Robinson v. Howes

Decision Date30 November 2010
Docket NumberCASE NO. 07-15419
CourtU.S. District Court — Eastern District of Michigan

Petitioner Brandon Gregory Robinson has filed an application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The habeas petition challenges Petitioner's state convictions for resisting and obstructing police officers and two firearm offenses. Respondent Carol Howes urges the Court to deny the petition. The Court has determined that the state court's adjudication of Petitioner's claims was objectively reasonable. Accordingly, the habeas petition will be denied.

A. The State Court Proceedings

Petitioner was charged in Wayne County, Michigan with carrying a concealed weapon, resisting and obstructing a police officer, felon in possession of a firearm, and possession of a firearm during the commission of a felony. The charges arose from an incident that occurred in Highland Park, Michigan about 3:15 p.m. on September 28, 2004.

Petitioner waived his right to a jury trial and was tried before Wayne County Circuit Judge Leonard Townsend on February 2, 2005. The parties stipulated at trial that Petitioner was not eligible to carry a firearm on September 28, 2004, because he had previously been convicted of a felony and his rights had not been restored. The only trial witnesses were Wayne County Deputy Sheriffs Michael Kasholo and Phillip Kozlowski, who testified for the prosecution.

Deputy Kasholo testified that he was dispatched to 55 or 56 Elmhurst Street in Highland Park at about 3:15 p.m. on September 28, 2004. The nature of the run was "shots fired from a yellow vehicle." He parked his motorcycle and walked up to a yellow vehicle, which "stood out like a sore thumb" and matched the description sent out over the radio. Petitioner was seated in the vehicle. When he (Kasholo) got within ten feet of the car, Petitioner opened the driver's door, exited the car quickly, and repeatedly screamed, "I've done nothing wrong." Kasholo instructed Petitioner to stay put in the car. At the same time, Kasholo was looking in the car. He saw a handgun and notified the two officers who arrived shortly after him that there was a gun on the seat. By then, Petitioner was outside the car and walking alongside it. Kasholo thought that Petitioner was trying to walk away from him. He tried to close the gap between Petitioner and himself so that Petitioner could not get away before the officers determined what was happening. He approached the car with his weapon drawn due to the nature of the run, but he had put it away by the time Petitioner was outside the car.

Kasholo attempted to put his hand on Petitioner, but Petitioner quickly moved away from him. Deputy Sheriffs Phillip Kozlowski and Daniel Carmona then came to his aid. The two officers tackled Petitioner when he attempted to flee. A wrestling match ensued, but the officers ultimately controlled Petitioner with the help of mace. After Petitioner was handcuffed and placed in a patrol car, Deputy Kasholo obtained the gun from the front seat of Petitioner's vehicle. The gun was fully loaded and ready to fire.

Kasholo subsequently encountered a woman in the vicinity who said that Petitioner had not done anything wrong, and a few people in the area reported that no shots had been fired. The trial court concluded from Kasholo's testimony that the gun had not been fired.

Wayne County Deputy Sheriff Phillip Kozlowski testified that he was dispatched to 55 Elmhurst Street pursuant to a 911 call regarding a possible drive-by shooting. He arrived in a fully marked scout car and observed Deputy Kasholo approaching a yellow vehicle. Petitioner was seated in the driver's seat, and he (Deputy Kozlowski) heard Deputy Kasholo tell Petitioner to stay in the car. Petitioner, however, exited the vehicle and kept saying, "I didn't do anything wrong." Kozlowski then attempted to grab Petitioner by the back of his collar and to turn him around to face his car. As he was doing that, Deputy Kasholo yelled, "Gun." Petitioner then swung around and tried to run toward the street. Kozlowski and his partner, Deputy Dan Carmona, pushed Petitioner to the ground. They struggled for three to five minutes and finally sprayed Petitioner with pepper mace. The struggle continued, and they sprayed Petitioner with mace a second time. He was ultimately subdued, and the weapon was secured.

Deputy Kozlowski stated on cross-examination by defense counsel that his weapon was drawn when he approached the yellow vehicle and that Sergeant Kasholo also had his weapon drawn. He claimed that there were no people on the street at the time, but he heard voices later on during the scuffle.

Petitioner did not testify or present any witnesses. His defense was that someone else placed the gun in his vehicle and then set him up by falsely reporting a shooting. He also maintained there was insufficient evidence that he knew the gun was in the car.

The trial judge found Petitioner guilty of resisting and obstructing a police officer, Mich. Comp. Laws § 750.81d(1), felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. The trial judge sentenced Petitioner to two years in prison for the felony firearm conviction, followed by concurrent sentences of five months to five years for being a felon in possession of a firearm and five months to two years for resisting and obstructing a police officer. The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion, but remanded the case so that the trial court could correct the judgment of sentence to reflect a sentence of five months to two years for felon in possession of a firearm and five months to five years for resisting and obstructing a police officer. See People v. Johnson, 1 No. 268413 (Mich. Ct. App. May 10, 2007) (unpublished). On September 10, 2007, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Johnson, 480 Mich. 860; 737 N.W.2d 697 (2007) (table).

B. The Federal Court Proceedings

Petitioner filed a pro se habeas corpus petition in 2007, alleging four grounds for relief: two Fourth Amendment claims, one ineffective-assistance-of-counsel claim, and one prosecutorial-misconduct claim. Petitioner voluntarily dismissed his prosecutorial- misconduct claim when the State pointed out in a motion to dismiss the petition that Petitioner did not exhaust state remedies for the claim. See Docket Nos. 8-10 and 15, filed on July 3, 14, and 15, 2008, and March 23, 2009. The Court subsequently dismissed Petitioner's two Fourth Amendment claims pursuant to Stone v. Powell, 428 U.S. 465, 482, 96 S. Ct. 3037, 3046, 49 L. Ed. 2d 1067 (1976) (holding that "the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial" if the State provided the petitioner with an opportunity for "full and fair litigation" of the Fourth Amendment claim). See Docket No. 24, filed on March 24, 2010.

On May 11, 2010, the Court held an evidentiary hearing on Petitioner's remaining claim, which alleges ineffective assistance of trial counsel. Petitioner testified at the hearing that, on the day in question, he, his friend Lavelle, and his Uncle Paul were smoking "weed" in his car on Elmhurst Street in Highland Park. When they were finished smoking, Lavelle pulled a gun from his waistline and placed the gun under the front passenger seat of the car. Lavelle explained that he was going to run into the house for a moment and would be right back. Five to seven minutes later, several police cars arrived on the scene. The police officers informed Petitioner that they had received a call about gunshots being fired from a yellow car on that block. One of the officers grabbed him as he exited the vehicle. He resisted the arrest because he did not think he had done anything wrong and he did not know anything about a shooting.

Petitioner testified at the evidentiary hearing that he had told this same story to his trial attorney. He claimed, moreover, that the police lied at trial when they testified that: (1) he jumped out of his car and said, "I didn't do anything wrong;" (2) the gun was in plain view; and (3) bystanders told them after, not before, the arrest that he did not do anything wrong. Petitioner also claimed at the evidentiary hearing that he knew the 911 call was a prank call because the gun did not belong to him and it was proven at trial that the gun had not been fired.

On cross-examination, Petitioner admitted that he had said three times at his sentencing that the gun belonged to him. He explained that his trial attorney had encouraged him to admit to owning the gun in order to get a favorable plea bargain in an unrelated case.

Petitioner's sister, Stacy Robinson, testified at the evidentiary hearing that she was seated on her grandmother's porch about three or four lots down from where Petitioner was parked on September 28, 2004. She saw several police cars drive down the street. The officers jumped out of their cars with guns and started asking people about a shooting. As soon as she heard the police say something about a shooting from a yellow cab, she knew they were referring to her brother because he was the only person in the neighborhood with a yellow taxi cab as a car. She ran to the area and observed the police pull Petitioner out of the car, tackle him to ground, and "mace" him as he said, "I didn't do anything."

Ms. Robinson claimed that there had been other people...

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