MacLeod v. Braman

DUSTIN L. MACLEOD, Petitioner, v. MELINDA K. BRAMAN, Respondent

Case No. 2:19-cv-12153

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

September 3, 2020

Paul D. Borman United States District Judge

OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (3) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Dustin Macleod, ("Petitioner"), presently on parole supervision through the Chippewa County Parole Office in Sault Ste. Marie, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for manufacture with intent to deliver between 5 and 45 grams of marijuana, Mich. Comp. Laws § 333.7401(2)(d)(ii); possession with intent to deliver marijuana, Mich. Comp. Laws § 333.7401(2)(d)(iii); felon in possession of a firearm, Mich. Comp. Laws § 750.224f; harboring a felon, Mich. Comp. Laws § 750.199(3), possession of a firearm in the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b; and being a fourth felony habitual offender, Mich. Comp. Laws § 769.12. For the reasons that follow, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

I. BACKGROUND

Petitioner was convicted following a jury trial in the Cheboygan County Circuit Court. 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 from the investigation of defendant for selling marijuana to people for whom he is not a registered caregiver under the Michigan Medical Marihuana Act [MMMA], MCL 333.2641, et seq. The investigation included three controlled buys made using confidential informants Shawn Spohn and his girlfriend, a forward looking infrared radar (FLIR) scan of defendant's residence and of his grow house, and a comparative analysis of the energy bills of buildings similar in size and location to defendant's grow house. Using results obtained from the investigation, Detective Jess Halleck secured search warrants for defendant's residence and grow house on October 14, 2014, and members of the Huron Undercover Narcotics Team (HUNT) and of Straits Area Narcotic Enforcement (SANE) conducted the searches on the same day. Immediately prior to the search of his residence, defendant was arrested at a remote location. Defendant waived his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S Ct 1602, L.Ed.2d 694 (1966), and participated in a police interview with Detective Jason Varoni. Among other things, defendant admitted that he had one to two pounds of newly harvested marijuana at his house, and approximately 40 full-grown plants and an unknown number of clones in a nearby grow house. Defendant identified himself as a medical marijuana grower and caregiver for three patients plus himself, but admitted that he sold "the medicine" to whomever said they needed it.

When officers knocked and announced themselves prior to searching defendant's residence, Megan MacLeod, defendant's sister, ran out the back door, toward the woods, and into the Black River, all the while with one officer yelling at her to stop, and another officer in pursuit. The pursing officer caught her in the middle of the river and turned herover to the proper authorities. Officer Dean Tebo testified that Megan MacLeod was an absconder from the Cheboygan County Jail.

SANE's search of defendant's residence turned up marijuana leaf in bags in the master bedroom and the kitchen freezer, and 23 canisters and 14 plastic baggies with different varieties of marijuana seeds. The team also found a black digital scale, a marijuana drying rack and several firearms.

Detective Halleck testified to the search of the grow house, describing the building as square, brick, and with surveillance cameras at each corner and black material covering the windows to keep the light out. Inside, officers found a garbage can containing marijuana "shake," one grow room with six plants from four to six feet tall, another grow room with four plants from three to four feet tall, a third room with 20 plants from three to four feet tall, and a room with 92 clones. Detective Halleck testified that all or most of the clones had a root system. They also found high-powered grow lights and bulbs in each room. In addition, the grow house had a ventilation system to keep the rooms cool, and a carbon dioxide tank to pump in extra carbon dioxide to help the plants grow. Including clones, officers seized 122 plants. Random samples of 21 plants were sent to the Grayling State Police Crime Laboratory for analysis. They were examined by forensic scientist Karen Brooks, who testified that each tested positive as marijuana.

People v. MacLeod, No. 326950, 2016 WL 3767496, at 1-2 (Mich. Ct. App. July 14, 2016).

Petitioner's conviction was affirmed. Id., lv. den. 500 Mich. 946 (2017).

Petitioner filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq., which the trial judge denied. People v. Macleod, No. 14-4961-FC (Cheboygan Cty. Cir. Ct., Feb. 8, 2018). The Michigan appellate courts denied leave to appeal. People v. MacLeod, No. 342615 (Mich. Ct. App. 22, 2018); lv. den. 503 Mich. 1018 (2019).

Petitioner seeks habeas relief on 28 grounds:

I. Did the trial court reversibly err when it denied Petitioner's motion to dismiss which was based on the State of Michigan's lack of jurisdiction to prosecute Petitioner, a member of the Sault Ste. Marie Tribe of Chippewa Indians who was gathering as allowed by the 2007 Inland Consent Decree and which also reserved federal or tribal jurisdiction for consent decree disputes occurring in the defined portions of the territory ceded to the United States in the 1836 Treaty of the United States with the Ottawa and Chippewa Nations of Indians?

II. Did the trial court err when it failed to grant a mistrial when the prosecution failed to produce endorsed witnesses and denied Petitioner his Sixth Amendment right of confrontation?

III. Did the trial court reversibly err when it granted the prosecution's motion in limine to forbid the defense to mention Petitioner's Native American heritage and denied him his due process right to present a defense?

IV. Was Petitioner denied the effective assistance of counsel guaranteed by the federal and state constitutions (U.S. Const. Am. VI; Mich. Const. 1963, Art. 1, § 20) where trial counsel (1) failed to procedurally obtain interlocutory appeal relief, (2) failed to procedurally obtain relief in federal court, (3) failed to challenge the initial stop of Petitioner, (4) failed procedurally to bring a Section 8 defense pretrial, (5) failed to bring a Section 4 defense during trial, (6) failed to challenge the inclusion of the clones in the total number of "plants" seized, (7) failed to challenge the search warrant that was based on absent confidential informants and illogical electrical bills, (8) failed to move to dismiss Megan MacLeod's "felony" arrest warrant, (9) failed to object to 404b evidence or request a limiting instruction, and (10) failed to subpoena Shawn Spohn, Jamie Lee Richards, and Detective Varoni?

V. Did the trial court reversibly err and abuse its discretion by refusing to recognize the Treaty and constitutional rights of the Petitioner, a member of the Sault Ste. Marie Tribe of Chippewa Indians, who wasexercising his "usual privileges of occupancy" rights as recognized by the 1836 Treaty of Washington when arrested?

VI. Did the trial court reversibly err when it abused its discretion by refusing to recognize its jurisdictional limits as established by statute and precedent?

VII. Did the trial court reversibly err when it adjudicated this case with a wanton disregard for the Petitioner's constitutional and Treaty-protected rights, including the Indian Civil Rights Act. The Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301-1304?

VIII. Did Petitioner Dustin MacLeod's conviction, judgment, and sentence for felony firearm, felon in possession of a firearm and delivery-manufacturing marijuana/possession with intent to deliver under both Mich. Comp. Law 333.7401(2)(d)(iii) and Mich. Comp. Laws 333.7401(2)(d)(ii) are void ab initio where the trial court lacked res and personam jurisdiction, in violation of the US Constitution, Article VI, Clause 2, Supremacy Clause because MacLeod's Native American sovereign rights create an immunity to prosecution under the 1836 Treaty of Washington, the 2007 Consent Decree (where §§ 1.3, 5(A)-(D), 6.2, 20.1, 24.3 were breached), federal law 25 U.S.C. § 5123(G)(H) [construed in pari materia] and the legal principle of the US Supreme Court in United States v. Shoshone Tribe, 304 U.S. 111, 58 S. Ct. 794 (1938) et all (regarding construction of Indian treaties) where the same provisions (including crops of all varieties, especially for medicinal purposes) while in Indian Count[r]y, as defined by and referred to in 18 U.S.C. §§ 1151-1153(A)(B), 62(A)-(C) when those Native American sovereignty rights were infringed [at the instigation of the Department of Natural Resources (DNR)] by the State of Michigan?

IX. Was the trial court without authority and jurisdiction to sentence Petitioner as a 4th degree habitual offender, in violation of the U.S. Constitution XIV Amendment and the legal principle of the U.S. Supreme Court in Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501 (1962) when the prosecution failed to proper[l]y file the 4th degree habitualoffender notice with the Mich. Ct. R. 6.112(F); Mich. Comp. Laws 769.13 21 days strict time limitations period?

X. Is Petitioner's convictions for delivery-manufacture of 5-45 kilograms of marijuana possession with intent to deliver 20 marijuana plants or more, but less than 200 plants, contrary to Mich. Comp. Laws 333.7401(2)(d)(ii) and delivery-manufacture marijuana possession with intent to deliver marijuana,

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