Reed v. Jackson

Filing 31

MEMORANDUM AND ORDER re: 1 ON REMAND DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL B. REED,
Petitioner,
v.

Case No. 07-10719
HON. AVERN COHN

ANDREW JACKSON,
Respondent.
________________________________/

MEMORANDUM AND ORDER ON REMAND
DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I. Introduction
Petitioner Michael B. Reed filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254, presenting several claims, including ineffective assistance of counsel.
The Court ordered Respondent to file an answer to the petition and the relevant state
court documents in accordance with Rule 5 of the Rules Governing Section 2254 cases.
(Doc. 4). Thereafter, Respondent filed Rule 5 materials. (Doc. 8). On March 31, 2010,
the Court denied the petition for lack of merit. (Doc. 10). Petitioner appealed.
The Court of Appeals for the Sixth Circuit granted a certificate of appealability
solely on the issue of whether Petitioner’s “counsel provided effective assistance of
counsel when counsel failed to challenge [Petitioner’s] warrantless arrest.” Reed v.
Jackson, No. 10-1734 (6th Cir. Mar. 24, 2011). On December 20, 2011, the Sixth Circuit
vacated and remanded Petitioner’s ineffective assistance of counsel claim for further
proceedings, noting that the record did not appear to contain the entire transcript of the

state court evidentiary hearing relating to this claim. Reed v. Jackson, No. 10-1734 (6th
Cir. Dec. 20, 2011). The Sixth Circuit stated “[a] remand is necessary so that the district
court may determine, on the basis of the entire state court record, whether the Michigan
courts’ resolution of this issue was an unreasonable application of Supreme Court
precedent.” Id. at 4. The record has been supplemented with the relevant transcripts.
(Doc.18). The Court directed the filing of supplemental papers, (Doc. 22), and the
supplemental papers have been received. (Docs. 25 30). The matter is now ready for
decision. After reviewing the relevant portions of the state court record and
supplemental briefs, the Court again denies Petitioner’s application for habeas relief.
II. Factual Background
Petitioner’s conviction arises from the robbery and shooting death of Guy
Colbert, a suspected drug dealer. Petitioner was tried jointly but before separate juries
with his co-defendant, Edward Brown. Brown admitted to law enforcement officers that
he committed the crime along with a person that he thought was named Michael
Murray. Brown directed the police to the house where he knew his accomplice lived.
When the police arrived at the house, they were told that nobody named Michael
Murray resided there, but a different man named Michael Reed lived there. Brown
described his accomplice as being a 6'3" or 6'4", 170 lbs., light complexioned black
man. Petitioner is 5'11", 210 lbs., and is a medium complexioned black man.
Petitioner was placed in custody. He was subsequently questioned by the police
and confessed to participating in the robbery and shooting, and he informed the police
where they could find the murder weapon.
Following his conviction, Petitioner filed a motion for new trial, asserting among
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other claims that his trial counsel was ineffective for failing to challenge the legality of
his arrest and the admissibility of his confession that was taken as a result of his arrest.
The trial court held an evidentiary hearing on the claim, at which the following testimony
was presented.
Petitioner’s trial counsel, Marvin Barnett, testified that he received a discovery
package showing Detroit Police Homicide detectives obtained a statement from
co-defendant Edward Brown before Petitioner was arrested. Tr., 1-11-02, 65-66.
Brown’s statement referred to an accomplice by the name of Michael Murray. Id., 66.
Barnett said he did not recall specifically determining whether Petitioner’s arrest was
supported by probable cause, but that he was sure he considered the issue as he would
in any case. Id., 68, 78.
Barnett indicated familiarity with the proposition that if someone is arrested
without probable cause that it creates the possibility that evidence obtained after the
arrest can be suppressed. Id., 72. Barnett testified that after “a long and considered
detailed analysis” he decided not to challenge the admissibility of Petitioner’s statement
to police. Id., 73. Barnett explained that the statement both hurt and helped Petitioner.
He did not think Petitioner would be able to withstand cross-examination, and he could
use portions of the statement to support a self-defense claim. Id., 89-90 ; see Trial Tr.
8/30/00,153.
Petitioner testified at the hearing that when he was arrested the police asked him
if he was Michael Murray. Tr., 1-14-02, 26-27. Petitioner said he was not and that his
name was Michael Reed. Id., 27.
Investigator Terrell Shaw testified at the hearing that he was involved with
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arresting Petitioner. Tr., 1-20-02, 4. Co-defendant Brown led the police to 14696
Petosky indicating this was where his accomplice lived. Id., 5, 10, 24. Shaw only
remembered looking for someone named “Michael.” Id., 7. After Petitioner was
arrested he told Shaw they would find the gun at the Petosky address. Id., 9. When
Shaw arrived at the house on Petosky he met a woman and asked if there was a
Michael Murray there, and the woman said there was a Michael. Id., 11. Petitioner
came out of the house and was arrested. Id., 11-12. Shaw returned to the house on
Petosky later that night and found the gun under a milk crate. Id., 11-12.
Investigator James Fisher recalled that Brown turned himself in and confessed,
and on the basis of part of the confession he went to a house on Petosky looking for the
person that Brown said had been with him. Id., 17-18. Fisher said that Brown was not
certain of the last name but he did recall where his accomplice lived. Id., 18, 22. On
cross-examination, Fisher acknowledged that Brown’s statement named Michael
Murray as the accomplice without equivocation, but his recollection was that Brown was
not certain of the last name. Fisher sais he was more interested in locating the man at
the address given by Brown, rather than the name. Tr., 1-22-02, 24.
Based on this testimony, the trial court found that Petitioner’s trial counsel was
not ineffective for failing to challenge the legality of Petitioner’s arrest, stating in relevant
part:
The paramount issue in the instant case is whether the police had
probable cause to arrest defendant without a warrant. The Federal court
has treated this issue in U.S. v. Hurston, 12 F. Supp. 2d 630 (E.D. Mich.
1998), where it held that the issue before the Court is not whether the
officer’s state of mind in arresting a defendant provides the legal
justification for the arrest, but whether the circumstances, viewed
objectively, justified the arrest. See Whren v. U.S., 517 U.S. 806 (1996).
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The mere suspicion of illegality is not sufficient to establish probable
cause. Hurston at 635. There is, of course, a requirement that the
officers be able to articulate concrete facts from which they infer a
probability that illegality has occurred. See United States v. Bennett, 905
F.2d 931,934 (6th Cir. 1990) (emphasis added).
Further, the Michigan Court of Appeals held in People v. Casey,
102 Mich. App. 595 (1980), that an, investigatory arrest is an illegal arrest.
It is an admission that probable cause to arrest does not exist. Citing
People v. Martin, 94 Mich. App. 649, 653 (1980), Brown v. Illinois, 422
U.S. 590 (1975). Probable cause to arrest exists when the facts and
circumstances within the officer’s knowledge are sufficient to a prudent
person, or one of reasonable caution, to believe that the suspect has
committed or is committing a felony. People v. Lewis, 160 Mich. App. 20,
25 (1987). Where there is no probable cause to arrest, but the police take
a defendant in custody for investigatory purposes, any evidence obtained
as a result of that unlawful detention or any statements made must be
suppressed. Id.
This court finds there were concrete facts that indicated defendant
was the perpetrator. The fact that his name was Michael, although the
last name was in question, and the fact that he was a resident of the home
where Brown lead the police and reported as the home of perpetrator was
sufficient to establish probable cause. Given the totality of the facts
available to police, the suspicion that defendant was the same person,
was a reasonable one. There was no violation of the Fourth Amendment.
This is supported by the Supreme Court’s decision in Hill v. California, 401
U.S. 797 (1971), where probable cause to arrest without a warrant was
found when police reasonably misidentified and arrested defendant’s
roommate because the roommate was found in defendant’s apartment
and roughly fit the description of defendant, hence the search incident to
the arrest of the roommate was legal.
Further, this Court would refrain from per se exclusion of the
statements and gun as tainted fruit. The Court in Illinois v. Brown requires
an inquiry as to whether an illegal arrest has been sufficiently purged as to
render the confession outside the per se exclusionary rule. The temporal
proximity of the arrest and the confession, the presence of intervening
circumstances, see Johnson v. Louisiana, 406 U.S. 356, 365 (1972), and,
particularly, the purpose and flagrancy of the official misconduct are all
relevant. See Wong Sun, at 491. The mere fact of an illegal arrest does
not per se require the suppression of a subsequent confession. It is only
when an “unlawful detention has been employed as a tool to directly
procure any type of evidence from a detainee” that the evidence is
suppressed under the exclusionary rule. People v. Mallory, 421 Mich. 229
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(1984). Hence, defendant would have to demonstrate that the time’ which
elapsed prior to the Simon statement, at least, had not purged the taint.
Further, defendant would have to show that the independent consent to
search given by Deason at the home, coupled with the fact that the gun
was found in a place other than where defendant directed, has not purged
the evidence of taint. Defendant has made no such showing.
*

*

*

Defendant avers that failure of defendant’s counsel to make a
timely motion to suppress the statements made to police and the gun is
evidence of ineffectiveness. Thorough and deliberate review of the record
indicate[s] defendant’s position is not meritorious. Having found that the
arrest was supported by probable cause, that defendant voluntarily gave
the statements, and that evidence of the gun would not have been
suppressed, this Court concluded the motion for suppression would have
been denied. Since a motion to suppress the confession would not have
succeeded, defendant’s counsel was not guilty of ineffective assistance for
choosing not to file such a motion.
People v. Reed, Wayne Circuit No. 99-11015, Opinion, 4-6; 8-9 (December 9, 2003).
Petitioner raised the issue again on appeal in the Michigan Court of Appeals.
That Court rejected the claim on the merits as follows:
In this case, evidentiary hearing testimony established that a
codefendant informed police that a person named “Michael Murray” was
the shooter, but the codefendant admitted that he was not certain of this
other person’s last name. Still, the codefendant gave a physical
description of the person, knew where he lived, and led police to the
person’s house. There, the police found defendant, whose first name is
Michael, and arrested him. While defendant did not exactly match the
description given by the codefendant, he was of the approximate age, he
had the same first name, and he was present at the home identified by the
codefendant. This was sufficient to provide probable cause for
defendant’s arrest. Therefore, trial counsel was not ineffective for failing
to challenge the evidence on this ground.
People v. Reed, No. 231665, 2004 WL 2412714 (Mich. Ct. App. Oct. 28, 2004).
Petitioner subsequently filed an application for leave to appeal in the Michigan
Supreme Court which raised the same argument that trial counsel had been ineffective
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for not challenging his warrantless arrest. The Michigan Supreme Court denied the
application by form order. People v. Reed, 474 Mich. 1067 (2006) (table).
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
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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 the doubt.'" Renico v. Lett, 130 S. Ct. 1855,
1862 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). "[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)). The
Supreme Court has emphasized "that even a strong case for relief does not mean the
state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538
U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), "a habeas court must
determine what arguments or theories supported or...could have supported, the state
court's decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior
decision" of the Supreme Court. Id.
"[I]f this standard is difficult to meet, that is because it was meant to be."
Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the
AEDPA, does not completely bar federal courts from relitigating claims that have
previously been rejected in the state courts, it preserves the authority for a federal court
to grant habeas relief only "in cases where there is no possibility fairminded jurists could
disagree that the state court's decision conflicts with" the Supreme Court's precedents.
Id. Indeed, "Section 2254(d) reflects the view that habeas corpus is a 'guard against
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extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary
error correction through appeal." Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5
(1979))(Stevens, J., concurring in judgment)). Thus, a "readiness to attribute error [to a
state court] is inconsistent with the presumption that state courts know and follow the
law." Woodford, 537 U.S. at 24. Therefore, in order to obtain habeas relief in federal
court, a state prisoner is required to show that the state court's rejection of his claim
"was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement."
Harrington, 131 S. Ct. at 786-87.
III. Discussion
Petitioner claims that his counsel was ineffective for failing to challenge the
legality of his arrest. "The Fourth Amendment forbids 'unreasonable searches and
seizures,' and this usually requires the police to have probable cause or a warrant
before making an arrest." Herring v. United States, 555 U.S. 135, 136 (2009). Probable
cause for an arrest exists if, at the moment the arrest was made, the facts and
circumstances "were sufficient to warrant a prudent man in believing that the petitioner
had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964).
"The validity of the arrest does not depend on whether the suspect actually committed a
crime . . . ." Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). Because the state courts
denied the claim on the merits after holding a hearing, review is limited.
First, in Strickland v. Washington, 466 U.S. 668 (1984), the United States
Supreme Court set forth a two-prong test for determining whether a habeas petitioner
has received ineffective assistance of counsel. First, a petitioner must prove that
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counsel's performance was deficient. This requires showing that counsel made errors
so serious that he or she was not functioning as counsel as guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 687. Second, the petitioner must establish that
counsel's deficient performance prejudiced the defense. Counsel's errors must have
been so serious that they deprived the petitioner of a fair trial or appeal. Id.
As to the performance prong, Petitioner must identify acts that were "outside the
wide range of professionally competent assistance" in order to prove deficient
performance. Strickland, 466 U.S. at 690. The reviewing court's scrutiny of counsel's
performance is highly deferential. Id. at 689. Counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. Id. at 690. Petitioner bears the burden of
overcoming the presumption that the challenged actions were sound trial strategy. Id.
at 689.
To satisfy the prejudice prong under Strickland, Petitioner must show that "there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable
probability is one that is sufficient to undermine confidence in the outcome. Id. "On
balance, the benchmark for judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of the adversarial process that
the [proceeding] cannot be relied on as having produced a just result." Id. at 686.
Moreover, the Supreme Court has confirmed that a federal court's consideration
of ineffective assistance of counsel claims arising from state-criminal proceedings is
quite limited on habeas review due to the deference accorded trial attorneys and state
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appellate courts reviewing their performance. "The standards created by Strickland and
[section] 2254(d) are both 'highly deferential,' and when the two apply in tandem, review
is 'doubly' so." Harrington, 131 S.Ct. at 788 (internal and end citations omitted). "When
[section] 2254(d) applies, the question is not whether counsel's actions were
reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland's deferential standard. Id.
Viewed under this standard, Petitioner has not demonstrated entitlement to
habeas relief because a reasonable argument can certainly be made that counsel
satisfied Strickland’s deferential standard. Nothing in the transcripts of the state
evidentiary hearing alters this Court’s previous determination that Petitioner’s claim is
without merit. Indeed, the record shows that the trial court carefully considered the
issue and explained in detail its conclusion that trial counsel was not ineffective. The
Michigan Court of Appeals likewise considered the issue and concluded the same.
Neither decision, which was based on a full examination of the record, was
unreasonable.
Here, Petitioner’s co-defendant confessed to police and told them that he
committed the crime with someone named Michael Murray who lived at a particular
address. The police went to the address and found a Michael Reed who, despite some
differences, fit the general description of the man described by the codefendant. The
police did not lack probable cause simply because of the difference in last name. Hill v.
California, 401 U.S. 797, 802 (1971). Indeed, the officers at the evidentiary hearing
indicated that the co-defendant was not certain of his accomplice’s last name, but was
certain of the address in which he lived.
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Under these circumstance it is difficult to image a law enforcement officer leaving
the address without arresting Petitioner simply because he had a different last name
than the one given to them by an accomplice. Courts have held that it is reasonable for
the police to “rely on facially valid arrest warrants even in the face of vehement claims of
innocence by reason of mistaken identity, or otherwise.” Masters v. Crouch, 872 F.2d
12481253 (6th Cir. 1989), citing Baker v. McCollan, 443 U.S. 137, 145 (1979). Further,
any “discrepancies, between an arrest warrant and the arrestee’s physical appearance,
address, and birth date, are often insufficient to create a genuine issue of factual
dispute about whether arresting officers had probable cause.” Tibbs v. City of Chicago,
469 F.3d 661, 664 (7th Cir. 2996).
Therefore, because Petitioner’s claim that his arrest was not supported by
probable cause does not have merit, it follows that he cannot prevail on his ineffective
assistance of counsel claim. Joshua v. DeWitt, 341 F.3d 430, 443 (6th Cir. 2003). At a
minimum, in light of the evidence presented at the state court hearing, the decision of
the state courts that Petitioner’s claim was without merit was a reasonable one.
Therefore, the petition will again be denied on this claim.
IV. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has
demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. §
2253(c)(2). To warrant a grant of the certificate, "[t]he petitioner must demonstrate that
reasonable jurists would find the district court's assessment of the constitutional claims
debatable or wrong." Slack v. McDaniel, 529 U.S. 473 (2000). Reasonable jurists could
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not conclude that this Court's dismissal of Petitioner's claims was debatable or wrong.
Therefore, the Court will deny Petitioner a certificate of appealability.
V. Conclusion
For the reasons stated above, the state court’s conclusion that Petitioner was not
denied the effective assistance of counsel regarding counsel’s decision to not challenge
his arrest is neither contrary to Supreme Court precedent nor an unreasonable
determination of the facts. Petitioner is therefore not entitled to habeas relief on this
claim. Accordingly, the petition is DENIED. The Court also DENIES a certificate of
appealability.
SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: October 21, 2013

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, October 21, 2013, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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