Hunter v. LeSatz
Filing
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OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability - Signed by District Judge Nancy G. Edmunds. (LBar)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FELANDO D. HUNTER,
Case Number: 2:18-CV-11117
HONORABLE NANCY G. EDMUNDS
Petitioner,
v.
DANIEL LESATZ,
Respondent.
/
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
Petitioner Felando D. Hunter, currently in the custody of the Michigan Department
of Corrections, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
He challenges his convictions for two counts of first-degree murder, Mich. Comp. Laws
§ 750.316(1), torture, Mich. Comp. Laws § 750.85, armed robbery, Mich. Comp. Laws
§ 750.529, unlawful imprisonment, Mich. Comp. Laws § 750.349b, and possessing a
firearm during the commission of a felony, Mich. Comp. Laws § 750.227b(1). Hunter
raises these claims: police coerced a witness into incriminating him; the trial court failed
to swear prospective jurors before jury selection; and counsel was ineffective for failing
to object to these violations. For the reasons explained below, the Court denies the
petition.
I. Background
This case arises from the robbery and murder of Jacob Kudla and Jourdan
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Bobbish. The Michigan Court of Appeals described the facts underlying Hunter’s
convictions as follows:
The victims in this case, Jacob Kudla (Jacob) and Jourdan Bobbish
(Jourdan), were last seen alive on July 22, 2012. Their bodies were
discovered in an empty field in Detroit on July 27, 2012. Jacob had been
shot in the back and in the head, while Jourdan died from a single shot to
the back of his head.
The testimony of several witnesses pieced together Jacob and Jourdan’s
final hours. Jacob and Jourdan had driven from Warren to Detroit, seeking
to buy prescription drugs. They encountered Fredrick [Kyle Young] and
Felando, who took them to a home in Detroit. There, Fredrick and Felando
ordered the two to the ground, stripped them of their outer clothing, and
robbed them of cash and prescription pills. They then forced Jacob and
Jourdan into the trunk of a car and drove for approximately an hour before
finding a suitable location. Once Fredrick and Felando found an empty
field, they instructed Jacob and Jourdan to leave the vehicle and get on their
knees. Felando shot Jourdan in the head with a revolver, and Fredrick shot
Jacob in the back with a rifle. While Jourdan died instantly, Jacob did not.
Jacob was then shot in the head. After killing the two young men, Fredrick
and Felando picked up a bottle of liquor, took the car that had been driven
by Jacob and Jourdan to another location, and doused it with bleach.
A short time later, Felando spoke with an acquaintance, Demerious
Cunningham (Demerious). Felando explained his and Fredrick’s
involvement in the crimes to Demerious. Demerious later provided this
information to police. Several other witnesses who had seen or heard the
events that occurred at the home also came forward and testified at trial.
People v. Hunter, No. 326092, 2016 WL 1045631, *1 (Mich. Ct. App. March 15, 2016).
Hunter and co-defendant Fredrick Kyle Young were tried before a single jury in
Wayne County Circuit Court. Hunter was convicted and sentenced as follows: life
imprisonment for the first-degree murder convictions, 50 to 75 years for the torture
conviction, 50 to 75 years for the armed robbery conviction, 3 to 15 years for the
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unlawful imprisonment conviction, and 2 years for the felony-firearm conviction.
Hunter filed an appeal of right to the Michigan Court of Appeals raising the same
claims presented in this petition. The Michigan Court of Appeals remanded the case to
the trial court for correction of the judgment of sentence to reflect that Hunter’s firstdegree murder convictions were under two different theories, and affirmed Hunter’s
convictions in all other respects. Id. Hunter’s application for leave to appeal to the
Michigan Supreme Court was denied. People v. Hunter, 500 Mich. 958 (Mich. Apr. 4,
2017).
Hunter then filed the pending habeas corpus petition. He raises the same claims
raised on direct appeal in state court:
I. The police violated appellant’s due process rights by coercing a witness
into incriminating appellant; alternatively, defense trial counsel was
constitutionally ineffective in failing to move to suppress the testimony of
the witness.
II. The trial court violated appellant’s due process rights by failing to swear
the prospective jurors before selection; alternatively, defense trial counsel
was constitutionally ineffective in failing to object.
Respondent has filed an answer in opposition and the relevant state court records
and transcripts.
II. Standard of Review
Review of this case is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). Under the AEDPA, a state prisoner is entitled to a writ of
habeas corpus only if he can show that the state court’s adjudication of his claims –
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(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 proceedings.
28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] 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 the statute
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court 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. However, “[i]n order for a federal court find a state
court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
decision must have been more than incorrect or erroneous ... The state court’s application
must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations
omitted); see also Williams, 529 U.S. at 409. “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
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(2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). “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. . . .
As a condition for obtaining habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling on the claim being presented in federal court 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 102-03(internal
quotation omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
Greene v. Fisher, 565 U.S. 34, 38 (2011). Section 2254(d) “does not require citation of
[Supreme Court] cases – indeed, it does not even require awareness of [Supreme Court]
cases, so long as neither the reasoning nor the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly
established law” are to be determined solely by resort to Supreme Court rulings, the
decisions of lower federal courts may be instructive in assessing the reasonableness of a
state court’s resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007),
citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F.
Supp. 2d 354, 359 (E.D. Mich. 2002).
Lastly, a federal habeas court must presume the correctness of state court factual
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determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
only with clear and convincing evidence. Id.
III. Discussion
A. Concurrent Sentence Doctrine
Respondent argues the Court should decline to review Hunter’s claims under the
concurrent sentence doctrine because Hunter is serving two life sentences for first-degree
murder convictions in an unrelated case.
Under the concurrent sentence doctrine, a federal court may decline to review a
challenge to a conviction “when the sentence on the challenged conviction is being served
concurrently with an equal or longer sentence on a valid conviction.” Dale v. Haberlin,
878 F.2d 930, 935 n.3 (6th Cir. 1989). The Sixth Circuit “has been admittedly hesitant to
apply this doctrine, invoking it only when there is no possibility of ‘adverse
consequences’ if the convictions stand.” Pillette v. Berghuis, 408 F. App’x 873, 886 n.8
(6th Cir. 2010) (citations omitted). Adverse consequences that will prevent a court from
applying the doctrine include: “an effect on parole or a potential pardon, the existence of
state recidivist statutes, the possibility of impeachment at a future trial, the potential for
use as evidence of a prior bad act, and possible stigma.” Id. Respondent fails to
demonstrate a lack of collateral consequences attaching to Hunter’s convictions. The
Court declines to invoke the concurrent sentence doctrine
B. Witness Intimidation
In his first claim, Hunter argues that admission of Demerious Cunningham’s
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testimony that Hunter confessed to the murder violated due process and his right to a fair
trial because police officer Allen Williams coerced Demerious Cunningham into falsely
testifying.1 The Michigan Court of Appeals concluded that Hunter’s rights were not
violated:
“Both our Supreme Court and this Court have strongly condemned
prosecutorial intimidation of witnesses.”44 “Threats from law enforcement
officers may be attributed to the prosecution.”45 On appeal, Felando claims
that police officers intimidated Demerious with threats of criminal charges
“contemporaneously with questioning [him] about the present case.” This
factual assertion is false. Even Demerious testified that he was not
threatened or intimidated during the car ride where he was asked about the
present matter. Further, the only “threat” of any sort that is found in the
record is a threat that Demerious could face criminal charges if he lied to
police. There is no prohibition against informing a witness of the potential
consequences of making false statements.46 Felando has failed to
demonstrate error requiring reversal.
44
People v. Stacy, 193 Mich. App. 19, 25; 484 NW2d 675 (1992).
45
Id.
46
See People v. Layher, 238 Mich. App. 573, 587; 607 NW2d 91 (1999),
aff’d 464 Mich. 756 (2001) (“[A] prosecutor may inform a witness that
false testimony could result in a perjury charge.”).
Hunter, 2016 WL 1045631 at *5.
The Michigan Court of Appeals’ decision was not contrary to, or an unreasonable
1
Respondent argues that both claims raised in the petition are procedurally
defaulted because defense counsel failed to object. The Court will, in the interest of
judicial economy, bypass the procedural default question and proceed directly to the
merits of both claims. Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (“Judicial
economy might counsel [addressing the merits of a claim] if it were easily resolvable
against the habeas petitioner, whereas the procedural-bar issue involved complicated
issues of state law.”).
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application of, Supreme Court precedent. The “deliberate deception of a court and jurors
by the presentation of known false evidence is incompatible with rudimentary demands of
justice.” Giglio v. United States, 405 U.S. 150, 153 (1972) (citations and internal
quotations omitted). Here, however, Hunter fails to establish that false evidence was
presented.
Hunter argues that Cunningham implicated Hunter because he was threatened with
criminal charges if he did not do so. But the record does not support this argument.
Officer Williams testified that the did not threaten Hunter, but advised Hunter that he
could be charged with a crime if he lied to the police. Hunter testified that after police
told him he could be charged with a crime he told the truth. Hunter was questioned and
cross-examined extensively about the circumstances of the police interviews. The jury
was informed about Hunter’s possible motivations for testifying as he did. Due process is
not violated by the admission of witness testimony allegedly secured through police
intimidation where the jury heard evidence regarding the alleged intimation. See Johnson
v. Bell, 525 F.3d 466, 481 (6th Cir. 2008); Bacon v. Klee, No. 15-2491, 2016 WL
7009108, *2 (6th Cir. 2016).
Hunter argues that the state court’s decision was an unreasonable application of
Webb v. Texas, 409 U.S. 95 (2008). Webb is inapposite. In Webb, the trial court
“gratuitously singled out” the single defense witness for a “lengthy admonition of the
dangers of perjury,” including advising the witness that if he lied on the stand “he would
be prosecuted and probably convicted for perjury.” Id. at 97-98. No prosecution
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witnesses were given similar warnings. The witness then refused to testify. The Supreme
Court found that the trial judge’s remarks “effectively drove that witness off the stand”
and denied the defendant due process. Id. at 98.
In contrast, this case does not involve a witness’s failure to testify. Cunningham
testified and both sides were able to explore the circumstances of his testimony
implicating Hunter. This is clearly distinguishable from the trial court’s conduct in Webb
which was gratuitous and led to the witness’s absence. Here, the jury was properly left to
consider the circumstances surrounding Cunningham’s testimony and evaluate the impact
on Cunningham’s credibility. The determination whether a witness is being truthful is
properly left to the jury. This claim is denied.
Hunter’s related ineffective assistance of counsel claim is also meritless. An
ineffective assistance of counsel claim has two components. A petitioner must show that
counsel’s performance was deficient and that the deficiency prejudiced the defense. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Under AEDPA, “the question” for
this Court “is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011).
The Michigan Court of Appeals held that counsel was not ineffective in failing to
object to Cunningham’s testimony because any objection would have been futile. Hunter,
2016 WL 1045631 at *5. Because Cunningham’s testimony was properly admitted,
counsel was not ineffective for failing to object. See Altman v. Winn, 644 F. App’x 637,
644 (6th Cir. 2016). Habeas relief is denied on this claim.
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C. Jury Oath
In his second claim, Hunter argues that the trial court violated his right to due
process by failing to administer an oath to prospective jurors prior to voir dire. See Mich.
Ct. R. 6.412(B) (providing that a trial court must have potential jurors sworn “[b]efore
beginning the jury selection process[.]”). He further argues that counsel was ineffective
in failing to object and preserve this claim for review.
The Michigan Court of Appeals rejected Hunter’s argument that the failure to
administer an oath was a structural error, and concluded that petitioner failed to establish
prejudice. Hunter, 2016 WL 1045631 at *6. The state court noted that, after the final
jury was selected, “the jurors were sworn to truly deliberate the case, and were later
reminded that they had taken an oath to return a true and just verdict based only on the
evidence and [the trial court’s] instructions on the law.” Hunter, 2016 WL 1045631, at
*6 (internal quotation omitted). The court of appeals found “no evidence in the record
indicating that any juror that decided this case withheld any information that would have
led to that individual being removed from the jury”, and concluded that Hunter “was
actually ensured a fair and impartial jury.” Id. at *7 (internal quotation and citation
omitted). .
The trial court’s failure to comply with Rule 6.412(B) does not present a claim
cognizable on habeas review. Habeas review does not lie for errors of state law. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Hunter also is not entitled to relief on the
basis of his argument that the failure to swear the jury venire violated due process. Hunter
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fails to cite a case holding that the federal Constitution requires a trial court to swear a
jury venire prior to voir dire. Thus, the Michigan Court of Appeals’ decision was not
contrary to, or an unreasonable application of, clearly established federal law. Accord
Robertson v. McKee, No. 09-14675, 2012 WL 263099, at *4 (E.D. Mich. Jan. 30, 2012)
(“Petitioner has failed to show that the federal Constitution is violated where the trial
court fails to swear a prospective jury pool prior to voir dire”).
The Michigan Court of Appeals held that counsel was not ineffective in failing to
raise the trial court’s failure to comply with Rule 6.412(B) in the trial court. To show that
counsel was ineffective, Hunter must show that counsel’s performance was deficient and
that the deficiency prejudiced the defense. See Strickland, 466 U.S. at 687. The
Michigan Court of Appeals proceeded directly to Strickland’s prejudice prong and held
that, because Hunter failed to demonstrate that his jury was not impartial, he failed to
show prejudice. Young, 2016 WL 1045631 at *7. The Michigan Court of Appeals’
decision that Hunter failed to show his jury was not impartial was not unreasonable,
therefore, the Court concludes that the state court’s decision that defense counsel was not
ineffective also is not contrary to, or an unreasonable application of, Supreme Court
precedent.
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability (“COA”) is issued under 28 U.S.C. § 2253. A COA
may be issued “only if the applicant has made a substantial showing of the denial of a
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constitutional right.” 28 U .S.C. § 2253(c)(2). A petitioner must show “that reasonable
jurists could debate whether (or, for that matter, 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, 484 (2000)
(citation omitted). In this case, the Court concludes that reasonable jurists would not
debate the conclusion that the petition fails to state a claim upon which habeas corpus
relief should be granted. Therefore, the Court will deny a certificate of appealability.
V. Conclusion
The petition for a writ of habeas corpus and a certificate of appealability are
DENIED and the matter is DISMISSED WITH PREJUDICE.
SO ORDERED.
s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: April 30, 2020
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