Ware v. Harry, Case No. 06-CV-10553-DT.

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtRobert H. Cleland
Citation636 F.Supp.2d 574
PartiesCalvin Dwight WARE, Petitioner, v. Shirlee A. HARRY, Respondent.<SMALL><SUP>1</SUP></SMALL>
Docket NumberCase No. 06-CV-10553-DT.
Decision Date21 April 2008
636 F.Supp.2d 574
Calvin Dwight WARE, Petitioner,
v.
Shirlee A. HARRY, Respondent.1
Case No. 06-CV-10553-DT.
United States District Court, E.D. Michigan, Southern Division.
April 21, 2008.

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Calvin Dwight Ware, Muskegon, MI, pro se.

OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING IN PART THE PETITION FOR HABEAS CORPUS AND REFERRING THE MATTER FOR AN EVIDENTIARY HEARING

ROBERT H. CLELAND, District Judge.


Pending before the court is Petitioner Calvin Dwight Ware's petition for writ of habeas corpus under 28 U.S.C. § 2254. This matter was referred to United States Magistrate Judge Paul J. Komives pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1. In his Report and Recommendation ("R & R"), the magistrate judge recommended that this court should (1) conduct an evidentiary hearing with respect to Petitioner's claim that counsel was ineffective for failing to investigate and present the testimony of Ezell Robinson and (2) deny the petition in all other respects. No objections have been filed pursuant

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to 28 U.S.C. § 636(b)(1)(C); thus further appeal rights are waived.1

Having reviewed the file and the R & R, the court concludes that the findings and conclusions of the magistrate judge are correct and adopts the same for purposes of this order. Accordingly,

IT IS ORDERED that the December 14, 2007 R & R [Dkt. #22] is ADOPTED IN FULL AND INCORPORATED BY REFERENCE.

IT IS FURTHER ORDERED that the petition for writ of habeas corpus [Dkt. # 1] is DENIED IN PART. Specifically, the petition is denied as to Petitioner's confrontation claim, jury instruction claim and sufficiency of the evidence claim.

IT IS FURTHER ORDERED that, for the reasons set forth in the R & R, this matter is referred to Magistrate Judge Paul J. Komives to appoint counsel for the petitioner and conduct an evidentiary hearing regarding Petitioner's remaining claim of ineffective assistance of counsel.

---------------

Notes:

1. The failure to object to the magistrate judge's report releases the court from its duty to independently review the motion. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

1. By Order entered this date, Shirlee A. Harry has been substituted for Kenneth Romanowski as the proper respondent in this action.

---------------

REPORT AND RECOMMENDATION

PAUL J. KOMIVES, United States Magistrate Judge.

 Table of Contents
                 I. RECOMMENDATION.....................................................578
                 II. REPORT.............................................................578
                 A. Procedural History..............................................578
                 B. Factual Background Underlying Petitioner's Conviction...........579
                 C. Standard of Review..............................................581
                 D. Confrontation (Claim I).........................................583
                 1. Clearly Established Law......................................583
                 2. Analysis.....................................................585
                 E. Jury Instruction Claim (Claim II)...............................587
                 1. Clearly Established Law......................................587
                 2. Analysis.....................................................587
                 F. Ineffective Assistance of Counsel...............................588
                 1. Clearly Established Law......................................588
                 2. Analysis.....................................................589
                 G. Sufficiency of the Evidence (Claim IV)..........................594
                 1. Clearly Established Law......................................594
                 2. Analysis.....................................................596
                 H. Conclusion......................................................597
                 III. NOTICE TO PARTIES REGARDING OBJECTIONS.............................597
                

I. RECOMMENDATION:

With respect to petitioner's claim that counsel was ineffective for failing to investigate and present the testimony of Ezell Robinson, the Court should conduct an evidentiary hearing to determine whether (a) petitioner's counsel rendered deficient performance with respect to Robinson's testimony, and (b) petitioner was prejudiced by the absence of Robinson's testimony. The Court should deny petitioner's application for the writ of habeas corpus in all other respects.

II. REPORT:

A. Procedural History

1. Petitioner Calvin Dwight Ware is a state prisoner, currently confined at the

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Muskegon Correctional Facility in Muskegon, Michigan.

2. On August 7, 2003, petitioner was convicted of first degree premeditated murder, MICH. COMP. LAWS § 750.316(1)(a), following a jury trial in the Wayne County Circuit Court. On September 8, 2003, he was sentenced to a mandatory term of life imprisonment without possibility of parole.

3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through counsel, the following claims:

I. DEFENDANT-APPELLANT IS ENTITLED TO A NEW TRIAL WHERE THE TRIAL COURT ABUSED ITS DISCRETION IN ADMISSION OF THE UNSIGNED, UNSWORN STATEMENT OF A NON-TESTIFYING WITNESS, VIOLATING HIS CONSTITUTIONAL RIGHT OF CONFRONTATION.

II. DEFENDANT-APPELLANT IS ENTITLED TO A NEW TRIAL WHERE THE TRIAL COURT REFUSED TO GIVE THE REQUESTED JURY INSTRUCTION.

Petitioner raised two additional claims in a pro se supplemental brief:

III. DEFENDANT-APPELLANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL, DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL.

IV. THE PROSECUTOR FAILED TO PROVIDE SUFFICIENT EVIDENCE TO SUSTAIN A JURY VERDICT OF GUILTY OF FIRST DEGREE PREMEDITATED MURDER, M.C.L.A. 750.316(A).

The court of appeals found no merit to petitioner's claims, and affirmed his conviction and sentence. See People v. Ware, No. 251048, 2005 WL 563216 (Mich.Ct. App. Mar. 10, 2005) (per curiam).

4. Petitioner, proceeding pro se, sought leave to appeal these four issues to the Michigan Supreme Court. The Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Ware, 474 Mich. 873, 703 N.W.2d 816 (2005).

5. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus on February 9, 2006. As grounds for the writ of habeas corpus, he raises the four claims that he raised in the state courts.

6. Respondent filed her answer on September 5, 2006. She contends that petitioner's claims are without merit.

7. Petitioner filed a reply to respondent's answer on October 11, 2006.

B. Factual Background Underlying Petitioner's Conviction

Petitioner was convicted of murder in connection with the killing of Leroy Rankins. As noted by the Michigan Court of Appeals, the primary evidence against petitioner consisted of his own statement to the police and statements given to the policy by a witness, Constance Harrell. See Ware, 2005 WL 563216, at *1, slip op. at 1. As accurately set forth in more detail in respondent's brief, the following evidence was adduced at trial:

Lanze Newman, a Detroit police officer assigned to the homicide section advised Petitioner of his constitutional rights and took a statement from him. 8/6, pp. 46-50. Petitioner said Tommy Reese told him to go to the house on Melrose and check on Leroy Rankins (a.k.a. "Reno") who was short on the money he owed to Reese: "he told me to kick his ass, and if you know Tommy, you either do it or you're next." 8/6, pp

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52. Petitioner went to the house and asked Rankins to see the bags of crack; Petitioner determined Rankins was $250.00 short. Petitioner told Rankins that was "bullshit." Rankins put the bags in his pocket and stood up. That's when Petitioner "fired" on him.[2] Rankins staggered to the couch but did not fall. He had a knife in his hand and put it up in the air to stab Petitioner. Petitioner saw the stick, grabbed it and hit Rankins on the head. He saw Rankins fall to the floor. Petitioner threw the stick to Ezell Robinson, Jr. (a.k.a."Man"). 8/6, pp 52-53. Petitioner stated he hit Rankins one time and he wasn't trying to kill him. He stated he left and did not go back for two days. Petitioner said Reese's wife told him Rankins was dead; he denied knowing what had happened to the body. 8/6, p 54.

Petitioner said he had given $2,000.00 worth of crack to his cousin to sell; his cousin left town and Petitioner had not seen him since then. Petitioner owed Reese the money. After the killing, Reese told Petitioner not to stop "coming around." Petitioner feared Reese might "set him up." Petitioner told his girlfriend that if anything ever happened to him, Reese would be responsible. Petitioner feared that because he owed Reese money and Reese did not know him well—he might believe Petitioner would tell about his dope game—Reese might kill him. 8/6, pp 53, 55-56.

Outside the presence of the jury, the trial court heard testimony from Kurtiss Staples and James Fisher to determine whether the prosecutor would be permitted to introduce the statement of Constance Harell as an exception to the hearsay rule, M.R.E. 804(b)(6).

Kurtiss Staples, the officer in charge of the case, testified that he had spoken to Constance Harell in February after the first preliminary examination. Harell told him she did not appear for the exam because she did not have a ride to court, but also because she was afraid for her safety and that of her family. 8/6, pp 65-70. Harell kept in touch with Staples; she called him once a month and she continued to tell him how afraid she was to testify. Staples knew Harell lived in Port Huron, but the police there were not successful in contacting her. Staples spoke to Harell on July 27th, and she said she did not want to testify because she was afraid for her safety. After a twenty minute conversation, she agreed to come in, but she did not. Attempting to locate Harell, Staples did a LEIN check, called the local hospitals, jails and the morgue, but did not find her. He also checked the neighborhood where the...

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  • Parker v. Booker, Case Number 2:08-CV-13824
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 30, 2011
    ...Therefore, Petitioner is barred by § 2254(e)(2) from obtaining an evidentiary hearing in federal court. c.f. Ware v. Harry, 636 F. Supp. 2d 574, 593 (E.D. Mich. 2008) (finding the petitioner was entitled to evidentiary hearing where he filed motion to remand in Michigan Court of Appeals and......
  • Charleston v. Woods, Case No. 4:16-12696
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • January 9, 2018
    ...within 84 days of the filing of the brief by the appellant's counsel, and may be filed with accompanying motions." Ware v. Harry, 636 F. Supp. 2d 574, 594, n.6 (E.D. Mich. 2008). 4. Petitioner's mother Linda Moore did testify at the motion to suppress hearing, but only testified concer......
  • Christian v. Romanowski, Case No. 2:15-cv-12846
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • February 14, 2017
    ...within 84 days of the filing of the brief by the appellant's counsel, and may be filed with accompanying motions." Ware v. Harry, 636 F. Supp. 2d 574, 594, n.6 (E.D. Mich. 2008). 3. Petitioner merely mentions that Vaughn's "testimony about Solomon striking her would have helped to......
  • Schneider v. Booker, CASE NO. 2:10-CV-15017
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • July 10, 2012
    ...act of striking the victim in the head with a heavy object with sufficient force that caused the victim's death. See Ware v. Harry, 636 F. Supp. 2d 574, 596 (E.D. Mich. 2008). There was also evidence that petitioner may have strangled the victim. Manual strangulation can be evidence that a ......
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48 cases
  • Parker v. Booker, Case Number 2:08-CV-13824
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • November 30, 2011
    ...Therefore, Petitioner is barred by § 2254(e)(2) from obtaining an evidentiary hearing in federal court. c.f. Ware v. Harry, 636 F. Supp. 2d 574, 593 (E.D. Mich. 2008) (finding the petitioner was entitled to evidentiary hearing where he filed motion to remand in Michigan Court of Appeals and......
  • Charleston v. Woods, Case No. 4:16-12696
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • January 9, 2018
    ...within 84 days of the filing of the brief by the appellant's counsel, and may be filed with accompanying motions." Ware v. Harry, 636 F. Supp. 2d 574, 594, n.6 (E.D. Mich. 2008). 4. Petitioner's mother Linda Moore did testify at the motion to suppress hearing, but only testified concerning ......
  • Christian v. Romanowski, Case No. 2:15-cv-12846
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • February 14, 2017
    ...within 84 days of the filing of the brief by the appellant's counsel, and may be filed with accompanying motions." Ware v. Harry, 636 F. Supp. 2d 574, 594, n.6 (E.D. Mich. 2008). 3. Petitioner merely mentions that Vaughn's "testimony about Solomon striking her would have helped to impeach S......
  • Schneider v. Booker, CASE NO. 2:10-CV-15017
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • July 10, 2012
    ...act of striking the victim in the head with a heavy object with sufficient force that caused the victim's death. See Ware v. Harry, 636 F. Supp. 2d 574, 596 (E.D. Mich. 2008). There was also evidence that petitioner may have strangled the victim. Manual strangulation can be evidence that a ......
  • Request a trial to view additional results

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