Townsend v. Palmer

Filing 8

OPINION AND ORDER DENYING the 1 Petition for Writ of Habeas Corpus filed by James Henry Townsend, II and DENYING a Certificate of Appealability Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_____________________________________________________________________
JAMES HENRY TOWNSEND, II,
Petitioner,
v.

Case No. 17-12128

CARMEN PALMER,
Respondent.
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OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
This is a habeas case filed by a state prisoner under 28 U.S.C. § 2254. Petitioner
James Townsend was convicted after a jury trial in the Wayne Circuit Court of firstdegree murder and sentenced to life imprisonment. Mich. Comp. Laws § 750.316. The
petition raises three claims: (1) the trial court erroneously denied Petitioner’s motion for
substitute counsel, (2) the trial court erred in denying admission of a photograph
depicting the victim with a firearm, and (3) Petitioner was denied the effective
assistance of counsel when his attorney slept during trial. For the reasons stated below,
the court will deny the petition for writ of habeas corpus and deny a certificate of
appealability.
I. BACKGROUND
This court adopts the relevant facts relied upon by the Michigan Court of
Appeals, which are presumed correct on habeas review. See 28 U.S.C. § 2254(e)(1);
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
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Defendants’ convictions arise from the February 23, 2014, shooting death
of Tairaz Harris, who was shot multiple times on a dark residential street in
Detroit. There were no eyewitnesses to the shooting, but a resident heard
the shots and then saw a sport utility vehicle (SUV) leave the scene.
Harris and defendant Carter had been close friends and were at a casino
together on the day Harris was shot. Carter lost all of his money, but
Harris won $5,000. Carter was the last person seen with Harris. Harris’s
money and wallet were missing when the police checked his body.
Carter had borrowed a black SUV from his girlfriend, Taylor Williams. After
the shooting, Carter and Townsend asked Williams to drive them to
Saginaw, where they dropped off Townsend. Carter and Williams then
drove from Saginaw to Williams’s apartment in Ann Arbor, where they
spent the night. The police arrested Carter the next morning. At the time of
his arrest, Carter had more than $5,000 on his person. Carter gave a
statement to the police in which he stated that Harris was shot during a
“drug deal gone bad.”
The prosecution’s theory at trial was that Carter shot Harris, while aided
and abetted by Townsend, either because Carter believed that Harris had
something to do with the death of Carter’s cousin, Reggie Moore, or to rob
Harris of his money.
People v. Townsend, 2015 WL 8538908, at *1 (Mich. Ct. App. Dec. 10, 2015) (Dkt. #711).
Missing from the state court’s summary of facts is a description of the evidence
tying Petitioner to the crime. At trial it was established that Petitioner’s co-defendant,
Obie Carter, shot the victim. Petitioner was connected to Carter through cell phone
records. Petitioner told police that he was at his mother’s house at the time of the crime.
Cell phone tower records, however, showed that he was in the area of the shooting at
the time of the crime. Furthermore, texts between the two defendants—ones they
thought they deleted from their cell phones—strongly indicated Petitioner’s knowledge
of and participation in the murder. (See Dkt. #7-7, PageID 1192) (Co-defendant: “Bro’,
I’m bout to body this nigga.” Petitioner: ”Who you wit? You want me to go wit you?” Co2

defendant: “Bro’, listen, delete these texts. Everything when I’m done. I’m about to
whack dog. I need you to be with me, Bro’, RT.”)
Following his conviction and sentence, Petitioner filed an appeal of right. His
appellate counsel filed a brief on appeal that raised three claims:
I. Whether the trial court improperly denied a request made for substitute
counsel prior to jury selection.
II. Whether the trial court erred in denying the admission of a photo
depicting marijuana and the victim with a gun in his waistband.
III. Whether the trial judge erred in denying Townsend’s motion for a new
trial regarding his claim that trial counsel provided ineffective assistance
by sleeping during trial.
The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished
opinion. (Dkt. #7-11.) Petitioner subsequently filed an application for leave to appeal in
the Michigan Supreme Court that raised the same claims. The Michigan Supreme Court
denied the application because it was not persuaded that the questions presented
should be reviewed by the court. People v. Townsend, 880 N.W.2d 552 (Mich. 2016)
(Dkt. #7-12).
II. STANDARD
28 U.S.C. § 2254(d)(1) restricts a federal court’s review of constitutional claims
raised by a state prisoner in a habeas action when the claims were adjudicated on the
merits by the state courts. Relief is barred under this section unless the state court
adjudication was “contrary to” or resulted in an “unreasonable application of” clearly
established Supreme Court law. 28 U.S.C. § 2254(d)(1). The Supreme Court of the
United States had explained that “[a] state court’s decision is ‘contrary to’ our clearly
established law if it ‘applies a rule that contradicts the governing law set forth in our
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cases’ or if it ‘confronts a set of facts that are materially indistinguishable from a
decision of this Court and nevertheless arrives at a result different from our precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (per curiam), quoting Williams v. Taylor,
529 U.S. 362, 405–06 (2000).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas
court to ‘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 petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting
Williams, 529 U.S. at 413). “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, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also Woods v.
Etherton, 136 S. Ct. 1149, 1152 (2016) (habeas relief precluded if state court decision is
“not beyond the realm of possibility [from what] a fairminded jurist could conclude.”)
III. DISCUSSION
A. Substitute Counsel
Petitioner’s first claim asserts that the trial court erroneously denied his motion
for substitute counsel made immediately before jury selection. After reciting the
applicable law with respect to late requests for substitute counsel, the Michigan Court of
Appeals denied the claim on the merits as follows:
Just before jury selection began in Townsend’s case, the trial court stated
that it had received a letter from Townsend the day before asking for more
time to find another attorney. Contrary to what Townsend argues, the trial
court allowed Townsend to explain his reasons for seeking new counsel.
Townsend complained he and his mother were uncomfortable with
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defense counsel because counsel did not pay attention during meetings,
had not provided all of the discovery materials, and failed to address
unspecified matters. Townsend admitted that he had met with his attorney
at least four times. Townsend indicated that he had met a new attorney
who was willing to take his case, but only if the trial court granted an
adjournment to give the attorney time to prepare. The trial court denied the
request for an adjournment because Townsend had waited until the start
of trial to make the request and because Townsend failed to articulate a
sufficient basis for his dissatisfaction with appointed counsel.
*

*

*

The circumstances of this case are factually similar to those in [People v.
Akins, 259 Mich. App. 545 (2003)], except that Townsend waited even
longer before requesting an adjournment. The trial court accurately
summarized Townsend’s complaints as merely not “feeling comfortable”
with his attorney. Townsend admitted that he had met with counsel at
least four times. Townsend did not identify any fundamental
disagreements or bona fide disputes with his attorney, or indicate how he
believed his attorney was unprepared or unable to properly represent him
at trial. Furthermore, Townsend’s request was received a day before trial.
An adjournment would have either required the court to also adjourn
Carter’s trial, or to sever the two cases. Under the circumstances and
considering Townsend’s failure to bring his concerns to the court’s
attention earlier and to identify a legitimate, bona fide dispute with his
appointed attorney, the trial court did not abuse its discretion by denying
Townsend’s request for an adjournment to retain new counsel.
Townsend, 2015 WL 8538908 at *5–7 (Dkt. #7-11).
This decision was not an unreasonable application of clearly established federal
law. Under federal law, when a criminal defendant seeks substitution of counsel he
“must show good cause, such as ‘a conflict of interest, a complete breakdown in
communication or an irreconcilable conflict with his attorney.’” Henness v. Bagley, 644
F.3d 308, 321 (6th Cir. 2011) (quoting United States v. Sullivan, 431 F.3d 976, 979 (6th
Cir. 2005)). A trial court’s consideration of a motion for substitute counsel “requires a
balancing of the accused’s right to counsel of his choice and the public’s interest in the
prompt and efficient administration of justice.” Wilson v. Mintzes, 761 F.2d 275, 280 (6th
Cir. 1985). Once the defendant raises an issue of “serious dissatisfaction with counsel,”
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the court must “inquire into the source and nature of his dissatisfaction.” United States
v. Powell, 847 F.3d 760, 778 (6th Cir. 2017). If the defendant’s motion would require a
last-minute continuance, the trial judge’s decision is “entitled to extraordinary
deference.” Henness, 644 F.3d at 321 (internal citation omitted).
Petitioner’s motion for substitute counsel would have required a last-minute
continuance, so the trial court’s decision to deny the motion is entitled to extraordinary
deference. Prior to the issue arising, defense counsel made a record of the efforts he
made at negotiating a plea deal with the prosecutor that had spanned the three days
immediately prior to trial. (Dkt. #7-4, PageID 397–98.) Petitioner was unwilling to accept
the plea deal, and counsel indicated, “I was at the preliminary examination. You know
that I filed a Motion to Quash. I have been fully engaged in this case for a long time.
Yes, I have gone over it with a fine-tooth comb for three days, let’s put it that way,
preparing for trial Saturday, Sunday and then yesterday. So I am familiar with the whole
case.” (Id., PageID 398.)
Counsel then informed the court that Petitioner was upset with him, and in
particular he was upset with the fact that the potentially incriminating texts coming from
his phone would probably be admitted at trial, driving his advice to Petitioner to accept a
plea deal. (Id., PageID 398–400.) The trial court allowed Petitioner to expound on his
letter to the court which expressed dissatisfaction with defense counsel. (Id., PageID
402–03.) Petitioner complained that he did not feel comfortable with counsel, that he
slept through their meetings, and that counsel did not give him the discovery materials.
(Id., PageID 403–04.) Petitioner indicated that he had another attorney ready to try the
case, but he needed an adjournment. (Id., PageID 404–05.)
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The trial court denied the request stating, “in light of the fact that this is the day of
trial, the morning of trial, that the jury is literally in the hallway and has been sitting out
there for sometime waiting for jury selection, given the late date and the issues that
you’re not comfortable with your attorney, I find that insufficient basis and I’m going to
deny your request for a new attorney and an adjournment.” (Id., PageID 405–06.)
The untimeliness of the request weighs strongly against Petitioner because his
request was made on the morning of trial. See United States v. Chambers, 441 F.3d
438, 447 (6th Cir. 2006) (request for substitute counsel made one and a half months
before trial was untimely). Nor did the trial court give the request short-shrift. Rather, it
allowed both Petitioner and defense counsel to expound on the reason for the request
and to explore counsel’s pretrial actions. The colloquy revealed that there had not been
a complete breakdown in communication. It rather demonstrated a disagreement about
the weight of the prosecutor’s case and the extent to which a successful trial defense
could be mounted. In other words, the record does not indicate a conflict that by itself
was significant enough to require a substitution of counsel. See, e.g., Adams v. Smith,
280 F. Supp. 2d 704, 720 (E.D. Mich. 2003).
On this record, it was reasonable for the Michigan Court of Appeals to reject
Petitioner’s substitution of counsel claim.
B. Exclusion of the Victim’s Photograph
Petitioner’s second claim asserts that the trial court erred in failing to allow the
defense to present a photograph taken from social media that depicted the victim
holding an automatic weapon tucked into his pants. The defense argued that the
photograph supported the defense that the victim was shot during a drug deal or to
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impeach the testimony of Marketa Smith and LaChonique Evans. After reciting the law
regarding the admissibility of evidence under Michigan Rules of Evidence 401 and 402,
the Michigan Court of Appeals found that the evidence was properly excluded:
We agree with the trial court that the photograph was not relevant to their
theory that Harris was shot during a drug deal. First, there was no
evidence suggesting that Harris was armed at the time he was shot, or
that he was shot in self-defense. Second, the photo was not probative of
whether Harris was participating in a drug deal when he was shot.
Whether Harris was known to carry a gun simply did not have a tendency
to make it more probable that he met someone for a drug deal. While drug
dealers are known to carry guns, it cannot be said that a person who
carries a gun is likely to participate in a drug deal. Therefore, the trial court
did not abuse its discretion by ruling that the photo was not relevant to
support the defense theory that Harris was shot during a drug deal.
We also disagree with defendants’ argument that the photo was relevant
to impeach the testimony of Marketa Smith. Although Smith was asked
about Harris’s involvement with drugs and denied that he was involved in
selling or buying drugs, she was never asked if she had ever seen Harris
with a gun. Smith’s testimony that Harris was “[c]lean as a whistle” was
made in response to questions involving Harris’s involvement with drugs.
Harris’s sister, LaChonique Evans, similarly was not asked if she had ever
seen Harris with a gun; instead, she too was only asked about his possible
drug use or dealing. Because the witnesses never denied that Harris had
a gun, the photo was not relevant as impeachment evidence.
We find no merit to defendants’ argument that the trial court made
inconsistent rulings because it allowed the prosecutor to admit evidence
from Townsend’s Facebook page. The trial court’s two evidentiary rulings
were based on the substantive relevancy of the proffered evidence. The
mere fact that the court admitted evidence from one social media website
and excluded evidence obtained from another website does not reflect
disparate rulings or treatment.
Townsend, 2015 WL 8538908 at *2–3 (Dkt. #7-11).
Petitioner first raised this argument as a state-law based evidentiary claim in the
state courts. He asserted that the trial court abused its discretion in ruling that the
evidence was inadmissible under the Michigan Rules of Evidence. (See Dkt. #7-11,
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PageID 1356–58.) Petitioner made no argument to the state courts that the evidentiary
ruling by the trial court violated his federal constitutional rights. Any argument that the
exclusion of this evidence violated Petitioner’s federal rights is therefore unexhausted
and cannot form the basis for granting habeas relief. Wagner, 581 F.3d at 414–15 (to
properly exhaust state remedies, a prisoner must fairly present the factual and legal
basis for each of his claims to the state courts before raising the claims in federal court).
An unexhausted federal claim may nevertheless be denied on the merits. See 28
U.S.C. § 2254(b)(2). Generally speaking, errors in the admission or exclusion of
evidence do not rise to the level of a due process violation. See Bugh v. Mitchell, 329
F.3d 496, 512 (6th Cir. 2003) (citing Estelle v. McGuire, 502 U.S. 62 (1991)). However,
it is recognized that “[w]hen an evidentiary ruling is so egregious that it results in a
denial of fundamental fairness, it may violate due process and thus warrant habeas
relief.” Id. at 512 (internal citations omitted). State court evidentiary rulings do not violate
due process “unless they offend some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.” Id. (internal citation omitted).
“Whether the admission of prejudicial evidence constitutes a denial of fundamental
fairness turns upon whether the evidence is material in the sense of a crucial, critical
highly significant factor.” Ege v. Yukins, 485 F.3d 364, 375 (6th. Cir. 2007) (quoting
Brown v. O’Dea, 227 F.3d 642, 645 (6th Cir. 2000)).
Here, the exclusion of the victim’s photograph did not render Petitioner’s trial
fundamentally unfair. Its absence was not a crucial or highly significant factor. As
explained by the state appellate court, the fact that the victim at one unknown point in
time was photographed with a handgun tucked into his pants was not relevant to any
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defense presented by Petitioner. Such a photograph did not indicate or suggest that the
victim was a drug-dealer, it had no temporal connection to the crime, and it did not
contradict any testimony presented by the prosecutor. Petitioner’s defense at trial was
not self-defense; it was that the prosecutor did not prove that he was at the scene or
aided his co-defendant. Nor could the photograph have been used to impeach the
testimony of Marketa Smith and LaChonique Evans. While these two witnesses testified
that they did not know the victim to deal drugs, the fact that they may have known him
to carry a gun at some unidentified time does not indicate any knowledge on their behalf
that he was a drug dealer. As noted by the state appellate court, not every person who
carries a gun is a drug dealer.
Petitioner’s evidentiary claim as raised in the state courts is non-cognizable.
Even if Petitioner had exhausted a federal due-process claim in relation to the
photograph, the claim lacks merit.
C. Effective Assistance of Counsel
Petitioner’s final claim asserts that he was deprived of effective assistance of
counsel when his trial attorney slept during his trial. This claim was raised in a motion
for a new trial. The trial court denied it, rejecting the premise that defense counsel slept
during trial. (Dkt. #7-10, PageID 1294.) The claim was renewed in the Michigan Court of
Appeals. After reciting the correct constitutional standard for adjudicating the claim, the
court rejected it on the merits as follows:
Townsend argued in his motion for a new trial that he was denied the
effective representation of counsel at trial because his appointed attorney
slept through large portions of the trial. Although Townsend alleged that
he had witnesses who were willing to support his claim, he failed to submit
any affidavits from these individuals to support his allegations. Townsend
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also invited the trial court to rely on its own recollection of counsel’s
representation at trial, but the trial court stated that it did not observe
counsel sleeping during the trial. The court did recall that defense counsel
suffered from a back problem during trial, which required that he take
breaks to stretch his back. However, the court did not find that counsel’s
condition affected his performance at trial.
The record fails to disclose any instances where Townsend’s trial counsel
appeared to be inattentive to what was going on at trial. While Townsend
claims to have witnesses who can support his position, he failed to submit
any affidavits from these witnesses, and counsel’s own summary of his
conversations with the witnesses indicates that none were able to clearly
tell that counsel was actually sleeping during trial. The trial court
acknowledged that counsel had a back condition that it attempted to
accommodate with appropriate breaks, but stated that it did not observe
any instances in which counsel’s representation of Townsend was
affected by his condition. Townsend likewise fails to identify any specific
manner in which his attorney’s performance was deficient and prejudiced
Townsend’s right to a fair trial. Townsend alternatively requests this Court
to remand this matter for an evidentiary hearing on this ineffective
assistance of counsel claim. But because Townsend has not submitted
any affidavits from witnesses who could provide information supporting
Townsend’s claim that counsel was observed sleeping during trial and has
not explained how counsel performed deficiently, he has not established
the factual predicate of his claim of ineffective assistance of counsel,
Hoag, 460 Mich. at 6, or that remand for an evidentiary hearing is
warranted.
Townsend, 2015 WL 8538908 at *7–8 (Dkt. #7-11).
Again, a state court’s factual determinations are presumed correct on federal
habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with
clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360–61 (6th Cir. 1998).
Furthermore, habeas review is “limited to the record that was before the state court.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The trial court’s finding of fact that
counsel did not sleep through trial was supported by its own observations during trial:
This Court paid close attention to the testimony that was presented as well
as the conduct and performance of the attorneys. At no time did this Court
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see or observe either counsel, including Mr. Harris, sleep through any
portion of trial nor was he unconscious.
I do recall during trial early on, Mr. Harris complained of back problems
and he advised me either on or off the record, I don’t recall which, that
during trial he may have to on occasion have to have a break or to stretch
his back because he had um either had–recently had surgery or had some
difficulty with his spine; but as I mentioned, at no time did this Court
observe any inadequate or substandard performance or at no time did the
Court note that he was–he being Mr. Harris–at any time unconscious; and
as counsel indicated, there are no supporting affidavits to support this
contention by any witness including the defendant’s mother.
(Dkt. #7-10, PageID 1294.)
Petitioner has not overcome by clear and convincing evidence the factual finding
made by the trial court that counsel did not sleep during trial. The claim is therefore
without merit.
IV. CONCLUSION
Because none of Petitioner’s claims merit relief, the petition for writ of habeas
corpus will be denied. The court will deny a certificate of appealability because jurists of
reason could not debate the court’s analysis with respect to any of Petitioner’s claims.
28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).
Accordingly,
IT IS ORDERED that the petition for a writ of habeas corpus (Dkt #1) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: October 24, 2018

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, October 24, 2018, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\Cleland\JUDGE'S DESK\C2 ORDERS\17-12128.TOWNSEND.DenyHabeas.docx

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