Duran v. Winn

1

CHRISTOPHER DURAN HEAD, Petitioner, v. T. Winn, Respondent.

No. 19-10768

United States District Court, E.D. Michigan, Southern Division

September 28, 2022

OPINION AND ORDER DENYING THE HABEAS PETITION DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

DENISE PAGE HOOD, UNITED STATES DISTRICT JUDGE

Petitioner Christopher Duran Head filed a pro se habeas corpus petition under 28 U.S.C. § 2254. The habeas petition challenges Petitioner's convictions for manslaughter child abuse, and three firearm offenses. He raises four claims regarding: the sufficiency of the evidence for the manslaughter and child-abuse convictions; the trial court's jury instruction on manslaughter and trial counsel's failure to object to the instruction; the admission of gory photographs of the deceased victim; and the prosecution's alleged failure to provide Petitioner with notice of his status as a fourth habitual offender and as a violent habitual offender.

Warden T. Winn argues in an answer to the petition that: there was sufficient evidence to support Petitioner's manslaughter and child-abuse convictions; Petitioner's claim about the jury-instructions is waived, procedurally defaulted, not cognizable on habeas review, and meritless the claim about gory photographs is not cognizable on habeas review, and the photographs did not deprive Petitioner of a fundamentally fair trial; and the claim about the timing of the habitual offender notices is not cognizable on habeas review and also meritless. The Court agrees that Petitioner's claims do not warrant habeas corpus relief. The Court, therefore, denies the petition. The Court also declines to issues a certificate of appealability, but grants leave to appeal in forma pauperis.

I. BACKGROUND

A. The Charges and Trial

The Wayne County Prosecutor charged Petitioner with second-degree murder, Mich. Comp. Laws § 750.317, involuntary manslaughter, Mich. Comp. Laws § 750.321, second-degree child-abuse, Mich. Comp. Laws § 750.136b(3), felon in possession of a firearm, Mich. Comp. Laws § 750.224f, possession of a short-barreled shotgun, Mich. Comp. Laws § 750.224b, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. The charges arose from the fatal shooting of Petitioner's nine-year-old son, DH, at Petitioner's home. The shooter was Petitioner's daughter, TH, who was ten years old at the time.^[1] Petitioner was tried before a jury in Wayne County Circuit Court where the testimony established that, on the day in question, DH was playing a violent video game in Petitioner's upstairs bedroom. TH came in the room and asked DH whether he wanted to act out the video. When DH agreed, TH went to an unlocked closet, picked up Petitioner's shotgun, and started waving it. The gun jerked down, and when TH attempted to raise the gun, it fired. The gunshot hit DH in the head and killed him. Petitioner and a young person who considered Petitioner to be her uncle were downstairs at the time of the shooting.

The prosecutor's theory on the murder charge was that Petitioner knowingly created a high risk of death or great bodily harm by storing a loaded sawed-off shotgun in a place accessible to his children. See 7/5/16 Trial Tr. at p. 90 (ECF No. 8-13, PageID.472); 7/6/16 Trial Tr. at pp. 100-01 (ECF No. 8-15, PageID. 694-95). The prosecutor's theory on the manslaughter charge was that Petitioner was grossly negligent because he knew of the danger to others, he could have avoided the injury by using ordinary care, and he failed to use ordinary care when it must have been apparent to a reasonable person that the result was likely to be serious injury. See 7/5/16 Trial Tr. at pp. 4-5, 90-91 (ECF No. 8-13, PageID.386-87, 472-73); 7/6/16 Trial Tr. at pp. 101-03 (ECF No. 8-15, PageID.695-97). The child-abuse charge was based on the theory that Petitioner committed a reckless act by storing his shotgun in a way that was unsafe for his children and by causing injury. 7/5/16 Trial Tr. at p. 91 (ECF No. 8-13, PageID.473); 7/6/16 Trial Tr. at p. 103 (ECF No. 8-15, PageID.697).

Petitioner chose not to testify in his own defense. The only defense witness was his brother, who testified that Petitioner loved his children, that he took them on family outings, and that he told his children more than once not to “mess with” the gun that was there. 7/6/16 Trial Tr. at pp. 67-71 (ECF No. 8-15, PageID.661-65).

Petitioner's defense was that he was a loving father, not a murderer, that he was not grossly negligent, and that the shooting was a tragic accident. He also maintained that he possessed the gun to protect his family because he lived in a dangerous neighborhood and that he could not have anticipated what his obedient daughter would do. See 7/5/16 Trial Tr. at pp. 94-96 (ECF No. 8-13, PageID.476-78); 7/6/16 Trial Tr. at pp. 104-118 (ECF No. 8-15, PageID.698-712). On July 7, 2016, the jury acquitted Petitioner of the murder charge, but found him guilty of involuntary manslaughter, second-degree child abuse, and the three firearm charges. See 7/7/16 Trial Tr. at p. 4 (ECF No. 8-16, PageID.724).

B. The Sentence, Motion for Resentencing, and Direct Appeal

On July 25, 2016, the trial court sentenced Petitioner as a fourth habitual offender and as a violent habitual offender to concurrent terms of 25 to 50 years in prison for the manslaughter conviction, 10 to 50 years for the child-abuse conviction, and 5 to 50 years for the felon-in-possession and short-barreled shotgun convictions. The court sentenced Petitioner to a consecutive term of two years in prison for the felony-firearm conviction. See Sentence Hr'g Tr. at p. 18 (ECF No. 8-17, PageID.745).

Petitioner moved for resentencing on grounds that the prosecution did not serve him with notice that he was being charged as a fourth-offense habitual offender and as a violent habitual offender and that the prosecution did not file a proof of service to show that he was personally served. See 1/6/17 Mot. Hr'g Tr. at pp. 3-5 (ECF No. 8-18, PageID.750-52). The trial court denied the motion after concluding that Petitioner was not entitled to resentencing for a ministerial error and that Petitioner had actual notice of both the habitual offender charge and the 25-year mandatory minimum. See id. at pp. 6-7, PageID.753-54.

Petitioner raised his habeas claims through counsel in an appeal of right. The Michigan Court of Appeals rejected his claims and affirmed his convictions and sentences on March 27, 2018. See People v. Head, 323 Mich.App. 526; 917 N.W.2d 752 (2018).

Petitioner then applied for leave to appeal in the Michigan Supreme Court, which denied leave to appeal on December 7, 2018, because it was not persuaded to review the questions presented to the court. See People v. Head, 503 Mich. 918; 920 N.W.2d 145 (2018). The high court stated that its denial was without prejudice to Petitioner's right to file a motion for relief from judgment on his claim that the prosecution had failed to give timely notice that he would be subject to a 25-year mandatory minimum sentence under Mich. Comp. Laws § 769.12(1)(a). Id.

C. The Habeas Petition, Post-Conviction Motion, and Collateral Appeal

On March 14, 2019, Petitioner filed his habeas corpus petition with his state appellate briefs attached as support for his claims. (ECF No. 1.) Several days later, on March 27, 2019, Petitioner filed a motion for relief from judgment in the state trial court. See People v. Head, Wayne Cty. Cir. Ct. Register of Actions, No. 15-010037-01-FC (ECF No. 8-1, PageID.206). On July 29, 2019, the trial court denied Petitioner's motion.^[2]

Petitioner filed a delayed application for leave to appeal, but the Michigan Court of Appeals affirmed the trial court's order. See People v. Head, No. 352966, 2021 WL 1712575 (Mich. Ct. App. Apr. 29, 2021). The Court of Appeals reissued its order on October 28, 2021. See People v. Head, No. 352966, 2021 WL 5021700 (Mich. Ct. App. Oct. 28, 2021). Petitioner then applied for leave to appeal in the Michigan Supreme Court which was denied on July 28, 2022.^[3]

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires prisoners who challenge “a matter ‘adjudicated on the merits in State court' to show that the relevant state court ‘decision' (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.' ” Wilson v. Sellers, 138 S.Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 2254(d)). Simply stated, “[f]ederal habeas courts must defer to reasonable state-court decisions].]” Dunn v. Reeves, 141 S.Ct. 2405, 2407 (2021). This is a “highly deferential standard,” which “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), and Woodford v. Visciotti, 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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “Only an ‘objectively unreasonable' mistake, . . . one ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement,' slips through the needle's eye of § 2254.” Saulsberry v. Lee, 937 F.3d 644, 648 (6th Cir. 2019)(quoting White v. Woodall, 572 U.S. 415, 419 (2014), then Richter, 562 U.S. at 103). “That's a ‘high...