Lively v. Birkett, CASE NO. 2:10-CV-12110

ERIC LIVELY, Petitioner,

v.TOM BIRKETT, Respondent.

CASE NO. 2:10-CV-12110

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: June 25, 2013

HONORABLE LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO

APPEAL IN FORMA PAUPERIS

Eric Lively, ("Petitioner"), confined at the Carson City Correctional Facility in Carson City, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for possession with intent to deliver methylenedioxymethamphetamine (commonly known as "Ecstasy"), M.C.L.A. 333.7401(2)(b)(i), and possession of marijuana, M.C.L.A. 333.7403(2)(d). For the reasons stated below, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted of the above offenses following a jury trial in the Wayne County Circuit Court, in which he was tried jointly with his wife and co-defendant Sheila Marie Lively. 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 (6th Cir. 2009):

This case arises out of the execution of a search warrant at defendants' home at 608Poplar Street in Wyandotte on August 17, 2004. Sheila's son, Harold Hammond, was home at the time of the search, but defendants were not. As this Court previously noted in People v. Lively, unpublished opinion per curiam of the Court of Appeals, issued November 21, 2006 (Docket Nos. 264222 and 264223), slip op, pp 2-3:

A magistrate issued a warrant permitting a search of 608 Poplar Street in Wyandotte. In the affidavit in support of the warrant, Wyandotte Police Detective Scott Galeski stated that police had responded to an unnamed "victim" who was running and yelling through the city streets, complaining that people with guns were following him and that he had been sexually assaulted. After the victim was hospitalized, he was again interviewed and, at that time, he told Galeski that none of those events had taken place; that he had been using alcohol, marijuana, and ecstasy at the time; that he had purchased the illegal narcotics from a Roosevelt High School student by the name of Harold Hammond, whose nickname was "Tuffy"; and that the transactions had taken place out of Hammond's residence at 608 Poplar Street. The affidavit further stated that Galeski had verified Hammond's identity and address through an in-house computer check and through Roosevelt High School officials. Furthermore, the affidavit alleged that trash bags removed from the curb outside the Poplar Street address contained marijuana stems, seeds, and packaging, as well as evidence of residency.

A search of the Poplar Street residence resulted in the seizure of 127 ecstasy tablets and nine individually-wrapped baggies of marijuana, an unloaded semiautomatic pistol and ammunition, currency, and rave equipment from defendants' upstairs bedroom.¹ In a basement room belonging to Hammond (defendant Sheila Lively's son), marijuana and a price sheet for drug sales were found. Officers also found a bag containing marijuana residue, a gas mask, rave equipment, narcotics packaging that matched the packaging located in the upstairs bedroom, a black light, and a "bong" in [a Chrysler Sebring registered to Sheila Lively].

Defendants moved to suppress evidence obtained from the search. The trial court found the informant unreliable, noting "he retracted everything that he had given to the police, saying that it was not true and that ... he was under the influence of drugsor something at the time that he gave it." The trial court also found that the affidavit lacked specificity with respect to the garbage bags removed from the curb outside defendants' home. Consequently, the trial court granted defendants' motions and dismissed the charges against them.

The prosecutor appealed the trial court's dismissal of the charges, and this Court found no reasonable basis for concluding that, even though the informant retracted his first statement about being followed and sexually assaulted, his second statement, which was verified for accuracy, was unreliable. Lively I, supra at 6. This Court also found that the police search of the garbage bags corroborated the informant's second statement and further supported probable cause. Id. at 7, 728 N.W.2d 426. It noted that no independent corroboration of the marijuana found in the garbage bags was required. Id. at 7-8, 728 N.W.2d 426. Because the totality of the affirmative allegations set forth in the affidavit supported the issuance of the search warrant, this Court reversed and remanded for reinstatement of the charges against defendants. Id. at 8-9, 728 N.W.2d 426. The Supreme Court subsequently denied defendant's application for leave to appeal this Court's decision. People v. Lively, 477 Mich. 1059, 728 N.W.2d 426 (2007)(" Lively II").

At trial, Detective Galeski testified that he interviewed Eric after the search. During the interview, Eric admitted that: 1) he stored Ecstasy and marijuana for personal use by defendants, 2) he also stored Ecstasy for a friend and was trying to give it back to the friend at the time of the search, 3) defendants had used Ecstasy with friends, who reimbursed Eric for the cost of the drugs, 4) defendants occasionally gave a "couple" Ecstasy pills to Hammond and Eric was unsure whether Hammond used or sold them, and 5) the money the police recovered during the search was earned by defendant's (sic) in their jobs, as well as through the sale of drugs.

Eric subsequently testified that he lied to Detective Galeski during the interview to protect Sheila and Hammond. He further claimed that Detective Galeski promised not to charge his family. Contrary to his statements during the interview, Eric denied providing Hammond with Ecstasy or selling drugs. However, he admitted that defendants had used Ecstasy several times. He explained that, in February 2004, armed robbers broke into his home and demanded "stuff" from him and Hammond. When Sheila arrived home during the robbery, the robbers sexually assaulted her. Eric testified that the robbery and sexual assault upset defendants and they followed Hammond's recommendation to use Ecstasy to express their feelings about the incident. By April or May 2004, however, Eric testified that Sheila had stopped using Ecstasy because they were planning to have a child.

At trial, Eric also offered a new explanation for the presence of the Ecstasy tablets and marijuana in his dresser. He claimed that Sheila went to West Michigan to visit a friend on August 13, 2004. On August 16, 2004, Eric realized he had not seen Hammond recently. When he searched Hammond's basement room, he recoveredEcstasy tablets and baggies of marijuana. Rather than dispose of the drugs or call the police, Eric testified that he hid the drugs in his dresser and planned to discuss the problem with Sheila when she returned from West Michigan. However, according to Eric, the police searched the home before Sheila returned.

People v. Lively, No. 284525, * 2-3 (Mich.Ct.App. January 7, 2010).

Petitioner's conviction was affirmed on appeal. Id., lv. den. 486 Mich. 904 (2010).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. The trial court's failure to conduct an evidentiary hearing pursuant to Franks v. Delaware in connection with the defendant's pre-trial motion to suppress evidence was error entitling petitioner to an evidentiary hearing in federal court and habeas corpus relief where defense had adequately articulated the claim that the statements in regard for the truth and that in the absence of the statements there was no basis for probable cause to issue the warrant.

II. Defendant/appellant did not receive the effective assistance of counsel at trial due to counsel's failure to fully litigate the motion to suppress on the alternate theory that (a) Franks hearing was warranted prior to trial. The State courts refused to grant evidentiary hearing. Thus, petitioner is entitled to federal evidentiary hearing and habeas corpus relief.

III. The prosecutor committed misconduct and denied defendant due process and a fair trial by improperly questioning the defendant in a manner that was unprofessional, improper, and highly prejudicial.

IV. The trial court's decision granting the defendant's motion to suppress the evidence seized should be affirmed as being consistent with controlling U.S. Supreme Court precedent where the affidavit in the search warrant lacked probable cause because it was based on an unreliable source who had previously provided false information and that further no independent investigation by the officer supported the bold assertion that the defendants were involved in trafficking of ecstasy or possessed firearms.

V. The good-faith exception to the exclusionary rule does not apply in the case at bar where the basis for excluding the evidence is not a defect in the warrant or a clerical error, but the Court's finding that there was a lack of probable cause to issue the warrant.

VI. Defendant's supplemental argument: Defendant was constitutionally entitled to the effective assistance of counsel. U.S. Const. Amend. VI. However, trial counsel was ineffective in failing to conduct basic pre-trial investigation into eyewitnessesaccounts that would not only directly contradict police Officer's statement of a trash pull, but also prove the officer committed flagrant perjury. Thus, trial counsel was ineffective.

VII. Defendant's supplemental argument: The trial court's decision granting the defendant's motion to suppress the evidence seized should be affirmed as being consistent with controlling U.S. Supreme Court precedent where the affidavit in search of the warrant lacked probable cause because it

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