Lee v. Davids

CLIFTON TERRON LEE, Petitioner, v. JOHN DAVIDS, Respondent.

Case No. 1:19-cv-595

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 22, 2020

Honorable Robert J. Jonker

OPINION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

Discussion

I. Factual allegations

The Petitioner Clifton Terron Lee is incarcerated with the Michigan Department of Corrections at Ionia Correctional Facility (ICF) in Ionia, Ionia County, Michigan. Following a jury trial in the Kent County Circuit Court, Petitioner was convicted of assault with intent to commit murder (AWIM), Mich. Comp. Laws § 750.83, and possession of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. On September 8, 2016, the court sentenced Petitioner as a fourth-offense habitual offender, Mich. Comp. Laws § 769.12, to a prison term of 35 to 70 years on the AWIM conviction, to be served consecutively to a 2-year prison term on the felony-firearm conviction.

On July 17, 2019, Petitioner timely filed his habeas corpus petition. Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner placed his petition in the prison mailing system on July 17, 2019. (Pet., ECF No. 1, PageID.16.)

The petition raises six grounds for relief, as follows:

I. REMOVAL FROM THE TRIAL DURING VOIR DIRE REGARDING [PETITIONER'S] MINOR COMMENTS, NO WARNING BY JUDGE AND DEPRIVATION OF THE RIGHT TO COUNSEL REQUIRE A NEW TRIAL.

II. IMPERMISSIBLE ARGUMENT DISGUISED AS EVIDENCE DEPRIVED [PETITIONER] OF A FUNDAMENTALLY FAIR TRIAL AND DUE PROCESS OF LAW.

III. PROBATION OFFICER HEARSAY TESTIMONY AFFIRMING COMPLAINANT'S STORY REQUIRES A NEW TRIAL.

IV. INEFFECTIVE OF CONSTITUTION [SIC] AND INEFFECTIVE ASSISTANCE OF COUNSEL.

V. [PETITIONER] WAS DENIED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL WHERE THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE PROSECUTION TO IMPROPERLY

INTERJECT CRITICAL CASE-SPECIFIC FACTS ABOUT THE CASE TO FORM ITS QUESTIONS DURING VOIR DIRE; AND APPOINTED COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT.

VI. [PETITIONER'S] RIGHT TO DUE PROCESS WAS VIOLATED WHERE THE RECORD CLEARLY REVEALS THAT THE TRIAL COURT NEVER CONDUCTED AN ARRAIGNMENT AFTER THE PRELIMINARY EXAMINATION; AND COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT.

(Pet., ECF No. 1, PageID.4, 6-7, 9, 11-12.)

The following facts are taken from the decision of the Michigan Court of Appeals, issued on January 16, 2018:

This case arises out of an incident in which Sammitrice Curry survived being shot multiple times. The shooting was the culmination of an ongoing conflict between Curry and defendant. Curry testified that on August 4, 2015, he got into an argument about "some rings" with a person named "T-Lee," who Curry identified as defendant.¹ The argument occurred near Curry's father's² home, which is near the intersection of Franklin and Eastern in Grand Rapids. Curry confronted defendant about the rings because he believed that defendant stole them from Curry's cousin, Takeen,³ and he wanted to get the rings back. Curry testified that when he first approached defendant, it looked like defendant was reaching for a gun. Curry "got spooked," hit defendant, and "put him in a headlock," but let him go when he realized that defendant did not have a gun. Then Curry told Takeen to get the rings back from defendant. Takeen and defendant looked like they were going to fight, but then Takeen and Curry just left. Officer Ryan Manser, of the Grand Rapids Police Department, observed the altercation, and he testified that when the altercation ended he heard defendant say "something similar to 'I'm going to kill that nigger.'"

On August 6, 2015, according to Curry, he was in his car on his way home at approximately 3:00 a.m. when he saw defendant's brother Cliff Pimpleton. Curry was friends with Cliff, and he was going to ask Cliff if "everything was cool" with defendant. Then Curry saw defendant walking a little behind Cliff. Curry testified that he drove around the block and parked in the driveway of his father's house. Curry got out of the car and walked down the driveway toward the street. At that point, he saw defendant come around the corner, and defendant was alone. Curry testified that he was familiar with defendant; that although it was dark outside, there were street lights and he could easily see defendant; and that he did not have any doubt that it was defendant. According to Curry, defendant had a handgun, and once he saw him, defendant started shooting. Curry testified that he went down to the ground after the first shots, and defendant kept shooting.⁴ Curry put his hand to the side and "started jumping around on the ground" and moving around so defendant could not hit him. Curry testified that he was shot in the testicles, and he"screamed out" that he had been shot. Then defendant "just took off running." Curry was certain that defendant shot him and not Cliff.

Curry spoke to the police while he was in the hospital, but he did not tell the police that defendant shot him. Curry testified that he told the police that he did not know who shot him and that he described the shooter to the police as somebody who was wearing a red sweatshirt. Curry further testified that he had made up that story and was lying to the police that day about who shot him. According to Curry, he lied because he wanted to "let it go or try to get back or something," he was afraid, he did not want to go to jail, and he did not want to be labeled or targeted as a "snitch." Curry also testified that he called his parole officer, Kimberly Williams, on the day he was shot. He remembered speaking to her but did not recall telling her who shot him because he "was all drugged up and stuff" and had undergone surgery.

According to Williams, Curry called her on August 6, 2015, and told her that he was in the hospital because he had been shot seven times. She asked him who would do this to him, and Curry replied, "someone named T." Curry told her that he thought he was shot because of a previous altercation involving some jewelry that was taken from his cousin. Williams testified that Curry indicated that he had not given this information to the police and that she encouraged him to do so.

Curry did not begin cooperating with the police until August 31, 2015, when he went to the police station and told the police what happened. Curry testified that he decided to come forward after further encounters with defendant, including seeing defendant with a gun, which made him feel afraid.

Defendant was arrested on September 1, 2015, and he was charged in connection with the shooting with one count of AWIM and one count of felony-firearm. After his first trial ended in a mistrial on August 5, 2016, he was retried. His second trial began on August 8, 2016, and it is only this second trial that is at issue on appeal.⁵ At the second trial, defendant did not testify or present any other witnesses. However, the prosecution introduced the audio recording of defendant's testimony from his first trial. Defendant testified that he and Curry "got into a scuffle" near the intersection of Franklin and Eastern on August 4, 2015, but he did not know at the time what the scuffle was about. Curry accused him that day of stealing some rings from Curry's cousin. Defendant testified that he had only bought rings from Takeen and that the scuffle ended when defendant walked away. Defendant further testified that he was not in the area of Franklin and Eastern during the early morning hours of August 6, 2015. He explained that "there was a lot of marijuana," and he testified, "I had to really remember, sit down and think who I was with; but I was with one of my girls." Defendant further testified that he had never carried a gun, did not own a gun, and was not involved in the shooting. The jury found defendant guilty of AWIM and felony-firearm. This appeal followed.

¹ The parties also stipulated at trial that defendant's nickname is "T-Lee."

² Curry's father was not identified by name.

³ Takeen was not identified by last name.

⁴ Grand Rapids Police Officers Ben Johnson and Travis Bravata testified that several bullet casings were found at the scene.

⁵ All of the testimony discussed in this opinion was introduced during defendant's second trial, and defendant's appellate issues pertain only to his second trial.

People v. Lee, No. 334920, 2018 WL 442854, at *1-2 (Mich. Ct. App. Jan. 16, 2018).

Petitioner appealed his convictions to the Michigan Court of Appeals. In the brief filed by counsel, Petitioner raised the issues presented in habeas grounds I through IV. In a pro per supplemental brief, Petitioner raised the issues presented in habeas grounds V and VI. The Michigan Court of Appeals, in a 19-page unpublished opinion issued on January 16, 2018, denied all claims for lack of merit or harmless error and affirmed Petitioner's convictions. Id.

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