Williams v. Birkett

• Decision Date: 26 February 2010
• Docket Number: Civil No. 2:07-CV-15376.
• Citation: 697 F. Supp.2d 716
• Parties: Murad WILLIAMS, Petitioner, v. Thomas BIRKETT, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

697 F. Supp.2d 716

Murad WILLIAMS, Petitioner, v. Thomas BIRKETT, Respondent.

Civil No. 2:07-CV-15376.

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

February 26, 2010.

Loren E. Khogali, Natasha D. Webster, Federal Defender Office, Detroit, MI, for Petitioner.

Brian O. Neill, Michigan Department of Attorney General, Lansing, MI, for Respondent.

OPINION AND ORDER ADOPTING IN PART AND MODIFYING IN PART THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND UNCONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS

ARTHUR J. TARNOW, District Judge.

Murad Williams, ("petitioner"), has sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed both pro se and by attorneys Natasha Webster and Loren Khogali of the Federal Defenders' Office, petitioner challenges the revocation of his probation for his conviction for unarmed robbery, M.C.L.A. 750.530.

After reviewing the petition for writ of habeas corpus, the respondent's answer, the petitioner's supplemental brief, the respondent's objections to Magistrate Judge R. Steven Whalen's Report and Recommendation ("R & R"), and after taking testimony at the evidentiary hearing and hearing oral arguments, the Court will adopt in part and modify in part the Magistrate Judge's recommendation and will unconditionally grant the petition for writ of habeas corpus, based on the egregious nature and number of the constitutional violations ranging from: no notice of charges, no notice of right to hearing, no hearing, no allowance of Petitioner's right to speak, absence of meaningful counsel and ineffective assistance of counsel.

I. Background

On November 5, 2003, petitioner pleaded guilty to the charge of unarmed robbery before Judge Maggie Drake in the Wayne County Circuit Court. In providing a factual basis for the plea, petitioner informed the court that he "jumped out of a vehicle, walked up to a gentleman, punched him in the stomach, and took $10." (Tr. 11/5/03, p. 26). Petitioner was 18 years old at the time of his plea, and had not finished high school. (Id., p. 28). Petitioner's mother told Judge Drake that petitioner suffered from ADHD (attention deficit hyperactive disorder) and had been placed in special education classes since the first grade. (Id., 29-30).

On March 12, 2004, petitioner appeared for sentencing. Judge Margie Braxton presided at petitioner's sentencing. Petitioner's counsel at the sentencing, Ms. Zena White, informed the court that petitioner was a "special needs individual." (Tr. 3/12/04, pp. 4-5). Judge Braxton told petitioner "I can tell you to your face, I don't like your attitude." (Id., p. 5). Nonetheless, the judge sentenced petitioner to probation under the Holmes Youthful Trainee Act (HYTA)¹, with the condition that he serve 90 to 120 days in a boot camp program. Petitioner's sentencing guidelines were scored at 0-11 months. (Id. at pp. 9-10). The judge warned petitioner's counsel: "If he quits or does not fulfill the requirements of Boot Camp then I am going to send him to prison. He is going anyway with that attitude." (Id. at p. 10).

On May 3, 2004, petitioner was brought back to court based on an apparent violation of the terms of the boot camp program. The proceeding took place in front of Judge Drake. The transcript of the proceeding is captioned "Resentence."

A new attorney, Clifford Woodards, II, was appointed that morning to represent petitioner at this hearing. When Judge Drake asked why the boot camp returned petitioner to the court, petitioner's new counsel stated:

"He violated the terms, Your Honor. For the record, Cliff Woodards for my client, Murad Williams. He violated, what it says, phase one of the program. I think he had a little respect issue, talking back, those types of things. and my client informs me that he failed to pretty much listen to them." (Tr. 5/3/04, p. 3).

After defense counsel argued for mitigation of sentence (Id., pp. 4-5), Judge Drake questioned the Petitioner as follows:

THE COURT: You were given boot camp and placed on HYTA.

DEFENDANT: Yes, ma'am.

THE COURT: And you refused to adhere to the terms and conditions of the HYTA probation and the boot camp, is that it?

DEFENDANT: Yes, ma'am.

THE COURT: What happened there, Mr. Williams? Tell me what happened. What happened when you went to boot camp?

DEFENDANT: Ma'am, I did everything they told me to do, but—

THE COURT: But.

DEFENDANT: Ma'am, but—

THE COURT: I didn't hear you.

DEFENDANT: I guess it was too hard for me, ma'am.

THE COURT: How old are you?

DEFENDANT: Ma'am, 18.

THE COURT: What was too hard for you?

DEFENDANT: (No response).

THE COURT: What was too hard for you?

DEFENDANT: Ma'am, all the cursing and yelling and stuff like that.

THE COURT: Wait a minute, wait a minute, wait, wait. You struck someone in the stomach and took money from them, and you cursed at the time you did it. Do you remember that?

DEFENDANT: Yes, ma'am.

THE COURT: So what was so different at boot camp? You don't like—you can dish it out, but you can't take it, is that it?

DEFENDANT: Yes, ma'am.

THE COURT: It was too hard for you to do physical exercise. You know, you are a big, tall, strong man, but you can't do that.

DEFENDANT: No, ma'am. Ma'am, I did all the exercises, ma'am.

THE COURT: What didn't you do?

DEFENDANT: Ma'am, listen, ma'am.

THE COURT: You didn't listen, ma'am.

DEFENDANT: Yes, ma'am.

THE COURT: Do you have a hearing problem?

DEFENDANT: No, ma'am. (Id., pp. 7-9).

Petitioner's family members and members of his church spoke on his behalf, offering counseling and employment if he were continued on probation. (Id., pp. 9-17). The judge, however, rejected their pleas, stating that petitioner "failed to comply with the terms and conditions of probation," and that petitioner "violated his conditions of boot camp and was returned to this Court for sentence." Judge Drake imposed a sentence of 1 to 15 years. (Id., p. 18).

Petitioner requested the appointment of appellate counsel on September 1, 2005. On November 28, 2005, petitioner's appellate counsel filed a motion for relief from judgment pursuant to M.C.R. 6.500, et. seq. A hearing was conducted on the post-conviction motion on January 23, 2006. At this hearing, Judge Drake mentioned, for the first time, that probation had been revoked because petitioner "got involved in threatening workers at the boot camp" or "got involved in some type of altercation at the boot camp." (Tr. 1/23/06, pp. 6, 8). The judge also explained that since petitioner had been given warnings at the original sentencing, he was not entitled to a subsequent probation violation hearing. (Id., pp. 8-9). The trial court denied the motion. People v. Williams, No. 03-11896 (Third Circuit Court, January 23, 2006). The Michigan appellate courts denied petitioner leave to appeal. People v. Williams, No. 268119 (Mich.Ct.App. August 2, 2006); lv. den. 477 Mich. 968, 724 N.W.2d 468 (2006) (Kelly, J. would remand for resentencing).²

Petitioner subsequently filed a petition for writ of habeas corpus on the following grounds:

I. PETITIONER'S MINIMUM DUE PROCESS RIGHTS WERE VIOLATED WHEN HE WAS BROUGHT BACK FROM BOOT CAMP AFTER AN ALLEGATION THAT HE VIOLATED THE CONDITIONS OF BOOT CAMP AND WAS RE-SENTENCED TO PRISON, WITHOUT BEING GIVEN WRITTEN NOTICE OF THE ALLEGATIONS, AND WITHOUT BEING INFORMED BY THE COURT OF HIS RIGHT TO A PROBATION VIOLATION HEARING, AND RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES AGAINST HIM.

II. PETITIONER'S SIXTH AND FOURTEENTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED BECAUSE COUNSEL DID NOT INFORM DEFENDANT OF HIS RIGHT TO A VIOLATION HEARING AND RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES.

Respondent filed a motion to dismiss the petition on the ground that the application for writ of habeas corpus was barred by the statute of limitations found in 28 U.S.C. § 2244(d)(1). Respondent did not address the merits of the petition in the motion to dismiss, nor did respondent contend in his initial motion to dismiss that any of petitioner's claims were procedurally defaulted. On August 28, 2008, this Court denied the motion to dismiss, finding that the petition had been timely filed. The Court also ordered respondent to file an answer to the petition. On September 29, 2008, respondent filed an answer to the petition. On December 30, 2008, this Court referred this case to Magistrate Judge R. Steven Whalen for a report and recommendation.

On August 25, 2009, Magistrate Judge Whalen issued a Report and Recommendation (R & R) that the petition for writ of habeas corpus should be granted. See Williams v. Birkett, 2009 WL 2923058 (E.D.Mich. August 25, 2009). After the respondent filed objections to the R & R, this Court adopted in part the report and recommendation and ordered an evidentiary hearing. The Court also appointed counsel to represent petitioner. Williams v. Birkett, 2009 WL 2923053 (E.D.Mich. September 10, 2009).

An evidentiary hearing was conducted before this Court on February 2, 2010. Petitioner testified that on the day of the probation revocation hearing, counsel met with him for about "fifteen seconds" in the bullpen or lock-up area behind the courtroom. Although petitioner knew that he had been brought back to court for violating boot camp rules, petitioner testified that he was never advised of the charges against him. Petitioner indicated that counsel never showed him any legal documents or papers, nor did counsel advise him of his right to a probation revocation hearing. Petitioner testified that he did not know that he had a right to a probation revocation hearing. Petitioner stated that he would have requested a probation revocation hearing had he known that he had this right. Petitioner claimed that he believed he was simply being brought back to court to be sent to prison.

Clifford Woodards, II, petitioner's counsel at the probation revocation hearing, also testified. Counsel admitted that his only contact with petitioner in this...