Wright v. Palmer

Filing 14

OPINION and ORDER Denying the Habeas Corpus Petition, Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARIO DONTEZ WRIGHT,
Petitioner,
v.

Case No. 17-cv-13211

CARMEN D. PALMER,

HON. MARK A. GOLDSMITH

Respondent.
_______________________________/
OPINION & ORDER
DENYING THE HABEAS CORPUS PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
I. INTRODUCTION
Petitioner Dario Dontez Wright, a state prisoner currently confined at the Oaks
Correctional Facility in Manistee, Michigan,1 filed a pro se petition for the writ of habeas corpus
under 28 U.S.C. § 2254 (Dkt. 1). The petition challenges Wright’s convictions for voluntary
manslaughter, Mich. Comp. Laws § 750.321, second-degree murder, Mich. Comp. Laws
§ 750.317, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a
firearm during the commission of a felony (“felony firearm”), Mich. Comp. Laws § 750.227b. Pet.
for Writ of Habeas Corpus at PageID.3 (Dkt. 1). Wright alleges as grounds for relief that he was
denied his right to effective assistance of counsel because his defense attorney (1) failed to file a
motion to suppress portions of Wright’s recorded statement, which involved discussions between

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Although Wright indicated in his habeas petition that he was incarcerated at the Michigan
Reformatory in Ionia, Michigan (Pet., ECF No. 1, PageID.1, 9), the Court’s last mailing to him
was returned as undeliverable. See ECF No. 13. Public records maintained by the Michigan
Department of Corrections indicate that Wright is confined at the Oaks Correctional Facility, 1500
Caberfae Highway, Manistee, Michigan 49660. See mdocweb.state.mi.us/OTIS2/otis2.aspx (last
visited August 21, 2020). Search by name or inmate number (622750).

him and his pretrial attorney, and (2) decided to waive his right to a jury trial without his consent.
Id. at PageID.5. The State urges the Court to deny the petition because neither Wright’s pretrial
attorney, nor his trial attorney, was ineffective, and because the state appellate court’s decision
was not contrary to, or an unreasonable application of, clearly established federal law. Answer in
Opp’n to Pet. for Writ of Habeas Corpus at PageID.23-24 (Dkt. 7). For reasons stated below, the
Court denies the petition for writ of habeas corpus and declines to issue a certificate of
appealability, but grants leave to appeal in forma pauperis.
II. THE FACTS AND PROCEDURAL HISTORY
Wright was charged in Wayne County, Michigan with two counts of first-degree,
premeditated murder, one count of felon in possession of a firearm, and one count of felony
firearm. He was tried before a judge in Wayne County Circuit Court. The Michigan Court of
Appeals correctly summarized the evidence at Wright’s bench trial as follows:
In December 2013, Gyuana Peterson lived with her grandmother and her
grandmother’s boyfriend, Wright. Because she was angry with her grandmother,
Peterson arranged to have the home burglarized. In the morning, Peterson stole
multiple guns and brought them to the home of Fallon Green and Antoine Crumby.
At around noon that same day, she returned to her grandmother’s home with Green.
She asked Wright to help her pick out a part for her car so the house would be empty
for Crumby to burglarize. Wright agreed to help her and they left. Crumby broke
into the home and stole two televisions, a coat, and a duffel bag. Crumby brought
the items back to his home where he met Green and Peterson.
Later that evening, Wright called Peterson and told her that he knew she was
involved in the burglary. He stated that she should come to the house to kiss her
grandmother goodbye because he was going to kill her. Peterson eventually
returned to the home accompanied by a police officer so she could remove some
personal possessions. The officer advised Peterson not to return to the home that
night. Nevertheless, Peterson returned later that night with Green, Crumby, and
Green’s cousin Curtis Smith, in order to retrieve her furniture.
After they arrived, Wright came out of the home and asked who was involved in
the burglary. Wright went back in the home and returned with a long gun and two
other armed men. Wright patted down Smith, at which point Smith slapped his
hand away. Immediately after this, Wright turned towards Crumby and shot him
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in the head. As Smith began to flee, Wright turned and shot him in the back. Wright
then shot both men a second time. He was later seen driving away with Peterson's
grandmother and the two other men.
People v. Wright, No. 323682, 2016 WL 901493, at *1 (Mich. Ct. App. Mar. 8, 2016)
(unpublished).
Wright did not testify, but in a statement to the police, he said that he had tussled over a
rifle with a man at a car in the driveway and that several shots had gone off. He claimed that he
was trying to save his life at the time. See RM 514 CAM 2 2014-01-02 at 10:41 p.m.–10:51 p.m.
(filed in the traditional manner pursuant to Dkt. 10).
At trial, Wright presented two witnesses: Lorraine Hayden, who was Wright’s live-in
girlfriend and Peterson’s grandmother, and Channing Wingo (sometimes called “C.J.”), who was
a friend of Wright and of Wright’s brother. Hayden testified that Wright was not home before the
shooting, when she went to sleep, or after the shooting when she left the house with Wingo and
Wright’s brother Curtis. 6/2/14 Trial Tr. at PageID.616-620 (Dkt. 8-8).
Wingo testified that he was sitting in Wright and Hayden’s living room before the shooting
and while Hayden was sleeping. He heard Peterson make a comment, and when he looked out the
window, he saw Wright approach the house, put his hands on a young man, and struggle over a
long gun. A shot went off, hitting Wingo in the arm. He heard five to ten more shots, and they all
sounded like they came from the same long gun. He and Lorraine then left the house and went to
his mother’s house. They met Wright’s brother on the way. Wright subsequently arrived at
Wingo’s mother’s house, but there was no conversation about what had transpired. Id. at
PageID.671-676, 688-708.
Wright’s defense was that Peterson and Green were not believable and that his statement
to the police about the gun going off during a struggle was credible. He also maintained that the

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prosecution had failed to show premeditation and deliberation on the first-degree murder charge,
and he agreed that the trial court could instruct itself on lesser offenses, including manslaughter.
6/27/14 Trial Tr. at PageID.738, 748 (Dkt. 8-9).
At the conclusion of the bench trial, the trial court acquitted Wright of the two counts of
first-degree murder, but it found him guilty of voluntary manslaughter for the shooting of Crumby,
second-degree murder for the shooting of Smith, one count of felon in possession of a firearm, and
one count of felony firearm. On July 16, 2014, the trial court sentenced Wright to four to fifteen
years in prison for the manslaughter conviction, a concurrent term of twenty-five to fifty years for
the murder conviction, time served for the felon-in-possession conviction, and a consecutive term
of two years in prison for the felony-firearm conviction.
Wright raised his habeas claims in an appeal by right, but the Michigan Court of Appeals
affirmed his convictions in a per curiam opinion because “Wright [had] not established any error
warranting a new trial.” Wright, 2016 WL 901493, at *4. Wright raised the same issues in the
Michigan Supreme Court, which denied leave to appeal on September 27, 2016, because it was
not persuaded to review the questions presented to the court. People v. Wright, 885 N.W.2d 287
(Mich. 2016).
Wright subsequently filed his habeas corpus petition. Because he did not file a supporting
brief, the Court has looked to his state-appellate brief for a greater understanding of his claims.
III. STANDARD OF REVIEW
Section 2254(d) of Title 28, United States Code, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), imposes the following standard of review for
habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
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was adjudicated on the merits in State court proceedings unless the adjudication of
the claim -(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).
A decision of a state court is “contrary to” clearly established federal law 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. Williams v. Taylor, 529 U.S. 362, 405 (2000). An “unreasonable
application” occurs when “a state-court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. “[A] federal habeas court may not issue the
writ simply because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly. Rather, that application
must also be unreasonable.” Id. at 411.
The Supreme Court has explained that “[a] federal court’s collateral review of a state-court
decision must be consistent with the respect due state courts in our federal system.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). Thus, the AEDPA “imposes a ‘highly deferential standard
for evaluating state-court rulings,’ and ‘demands that state-court decisions be given the benefit of
the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal and end citations omitted).
“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,
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664 (2004)). “[E]ven a strong case for relief does not mean the state court’s contrary conclusion
was unreasonable.” Id. at 102. Furthermore, pursuant to “§ 2254(d), a habeas court must
determine what arguments or theories supported or . . . could have supported, the state court’s
decision; and then it must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.”
Id. To obtain habeas relief in federal court, a state prisoner is required to show that the state court’s
rejection of his 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 103.
Finally, a state court’s factual findings are presumed correct under 28 U.S.C. § 2254(e)(1), unless
the petitioner rebuts the presumption with clear and convincing evidence.
IV. DISCUSSION
Both of Wright’s claims allege ineffective assistance of counsel. To prevail on these
claims, Wright must show that his “counsel’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.
Wright “must show that counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688.
The “prejudice” prong “requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Wright must demonstrate
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.

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“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when
the two apply in tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at 105 (internal citations
omitted). “When § 2254(d) applies, the question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
A. Wright’s Recorded Conversation with his Former Attorney
Wright alleges first that his pretrial attorney, Delicia A. Cain-Taylor Coleman, was
ineffective because she conducted a conversation with him while the two of them were being
recorded. Defendant/Appellant’s Br. on Appeal at PageID.857-858 (Dkt. 8-11). Wright further
alleges that his trial attorney, Susan Reed, was ineffective because she failed to suppress evidence
of the conversation. Id. at PageID.858. Wright argues that his conversation with Coleman was
protected by the attorney-client privilege and, therefore, it was inadmissible at trial. Id.  at
PageID.858, 861.
This claim arose during Wright’s statement to a police officer in a room equipped with a
video and audio recording system. Coleman was present during the interrogation, and when the
interrogating officer left the room, Wright and Coleman discussed the facts of the case while their
discussion was being recorded. According to Wright, their discussion concerned what he had said
and how he could alter his statement to make his version of the facts appear more believable. Id.
at PageID.858. Wright further alleges that the discussion allowed the finder of fact to see that he
was changing his version of events at the behest of his lawyer. Id. at PageID.863. Wright’s entire
videotaped statement, including his conversation with Coleman, was played during his trial. See
5/29/14 Trial Tr. at PageID.563-564 (Dkt. 8-7); 6/2/14 Trial Tr., PageID.574-575 (Dkt. 8-8).

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1. Coleman’s Failure to Ensure that her Discussion with Wright was
Confidential
Wright contends that Coleman should have known that communications between an
attorney and the client are sacred, and she should have taken steps to ensure that her discussions
with Wright stayed privileged and were not recorded. Defendant/Appellant’s Br. on Appeal at
PageID.863-864.

“The attorney-client privilege protects from disclosure confidential

communications between a lawyer and his client in matters that relate to the legal interests of
society and the client.” In re Grand Jury Subpoena, 886 F.2d 135, 137 (6th Cir. 1989) (quotation
marks and end citations omitted). “The privilege exists to allow a client to confide in the attorney
and be safe in the knowledge that the communication will not be disclosed.” People v. Compeau,
625 N.W.2d 120, 122 (Mich. Ct. App. 2001).
Coleman twice spoke to Wright after the interrogating officer left the interview room and
while their conversations were being recorded. See RM 514 CAM 2 2014-01-02 at 11:20–11:22
p.m. and 11:33–11:34 p.m. Wright contends that Coleman should have asked the officer to stop
the recording before he left the room because his conversations with Coleman allowed the trier of
fact to conclude that he was changing his version of events at the behest of his lawyer.
Defendant/Appellant’s Br. on Appeal at PageID.863.
The Michigan Court of Appeals agreed that Coleman should have avoided engaging in a
privileged conversation with Wright, and that Coleman’s decision to engage in a potentially
incriminating conversation with Wright while clearly under surveillance fell below an objective
standard of reasonableness. Wright, 2016 WL 901493, at *2. The Court of Appeals pointed out
that, even though an officer informed Coleman that she and Wright were being recorded before
the officer left the room, Coleman elected to discuss with Wright how he should present his version
of events. Id. The Court of Appeals stated that the recorded conversation gave rise to the inference
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that Wright was not being entirely truthful and that there was no conceivable strategic reason for
proceeding in that manner. Id. The Court of Appeals, nevertheless, concluded that Coleman’s
deficient performance did not prejudice Wright’s trial because “[t]he trial court’s findings
demonstrate that the conversation between Wright and Coleman did not influence its decision.”
Id. at *3.
Applying AEDPA’s highly deferential standard, the Court cannot find that the Court of
Appeals was unreasonable in reaching its conclusion that there is not a reasonable probability that,
but for the admission of their conversation into evidence, the result of the proceeding would have
been different. Although the trial court did say that Wright’s comments to his attorney were
inconsistent with what he said to the police, 6/27/14 Trial Tr. at PageID.739 (Dkt. 8-9), the court
appeared more concerned with the trial testimony and physical evidence in the case. The court
noted that Smith had been shot in the back and that both victims had been shot multiple times, id.
at PageID.739-740; Wright’s own witness (Wingo) testified that he heard five to ten shots from
the same long gun, id. at PageID.742-743; there was no evidence of close-range firing, id. at
PageID.762; and the casings were consistent with a long gun, not one of the handguns that the
victims supposedly possessed at the time, id. at PageID.763.
Given the strength of the evidence against Wright and the facts emphasized by the trial
court, it does not appear that the recorded conversation between Wright and Coleman influenced
the trial court’s verdict. Therefore, even if Coleman’s performance was deficient, the allegedly
deficient performance did not prejudice the defense. Because the state appellate court’s decision
on Wright’s ineffective-assistance-of-counsel claim was objectively reasonable, he is not entitled
to relief on his claim about Coleman.

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2. Reed’s Alleged Failure to Move to Suppress the Recorded Conversation
Wright contends that his trial attorney, Reed, was ineffective because she failed to object
to the admission of Wright’s recorded conversation with Coleman. Wright contends that the
evidence damaged his credibility, which was important because his defense was that he had acted
in self-defense. Defendant/Appellant’s Br. on Appeal at PageID.861, 863.
Wright overlooks the fact that even though Reed initially did not object to the admission
of the Wright’s videotaped statement, 5/29/14 Trial Tr. at PageID.562 (Dkt 8-7), she subsequently
moved to suppress the entire statement, 6/2/14 Trial Tr. at PageID.570 (Dkt. 8-8). Moreover, the
Michigan Court of Appeals determined on review of Wright’s claim that, under state law, a
communication is not privileged if it lacks confidentiality. Wright, 2016 WL 901493, at *3 (citing
Compeau, 625 N.W.2d 120).2 As the Michigan Court of Appeals explained in Compeau, 625
N.W.2d at 122, the element of confidentiality is lacking when a defendant fails to take reasonable
precautions to keep his remarks confidential and chooses to communicate with counsel in a manner
that can be overheard by a third person.
The Michigan Court of Appeals stated that the conversation between Wright and Coleman
lacked confidentiality because they chose to communicate about how Wright would present his
version of the events to the officers, even though they both knew that they were under video
surveillance. Wright, 2016 WL 901493, at *3; see also RM 514 CAM 2 2014-01-02 at 10:22–
10:23 p.m. (the interrogating officer’s comment that the interview room was video- and voicerecorded, and Coleman’s additional remark to Wright that everything could be seen and heard).
The Court of Appeals concluded that, because the element of confidentiality was missing, the

2

Similarly, under federal law, if a communication between an attorney and his or her client is not
confidential, it is not privileged. See In re Grand Jury Subpoena, 886 F.2d 135, 139 (6th Cir.
1989).
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attorney/client privilege did not apply, and Reed was not ineffective for failing to object on that
basis. Wright, 2016 WL 901493, at *3.
The state court’s interpretation of state law binds this Court sitting in habeas corpus review,
Bradshaw v. Richey, 546 U.S. 74, 76 (2005), and because the state court determined that the
attorney/client privilege was not implicated due to a lack of confidentiality, Reed was not
ineffective for failing to object to the admission of Wright’s conversation with Coleman.

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objection would have been futile or meritless, and “the failure to make futile objections does not
constitute ineffective assistance.” Altman v. Winn, 644 F. App’x 637, 644 (6th Cir. 2016).
Likewise, “[t]he failure to raise a meritless claim does not constitute ineffective assistance of
counsel.” Tackett v. Trierweiler, 956 F.3d 358, 375 (6th Cir. 2020).
Further, the state appellate court’s determination—that Reed’s performance did not fall
below an objective standard of reasonableness—was objectively reasonable. Habeas relief,
therefore, is not warranted on Wright’s claim about Reed’s alleged failure to move to suppress or
to redact evidence of Wright’s conversation with Coleman.
B. Waiver of the Right to a Jury Trial
Wright’s remaining claim is that Reed was ineffective for waiving his right to a jury trial
without his consent. Pet. for Writ of Habeas Corpus at PageID.5. Wright states that he informed
Reed that he wished to have a jury trial, but she pressured him to request a bench trial; and when
he asked Reed to speak with his family about the issue, she did not follow through on her promise
to consult his family. Defendant/Appellant’s Br. on Appeal at PageID.868. Instead, according to
Wright, Reed falsely informed him that his family agreed he should choose a bench trial, rather
than a jury trial. Id. at PageID.868-869. Wright maintains that his waiver of the right to a jury
trial was influenced by Reed’s false statements to him and her coercion. Id. at PageID.869. The

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Michigan Court of Appeals adjudicated this claim on the merits and concluded that Wright had
failed to demonstrate his lawyer provided ineffective assistance regarding the decision to waive a
jury trial. Wright, 2016 WL 901493, at *4. A defense attorney “undoubtedly has a duty to
discuss potential strategies with the defendant,” and “to consult with the client regarding
‘important decisions . . . .’” Fla. v. Nixon, 543 U.S. 175, 178, 187 (2004). But “the accused has
the ultimate authority to make certain fundamental decisions regarding the case,” including
whether to waive a jury. Jones v. Barnes, 463 U.S. 745, 751 (1983). “Concerning those decisions,
an attorney must both consult with the defendant and obtain consent to the recommended course
of action.” Nixon, 543 U.S. at 187. Furthermore, “[b]ecause the right to a jury trial is fundamental,
a waiver of that right must be voluntary, knowing, and intelligent. . . . A petitioner bears the burden
of proving that his waiver was not, in fact, voluntary, knowing, and intelligent.” Otte v. Houk,
654 F.3d 594, 600-01 (6th Cir. 2011) (internal citations omitted).
Wright admits that his attorney consulted him about whether to waive a jury trial, and
before his trial commenced, the trial court informed him that he had an absolute right to have his
case heard by a jury. 5/27/14 Trial Tr. at PageID.158 (Dkt. 8-5). Wright then assured the trial
court that he had no objection to waiving his right to a jury trial and that he understood his decision
meant that the court would be the trier of fact. Id. at PageID.159. He also stated that nobody had
promised him, forced him, or otherwise made him waive his right to a jury trial and that he was
waiving his right to a jury trial of his own free will. Id. Wright’s colloquy with the trial court
supports the trial court’s conclusion that Wright’s waiver was knowing, voluntary, and intelligent.
Although Wright contends that he subsequently learned that Reed did not consult his family
and that his family did not want him to have a bench trial, the only support for his contention that
Reed deceived him is his unsigned affidavit. See Aff. of Dario Dontez Wright at PageID.832-833

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(Dkt. 8-11). In the absence of any other evidence supporting the contention that Reed deceived
Wright into waiving his right to a jury trial, the Michigan Court of Appeals reasonably concluded
that Reed was not ineffective.
Reed satisfied Strickland’s deferential standard, and the state appellate court’s decision—
that Wright did not demonstrate ineffective assistance of counsel—is objectively reasonable and
entitled to deference under AEDPA. Accordingly, the Court declines to grant relief on Wright’s
claim regarding his attorney’s advice to waive a jury trial.
V. CERTIFICATES OF APPEALABILITY AND
PROCEEDING IN FORMA PAUPERIS ON APPEAL
Wright may not appeal the Court’s denial of his habeas petition unless a district or circuit
judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). A
certificate of appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
Reasonable jurists could not debate the Court’s assessment of Wright’s claims, nor
conclude that the issues presented deserve encouragement to proceed further. Accordingly, the
Court declines to issue a certificate of appealability. The Court, nevertheless, will allow Wright
to proceed in forma pauperis on appeal, because the Court granted him permission to proceed in
forma pauperis in this Court (Dkt. 3), and an appeal could be taken in good faith. 28 U.S.C. §
1915(a)(3); Fed. R. App. P. 24(a)(3)(A).

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VI. CONCLUSION
For the reasons set forth above, the Court denies the petition for writ of habeas corpus
(Dkt.1), declines to issue a certificate of appealability, and grants leave to appeal in forma pauperis.
SO ORDERED.
Dated: September 28, 2020
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
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 September 28, 2020.
s/Karri Sandusky
Case Manager

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