Reed v. McQuiggin
| Decision Date | 29 February 2012 |
| Docket Number | CASE NO. 2:08-cv-14979 |
| Parties | ERICK REED, Petitioner, v. GREG MCQUIGGIN, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
ERICK REED, Petitioner,
v.
GREG MCQUIGGIN, Respondent.
CASE NO. 2:08-cv-14979
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
Dated: February 29, 2012
This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Erick Reed is a state inmate currently incarcerated by the Michigan Department of Corrections at the West Shoreline Correctional Facility in Muskegon Heights, Michigan. He filed this habeas petition challenging his 2004 conviction for possession with intent to deliver a controlled substance, cocaine, in the amount of more than 45 grams but less than 1,000 grams, after a jury trial in Wayne County Circuit Court. He was sentenced to eleven to thirty years in prison for the charged offense.
In his pro se pleadings, Petitioner raises eleven claims why his conviction and sentence are unconstitutional, including, improper jury instructions, a violation of the Fourth Amendment, prosecutorial misconduct during opening statement and closing argument, lack of subject-matter jurisdiction in the trial court, judicial bias, a violation of the Confrontation Clause, the effectiveness of trial counsel, ex parte communications with the jury, cumulative-error effect, improper sentencing, and the effectiveness of appellate counsel. Respondent has filed an answer to the petition, contending that Petitioner's claims either lack merit or are procedurally defaulted. The Court agrees and finds that Petitioner's conviction and sentence are constitutionally sound.
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Therefore, the Court will deny the petition. The Court also will decline to issue Petitioner a certificate of appealability.
The Michigan Court of Appeals summarized the underlying facts of this case, which are presumed correct on habeas review. See Monroe v. Smith, 197 F. Supp. 2d 753, 758 (E.D. Mich. 2001), aff'd, 41 F. App'x 730 (6th Cir. 2002) (citations omitted). The Court of Appeals stated:
Javan Lee ("Lee"), is defendant's cousin. On February 27, 2003, defendant phoned Lee, at his home, to confirm Lee's residential address and informed Lee he would be sending a birthday gift for defendant's sister in care of Lee at his home. Lee provided defendant with his address. Defendant told Lee that the gift was a radio.
Defendant phoned Lee again on February 28, 2003, to confirm Lee's mailing address. Defendant phoned later that same day to inform Lee that a package would arrive on Saturday. On Saturday, the day anticipated for delivery of the package, defendant phoned Lee three additional times checking on whether the package had been received. Lee verified to defendant, on the third phone call, that his package had been received.
Between the second and third phone calls by defendant to Lee on Saturday, defendant's package was delivered to Lee's home. Unbeknownst to Lee, the AirBorne Express delivery person that brought the package to his house was, in actuality, an undercover narcotics officer, Michael Patti ("Patti"), of the Detroit Police Department. The package received at Lee's home had been mailed from Oakland, California, and the return address on the package indicated it came from Reed Brothers, Inc., 1212 Clayton Road, Oakland, California.
Before shipment, while still in California, the package was intercepted and detected to contain narcotics by a trained canine used by the Oakland California Parcel and Addiction Team. The Oakland Team opened the package and confirmed that it contained narcotics, repackaged it, contacted local police and shipped it to police in Canton, Michigan, for a "controlled delivery." Upon receipt by police in Michigan, the box was re-opened. A cassette recorder contained within the package was removed and disassembled, revealing a hidden brick of cocaine.
While a raid crew was ready and waiting outside Lee's home with a search warrant, Patti donned the garb of an AirBorne Express delivery person and presented the package to Lee at his home. After leaving the premises, Patti went
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to a staging area to change so that he could join members of the raid team. While Patti was at the staging area, he was informed by another officer that a vehicle, with Illinois license plates, had pulled up outside Lee's home and a man, later identified as defendant, had run up to the home's entrance.
Lee reported returning to bed after delivery of the package, only to be disturbed almost immediately by the doorbell. Lee found defendant at his front door. Upon letting him into the home, Lee stated to defendant, "if you were coming here, you could have brought . . . the radio yourself." At this point, believing someone other than police had been watching Lee's home for the package delivery, police immediately raided the home.
Upon entry, police located Lee between the front stairwell and living room of his residence. Defendant was in the bathroom. The package was near the front stairwell, "undisturbed" and unopened. In searching defendant, police looked in his wallet, found and confiscated a cash receipt from a Radio Shack in Oakland, California, dated February 27, 2003, at 5:43 p.m. for a cassette recorder that matched the make and model containing the cocaine within the delivered package.
Lee gave police a statement at the scene, denying knowledge of the package contents and indicating he had merely accepted the package at the request of defendant. Police checked Lee's home phone caller identification and verified the number, dates and times of calls received from a cell phone number that coincided with Lee's description of his contacts with defendant. In addition, a cell phone, with the number corresponding to that located on Lee's caller identification was taken from defendant's person during the raid.
Neither Lee nor defendant were arrested at the scene. On November 14, 2003, defendant was arrested and charged with one count of possession of a controlled substance (cocaine) with intent to deliver, more than 450 grams but less than one thousand grams. At trial, defendant was convicted as charged and now appeals as of right.
People v. Reed, No. 256305, 2005 WL 2758421, at *1-2 (Mich. Ct. App. Oct. 25, 2005).
Following his conviction and sentence, Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, raising claims concerning judicial bias, prosecutorial misconduct during opening statement and closing argument, error in subject-matter jurisdiction, improper jury instructions, and a Fourth Amendment violation. The Court of Appeals affirmed
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his conviction and sentence. Reed, 2005 WL 2758421, at *7.
Petitioner then filed an application for leave to appeal the Court of Appeals's decision with the Michigan Supreme Court, raising the same claims. The Supreme Court denied the application on April 28, 2006. People v. Reed, 474 Mich. 1127, 712 N.W.2d 455 (2006).
On December 14, 2006, Petitioner filed a motion for relief from judgment with the state trial court, raising claims concerning the Confrontation Clause, ex parte jury communications, cumulative-error effect, improper sentencing, and the effectiveness of appellate counsel. The trial court denied the motion. People v. Reed, No. 04-2336-01 (Wayne Cnty. Cir. Ct. Feb. 7, 2007). Petitioner then filed applications for leave to appeal with the Michigan Court of Appeals and the Michigan Supreme Court, which were denied. People v. Reed, No. 279601 (Mich. Ct. App. Feb. 20, 2008); People v. Reed, 482 Mich. 973, 754 N.W.2d 898 (2008).
Petitioner did not file a petition for writ of certiorari with the United States Supreme Court. Rather, he filed this habeas petition on December 1, 2008, signed and dated November 21, 2008. As noted, Respondent filed an answer to the petition arguing that it should be denied because some of his claims are barred by procedural default.
Respondent argues that several claims are procedurally defaulted because Petitioner either failed to preserve the claims in the state trial court or raised them for the first time in his post-conviction motion in the state trial court. Respondent asserts that the following claims are defaulted because Petitioner failed to preserve them in the state trial court: claim III-prosecutorial misconduct; claim IV-lack of subject-matter jurisdiction in the trial court; and claim VI-violation of the Confrontation Clause.
Under a long line of Supreme Court cases, an adequate and independent finding of
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procedural default by the state courts will also bar federal habeas review of a state conviction, unless the habeas petitioner can show cause for the procedural default and prejudice attributable thereto. See Murray v. Carrier, 477 U.S. 478, 485 (1986); see also Harrington v. Richter, ---U.S. at ---, ---, 131 S.Ct. 770, 787 (2011) (same) (citations omitted). The doctrine of procedural default is applicable where a petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule is "adequate and independent." See Brooks v. Tennessee, 626 F.3d 878, 890 (6th Cir. 2010). The state may assert a procedural default when the last, reasoned opinion of the state courts clearly relies on a procedural bar...
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