Bates v. Campbell

Filing 11

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (EKar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEVON K. BATES,
Petitioner,
v.

Case No. 2:18-CV-10858
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

SHERMAN CAMPBELL,
Respondent.
_________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
PAUPERIS
Devon K. Bates, (“Petitioner”), confined at the Gus Harrison
Correctional Facility in Adrian, Michigan, filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his
conviction and sentence for second-degree murder, M.C.L.A. § 750.317.
Respondent filed an answer to the petition alleging that the claims
are meritless. For the reasons that follow, the petition for a writ of habeas
corpus is DENIED.
I. Background
Petitioner was convicted of a homicide which occurred on March 5,

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2015. Valerie Bates, petitioner’s mother, testified that her son and the
decedent, Nina Langston, came to her home on March 4th, spoke with her
for approximately 35 minutes, watched television together until 10:30 p.m.,
and then went up to petitioner’s bedroom. At 1:00 a.m., on the morning of
March 5th, petitioner and Nina woke Valerie and told her that they were
going to a store. When petitioner returned home at 1:30 that morning, the
door was locked, so he knocked on the backdoor to wake Valerie. Valerie
opened the door. When petitioner entered, she noticed that he was
covered in blood, had deep claw marks on his face, was holding Nina’s
purse, while going through it with one hand looking for a “money card.”
Petitioner also had a black handled paring knife that he carried in his
pocket for protection. When he pulled it out to show Valerie, she saw that
the knife was covered in blood and “it was bent over.” Valerie recognized
Nina’s purse and asked where was Nina. Petitioner told Valerie that he
“stabbed her to death, she set [him] up.” Valerie then went to her room and
called 911. (P.E. 6/3/2015, pp. 15-21, T. 2/3/2016, pp. 115-126, 130).
The jury found petitioner not guilty of first-degree murder and armed
robbery, but convicted him of second-degree murder. He was sentenced
as a fourth-felony habitual offender, Mich. Comp. Laws § 769.12, and is

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currently serving a sentence of 60 – 90 years.
Petitioner’s conviction was affirmed on appeal. People v. Bates, No.
332356, 2017 WL 3614209 (Mich. Ct. App. Aug. 22, 2017), lv. den, 501
Mich. 978, 906 N.W.2d 781 (2018).
Petitioner seeks a writ of habeas corpus on the following ground:
Defendant[‘s] trial counsel was ineffective for failing to file
appropriate pretrial motions and preserve three issues and
request remand to the trial court for a criminal responsibility
evaluation.
A. Trial counsel did not file motions and assert his
client’s right to a speedy trial.
B. Defendant’s attorney requested a forensic
examination for competency purposes, but did not
appeal when the Court found Mr. Bates competent
to stand trial before the preliminary examination.
C. Counsel did not ask for and (sic) independent
forensic examination, and counsel did not ask for a
separate forensic examination to determine whether
or not Mr. Bates could be held criminally
responsible for this crime.
II. Standard of Review
28 U.S.C. § 2254(d), 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
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in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that 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.
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, 405-06 (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.” Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral
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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). The “AEDPA thus 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)(quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford
v. Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[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)(citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
has emphasized “that even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable.” Id. at 102 (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). 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. Habeas relief is not appropriate unless each

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ground which supported the state court’s decision is examined and found
to be unreasonable under the AEDPA. See Wetzel v. Lambert, 132 S. Ct.
1195, 1199 (2012).
“[I]f this standard is difficult to meet, that is because it was meant to
be.” Harrington, 562 U.S. at 102. Although 28 U.S.C. § 2254(d), as
amended by the AEDPA, does not completely bar federal courts from
relitigating claims that have previously been rejected in the state courts, it
preserves the authority for a federal court to grant habeas relief only “in
cases where there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with” the Supreme Court’s precedents.
Id. Indeed, “Section 2254(d) reflects the view that habeas corpus is a
‘guard against extreme malfunctions in the state criminal justice systems,’
not a substitute for ordinary error correction through appeal.” Id. at 102-03
(citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J.,
concurring in judgment)). A “readiness to attribute error [to a state court]
is inconsistent with the presumption that state courts know and follow the
law.” Woodford, 537 U.S. at 24. In order 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

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understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103. Finally, in
reviewing petitioner’s claims, this Court must remember that under the
federal constitution, petitioner was “entitled to a fair trial but not a perfect
one.” Lutwak v. United States, 344 U.S. 604, 619 (1953). A habeas
petitioner should be denied relief as long as it is within the “realm of
possibility” that fairminded jurists could find the state court decision to be
reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
III. Discussion
Petitioner alleges that his trial counsel was ineffective by failing to
file a motion asserting his client’s right to a speedy trial, by failing to
appeal the trial court’s finding that petitioner was competent to stand trial
following a forensic examination for competency purposes, and for failing
to ask for an independent forensic examination to determine whether
petitioner could be held criminally responsible for the charged offense.
A defendant is required to satisfy a two prong test to establish the
denial of the effective assistance of counsel. First, the defendant must
show that counsel’s performance was so deficient that the attorney was
not functioning as the “counsel” guaranteed by the Sixth Amendment.

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Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant must
overcome a strong presumption that counsel’s behavior was within the
wide range of reasonable professional assistance. Id. Stated differently,
the defendant must overcome the presumption that, under the
circumstances, the challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689. Second, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the
defendant must establish that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. Strickland places the
burden on the defendant who raises a claim of ineffective assistance of
counsel, and not the state, to show a reasonable probability that the result
of the proceeding would have been different, but for counsel’s allegedly
deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
On habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard
‘was incorrect but whether that determination was unreasonable-a
substantially higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The

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pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense
counsel’s performance fell below Strickland’s standard.” Harrington v.
Richter, 562 U.S. at 101. Indeed, “because the Strickland standard is a
general standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.” Knowles, 556
U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to
the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to
a Strickland claim brought by a habeas petitioner. Id. This means that on
habeas review of a state court conviction, “[A] state court must be granted
a deference and latitude that are not in operation when the case involves
review under the Strickland standard itself.” Harrington, 562 U.S. at 101.
“Surmounting Strickland’s high bar is never an easy task.” Id. at 105
(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner alleges that trial counsel was ineffective for failing to file a
motion asserting his client’s right to a speedy trial.
The Sixth Amendment guarantees a criminal defendant the right to a
speedy trial. U.S. Const. Amend. VI. To determine whether a speedy trial
violation has occurred, the court must consider the following four factors:

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(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s
assertion of his speedy trial right, and (4) the prejudice to the defendant.
Barker v. Wingo, 407 U.S. 514, 530 (1972). No single factor is
determinative, rather a court must weigh them and engage in a “difficult
and sensitive balancing process” to determine whether a constitutional
violation has occurred. 407 U.S. at 533. The right to a speedy trial “is
‘amorphous,’ ‘slippery,’ and ‘necessarily relative.’” Vermont v. Brillon, 556
U.S. 81, 89 (2009)(quoting Barker, 407 U.S., at 522)(quoting Beavers v.
Haubert, 198 U.S. 77, 87 (1905)).
The length of delay is a “triggering factor” because “until there is
some delay which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance.” Barker, 407 U.S. at
530. Therefore, to trigger a speedy trial analysis, the accused must allege
that the interval between the accusation and the trial has crossed the
threshold dividing ordinary from presumptively prejudicial delay. Doggett v.
United States, 505 U.S. 647, 651-52 (1992). Courts have generally found
postaccusation delays that approach one year to be “presumptively
prejudicial”. Id. 505 U.S. at 652, n. 1; United States v. Brown, 90 F. Supp.
2d 841, 846 (E.D. Mich. 2000).

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A ten month delay between arrest and trial is not presumptively
prejudicial. See United States v. Gerald, 5 F.3d 563, 566 (D.C. Cir.1993);
see also Norris v. Schotten, 146 F.3d 314, 328 (6th Cir. 1998)(prejudice
could not be presumed for purposes of habeas petitioner’s speedy trial
claim where the delay was less than one year). Moreover, two months of
the delay of petitioner’s trial was because he was being evaluated for
competency. Any delays caused by the filing of a motion by the defense
requesting a delay are attributable to the defense, for purposes of a
speedy trial analysis. See Norris, 146 F.3d at 327; see also United States
v. Davis, 365 F.2d 251, 255 (6th Cir. 1966)(a defendant cannot complain
of denial of constitutional right to speedy trial because of his confinement
in federal mental institution for purpose of determining his competency to
stand trial).
The Michigan Court of Appeals found that the delay from arrest to
petitioner’s trial consisted of a 10 month delay, with 2 of the months
attributed to petitioner’s request for the competency evaluation. The Court
further found that petitioner failed to offer proof of how his mental health
was harmed by the 10 month delay, and that prejudice could not be
assumed because the trial occurred within 18 months from the time of his

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arrest. Bates, 2017 WL 3614209, at *2. Petitioner was not denied his right
to a speedy trial.
Because petitioner was not denied his right to a speedy trial, trial
counsel was not ineffective for failing to move for dismissal of the charges
on speedy trial grounds. Defense counsel cannot be said to be ineffective
for failing to bring a speedy trial motion that is meritless, see Shanks v.
Wolfenbarger, 387 F. Supp. 2d 740, 750 (E.D. Mich. 2005). Petitioner is
not entitled to habeas relief on his ineffective assistance of counsel claim
pertaining to his right to a speedy trial.
Petitioner further argues that he should have been brought to stand
trial within 180 days.
The Michigan statutory provision, Mich. Comp. Laws § 780.131,
requires prisoners (but not parolees) to stand trial within 180 days. People
v. Sanders, 130 Mich. App. 246, 251, 343 N.W.2d 513, 516 (1983)(“We
find that in the parole context the 180-day rule applies only where a
person is assigned to a state correctional facility on preparole status.”).
Petitioner was not a prisoner at the time he was arrested and therefore not
subject to that statute. Furthermore, the 180-day rule is a state law
guarantee separate from the constitutional right of a speedy trial. See

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People v. Rivera, 301 Mich. App. 188, 193, 835 N.W.2d 464, 467
(2013)(“Aside from the 180–day rule,” the right to a speedy trial is
guaranteed by “[T]he United States and Michigan Constitutions, [] without
reference to a fixed number of days.” Id. at 467.). Petitioner had no
constitutional right to be brought to stand trial within 180 days of his arrest.
As a result, petitioner’s claim that trial counsel was ineffective by failing to
move for dismissal based upon this right to a speedy trial and due to a
violation of the 180 day rule is without merit. Shanks v. Wolfenbarger, 387
F. Supp. 2d at 750.
Petitioner alleges that trial counsel was ineffective by failing to
request a second competency hearing.
The Supreme Court has repeatedly held that “the criminal trial of an
incompetent defendant violates due process.” Cooper v. Oklahoma, 517
U.S. 348, 354 (1996)(citing Medina v. California, 505 U.S. 437, 453
(1992); Drope v. Missouri, 420 U.S. 162, 171-172 (1975); Pate v.
Robinson, 383 U.S. 375, 378(1966)). A defendant may not be put to trial
unless he has a sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding and a rational as well as a
factual understanding of the proceedings against him. Id. “An attorney has

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a professional duty to question a defendant’s competency to stand trial if
they have a good faith doubt as to the defendant’s competence.” Watkins
v. Haas, 143 F. Supp. 3d 632, 641 (E.D. Mich. 2015); rev’d on other grds
sub nom Watkins v. Deangelo-Kipp, 854 F.3d 846 (6th Cir. 2017)(citing
United States v. Jackson, 179 F. App’x 921, 933 (6th Cir.
2006)(unpublished)). Moreover, “A criminal defense lawyer has a
continuing duty to request a competency evaluation of a criminal
defendant if he becomes became aware of facts that raise a doubt as to
the competency of a defendant during any stage of the criminal
proceedings.” Id. (citing Williamson v. Ward, 110 F.3d 1508, 1517-18 (10th
Cir. 1997)).
In the present case, petitioner’s attorney requested a competency
evaluation. After a three (3) hour examination and multiple psychological
tests, the forensic examiner determined that petitioner was competent to
stand trial. The evaluation examined petitioner physical and mental health
extensively, including mental deficits related to a gunshot wound to the
head. Records were also requested from the Genesee County Jail,
Dorothea Carlis, M.D., Nael Taraji, M.D. and Consumer Services, Inc.
Although not received by the time of the examination, the examiner

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determined that the reports were not critical to forming an opinion about
competency. Furthermore, in the report, petitioner denied alcohol and
substance abuse. There is nothing in the trial record to show that
petitioner would have benefitted from a second evaluation. In fact, the
report extensively delineated the issues that petitioner sought to utilize in
his defense. Counsel could reasonably have believed that a secondary
evaluation may not have assisted, or perhaps could have undermined,
petitioner’s defense. Under the circumstances, counsel was not
ineffective for failing to request an additional competency evaluation or for
stipulating to the competency report. Compare Watkins v. Haas, 143 F.
Supp. 3d at 643.
Petitioner alleges that trial counsel was ineffective by failing to raise
an insanity defense.
Petitioner is not entitled to habeas relief on this claim for several
reasons.
First, petitioner’s claim is without merit because he failed to present
any evidence, either to the state courts, or to this Court, that he was
legally insane at the time of the crime. See e.g. Sneed v. Johnson, 600
F.3d 607, 611 (6th Cir. 2010). More specifically, in light of the fact that

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petitioner has failed to show that he has an expert who would testify that
he was legally insane at the time of the offenses, counsel’s failure to raise
an insanity defense was not prejudicial to petitioner. See Abdur’Rahman v.
Bell, 226 F.3d 696, 715 (6thCir. 2000).
Finally, as one court has noted: “[t]here is considerable empirical
evidence that insanity pleas in and of themselves are not received
favorably by jurors.” Weekley v. Jones, 76 F.3d 1459, 1463 (8th Cir.
1996)(citing C. Boehnert, Characteristics of Successful and Unsuccessful
Insanity Pleas, 13 Law and Human Behavior 31, 34, 36-37 (1989)). Since
insanity or mental defenses are rarely successful, it would not have been
unreasonable for counsel, at least under the facts of this case, to forego
such a defense for a stronger defense theory. See e.g. Silva v. Woodford,
279 F.3d 825, 851 (9th Cir. 2002); see also Sneed, 600 F.3d at 611
(counsel not ineffective in failing to present insanity defense where
“public’s widespread skepticism of the insanity defense at the time of
Sneed’s trial in 1986 (circa the John Hinkley trial), indicate that this was
not an attractive defense”). Trial Counsel was not ineffective by failing to
raise an insanity defense. Because petitioner’s claims are meritless,
petitioner is not entitled to habeas relief on his ineffective assistance of

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counsel claims.
IV. Conclusion
For the reasons discussed, the petition for a writ of habeas corpus is
denied.
In order 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, or agree that, 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). When a district court
rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims to be debatable or wrong.
Id. at 484. “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
This Court denies a certificate of appealability because reasonable
jurists would not find this Court’s assessment of the claims to be debatable

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or wrong. See Slack v. McDaniel, 529 U.S. at 484. Petitioner may,
however, proceed in forma pauperis on appeal because an appeal could
be taken in good faith. 28 U.S.C. § 1915(a)(3).
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a
writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that the petitioner will be GRANTED
leave to appeal in forma pauperis.

Dated: February 12, 2019

s/Denise Page Hood
HON. DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

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