Cistrunk v. Campbell

JOHN HENRY CISTRUNK, #207830, Petitioner, v. SHERMAN CAMPBELL, Respondent.

CASE NO. 2:12-CV-12568

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 23, 2020

HONORABLE PAUL D. BORMAN

OPINION AND ORDER DENYING THE 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 habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner John Henry Cistrunk ("Petitioner"), currently confined at the Gus Harrison Correctional Facility in Adrian, Michigan, was convicted of assault with intent to commit murder, MICH. COMP. LAWS § 750.83, assault with intent to commit great bodily harm less than murder, MICH. COMP. LAWS § 750.84, felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, and possession of a firearm during the commission of a felony, second offense, MICH. COMP. LAWS § 750.227b, following a jury trial in the Wayne County Circuit Court. He was sentenced, as a third habitual offender, MICH. COMP. LAWS § 769.11, to 26 to 40 years imprisonment on the assault with intent to commit murder conviction, a concurrent term of 5 to 15 years imprisonment on the assault with intent to commit great bodily harm conviction, a concurrent term of 2½ to 5 years imprisonment on the felon in possession conviction, and a consecutive term of 5 years imprisonment on the felony firearm conviction in 2009.

In his habeas petition, as amended, Petitioner raises claims concerning the impartiality of the trial judge, the conduct of the prosecutor and the effectiveness of trial counsel regarding the admission of other acts evidence, the jury instructions, the accuracy of sentencing information, the scoring of the sentencing guidelines and the effectiveness of trial counsel at sentencing, double jeopardy as to his felon in possession and felony firearm convictions, the identification procedures and the effectiveness of trial counsel as to that issue, the police investigation, the conduct of the prosecutor, his right to testify and the waiver of that right, the sufficiency of the evidence, and the effectiveness of trial and appellate counsel. For the reasons set forth herein, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and denies Petitioner leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner's convictions arise from the non-fatal shooting of two people in a residential area in Detroit, Michigan in 2008. The Michigan Court of Appealsdescribed the relevant facts, which are presumed correct on habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

Defendant's convictions arose from the shooting of Martin Paris and Nathaniel Floyd on the evening of October 22, 2008. Paris testified that defendant drove up to the home of Paris's sister, Antoinetta Gibson, that evening in an orange-and-black Dodge Charger looking for Gibson. Floyd, Paris's friend, then appeared at the home, and Paris and Floyd got in a vehicle to leave for some food. Defendant, who had driven away, returned in the Charger and kept asking for Gibson. He then shot toward Paris and Floyd. Paris was hit in the neck and arm. Floyd testified that he, too, was shot in the neck by defendant. Kevin Anderson testified that he was visiting the area in question that night, that he heard several gunshots, and that he saw a Charger in the area. Gibson testified that before the shooting incident she had had a friendship with defendant and had seen him seven or eight times. Todd Eby, a sergeant with the Detroit Police Department, testified that he prepared a photographic lineup for Paris and Floyd and that they both identified defendant as the shooter.

Defendant's brother, Henry Brown, testified that he was with defendant at defendant's home during the entire day of October 22, 2008. Gino Rucker and Sean Clark, two of defendant's friends, testified that defendant was at home taking part in a drug intervention for Brown at the time of the offenses. Samuel Williams, Jr., also testified that defendant was home during the pertinent time. Abdul Kerek, the owner of an automobile-body shop, testified that defendant's Dodge Charger was towed to his shop in October 2008. He stated that he could not remember the exact date the car was brought it but he was "[a h]undred percent sure" that it was taken by the police three days after it was brought in. Earlier, Eby had testified that the police department retrieved the car from Kerek's shop on October 24, 2008. Timothy Jackson, a tow-truck driver, testified that he towed defendant's car to Kerek's shop on October 21, 2008. Jamie Douglas, defendant's girlfriend, testified that defendant's Charger was "in the shop" at the time of the offenses. She also testified thatdefendant was home on the evening in question.

People v. Cistrunk, No. 291862, 2010 WL 2836349, *1 (Mich. Ct. App. July 20, 2010) (unpublished).

Following his convictions and sentencing, Petitioner, through counsel, filed an appeal of right with the Michigan Court of Appeals raising claims concerning the impartiality of the trial court, the conduct of the prosecutor and the effectiveness of trial counsel as to the admission of other acts evidence, and double jeopardy with respect to his felon in possession and felony firearm convictions. Petitioner also filed a pro per supplemental brief. The court denied relief on the claims raised by counsel, rejected the supplemental brief as inadequate, and affirmed Petitioner's convictions and sentences. Id. at *1-4. Petitioner filed an application for leave to appeal with the Michigan Supreme Court raising the same three claims raised by counsel, as well as claims concerning the jury instructions and the validity of his sentence. The court denied leave to appeal in a standard order. People v. Cistrunk, 488 Mich. 1048, 794 N.W.2d 603 (2011).

Petitioner thereafter filed his initial federal habeas petition raising the five claims presented to the Michigan Supreme Court on direct appeal, as well as a motion to stay the proceedings so that he could return to the state courts to exhaust additional claims. The Court granted that motion and stayed the proceedings. Petitioner then returned to the state courts and ultimately filed a motion for relieffrom judgment with the state trial court raising claims concerning the identification procedures and the effectiveness of trial counsel as to that issue, the police investigation, the conduct of the prosecutor, his right to testify and the waiver of that right, the sufficiency of the evidence, the effectiveness of trial and appellate counsel, and the validity of his sentence. The trial court denied relief on those claims pursuant to Michigan Court Rule 6.508(D)(2) and (3) and, in part, on the merits. People v. Cistrunk, No. 08-18426-01 (Wayne Co. Cir. Ct. Jan. 10, 2014). Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, which was denied "for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Cistrunk, No. 322827 (Mich. Ct. App. Nov. 7, 2014). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Cistrunk, 499 Mich. 966, 880 N.W.2d 543 (2016).

Petitioner thereafter moved to reopen this case and proceed on an amended habeas petition. The Court granted that motion and reopened the case. Respondent subsequently filed an answer to the habeas petition, as amended, contending that it should be denied because certain claims are time-barred, certain claims are procedurally defaulted or abandoned, and all of the claims lack merit.

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part:

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 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) (1996).

"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 [that] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002). "[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 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); see also Bell, 535 U.S. at 694. 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...