Archives for category: murder

This convicted murderer petitions for writ of habeas corpus. His official middle name in the court record is Ninja. Habeas denied.

LEMAR NINJA DELVON BROOKS, Petitioner,
v. HENRY STEWARD, WARDEN, Respondent.

Case No. 3:12-cv-00998

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION

January 31, 2013, Filed

Opinion by US District Judge Kevin H. Sharp.

Petitioner Le’Mar Ninja Delvon Brooks was convicted …March 22, 2001… on two counts of first degree murder by a jury and sentenced to two consecutive life prison terms.
Footnote1: Under Tennessee law, this means that the petitioner must serve one hundred and four years in prison before becoming eligible for parole. (See ECF No. 10-20, at 15:18-19.)

and

CONCLUSION

This case is somewhat troubling precisely because the State’s evidence was scant and contradictory, and the petitioner’s trial counsel clearly did not do all he could have done to call the State’s marginal evidence into question. The fact that a young man was given an effective sentence of 104 years on such slim evidence is further cause of concern. Notwithstanding, it is not this Court’s prerogative to review the evidence, or to second-guess the state courts’ decisions. Rather, this Court must simply consider whether the state court’s adjudication of the petitioner’s claims was contrary to, or involved an unreasonable application of, clearly established federal law, or if it involved an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d). Under this standard, the petitioner has not established that he is entitled to relief on the basis of any of his claims. The petition must therefore be denied.

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This case involves a “horrific” crime, the petitioner here convicted twice for the crime after the first conviction overturned for reliance on bite marks that defense counsel ineffectively failed to object to, the second conviction is reviewed here and is denied habeas relief.

CAROL MARIE EGE, Petitioner,
v.
MILLICENT WARREN, Respondent.

CASE NO. 5:11-CV-10573

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

Decided November 30, 2012 in opinion by US Magistrate Judge Paul J. Komives:

Full details of the murder are summarized from the Sixth Circuit, the relevant portion being the following quote:

Defendant [petitioner in this case] denied involvement in the murder, and said that “if she … ha[d] done it she would have dressed up like a Ninja and waited” at the victim’s home.

After review of the records, this Court concludes:

As the Michigan Court of Appeals observed on direct appeal following petitioner’s first conviction, “[t]his is a troubling case. The crime is horrific. The initial investigation was deficient. Defendant was not charged until nine years after the murder. There are others who are logical suspects. No one saw defendant at the scene the evening of the murder. No physical evidence links defendant to the crime[.]” People v. Ege, No. 173448, 1996 Mich. App. LEXIS 1805, 1996 WL 33359075, at *1 n. 1 (Mich. Ct. App. Sept., 17, 1996). Nevertheless, the standard for relief under § 2254(d) “is difficult to meet, [and] that is because it was meant to be.” Harrington v. Richter, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011). As the Court explained, “[s]ection 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice system,’ not a substitute for ordinary error correction through appeal.” Id. (quoting Jackson, 443 U.S. at 332 n.5 (Stevens, J., concurring in the judgment)).

The defense argument (based on the defendant’s story) is that he fired his gun (murdering his friend) because he thought there were ninja outside the window.

STEPHEN MICHAEL GAULTNEY, Petitioner,
v.
DAVID BALLARD, Warden, Mount Olive Correctional Complex, Respondent.

CIVIL ACTION NO. 1:09-1221

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, BLUEFIELD DIVISION

Decided August 8, 2012 by opinion of United States Magistrate Judge R. Clarke VanDervort:

Around 2:00 a.m. on September 16, 2002, Petitioner called Justin Workman to see if he wanted to “get high.” Petitioner admits that on the morning of September 16, 2002, he and Mr. Workman were smoking, drinking, and injecting controlled substances. Petitioner claims that he saw ninjas or unidentified police officers peering into his second floor apartment windows. Petitioner retrieved two pistols and threw one to Mr. Workman. Petitioner states that Mr. Workman jumped down from the kitchen sink counter yelling that “they were coming in.” Petitioner contends that when he turned he saw a shadow, fired his pistol, and killed Mr. Workman.

and

Dr. David Clayman testified that he works for Highland Behavioral Health as a clinical and forensic psychologist. (Respondent’s Exhibit No. 21, p. 6.) Dr. Clayman stated that he evaluated Petitioner on July 22, 2003. (Id., pp. 10 – 11.) Dr. Clayman testified that Petitioner’s “statements to us were fairly consistent with that given in the police reports” and “devoid of significant psychological disorder.” (Id., p. 13.) Dr. Clayman stated that in his opinion Petitioner genuinely believed there were Ninjas in and around his residence. (Id., p. 14.) In his report, Dr. Clayman wrote that “his discussion with the police on the day prior to the shooting does suggest that he was living under the idea that he was truly being threatened, and the use of drugs exacerbated and distorted his unrealistic perception.” (Id., p. 17.) Dr. Clayman testified that Petitioner’s belief system supported that he made a distinction between legitimate cops and intruders that he needed to defend himself against. (Id., pp. 18 – 19.) Dr. Clayman stated that Petitioner had a high level of paranoia. (Id., p. 19.) Dr. Clayman explained that a person’s sense of paranoia can be heighten by the act of friends agreeing that they hear or see things that do not exist in reality. (Id.) Dr. Clayman stated that he did not find anything during his evaluation to support a conclusion that Petitioner had some sort of hatred for Mr. Workman or police officers. (Id., p. 22.) Dr. Clayman testified that Petitioner told him “he felt he wasn’t going to survive that night” and “that he felt threatened by the Kevlar police. I’m going to call them that.” (Id., pp. 22 – 23.) Dr. Clayman stated that in his opinion Petitioner discharged his firearm because “he believed he was in danger and that that’s why he was firing.” (Id., p. 40.) Dr. Clayman acknowledged that Petitioner merely indicated that the intruders were coming in the house after him and the threat Petitioner felt could have been the fact he did not want to be arrested for drugs. (Id., p. 43.) Although Dr. Clayman stated that Petitioner did not premeditate to kill Justin, Dr. Clayman acknowledged that Petitioner had the capacity to premeditate to shoot someone. (Id., p. 45.) Dr. Clayman explained that Petitioner appeared to be able to make a distinction between the “regular police” and the “delusional police.” (Id., p. 24.) Dr. Clayman acknowledged that Petitioner felt like the police were outside watching or stalking him because the police knew he was engaging in drug activity. (Id., p. 26.) Although Petitioner informed Dr. Clayman that intruders “looked like Ninjas because they were wearing Kevlar” and “I had shot the shit out of them and didn’t hurt them,” Petitioner specifically stated that the intruders never shot at him. (Id., pp. 27, 31, and 43.) Dr. Clayman stated that Petitioner described the people around his apartment as follows: “He saw two of them coming up the alley. He could see badges and heard them say, ‘Cockle doodle do, the early bird gets the worm.'” (Id., p. 29.) Dr. Clayman testified that he believed Petitioner had a personality disorder: antisocial with paranoid traits. (Id., p. 32.) Specifically, Dr. Clayman explained as follows: “He has shown throughout his life he has had a careless disregard for the law. He has had this paranoid trend.” (Id., p. 33.)

And quote from the State court:

Additionally, in this case, and perhaps most pertinent for these purposes, former trial counsel, Elizabeth French, Esq. testified at the Omnibus hearing that the strategy/theory of their case was to actually present the Petitioner’s version of events from his delusional perspective at the time of the crimes, hoping that the jury would understand his mindset, to wit: that several men dressed in black, presumably police officers operating outside the law, Ninjas, or phantoms were invading his home by coming through his windows in swarms, and that he honestly believed that he was protecting himself by firing the several shots fired. Ms. French testified that the Petitioner was so adamant about the incident being “self defense” that he disagreed with presenting the jury with a diminished capacity defense.

but finds

that trial counsel did not act unreasonably in presenting testimony from Dr. Smith and Dr. Clayman. Again, trial counsel was proceeding on the theory that Petitioner accidentally shot Mr. Workman because he felt threatened based on his hallucination that intruders were entering his apartment. Trial counsel presented the testimony of Dr. Smith and Dr. Clayman in an attempt to support this defense. Dr. Smith testified that at the time of the shooting, Petitioner “was certainly operating under a strong mental aberration.” (Respondent’s Exhibit No. 21, p. 61.) Dr. Clayman testified that in his opinion Petitioner genuinely believed there were Ninjas or Kevlar police in and around his residence. (Id., p. 14.)

Therefore there is no ineffective assistance of counsel and the Magistrate Judge

RECOMMENDS that the District Court GRANT Respondent’s Motion for Summary Judgment (Document No. 58.), DISMISS Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus

In this case a writ for habeas relief is granted based on faulty jury instructions. The reference to “ninja” is from the testimony of a seven year old. The court explains that this testimony “certainly could have [been] discredited” by the jury.

RONNIE JERMAINE SHERRORS,
v.
JEANNE S. WOODFORD,

No. 07-56756, No. 08-55524

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

425 Fed. Appx. 617

Filed March 31, 2011

Before Circuit Judges: Fletcher, Berzon and Callahan. Judge Callahan dissented. The majority opinion explains:

key witness for the prosecution was Latrina Walker, Sherrors’s 24-year-old mentally-disabled sister, who testified that she had been drinking and smoking marijuana the evening of the murder. Additionally, Walker’s mother and aunt both testified that she was untruthful and unreliable. In light of these reasons to doubt her accuracy as a witness, the jury well could have chosen not to believe Walker’s account. FN6

FN6- A third witness, who was five years old at the time of the murder and seven at trial, testified that not only did he see blood on Sherrors’s shirt and shoes the night Foth was killed, but that he saw Foth dismembered by men with ninja swords. The jury certainly could have discredited him entirely as well.

No direct evidence linked Sherrors to Foth’s murder.

and

The dissent suggests that the instructional error was cured by the trial court’s instructions on the particular elements of the crimes charged and the beyond a reasonable doubt standard. See Dissent at 4. But these general instructions simply “could not overcome the misdirection of a specific instruction that permitted the jury to find an element of the crime without considering all the evidence.” Rubio-Villareal, 967 F.2d at 300.

Concluding:

the district court’s conditional grant of Sherrors’s petition for the writ of habeas corpus is AFFIRMED.

UNITED STATES OF AMERICA,
v.
ZION CLARKE, RICARDO DEFOUR, KEVON DEMERIEUX, ANDERSON STRAKER, WAYNE PIERRE, CHRISTOPHER SEALEY, and KEVIN NIXON, Defendants.

Criminal No. 06-102 (JDB)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

767 F. Supp. 2d 12

March 2, 2011, Decided

Opinion by US District Judge John D. Bates:

The indictment charges the defendants with participating in a conspiracy — beginning on or about February 1, 2005, and ending on or about April 15, 2005 — to seize and detain Balram Maharaj and his son Dinesh, in order to compel the payment of ransom money for their release, in violation of 18 U.S.C. § 1203.3 The evidence presented at trial showed that the conspirators’ initial plan was to kidnap 5-year old Dinesh, but that the target instead became Balram Maharaj due to complications involved with kidnapping his child. After a series of planning meetings at the Mellow Moods Bar and other locations, the kidnapping took place on April 6, 2005, at the Samaan Tree Bar. Maharaj was taken at gunpoint, forced into a waiting vehicle, and driven to a cocoa field. From there, he was taken to a forested area where he was held for seven days under the watch of two guards. During that time a series of ransom calls was made to the victim’s family, demanding $3 million Trinidad dollars — approximately $500,000 U.S. dollars — and the captors attempted to obtain “proof of life” from the victim to advance their ransom demands. During the period of captivity, Maharaj, a diabetic, did not have access to medication, and his health took a precipitous decline — he turned pale, had difficulty speaking and breathing, and began hallucinating. On April 13, 2005, Maharaj died. After his death, several co-conspirators dismembered the body with a machete, hid the body parts in two containers — a blue barrel and a white styrofoam cooler — and buried the containers.

As to defendant “Ninja”:

The evidence was sufficient to sustain Pierre’s conviction…

Gittens — a longtime friend of Pierre’s — testified that he was brought into the hostage taking conspiracy by Pierre (“Ninja“) as well, at a meeting at Pierre’s home. Trial Tr. at 3181 (June 16, 2009). Pierre initially assigned him the role of producing a stolen vehicle for use in the kidnapping (which Gittens decided not to do), and later assigned Gittens the role of ransom negotiator. Id. at 3181, 3197 (“I was told by Ninja to drive around with Jason Percival and make a ransom call $3 million to the victim’s family.”).

concluding:

the Court denies defendants’ motions for judgment of acquittal, their motions for new trial, and their motions to dismiss the case.

MARVIN BRYANT, Petitioner,
v.
T. FELKER, Warden, Respondent.

No. C 06-0005 CW (PR)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

2011 U.S. Dist. LEXIS 9091

Decided January 24, 2011
Opinion by District Judge Claudia Wilken:

Petitioner waived his right to a jury trial and was convicted of attempted murder, residential robbery, assault with a firearm, and residential burglary. (Resp. Memo. at 1.) On May 2, 2003, the trial court sentenced Petitioner to twenty-eight years. (Second Amended Petition (SAP) at 2.) The trial court found true the allegations of personal use of a firearm, intentional discharge of a firearm, and infliction of great bodily injury.

Quoting from The California Court of Appeal description of the facts:

Defendant was released because his clothing did not match the dispatch description of Raman’s attacker.

but

While being transported to the hospital Raman told police about the argument between Turner and Pamela, that three men had come to the door and he was not sure he could identify his attacker. He did say his attacker wore black clothing and a black beanie

and

Testifying on his own behalf, defendant admitted: vandalizing a car at age 14, an auto theft conviction at age 16, a 1997 arrest for possessing a “Ninja-rock,” used to break car windows, a 1998 arrest for stealing a video game, and a 1999 allegation of domestic violence by his girlfriend. Defendant said he was at Turner’s apartment when she came home upset that Pamela had called her a “black bitch.” He admitted he went with Westbrook and two other men to Pamela’s apartment to demand an apology. He said Westbrook, Raman and Pamela argued outside the Khannas’s apartment. Defendant denied saying anything or threatening the Khannas. He also denied returning to the Khannas’s apartment and having any involvement in the crimes committed.

Holding:

the petition for a writ of habeas corpus is denied.

Affirmed by, Bryant v. Felker, 464 Fed. Appx. 562, (9th Cir. Cal. 2011)

The convicted serial killer of ninja murders may be innocent. His conviction has been overturned by the Ninth Circuit, the Supreme Court will not intervene. Will there be a new trial on these 30 year old serial killings or has an innocent man been in prison for crimes he did not commit?

BOBBY JOE MAXWELL, Petitioner-Appellant,
v.
ERNIE ROE, Respondent-Appellee.

No. 06-56093

UNITED STATES
COURT OF APPEALS
FOR THE NINTH CIRCUIT

628 F.3d 486
Filed November 30, 2010

Decision by Judge Paez:

Bobby Joe Maxwell was arrested in April 1979 and charged with murdering ten men in downtown Los Angeles, California. The media dubbed the murders for which Maxwell was charged the “Skid Row Stabber” killings. The prosecution’s best physical evidence linking Maxwell to any of the crime scenes was a palm print on a public bench found near the body of one of the victims. The bench, however, was located in an area Maxwell frequented, and the prosecution was unable to isolate the age of the print. Lacking solid physical evidence, the prosecution rested its case on the testimony of jailhouse informant Sidney Storch.

maxwell skid row

but

Storch testified at Maxwell’s trial in 1984. Thereafter, Storch testified for the Los Angeles County District Attorney’s Office in no less than six cases, several of them high-profile.

–Footnote5–
One 1989 Los Angeles Times article reported:

According to Storch’s testimony and statements to police, defendants who made incriminating statements to him include: Bobby Joe Maxwell, convicted in 1984 of two of the “Skid Row Stabber” killings; Tracey Carter, accused of the 1987 robbery and murder of a minister who had stopped to use a pay telephone in South-Central Los Angeles, and Stewart Woodman, charged with engineering the “Ninja“-style killing of Woodman’s parents in the garage of their fashionable Brentwood condominium. Said inmate Daniel Roach: “It seems that half the world just confesses to Sidney Storch.”

Ted Rohrlich & Robert W. Stewart, Jailhouse Snitches: Trading Lies for Freedom, L.A. Times, Apr. 16, 1989, at 1.

and

John Kryniak, a former Pasadena police officer and Los Angeles District Attorney, testified that in 1986 Storch came forward and offered to testify for the government in the high-profile “Ninja murders” case. Kryniak explained that he decided not to use Storch when he learned that Storch had been placed in the defendant’s cell after the time Storch claimed he was there. Kryniak further testified that he chose not to use Storch’s testimony because he did not believe Storch was telling the truth and because Storch had a very checkered history as an informant.

Conclusion:

Storch was one of the most infamous jailhouse informants in Los Angeles history. In particular, as confirmed by Kryniak’s and Marcus’s testimony, Storch had a propensity to go after high profile cases. The “Skid Row Stabber” case would have been just such a case, and Storch’s testimony at Maxwell’s trial is a textbook example of the “booking” method that Storch helped make famous. Based on the evidence brought to light during the lengthy evidentiary hearing, we conclude that the state court’s finding that Storch did not give false testimony was an unreasonable determination of the facts in light of the evidence. We further conclude that there is a reasonable probability that this false testimony affected the jury’s verdict. Because the State convicted Maxwell on the basis of false and material evidence in violation of his due process rights, we direct the district court to grant Maxwell habeas relief on this claim. We further conclude that the prosecution withheld material evidence in violation of Brady.

For more information see:

Dec 2010, CBS: ““Skid Row Stabber” Gets Calif. Conviction Overturned After 30 Years in Prison” by Naimah Jabali-Nash

Jan 2012, LATimes: “High court upholds ruling overturning ‘Skid Row Stabber’ verdicts” by David Savage

Sept 2012, Daily Beast: “Will L.A.’s Skid Row Stabber Get Sprung?” by Christine Pelisek

Recall other Los Angeles Ninja killers

This habeas petitioner was conviction by court-martial of murder with a Ninjatō sword and sentenced to life in prison. The federal courts here affirm the military court judgement.

ninja to sword

CURTIS A. GIBBS, Petitioner,
v.
J. E. THOMAS, Respondent.

1:07-cv-01563-SKO-HC

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

2010 U.S. Dist. LEXIS 122152

Decided November 15, 2010, filed November 18, 2010.

Opinion by US Magistrate Judge Sheila K. Oberto:

In the brief there are set forth “[u]ncontested [f]acts” pertinent to the charge, which concerned the premeditated murder of Mrs. Brenda Salomon on August 18, 1989. (Id. at 17.) Petitioner confessed to the killing, revealing that while at the Shipwreck Lounge, he encountered Salomon and then left the lounge. When Petitioner entered his truck, Salomon, who was very drunk, tapped on the window and asked Petitioner to take her out to get something to eat. Petitioner agreed and bought Salomon some fast food. When Salomon passed out several times and failed to tell Petitioner where she lived, Petitioner stopped at a telephone booth and told her to get out of his truck and call someone to come to pick her up. When she called him names, slapped him, and failed to leave the truck, he drove into a wooded area, stopped, and ordered her out of the truck. A physical altercation ensued, and Petitioner pulled Salomon out of the truck. When Salomon removed her shorts, taunted Petitioner, and attacked him as he tried to enter his truck, Petitioner became enraged, hit her repeatedly, retrieved his “Ninja To” sword from the truck, and struck Salomon so hard that the sword’s handle detached from its blade. (Id. at 18, 21-23.) The blow severed her spinal cord and vertical arteries. (Id.)

Petitioner returned to the lounge after retrieving the sword and throwing Salomon’s things out of the truck, and stayed there until closing time. The body was discovered in a wooded area on the Camp Lejeune Marine Corps base, and multiple items of corroborating evidence were found. (Id. at 17-18.)

Petitioner prosecuted as a court martial under military law, impacting this Court’s jurisdiction and scope of review:

In the present case, Petitioner acknowledges that his case was reviewed by both the Navy-Marine Corps of Military Review and the United States Court of Military Appeals. (Pet. 2.)

All of the petitioner’s claims here for habeas relief are denied, some are not ripe because of non-exhausted administrative remedies, regarding alleged prosecutorial misconduct denied because the military court had already looked into it, and no jurisdiction to review military discharge.

This case opinion was affirmed by the Ninth Circuit in January 2012, memorandum opinion before Judges Leavy, Tallman and Callahan.

Convicted murderer F.T. Freeman was granted writ of habeas corpus in 2010 by a District Court in Michigan. But the 6th circuit reversed in 2012. The issue is equitable tolling and discovery of attorney drug addiction and major trial mistakes. The “ninja” is reference to an alleged prosecutor’s witness derogatory characterization of the defendant.

FREDERICK THOMAS FREEMAN, Petitioner,
v.
JAN TROMBLEY, Respondent.

Civil No: 07-10350

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION

744 F. Supp. 2d 697

FREDERICK THOMAS FREEMAN mugshot

Decided October 14, 2010 by US District Judge Denise Page Hood:

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Frederick Thomas Freeman, (“Petitioner”), who is confined at the Saginaw Correctional Facility in Freeland, Michigan, has filed a petition for writ of habeas corpus through counsel raising the following claims: (1) Petitioner was denied the right to make a record regarding his defense attorney’s drug use; (2) ineffective assistance of counsel; (3) ineffective assistance of appellate counsel; (4) prosecutorial misconduct; (5) actual innocence; (6) trial court error in allowing Petitioner to be dressed in prison garb and shackles in the presence of the jury; (7) jury instruction error; and (8) cumulative error. Petitioner was convicted of first-degree murder, Mich. Comp. Laws §750.316. He was sentenced to life imprisonment. For the reasons that follow, the petition will be conditionally granted.

FACTUAL BACKGROUND

Petitioner’s conviction arose from the shooting death of Scott Macklem, on November 5, 1986, in the parking lot of St. Clair Community College shortly before 9:00 am. The prosecution theorizes that Mr. Macklem was murdered by Petitioner due to his jealousy of Crystal Merrill and Mr. Macklem’s relationship. Crystal Merrill is the former girlfriend of Petitioner. Ms. Merrill and Mr. Macklem were engaged to be married and were expecting their first child together. Petitioner argues that he did not commit the murder and that he was not at the scene of the shooting. Petitioner produced alibi witnesses at trial to support his theory of the case.

and

Petitioner makes the following claim of prosecutorial misconduct:

The prosecution repeatedly elicited from witnesses such prejudicial but irrelevant material, seeking through these witnesses to portray the Petitioner as a violent man, a ‘Ninja assassin,’ a ‘psychological terrorist.'” Witnesses were asked to describe the Petitioner as “frightening” (e.g. Heidi Bartel, Joplin, and John Manalli) and one who committed violent acts (e.g. Thomas Forde and Paul Demares) all of which had nothing to do with the victim in this case. The prosecution displayed in the courtroom an inflammatory array of items which were never connected to the Petitioner and were never offered in evidence, including guns, knives, and other weapons, martial arts equipment, pornographic magazines and listening devices.

The Court responds that:

None of the questions or answers rise to the level required for prosecutorial misconduct.

Nevertheless, this District Court does grant habeas based on other grounds and orders a new trial (particularly for ineffective assistance of counsel … not just the attorney’s drug use, but as regards preserving right to call an alibi witness and preventing the defendant from testifying on his own behalf). But this writ of habeas corpus is reversed by the 6th Circuit in 2012.

The major issue of the case is the time limit and whether the case deserves equitable tolling. The 6th Circuit before Circuit Judges Martin and McKeague and District Judge Caldwell, sitting by designation, concludes in opinion by Circuit Judge McKeague, May 18, 2012:

Freeman has failed to carry his burden of showing either actual innocence or entitlement to an evidentiary hearing. His petition is time-barred. It follows that the remaining issues presented both by the Warden’s appeal and Freeman’s cross-appeal are rendered moot.

On remand, Writ of habeas corpus denied, Motion denied by: Freeman v. Trombley, 2012 U.S. Dist. LEXIS 156779 ( E.D. Mich. Oct. 26, 2012) — So that’s only last month — so will this case go on to SCOTUS?

See also this 2007 blog MetroTimes: Reasonable doubt: Part I and Reasonable doubt: Part II By Sandra Svoboda

This 2010 opinion is the denial of habeas petition for a convicted murderer in a drug-related offense.

KEVIN POTTER, Petitioner,
v.
WILLIE SMITH, Respondent.

CASE NO. 2:09-CV-12049

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION

2010 U.S. Dist. LEXIS 103088

Decided August 4, 2010, by U.S. Magistrate Judge Paul J. Komives

Petitioner Kevin Potter is a state prisoner, currently confined at the Ionia Maximum Correctional Facility in Ionia, Michigan. On November 11, 2003, petitioner was convicted of conspiracy to commit first degree murder, Mich. Comp. Laws § 750.157a, 750.316, following a jury trial in the Wayne County Circuit Court. On December 9, 2003, he was sentenced to a mandatory term of life imprisonment without parole. Petitioner appealed as of right…

The court quotes the trial evidence from the respondent’s answer (so this is the government version of the facts). Three witnesses refer to a man dressed in black and it seems a neighbor witness Beverly Moore used the description “ninja”:

Scott Klass, an electrician, testified that he heard gunshots on the morning of September 19, 2002 and that he saw a man dressed all in black with a rifle and that he saw a van then come down the street, and the van was similar in style to the picture shown to him by the prosecutor. (TT 11/4/03, pp 61-63). Beverly Moore, who lives across the street from the victim’s family, testified that on the morning in question she saw a van parked in front of the Wright house and she wondered why it was blocking their driveway. (TT 11/5/03, pp 8-9). Ms. Moore heard noises but assumed it was firecrackers, but when she went outside she saw a “ninja” all in black with a gun in his hand. (TT 11/5/03, p 13). Another neighbor, Katherine McFarland, also testified about hearing shots and seeing a man all in black with a big, AK 47 type gun in his hands. (TT 11/5/03, pp 39-40).

The facts of this case also involve cocaine, marijuana, an AK-47, and “fire melted” skin. It seems Potter was dressed in black when he killed Mario Allen, on the steps of Mario’s home as Mario left to appear at his sentencing hearing for a drug related crime (a cocaine sale). It seems Mario’s two co-defendents in the drug sale hired Potter to kill Mario so that Mario wouldn’t show up at the sentencing. Then the co-defendants withdrew guilty pleas and prepared to face trial without Mario’s testimony.

In this instant case, Potter is petitioning the federal government for habeas relief but Magistrate Judge Komives finds no violations of federal law, concluding:

In view of the foregoing, the Court should conclude that the state courts’ resolution of petitioner’s claims did not result in a decision which was contrary to, or which involved an unreasonable application of, clearly established federal law. Accordingly, the Court should deny petitioner’s application for the writ of habeas corpus.

This Magistrate report was adopted by order of District Judge Gerald E. Rosen on September 29, 2010