Wynn v. Berghuis
Filing
12
OPINION AND ORDER Denying re 1 Petition for Writ of Habeas Corpus filed by Michael Wynn; Denying a Certificate of Appealability, but Granting Leave to Proceed in Forma Pauperis. Signed by District Judge Marianne O. Battani. (BThe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL E. WYNN,
Petitioner,
v.
CASE NO. 2:10-cv-12713
HONORABLE MARIANNE O. BATTANI
MARY BERGHUIS,
Respondent.
___________________________/
OPINION AND ORDER
DENYING THE HABEAS CORPUS PETITION,
DENYING A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Michael E. Wynn has filed a pro se habeas corpus petition pursuant to
28 U.S.C. § 2254. The habeas petition challenges Petitioner’s state convictions for
second-degree murder, MICH. COMP. LAWS § 750.317, and possession of a firearm
during the commission of a felony (felony firearm), MICH. COMP. LAWS § 750.227b.
Respondent Mary Berghuis urges the Court to deny the petition on grounds that
Petitioner’s claims are procedurally defaulted or meritless. Having reviewed the
pleadings and record, the Court agrees with Respondent that Petitioner is not entitled to
habeas corpus relief. Consequently, the habeas petition will be denied.
I. BACKGROUND
A. The Trial Testimony
The charges against Petitioner arose from the fatal shooting of Renita Thomas in
Detroit, Michigan on February 27, 2004. Petitioner was tried before a jury in Wayne
County Circuit Court.
1. Prosecution Witnesses
Ms. Thomas’s fifteen-year-old daughter, Carlotta Thomas, testified that, on
February 27, 2004, she was living with her mother on Novara Street in Detroit.
Petitioner was her mother’s friend, and “Vernor” was her aunt’s boyfriend. On the day in
question, a neighbor had been threatening them. As a result of the threats, Petitioner
and Vernor brought some guns to their house. Later that afternoon, Carlotta heard her
mother and Petitioner talking in the kitchen. She heard her mother say something like,
“Stop messing or playing with the gun, leave it alone, put it down.” Then she heard a
gunshot. She walked into the kitchen and saw her mother lying against the stove. She
was bleeding from her head. Petitioner came out of the kitchen as Carlotta entered the
kitchen. He said, “Sorry, God, sorry, God,” and instructed her to call the police.
Carlotta’s sister, fourteen-year-old Ashley Thomas, corroborated Carlotta’s
testimony. Police Officer Darren Stallworth testified that he was the first officer to
respond to the scene. He saw Petitioner running around outside the house. He was
shouting, “I shot her, I shot her. I didn’t know the gun was loaded. I shot her.” The
victim was inside the house, slumped against the oven in the kitchen. A shotgun was
lying on the floor approximately three feet from the victim, and it looked like half of her
face had been blown off. There was blood on the floor, on the ceiling, and on the walls.
Officer Terrica Channells also responded to the crime scene. She saw Petitioner
exit the side door of the house. He was in a confused state of mind and said, “I just
shot her, I just shot my girlfriend.” Officer Channells detained Petitioner in the scout car,
where he said, “I just sat it on the counter and it went off.” He also said that he did not
2
know the gun was loaded.
Sergeant William Anderson noticed a pump action shotgun on the kitchen floor of
the house and a rifle on top of the microwave oven. He subsequently interviewed
Petitioner at the police precinct. In his statement to Sergeant Anderson, Petitioner
explained that he took a shotgun to Ms. Thomas’s house after Ms. Thomas called him
and suggested that he bring some “protection” due to an argument that she had with
another family. The shotgun was in two pieces, but Ms. Thomas’s brother-in-law, Vern,
put the shotgun together at the Thomas residence. He (Petitioner) did not put any
shells in the gun, and he did not know how it got loaded. There were shells on top of
the microwave oven, and Vern’s rifle was on the kitchen table. After Vern and his
girlfriend went to McDonald’s, Ms. Thomas told him to “get that shit off the kitchen
table.” He picked up the gun and moved across the room. The gun accidentally fired
when he bumped into a cabinet next to the stove. He then told Carlotta to call 911 and
waited for the police to arrive.
Evidence technician Frank Horan processed the crime scene. He collected two
firearms in the kitchen: a loaded twelve-gauge Mossberg shotgun on the kitchen floor
near the victim and a 3030 carbine with a bag containing a loaded clip for the carbine on
top of the microwave oven.
Lloyd Allen testified as an expert witness on firearms. He explained to the jury
that he tested the shotgun in evidence before trial and determined that it functioned
properly. The shotgun did not fire when he dropped it from a height of about three feet,
and, in his opinion, the gun would not discharge accidentally if it were bumped against a
hard object. The only time the gun fired during testing was when the trigger was pulled.
3
Dr. Carl Schmidt testified that the victim died from a contact gunshot wound to
the head. This meant that the muzzle of the gun was touching the victim’s head when it
was fired.
2. Defense Witnesses
Detective Dale Collins testified for the defense. He explained that his role at the
crime scene was to determine what happened. To that end, he took statements from
the victim’s daughters and Petitioner. His synopsis of the investigation that night was
read to the jury. Among other things, the synopsis indicated that Vernor Norwood
loaded the shotgun before leaving Ms. Thomas’s house to go to McDonald’s. The
synopsis also indicated that Petitioner had said the gun discharged when he picked it up
to move it and it hit the counter. Detective Collins thought that the shooting appeared to
be accidental. He released Petitioner from custody after Petitioner gave his statement.
Petitioner testified that Ms. Thomas was his girlfriend. He explained that, on the
day of the shooting, Ms. Thomas called and asked him to come to her house because
someone had threatened her with a baseball bat. He brought the shotgun and a box of
ammunition to the house, but the gun was in two pieces and he had never shot it. Nor
did he routinely use firearms. Vernor put the shotgun together at Ms. Thomas’s house.
Both the shotgun and Vernor’s gun were in the kitchen. Ms. Thomas later said to him,
“Get that shit off the table before somebody gets hurt.” He picked up the gun from the
table and turned around. The gun hit the counter and fired. He blacked out for a minute
and then, after instructing Carlotta to call the police, he went outside and explained what
happened to a man across the street.
Petitioner claimed that he did not know the shotgun was loaded and that he did
4
not intend to shoot Ms. Thomas. He also claimed that he loved Ms. Thomas, but he
admitted that he did not go back inside the house to check on her after the shooting.
The reasons he gave for not checking on Ms. Thomas were that he was scared he had
done something wrong and may have committed a crime and he did not want Ms.
Thomas to die.
On cross-examination by the prosecutor, Petitioner denied pointing a gun at Ms.
Thomas or placing the gun against her head. He admitted, however, that his hand had
been on the trigger. He also assumed, without checking, that the gun was unloaded.
Although he watched Vernor put shells in the shotgun, he claimed that Vernor
subsequently removed the shells and that he took the shells from Vernor and put them
on the microwave oven. On redirect examination, Petitioner stated that the gun was
meant to be a bluff and that he had planned to leave it at the house for Ms. Thomas to
use. He also stated that when the gun hit the counter, it caused his finger to pull the
trigger.
B. The Verdict and Sentence
The defense theory was that the shooting was an accident. The trial court
instructed the jury on the charged offense of second-degree murder and on the lesser
offenses of involuntary manslaughter and careless, reckless or negligent use of a
firearm with injury or death resulting. On January 14, 2005, the jury found Petitioner
guilty, as charged, of second-degree murder, Mich. Comp. Laws § 750.317, and felony
firearm, Mich. Comp. Laws § 750.227b. On January 28, 2005, the trial court sentenced
Petitioner to two years in prison for the felony firearm conviction and to a consecutive
term of 270 to 400 months (twenty-two and a half to thirty-three and a third years) in
5
prison for the murder conviction.1
C. The Appeals
In an appeal of right, Petitioner raised three sentencing issues. He also argued
that the evidence was insufficient to convict him of second-degree murder, that the trial
court erred in failing to instruct the jury on his defense, and that trial counsel was
ineffective for failing to request an instruction on his defense. The Michigan Court of
Appeals rejected these claims and affirmed Petitioner’s conviction in a per curiam
opinion. See People v. Wynn, No. 261039 (Mich. Ct. App. June 27, 2006)
(unpublished). On November 29, 2006, the Michigan Supreme Court denied leave to
appeal because it was not persuaded to review the issues. See People v. Wynn, 723
N.W.2d 816 (Mich. 2006) (table).
Petitioner subsequently filed a motion for relief from judgment. The trial court
denied his motion on the basis that Petitioner had failed to demonstrate “good cause”
for failing to raise his claims on appeal and “actual prejudice” from the alleged
irregularities. Petitioner appealed the Court’s decision, raising the claims contained in
his habeas petition. The Michigan Court of Appeals denied leave to appeal for failure to
establish entitlement to relief under Michigan Court Rule 6.508(D). See People v.
Wynn, No. 288046 (Mich. Ct. App. Mar. 27, 2009) (unpublished). On October 26, 2009,
the Michigan Supreme Court denied leave to appeal for the same reason. See People
v. Wynn, 773 N.W.2d 677 (Mich. 2009) (table).
D. The Habeas Petition and Responsive Pleading
1
The judgment of sentence states that the sentence for the murder conviction is
twenty-two and a third to thirty-three and a half years.
6
Petitioner filed his habeas corpus petition in this Court on July 9, 2010. He
claims that: (1) the trial court abused its discretion by denying his motion for relief from
judgment; (2) the trial court abused its discretion by accepting the parties’ stipulation
regarding an unavailable prosecution witness and by allowing the witness’s out-of-court
statement to be entered into the record; (3) the prosecutor deprived him of due process
by deeming the disputed prosecution witness unavailable; and (4) his trial and appellate
attorneys were ineffective.
Respondent argues in her answer to the habeas petition that the first habeas
claim is not a stand-alone claim and that Petitioner is not entitled to habeas relief on the
basis of his fourth claim. Respondent asserts that the second and third habeas claims
are procedurally defaulted because Petitioner raised those claims for the first time on
state collateral review rather than on direct appeal.
Procedural default is not a jurisdictional matter, Trest v. Cain, 522 U.S. 87, 89
(1997), and the Court finds it more efficient to address the merits of Petitioner’s claims
than to analyze whether the claims are procedurally defaulted. Consequently, the
alleged procedural defaults are excused. The Court will proceed to address the
substantive merits of Petitioner’s claims, using the following standard of review.
II. STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for
persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,
__ U.S. __, __, 131 S. Ct. 770, 783 (2011). Pursuant to § 2254, state prisoners are not
entitled to the writ of habeas corpus unless the state court’s adjudication of their claims
7
on the merits
(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.
28 U.S.C. § 2254(d).
Under the “contrary to” clause, a federal habeas court may grant the writ 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. Under the “unreasonable application” clause, a
federal habeas court may grant the writ if the state court identifies the
correct governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
“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.” Richter, 131 S. Ct. at 786 (citing Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on his or her claim “was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at 786-87.
III. DISCUSSION
A. The Trial Court’s Denial of Petitioner’s Post-Conviction Motion
Petitioner alleges that the trial court abused its discretion and deprived him of
due process of law by denying his motion for relief from judgment. Specifically,
8
Petitioner claims that the trial court erred by finding that he failed to demonstrate “good
cause” for not raising his claims on direct appeal and “actual prejudice” from the alleged
irregularities. Petitioner contends that the trial court should have considered his
allegation that appellate counsel was “cause” for his failure to raise his claims on direct
appeal.
Petitioner disagrees with the trial court’s interpretation of Michigan Court Rule
6.508(3), which prohibits state courts from granting relief from a judgment of conviction
if the defendant “alleges grounds for relief, other than jurisdictional defects, which could
have been raised on appeal from the conviction and sentence . . . .” An exception
exists if the defendant demonstrates “good cause for [the] failure to raise such grounds
on appeal” and “actual prejudice from the alleged irregularities that support the claim for
relief.” Id.
Petitioner’s claim lacks merit because “relief may not be granted to a habeas
petitioner for alleged deficiencies in a state's post-conviction procedures . . . .” Roe v.
Baker, 316 F.3d 557, 571 (6th Cir. 2002) (citing Kirby v. Dutton, 794 F.2d 245, 247 (6th
Cir.1986)). Even if Petitioner could demonstrate that the trial court deprived him of a full
and fair hearing on his post-conviction motion, an error in the state court’s interpretation
of Rule 6.508(D)(3) would be an error state law, which is not a cognizable claim on
habeas corpus review. Simpson v. Jones, 238 F.3d 399, 406-07 (6th Cir. 2000) (citing
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), and Smith v. Phillips, 455 U.S. 209, 221
(1982)). “In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” McGuire,
502 U.S. at 68 (citing 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21 (1975) ( per
9
curiam)). Petitioner therefore has no right to habeas relief on the basis of his first claim.
B. The Admission of an Witness’s Out-of-Court Statement
Petitioner’s remaining claims pertain to Vernor Norwood’s statement to a defense
investigator. Petitioner alleges that the prosecutor deprived him of due process by
deeming Mr. Norwood unavailable and that defense counsel was ineffective for
stipulating that Norwood was unavailable. Additionally, Petitioner asserts that the trial
court abused its discretion by accepting the parties’ stipulation that Mr. Norwood was
unavailable and by allowing Mr. Norwood’s out-of-court statement to be read to the jury.
Petitioner contends that the admission of Norwood’s out-of-court statement in evidence
at trial violated his constitutional right to confront the witnesses against him.
Lastly, Petitioner alleges that appellate counsel was ineffective on direct appeal for not
raising the issue of trial counsel’s ineffectiveness.
1. Clearly Established Federal Law
Petitioner alleges violations of his constitutional rights to due process of law and
to confront the witnesses against him. The Due Process Clause of the Fourteenth
Amendment to the United States Constitution “imposes minimum standards of fairness
on the States, and requires state criminal trials to provide defendants with protections
‘implicit in the concept of ordered liberty.’” Danforth v. Minnesota, 552 U.S. 264, 269-70
(2008) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
The Confrontation Clause of the Sixth Amendment guarantees a defendant in a
criminal prosecution “the right . . . to be confronted with the witnesses against him.”
U.S. CONST. amend. VI. “The Amendment contemplates that a witness who makes
10
testimonial statements admitted against a defendant will ordinarily be present at trial for
cross-examination, and that if the witness is unavailable, his prior testimony will be
introduced only if the defendant had a prior opportunity to cross-examine him.” Giles v.
California, 554 U.S. 353, 358 (2008) (citing Crawford v. Washington, 541 U.S. 36, 68
(2004)). “Testimonial” evidence includes, at a minimum, “prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.” Crawford, 541 U.S. at 68.
2. The Factual Background
The prosecution endorsed Vernor Norwood as a witness, but Norwood was also
a potential defense witness. Before any testimony was taken at Petitioner’s trial,
defense counsel explained to the trial court that Norwood was refusing to testify.
Defense counsel noted that Norwood had a prior felony conviction and that Norwood
was afraid of getting in trouble on the basis of testimony that he had possessed a
firearm. Defense counsel requested a warrant for Norwood’s arrest, but he was also
willing to stipulate to the contents of Norwood’s statement to the defense investigator.
(Trial Tr. vol. II, 7-8, 11-15, Jan. 12, 2005.)
Later in the trial, the trial court informed the jurors that, pursuant to the parties’
stipulation, Vernor Norwood’s statement would be read to them in lieu of his live
testimony. (Id. at 200-01.) Defense counsel then read Norwood’s statement to the
defense investigator regarding the fatal shooting of Ms. Thomas on February 27, 2004.
In his statement to the defense investigator, Mr. Norwood said that he knew both
Petitioner and Ms. Thomas and that he had been dating Ms. Thomas’s sister, Nicole
Smith. On the day of the shooting, Ms. Smith called and asked him to come to Ms.
11
Thomas’s home because Ms. Thomas was being threatened by a woman and three
“guys.” Norwood acquired his 3030 carbine and went to Ms. Thomas’s home. He
placed the carbine on the microwave oven. Petitioner arrived at Ms. Thomas’s house
approximately fifteen to twenty minutes later with a clear plastic bag containing a
Mossberg 500 shotgun, which was broken down. Norwood put the shotgun together
and loaded it. He then placed the shotgun on the kitchen table and went outside with
Ms. Smith, Petitioner, and Ms. Thomas. He subsequently left the house and went to
McDonald’s with Ms. Smith and their son. Within a short period of time, they were
informed that Ms. Thomas had been shot. They returned to Ms. Thomas’s home. The
police were at the house, and Petitioner was seated in a patrol car. (Id. at 202-03.)
When the investigator asked Norwood whether Petitioner had been aware that
Norwood loaded the shotgun, Norwood answered, “No, he wasn’t. Michael was outside
at the time.” And when the investigator asked whether Norwood had told Petitioner
before leaving for McDonald’s that the shotgun was loaded, Norwood responded, “No, I
didn’t.” Norwood also said that he was not aware of any disagreements or arguments
between Petitioner and Ms. Thomas and that, to his knowledge, Petitioner and Ms.
Thomas were getting along fine. He added that Petitioner and Ms. Thomas did a lot of
things for each other. (Id. at 203-04.)
3. Analysis
It is clear from the record that Vernor Norwood was not an available witness. His
refusal to testify at Petitioner’s trial on the basis that he might subject himself to criminal
liability for being a felon in possession of a firearm made him unavailable. See United
States v. Johnson, 581 F.3d 320, 327 (6th Cir. 2009) (finding the likelihood that a co12
defendant would invoke the Fifth Amendment if called to testify rendered him
unavailable as a witness); United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir. 1986)
(concluding that a co-defendant’s refusal to testify made him unavailable).
Consequently, the prosecutor did not deprive Petitioner of due process by deeming
Norwood unavailable.
For the same reason, and because the parties stipulated to the admission of
Norwood’s out-of-court statement, the trial court did not violate Petitioner’s right to due
process by accepting the parties’ stipulation that Norwood was unavailable and that his
out-of-court statement could be read into the record. See, e.g., United States v. MejiaAlarcon, 995 F.2d 982, 991 (10th Cir. 1993) (holding that the defendant’s right to due
process was not violated by the trial court’s acceptance of a stipulation regarding one or
more elements of the government’s case, even though the court did not ascertain
whether the defendant understood and voluntarily entered the stipulation, where the
defendant was present in court and represented by counsel at the time of the
stipulation).
The Court need not determine whether Mr. Norwood’s statement to a defense
investigator was “testimonial” under Crawford, because, even if it were testimonial,
defense counsel stipulated to admitting the statement. A party may not complain of
Confrontation Clause errors that he himself invited. United States v. Cromer, 389 F.3d
662, 678 n. 11 (6th Cir. 2004) (quoting Harvis v. Roadway Express, Inc., 923 F.2d 59,
60 (6th Cir.1991)).
Norwood’s statement, moreover, was not offered against Petitioner. It was
beneficial to Petitioner’s case because it indicated that Petitioner had a good
13
relationship with Ms. Thomas and was unaware that the shotgun used in the shooting
was loaded. This evidence supported Petitioner’s defense that the shooting was
accidental. The Confrontation Clause has no application to out-of-court statements that
are offered by, not against, the accused. United States v. Miller, 319 F. App’x 351, 356
(6th Cir. 2009) (citing Cromer, 389 F.3d at 671).
Petitioner concedes that Norwood’s statement was favorable to him. He
contends, however, that if Norwood had testified, the jury would have been able to
assess his demeanor and would have accorded his comments greater credibility.
Whether the jury would have given more weight to Norwood’s live testimony than to his
statement to the investigator is speculative. It appears more likely that, if Norwood had
been brought to court, he would have refused to testify and would have invoked his Fifth
Amendment right not to incriminate himself. In conclusion, because Norwood’s
statement to the investigator was favorable to Petitioner and not offered against him,
Petitioner’s rights under the Confrontation Clause were not violated.
4. Trial and Appellate Counsel
Petitioner’s ineffective-assistance-of-counsel claims fare no better. To prevail on
a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate that
his attorney’s performance was deficient and that the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The “deficient
performance” prong requires showing that counsel “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. To demonstrate that counsel’s performance prejudiced the
defense, a petitioner must show “a reasonable probability that, but for counsel’s
14
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’
and when the two apply in tandem, review is ‘doubly’ so.” Richter, 131 S. Ct. at 788
(internal and end citations omitted).
Defense counsel was not ineffective for stipulating to the reading of Norwood’s
statement because Norwood personally informed defense counsel that he did not intend
to testify at Petitioner’s trial. By stipulating to the admission of Norwood’s statement,
defense counsel ensured that the jury would hear evidence favorable to Petitioner.
Appellate counsel likewise was not ineffective. Because “trial counsel performed
adequately, [the Court’s] inquiry is at an end; by definition, appellate counsel cannot be
ineffective for a failure to raise an issue that lacks merit.” Greer v. Mitchell, 264 F.3d
663, 676 (6th Cir. 2001).
IV. CONCLUSION
The state courts’ rejection of Petitioner’s claims did not result in decisions that
were contrary to clearly established federal law, unreasonable applications of federal
law, or unreasonable determinations of the facts. Accordingly, the petition for a writ of
habeas corpus [Doc. #1] is DENIED.
V. DENIAL OF A CERTIFICATE OF APPEALABILITY;
LEAVE TO APPEAL IN FORMA PAUPERIS
The Court declines to issue a certificate of appealability because Petitioner’s
claims are not adequate to deserve encouragement to proceed further, and reasonable
jurists would not find the Court’s assessment of Petitioner’s constitutional claims
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Nevertheless, if
15
Petitioner appeals this Court’s decision, he may proceed in forma pauperis on appeal
because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).
s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
Dated: January 10,2013
CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this Opinion and Order was
served upon the Petitioner via ordinary U.S. Mail and Counsel for the Respondent via
the Court’s ECF Filing System.
s/Bernadette M. Thebolt
Case Manager
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?