Franklin v. Woods

RICKY FRANKLIN, Petitioner,

v.JEFF WOODS, Respondent.

Case Number 09-13466

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: November 19, 2012

Honorable David M. Lawson

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

In 1995, a jury in the Oakland County, Michigan circuit court convicted petitioner Ricky Franklin of conspiracy to possess with intent to deliver 650 or more grams of cocaine. At the time, the conviction called for a mandatory life sentence without parole, although legislative changes have made the petitioner eligible for parole. Following his unsuccessful direct appeals and post-conviction motion litigation in state court, Franklin filed the present petition for a writ of habeas corpus under 28 U.S.C. § 2254. He raises a variety of issues, some of which the respondent contends cannot be reviewed because of the procedural default rules, and all of which he says lack merit. The Court has assessed the merits of the petitioner's claims and concludes that none warrant habeas relief. Therefore, the petition will be denied.

I.

One of the petitioner's challenges in this case is to the sufficiency of the evidence against him. Consequently, the Court will discuss the record in some detail.

According to the trial court record, the petitioner was involved in an extensive cocaine trafficking operation that conducted business between Muskegon and Oakland County, Michigan. It came to light on July 5, 1990, when Sergeant Paul Bourlier of the Southfield Police Departmentmade a traffic stop of a vehicle driven by Marcus Holloway, a/k/a Martese Wideman. The petitioner and Gerald Hill were passengers in the car. While Sergeant Bourlier spoke with Wideman, Hill and the petitioner were permitted to go to a nearby party store to purchase a drink. After going into the store, the petitioner returned to the car but Hill walked across the street to a nearby auto parts store, carrying a package. Bourlier ended the traffic stop and went over to the auto parts store. Another police officer, Sergeant John Fisher, was flagged down by a worker at the auto parts store, Kevin Ali, who had seen Hill go to the back of the store with a jacket wrapped around his arm. Ali later went to the back of the store and found a jacket lying on the ground. Ali pointed out the jacket to Sergeant Fisher, who discovered that it contained two baggies containing 389.64 grams of cocaine. Hill was subsequently arrested.

On August 28, 1990, the Muskegon police executed a search warrant at the Roosevelt Park Plaza Motel, where they found money, cellular telephones, and beepers. Outside the motel room, the police found an automobile containing 54 grams of cocaine. The police arrested Dwayne Wynn.

About eight months earlier, on December 11, 1989, police from the Muskegon County Sheriff's Department and the Muskegon Heights Police Department stopped a white Mercury Cougar containing Cato Peterson, Amir Wilson, Aaron Banks, and Ronald Gardner, Jr. Inside of the passenger side door, police recovered a screwdriver. The police also found a hot plate in the trunk of the car. When the police opened the trunk of the car, they discovered 23 baggies containing 222.052 grams of cocaine. A latent fingerprint taken from the inside rim of the hot plate came from the petitioner's little left finger and a print of the plastic baggie containing the cocaine was made by the petitioner's left palm.

Ronald Gardner, Jr. testified that he grew up in the same neighborhood with the petitioner. On the morning of December 11, 1989, the petitioner called him from Wideman's house and asked him to follow him to Amir Wilson's house. Wilson and Peterson got into Gardner's car and the three men followed the petitioner to a K-Mart store, where they purchased a hot plate and a screwdriver. The petitioner informed the other men that he was going to put the "stuff" into the hot plate. The petitioner and Banks placed the cocaine inside the hot plate and then reassembled it before placing it in the trunk of the car.

Gardner knew that he was going to Muskegon because he had been there twice before. In October of 1989, Gardner had taken Banks and a man named "Twin" to Muskegon. Sam, Jeremiah, and Gerald Hill had driven in another car. Gardner testified that he knew that the men would be selling cocaine in Muskegon because earlier he had gone with the petitioner to Kevin Smith's (a/k/a/ Kevin Jackson a/k/a Fat Kev) house to pick it up. Gardner followed Jackson and the petitioner to a street off of Greenfield, where Jackson obtained a bag from another man and gave it to the petitioner, who put it into the trunk of Gardner's car. The petitioner and Gardner ultimately took the cocaine to the petitioner's mother's house and put it into a car inside the garage. Gardner and the petitioner went to the petitioner's apartment, where the petitioner called Betty Louise Day in Muskegon. The petitioner and Gardner returned to the petitioner's mother's house and removed cocaine baggies that had been hidden inside of a car battery. The petitioner also broke the brick of cocaine that he had obtained from Jackson, cutting it and weighing it on a scale. The petitioner put the cocaine inside some pickle jars containing water and baking soda, before cooking it into crack cocaine. Thereafter, the cocaine was cut into little rocks and placed in bags. The following day, Gardner picked up the petitioner and took him to Aaron Banks' home, where "Twin", LamontBanks, Jeremiah, Sam, and Gerald Hill were. The petitioner took Gardner to a gas station, where the petitioner paid an attendant to place the cocaine inside of Gardner's spare tire. Gardner later drove the car to Muskegon, bringing Aaron Banks and "Twin" with him.

Gardner further testified that he helped the petitioner cook crack cocaine at Terrance Moore's condominium in Oak Park, Michigan and also helped the petitioner to cut crack cocaine at the petitioner's mother's house when "Mo/Kevin" brought the petitioner $15,000.

Cato Peterson testified that he grew up in the same neighborhood as the petitioner and also knew Anthony Johnson, Martese Wideman, Amir Wilson, and Dwayne Wynn. Peterson asked Aaron Banks and Wideman if he could accompany them to Muskegon to sell cocaine. Wideman told Peterson to obtain permission from the petitioner, who said that he did not care. On December 1, 1989, Peterson drove to Muskegon with Wideman, Wilson, and another person. The men went to Betty Louise Day's apartment. Peterson sold 50 rocks of cocaine that were given to him by Wideman.

On December 11, 1989, Peterson met the other men at Amir Wilson's house. The petitioner arrived in a Chevrolet Camaro and Ronald Gardner came in a white Mercury Cougar. Peterson and Wilson got into the Cougar with Gardner and followed the petitioner to a K-Mart store. Gardner and the petitioner went into the store and the petitioner subsequently exited the store carrying a bag. The men followed the petitioner to Aaron Banks' house. Peterson left with Banks, Wilson, and Gardner in the white Cougar. The men were eventually pulled over by the police in Muskegon.

Vicki Diggs testified that she first met the petitioner in Muskegon Heights. The petitioner offered to pay her money to let "the boys stay here and do their job," which meant selling crackcocaine. In April of 1989, the police raided Diggs' house and came up empty. However, Diggs began holding cocaine and money in 1990 after meeting Anthony Johnson, a/k/a Tone.

Jeremiah Perry testified that he agreed to sell cocaine for the petitioner. Perry lived with Aaron Banks in Detroit. On one occasion, he saw the petitioner pay a man at an Amoco gas station to put the cocaine inside a spare tire. Perry estimated that there was between $20,000 and $40,000 worth of cocaine in the tire. Perry then drove Aaron Banks to Muskegon Heights, where the cocaine was sold. Perry would bring back the money — between $20,000 and $40,000 — five or six times a month and give it to the petitioner. The petitioner would count the money with Perry and Aaron and Lamont Banks.

Perry also testified that he was with the petitioner when he purchased one-eighth of a kilogram (125 grams) of cocaine from Kevin Jackson. On another occasion, Perry was with the petitioner when he purchased one kilogram from Jackson. Perry and the petitioner cooked the cocaine several times at Terrance Moore's house, Perry's mother's house, and Anthony Johnson's house. Perry testified that he knew Gerald Hill, who had wanted him to sell drugs. Perry also knew Dwayne Wynn as another person who sold cocaine in Muskegon. Perry and Wideman also sold cocaine for the petitioner in Lima, Ohio.

On November 14, 1995, the jury convicted the petitioner as charged. He was sentenced to life in prison on December 14, 1995.

The petitioner attempted to file a direct appeal through an appointed lawyer, but somehow the ball was dropped. Eventually, the state trial court remedied the inexplicable missteps of counsel and allowed a direct appeal to proceed in November 2004. In May 2005, the trial court denied a motion for new trial, rejecting the contention that counsel was ineffective and that the convictionfacts were undermined by witness Jeremiah Perry's recanting affidavit. In March 2006, appellate counsel filed a two-issue brief raising those same arguments. The petitioner also filed a pro se supplemental brief, in which he raised claims that the trial court erred in admitting a police officer's in-court identification of the petitioner, the trial court improperly denied the petitioner's motion for a directed verdict, the prosecutor knowingly presented perjured testimony, and the petitioner was deprived of the effective assistance of counsel because he was denied a complete and accurate record on which to appeal. The petitioner's conviction was affirmed on appeal. People v. Franklin, No. 260959, 2006 WL 2987572, at *1-2 (Mich. Ct. App. October 19, 2006); lv. den. 477 Mich. 1056, ...