Archives for posts with tag: habeas

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.

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)).

Habeas denied – Assault with ninja swords and a gun barrel butt the the head.


SAMUEL WEAVER, Petitioner,
vs.
WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.

Case No. 1:11-cv-218

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION

Decided October 5, 2012, opinion by Magistrate Judge J. Gregory Wehrman

Quoting from the Ohio Court of Appeals, Twelfth Appellate District summary of the facts:

{¶2} In April 2007, Michella Eldridge held a yard sale at her home in Hamilton, Ohio. Appellant came to the sale, and at trial, Eldridge testified that she remembered he had driven a white minivan with a steering wheel that had a cover with cherries on it. Eldridge also remembered that he arrived at her yard sale with a female and small child who remained in the vehicle. At the yard sale, appellant showed interest in a handgun that Eldridge’s husband was showing to his father. Although he did not purchase anything at that time, appellant returned later that day and bought a pair of “Ninja” swords.

{¶3} Approximately a week after the yard sale, appellant returned to Eldridge’s house in the white minivan and arrived just as she was cleaning up after another yard sale. Before leaving, appellant purchased a plant from Eldridge.

{¶4} On May 19, 2007, Eldridge was at home with her daughters when she heard the doorbell ring. She went to the back door and saw appellant. Appellant asked her whether she still had the gun he saw at the yard sale. When Eldridge told him she no longer had the gun, he asked her whether she had any other “firearms.” Eldridge explained that they had a “Tech 9,” but that she was not sure her husband wanted to sell it. Appellant then asked if he could see the gun and told her that he would get the money to purchase it.

{¶5} Eldridge told appellant to wait outside, and she pushed the back door almost completely closed. She then went through the house and retrieved the gun from a dresser. She placed the gun on her dining room table. She did not notice appellant was in the room until he reached across her and grabbed the weapon. As Eldridge pleaded with appellant to give the gun back to her, he struck her on the head with the butt of the gun.

{¶6} Appellant smiled after hitting Eldridge the first time and started for the back door, but Eldridge followed him. As she was asking for the gun, appellant’s arm went up to strike her a second time, and Eldridge hit him in the face. He then hit her in the head again with the butt of the gun. Eldridge testified that the blow “dazed” her and “kind of put [her] out.” Appellant then took off out the back door. Eldridge testified that she “shook it off” and chased after appellant.

{¶7} Eldridge caught appellant and grabbed his shirt. She testified that he exclaimed, “Let go of me you fucking bitch,” and he struck her in the head with the butt of the gun three more times. Eldridge was bleeding, and appellant fled. She called 9-1-1 and was taken to the hospital, where she received 28 stitches in her head for a wound deep enough to expose her skull.

The petition for writ of habeas corpus was denied with prejudice.

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

This is a case of aggravated sexual assault of a minor. The case arises as a petition for writ of habeas corpus from a conviction in Texas. The facts describe a “ninja game” that involve suffocation.

PHRORY MORAN GAMBLE, Petitioner,
v.
RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

No. 4:12-CV-057-A

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS, FORT WORTH DIVISION

June 26, 2012, Decided
June 26, 2012, Filed

Opinion by US District Judge John Mcbryde:

In affirming the trial court’s judgment, the Second Court of Appeals of Texas set out the factual and procedural background of the case as follows:

A grand jury indicted Appellant for aggravated sexual assault of a minor. Appellant pleaded “not guilty,” and the case was tried to a jury.

M.L. was born in 1995, and he was eleven years old at the time of trial. His mother, Christine, testified that she met Appellant at work in 1998 and that they developed a romantic relationship while living together as roommates. Christine and Appellant had two children together, Z.H. in 1999 and K.H. in 2002. Christine testified that her relationship with Appellant was imperfect and that he eventually became physically abusive.

Christine testified that she moved to Boston with the children to get away from Appellant, but Appellant followed them to Boston two months later. She said that while they were living in Boston, M.L.’s teacher made a physical-abuse referral to Child Protective Services (“CPS”). Christine testified that CPS investigated and concluded that Appellant had physically abused M.L. Christine said that after living in Boston for about a year, she, Appellant, and the children moved to Arkansas, where Appellant’s family lived. She later left Appellant and returned to Texas with the children.

Christine testified that when M.L. was almost ten, she and M.L. were watching a television news program about a man who said he had been molested. She said that M.L. then told her that Appellant had blindfolded him, taken him to the bathroom, told him he was going to give him some candy, instructed him to open his mouth, and put Appellant’s penis into M.L.’s mouth. She testified that M.L. said that he did not tell her sooner because he was scared Appellant would kill him if he told anyone. Christine reported M.L.’s outcry to Irving police, whose investigation ultimately led to this case.

M.L. testified that when he was three years old and lived in Texas (he could not remember what city) with Christine and Appellant, Appellant would sometimes watch him when Christine was at work. He testified that Appellant would play “the ninja game,” in which Appellant would put a plastic grocery bag over M.L.’s head and prevent M.L. from breathing. He said that if he got dizzy and fell down, Appellant would tie the bag shut at M.L.’s neck. M.L. said they played the ninja game “a lot.”

M.L. also testified that Appellant would sometimes choke him with one or both hands. He testified that Appellant told M.L. he would kill him if he told Christine about the ninja game.

The convicted person now argues that some of this evidence was unfairly prejudicial:

Appellant argues that the trial court abused its discretion by admitting evidence concerning the extraneous offenses against M.L., specifically, the “ninja game,” the choking and belt-hanging incidents, and the injury to M.L.’s head.

arguing:

M.L.’s horrific testimony about the “ninja game” and being hung by the neck with a belt had the tendency to confuse or distract the jury from the main issue, whether Appellant sexually assaulted M.L., and there was a danger that the jury would give the physical abuse testimony undue weight.

This argument was made in the State courts and denied, now again, habeas petition denied:

A federal habeas court will disturb state court evidentiary rulings on habeas review only if they render the trial fundamentally unfair. Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991); Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir. 1993); Scott v. Maggio, 695 F.2d 916, 922 (5th Cir. 1983). Under Texas Code of Criminal Procedure article 38.37, § 2, evidence of extraneous evidence is more often admissible in cases involving sexual assaults of children, notwithstanding Texas’s normal rules of evidence. Kessler v. Dretke, 137 Fed. Appx. 710, 2005 WL 1515483, at *1 (5th Cir. 2005), cert. denied, 546 U.S. 1105, 126 S. Ct. 1050, 163 L. Ed. 2d 880 (2006). The admission of such evidence does not violate due process if the state “makes a strong showing that the defendant committed the offense and if the extraneous offense is rationally connected with the offense charged.” Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007). The evidence of petitioner’s physical abuse of M.L. was properly admitted because it bears a rational relationship to the charged offense. Moreover, there is no evidence that admission of the extraneous offense evidence rendered the entire trial fundamentally unfair or that but for the admission of the evidence the result of petitioner’s trial would have been different. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993).

Therefore this petition is denied.

This is a petition for writ of habeas corpus for a convicted attempted murder in California. Petitioner was sentenced “to state prison for life with the possibility of parole, plus 25 years to life plus a consecutive five years”. Petition for habeas is denied. This crime was a gang-related shooting. One gang member, “Hankie”, is described wearing a hooded sweatshirt and bandana: “ninja style”.

ninja style hoodie bandana

WILLIAM T. TUCKER, Petitioner,
v.
MATTHEW CATE, Secretary, Respondents.

Civil No. 10-CV-2272-BGS

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Decided June 12, 2012 by U.S. Magistrate Judge Bernard G. Skomal:

Quotes the facts from the California Court of Appeal, Fourth District, Division One:

At around 7:46 p.m. on October 3, 2005, the shooting victim in this case, Jerry Wright Jr. (Wright), was sitting on the stairs near his apartment in the Bay Vista Apartment complex on Logan Avenue in San Diego. The Lincoln Park street gang claimed Lincoln Park—the area where the Bay Vista Apartments are located in southeastern San Diego [footnote omitted] as their territory, and many members of that gang lived in that apartment complex. Although the Lincoln Park and O’Farrell gang were both affiliated with the Bloods, they had been rivals for over a decade. Although Wright did not claim membership in any street gang, his brother had been a member of the O’Farrell Park gang. [footnote omitted] Tucker is a documented member of the Lincoln Park gang, and his gang moniker was “Finny Boy.”

and

“Hankie”—identified at trial as Scott by Scott’s girlfriend—who was falling and stumbling, and making noise because he hit a gate. Scott was wearing a black hooded sweatshirt and a green bandanna over the lower portion of his fact, “Ninja style” with just the eyes showing. Scott, whom Wright had also seen on prior occasions, was one of the males Wright had seen in the group earlier that evening. Scott was stooped over behind Tucker and making “trembling” noises. He had shot himself in the upper buttocks and down through his front left leg in the groin area.

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

Recall NinjaLaw#70 = “Murder-for-hire by Los Angeles Ninja Hitman”. As described in that prior post, the case was appealed. Both the district court and appellate opinion were described in the prior post and so this post is a placeholder to keep this 80th NinjaLaw case in sequence.
los angeles