Rush v. Douglas

1

DARIUS RUSH, Petitioner, v. ADAM DOUGLAS,^[1] Respondent.

No. 2:20-CV-11540

United States District Court, E.D. Michigan, Southern Division

July 31, 2023

OPINION AND ORDER GRANTING THE PETITION FOR A WRIT OF HABEAS CORPUS

Denise Page Hood, United States District Judge.

Petitioner Darius Rush, both pro se and through attorneys Christopher J. McGrath of the Federal Defender's Office and later Carole M. Stanyer, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for first-degree home invasion, MCL 750.110a(2) conspiracy to commit first-degree home invasion, MCL 750.110a(2) and MCL 750.157a, and receiving and concealing stolen property, MCL 750.535(5). He was originally sentenced as a third habitual offender, MCL 769.11, to 217 months to 40 years' imprisonment for the first-degree home invasion and 87 to 40 years imprisonment for the conspiracy to commit home invasion conviction. The trial court ordered that the two sentences be served consecutively to one another. Defendant received time served for the receiving and concealing conviction. Petitioner was later resentenced to 7 years 3 months to 20 years on the conspiracy to commit first-degree home invasion and 12 years 1 month to 20 years on the first-degree home invasion. For the reasons that follow, the Court GRANTS the petition for a writ of habeas corpus.

I. Background

Petitioner was convicted following a jury trial in the Wayne 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):

Darnell [Rush] is Darius's uncle. The various charges stem from a January 9, 2012, robbery that they committed with two other men, Desmond Robinson and Deandre Cannady. As part of a plea agreement, Cannady testified that the four men went to the 80-year-old victim's house in order to rob him. They approached the victim under the guise that they were interested in buying his car. Darnell pushed the victim into the house through the open doorway and held a small metal blade to the victim's neck while the other three men entered the victim's house and stole items from the victim's person and his house. In their respective statements to the police, both Darnell and Darius admitted to their involvement in the robbery. They were convicted and sentenced as outlined above and now appeal as of right.

People v. Rush, No. 312055, 2014 WL 1515270, at *1 (Mich. Ct. App. Apr. 17, 2014). Petitioner's conviction was affirmed on appeal, although his case was remanded for re-sentencing. Id.

On remand, the trial court resentenced petitioner to lower sentences for each crime, but those sentences were to be served consecutively. People v. Rush, No. 325194, 2016 WL 1680742, at *1, 2-5 (Mich. Ct. App. Apr. 26, 2016). The Michigan Court of Appeals held that petitioner was again entitled to remand because of an error in calculating time served and due to judicial factfinding during sentencing. Id.

On remand, the trial court sentenced petitioner to its previously entered sentence of 12 years, 1 month-to-20 years for the home-invasion conviction and 7 years, 3 months-to-20 years for the conspiracy conviction to be served consecutively. People v. Rush, No. 334740, 2018 WL 1020305, at *1 (Mich. Ct. App. Feb. 22, 2018).

Petitioner did not appeal any of the Michigan Court of Appeals cases to the Michigan Supreme Court. See Affidavits of Larry Royster, Clerk of the Michigan Supreme Court, dated August 26, 2020. (ECF Nos. 18-10, 18-12, 18-15).

Petitioner filed a post-conviction motion for relief from judgment with the trial court. Petitioner raised for the first time his claim that he was constructively denied the assistance of trial counsel because of his trial counsel's failure to challenge the prosecutor's case in any meaningful way. Petitioner also argued that appellate counsel was ineffective for failing to raise this claim on his appeal of right. Petitioner requested an evidentiary hearing on his claims. The trial judge denied the motion, in part because petitioner failed to show cause and prejudice under M.C.R. 6.508(D)(3) for not raising these claims on his appeal of right, and in part because petitioner failed to show that counsel's inactions were ineffective assistance of counsel within the meaning of Strickland v. Washington, 466 U.S. 688 (1984). Significantly, the judge never addressed petitioner's constructive denial of counsel claim. People v. Rush, No. 12-001081-FC (Wayne County Circuit Court Feb. 4, 2019)(ECF No. 18-16, PageID.2252-60).

The Michigan Court of Appeals denied petitioner leave to appeal on the ground that petitioner failed to establish that the trial court erred in denying the motion for relief from judgment. People v. Rush, No. 349890 (Mich. Ct. App. Sept. 23, 2019)(ECF No. 18-16, PageID.2212).

The Michigan Supreme Court denied petitioner leave to appeal pursuant to M.C.R. 6.508(D). People v. Rush, 505 Mich. 1040, 941 N.W.2d 663 (2020).

Petitioner filed a pro se petition for a writ of habeas corpus. (ECF No. 1). Petitioner later filed an amended petition for a writ of habeas corpus. (ECF No. 10). This Court granted the motion to amend. (ECF No. 12). Respondent filed an answer. (ECF No. 17).

This Court granted petitioner's motion for an evidentiary hearing and appointed the Federal Defender's Office to represent him. Rush v. Winn, No. 2:20-CV-11540, 2021 WL 1904498 (E.D. Mich. May 12, 2021).

Christopher J. McGrath of the Federal Defender's Office filed a supplemental brief. (ECF No. 30). Respondent filed an answer to the supplemental brief. (ECF No. 32).

This Court subsequently granted counsel's motion to withdraw. (ECF No. 36). Ms. Stanyer was appointed as substitute counsel.

The evidentiary hearing was conducted on August 24, 2022. Ms. Stanyer represented petitioner at the hearing. (ECF No. 46).

Petitioner testified at the evidentiary hearing that on the date of the offenses charged, he attempted to get a ride to Auto Zone to purchase parts to fix his car. Desmond Robinson agreed to drive him. Petitioner rode his bike to Beaconsfield Street where Robinson was living. The men stopped at a gas station where petitioner paid for the gas. Robinson received a phone call and informed petitioner that he could not drive Rush to Auto Zone because someone wanted to pay Robinson a couple hundred dollars to do something for them. Petitioner returned on his bike to his own house. Later that morning, at approximately 11:30 a.m., Robinson called petitioner and informed him that he had cash to repay petitioner for the gas. Petitioner rode his bike to Robinson's house, where Robinson paid back the gas money and asked petitioner if he wanted to buy some jewelry. (ECF No. 46, PageID.2698-2704).

Petitioner's cousin, Christopher Alexander, and his uncle, Darnell Rush, agreed to drive petitioner to the pawn shop on Mack and University in Grosse Pointe, where petitioner pawned the jewelry. Before leaving that vicinity, Darius Rush broke into a white car and stole an iPhone. (Id., PageID.2697, 2703-04).

Petitioner was arrested at his home by Detroit Police on January 14, 2012 and transported to the Ninth Precinct where he was interrogated. Petitioner testified that Detective Cregg Hughes asked him about an incident outside the pawn shop on January 9th. Petitioner denied involvement. Detective Hughes asked petitioner if he knew Darnell Rush, Desmond Robinson, and Deandre Cannady. Petitioner replied affirmatively. Hughes told petitioner that the three men implicated him in a home invasion and robbery. Petitioner again denied involvement. (Id., PageID.2705-06). Hughes gave petitioner a standard Detroit Police Department written constitutional rights form. Petitioner believed that by initialing and signing the form, he was “asserting” his right to an attorney. (Id., PageID.2707. Petitioner has only a 9th grade education. (Id., PageID.2712). Petitioner did not believe that he was waiving his rights. Petitioner also verbally asked for an attorney. (Id., PageID.2705-07, see also Petitioner's Affidavit (ECF No. 1, Page ID 28).

Petitioner testified that instead of respecting his request for an attorney, Detective Hughes brought Darnell Rush into the interrogation room, ordered him to “get your nephew talking” and left him alone with petitioner. (Id.; Page ID 2707). When the detective and Darnell Rush entered the room petitioner said, “Look, I don't know what you want or what you trying to do, but I'm not trying to talk to neither one of y'all.” (Id.). Petitioner testified that after Detective Hughes left the interrogation room, Darnell was very “hyped up,” and he threatened to “beat the shit” out of petitioner if he “didn't start telling these people what they want to hear ...” Petitioner described his uncle as a person who is “prone to violence” and who becomes violent if he doesn't “get his own way.” Darnell told petitioner that if they both admitted to the home invasion, Darnell would be the beneficiary of a deal with the prosecutors. If not, Darnell would be serving “25 years to life” because he had a serious criminal history which included a prior conviction for armed robbery. (Id., PageID.2708-2711). In addition to threatening petitioner, Darnell Rush promised petitioner that he would only get probation because home invasion “ain't nothin but a little minor offense.” Petitioner testified that he believed his uncle because petitioner received probation after pleading to a home invasion in the past. (Id., PageID.2711). Petitioner testified that he signed and initialed a statement about the home invasion on Ashland Street not because it was true, but...