Robinson v. Perry

Filing 13

OPINION AND ORDER DENYING Petition for Writ of Habeas Corpus 1 , DECLINING to Issue a Certificate of Appealability, and GRANTING Leave to Appeal In Forma Pauperis. Signed by District Judge Laurie J. Michelson. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CLETE ROBINSON,
Petitioner,

Case No. 14-14168
Honorable Laurie J. Michelson

v.
MITCH PERRY,
Respondent.
OPINION AND ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS [1], DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Clete Robinson was at a Detroit home when police executed a search warrant,
finding marijuana and heroin. A Wayne County Circuit Court jury convicted Robinson on two
possession charges, and he is serving a sentence of 6 to 20 years’ imprisonment. Before the
Court is his pro se habeas petition under 28 U.S.C. § 2254, which raises two claims: (1)
insufficiency of the evidence, and (2) the trial judge abused his discretion by denying Robinson’s
request for a continuance on the trial’s first day so that he could obtain new counsel. For the
reasons that follow, the Court will deny the petition.
I.
A Detroit police “raid crew” executed a search warrant at a home on Mapleridge in
Detroit on April 12, 2011. (R. 8-6, PID 243.) One of the officers, Neil Gensler, testified that as
the crew ran up to the house yelling, “Police” and “Search warrant,” he saw Petitioner Clete
Robinson slam a kitchen stove shut and then slam the front door shut as well. (R. 8-6, PID 245,
253.) After the police forced open the front door, they found Robinson and his co-defendant,
Zajuan Nenrod, in the kitchen and several others in the living room. (R. 8-6, PID 254–55.)

Officer Gensler opened the stove and found marijuana and what he believed was heroin. (R. 8-6,
PID 256.) He also found a digital scale, some ziplock bags, and what appeared to be a “tally
sheet” in the kitchen. (R. 8-6, PID 260–62.) Another officer, Maureen Whiten, found a plastic
bag with suspected heroin inside the pocket of a coat hanging on the door knob of a bedroom. (R.
8-6, PID 311–12.) Subsequent analysis revealed that it was 68.14 grams of heroin, with an
estimated street value of close to $70,000. (R. 8-6, PID 333–34.) In the same bedroom as the coat
with heroin, police also found Robinson’s birth certificate, photos of Robinson and Nenrod
together, and documents connecting Nenrod to the home, including a utility bill. (R. 8-6, PID
324–30.) Police found other evidence connecting Robinson to the house: the key to the front
door in his pocket. (R. 8-6, PID 324.)
A Wayne County Circuit Court jury convicted Robinson of possession with intent to
deliver more than 50 but less than 450 grams of heroin in violation of Michigan Compiled Laws
§ 333.7401(2)(a)(iii) and possession of marijuana in violation of Michigan Compiled Laws
§ 333.7403(2)(d). The trial court sentenced him to 6 to 20 years’ imprisonment for the heroin
offense, concurrent with a 20-day sentence (time served) for the marijuana offense. (R. 8-8, PID
569.)
Following Robinson’s conviction, he moved the Michigan Court of Appeals for a remand
to the trial court under Michigan Court Rule 7.211(C)(1)(a) (which allows for certain pre-direct
appeal remands) to explore a potential appellate claim that the trial court abused its discretion by
not granting a continuance on the trial’s first day so that Robinson could obtain substitute
counsel or get more time for his existing counsel to contact a potential witness Robinson had
asked him to call. (R. 8-8, PID 575.) (As the Court will discuss later, the witness was someone
else who was at the home during the raid.) The Michigan Court of Appeals summarily denied the

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motion for Robinson’s “failure to persuade the Court of the necessity of a remand.” (R. 8-8, PID
603.)
Robinson then appealed his conviction to the Michigan Court of Appeals, raising two
claims: (1) the evidence was insufficient to prove that he constructively possessed the heroin
found in the coat, and (2) the trial judge abused his discretion by not granting a continuance
either to appoint new counsel or to allow Robinson’s existing counsel time to investigate and
prepare the potential witness. (R. 8-8, PID 607.) After consolidating Robinson’s appeal with
Nenrod’s, the Michigan Court of Appeals affirmed Robinson’s conviction in an explained
decision. See People v. Nenrod, No. 308340, 2013 WL 6083721, at *1 (Mich. Ct. App. Nov. 19,
2013) (per curiam).
Robinson raised essentially the same claims in a pro se application for leave to appeal to
the Michigan Supreme Court. (R. 8-9, PID 645.) The Michigan Supreme Court denied the
application in a summary order because it was “not persuaded that the questions presented
should be reviewed.” (Id. at PID 640.) Robinson filed his federal habeas petition in October
2014, raising essentially the same claims again: (1) “Insufficiency of Evidence” and (2) “Abuse
of Discretion” (again addressing the continuance and substitution of counsel issue). (R. 1, PID 4,
6.)
Robinson did not petition the United States Supreme Court for certiorari or file for statecourt post-conviction relief. He asked this Court to stay his case so he could exhaust unspecified
claims in state court, but the Court denied his request. (R. 12.)
II.
As will be discussed, the Michigan Court of Appeals decided both of Robinson’s claims
“on the merits,” so this Court’s standard of review stems from the Antiterrorism and Effective

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Death Penalty Act of 1996, which prohibits this Court from granting habeas corpus relief unless
the adjudication “(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.” See 28 U.S.C. §
2254(d).
III.
A.
Robinson first claims that the evidence at trial was insufficient to establish that he
possessed 50 or more grams of heroin with the intent to distribute it. More specifically, he
challenges the sufficiency of the evidence that he constructively possessed the heroin found in a
coat in a bedroom. (See R. 1, PID 25–27.)
The Michigan Court of Appeals decided Robinson’s claim “on the merits.” The court
discussed authority on the sufficiency of evidence and possession. Nenrod, 2013 WL 6083721, at
*3. The court then noted the facts relevant to Robinson’s possession of the heroin. First, “68.14
grams of heroin were discovered in a bedroom in the pocket of a coat hanging on a door.” Id. at
6. Second, “In that same bedroom, the police found Robinson’s birth certificate and several
photographs of Robinson and Nenrod.” Id. Finally, “At the time of his arrest, Robinson also
possessed a key to the front door of the house.” Id. As the Court concluded, “These facts, along
with his closing the oven door, considered together and viewed in a light most favorable to the
prosecution, were sufficient to enable a rational jury to conclude beyond a reasonable doubt that
Robinson possessed the heroin found in the bedroom.” Id. This Court finds nothing unreasonable
about that conclusion.

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To assess a sufficiency of evidence claim, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Davis v.
Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). “The Jackson v. Virginia standard ‘gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.’” Id. (quoting Jackson, 443 U.S. at 319). What is
more, the standard “is so demanding that ‘[a] defendant who challenges the sufficiency of the
evidence to sustain his conviction faces a nearly insurmountable hurdle.’” Id. at 534 (quoting
United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)). Given the Michigan Court of Appeals’
“on the merits” determination, “the stringent and limiting standards of AEDPA” apply on top of
the Jackson standard: this Court may disturb “a state court’s decision that correctly identified and
applied the controlling Supreme Court precedent only if the application of that precedent was
objectively unreasonable, meaning more than incorrect or erroneous.” Id. (internal quotation
marks and citations omitted).
The Jackson standard “is applied ‘with explicit reference to the substantive elements of
the criminal offense as defined by state law,’” so the Court will look to Michigan law on
constructive possession. See Lafler, 658 F.3d at 531 (quoting Jackson, 443 U.S. at 324 n.16).
Under Michigan law, “[a] person need not have actual physical possession of a controlled
substance to be guilty of possessing it.” People v. Wolfe, 489 N.W.2d 748, 753 (Mich. 1992),
amended (Oct. 9, 1992). Possession can be “actual or constructive,” and it can also be joint,
“with more than one person actually or constructively possessing a controlled substance.” Id.

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(citations omitted). “The essential question is whether the defendant had dominion or control
over the controlled substance.” People v. Konrad, 536 N.W.2d 517, 521 (Mich. 1995).
Circumstantial evidence is enough to support finding possession, see People v. McGhee,
709 N.W.2d 595, 612 (Mich. Ct. App. 2005), and the prosecution presented plenty of
circumstantial evidence here suggesting that Robinson possessed dominion or control over the
heroin found in the coat. To be sure, the prosecution connected Robinson to the house where the
heroin was found: Robinson was present at the time of the raid, he was seen shutting an oven
door to conceal drugs in response to the raid, he had a key to the home’s front door in his pocket,
and pictures were found showing Robinson with Nenrod, who was otherwise connected to the
house by a utility bill (among other things). Not only that, but the prosecution connected
Robinson to the very room where the heroin was found: his birth certificate was there too. Based
on that evidence, it was not unreasonable for the Michigan Court of Appeals to conclude that a
reasonable jury could find that Robinson constructively possessed the heroin.
Accordingly, Robinson is not entitled to habeas relief for his first ground.
B.
Robinson’s second claim is labelled “abuse of discretion.” (R. 1, PID 6.) He contends that
the trial court erred by denying his request for a continuance on the first day of trial so that he
could either obtain new counsel or give his current counsel an opportunity investigate and
explore the possibility of presenting testimony from a witness that Robinson had asked him to
contact. (R. 1, PID 28.)
In his direct appeal to the Michigan Court of Appeals, and here in his habeas petition,
Robinson has maintained that when he asked for a continuance, he was asserting two
constitutional rights: his Sixth Amendment right to the effective assistance of counsel and his

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“right to call witnesses in his own defense.” (See R. 8-8, PID 619; R. 1, PID 28.) So contrary to
Respondent’s assertions, it does appear that Robinson—both here and in state court—at least to
some extent presented this claim as a constitutional one. (See R. 7, PID 68–69.)
By way of background, when Robinson requested the continuance on the first day of trial,
he raised two issues. First, he complained about communication issues with his attorney. For
instance, Robinson said that he had difficulty reaching his attorney and that he had left a
voicemail asking him to contact a potential witness, but counsel never did. (R. 8-6, PID 153.)
Second, he suggested that his counsel was unprepared. In particular, Robinson claimed that he
had just overheard his counsel mistakenly saying Robinson was facing a cocaine charge, not a
heroin one. (Id.) After further colloquy with the court, the trial judge said that he would not allow
for substitution of counsel “on the day of trial.” (R. 8-6, PID 156.) For his part, Robinson’s
counsel maintained that Robinson did not respond to his request to provide the names and
contact information for potential witnesses. (R. 8-6, PID 156.)
The Michigan Court of Appeals found that the trial court did not abuse its discretion by
denying Robinson’s request for a continuance. The court began by discussing the applicable
standards under Michigan law for reviewing trial court denials of requests for continuances,
along with the standards for a defendant’s entitlement to the appointment of substitute counsel.
See Nenrod, 2013 WL 6083721, at *7. While the court did not expressly couch its holding in
constitutional terms, the court did find that Robinson failed to demonstrate any prejudice relevant
to the two constitutional components of his claim. For instance, the court noted that Robinson
had “not indicate[d] what outcome-determinative action defense counsel could have taken if he
had more time to prepare.” Id. As for Robinson’s claim surrounding the potential witness, the
court observed that Robinson “has not established that the proposed witness would have actually

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testified as Robinson claims, or shown that his testimony would have made a difference in the
outcome of the trial.” Id. at *8. Overall, the court concluded that because Robinson was “unable
to show either good cause or actual prejudice, . . . the trial court did not abuse its discretion by
denying Robinson’s requests for an adjournment and substitute counsel.” Id. Thus, to the extent
that Robinson has made a federal constitutional claim, the Court will presume that the Michigan
Court of Appeals decided the claims “on the merits,” as Robinson has not urged otherwise nor
pointed to anything rebutting that presumption. See Johnson v. Williams, 568 U.S. 289, 301
(2013) (“When a state court rejects a federal claim without expressly addressing that claim, a
federal habeas court must presume that the federal claim was adjudicated on the merits—but that
presumption can in some limited circumstances be rebutted.”).
To the extent that Robinson challenges the trial court’s refusal to grant a continuance so
that he could obtain substitute counsel, the Court notes that “the right to counsel of choice does
not extend to defendants who require counsel to be appointed for them.” United States v.
Gonzalez-Lopez, 548 U.S. 140, 151 (2006). Courts reviewing substitution of counsel denials
generally consider “the timeliness of the motion; the adequacy of the district court’s inquiry into
the defendant’s complaint; and the asserted cause for that complaint, including the extent of the
conflict or breakdown in communication between lawyer and client.” See, e.g., Martel v. Clair,
565 U.S. 648, 663 (2012).
In light of those factors, the Michigan Court of Appeals’ decision was not objectively
unreasonable. The Court noted that Robinson had been “dilatory in waiting until the day of trial
to request new counsel.” Nenrod, 2013 WL 6083721, at *8. As the court observed, while
Robinson claimed that he did not raise the issue at a final pretrial conference because he was
ordered to take a drug test, that still left him with three weeks to raise the issue before trial. Id.

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But he waited until the day of trial. Furthermore, the record reveals that the trial court made
adequate inquiry into the reasons underlying Robinson’s request, something he has not disputed
here or in his direct appeal. Finally, the trial court reasonably concluded that Robinson’s trial
counsel’s alleged lack of preparation was insufficient to justify adjourning the trial:
[T]here is no record that defense counsel ever indicated that he was unprepared
for trial or needed more time. To the contrary, counsel appeared to be fully aware
of the facts of the case, which were not overly complex, and advised the court that
he was ready to proceed. Although defense counsel referred to the charged
offense as possession of cocaine, rather than possession of heroin, the trial court
correctly explained that the apparent misstatement did not indicate
unpreparedness because charges for possession of heroin and possession of
cocaine were ostensibly the same, i.e., possession of a controlled substance.
Robinson acknowledged talking on the phone to counsel before trial and in person
on the day of trial. Again, the record discloses that counsel was familiar with the
facts of the case. During trial, defense counsel thoroughly cross-examined police
witnesses about Robinson’s lack of connection to the drugs and the house,
discussed the police’s handing of the evidence, and brought up the other four men
in the house. In closing argument, counsel continued to highlight the lack of
evidence connecting Robinson to the drugs. Moreover, other than the alleged
failure to contact a prospective defense witness, Robinson does not indicate what
outcome-determinative action defense counsel could have taken if he had more
time to prepare.
Nenrod, 2013 WL 6083721, at *7. This was not unreasonable. And Robinson does not point to
any clearly established law to suggest otherwise.
To the extent Robinson challenges the trial court’s refusal to grant a continuance so that
his counsel could investigate and possibly prepare a potential witness, in general “broad
discretion must be granted trial courts on matters of continuances.” Morris v. Slappy, 461 U.S. 1,
11 (1983). Still, the denial of a motion for a continuance can carry constitutional implications.
See Franklin v. Bradshaw, 695 F.3d 439, 452 (6th Cir. 2012). But to warrant habeas relief,
Robinson “must show that the trial court’s decision embodied an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable request for delay.” Esparza v.

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Sheldon, 765 F.3d 615, 624–25 (6th Cir. 2014) (internal quotation marks and citations omitted).
“And he must show that the decision resulted in actual prejudice to his defense,” meaning the
continuance “would have made relevant witnesses available or added something to the defense.”
Id. at 625 (citation omitted).
Robinson has not shown prejudice. The Michigan Court of Appeals’ holding on this issue
was again reasonable:
Robinson identifies the previously unnamed defense witness as Willie Sistrunk,
one of the men present in the house at the time of the raid. According to
Robinson, Willie Sistrunk would have testified that the drugs belonged to Nenrod
only, and that Robinson was in the living room at the time of the raid. During
trial, however, defense counsel argued that the drugs did not belong to Robinson,
and Benjamin Sistrunk testified that both Robinson and Nenrod were in the living
room at the time of the raid. More importantly, in an affidavit attached to
Robinson’s motion to remand as an “offer of proof,” appellate counsel averred
that he had tried to speak with Willie Sistrunk, “but he has not yet returned [his]
messages.” Thus, Robinson has not established that the proposed witness would
have actually testified as Robinson claims, or shown that his testimony would
have made a difference in the outcome of the trial.
Nenrod, 2013 WL 6083721, at *7. Robinson still has not shown that Sistrunk would have
actually testified. Nor has he provided any affidavit from Sistrunk confirming Robinson’s
unsupported assertions about what that testimony would have been. So to the extent Robinson
claims that his counsel’s failure to contact this witness contributed to his alleged lack of
preparation justifying the continuance, on this record, Robinson cannot show prejudice. See
Hutchison v. Bell, 303 F.3d 720, 748 (6th Cir. 2002) (“This Court has held that a petitioner
cannot show deficient performance or prejudice resulting from a failure to investigate if the
petitioner does not make some showing of what evidence counsel should have pursued and how
such evidence would have been material.”).
Accordingly, as Robinson is not entitled to habeas relief for this claim.

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IV.
For the foregoing reasons, the Court DENIES WITH PREJUDICE Robinson’s petition
for a writ of habeas corpus (R. 1).
In order to appeal the Court’s decision, Robinson must obtain a certificate of
appealability. To obtain a certificate of appealability, a prisoner must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To demonstrate this
denial, the applicant is required to show “that reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483–
84 (2000) (internal quotation marks and citation omitted). A federal district court may grant or
deny a certificate of appealability when the court issues a ruling on the habeas petition. Castro v.
United States, 310 F.3d 900, 901–02 (6th Cir. 2002) (per curiam).
Here, jurists of reason would not debate the Court’s conclusion that Robinson has not met
the standard for a certificate of appealability because both of his claims are devoid of merit.
Thus, the Court DENIES a certificate of appealability.
Finally, the Court will GRANT permission to appeal in forma pauperis, because an
appeal of this decision could be taken in good faith. See 28 U.S.C. § 1915(a)(3).
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
U.S. DISTRICT JUDGE

Dated: July 19, 2017

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court=s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on July 19, 2017.
s/Keisha Jackson
Case Manager

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