Cook v. Romanowski

LAMONT COOK, Petitioner, v. KENNETH ROMANOWSKI, Respondent.

CASE NO. 2:13-CV-10784

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 24, 2015

HONORABLE GEORGE CARAM STEEH

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

Michigan prisoner Lamont Cook ("petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his constitutional rights. The petitioner was convicted of armed robbery, MICH. COMP. LAWS § 750.529, carjacking, MICH. COMP. LAWS § 750.529a, felonious assault, MICH. COMP. LAWS § 750.82, and possession of a firearm during the commission of a felony ("felony firearm"), MICH. COMP. LAWS § 750.227b, following a bench trial in the Wayne County Circuit Court. He was sentenced to concurrent terms of 11 to 25 years imprisonment on the armed robbery and carjacking convictions, a concurrent term of two to four years imprisonment on the assault conviction, and a consecutive term of two years imprisonment on the felony firearm conviction in 2008.

In his pleadings, the petitioner raises claims concerning the sufficiency of the evidence, the validity of his sentence, and the effectiveness of appellate counsel. For the reasons set forth herein, the court finds that those claims lack merit and denies the habeas petition. The court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

The petitioner's convictions arise from an incident that began at a gas station in Detroit, Michigan during the early morning hours on January 19, 2008. At trial, the victim, testified that he stopped at a Valero gas station to get gas when he was approached by two men, an unknown man and the petitioner. The unknown man opened the car door, hit him with a gun which he believed was a .38 revolver, and demanded his stuff. The men took his wedding ring from his finger and his wife's rings from his pocket. The petitioner also took $23 from his pocket while the unknown man held the gun on him. The unknown man got into the driver's seat and pushed the victim to the passenger's seat, while the petitioner got into the backseat and held the gun on him. They told him that they knew he had more money and demanded it. The victim said that he would get them more money if he could make a call. They drove around the neighborhood. As they drove, the petitioner struck him in head with the gun several times. They told him that they thought a car was following them and that they would have to kill him. The petitioner kept demanding more money and then told the unknown man to drive to an alley so that he could kill the victim. The victim heard police sirens. The unknown man jumped from the car while it was still moving. The police apprehended the petitioner and the victim. The victim said that he had $700 in hispocket that he kept from the two men. He also admitted that he did not suffer any cuts or bruises from being struck with the gun.

A witness to the crime testified that he saw the two men approach the victim, saw a gun, and saw the man in the backseat of the car hit the victim. He followed the car when it left the gas station and called 911. The police showed up 10 to 15 minutes later and he saw the driver jump from the car and flee the scene. The police arrested the other two men in the car until he told them that the man in the passenger seat was the victim.

A Detroit police officer testified about responding to the scene and arresting the petitioner. The parties stipulated that no gun or jewelry were recovered from the petitioner.

The petitioner testified in his own defense at trial. He claimed that he walked to the gas station to get cigarettes and saw two men sleeping in a car. He recognized the driver, a man named Will, from the area and knocked on the window. The driver offered him a ride home, which he accepted. While they were driving, the police began to follow them and the driver jumped out of the car. The petitioner denied that he or the driver had a gun. He also denied threatening, striking, or robbing the victim.

At the close of trial, the trial court credited the victim's and the eyewitness's testimony over the petitioner's testimony and found the petitioner guilty of the charged offenses.

The trial court subsequently conducted a sentencing hearing. At that hearing, the parties agreed that Prior Record Variable 7 should be scored at 20 points. The trial court did not score points on any Prior Record Variable for the petitioner's Ohio convictions because it could not verify that they were less then 10 years old. The trial court then sentenced the petitioner to the terms of imprisonment previously set forth.

Following his convictions and sentencing, the petitioner filed an appeal of right with the Michigan Court of Appeals challenging the sufficiency of the evidence to support his felony firearm conviction. The court determined that the claim lacked merit and affirmed the petitioner's convictions and sentences. People v. Cook, No. 287735, 2009 WL 3789975 (Mich. Ct. App. Nov. 12, 2009) (unpublished). The petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Cook, 485 Mich. 1131, 779 N.W.2d 812 (2010).

The petitioner subsequently filed a motion for relief from judgment with the state trial court raising several claims of error, including claims that the court erred in scoring Prior Record Variable 7 at 20 points and that appellate counsel was ineffective for failing to object to that issue at sentencing. The trial court found that the petitioner's claims lacked merit and denied relief. People v. Cook, No. 08-1687-01 (Wayne Co. Cir. Ct. April 27, 2011). The petitioner filed a delayed 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. Cook, No. 306447 (Mich. Ct. App. May 2, 2012). The petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Cook, 493 Mich. 891, 822 N.W.2d 579 (2012).

The petitioner thereafter filed his federal habeas petition raising the following claims:

I. A writ should issue where the state appellate courts were incorrect when they found that there was sufficient evidence for the trial court to find felony firearm even though the weapon was not recovered and the State failed to establish that the weapon was operable.

II. A writ should issue because he was denied his Sixth Amendment right to effective assistance of counsel where his appellate attorney failed to raise a "dead bang winner" claim regarding the State's use of materially inaccurate or false information during sentencing.

III. A writ should issue where the state court failed to properly exercise judicial discretion when sentencing him on materially inaccurate or false information thereby denying him due process in violation of the Fourteenth Amendment.

The respondent has filed an answer to the petition contending that it should be denied because the claims lack merit and/or are barred by procedural default.

III. Standard of Review

Federal law 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 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 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 [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'scase." 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 U.S. at 409. "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, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The United States Supreme Court has held that "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, ___ U.S. ___, 131 S. Ct. 770, 786 (2011) (citing Yarborough v....