Winters v. Rivard

• Decision Date: 24 March 2014
• Docket Number: CASE NO. 2:12-CV-10714
• Parties: MARK ANTHONY WINTERS, Petitioner, v. STEVEN RIVARD, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

MARK ANTHONY WINTERS, Petitioner, v. STEVEN RIVARD, Respondent.

CASE NO. 2:12-CV-10714

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: March 24, 2014

HONORABLE LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO

APPEAL IN FORMA PAUPERIS

Mark Anthony Winters, ("Petitioner"), confined at the Kinross Correctional Facility in Kincheloe, 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 first-degree home invasion, M.C.L.A. 750.110a(2); attempted murder, M.C.L.A. 750.91; four counts of kidnapping, M.C.L.A. 750.349; two counts of felonious assault, M.C.L.A. 750.82; carrying a weapon with unlawful intent, M.C.L.A. 750.226; felon in possession of a firearm, M.C.L.A. 750.224; felony firearm, M.C.L.A. 750.227b; and being a third felony habitual offender, M.C.L.A. 769.11. For the reasons stated below, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner had been in a relationship with Stephanie Jones, one of the victims. (Tr. 9/23/08, pp. 8-9). Over the course of the relationship, petitioner became violent. (Id., p. 10). In May of 2007, Stephanie moved into an apartment with her daughter, Janae, and Janae's friend, Ashley Brown, in order to get away from petitioner. Stephanie asked her landlord not to tell anyone about her address.No one but Janae and Ashley had permission to live there. (Id., pp. 11-14). Petitioner discovered that Stephanie moved in with her daughter and began showing up at the apartment. Petitioner confronted Stephanie about why they had broken up. When Stephanie told petitioner that she was tired of his physical abuse, petitioner threatened to break the windows of the apartment and Stephanie's car. Petitioner remained at the apartment that night as an uninvited guest. Stephanie testified that she felt that she had no choice but to allow petitioner to spend the night. Stephanie later persuaded petitioner to leave. Stephanie did not give petitioner permission to keep his property at the apartment. (Id., pp. 14-19).

On June 9, 2007, petitioner returned to the residence, but Stephanie would not let him into the apartment. Petitioner did not have a key to the apartment. When Stephanie refused to let him into the apartment, petitioner responded by breaking one of her windows. (Id., pp. 17-18).

At the end of August, petitioner showed up again at Stephanie's apartment. When petitioner was refused entry, he forced his way into the residence. Stephanie ran to a friend's home. The friend called one of Stephanie's daughters, who in turned called the police. Petitioner was arrested by the police and was jailed until October 18, 2007. (Tr. 9/23/08, pp. 19-20; Tr. 9/25/08, pp. 14-15).

On October 21, 2007, Janae and Ashley were at home with a male friend named Patrick. (Tr. 9/23/08, p. 21). Stephanie was sleeping upstairs at the time. (Id., p. 89). Ashley heard a knock on the door. The person identified himself as "Paul," but Ashley did not open the door because she thought it was petitioner. Petitioner broke down the door and entered the house. (Id., pp. 89-90). When Ashley tried to escape out the front door, petitioner pointed a gun at her and ordered her not to leave. Petitioner walked to the kitchen and asked Janae "where the bitch at?" (Id., p. 93). Stephanie heard the noises and went to investigate. Petitioner, who was standing at the bottom ofthe stairs, pointed his gun, and ordered Stephanie downstairs. (Id., pp. 22-23).

Petitioner ordered all four people inside the apartment into the living room. (Tr. 9/24/08, pp. 62-63). When Ashley tried to escape, petitioner pointed his gun at her and ordered her to sit down. (Tr. 9/23/08, pp. 24-25). Ashley believed that she was going to be killed. (Tr. 9/23/08, p. 94). Petitioner told everyone that he would kill Stephanie and then kill the others. (Tr. 9/24/08, p. 63). Stephanie and Janae then heard a car's horn. (Tr. 9/24/08, p. 64). Daryl Toney and his cousin Lawrence Herndon had driven from Detroit to Saginaw to visit Janae. (Tr. 9/22/08, pp. 49, 70). Petitioner became upset and Janae informed him that it was her friends in the driveway. (Tr. 9/24/08, p. 64).

Petitioner ordered everyone into the basement at gunpoint. Once inside the basement, petitioner looked out a window. While petitioner was distracted, Stephanie ran upstairs, went outside, and yelled to Toney and Herndon for help. (Tr. 9/23/08, pp. 28-30). Before Toney could respond, petitioner "came out of nowhere" with a gun in his hand. Petitioner pointed his gun at Herndon, ordered the two men out of the car, and ordered them to go to the back of the house. (Tr. 9/18/08, pp. 52-54).

Petitioner placed Stephanie in a choke hold. Stephanie began hitting him, telling petitioner to stop. Petitioner hit Stephanie in the ear with his gun, causing the gun to discharge. Stephanie fell on the ground, but petitioner ordered her to stand back up. Petitioner placed Stephanie into a headlock and forced her through the neighborhood. Several neighbors attempted to intervene, but were scared off by petitioner's gun. (Tr. 9/23/08, pp. 30-32). Stephanie asked these persons to call the police. (Id., p. 71).

Petitioner forced Stephanie to an unlit location and pointed the gun to her head. Stephaniebegged for her life and convinced petitioner to stop pointing the gun at her. Petitioner, however, told Stephanie that he would kill her and them himself. At this point, the police arrived. Petitioner tackled Stephanie to the ground and warned her not to tell the police about the gun. Stephanie agreed in order to get petitioner to relinquish his weapon. (Tr. 9/23/08, pp. 34-37).

The police ordered petitioner to move away from Stephanie and arrested him. (Tr. 9/24/08, p. 22). Officer Michael East testified that Stephanie was "quite terrified." When Officer East assisted her onto her feet, she vomited. (Tr. 9/23/08, p. 38). Stephanie informed the police that petitioner had discarded his gun a few feet away, that he had pointed this gun at her about five times, and that he had threatened to kill her. (Tr. 9/24/08, pp. 26-27). Office Charles Coleman found the gun in the spot indicated by Stephanie and noted that one round had been discharged. (Tr. 9/23/08, pp. 33-35).

Petitioner was convicted following a jury trial in the Saginaw County Circuit Court. Petitioner's conviction was affirmed on appeal. People v. Winters, No. 288925 (Mich.Ct.App. May 18, 2010); lv. den. 488 Mich. 947,790 N.W. 2d 685 (Mich. 2010). Petitioner seeks habeas relief on the following grounds:

I. Whether the introduction of prior acts evidence and hearsay testimony deprived him of a fair trial.

II. Whether there was sufficient evidence to support his conviction of first degree home invasion.

III. Whether the prosecutor committed error when he stated that the District Court had determined he was properly charged.

IV. Whether the trial court erred in failing to give an instruction on specific intent. Also whether trial counsel was ineffective for failing to request a specific intent instruction.

V. Whether defendant's offense variable were properly scored.

VI. Whether the sentencing in this case violated the rule of lenity.

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 case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11.

The Supreme Court has explained that "[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,'and 'demands that state-court decisions be given the benefit of thedoubt.'" Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (internal quotations omitted). "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct.770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

III. Discussion

A. Claim # 1. The evidentiary law/ineffective assistance of counsel claims.

Petitioner brings several challenges to the admission of evidence at his trial. Petitioner further claims that his trial counsel was ineffective for failing to object to the admission of this evidence.

Petitioner first...