Wilson v. Parish

DWAYNE EDMOND WILSON, Petitioner, v. LES PARISH, Respondent.

CASE NO. 2:18-cv-10906

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 31, 2021

HONORABLE LINDA V. PARKER

OPINION AND ORDER (1) DENYING HABEAS CORPUS PETITION (ECF NO. 1); (2) DENYING MOTION FOR BOND (ECF NO. 15); (3) DENYING MOTION FOR HEARING (ECF NO. 22); (4) GRANTING THE MOTION FOR LEAVE TO FILE A SUPPLEMENTAL BRIEF (ECF NO. 23); (5) DENYING MOTION TO EXPEDITE BOND DUE TO PETITIONER'S MEDICAL CONDITION (ECF NO. 28); AND (6) DENYING MOTION FOR LEAVE TO BE HEARD ON PENDING BOND MOTION (ECF NO. 29)

Petitioner Dwayne Edmond Wilson, a state prisoner in the custody of the Michigan Department of Corrections, filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) The pleading challenges Petitioner's convictions for possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, and two counts of unlawful imprisonment, Mich. Comp. Laws § 750.349b. The sole ground for relief alleges that Petitioner's Sixth Amendment right to a speedy trial was violated.

Also pending before the Court are Petitioner's motion for release on bond pending a decision on his habeas petition (ECF No. 15), his motion for a hearing before the Chief Judge of this District as to why the judge formerly assigned to this case recused herself (ECF No. 22), and Petitioner's motion for leave to file a supplemental brief supporting his motion for bond (ECF No. 23). Respondent Les Parish opposes Petitioner's habeas corpus petition and motion for bond. (ECF Nos. 5, 18.) Having reviewed the pleadings and record, the Court concludes that the state appellate court's rejection of Petitioner's claim on the merits was objectively reasonable. Accordingly, the habeas petition will be denied. Additionally, the motion for bond pending a decision in this case will be denied as moot, the motion for a hearing likewise will be denied, and the motion to file a supplemental brief will be granted.

I. Background

A. The Charges, First Trial, First Sentence, and First Direct Appeal

On June 12, 2009, Petitioner was arraigned in state district court and bound over for trial in Macomb County Circuit Court. (See ECF No. 6-1 at Pg. ID 161.) The felony information (charging document) listed the following crimes: (i) first-degree, premeditated murder; (ii) felony-murder (murder committed during commission of, or attempt to commit, a felony); (iii) possession of a firearm during the commission of, or attempt to commit, a felony ("felony-firearm"), secondoffense; (iv) two counts of unlawful imprisonment; (v) first-degree home invasion; (vi) assault with intent to do great bodily harm less than murder; (vii) carrying a dangerous weapon with unlawful intent; and (viii) second-degree murder. (ECF No. 6-14 at Pg. ID 490-91.) On June 22, 2009, Petitioner was arraigned in state circuit court (ECF No. 6-3), and on December 8, 2009, his first trial began (ECF No. 10-1). Before jury selection, the prosecutor dismissed the counts charging Petitioner with second-degree murder and carrying a dangerous weapon with unlawful intent, and the trial court denied Petitioner's motion to represent himself. (ECF No. 10-1 at Pg. ID 3874, 3884-88.)

On December 10, 2009, the jury found Petitioner guilty of (i) second-degree murder, Mich. Comp. Laws § 750.317, as a lesser offense to premeditated murder; (ii) felony-murder, Mich. Comp. Laws § 750.316(1)(b); (iii) felony-firearm, Mich. Comp. Laws § 750.227b; (iv) assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84; and (v) two counts of unlawful imprisonment, Mich. Comp. Laws § 750.349b. (ECF No. 10-3 at Pg. ID 4190.) The jury acquitted Petitioner of first-degree, premeditated murder and home invasion. (Id.)

On January 20, 2010, the trial court sentenced Petitioner to a term of (i) 36 to 60 years in prison for the second-degree murder conviction; (ii) life imprisonment without the possibility of parole for the felony-murder conviction;(iii) five years in prison for the felony-firearm count, with 239 days credit; (iv) five to 10 years in prison for the assault conviction; and (v) five to 15 years for the two unlawful-imprisonment convictions. (ECF No. 6-7 at Pg. ID 344-45.) The court ordered the felony-firearm sentence to be served before the other sentences, which ran concurrently with each other. (Id. at Pg. ID 344.)

Petitioner appealed his convictions and sentence through counsel. Among other things, he argued that the trial court violated his right to represent himself at his trial. The Michigan Court of Appeals agreed with Petitioner's argument on that issue. Accordingly, the Court of Appeals vacated Petitioner's convictions and sentences and remanded the case to the trial court for further proceedings. People v. Wilson, No. 296693, 2011 WL 1778729 (Mich. Ct. App. May 10, 2011) (unpublished). The prosecutor appealed the Court of Appeals' decision, but on September 6, 2011, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issue. People v. Wilson, 490 Mich. 861; 801 N.W.2d 882 (2011).

B. The Interlocutory Appeals Before the Second Trial

The prosecutor re-charged Petitioner with (i) felony-murder; (ii) felony-firearm, second offense; (iii) two counts of unlawful imprisonment; (iv) assault with intent to do great bodily harm less than murder; (v) carrying a dangerous weapon with unlawful intent; and (vi) second-degree murder. (ECF No. 6-23 atPg. ID 1338-39.) On December 13, 2011, Petitioner moved to dismiss the felony-murder charge on double jeopardy grounds because the jury had acquitted him of home invasion, which was the only underlying felony for the felony-murder charge. (See ECF No. 6-9 at Pg. ID 357-58.)

On July 6, 2012, the trial court granted Petitioner's motion and dismissed the felony-murder charge on double jeopardy grounds. The court stated that Petitioner could not "be tried on Felony Murder when the only predicate available is that for which he has already been acquitted." People v. Wilson, No. 09-2637 FC (Macomb Cty. Cir. Ct. July 6, 2012); (ECF No. 6-18 at Pg. ID 671).

Meanwhile, Petitioner argued at a pretrial conference on February 16, 2012, that his right to a speedy trial was being violated. (ECF No. 6-11 at Pg. ID 383-86.) The trial court rejected Petitioner's argument (id. at Pg. ID 403) and, on April 6, 2012, Petitioner filed a pro se interlocutory appeal from the trial court's decision. (ECF No. 6-16 at Pg. ID 539-50.) On April 18, 2012, the Michigan Court of Appeals denied Petitioner's application for leave to appeal "for failure to persuade the Court of the need for immediate appellate review." People v. Wilson, No. 309493 (Mich. Ct. App. Apr. 18, 2012); (ECF 6-16 at Pg. ID 537). Petitioner appealed that ruling to the Michigan Supreme Court but, on May 24, 2013, the state supreme court denied leave to appeal because it was not persuaded to review the issue. People v. Wilson, 494 Mich. 853; 830 N.W.2d 383 (2013).

The double jeopardy issue continued to progress on a different track. On July 12, 2012, the prosecutor filed an interlocutory appeal from the trial court's decision that Petitioner could not be retried on a charge of felony-murder. On July 16, 2012, the Michigan Court of Appeals stayed the case pending the appeal, and on November 15, 2012, the Court of Appeals reversed the trial court's decision on the double jeopardy issue and reinstated the felony-murder charge. People v. Wilson, No. 311253, 2012 WL 5854885 (Mich. Ct. App. Nov. 15, 2012).

Petitioner appealed that decision to the Michigan Supreme Court. (ECF No. 6-21 at Pg. ID 1068-96.) About a year and a half later, on June 18, 2014, the Michigan Supreme Court reversed the Michigan Court of Appeals, dismissed the felony-murder charge, and remanded the case to trial court. People v. Wilson, 496 Mich. 91; 852 N.W.2d 134 (2014).¹

C. The Initial Habeas Petition

On June 25, 2014, Petitioner filed a pro se habeas corpus petition in this District. He argued that he was denied his state and federal rights to a speedy trial and his right to present a defense due to the prosecution's suppression or destruction of evidence. Former United States District Judge Lawrence P. Zatkoff summarily dismissed the petition without prejudice on July 17, 2014. JudgeZatkoff stated that the delay in bringing Petitioner to trial was largely due to interlocutory appeals and that the case was expected to be set for trial promptly. Judge Zatkoff also stated that prejudice could not be accurately ascertained until after the trial and that no extraordinary circumstances warranted intrusion into state proceedings already underway. See Wilson v. Michigan, No. 14-12490 (E.D. Mich. July 17, 2014).

D. The Second Trial and Second Sentence

Petitioner subsequently asked the trial court to dismiss his case on speedy grounds. The trial court denied his motion on September 8, 2014 (ECF 6-1 at Pg. ID 202) and, on September 24, 2014, Petitioner's second trial began, with Petitioner representing himself. (ECF No. 7-14 at Pg. ID 1922.)² At that point, the charges against Petitioner were (i) second-degree murder, (ii) felony-firearm, (iii) assault with intent to do great bodily harm less than murder, and (iv) two counts of unlawful imprisonment. (Id. at Pg. ID 2020-21.)

In one of his previous briefs, Petitioner described the trial testimony and the parties' theories of the case as follows:

The prosecution alleged that on May 26, 2009, Mr. Wilson entered the home of Katherine Horton. Mr. Wilson and Ms. Horton had been in a romantic relationship for around eight years, with Mr. Wilson living at that residence with Ms. Horton, her two daughters from a prior relationship, . . . and the young son he had with Katherine Horton. Ms. Horton alleged that she and Mr. Wilson had recently ended theirrelationship, and that Mr. Wilson no longer lived at the house, but Mr. Wilson disputed that he had been

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