Rockwell v. Palmer, No. 1:05-cv-205.

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtRobert J. Jonker
Citation559 F.Supp.2d 817
PartiesTony Thomas ROCKWELL, Petitioner, v. Carmen PALMER, Respondent.
Decision Date31 March 2008
Docket NumberNo. 1:05-cv-205.
559 F.Supp.2d 817
Tony Thomas ROCKWELL, Petitioner,
v.
Carmen PALMER, Respondent.
No. 1:05-cv-205.
United States District Court, W.D. Michigan, Southern Division.
March 31, 2008.

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Tony Thomas Rockwell, Cotton (MSP), Jackson, MI, pro se.

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Jerrold Schrotenboer, Jackson, MI, for Respondent.

OPINION

ROBERT J. JONKER, District Judge.


This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. On April 9, 1997, a jury convicted Petitioner, Tony Thomas Rockwell, of breaking and entering with intent to commit larceny, MICH. COMP. LAWS § 750.10, and resisting and obstructing a police officer, MICH. COMP. LAWS § 750.479(b). On May 15, 1997, the trial court sentenced Petitioner as a fourth habitual offender to prison terms of three to fifteen years for the resisting and obstructing conviction and ten to twenty years for the breaking and entering conviction. Petitioner states his grounds for habeas corpus relief as follows verbatim:1

I. IT WAS AN UNREASONABLE APPLICATION [OF] FEDERAL LAW WHEN THE SUPREME COURT AND THE COURT OF APPEALS DETERMINED IT HARMLESS ERROR WHEN JUDGE GRANT DENIED DEFENSE THEORY; INVADING THE PROVINCE OF THE JURY CONTRARY TO [PETITIONER'S] CONSTITUTIONAL RIGHT TO DUE PROCESS.

II. IT WAS AN UNREASONABLE APPLICATION [OF] FEDERAL LAW WHEN PETITIONER WAS PROSECUTED AND CONVICTED FOR RESISTING AND OBSTRUCTING A POLICE OFFCER'S INVESTIGATION WHERE THERE WAS INSUFFICIENT EVIDENCE CONTRARY TO FEDERAL LAW.

III. IT WAS AN UNREASONABLE APPLICATION [OF] FEDERAL LAW WHEN JUDGE ABUSED HIS DISCRETION BY DENTING PETITIONER THE OPPORTUNITY TO APPEAL AN INTERLOCUTORY ORDER OF A MOTION TO DISQUALIFY JUDGE GRANT WHEN HIS APPEARANCE OF IMPARTIALITY WAS IN QUESTION CONTRARY TO PETITIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS.

IV. IT WAS AN UNREASONABLE APPLICATION [OF] FEDERAL LAW WHEN JUDGE GRANT'S BIAS IMPARTIAL PREDETERMINATION OF [PETITIONER] BEING THE PERPETRATOR OF THE CRIME THREE (3) MONTHS BEFORE HIS JURY TRIAL, CAUSING STRUCTURAL ERROR/DEFECTS NOT SUBJECT TO HARMLESS ERROR CONTRARY TO PETTIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS.

V. IT WAS AN UNREASONABLE APPLICATION [OF] FEDERAL LAW WHEN DEFENSE COUNSEL PERFORMANCE FELL BLOW AN OBJECTIONABLE STANDARD OF EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO [PETITIONER'S] CONSTITUTIONAL RIGHT TO DUE PROCESS.

VI. IT WAS AN UNREASONABLE APPLICATION OF FEDERAL LAW WHEN APPELLATE

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COUNSEL PERFORMANCE FELL BELOW AN OBJECTIONABLE STANDARD OF EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CONTRARY TO [PETITIONER'S] CONSTITUTIONAL RIGHT TO DUE PROCESS.

Respondent has filed an answer to the petition (docket #31), stating that the grounds should be denied because they are either procedurally defaulted or lack merit. Upon review, I find that

Grounds I, II, IV and VI have no merit, Ground III is non-cognizable, and Ground V is procedurally defaulted. Therefore, the petition must be denied.

Procedural History

A. Trial Court Proceedings

The state prosecution arose from the January 26, 1997 breaking and entering of the outdoor storage area of a convenience store and the theft of empty beverage containers. Petitioner was tried before a jury on April 9, 1997, in the Circuit Court for Jackson County on charges of breaking and entering, and resisting and obstructing a police officer.

Officer Adam Williams, of the Jackson City Police Department, testified that on January 26, 1997, at approximately 1:00 a.m., he and Sergeant Dave Kennedy responded to a silent alarm at the Northside Takeout Party Store, located at 1601 Cooper Street^ Jackson, Michigan (Trial Transcript (Tr.) Vol. 5, 134-35, docket # 12.) When the officers arrived, they observed a red Ford Mustang exiting the parking lot. (Tr. 5, 133). There were no other vehicles in the parking lot. (Tr. 5, 134). As the Ford Mustang passed the patrol car, Officer Williams observed two males in the vehicle. (Tr. 5, 147). He also observed a large bag hanging out of the vehicle's trunk. (Tr. 6, 133). Officer Williams activated the overhead lights and the siren and proceeded to follow the Ford Mustang. (Tr. 5, 135, 179). After the Ford Mustang had traveled down several streets, both Petitioner, who was a passenger, and Mark Payne, the driver, jumped from the vehicle and began running in different directions. (Tr. 5, 136). Officer Williams left the police car and pursued the driver of the Ford Mustang. (Tr. 5, 136).

Sergeant Kennedy testified that while Officer William pursued the driver, he chased Petitioner. He identified himself as a police officer and ordered Petitioner to stop. Petitioner continued running. (Tr. 5, 171). Sergeant Kennedy again ordered Petitioner to stop, put his hands up, and lie down on the ground. (Tr. 5, 172). Petitioner complied with the second order. (Tr. 5, 172). Sergeant Kennedy estimated that he chased Petitioner for two to three hundred feet. (Tr. 5, i72). Sergeant Kennedy smelled the odor of alcohol on Petitioner's breath, although Petitioner did not appear to be stumbling or falling down. (Tr. 5, 184). At this point, Officer LaPort arrived on the scene. He placed Petitioner in handcuffs, arrested him, and transported him to the police station. (Tr. 5, 172, 173).

The Ford Mustang was towed to the police station and searched by Officer Williams. (Tr. 5, 137). Officer Williams found a pair of bolt cutters, large bags of empty beverage containers, and a pair of gloves. (Tr. 5, 137). Officer Williams ran the registration on the Ford Mustang and found that it belonged to Petitioner. (Tr. 5, 139).

According to Rhonda Jane Woodruff, a cashier at the Northside Takeout Party Store, there was a storage area at the back of the store that contained two bottle cages enclosed with a chain-link fence. (Tr. 5, 115-16). Each bottle cage and the

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fence were separately chained and padlocked. (Tr. 5, 115-16). Ms. Woodruff was certain that the area was properly secured when she closed the store and left work that evening. (Tr. 5, 124). She was contacted shortly after the silent alarm had sounded. When she arrived at the store, she observed that the chains had been cut, and the bottle cages broken into. (Tr. 5, 115-17, 121).

Officer Richard Cook is an evidence technician for the Jackson City Police Department. (Tr. 5, 187). Officer Cook also responded to the silent alarm, arriving after the suspects had been apprehended. (Tr. 5, 192). He found footprints in the snow both inside and outside the storage area, attributable to boots and tennis shoes. (Tr. 5, 189, 190). He estimated that with the amount of snow that was falling that morning, it would have taken ten to fifteen minutes for footprints to be covered. (Tr. 5, 190). Officer Williams had earlier testified that when Petitioner was apprehended he was wearing a pair of black boots. (Tr. 5, 140). The boots were removed during the booking process, and Officer Williams turned them over to Officer Cook. (Tr. 5, 141). Officer Cook testified that he photographed the entire crime scene, including the footprints, (Tr. 5, 198), which he had sprayed with red silicone to outline the impressions. (Tr.5, 202).2

Officer Williams observed Petitioner during the booking process. When Sergeant Kennedy attempted to fingerprint Petitioner, he refused to stand up or roll his finger correctly. (Tr. 5, 140). Sergeant Kennedy confirmed Officer Williams's observation, testifying that when he attempted to fingerprint Petitioner, Petitioner kept pulling his hand back. (Tr. 5, 175).

Petitioner testified in his own defense. He testified that he spent the day of February 25, 1997, drinking beer, vodka and Kesslers. (Tr. 5, 224). According to Petitioner, he and Mark Payne met at a bar that evening. Later, while both were at Petitioner's home, Payne suddenly grabbed Petitioner's car keys and bolt cutters, and left the house. (Tr. 5, 222). Petitioner put on his coat (Tr.5, 235), and followed Payne outside, where he observed him sitting in the driver's seat of Petitioner's Ford Mustang. Petitioner entered the passenger side of the car because he was not going to let Payne "run off with his car. (Tr. 5, 222). While Payne drove the vehicle to the Northside Party Store, Petitioner nodded off. (Tr. 5, 222). When they arrived at the store, which was closed for the day, Payne pulled Petitioner out of the vehicle and began putting the empty beverage containers into bags. Petitioner merely wandered around the storage area to see what Payne was doing. (Tr. 5, 222-24). Petitioner acknowledged that it was his boot print inside the bottle cage. (Tr. 5, 243). He understood what Payne was doing and made an unsuccessful attempt to stop him. (Tr. 5, 224). After Petitioner and Payne left the scene, Petitioner heard sirens and knew that the police were following them. (Tr. 5, 243). Petitioner became confused and panicky, which is why he followed Payne's directions to jump out of the vehicle and run. (Tr. 5, 223). Petitioner ran from the police officer because "a crime had been committed, and I knew it." (Tr. 5, 245). Petitioner finally complied with Sergeant Kennedy's command to stop because he did not want to get

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shot. (Tr. 5, 223). Petitioner acknowledged that he had been convicted of breaking and entering a motor vehicle in 1987, and breaking and entering a building with the intent to commit a larceny in 1992 (Tr. 5, 245), and that he pleaded guilty to both offenses because, in fact, he was guilty. (Tr. 5, 247). On the occasion leading to his arrest, he had no intentions of doing anything wrong. (Tr. 5, 246-47).

B. Direct Appeal

Petitioner appealed his conviction as of right to the Michigan Court of Appeals, raising the following six grounds for relief: (1) the trial court erred when if failed to instruct the jury on the defense of voluntary intoxication; (2) there was insufficient evidence...

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21 practice notes
  • Holbrook v. Burt, CASE NO. 2:13-CV-11235
    • United States
    • U.S. District Court — Eastern District of Michigan
    • February 27, 2020
    ...in his supplemental brief on appeal undermines assertion of cause and prejudice to excuse procedural default); Rockwell v. Palmer, 559 F. Supp. 2d 817, 834 (W.D. Mich. 2008) (petitioner did not show cause for his failure to raise a defaulted claim on direct appeal where he had filed briefs ......
  • MacLeod v. Braman, Case No. 2:19-cv-12153
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 3, 2020
    ...failure to make a frivolous motion for mistrial does not amount to the ineffective assistance of counsel. E.g., Rockwell v. Palmer, 559 F. Supp. 2d 817, 834 (W.D. Mich. 2008). Petitioner next contends that trial counsel should have moved to sever the felon in possession charge from the othe......
  • Hinton v. Napel, CASE NO. 2:15-CV-10687
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • March 27, 2018
    ...for this additional reason, he fails to establish cause to excuse the procedural default of this claim. See Rockwell v. Palmer, 559 F. Supp. 2d 817, 834 (W.D. Mich. 2008) (petitioner failed to show cause for his failure to raise an ineffective assistance of trial counsel claim on direct app......
  • Bilal v. Rewerts, Case No. 1:19-cv-234
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • May 6, 2019
    ...by counsel."); Clark v. MacLaren, No. 2:10-cv-10748, 2013 WL 147626, at *7 (E.D. Mich. Jan. 14, 2013) (same); Rockwell v. Palmer, 559 F. Supp. 2d 817, 834 (W.D. Mich. 2008) (where petitioner raised additional claims on appeal in two separate briefs, he could not demonstrate cause or prejudi......
  • Request a trial to view additional results
21 cases
  • Hinton v. Napel, CASE NO. 2:15-CV-10687
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • March 27, 2018
    ...for this additional reason, he fails to establish cause to excuse the procedural default of this claim. See Rockwell v. Palmer, 559 F. Supp. 2d 817, 834 (W.D. Mich. 2008) (petitioner failed to show cause for his failure to raise an ineffective assistance of trial counsel claim on direct app......
  • Holbrook v. Burt, CASE NO. 2:13-CV-11235
    • United States
    • U.S. District Court — Eastern District of Michigan
    • February 27, 2020
    ...in his supplemental brief on appeal undermines assertion of cause and prejudice to excuse procedural default); Rockwell v. Palmer, 559 F. Supp. 2d 817, 834 (W.D. Mich. 2008) (petitioner did not show cause for his failure to raise a defaulted claim on direct appeal where he had filed briefs ......
  • MacLeod v. Braman, Case No. 2:19-cv-12153
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 3, 2020
    ...failure to make a frivolous motion for mistrial does not amount to the ineffective assistance of counsel. E.g., Rockwell v. Palmer, 559 F. Supp. 2d 817, 834 (W.D. Mich. 2008). Petitioner next contends that trial counsel should have moved to sever the felon in possession charge from the othe......
  • Bilal v. Rewerts, Case No. 1:19-cv-234
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • May 6, 2019
    ...by counsel."); Clark v. MacLaren, No. 2:10-cv-10748, 2013 WL 147626, at *7 (E.D. Mich. Jan. 14, 2013) (same); Rockwell v. Palmer, 559 F. Supp. 2d 817, 834 (W.D. Mich. 2008) (where petitioner raised additional claims on appeal in two separate briefs, he could not demonstrate cause or pr......
  • Request a trial to view additional results

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