Thomas v. Warren, No. CIV. 04-CV-40196-FL.

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtGadola
Citation398 F.Supp.2d 850
PartiesDedrick Lamar THOMAS, Petitioner, v. Millicent WARREN, Respondent.
Decision Date02 November 2005
Docket NumberNo. CIV. 04-CV-40196-FL.
398 F.Supp.2d 850
Dedrick Lamar THOMAS, Petitioner,
v.
Millicent WARREN, Respondent.
No. CIV. 04-CV-40196-FL.
United States District Court, E.D. Michigan, Southern Division.
November 2, 2005.

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Dedrick Thomas, Lapeer, MI, Pro Se.

Brenda E. Turner, Michigan Department of Attorney General, Habeas Corpus Division, Janet Van Cleve, Michigan Department of Attorney General, Lansing, MI, for Millicent Warren, Respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

GADOLA, District Judge.


I. Introduction

Petitioner Dedrick Lamar Thomas, a Michigan prisoner currently confined at the Ryan Correctional Facility in Detroit, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 Petitioner was convicted of two counts of assault with intent to commit murder, assault with intent to do great bodily harm less than murder, and possession of a firearm during the commission of a felony following a jury trial in the Saginaw County Circuit Court in 2000. He was sentenced to concurrent terms of 20 to 40 years imprisonment on the assault with intent to murder convictions, a concurrent term of 7 to 15 years imprisonment on the assault with intent to do great bodily harm convictions, and consecutive terms of two years imprisonment on the firearm convictions.

In his pleadings, Petitioner raises claims concerning the prosecution's failure to disclose witness statements and investigate alibi witnesses, the validity of a photographic array, the admission of a witness's prior statement, a police witness's reference to Petitioner's photograph, and prosecutorial misconduct. For the reasons stated below, the Court denies the petition for writ of habeas corpus.

II. Facts and Procedural History

Petitioner's convictions arise from the drive-by shooting of Todd Jones, Russell McClendon, and McClendon's two-year-old nephew Hulus Givan in Saginaw, Michigan at approximately 2:00 p.m. on March 7, 2000. Todd Jones and Hulus Givan were

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each struck in the hand, but Russell McClendon was not injured.

At trial, Russell McClendon testified that he was sitting outside in front of his home with Todd Jones and Hulus Givan when they observed a gray Trans Am driven by a light-skinned black male with braided hair and no facial hair. The driver fired five or six shots at them. McClendon identified Petitioner as the shooter and testified that he and Petitioner had been "pretty good friends" in school, although they had little contact since that time. McClendon admitted that he did not initially identify Petitioner as the shooter when speaking with the police, but explained that he had feared for his life. McClendon told the police that he thought the shooter's name was "Dee" two days after the shooting and then identified Petitioner in a photographic array.

Todd Jones gave a similar account of the shooting. Jones also identified Petitioner as the shooter and said that he had previously seen Petitioner in the neighborhood. Jones also identified Petitioner as the shooter in a photographic array two days after the shooting. Jones initially testified that he told a police officer at the hospital that "Dee" was the shooter, but then stated that he could not recall giving a name to the police until after the photographic array. Jones further stated that he had talked about the shooting with his friend Brandon, who confirmed that Petitioner was the shooter.

Police Officer Jeffrey Lickly testified that he responded to the scene and spoke with Todd Jones at the hospital. Lickly stated that Todd Jones gave him a description and told him that the shooter was a black male from the Glenwood Market area who went by the street name "Dee."

Frank Gaskew testified that he was near McClendon's house when the shooting occurred. He claimed that he did not see the shooter and did not recall speaking with the police after the incident. Specifically, he did not recall telling the police "off the record" that Jones and Petitioner had a disagreement and that Petitioner was the shooter. Gaskew's taped statement, which did not include this information, was played for the jury, but did not refresh Gaskew's recollection.

Police Officer Charles Coleman testified that he spoke with Frank Gaskew after the shooting and that Gaskew did not want to get involved. Coleman stated that Gaskew told him "off the record" that Petitioner was the shooter and that the shooting arose from a drug dispute. Coleman testified that he and another officer prepared the photographic array used to identify Petitioner. Coleman acknowledged that Petitioner had facial hair when he was arrested.

Janet Pritchett, McClendon's neighbor, testified that she witnessed the shooting. She described the shooter as a young light-skinned black male with a mark on his cheek, long hair pulled back, and no facial hair. The shooter drove with his left hand and shot with his right hand. After the shooting, she called 911 and tended to Hulus Givan. She also did a composite with the police, which she admitted did not look like Petitioner. Nonetheless, she identified Petitioner as the shooter and said that she had "no doubt" that he was the shooter. Pritchett was shown Petitioner's photograph prior to her testimony and questioned about the mark on his cheek. She stated that this did not influence her testimony, however, as she had previously seen Petitioner in the courtroom and immediately recognized him as the person who committed the shooting.

Police Officer Robert Ruth testified that he interviewed Petitioner at the time of his arrest and took a statement, which was

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played for the jury. He contacted Corey Walton the next day and spoke to him by telephone. He did not contact the businesses that Walton and Petitioner claimed they were visiting at the time of the shooting until he received an alibi notice a few days before trial. Ruth admitted showing Janice Pritchett a photograph of Petitioner prior to trial and asking her about the mark on his cheek. He testified that he helped with the composite drawing and with the photographic array. He stated that he used a photograph "from the past" that the police had of Petitioner in assembling the array.

Petitioner presented an alibi defense. Corey Walton testified that he and Petitioner went shopping for car paint and parts on the day of the shooting. Walton picked up Petitioner at 10:30 or 11:00 a.m. and they went to West Michigan Auto Store to purchase car rims. Then they went to McDonald's and purchased food to take with them. They then went to General Top and Trim, the Old Town Collision Shop, and Deluxe. Walton then took Petitioner home so that he could get ready for work. Walton arrived at work shortly before 3:00 p.m. Walton learned about the shooting and Petitioner being a suspect when a man named Rodney Williams came by and showed him a newspaper article. Walton claimed that Officer Ruth called him while Williams was there and that Walton put the detective on hold to converse with Williams.

David Murday, an employee at the West Michigan Auto Repair, testified that he sold some rims to Corey Walton who came in every Thursday to make payments on them. He recalled that Walton first came into the shop in March accompanied by a black male, but he could not identify that person. Jan Kiney from General Top and Trim testified that he could not recall March 7, 2000 and did not remember Walton or Petitioner. Floyd Young of Old Town Collision recognized Walton and his car and recalled that Walton and another black male came into the shop to inquire about a paint job. He thought Petitioner looked familiar. Dan Huyck from Deluxe Auto Parts remembered that Walton and Petitioner had come into the shop to look at paint, but he could not remember the date of their visit.

Petitioner also testified on his own behalf, claiming that he and Corey Walton were shopping for car paint and parts and having lunch at the time of the shooting. He also stated that the photograph of him taken after his arrest showed that he had a moustache, goatee, and sideburns. He denied committing the shooting.

At the close of trial, the jury found Petitioner guilty of two counts of assault with intent to commit murder, assault with intent to do great bodily harm less than murder, and possession of a firearm during the commission of a felony. The trial court subsequently sentenced him to concurrent terms of 20 to 40 years imprisonment on the assault with intent to murder convictions, a concurrent term of 7 to 15 years imprisonment on the assault with intent to do great bodily harm conviction, and a consecutive terms of two years imprisonment on the firearm conviction.

Following sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals raising the same claims contained in the current petition. The Michigan Court of Appeals affirmed Petitioner's convictions in a per curiam decision. People v. Thomas, No. 232285, 2002 WL 31450535 (Mich.App. Nov. 1, 2002) (unpublished). Petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Thomas, 468 Mich. 926, 664 N.W.2d 214 (2003).

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Petitioner thereafter filed the present habeas petition asserting that: (1) the prosecutor denied him due process by failing to disclose police reports of witness interviews and by failing to timely investigate his alibi, (2) the photographic array was unduly suggestive and denied him due process of law and counsel was ineffective for failing to object, (3) he was denied a fair trial by the introduction of a witness's prior statement, (4) he was denied a fair trial by police testimony that his photograph was on file and counsel was ineffective for failing to object, and (5) he was denied a fair trial by the prosecutor's argument that an alibi witness was...

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2 practice notes
  • Brinkley v. Houk, Case No. 4:06CV0110.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • December 5, 2011
    ...plain error standard but are procedurally defaulted because counsel failed to object to the alleged errors at trial.6Thomas v. Warren, 398 F.Supp.2d 850, 861 (E.D.Mich.,2005) (a state court does not fail to sufficiently rely upon a procedural default by ruling on the merits in the alternati......
  • McCalister v. Dormire, No. 4:09CV00264 AGF
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 1, 2012
    ...mug shots did not violate the petitioner's right to due process in light of the overwhelming evidence against him); Thomas v. Warren, 398 F. Supp. 2d 850, 863-64 (E.D. Mich. 2005) (rejecting habeas petitioner's claim that the testimony of a police officer that he used a photo of the petitio......
2 cases
  • Brinkley v. Houk, Case No. 4:06CV0110.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • December 5, 2011
    ...plain error standard but are procedurally defaulted because counsel failed to object to the alleged errors at trial.6Thomas v. Warren, 398 F.Supp.2d 850, 861 (E.D.Mich.,2005) (a state court does not fail to sufficiently rely upon a procedural default by ruling on the merits in the alternati......
  • McCalister v. Dormire, No. 4:09CV00264 AGF
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 1, 2012
    ...mug shots did not violate the petitioner's right to due process in light of the overwhelming evidence against him); Thomas v. Warren, 398 F. Supp. 2d 850, 863-64 (E.D. Mich. 2005) (rejecting habeas petitioner's claim that the testimony of a police officer that he used a photo of the petitio......

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