Weiner v. Bock

• Decision Date: 29 August 2005
• Docket Number: No. 00-10002-BC.,00-10002-BC.
• Parties: Keith Davis WEINER, Petitioner, v. Barbara N. BOCK, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

387 F.Supp.2d 717

Keith Davis WEINER, Petitioner, v. Barbara N. BOCK, Respondent.

No. 00-10002-BC.

United States District Court, E.D. Michigan, Northern Division.

August 29, 2005.

Russell L. Rhynard, Rhynard & Farshidmehr, Alpena, MI, Dorean M. Koenig, Thomas M. Cooley Law School, Lansing, MI, for Petitioner.

Janet Van Cleve, Michigan Department of Attorney, General Habeas Corpus Division, Lansing, MI, for Respondent.

ORDER ADOPTING IN PART REPORT OF THE MAGISTRATE JUDGE AND DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS

LAWSON, District Judge.

The petitioner, Keith Davis Weiner, a state inmate currently incarcerated at the Saginaw Correctional Facility in Freeland, Michigan, has filed through counsel a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is in custody in violation of his federal constitutional rights. Weiner was the "wheel man" in an armed robbery that went awry and resulted in the shooting death of the intended robbery victim, Ernest Wallace, who was known, ironically, as "Lucky." Weiner was convicted of first-degree felony murder in 1977 by a Detroit, Michigan Recorders Court jury and sentenced to life in prison. Before trial, Weiner made a statement to police in which he acknowledged his participation in the robbery plan and denied that he intended the victim to be killed or harmed, confirmed that he did not go to the victim's store but rather waited in the getaway van, and asserted that he never touched a firearm during the transaction. All of these assertions were borne out by corroborating evidence. The statement was received in evidence at trial.

The petitioner raised claims in his habeas petition relating to the constitutional invalidity of his confession to the police, the sufficiency of evidence, jury instructions, production of a witness, ineffective assistance of trial and appellate counsel, and the cumulative effect of these alleged constitutional errors. The State challenged the petition as untimely but failed to address the merits of the petition. The Court denied the respondent's motion to dismiss on statute of limitations grounds and found that the respondent forfeited her right to contest the merits, since she failed to comply with Rule 5 of the Rules Governing Section 2255 Cases in the Federal Courts (requiring that "[t]he answer shall respond to the allegations of the petition") and a previous order to answer the petition. Thereafter, the Court referred the case to Magistrate Judge Charles E. Binder for an evidentiary hearing, recommendation, and report. Magistrate Judge Binder completed the hearing, and after the parties filed post-hearing briefs he filed a sixty-nine-page, comprehensive report in which he recommended that the petition be denied. The petitioner's counsel filed timely objections to the report, to which the respondent did not respond, and the matter is now before the Court for a de novo review.

I.

The magistrate judge provided a review of the procedural and substantive facts of the case in his report. Neither party objects to the material facts, and the Court adopts that summary here. This case was tried in 1977 when Michigan's law of felony murder provided that any

murder which was committed during the course of certain enumerated felonies, including robbery, was first-degree murder. Under the felony-murder doctrine in place at the time of petitioner's trial, all parties to an agreement to commit one of the felonies enumerated in the murder statute were liable for a murder committed in furtherance of that planned felony, even though a homicide was not planned.

Harris v. Stovall, 22 F.Supp.2d 659, 666 (E.D.Mich.1998) (citing People v. Smith, 33 Mich.App. 336, 189 N.W.2d 833 (1971); People v. Goree, 30 Mich.App. 490, 186 N.W.2d 872 (1971)). That rule changed with the watershed case of People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980), which was decided while the petitioner's case was pending on direct appeal. In Aaron, the Michigan Supreme Court settled a long-brewing controversy over the elements of first-degree felony murder as that crime was defined theretofore in Michigan jurisprudence, and held that participation in a felony alone will not establish culpability for a murder committed during that felony; rather the State must also prove that the participant acted with "malice," that is, the actual intent to kill or cause great bodily harm, or engaging in dangerous conduct that naturally could cause death or serious injury. However, the state supreme court declared that the new rule announced in that case would be prospective only, and therefore the petitioner did not have the benefit of that change in the law. In fact, the state court of appeals had reversed Weiner's conviction on the basis of jury instructions on the elements of the crime, and the supreme court, after holding the appeal in abeyance pending the decision in Aaron, reversed in turn and reinstated the conviction subject to the petitioner's other arguments on direct appeal.

A.

That procedural history sets the stage for the petitioner's first objection: that the magistrate judge improperly considered whether the rule in Aaron was retroactive, an issue that was not raised by the respondent, who had forfeited her right to address the merits of the petition. The petitioner insists that the nonretroactivity of that state court decision is an affirmative defense that must be raised or else it is waived. He cites in support of his contention Schiro v. Farley, 510 U.S. 222, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994), in which the Supreme Court declined to entertain the State's argument in a habeas proceeding based on the principle that the Court will not announce or apply a new rule of constitutional law in cases on collateral review. The Court held: "Since a State can waive the [nonretroactivity] bar by not raising it ... and since the propriety of reaching the merits of a dispute is an important consideration in deciding whether or not to grant certiorari, the State's omission of any [nonretroactivity] defense at the petition stage is significant. Although we undoubtedly have the discretion to reach the State's [nonretroactivity] argument, we will not do so in these circumstances." Id. at 788-89 (citations omitted).

The reference to the nonretroactivity defense, however, pertained to the rule announced in Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). "Under Teague, new rules [of constitutional law] will not be applied or announced in cases on collateral review unless they fall into one of two exceptions." Penry v. Lynaugh, 492 U.S. 302, 313, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The rationale for that rule is found in the nature of habeas corpus itself. Justice O'Connor explained:

"Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed."

Teague, 489 U.S. at 306, 109 S.Ct. 1060 (quoting Mackey v. United States, 401 U.S. 667, 682-83, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring and dissenting)). The Teague Court then adopted "two exceptions to [Justice Harlan's] general rule of nonretroactivity for cases on collateral review. First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.... Second, a new rule should be applied retroactively if it requires the observance of those procedures that ... are implicit in the concept of ordered liberty." Id. at 307, 109 S.Ct. 1060 (internal quotes and citations omitted).

None of these concerns affect the question of Aaron's nonretroactivity discussed by the magistrate judge. The reason he considered the issue at all was to determine whether the State presented sufficient evidence to support the petitioner's conviction. He applied the familiar standard: "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." R & R at 48 (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Of course, to make that assessment, and to evaluate the petitioner's other claims challenging the jury instructions, the magistrate judge had to determine exactly the elements of first-degree felony murder under Michigan law at the time of the petitioner's trial in 1977. That is where consideration of People v. Aaron became critical, since it was a relevant pronouncement on the State's substantive criminal law that applied in the petitioner's case. The question of its retroactivity vel non had nothing to do with federal constitutional law to be applied on collateral review, and therefore its nonretroactivity was not an affirmative defense that had to be raised by the respondent.

The crux of the petitioner's claims based on sufficiency of evidence, the adequacy of the main jury instructions, and the confusing nature of the supplemental jury instructions, as those arguments have coalesced in the objections to the magistrate judge's report, is whether Michigan allowed conviction of first-degree felony murder based only on proof that a person participated in the commission (or attempted commission) of one of the enumerated felonies in which...