Hall v. Rivard

DENNIS ANTHONY HALL, Petitioner, v. STEVEN RIVARD, Respondent,

Civil No. 2:10-CV-11252

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 31, 2016

HONORABLE DENISE PAGE HOOD

UNITED STATES DISTRICT JUDGE

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

Dennis Anthony Hall, ("Petitioner"), confined at the Oaks Correctional Facility in Manistee, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his convictions for second-degree murder, M.C.L.A. 750.317; felonious assault, M.C.L.A. 750.82; felon in possession of a firearm, M.C.L.A. 750.224f; three counts of possession of a firearm in the commission of a felony [felony-firearm], M.C.L.A. 750.227b; and being a fourth felony habitual offender, M.C.L.A. 769.12. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was originally charged with first-degree murder, felonious assault, felon in possession of a firearm, three counts of felony-firearm, and being a fourth felony habitual offender. Following a jury trial in the Oakland County Circuit Court, petitioner was convicted of the lesser included offense of second-degree murder and guilty as charged on the remaining offenses. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6^th Cir. 2009):

Defendant's convictions arise from two connected incidents that occurred on December 30, 2005. The prosecution's theory was that defendant first feloniously assaulted David Smith at 303 Going Street in Pontiac, and then later shot at a person he believed to be Smith at 24 Short Street in Pontiac, mistakenly shooting his girlfriend's son, Bernard Williams, killing him.

According to prosecution witnesses, on December 30, 2005, at approximately 6:00 p.m., defendant barged into the home of Ysha Polk at 303 Going Street in Pontiac. Ernest Polk, Ysha's father, was with defendant at the time. Defendant, armed with a gun, confronted and grabbed David Smith and asked him "where is my s* *t?" or something along those lines. Smith denied taking any of defendant's property and ran out of the house. After Smith ran out, defendant informed Ysha Polk that Smith had taken some of his CDs and that Smith, Ysha's boyfriend, was going to get her killed. Defendant left and Smith then returned to Polk's house. According to Smith, he remained there for 20 minutes, obtained a ride home from his cousin, and then he and his cousin returned to Polk's home several hours later. Smith's burgundy Chevy Lumina remained at Polk's house until Smith drove it home early the next morning.

According to defense witnesses, earlier in the day Mark Johnson informed defendant that he saw Smith in front of defendant's home. Defendant then went home and discovered that it had been broken into and various items stolen. Defendant put "two and two together" and went looking for Smith to get his property back. Defendant went toErnest Polk to seek assistance in this effort. Defendant, Ernest Polk, and the eventual homicide victim, Bernard Williams, subsequently went looking for Smith, eventually arriving at Ysha Polk's home. Smith's car was parked in front of the house. Defendant looked in the car and saw some of the items that had been stolen from his home. The three men went to the door of Ysha Polk's home, and defendant confronted Smith, but Smith denied taking defendant's items. Defendant testified that he and Smith briefly tussled and that Smith threatened to "f* *k him up" after defendant threatened to contact the police. Smith then ran away.

Defendant, Ernest Polk, and Bernard Williams then left Ysha Polk's home, and defendant dropped Williams off at a restaurant. From there, defendant and Ernest Polk proceeded to drive to the home of defendant's girlfriend, Samantha Jones, at 24 Short Street. Jones was Williams's mother and Williams also resided at the home. At Jones's house, defendant, Jones, and Ernest Polk sat at the kitchen table discussing the break-in of his home and the earlier confrontation with Smith. Jones's other children, Brandon Williams, Terrance Tucker, Jr., and Mercedes Tucker were also present at the time. Some occupants of the home heard a gunshot, and defendant and Tucker heard a car pull up to the house. Jones looked out the window and supposedly saw a burgundy Lumina. Defendant then said, "Here these n* * * * *s come" or "Here they go." According to Tucker, defendant pulled out a gun, cocked it back, and aimed it toward the back door. At some point, defendant said, "Come on with it, motherf* * * *r" or something to that effect. People fled to the rear of the house. Multiple gunshots were heard from inside the home. Ernest Polk testified that defendant fired three shots at the side door. Polk could not see who defendant was firing at, nor did he see the bullets hit anyone, because by that time he was running away from the area. In the meantime, Williams had arrived at the home and was struck by gunfire and killed.

Terrance Tucker, Sr., Williams's stepfather, was outside the home around the time the incident occurred. He arrived at 24 Short Street and pulled up into the driveway in his van, behind defendant's vehicle. He came over that evening to visit his children, Terrance Tucker, Jr., and Mercedes Tucker. When Tucker Sr. observed that defendant was there, he decided not to go in. Instead, he turned up the music in his van and sat there in the driveway. He then saw Bernard Williams walking down the street with two of his friends. Tucker Sr. conversed briefly with Williams and asked him to tell Brandon to come outside.

Bernard Williams and the other two men then walked together past the side of the house toward the back door. Tucker Sr. testified that he next observed one of the men run past him down Short Street, and he saw the other man run toward the back of the house. Tucker Sr. then witnessed the side door swing open and a man standing there with a gun in his hand. Tucker Sr. did not get a good look at the man because his focus was on the gun, and he could not say whether the man was defendant, who he knew from past interactions. Tucker Sr. ducked down and backed out of the driveway. He saw the man with the gun go back into the house. Tucker Sr. had not heard any noises while he sat in his van because the van's music was turned up so loud; he also saw no other vehicles while he was sitting in his van. Tucker Sr. later caught up with one of the men who had run off, and that person was highly distraught and informed him that they had walked into the house and guns started firing.

Defendant adamantly denied ever shooting a gun, and he claimed that he never had a weapon. According to defendant, he ran to the back of the house with everyone else after hearing a gunshot, a commotion at the side of the house, and someone saying "Where that motherf* * * *r at?" As he was lying down behind a door, defendant heard a scuffle and gunshots in the house.¹

People v. Hall, No. 273908, * 1-3 (Mich.Ct.App. October 21, 2008).

Petitioner's conviction was affirmed on appeal. Id.; lv. den. 483 Mich. 915 (2009); reconsideration den. 483 Mich, 1021 (2009).

Following his direct appeal, petitioner filed what he labeled as a motion to vacate his judgment of sentence being filed pursuant to M.C.R. 2.119. In this motion, petitioner claimed that the trial court had no jurisdiction over his felonious assault charge. Petitioner also asked the trial court not to treat his motion as beinga motion for relief from judgment being filed pursuant to M.C.R. 6.500, et. Seq., and requested the trial court judge to return the motion to him if he were inclined to do so. The trial judge declined petitioner's request, treated the motion as a motion for relief from judgment filed pursuant to M.C.R. 6.500, et. Seq., and denied relief pursuant to M.C.R. 6.508(D)(3). People v. Hall, No. 06-206890 (Oakland County Circuit Court, March 15, 2010). Petitioner never appealed the denial of this motion to the Michigan appellate courts.

On March 22, 2010, petitioner filed an application for writ of habeas corpus, in which he sought habeas relief on the claims that he raised in the Michigan appellate courts on his direct appeal. Petitioner also filed a motion to hold the habeas petition in abeyance so that he could return to the state courts to raise additional claims that had not been exhausted with the state courts. On April 27, 2010, this Court held the petition in abeyance so that petitioner could return to the state courts to exhaust additional claims.

Petitioner then filed a motion for relief from judgment, which the trial judge denied on the ground that M.C.R. 6.502(G) prohibits the filing of second or successive motions for relief from judgment unless there has been a retroactive change in the law or newly discovered evidence. The judge further found that none of petitioner's claims alleged a retroactive change in the law or newly discovered evidence. People v. Hall, No. 06-206890 (Oakland County Circuit Court, September 22, 2010). The Michigan appellate courts likewise deniedpetitioner's post-conviction appeal on the ground that pursuant to M.C.R. 6.502(G), a defendant may not appeal the denial of a successive motion for relief from judgment. People v. Hall, No. 302915 (Mich.Ct.App. September 13, 2011); lv. den. 492 Mich. 852 (2012).

On October 26, 2012, this Court lifted the stay of proceedings and permitted petitioner to file an amended habeas petition. In his original and amended habeas petitions, petitioner seeks habeas relief on the following twenty one grounds:

I. Petitioner was denied the effective assistance of counsel by his counsel's failure to

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