Johnson v. Booker

DARRYL VON JOHNSON, Petitioner,

v.RAYMOND BOOKER, Respondent.¹

CASE NO. 2:09-CV-11688

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: September 8, 2011

Dated: October 10, 2011

JUDGE NANCY G. EDMUNDS

MAGISTRATE JUDGE PAUL J. KOMIVES

REPORT AND RECOMMENDATION

Table of Contents

I. RECOMMENDATION................................................................ 2

II. REPORT ........................................................................... 2

A. Procedural History ............................................................ 2

B. Factual Background Underlying Petitioner's Conviction............................... 4

C. Standard of Review ............................................................ 7

D. Substitute Counsel/Self-Representation............................................. 9

1. Factual Background Relating to Petitioner's Waiver of Counsel................. 10

2. Denial of Substitute Counsel............................................. 12

a. Clearly Established Law.............................................. 12

b. Analysis .......................................................... 13

3. Self-Representation.................................................... 14

a. Clearly Established Law.............................................. 15

b. Analysis .......................................................... 15

E. Ineffective Assistance of Counsel................................................. 18

1. Clearly Established Law................................................ 18

2. Analysis............................................................. 20

a. Pre-Trial .......................................................... 20

b. Trial ............................................................. 21

c. Sentencing ........................................................ 22

F. Evidentiary Hearing .......................................................... 22

G. Recommendation Regarding Certificate of Appealability.............................. 24

1. Legal Standard ....................................................... 24

2. Analysis............................................................. 25

H. Conclusion.................................................................. 26

III. NOTICE TO PARTIES REGARDING OBJECTIONS...................................... 26

I. RECOMMENDATION: The Court should deny petitioner's application for the writ of habeas corpus and should deny petitioner a certificate of appealability.

II. REPORT:

A. Procedural History

1. Petitioner Darryl Von Johnson is a state prisoner, currently confined at the Mound Correctional Facility in Detroit, Michigan.

2. On May 11, 2006, petitioner was convicted of two counts of armed robbery, MICH. COMP. LAWS § 750.529; and one count of assault with intent to rob while armed, MICH. COMP. LAWS § 750.89, following a jury trial in the St. Clair County Circuit Court. On June 12, 2006, he was sentenced as a fourth habitual offender to concurrent terms of 19-39 years' imprisonment on each conviction, to be served consecutive to a one-year jail term previously imposed on petitioner for violating his probation.

3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through counsel, the following claims:

I. THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL AND HIS DUE PROCESS RIGHTS BY: CONSOLIDATING THE CASES FOR TRIAL; VIOLATING DEFENDANT'S RIGHT TO COUNSEL; NOT PROVIDING PROPER LEGAL REPRESENTATION; NOT PROPERLY HANDLING THE MATTER OF DEFENDANT'S SELF-REPRESENTATION BOTH INITIALLY AND DURING THE TRIAL; NOT GRANTING THE DEFENDANT AN ADJOURNMENT FOR TIME TO PREPARE FOR TRIAL; GIVING INACCURATE AND INCOMPLETE INSTRUCTIONS; AND DENYING DEFENDANT'S MOTION TO CORRECT INVALID SENTENCE.

II. THE PROSECUTOR'S ACTIONS DENIED THE DEFENDANT A FAIR TRIAL AND HIS DUE PROCESS RIGHTS UNDER THE MICHIGAN AND FEDERAL CONSTITUTIONS.

III. THE DEFENDANT'S SENTENCE WAS INVALID BECAUSE IT WAS

BASED ON INACCURATE INFORMATION, I.E., IMPROPER SCORING OF THE LEGISLATIVELY IMPOSED SENTENCING GUIDELINES, USE OF AN INCORRECT BURDEN OF PROOF AND INSUFFICIENT FACTS; THEREFORE, HIS DUE PROCESS RIGHTS WERE VIOLATED.

IV. CORRECTLY SCORING THE GUIDELINES WOULD REQUIRE RESENTENCING.

V. THE SENTENCES ON THESE FILES WERE IMPROPERLY MADE CONSECUTIVE TO THREE OTHER FILES.

VI. THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

The court of appeals found no merit to petitioner's claims, and affirmed his conviction and sentence. See People v. Johnson, No. 271442, 2007 WL 4179346 (Mich. Ct. App. Nov. 27, 2007) (per curiam).

4. Petitioner sought leave to appeal these issues to the Michigan Supreme Court. The Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Johnson, 481 Mich. 887, 749 N.W.2d 265 (2008).

5. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus on May 4, 2009. As grounds for the writ of habeas corpus, petitioner's application appears to raise all of the claims asserted as Claim I in the Michigan Court of Appeals, the prosecutorial misconduct claim asserted as Claim II, the sentencing claim raised as Claim III, and the ineffective assistance of counsel claim raised as Claim VI.

6. Respondent filed his answer on November 12, 2009. He contends that petitioner's prosecutorial misconduct claim is barred by petitioner's procedural default in the state courts, and that all of the claims are without merit.

7. Petitioner filed a combined reply to respondent's answer and a request for evidentiaryhearing on December 23, 2009. In his reply, petitioner asserts that he intends to raise only his waiver of counsel and ineffective assistance of counsel claims, and he explicitly "voluntarily dismisses any other issues that might be considered brought by Petitioner." Reply, at 1.

B. Factual Background Underlying Petitioner's Conviction

As explained by the Michigan Court of Appeals, petitioner's convictions arise from his robbery or assault of three separate victims, charged in two cases:

Defendant was charged in two separate files. He was originally charged in LC No. 05002854-FC with armed robbery against Angela Essenmacher and assault with intent to rob while armed against Jennifer Steiner. The offense against Essenmacher occurred on the afternoon of October 29, 2005, and the offense against Steiner occurred at approximately 2:00 a.m. on October 30, 2005. Defendant was separately charged in LC No. 05-002683 with armed robbery against Miranda Stimac for an offense that was committed at approximately 3:00 a.m. on October 30, 2005. Both cases were consolidated for trial.

Johnson, 2007 WL 4179346, at *1. The evidence adduced at trial was accurately summarized in petitioner's brief on appeal in the Michigan Court of Appeals:

Angela Essenmacher testified that she worked at the Black River Party Store as a cashier and on October 29, 2005, she was robbed at approximately 12:40 p.m., shortly after lunch. The witness said she was over filling the beer cooler when the suspect came back in and asked if he could ask her a question. He then came over to her, grabbed her arm, and asked her to give him all of the money out of the cash register. She said it looked to her like there was a handle of a steak knife or kitchen knife in his other hand. She said that [the] handle end was out and the blade of the knife was facing the other way. She said he had a plastic bag and led her over to the cash register and she began to empty the money into the bag. He asked her for the stuff under the drawer and she finished emptying out the top part, then took the stuff from the bottom, put it in the bag and he turned around and left. She said around $263.00 was taken, although there were things like stamps and other debit receipts and stuff which was all taken too. She said she then grabbed the phone and dialed

911.

Jennifer Steiner testified she was working at Tim Horton's in the City of Port Huron on November 1, 2005. She said she was working at 2:00 a.m. with two other people who were working in the back, but she was the only one up front at the drive thru. She said a man came up to the drive thru and ordered a coffee with cream. He pulled up to the window and acted like he was looking for money in his pockets. Hesaid he was embarrassed being so big in such a small car and he was having a hard time finding his money. She told him not to worry about it and he still appeared to be looking for his money. He said he was so embarrassed he was going to get out of his car. The next thing she knew he had grabbed her wrist with his hand that also had a bag in it. A knife was in his other hand, and he told her to put all the money in the bag. She said she didn't take him seriously at first and asked him if he was being serious and he said no, no I'm not joking, put the money in the bag. She said she told him to take the coffee and go across the street and try to rob them, not her. He told her not to press the alarm button and she ended up jerking away from him, stepped back and told him there was a camera right in his face and that if he took the money he'd be caught. She said he looked up and saw the camera and got back into his vehicle. The witness then said after a while she became scared, but she hasn't lost any sleep over it and she wasn't traumatized, she didn't even leave work early that night. The police were called and a report was taken. She described the robber as a black heavyset male, not that tall, wearing khaki pants, a dark colored spring jacket, and a baseball cap. She said she told the police about the car which was a Ford, older model small blue car. She thought it could have been a Fiesta, but it was actually a Toshiba.

Officer Brian Carten testified that he was a Port Huron Police Officer and responded to a robbery call at Tim Horton's on October 30, 2005. He did spot the suspect vehicle, attempted a traffic stop, which turned into a foot chase and that is when the witness and other officers responded to back him

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