Robinson v. Winn

Filing 44

ORDER Denying 41 the Motion for Immediate Release. Signed by District Judge Denise Page Hood. (LSau)

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

Civil No. 2:16-CV-12721
HONORABLE DENISE PAGE HOOD

v.
JAMES CORRIGAN,
Respondent.
_____________________________/
ORDER DENYING THE MOTION FOR IMMEDIATE RELEASE
Before the Court is petitioner’s motion for immediate release (ECF
No. 41). For the reasons that follow, the motion is DENIED.
This Court denied habeas relief to petitioner. Robinson v. Horton, No.
2:16-CV-12721, 2018 WL 3609547 (E.D. Mich. July 27, 2018). The United
States Court of Appeals for the Sixth Circuit vacated this Court’s decision
with respect to petitioner’s claim that the trial court judge violated his Sixth
Amendment right to a trial by jury by using factors that had not been
submitted to a jury and proven beyond a reasonable doubt or admitted to by
petitioner when scoring the guidelines variables under the Michigan
Sentencing Guidelines. The Sixth Circuit concluded that petitioner did not
properly exhaust this claim because he failed to fairly present the claim to
the Michigan Supreme Court as part of the appellate court process.
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Robinson v. Horton, 950 F.3d 337, 343-46 (6th Cir. 2020). The Sixth Circuit
found that although this Court had denied the claim on the merits, the Sixth
Circuit believed that petitioner’s Sixth Amendment claim was now potentially
meritorious in light of their decision in Robinson v. Woods, 901 F.3d 710,
716-18 (6th. Cir. 2018); cert. den. sub nom. Huss v. Robinson, 139 S. Ct.
1264 (2019), in which the Sixth Circuit found Michigan’s mandatory
sentencing guidelines scheme to be unconstitutional. Id., at 347. The Sixth
Circuit remanded the case to this Court to determine whether to dismiss the
case without prejudice or hold the petition in abeyance while petitioner
exhausts this claim in the state courts. Id. On remand, the case was held in
abeyance to permit petitioner to exhaust additional claims in the state court.
On October 28, 2022, the parties submitted a stipulation that
petitioner’s sentence was imposed, in part, contrary to the constitutional
mandates in Alleyne v. United States, 570 U.S. 99, 103 (2013) and People
v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (Mich. 2015). The parties
further agreed that a writ of habeas corpus be granted and the case
remanded to the Wayne County Circuit Court. On remand, the circuit court
was to conduct a hearing, pursuant to People v. Lockridge, 498 Mich. at 397,
and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), to determine
whether or not the judge would have imposed the same sentence without
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the sentencing guidelines. The parties also asked this Court to order the trial
court to take action to conduct the Crosby remand within 180 days of this
Court’s order. This Court entered the requested order. (ECF No. 39.). The
Court took the additional step of issuing Notice to the Wayne County Circuit
Court regarding the habeas outcome and the potential consequences of the
State’s failure to take action within 180 days. (ECF No. 40).
Petitioner, through counsel, has now filed a motion for immediate
release, on the ground that the trial court has yet to conduct the Crosby
hearing.
Respondent has filed a response to the motion. Although
acknowledging that a hearing has yet to be conducted, respondent notes
that on the same day that the writ was granted, the Assistant Attorney
General sent the conditional writ by e-mail to Assistant Prosecuting
Attorneys (APAs) Jon Wojtala and Amanda Morris Smith in the appellate
section of the Wayne County Prosecutor’s Office. APA Wojtala provided
assurance that they would timely comply with the conditional writ. The
Wayne Circuit Court appointed counsel for petitioner on November 16, 2022.
(Wayne County Register of Actions 10-6297-01-FC, attached as Attachment
A to the response)(ECF No. 42-1, PageID.1841). Rachel Helton was
appointed counsel; she is the same attorney who filed petitioner’s state
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motion for relief from judgment. (See ECF No. 30-1, PageID.1702, 1721,
ECF No. 42-2, PageID.1843).
On April 7, 2023, one of petitioner’s attorneys, Amanda Bashi, e-mailed
Assistant Attorney General Scott R. Shimkus, who is representing the
respondent, to find out who at the Wayne County Prosecutor’s Office was
handling the remand so that Ms. Bashi could facilitate contact between the
prosecutor and Robinson’s state defense counsel, Rachel Helton. Five
minutes later, Mr. Shimkus contacted APA Amanda Morris Smith about Ms.
Bashi’s question. Less than an hour later, APA Morris Smith replied that APA
Daniel Hebel had been the prosecutor on petitioner’s direct appeal might
handle the Crosby remand as well, copying Mr. Hebel on the email. Mr.
Shimkus passed along APA Hebel’s name to Ms. Bashi. No response was
received by Mr. Shimkus.
Upon receipt of petitioner’s motion on December 7, 2023, Mr. Shimkus
immediately contacted the Wayne County Prosecutor’s Office. In response,
APA Jon Wojtala submitted an affidavit, attached to the state’s response,
which avers:
1.
I am Chief of Research, Training, and Appeals for the
Wayne County Prosecutor’s Office.
2. On November 1, 2022, I was notified by the Office of the
Michigan Attorney General of this Court’s October 28, 2022 order
conditionally granting Petitioner’s amended petition for a writ of
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habeas corpus, limited to his Alleyne v. United States claim, and
ordered that “[t]he State must take action to conduct a Crosby
remand ... within 180 days of the date of this order,” or April 26,
2023.
3. On November 4, 2022, I sent a formal notice of the Court’s
order to the Homicide Unit of the Wayne County Prosecutor’s
Office with direction to have the matter placed on the Third Circuit
Court hearing docket and heard before April 26, 2023. The
appropriate docket for the hearing would be that of Hon.
Shannon Walker, successor to the trial judge Hon. Vera MasseyJones.
4. On December 7, 2023, I was informed by the Office of the
Michigan Attorney General that Petitioner had moved for an
unconditional writ of habeas corpus for immediate release from
custody. The implication from the motion being that the State had
failed to comply with the Court’s order to conduct the Crosby
proceeding within 180 days. At that point, I set out to determine
the reasons for why that hearing did not timely occur.
5. Upon information and belief, on April 7, 2023, the Office of the
Michigan Attorney General reached out to the Appellate Division
of the Wayne County Prosecutor’s Office to determine the
identity of the Assistant Prosecuting Attorney assigned. It was
conveyed to the AG that it was possible that Assistant Prosecutor
Daniel Hebel was the assigned prosecutor. On May 3, 2023,
counsel for Petitioner, Rachel Helton, reached out to Mr. Hebel
to confirm he was assigned to the matter. Mr. Hebel responded
that he was no longer the assigned prosecutor.
6. On December 8, 2023, and December 11, 2023, affiant
communicated with the assigned Assistant Prosecuting Attorney,
William Lawrence. According to Mr. Lawrence, on April 13, 2023,
he was in the courtroom of Hon. Shannon Walker to discuss the
scheduling of several outstanding cases, including Petitioner’s
case. At that time, the courtroom staff was unaware of any order
from this Court for a Crosby proceeding. On June 26, 2023, Mr.
Lawrence contacted Judge Walker’s courtroom again inquiring
about the status of the hearing. Ms. Helton was copied on his
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email. Mary McCrary, Administrative Assistant for Judge Walker
responded that the court had not received anything from the
federal court regarding a Crosby hearing. Mr. Lawrence
indicated that he personally went to Judge Walker’s courtroom to
show Ms. McCrary the Notice of Remand from this Court. That
notice of remand was addressed only to “Wayne County Circuit
Court,” and not directly to Judge Walker’s court, and requesting
the state court to acknowledge receipt by returning a timestamped copy of the notice. Ms. McCrary indicated to Mr.
Lawrence that Judge Walker’s court had not received any order
or directive from the federal court on this case and, until such an
order was received, no hearing could be docketed. Mr. Lawrence
indicated that he had no recall of ever communicating with Ms.
Helton, or any other attorney representing Petitioner, about this
case. Mr. Lawrence received no response from Ms. Helton
following his email to Judge Walker’s courtroom on June 26,
2023.
7. On December 11, 2023, affiant communicated with Mary
McCrary, Administrative Assistant for Judge Shannon Walker.
Ms. McCrary indicated that the courtroom last had the court file
for Petitioner’s case on April 23, 2023, when she provided
Petitioner with a copy of the verdict. Since then, the only
communication she had about the case were the inquiries from
Mr. Lawrence, the last being in June.
8. The above information is provided to the Court based upon
matters of my own knowledge and upon information provided to
me by other individuals.
9. If called to appear before this Court, affiant will appear to testify
about the affidavit and to answer any questions the Court may
have.
(ECF No. 43).
A district court that grants a conditional writ of habeas corpus retains
jurisdiction to execute a lawful judgment which grants a writ of habeas corpus
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when it becomes necessary. See Gentry v. Deuth, 456 F.3d 687, 692 (6th
Cir. 2006). If, on the other hand, the respondent meets the terms of the
habeas court’s condition, thereby avoiding the writ’s actual issuance, the
habeas court does not retain any further jurisdiction over the matter. Id.
When the state fails to cure the error, i.e., when it fails to comply with the
conditions of a grant of a conditional writ in habeas corpus proceedings, a
conditional grant of a writ of habeas corpus requires the petitioner’s release
from custody. See Satterlee v. Wolfenbarger, 453 F.3d 362, 369 (6th Cir.
2006). However, “Satterlee does not require immediate release in all cases
where a term of the conditional writ was not performed precisely as ordered.”
McKitrick v. Jeffreys, 255 F. App’x 74, 76 (6th Cir. 2007). A district court may
make exceptions when the state has “substantially complied” with the terms
of the order. Id.; See also Ward v. Wolfenbarger, 342 F. App’x 134, 137 (6th
Cir. 2009).
The Court denies petitioner’s motion for an unconditional writ or for
immediate release because the State of Michigan substantially complied with
the terms of the conditional writ. First, the Wayne County Circuit Court did
almost immediately appoint counsel to represent petitioner at his Crosby
hearing, which shows some compliance with the Court’s order. See McKitrick
v. Jeffreys, 255 F. App’x 77 (State substantially complied with terms within
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90 days, and thus release from state custody was not warranted, where
counsel was appointed and a hearing date was set well within the 90-day
time frame, but a continuance resulted in the imposition of a new sentence
91 days after the district court’s order). Most of the delays here are due to
some confusion within the Wayne County Prosecutor’s Office over who
would be assigned to represent the state at the Crosby remand. Some of the
delay may also be attributable to the reassignment of the case from
petitioner’s trial judge, Judge Jones, now retired, to Judge Walker.
The broad discretion inherent in this Court’s habeas powers includes
the ability to determine “whether the state has provided a legitimate reason
for its delay in executing the conditions set forth in the writ.” McKitrick v.
Jeffreys, 255 F. App’x at 76. The state has provided legitimate reasons for
its delay in executing the writ.
More importantly, the writ in this case did not order a re-trial for
petitioner or even a reduction of his sentence. Petitioner still stands convicted
of assault with intent to murder, felon in possession of a firearm, and felony
firearm for shooting 20-year-old Jamel Chubb execution-style at a gas
station over a love triangle. People v. Robinson, No. 321841, 2015 WL
6438239, at *1 (Mich. Ct. App. Oct. 22, 2015). The writ was conditioned on
the state conducting a Crosby hearing to determine whether the same
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sentence should be imposed now that the sentencing guidelines are advisory
rather than mandatory. If the judge determines that the sentence would
remain the same, the sentence stands. People v. Lockridge, 498 Mich. at
396.
Petitioner is not entitled to release because the delays, while troubling,
were not committed in bad faith but were the result of miscommunication
between the various state entities. See e.g. Lovins v. Parker, 604 F. App’x
489, 491 (6th Cir. 2015). Secondly, petitioner’s conviction is valid. It is only
the length of his sentence that is at issue. Petitioner is not serving time on
an invalid conviction nor has he served more than the statutory maximum for
his sentences. Id.
This Court believes that respondent has substantially complied with
the terms of the conditional grant, based on a request to the state court trial
judge to schedule a hearing. The Court will deny the motion for immediate
release at this time. The Court also grants respondent a ninety-day extension
of time from the date of this order to again seek a hearing before the assigned
state court trial judge to conduct a Crosby hearing. If no such hearing is held
by the assigned state court trial judge, Petitioner may file a new motion for
release, and Respondent may respond, as to why the Court should not issue

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an unconditional writ releasing Petitioner from state custody based on the
parties’ stipulation. (See ECF No. 39, PageID.1805).
Accordingly, IT IS HEREBY ORDERED that the motion for immediate
release (ECF No. 41) is DENIED without prejudice. Respondent has an
additional ninety (90) days from the date of this order to comply with the
conditional writ. The parties will submit a joint statement as to the status of
the matter and/or Petitioner may file a new motion for release based on the
parties’ stipulation as noted above.
IT IS FURTHER ORDERED that Respondent serve a copy of: 1) this
Order, 2) the Stipulation and Order Conditionally Granting Amended
Petition for a Writ of Habeas Corpus (ECF No. 39) and 3) the Notice
Remanding Case to Wayne County Circuit Court (ECF No. 41), to the
Wayne County Prosecutor (and the assigned prosecutor), the Assigned
State Court Trial Judge of the underlying case, and the Clerk of the Wayne
County Circuit Court. Respondent shall file a proof of service with this
Court after service to the above entities.
s/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: January 23, 2024

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