Archives for posts with tag: gun

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

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In this 2006 decision, another murder conviction habeas petition involving yet another “ninja-type” motorcycle.

John F. Zaffino, Petitioner
v.
Khelleh Konteh, Warden, Respondent

Case No. 5:05CV1485
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

Decided, July 27, 2006, the opinion by Magistrate Judge David Perelman begins:

In this action in habeas corpus, 28 U.S.C. § 2254, petitioner challenges the constitutionality of his March 13, 2003 conviction pursuant to a jury trial of one count of aggravated murder with a firearm specification, upon which he is currently serving a sentence of life imprisonment for aggravated murder and three years incarceration on the firearm specification, to be served consecutively.

Petitioner’s conviction arose consequent to a love triangle, which culminated with Mr. Jeff Zack being fatally shot in the face.

The decision then quotes from the fact findings of the state appellate court review:

The key question for the jury in this case was the identity of the person who rode the motorcycle towards the victim’s automobile and fired the shot, killing him. The state sought to establish that Appellant was the assailant in several ways. First, they established that the motorcycle they were able to recover from Appellant’s ex-wife was, in fact, the motorcycle purchased by Appellant just before the murder.

Next, they produced five individuals who witnessed the motorcycle and rider on the day of the murder. The witnesses all described the motorcycle as being dark, or green and black with some white. According to these witnesses, the motorcycle was consistent with the motorcycle that was admitted into evidence, which was a “ninja-type” motorcycle. The rider was described as wearing dark clothing and a dark helmet with a face-shield.

This decision was adopted (petition dismissed) by US District Judge Peter Economius on August 15, 2006.

Recall other NinjaLaw cases about ninja motorcycles and ninja murderers.

This 1995 case is the appeal of a criminal conviction involving a conspiracy to rob armored trucks at the Bank of New England, using Uzi’s and “ninja face masks”.

UNITED STATES, Appellee, v. ROBERT EMMETT JOYCE, Defendant – Appellant.
No. 94-2235
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
70 F.3d 679

Decided – November 27, 1995

The opinion is written by Judge Dominguez:

Defendant Robert Emmett Joyce (“Joyce”) challenges the imposition in his sentence of a three-level upward adjustment, pursuant to U.S.S.G. § 3B1.1(b). Joyce seeks to have the adjustment reversed and the matter remanded for resentencing.

We hold that the lower court’s imposition of the three-level upward adjustment, based on Joyce’s role in the offense, is warranted. Consequently, we affirm

The Court’s reasoning in affirming the lower Court adjusted sentencing, is based on the defendant’s managerial role in the conspiracy:

There is no doubt that Joyce exercised managerial responsibilities “over the metaphorical assets of the criminal organization”. Joyce badgered David J. Ryan, a paid confidential government informant, to obtain armored truck route sheets, guard uniforms, and ninja face masks. Joyce further planned the crime to need at least three stolen vehicles, one of them a van with a sliding door (all to be “torched” at the end of the robbery) and a group of at least five experienced, reliable robbers in addition to himself using automatic weapons, including specifically among them, “Uzi submachine guns”

uzi smg

What makes a face mask into a “ninja face masks”? Presumably someone called them that, either in a submitted brief or in testimony? But the Court uses no quotes around the word “ninja” here. Contrast, the Court’s use of quotes around the word “torched” and “Uzi submachine guns”. This Court apparently feels that ninja is a common enough descriptor as to not need quotes.

Not surprising then that the Court rules against this defendant, affirming the lower Court in giving Joyce a lengthened sentence.

In my NinjaLaw post about a Ninja Hood, I wondered if labeling the hood a ninja hood is overly presumptive. Like calling a an object a burglar’s tool, it seems to imply an intent in the object before any action. Similarly the face masks in this case, are “ninja” because they are armed robbers?