Zimmerman v. Davis
| Decision Date | 07 January 2010 |
| Docket Number | Case No. 03-60173. |
| Citation | 683 F. Supp.2d 523 |
| Parties | Raschid ZIMMERMAN, Petitioner, v. Barry D. DAVIS, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Thomas S. Hirsbrunner, Baligad & Hirsbrunner, Lansing, MI, for Petitioner.
Jason W. Williams, Timothy A. Baughman, Wayne County Prosecutor's Office, Detroit, MI, Brian O. Neill, Michigan Department of Attorney General, Lansing, MI, for Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
In August 2003, Petitioner Raschid Zimmerman filed an application for writ of habeas corpus. The Court subsequently stayed the matter at Petitioner's request so that he could pursue additional state remedies. Thereafter, Zimmerman filed an amended petition, alleging ineffective assistance of trial and appellate counsel. He also requested an evidentiary hearing.
The Court referred this matter to Magistrate Judge Paul J. Komives pursuant to 28 U.S.C. § 636(b)(1) for a report and recommendation ("R & R"). On November 12, 2009, he issued his R & R. The Magistrate Judge made two recommendations: first, that the Court reject Respondent's argument that the claims advanced are barred by a state court procedural default; and second, that the Court grant Petitioner's motion for an evidentiary hearing. The Magistrate Judge informed the parties that objections to the R & R must be filed within ten days of service and that a party's failure to file objections would waive any further right of appeal. See R & R at 18; 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2).
Because no objection has been filed in this case, the parties waived their right to review and appeal. Accordingly, the Court ADOPTS the Report and Recommendation and refers this matter for an evidentiary hearing pursuant to 28 U.S.C. § 636(b)(1)(B).
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Table of Contents
I. RECOMMENDATION ........................................................ 527
II. REPORT ................................................................ 527
A. Procedural History ................................................. 527
B. Procedural Default ................................................. 529
C. Standard of Review ................................................. 530
D. Analysis ........................................................... 531
1. Clearly Established Law ......................................... 531
2. Petitioner's Entitlement to Relief on the Current Record ........ 532
3. Evidentiary Hearing ............................................. 532
a. Necessity of an Evidentiary Hearing .......................... 532
b. Permissibility of an Evidentiary Hearing ..................... 534
E. Conclusion ......................................................... 536
III. NOTICE TO PARTIES REGARDING OBJECTIONS ................................ 536
* * * * * *
The Court should reject respondent's argument that petitioner's claims are barred by a state court procedural default, and should conclude that petitioner is entitled to an evidentiary hearing under 28 U.S.C. § 2254(e)(2) and Rule 8, 28 U.S.C. foil. § 2254. Accordingly, the Court should grant petitioner's motion for an evidentiary hearing (docket # 21) and either conduct such a hearing or refer the matter back to me for that purpose. If the Court rejects this recommendation, the Court should deny the petition because the record as it currently stands does not establish that petitioner's trial and appellate counsel rendered constitutionally ineffective assistance.
A. Procedural History
1. Petitioner Raschid Zimmerman is a state prisoner, currently confined at the Newberry Correctional Facility in Newberry, Michigan.
2. On December 14, 1999, petitioner was convicted of two counts of second degree murder, MICH. COMP. LAWS § 750.317; and one count of possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, following a bench trial in the Wayne County Circuit Court. On January 6, 2000, he was sentenced as a second habitual offender to concurrent terms of 30-50 years' imprisonment on the murder convictions, and to a mandatory consecutive term of two years' imprisonment on the felony-firearm conviction.
Petitioner's convictions arise from the shooting deaths of two victims on February 1, 1999, at a party at which a number of people were watching the Super Bowl and gambling. Prior to trial, petitioner signed and filed a waiver of jury trial. The evidence against petitioner consisted primarily of the testimony of people present at the party. Petitioner presented an alibi defense, although he did not himself testify.
3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through counsel, the following claims:
Petitioner filed a pro per supplemental brief raising one additional claim:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL GUARANTEED BY THE SIXTH AMENDMENT AND CONST. 1963, ART. 1, SECTION 20.
The court of appeals found no merit to petitioner's claims, and affirmed his conviction and sentence. See People v. Zimmerman, No. 225984, 2002 WL 483428 (Mich. Ct.App. Mar. 29, 2002) (per curiam).
4. Petitioner, proceeding pro se, sought leave to appeal these three issues to the Michigan Supreme Court. Petitioner also raised a fourth claim alleging ineffective assistance of appellate counsel. The Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Zimmerman, 467 Mich. 895, 654 N.W.2d 327 (2002).
5. Petitioner, proceeding pro se, filed an application for the writ of habeas corpus in this Court on August 12, 2003. As grounds for the writ, petitioner's application claims that he suffered a constructive denial of counsel by counsel's failure to meet and confer with him prior to trial. On March 4, 2004, the Court entered an Order granting in part petitioner's motion to dismiss and holding the case in abeyance pending his exhaustion of the claim raised in the petition.
6. On April 5, 2004, petitioner filed motions for new trial and an evidentiary hearing in the trial court. The motions were denied on April 15, 2004. On January 24, 2005, petitioner filed a motion for relief from judgment in the trial court pursuant to MICH. CT. R. 6.500-.508, raising the ineffective assistance of trial and appellate counsel claims raised in his pro per brief on appeal and in his pro se habeas petition. Petitioner also sought an evidentiary hearing to develop facts in support of his claim. On February 23, 2005, the trial court denied the motion, concluding that petitioner's trial counsel claim had already been decided against petitioner in his direct appeal and thus was barred by MICH. CT. R. 6.508(D), and that his appellate counsel claim was without merit. See People v. Zimmerman, No. 99-002112-01 (Wayne County, Mich., Cir. Ct. Feb. 23, 2005). Petitioner filed applications for leave to appeal in the Michigan Court of Appeals and Michigan Supreme Court, raising the following claims:
The appellate courts denied petitioner's applications for leave to appeal in standard orders, based on petitioner's "failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Zimmerman, 477 Mich. 978, 725 N.W.2d 339 (2006); People v. Zimmerman, No. 268409 (Mich.Ct.App. Aug. 16, 2006).
7. On April 27, 2007, petitioner, through counsel, filed an amended application for the writ of habeas corpus, again raising the now-exhausted ineffective assistance of trial and appellate counsel claims raised in his initial petition. Petitioner has also filed a motion for an evidentiary hearing.
8. Respondent filed his answer to the amended petition on December 3, 2007. He contends that petitioner's claims are barred by petitioner's procedural default in the state courts.
B. Procedural Default
Respondent first contends that petitioner's claims are barred by petitioner's procedural default in the state courts. The Court should disagree.
Under the procedural default doctrine, a federal habeas court will not review a question of federal law if the state court's decision rests on a substantive or procedural state law ground that is independent of the federal question and is adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). However, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on the procedural bar." Harris, 489 U.S. at 263, 109 S.Ct. 1038. Furthermore, "only a `firmly established and regularly followed state practice' may be interposed by a State to prevent subsequent review ... of a federal constitutional...
To continue reading
Request your trial
-
Boothe v. Ballard, CIVIL ACTION NO. 2:14-cv-25165
...to establish 'cause' for a 'default' of the factual development of a[] . . . claim in state court"). But see Zimmerman v. Davis, 683 F. Supp. 2d 523, 536 (E.D. Mich. 2010) ("[W]here a petitioner's failure to develop the factual basis of a claim is a result of the denial of the right to effe......
-
Ivory v. Romanowski, Case Number 2:13-cv-14717
...Feb. 28, 2001). Petitioner asserts that he is nevertheless entitled to hearing in this Court under the authority of Zimmerman v. Davis, 683 F.Supp. 2d 523 (E.D. Mich. 2010). In Zimmerman, United States Magistrate Judge Komives recommended that the district court grant an evidentiary hearing......
-
Martin v. White, Civil Action No. 1:16cv-00177-GNS
...in United States District Courts; and (2) whether the hearing is permissible under 28 U.S.C. § 2254(e)(2). See Zimmerman v. Davis, 683 F.Supp.2d 523, 532 (E.D. Mich. 2010). With respect to the first issue, Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts......
-
Stopher v. Simpson
...hearing would be meaningful, in that a new hearing would have the potential to advance the petitioner's claim." Zimmerman v. Davis, 683 F. Supp. 2d 523, 532 (E.D. Mich. 2010) (internal quotation marks and citations omitted). Petitioner's evidentiary-hearing motion does not explain what addi......