Smith v. Walczak

1

ALONTE SMITH, Petitioner, v. MIKE WALCZAK, Respondent.

No. 1:22-cv-900

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

January 23, 2024

OPINION

HALA Y. JARBOU CHIEF UNITED STATES DISTRICT JUDGE

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Anthony Harris is incarcerated with the Michigan Department of Corrections (MDOC) at the Ionia Correctional Facility (ICF) in Ionia, Ionia County Michigan. On July 20, 2018, following a four-day jury trial in the Saginaw County Circuit Court, Petitioner was convicted of one count of assault with the intent to commit murder (AWIM), in violation of Mich. Comp. Laws § 750.83, one count of being a felon in possession of a firearm, in violation of Mich. Comp. Laws § 750.224f, one count of tampering with an electronic monitoring device, in violation of Mich. Comp. Laws § 771.3f, and two counts of use of a firearm during the commission of a felony (felony-firearm) in violation of Mich. Comp. Laws § 750.227b.

On September 26, 2018, the court sentenced Petitioner as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent sentences of 40 to 62 years for AWIM, 4 to 20 years for being a felon in possession of a weapon, and 2 to 15 years for tampering with an electronic monitoring device. Those sentences, in turn, were to be served consecutively to Petitioner's concurrent sentences of 5 years' imprisonment for each felony-firearm conviction. Furthermore that consecutive string of sentences was ordered to be served consecutively to sentences for which Petitioner was on parole at the time he committed the assault with intent to murder. As discussed below, Petitioner was resentenced to 40 to 50 years for the AWIM conviction on August 16, 2023.

On September 16, 2022, Petitioner filed his habeas corpus petition raising three grounds for relief, as follows:

I. Defendant ask[s] this Honorable Court to rever[]se, vacate, or [grant] retrial due to due process violations, unfair prejudice basis. This was done to mislead the jury. Pro[se]cutor argue[d] things not in evidence. [In] open[ing] arguments [he] tells the jury you will hear statements from a Stewart Pg 120 [23-25]. Testimony from witness Mcneil saying he [saw] tinfoil. Pg 61 [2-6]. [It was] unfair for agent Lutkus to say . . . if there was a[n] empty tinfoil container [be]cause at that point he didn't know where defendant['s] room [was] ¶ 72 [16-20]. It was stated by Mcneil they [went] to defendant['s] house for violations but [he] fail[ed] to s[e]cure any evidence, or take any pictures[.] Introducing statements of tinfoil [as] belong[ing] to defendant was unfair [be]cause Mr. Williams stay[ed] there and had reasons of finding and also was on parole and tether. Also it was many days later.

II. Defendant claims [in]effective assistance of counselor.

III. The court indicated the Facebook evidence would be limited. The jury was not instructed . . . and Agent Wysopal violat[ed] the limit[ation.]

(Pet., ECF No. 1, PageID.5-8.)

In an order to show cause (ECF No. 3) entered on October 4, 2022, the Court noted that Petitioner had exhausted grounds II and III, but had not exhausted ground I. The Court directed Petitioner to show cause why he was entitled to a stay of federal habeas proceedings if he wished to pursue his unexhausted claim in state court. (Id., PageID.136.) Alternatively, the Court noted that Petitioner could file an amended petition setting forth only his exhausted claims. (Id.)

Petitioner filed an amended petition in response to the Court's order to show cause. (ECF No. 4.) In an order (ECF No. 6) entered on January 10, 2023, the Court noted that Petitioner had eliminated habeas ground I from his amended petition. (Id., PageID.154.) The Court further noted, however, that Petitioner's amended petition “fail[ed] to include a complete presentation of the procedural history, and the presentation of the two exhausted grounds [was] also less complete than Petitioner's initial petition.” (Id.) The Court, therefore, indicated that the amended petition would be read “as supplementing the initial petition in the important aspect that it eliminates Petitioner's unexhausted habeas ground.” (Id.) In light of that order, only habeas grounds II and III, as set forth supra, are properly before the Court.

In a separate order (ECF No. 7) entered on January 10, 2023, the Court directed Respondent to file the state court record, as well as a response to Petitioner's habeas petition. On July 5, 2023, Respondent filed a motion to dismiss (ECF No. 9) premised upon Petitioner's failure to exhaust his state court remedies. Petitioner has not filed a response to Respondent's motion. For the following reasons, the Court will grant Respondent's motion and dismiss Petitioner's federal habeas petition without prejudice.

Discussion

I. Procedural History

The Michigan Court of Appeals provided the following summation of the facts underlying Petitioner's convictions as follows:

This case arises from a shooting that occurred in the early-morning hours of February 9, 2017. The victim was shot more than 10 times while seated in the front-passenger seat of a vehicle in the driveway of her home. Although no eyewitness could identify the shooter, data from [Petitioner's] GPS tether showed that he was present at the scene when the shooting occurred. The prosecutor argued that [Petitioner] was a member of a gang and that he shot the victim after mistaking her for Amaris Kinnard, a rival-gang member with whom he had been feuding on Facebook. The prosecutor introduced statements purportedly made by third parties on Facebook to prove that [Petitioner] went by the nickname “Brick Head” and introduced a video purportedly posted by Kinnard on Facebook Live to prove that she had disparaged Brick Head online, giving rise to [Petitioner's] motive to shoot her. Neither Kinnard nor any of the other third parties who made these statements was called as a witness.

People v. Smith, 969 N.W.2d 548, 554 (Mich. Ct. App. 2021).

Jury selection for Petitioner's trial took place on July 17, 2018. (Trial Tr. I, ECF No. 10-9.) Over the course of four days, the jury heard testimony from numerous witnesses, including law enforcement officers, the woman who had been driving the vehicle, the victim's aunt, the victim, three MDOC parole officers, and an employee of the MDOC's Electronic Monitoring Center. (Trial Tr. I, II, III, & IV, ECF Nos. 10-9, 10-10, 10-11, and 10-12.) On July 20, 2018, after about two hours of deliberation, the jury reached a guilty verdict. (Trial Tr. IV, ECF No. 10-12, PageID.655-656.) Petitioner appeared before the trial court for sentencing on September 19, 2018. (ECF No. 10-14.) On September 26, 2018, the trial court resentenced Petitioner because he was mistakenly sentenced to a minimum amount of time that was more than two-thirds of his maximum time. (ECF No. 10-15.)

Petitioner, with the assistance of counsel, directly appealed his convictions and sentences to the Michigan Court of Appeals. Petitioner raised the following issues on direct appeal: (1) the trial court erred when it resentenced him; (2) he was denied effective assistance of counsel; and (3) he was denied due process and a fair trial by the admission of Facebook and gang evidence. (ECF No. 10-16, PageID.780.) On February 21, 2021, the court of appeals affirmed Petitioner's convictions, but reversed and remanded with respect to a sentencing issue. Smith, 969 N.W.2d at 554. Specifically, the court of appeals “reverse[d] [Petitioner's] AWIM sentence and remand[ed] to the trial court to reimpose the original sentence of 40 to 50 years of imprisonment on that conviction.” Id. at 570. The Michigan Supreme Court denied Petitioner's pro per application for leave to appeal on August 3, 2021. See People v. Smith, 962 N.W.2d 277 (Mich. 2021).

This § 2254 petition followed. Public records indicate that Petitioner was not resentenced by the trial court pursuant to the court of appeals' remand until August 16, 2023. See Register of Actions, Case No. 17-044002-FC, People v. Smith (Saginaw Cnty. Cir. Ct.), https://www.saginawcounty.com/departments/county-clerk/circuit-court-records/ (select “Search for Cases and Docket,” select “Smart Search,” enter “Smith, Alonte” for Search Criteria, select “Submit,” then select “17-044-002-FC” under the list of cases that the search returns) (last visited Jan. 2, 2024). Public dockets also reflect that Petitioner's appeal from that resentencing is still pending in the Michigan Court of Appeals. See Register of Actions, Case No. 368898, People v. Smith (Mich. Ct. App.), https://www.courts.michigan.gov/c/courts/coa/case/368898 (last visited Jan. 2, 2024).

II. Discussion

Respondent moves for dismissal of Petitioner's federal habeas petition on two grounds: (1) Petitioner failed to exhaust his ineffective assistance of trial counsel claim; and (2) dismissal is proper to avoid piecemeal litigation. (ECF No. 9.) The Court will consider Respondent's argument regarding exhaustion first.

Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner's constitutional claim. Id. at 844, 848; see also Picard v. Connor, 404 U.S. 270, 275-77 (1971); Duncan v. Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to all levels of the state appellate system, including the...