a jury trial in the Wayne County Circuit Court. On March 12, 2013, at about 2:45 p.m., twelve-year-old RB¹ and his friend who was also twelve, were walking on Curtis Street between Northlawn Street and Cherrylawn Street in Detroit. A small green car came down the street and parked across the street from the two boys. After the car parked, a man later identified as petitioner walked up to RB and his friend. (ECF No. 8-8, PageID.340-43). Petitioner asked the young men, "What y'all n[----]s have?" (Id. at PageID.343). Although RB did not see a gun, petitioner had his hand in his waistband, leading RB to believe that petitioner had a gun in his possession. RB gave petitioner his cell phone. (Id. at PageID.343-45). Petitioner returned to the green car, while RB and his friend ran to the home of another friend and from there to RB's home. RB informed his mother about the robbery and she called the police. (Id. at PageID. 346-47). The following day, RB identified petitioner as his assailant in a photo array conducted by the police. (Id. at PageID.349-51).

At about 3:30 p.m. on the same day, TJ, a sixteen-year-old girl, was with her friend MM at the corner of Manor St. and Keeler St. in Detroit. (ECF No. 8-9, PageID.367, 436). TJ and MM noticed a green Dodge Neon approach them alongKeeler Street. (Id. at PageID.368-69). The car had a pink sticker on the back, resembling a temporary license plate. (Id. at PageID.375). The car drove past the two girls, before turning around and coming back and stopping. (Id. at PageID.369). Petitioner exited the front passenger door of the car and said, "[D]on't say anything, this is a stick-up." While saying this, petitioner lifted up his shirt and showed TJ and MM that a handgun was tucked into his waistband. TJ said the handle was black. TJ gave petitioner her Louis Vuitton purse and cell phone, and MM relinquished her phone. Another man opened the rear passenger door of the car and said, "[D]on't say nothing, just give it to him." The man started to get out of the car but got back in when he saw the TJ and MM giving their valuables to petitioner. TJ testified that she gave petitioner her property because he was armed with a gun. TJ had seen guns before and knew what they looked like. (Id. at PageID.369-72). Petitioner got back into the car, which drove off. (Id. at PageID.374-75). TJ and MM ran to MM's home, where TJ called her mother. The police were called the next morning. (ECF No. 8-9, PageID.375).

Detroit Police Officer Micheal Davis ² and his partner Oghenerhuemu Wanogho were on patrol on March 12, 2013 when, at about 4:00 p.m., they stopped a green Neon for having an illegible temporary plate. The temporary plate was pink. (ECF No. 8-9, PageID.438-441). Officer Davis approached the driver'sside of the door and came into contact with the driver, James Ready. Officer Wanogho approached the passenger side where petitioner was sitting. Two other people were seated in the back seat. Officer Davis asked Ready for his license, registration, and proof of insurance, but Ready did not have them. Officer Davis smelled the odor of marijuana and requested Ready to step out of the car. (Id. at PageID.442-43). Officer Wanogho noted that petitioner matched the description of a reported armed robber they had been told about. (Id. at PageID.480-81). All four occupants of the motor vehicle were arrested for armed robbery. (Id. at PageID.516). A search warrant was obtained and the green Neon was searched. Police recovered a cell phone, earrings and lip gloss, but did not find a Louis Vuitton purse or wallet or TJ's identification. (ECF No. 8-9, PageID.535-37).

After being convicted by the jury, Petitioner was sentenced to 15-30 years for armed robbery; 2-10 years for carrying a concealed weapon; 2-10 years for being felon in possession of a firearm; and 2 years for possession of a firearm in the commission of a felony (felony-firearm) and being a fourth felony habitual offender. (ECF No. 8-14, PageID.853-855). Petitioner's conviction and sentence was affirmed by the Michigan Court of Appeals. People v. Redding, No. 319255, 2015 WL 1227570 (Mich. Ct. App. Mar. 17, 2015). But Michigan Supreme Court remanded the case to the trial court pursuant to People v. Lockridge, 498 Mich. 358, 398, 870 N.W.2d 502 (2015), which had invalidated Michigan's SentencingGuidelines, for the judge to determine whether or not he would have imposed the same sentence even without the sentencing guidelines. People v. Redding, 872 N.W.2d 453 (Mich. 2015). The Court denied leave to appeal in all other respects, because it was "not persuaded that the remaining questions presented should be reviewed by this Court." Id.

On remand, the trial judge ruled that he would not have imposed a materially different sentence had the sentencing guidelines been advisory, rather than mandatory. (ECF No. 8-15, PageID.866). The Michigan appellate courts affirmed petitioner's sentence after remand. People v. Redding, No. 336896, 2018 WL 1733344 (Mich. App. Apr. 10, 2018); lv. den. 503 Mich. 875 (Mich. 2018).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. Must appellant's carrying a concealed weapon, felon in possession, and felony firearm convictions be reversed where the prosecution failed to present sufficient evidence to prove those charges beyond a reasonable doubt.

II. Whether the trial court reversibly erred, in violation of appellant's constitutional rights to due process, confrontation and fair trial, by denying a mistrial where the prosecution removed a complaining witness from their endorsed witness list without leave of the court but discussed that witness' allegedly incriminating testimony in opening statements.

III. Was appellant denied a fair trial, the right to confront witnesses and the right to present a defense when defendant James Ready, who pled guilty to unarmedrobbery in exchange for an agreement to testify, was allowed to claim a Fifth Amendment privilege from testifying due to unspecified reasons without a determination that privilege was valid and related to the issues in the case.

IV. Is resentencing required where appellant's sentence range was increased based upon facts that were not found by a jury or proved beyond a reasonable doubt.

II. STANDARD OF REVIEW

Title 28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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 proceeding.

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 theSupreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (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. 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. "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

III. DISCUSSION

A. Claim # 1. The insufficiency of evidence claim.

Petitioner first contends that there was insufficient evidence to support his convictions for carrying a concealed weapon, felon in possession of a firearm, and felony-firearm. Petitioner specifically argues that the prosecution failed to present evidence that petitioner was in possession of an actual firearm when he robbed TJ.

This Court notes that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364 (1970). But the crucial question in reviewing the sufficiency of the evidence tosupport a criminal conviction is, "whether the record evidence could...