Sutton v. Mackie

JOSEPH ANTHONY SUTTON, Petitioner, v. THOMAS MACKIE, Respondent.

CASE NO. 2:13-cv-14789

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 23, 2021

HONORABLE SEAN F. COX

OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

Petitioner Joseph Anthony Sutton, a state prisoner in the custody of the Michigan Department of Corrections, filed an amended habeas corpus petition challenging his state convictions for first-degree murder, possession of a firearm during the commission of a felony ("felony firearm"), and felon in possession of a firearm. He alleges as grounds for relief that: (1) the prosecution suppressed evidence of police misconduct to conceal the fact that death threats were used to force a prosecution witness to testify falsely against him, and the prosecutor lied to the trial court to validate the witness's testimony; (2) defense counsel provided ineffective assistance by failing to notify the trial court that death threats were used to force the prosecution witness to testify against Petitioner; (3) trial counsel was ineffective for failing to call expert witnesses in Petitioner's behalf; and (4) appellate counsel omitted compelling issues during the direct appeal. (ECF No. 22, PageID.1969.) The State argues in an answer to the amended petition that Petitioner's claims about the prosecutor and trial counsel lack merit and that Petitioner did not make a credible claim about appellate counsel. (ECF No. 23, PageID.2022.) Having reviewed the pleadings and record, the Court concludes that Petitioner's claims do not warrant habeas corpus relief. Accordingly, the amended petition will be denied.

I. Background

A. The Charges, Trial, and Sentence

Petitioner was charged in Wayne County, Michigan with first-degree, felony-murder, Mich. Comp. Laws § 750.316(1)(b), first-degree, premeditated murder, Mich. Comp. Laws § 750.316(1)(a), possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, and felon in possession of a firearm, Mich. Comp. Laws § 750.224f. Petitioner was tried before a jury in Wayne County Circuit Court. The Michigan Court of Appeals accurately summarized the basic facts in the case as follows:

Defendant's convictions arise from the murder of Edith Hamilton-Watts, hereafter the victim, who was shot four times inside the Financial Exchange, a check-cashing and food stamp store that she managed. The victim was murdered on February 22, 1996. On the day of the murder, police responded to the scene and discovered the victim's body on the floor in the employee area of the store. The police found a 16-square-inch, freshly cut hole in the roof above a small storage room in the employee area. The safe and the cash drawer were undisturbed. A partial shoe or boot print was recovered from a piece of fallen roofing tar. None of the evidence from the scene contained usable fingerprints. Four fired cartridge cases were discovered in the employee area, and it was determined that the casings were fired from the same gun. An autopsy of the victim revealed that she was shot at close range in the left cheek, left jaw, left shin, and the lower left side of her abdomen. Police suspected that there were likely multiple perpetrators with inside information about the store because a walkie-talkie was recovered, there was no ladder used, the alarm was not tripped, and it appeared that the perpetrators had knowledge of when the money would be available.

Defendant did not become a suspect in the murder until October 2008, when Charmane Murphy, his ex-girlfriend and mother of his daughter, came forward and told police that defendant confessed to committing a murder. Murphy testified that several years ago she and defendant were stopped at a red light near the Financial Exchange when defendant stated: "I killedsomebody at the check cashing, food stamp office." Defendant told Murphy that he shot someone in the head. He informed her that he had worked with two other people, it was an inside job, there was no guard present, they planned to take cash out of the safe, and they broke into the building through the roof of the bathroom. Defendant also stated that the female employee who he shot went to grab her gun but he beat her to the draw. Defendant said he left without taking any money because no one was supposed to be in the store. Defendant also told Murphy that he broke through roofs to get into other businesses, and "he needed certain tools like a saw ... a sledge hammer to break the roof in and pull back the ... the tar (sic) it's like three layers to get into the crawlspace."¹

Defendant's cousin, Andre Devon Christian, also testified about an incident where defendant described breaking into a check-cashing store and killing someone. In 2008, Christian lived with defendant, and testified that when defendant was high on cocaine he told Christian that he went by himself to rob a west side check-cashing store, by cutting a hole in the roof of the bathroom ceiling. A woman entered the building when he was inside. Defendant shot her and left the building. In previous testimony, Christian indicated that defendant committed the robbery with another person, that defendant may have said that he had taken some money during the robbery, and that it was a credit union or bank.

Both Murphy and Christian had motives to implicate defendant in the murder. Murphy and defendant had a tumultuous relationship, and Murphy was involved in a custody dispute with defendant over their daughter. Ten days before approaching police about defendant's involvement in the murder Murphy was arrested for attempting to break into defendant's home where her daughter was staying. The day Murphy contacted police about the murder was her daughter's birthday. Christian was in prison serving a one year sentence for receiving and concealing stolen property when the police approached him about the murder. Christian agreed to testify against defendant, and in exchange his probation term was reduced by a year. Christian admitted he wanted to get out of prison, and shortly after giving a statement to police he was released.

Defendant's first trial began on October 12, 2010, but a mistrial was declared due to juror misconduct. A new jury was impaneled on October 13, 2010, and on October 21, 2010, the jury convicted defendant of felony murder, first-degree premeditated murder, felony-firearm, and felon in possession.

People v. Sutton, No. 304035, 2012 WL 2335341, at *1-2 (Mich. Ct. App. June 19, 2012) (unpublished) (footnote in original).

Petitioner did not testify at trial. The only defense witness was a police officer who testified about the attempted home invasion at Petitioner's residence ten days before Murphy contacted the police concerning Petitioner's admissions to her about the killing.

Petitioner's defense was that the prosecution's case depended on a jaded ex-girlfriend and a cousin, both of whom disliked him and had motives for implicating him in the murder. Defense counsel stated in his closing argument that Murphy could have learned about the murder from another source, that she had issues and made wild accusations, and that she failed to mention the murder to anyone until 2008 even though she had been seeing a psychologist or psychiatrist since 2001. Defense counsel argued that, even though Murphy may have believed that Petitioner told her about the murder, that did not mean it really happened. (10/20/10 Trial Tr., ECF No. 12-19, PageID.1300-1304.)

Defense counsel pointed out that there was no physical evidence linking Petitioner to the crime, and he claimed that Christian's story improved every time he told it because he had a plea agreement with the prosecutor. Defense counsel also argued that Murphy's and Christian's stories were not consistent with each other or with their prior statements. Id. at PageID.1304-1307.

As noted above, Petitioner was convicted, as charged, on October 21, 2010. (10/21/10 Trial Tr., ECF No. 12-20, PageID.1330-1331.) On November 15, 2010, the trial court sentenced Petitioner to two terms of life imprisonment without the possibility of parole for the murder convictions, two years in prison for the felony-firearm conviction,with credit for 286 days, and one to five years in prison for the felon-in-possession conviction. The court ordered Petitioner to serve the sentence for the felony-firearm conviction first and to serve the other three sentences concurrently with each other, but consecutively to the time spent in prison for the felony-firearm conviction. (11/15/10 Sentencing Tr., ECF No. 12-21, PageID.1347.)

B. The Direct Appeal

Petitioner appealed his convictions and sentences through counsel, who argued that: (1) Petitioner was denied a fair trial because the trial court allowed the prosecutor to introduce evidence that, twelve years after the crime, Petitioner allegedly made a vague statement to a relative about the commission of a homicide at a similar establishment in a manner similar to the facts in his case; (2) the trial court incorrectly cured Batson² violations by restoring only the last illegally excused juror to the panel; (3) the prosecutor deprived Petitioner of a fair trial by bolstering Murphy's credibility and eliciting her testimony that Petitioner had broken through the roofs of other businesses, and trial counsel was ineffective for failing to object to the evidence in a timely manner and to move for a mistrial; (4) Petitioner's convictions and sentences for two counts of murder for the murder of one person violated his right to protection against double jeopardy; and (5) the prosecution failed to present legally sufficient evidence that he committed the murder. (Defendant-Appellant's Brief on Appeal, ECF No. 12-22, PageID.1372).

In a pro se supplemental brief, Petitioner argued that: (1) the prosecution violated his right to a fair trial by refusing to...