Span v. Bell

• Decision Date: 12 December 2012
• Docket Number: CASE NO. 2:10-13835
• Parties: DEWAYNE SPAN, Petitioner, v. THOMAS BELL, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

DEWAYNE SPAN, Petitioner,

v.THOMAS BELL, Respondent.

CASE NO. 2:10-13835

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date: December 12, 2012

HONORABLE PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT OF HABEAS

CORPUS: (2) A CERTIFICATE OF APPEALABILITY, AND (3) LEAVE TO APPEAL

IN FORMA PAUPERIS

Dewayne Span, ("petitioner"), presently incarcerated at the Saginaw Correctional Facility in Freeland, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for second-degree murder, M.CL.A. 750.317; felon in possession of a firearm, M.C.L.A. 750.224f; and possession of a firearm in the commission of a felony, M.C.L.A. 750.227b. For the reasons stated below, the application for a writ of habeas corpus is DENIED WITH PREJUDICE.

I. BACKGROUND

Petitioner was convicted of the above offenses following a jury trial in the Wayne County Circuit Court.

This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming his conviction, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6thCir. 2009):

Defendant's convictions arise from evidence that he shot and killed Tywan Lawrence outside a bar on November 11,2004. The victim's brother testified that he and the victim were friends of defendant, who used the nickname "P-Dub." Domonique Washington, the mother of the victim's daughter, identified defendant as the shooter. Washington testified that she did not then know defendant's name, but knew that he used something like "Dub" as a nickname and recognized him from their prior encounters when she was with the victim. Washington met the victim at a bar at about 11:30 p.m. on November 11,2004. After the victim left to meet someone else, defendant made a crude remark to Washington and pressed his body against her. When the victim rejoined Washington, he asked Washington if someone said something disrespectful to her. Washington did not tell the victim what defendant had done. Later, as the victim and Washington were leaving the bar, the victim argued with defendant. After the argument ended, the victim and Washington walked across the street toward the victim's car. Defendant appeared and pushed the victim from behind. They argued until Washington pulled the victim back in the direction of the bar. While Washington was trying to phone her cousin, the victim started walking back toward his car. Defendant appeared and struck the victim on the head with what appeared to be the butt of a gun. Defendant then shot the victim twice while the victim was lying on his back. Another prosecution witness, Tyree McAfee, indicated that he did not want to testify, but stated that he witnessed the incident in which the victim, whom he considered a brother, was shot. McAfee testified that he had known of defendant, in passing, for about ten years and that the person with the gun looked like defendant. Although he identified defendant in a photographic lineup, McAfee testified that he could be wrong. McAfee said something like, "he looked like that guy right there" when identifying defendant's photograph.

Detroit Police Lieutenant Christopher Vintevoghel disputed McAfee's claim that he only made a qualified identification of defendant's photograph. Lieutenant Vintevoghel testified that McAfee did not hesitate to identify defendant's photograph, but was reluctant to become involved in the matter. According to Lieutenant Vintevoghel, McAfee indicated that "everybody knew each other in this instance" when making his identification. The police did not find the weapon used in the shooting, but retrieved five .45 caliber shell casings from the scene of the shooting and all were fired from the same weapon.

Defendant presented an alibi defense supported by the testimony of his girlfriend, Kenya Carter, who claimed that defendant was at home with her and their children at the time of the shooting. Defendant also presented evidence that Washington did not witness the shooting. Branden Smith, who considered himself to be a friend of both the victim and defendant, testified that he was at the bar on the night of theshooting. He did not see defendant, but observed that the victim had a .45 caliber handgun, which was later possessed by a friend of the victim known to Smith as "Skip." Smith also saw Washington. He testified that Washington was inside the bar at the time that gunshots were fired. Another defense witness, Ramone Griffin, testified that Washington told her in a phone conversation after the shooting that she did not know who shot her baby's father. In rebuttal, Washington testified that she did not know Griffin or tell anyone that she did not know who killed the victim.

People v. Span, No. 264030, * 1-2 (Mich.Ct.App. January 4, 2007).

Petitioner's conviction was affirmed on appeal. Id.; lv. den. 478 Mich. 926, 732 N.W.2d 889 (2007).

Petitioner then filed a post-conviction motion for relief from judgment with the trial court, which was denied by the trial court. People v. Span, No. 05-000510-01-FC (Wayne County Circuit Court, September 17, 2008); reconsideration den. December 11, 2008. The Michigan appellate courts denied petitioner leave to appeal. People v. Span, No. 294191 (Mich.Ct.App. December 17, 2009); lv. den. 488 Mich. 852, 787N.W.2d 500 (2010). ¹

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

I. The trial court denied petitioner any semblance of a fair trial by constantly berating defense counsel in front of the jury, and by perpetually interfering with the defense's examination of witnesses. US Const Ams V, VI, XIV; Mich Const 1963, Art I, Sec 17.

II. The trial judge pierced the veil of impartiality by constantly berating defense counsel in front of the jury throughout the entire trial.

III. The trial court violated petitioner's Confrontation Clause rights by refusing to permit re-cross of the res gestae witness and the need to rebut the prosecutor's hearsay objection.

IV. The prosecutor denied petitioner a fair trial by disparaging petitioner, the defense, and petitioner's attorney, accusing him of deliberatively deceiving the jury. US Const Am V, VI, XIV. Mich Const 1963, Art 1, Sec 17.

V. Petitioner was denied due process, equal protection, and his right to a fair trial by the denial of funds to hire an identification expert. US Const Am VI, XIV. Mich Const 1963, Art l,Sec 17.

VI. The police and prosecutor failed to disclose exculpatory evidence which denied [Petitioner] due process of law and a fair trial; this exculpatory evidence obtained after [Petitioner's] conviction mandates a new trial and/or a remand for a Brady hearing. US Const Ams VI; XIV; 1963 Const Art 1, Sec 17, 20.

VII. Petitioner was denied his state and federal due process rights where his conviction was obtained on false and misleading sworn testimony elicited by the People. US Const Ams VI; XIV; 1963 Const Art 1, Sec 17, 20.

VIII. [Petitioner] was denied his constitutional right to effective assistance of counsel at trial and appellate counsel did not raise this meritorious issue in his appeal of right. US Const Am VI, Const 1963 Art 1, Sec 20. Therefore, he is entitled to a hearing pursuant to People v.Ginlher, 390 Mich 436; 202 NW2d 922 (1973) and or a new trial.

A. [Petitioner] was denied his right to the effective assistance of counsel where defense counsel failed to seek assistance in the production of res gestae witnesses who had exculpatory evidence and would have discredited the People's eyewitness Dominique Washington.

B. Trial counsel's failure to thoroughly cross-examine the critical prosecution witnesses at trial constitutes ineffective assistance of counsel under the Sixth Amendment and this omission was so substantial that it could have changed the outcome of the trial.

C. Defense counsel's failure to properly impeach eyewitness Dominique Washington with phone records that were available constitutes ineffective assistance of counsel.

IX. [Petitioner] was denied his equal protection rights and his right to an impartial jury when the prosecutor used peremptory challenges to strike five African-American jurors from the jury panel. US Const Ams VI; XIV; 1963 Const Art 1, Sec 17, 20.

X. The trial court's failure to ascertain on the record whether [Petitioner] intelligently and knowingly waived his absolute right to testify requires a new trial.

XI. The cumulative effect of the foregoing errors denied [Petitioner] a fair trial in violation of due process of law and requires reversal.

XII. [Petitioner] is entitled to relief from judgment where he is actually innocent of the murder charge and his appellate counsel denied him of his right to effective assistance of counsel in violation of both federal and state constitutions. US Const Ams VI, XIV; 1963 Const Art 1, Sec 20.²

II. STANDARD OF REVIEW

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...