Burton v. Burton

JOHN SAMUEL BURTON, #358780, Petitioner, v. DEWAYNE BURTON, Respondent.

CASE NO. 2:14-CV-11760

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 28, 2020

HONORABLE VICTORIA A. ROBERTS

OPINION AND ORDER DENYING THE AMENDED PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

This is a pro se habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner John Samuel Burton ("Petitioner") was convicted of two counts of first-degree felony murder, MICH. COMP. LAWS § 750.316(1)(b), two counts of assault with intent to commit murder, MICH. COMP. LAWS § 750.83, two counts of armed robbery, MICH. COMP. LAWS § 750.529, assault with intent to commit armed robbery, MICH. COMP. LAWS § 750.89, felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, following a jury trial in the Wayne County Circuit Court. He was sentenced, as a fourth habitual offender, MICH. COMP. LAWS § 769.12, to concurrent terms of life in prison without the possibility of parole on the murder convictions, concurrent terms of 40 to 60 years in prison on the assault with intent to murder and armed robbery convictions, a concurrent term of 20 to 40 years in prison on the assault with intent to commit armed robbery conviction, a concurrent term of 5 to 15 years in prison on the felon in possession conviction, and a consecutive term of 2 years in prison on the felony firearm conviction in 2010.

In his pleadings, as amended, Petitioner raises claims concerning the admission of jail audio recordings and mug shot evidence, actual innocence/miscarriage of justice, the conduct of the prosecutor and the use of allegedly false evidence, and the effectiveness of trial counsel for failing to object to the admission of the jail audio recordings and the mug shot, for failing to investigate/present three alibi witnesses, and for failing to seek suppression of witness identifications due to allegedly suggestive pre-trial identification procedures. For the reasons set forth, the Court denies and dismisses with prejudice the Amended Petition for a Writ of Habeas Corpus. The Court also denies a Certificate of Appealability ("COA") and denies Petitioner leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner's convictions arise from his and his co-defendant's armed robbery of a group of drug dealers that resulted in the fatal shooting of two men and an injury to a third man in Detroit, Michigan on November 20, 2002. Petitioner and his co-defendant wore masks during the incident, but Petitioner's mask slipped down and three eyewitnesses identified him as one of the perpetrators. Petitioner was arrested on other charges in Pennsylvania in 2006 and extradited to Michigan in 2009.

At trial, the prosecution presented testimony from Antonio Miller, the surviving shooting victim, Tanisha Talton, who was with the victims at the time of the shooting, and William Thomas, who also witnessed the shooting, all of whom identified Petitioner as one of the two gunmen, as well as testimony connecting Petitioner to a piece of identification stolen from one of the victims. Additionally, the prosecution presented audio recordings of a telephone conversations between Petitioner and an unidentified woman that occurred while he was in jail in Pennsylvania in 2007 and 2008. In those recordings, Petitioner told the woman, who referred to him as "Carlos," that he might have "too many enemies in the D" to return there, that he was "on the run for bodies," and that he was trying to raise $35,000 for new identification. The prosecutor also presented evidence of Petitioner's flight to Pennsylvania, his use of the aliases "John Carlos Miller" and "Michael Thomas" when stopped by police in Pennsylvania in July and September, 2006, and his 1998 Pennsylvania mug shot. See Pet. App. Brf., pp. 3-9; Pet. Supp. App. Brf., pp. 1-5.

Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising the following claims through counsel and in a pro per brief:

I. Trial counsel was ineffective for not objecting to the Pennsylvania jailhouse tapes on the ground that the prosecution failed to authenticate them. Alternatively, the trial court committed plain error by admitting them into evidence.

II. The trial court erred in allowing the prosecution to mislead the jury with false evidence of a Pennsylvania county jail mug shot. Alternatively, the trial court committed plain error by admitting it into evidence.

The court remanded the case for an evidentiary hearing on the audio recordings, but ultimately denied relief on those claims and affirmed Petitioner's convictions. People v. Burton, No. 298864, 2012 WL 4210313 (Mich. Ct. App. Sept. 20, 2012). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Burton, 493 Mich. 952, 828 N.W.2d 44 (April 1, 2013).

On April 29, 2014, Petitioner dated his initial Petition for a Writ of Habeas Corpus for filing with this Court raising the same claims presented on direct appeal. On October 30, 2014, while the case was pending, Petitioner filed a motion to stay the proceedings and hold his case in abeyance so that he could return to the state courts to exhaust additional claims. On November 6, 2014, the Court granted that motion, stayed the proceedings, and administratively closed the case.

On November 13, 2014, Petitioner filed a motion for relief from judgment with the state trial court raising the following claims:

I. He presents new evidence that quantitatively and qualitatively exceeds that required by Schlup.

II. The Michigan Legislature, with the promulgation of MCL 769.26, 770.1, and 770.2, authorizes the court to order a new trial where the trial court recognizes that a miscarriage of justice has occurred.

III. He was deprived of his state and federal constitutional due process right to a fair trial where the prosecutor intentionally misled the jury by presenting false evidence. Alternatively, defense counsel was ineffective for failing to object to the introduction of this false evidence.

IV. He was denied his Sixth Amendment right to the effective assistance of trial counsel where counsel failed to investigate several witnesses that would have provided testimony that he was not involved in the shooting that resulted in his convictions.

V. He was denied his Sixth Amendment right to the effective assistance of counsel where counsel failed to move to suppress the unnecessarily suggestive pretrial identification procedures concerning Tanisha Talton and William Thomas.

A. Where two other witnesses had identified him resulting in an arrest warrant being issued for him, and where at least one of these witnesses visited with Antonio Miller in the hospital before police interviewed Miller, the subsequent use of the one photograph (mug shot) to show Miller was unnecessarily suggestive.

VI He was denied his Sixth Amendment right to the effective assistance of appellate counsel and his Fourteenth Amendment right to a full and fair appeal of right where appellate counsel omitted significant and obvious issues on direct appeal that were clearly stronger than the issues counsel did raise on direct appeal.

VII. The assessment of $1,672 in court costs as part of his sentence must be vacated as those costs are not authorized to be imposed in this case by a specific legislative act.

The trial court denied relief on those claims based upon Michigan Court Rule 6.508(D)(2) and (3), and on the merits. People v. Burton, No. 09-028803-FC (Wayne Co. Cir. Ct. Oct. 5, 2015). Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals raising the same claims, which was denied because Petitioner "failed to establish that the trial court erred in denying the motion for relief from judgment." People v. Burton, No. 332281 (Mich. Ct. App. June 27, 2016). Petitioner then filed an application for leave to appeal which the Michigan Supreme Court, which was denied pursuant to Michigan Court Rule 6.508(D). People v. Burton, 500 Mich. 923, 888 N.W.2d 83 (Dec. 28, 2016).

Petitioner thereafter moved to reopen this case and proceed on an Amended Petition for a Writ of Habeas Corpus raising the following claims:

I. Ineffective assistance of counsel for not objecting to tape recordings. The trial court erred in admitting them.

II. The trial court erred in allowing the prosecution to introduce knowingly false evidence of a 1998 Pennsylvania mug shot.

III. Actual innocence/miscarriage of justice has occurred (newly-presented evidence).

IV. Prosecutor misconduct for misleading the jury with false evidence and stating facts not in the record.

V. Ineffective assistance of trial counsel where he failed to investigate three witnesses who would provide testimony that he was not involved in the shooting.

VI. Ineffective assistance of trial counsel for failing to move to suppress the suggestive identification procedures of William Thomas and Tanisha Taton.

VIII. The procedure for Antonio Miller was also suggestive.

VIII. Trial counsel was ineffective for failing to object to the 1998 Pennsylvania jail mug shot as false when he knew the prosecutor used the false evidence to mislead the jury. Trial counsel failed to object to the misconduct and false evidence.

On April, 24, 2017, the Court granted his request and reopened the case. Respondent subsequently filed an Answer in Opposition to the Amended Petition for a Writ of Habeas Corpus contending that it should be denied because several claims are untimely, several claims are barred by procedurally defaulted, and all of the claims lack merit. Petitioner filed a Reply to that Answer.

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"...