Reed v. Wolfenbarger

• Decision Date: 28 February 2013
• Docket Number: CASE NO. 2:10-CV-13263
• Parties: GEORGE REED, #101029, Petitioner, v. HUGH WOLFENBARGER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

GEORGE REED, #101029, Petitioner,

v.HUGH WOLFENBARGER, Respondent.

CASE NO. 2:10-CV-13263

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: February 28, 2013

HONORABLE VICTORIA A. ROBERTS

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. Introduction

Michigan prisoner George Reed ("Petitioner") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ Petitioner was convicted of assault with intent to do great bodily harm less than murder, MICH. COMP. LAWS § 750.84, felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, and two counts of possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.110a(2), following a jury trial in the Oakland County Circuit Court in 2003. He was sentenced as a fourth habitual offender, MICH. COMP. LAWS § 769.10, to four to 30 years imprisonment on the assault conviction, a concurrent term of four to 20 years imprisonment on the felon in possession conviction, and consecutive terms of two years imprisonment on the felony firearm convictions to be served concurrently with each other.

In his pleadings, Petitioner raises claims concerning the bind-over decision, the lack of apolygraph examination, the denial of his request for self-representation, the admission of a police car video, the jury instructions, the admission of a prior conviction, the non-disclosure of impeachment evidence, and the effectiveness of trial counsel. Respondent filed an answer to the petition contending that it should be denied.

The Court finds that Petitioner is not entitled to federal habeas relief on his claims and denies the petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner's convictions arise from the non-fatal shooting of Elmer Davis outside their apartment complex in Pontiac, Michigan on January 7, 2003. The Court adopts the statement of facts set forth by Respondent to the extent it is consistent with the record. Those facts are as follows:

Petitioner's convictions resulted from his having shot Elmer Davis in the neck, paralyzing Mr. Davis from the chest down. Mr. Davis - who was a neighbor of Petitioner's in the same apartment complex - testified that he was sitting in his car in the apartment complex parking lot, smoking marijuana and drinking malt liquor. (Trial Transcript (TT) 05/12/03, 89, 92-93, 105). Mr. Davis was getting ready to leave in his car when a car pulled in front of his. when Petitioner - a passenger in the car that had just pulled in - got out of the car, he came over to Mr. Davis and according to Mr. Davis "checked him" and hollered at him because Mr. Davis had waived his hands at the other vehicle to let him get out. (TT 05/12/03, 93-94, 106). Petitioner seemed offended, and Mr. Davis was telling him "it ain't about all that. I just want to get out," after which point Petitioner left and Mr. Davis "thought it was all over." (TT 05/12/03, 94). Mr. Davis remained in his car, listening to the radio, when he hears a gunshot and discovers that he himself was shot in the neck. (TT 05/12/03, 94). Mr. Davis testified that he did not own a gun, had never carried a gun, and did not have a gun in his car that day. Nor did he ever pull a gun on Petitioner or anyone else. (TT 05/12/03, 100). When Mr. Davis was shown a gun that had been entered into evidence - a gun Petitioner claimed he removed from Mr. Davis's possession after the shooting - he indicated that the gun was not his, and that he had never seen the gun prior to viewing it in court at that moment. (TT 05/12/03, 101).

After he was shot, the next thing Mr. Davis remembered was waking up in the hospital, after surgery had been performed and after he was told he had been "passed as dead" but had been brought back. (TT 05/12/03, 95-96). Mr. Davis remained in the hospital for approximately a month and a half, and as a result of the shooting was paralyzed from the chest down. (TT 05/12/03, 97).

Pamela Tige, the victim's live-in girlfriend, testified that she had never seen a gun in their apartment, nor had she ever come across one when cleaning their apartment. (TT 05/12/03, 114, 119). Ms. Tige also testified that she had never seen the victim with a gun. (TT 05/12/03, 120). When Ms. Tige was shown the gun that had been entered into evidence, she testified that she had never seen it before. (TT 05/12/03, 120-121).

Peter Durham, Petitioner's nephew, testified that he and his girlfriend Candice Carter had dropped Petitioner off at the apartment complex on the date in question, after he saw his uncle in court that morning where both were attending separate landlord/tenant hearings. (TT 05/12/03, 127-128, 131). Mr. Durham testified that when he pulled in front to drop off Petitioner, he parked in front of three vehicles, and someone was in one of the vehicles. (TT 05/12/03, 132). After Petitioner left Mr. Durham's vehicle, Mr. Durham saw Petitioner walk to the parked vehicle and exchange words with the occupant, at which time he also heard some yelling. (TT 05/12/03, 133-134, 153). After a few words were exchanged, Petitioner kept walking to his apartment. Mr. Durham never saw Petitioner lean inside of the parked car nor go inside of the car. (TT 05/12/03, 134-135). Mr. Durham turned his car around to leave, and as he came back around he saw Petitioner walking back towards the parked car. (TT 05/12/03, 135-137). Mr. Durham kept driving, and as he looked toward the parked car he saw Petitioner and the occupant of the car "struggling," with Petitioner remaining outside of the car while the occupant was inside. (TT 05/12/03, 138-139, 142). Mr. Durham drove on because he did not want to be involved and he thought they could take care of it between themselves. (TT 05/12/03, 138-139). Mr. Durham also testified that he never saw a gun on the occupant of the car, nor did he ever see the person leave the vehicle and point a gun at anyone. (TT 05/12/03, 139). Mr. Durham testified that after Petitioner initially spoke with the occupant of the car and then went to his apartment, Petitioner was not in any danger, nor did Mr. Durham feel he himself was in danger because the occupant was not coming at him at all. (TT 05/12/03, 164-165).

Mr. Durham stated that he saw someone get shot, and in his rear view mirror saw his uncle calling him back. When he went back he saw Petitioner take a gun out of his pocket. (TT 05/12/03, 140-141). After the shooting, Mr. Durham and Petitioner went to Petitioner's apartment where Petitioner called 911. (TT 05/12/03, 143).

Candace Carter - Mr. Durham's girlfriend - testified that she was with Mr. Durham and Petitioner when Mr. Durham dropped Petitioner off at his apartment. (TT 05/12/03, 169). When Mr. Durham pulled into the parking lot, Ms. Carter noticed aman in a parked car who was blowing his horn and moving his arms "like he was upset" and trying to get their attention. (TT 05/12/03, 170). Petitioner then exited Mr. Durham's vehicle and went to the parked car and started talking to the man. (TT 05/12/03, 170). The occupant cracked his window, and Petitioner signaled to Mr. Durham that "it was okay, that we can leave," at which point Mr. Durham started to drive off. (TT 05/12/03, 171). Ms. Carter testified she did not see what went on behind them, that she did not look, but that when they pulled back around she saw Petitioner pressed against the parked car as though "he had the guy or the guy grabbed him." (TT 05/12/03, 171-172). She did not see any portion of the occupant's body outside of the car, and as they drove past the car, she heard a gunshot and then Petitioner yelled for them to come back. (TT 05/12/03, 172-173). Petitioner said that he needed a cell phone to call the police because the guy pulled a gun on him and he had to shoot him. (TT 05/12/03, 173). Ms. Carter did not see any guns at that time. (TT 05/12/03, 173). Ms. Carter also testified that she never saw the occupant of the car get out of the car, nor did she see him point a gun at anyone or make any gestures that would lead her to think he had a gun. (TT 05/12/03, 175, 178).

Officer John Wood responded to the shooting. When he spoke with Petitioner, Petitioner stated that he shot the victim, and pointed to two guns sitting on the television. (TT 05/12/03, 188-189). Petitioner told Officer Wood that when his nephew brought him home, he had words with the victim, and that the victim was upset and reached in his coat as if he were going to pull out a gun. At that point, Petitioner ran to his house and got his gun and came back out again and started to tussle with the victim. (TT 05/12/03, 189). Petitioner said he was trying to hold the victim's arm and saw a gun and then he told the victim he had a gun also; when Petitioner could not physically hold the victim's arm anymore, he fired. (TT 05/12/03, 189-190). Petitioner never told Officer Wood that the victim got out of the car or that he got out of the car and pointed a gun at him. Nor did Petitioner ever indicate the victim came to his door. (TT 05/12/03, 190). With respect to the weapons, Petitioner told him the 9mm was his weapon, and that the other gun was the one the victim had, and that Petitioner had taken the gun off the victim and brought it to the house. (TT 05/12/03, 191). The second gun was a 25 caliber semi-automatic, and the gun was missing the push rod and a spring, rendering it incapable of being fired. The gun did not have a magazine or any bullets inside of it. (TT 05/12/03, 194-195). At the conclusion of Officer Woods' testimony, the jury watched a videotape of the conversation that occurred in the squad car between Petitioner and Mr. Durham.

Officer Robert Kotelas testified that when the two guns were tested for fingerprints, no fingerprints were found. (TT 05/13/03, 10-11).

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