Nobles v. McQuiggin

Filing 22

OPINION AND ORDER denying 21 Motion to Amend/Correct. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KELLY NOBLES,
Petitioner,

Civil Action No. 2:11-cv-10801

v.

HON. PATRICK J. DUGGAN

GREG MCQUIGGIN,
Respondent.
______________________/
OPINION AND ORDER DENYING PETITIONER’S MOTION TO AMEND OR
MAKE ADDITIONAL FINDINGS AND TO ALTER OR AMEND THE COURT’S
JUDGMENT DENYING PETITION FOR WRIT OF HABEAS CORPUS
On March 26, 2013, this Court entered an opinion and order denying Petitioner’s
application for the writ of habeas corpus under 28 U.S.C. § 2254. Presently before the
Court is Petitioner’s “Motion to Amend or Make Additional Findings and to Alter or
Amend the Court’s Judgment Denying Petition for Writ of Habeas Corpus,” filed
pursuant to Federal Rules of Civil Procedure 52(b) and 59(e) on April 23, 2013. For the
reasons that follow, the Court denies Petitioner’s motion.
Background
In 2002, Petitioner was convicted of first-degree murder, five counts of assault
with intent to commit murder, one count of discharging a firearm toward a building, one
count of felony firearm, and one count of carrying a concealed weapon (“CCW”). He
was found not guilty on one count of obstruction of justice and one count of subornation
of perjury. The trial court subsequently sentenced Petitioner to life without parole for the

first-degree murder conviction, imprisonment for 13 to 30 years for each of the assault
convictions, one to four years for the discharging a firearm conviction, two to five years
for the CCW conviction, and a consecutive two-year term for the felony firearm
conviction.
After the adjudication of his direct appeal and motion for new trial in the state
courts, Petitioner filed the pending action asserting the following grounds in support of
his request for habeas relief:
(1)

His rights under the Confrontation Clause were violated when Rod
Jeter’s statement was used to identify him as the shooter;

(2)

The prosecutor committed misconduct by using Jeter’s statement
against him, by commenting on Petitioner’s Fifth Amendment right
to remain silent, and by badgering him;

(3)

The State failed to exercise due diligence in locating witness
Ladarius Edwards;

(4)

The State suppressed material exculpatory evidence; and

(5)

Trial counsel was ineffective for failing to investigate the
“nineteenth bullet casing.”

Respondent claimed in response that part of Petitioner’s second claim (as it related to the
prosecutor’s questions about lying to the police and referring to Petitioner as the
“enforcer”) and his fourth and fifth claims are procedurally defaulted and that all of his
claims lack merit. In its March 25, 2013 decision, this Court found that part of
Petitioner’s second claim and his fourth and fifth claims were procedurally defaulted and
that Petitioner failed to demonstrate cause for the default. The Court then found no merit

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to Petitioner’s remaining claims.
Petitioner filed the pending motion, summarizing his challenges to the Court’s
decision as follows:
I.

Whether the Court erred in finding that Petitioner’s trial counsel
failed to object to the prosecutor’s use of Roderick Jeter’s
testimonial statement identifying Petitioner as the shooter?

II.

Whether the Court should amend its decision on the Crawford issue
with respect to the use of Roderick Jeter’s out of court statement by
considering additional record evidence substantiating Petitioner’s
claim that the prosecutor improperly argued the substance of Mr.
Jeter’s out of court statement as evidence in the murder case?

III.

Whether the Court erred in finding that Petitioner’s appellate counsel
decided for strategic reasons not to assert a Brady violation with
respect to the state’s failure to disclose evidence of a nineteenth
bullet casing?

IV.

Whether the Court should amend its decision on the Brady and
Strickland issues by considering the great weight of all of the
evidence from the state court record substantiating Petitioner’s claim
that nineteen casings were found at the scene?

V.

Whether the Court should amend its decision on the Doyle claim by
considering the substance of Petitioner’s interrogation record with
Detroit Police substantiating his testimony at trial that he selectively
invoked his right to remain silent?
Applicable Standard

Rule 52(b) provides that “[o]n a party’s motion . . . the court may amend its
findings– or make additional findings– and may amend the judgment accordingly. The
motion may accompany a motion for a new trial under Rule 59.” Fed. R. Civ. P. 52(b).
Motions to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e)

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may be granted only if there is a clear error of law, newly discovered evidence, an
intervening change in controlling law, or to prevent manifest injustice. GenCorp., Inc. v.
Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). The Sixth Circuit has
“repeatedly held that a Rule 59(e) motion ‘does not permit parties to . . . re-argue a case’
and ‘cannot be used to present new arguments that could have been raised prior to
judgment.’ ” Schellenberg v. Twp. of Bingham, 436 F. App’x 587, 598 (6th Cir. 2011)
(quoting Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008)).
Analysis
In his pending motion, Petitioner first contends that the Court should consider the
Detroit Police Department Constitutional Rights Certificate of Notification Form, dated
February 7, 2001, where he invoked his right to remain silent to evaluate his claim that
the prosecutor improperly referred to his silence during cross-examination. The form was
not included among the Rule 5 materials submitted by Respondent. The form, however,
does not change the Court’s analysis of Petitioner’s second ground in support of his
request for habeas relief. This is because the Court assumed without the form, based on
Petitioner’s trial testimony and the arguments in his briefs, that he had in fact “officially”
invoked his right to remain silent when he and his attorney went to the police station.
Petitioner next asserts that the Court erred in finding that his trial counsel failed to
object at trial when the prosecutor referred to his silence. The Court does not agree. The
prosecutor asked a series of questions about what Petitioner did or not tell police when he
reported to the police station without an objection from defense counsel. As Petitioner
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points out, his counsel did assert an objection, but this was after several questions were
posed to Petitioner which he answered and only following the question: “But you didn’t
do anything. You sat in the car and ducked?” (5/7/02 Trial Tr. at 62.) Unlike Petitioner,
the Court does not understand this question as conveying to the jury that he failed to tell
Detroit Police that he never exited the vehicle but stayed inside and ducked when the
shooting erupted, thereby injecting his silence into the proceedings. The question simply
asks Petitioner about his actions at the time of the shooting.
However, even if Petitioner’s trial counsel properly objected to the prosecutor’s
line of questioning concerning Petitioner’s invocation of his right to remain silent and the
state court did not deem the issue procedurally defaulted, the Court cannot find the state
court’s analysis of the issue to be contrary to or an unreasonable application of clearly
established federal law as determined by the Supreme Court for the reasons discussed in
this Court’s March 26, 2013 decision. As discussed there, the prosecutor’s questions only
followed Petitioner’s testimony that he and his attorney went to the police station to
discuss the shooting. (ECF No. 19 at 10.) The prosecutor was not prohibited from using
Petitioner’s silence to challenge the impression he created concerning his cooperation
with police. (See id. at 11.)
The third and fourth arguments raised by Petitioner in his pending motion relate to
the purported nineteenth shell casing. Petitioner argues that the Court erred in finding, as
the trial court did, that there in fact was no nineteenth shell casing and that reference to
such a casing was a clerical error. Petitioner contends that “[t]he great weight of the
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evidence in this case supports Petitioner’s claim that nineteen casings were found at the
crime scene.” (Pet.’s Br. in Support of Mot. at 8.) Petitioner also argues that the Court
erred in finding the issue procedurally defaulted due to his failure to show cause and
prejudice based on his appellate counsel’s failure to raise the issue on direct review before
the Michigan Court of Appeals. Rather than making a strategic decision not to raise the
issue, Petitioner indicates that his appellate counsel in fact raised the issue but then failed
to perfect the issue as instructed by the court clerk.
The state court’s factual findings are presumed correct unless Petitioner presents
clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). “[A] decision
adjudicated on the merits in a state court and based on a factual determination will not be
overturned on factual grounds unless objectively unreasonable in light of the evidence
presented in the state-court proceeding.” Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir.
2010) (brackets omitted) (quoting Miller–El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct.
1029 (2003)). There is not clear and convincing evidence contrary to the state court’s
finding that there was no nineteenth shell casing. In any event, even if there in fact was a
nineteenth shell casing that the prosecution withheld, Petitioner fails to show that it was
reasonably probable that this evidence would have changed the verdict, thus precluding
any finding of prejudice to excuse his procedural default of this claim.1

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In this Court’s view, it therefore matters not whether Petitioner’s counsel
intentionally failed to raise this issue on direct appeal or intended to raise the issue but
thereafter failed to perfect it as directed by the clerk of the court.
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Petitioner next asks the Court to reconsider its ruling regarding the admissibility of
Rod Jeter’s custodial statement in light of the fact that the prosecutor did not only refer to
the statement when cross-examining Petitioner but also when examining Lieutenant
Nolan. Petitioner also contends that the statement was offered not as impeachment
evidence, but to identify him as the shooter.
The Court continues to conclude that Jeter’s statements were admissible once
Petitioner opened the door by denying any reason for threatening and/or intimidating him.
In addition to impeaching Petitioner’s assertion that Jeter never implicated him in the
shooting, Jeter’s statement was admissible to show Petitioner’s motive to commit the
alleged obstruction of justice and attempted subornation of perjury charges. To the extent
the prosecutor improperly emphasized the content of Jeter’s statement during closing
argument, for the reasons discussed in the Court’s March 26, 2013, the Court concludes
that any error was harmless.
Lastly, Petitioner argues that the failure of the prosecution to produce Ladarius
Edwards for trial was prejudicial. Petitioner fails to demonstrate, however, that the
prosecutor’s failure to produce this witness violated federal law. Petitioner has not
identified any evidence that Edwards could have provided that would have been
exculpatory.
Conclusion
For the reasons discussed above, the Court does not find a clear error of law,
newly discovered evidence, an intervening change in controlling law, or a threat of
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manifest injustice requiring it to amend or make additional findings or to alter or amend
the judgment.
Accordingly,
IT IS ORDERED, that Petitioner’s Motion to Amend or Make Additional
Findings and to Alter or Amend the Court’s Judgment Denying Petition for Writ of
Habeas Corpus is DENIED.

Dated: June 4, 2013

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Deano C. Ware, Esq.
Mark G. Sands, Esq.

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