Archives for posts with tag: michigan

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

This 1996 case is about a Buddhist prisoner (convicted of murder and sentenced to life in prison) who claims violations of his First Amendment right to practice his religion while in Michigan prison.

TEMUJIN KENSU, Plaintiff, V. DAVID CASON, JR., et al., Defendants.
Case No. 1:91-CV-300
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
1996 U.S. Dist. LEXIS 5468

Decided – March 29, 1996

The Court explains:

While plaintiff’s claims might be succinctly characterized simply as free exercise and retaliation claims, in reality his grievances impact on virtually all aspects of the terms of his confinement. His claims involve the recognition of his religion and the right to individual and corporate practice; the availability of Buddhist books or literature in the prison libraries and visiting rooms; the composition of the Chaplains Advisory Council; shake-downs on visitations; the MDOC policy on assuming religious names; transfers to impede his ability to practice his religion and/or in retaliation for grievances filed in connection with his right to practice his religion; name-calling by prison guards; surveillance of plaintiff and his visitors in prison visiting rooms; prison newspaper publication policies; security reclassifications based upon or in retaliation for his exercise of his religious rights; cell assignments, mock pack-ups of prisoner property; the availability of tallow-free soap and hair conditioner; the composition of religious task forces; the right to sleep on the floor notwithstanding prison count policy; approval of religious vendors; the availability of protein tablets to supplement a meat-free diet; and the availability of an extensive amount of religious items and clothing.

The court notes that:

Plaintiff is also trained in several martial arts. He testified that he has a brown belt in Japanese karate and a black belt in Korean Tae Kwon Do. He admitted that he was referred to as the “Ninja Assassin” in his trial and that he had discussed his interest in the martial arts with various prison guards. Although plaintiff contends he is a pacifist, he testified that there had been at least 15 attacks on him by inmates at various prisons.

And that:

Plaintiff’s complaints about harassment were corroborated by inmates Andrew Trombley, Patrick Brown, Robert Harris and Jeffrey Terry. Mr. Trombley testified that Buddhists were not permitted to pray at meals and they were threatened with a major misconduct by the guards. Mr. Brown testified that Buddhists were called Ginsu knives and Ninja warriors by the guards at Muskegon. He also testified that Buddhists were subjected to general harassment, including mock pack-ups, pat downs, reviews of their identification and shake-downs. Mr. Harris testified that Buddhists were shaken down and harassed by guards when reading in a group. He also contended he had been denied parole three times due to his religion. Mr. Terry testified that Buddhists were called Buttyists by prison guards.

Analysis under RFRA, most of the plaintiff’s claims were denied (including denying claims for better vegetarian food options, protein supplements, soap made without animal products, chopsticks, and extra blanket to sleep on the floor, among others) but the Court did find one violation of his rights:

defendants’ policy, practice or custom of prohibiting all use by plaintiff of a simple altar and incense in his practice of Buddhism is a violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. Because the use of an altar and incense is fundamental or central to the exercise of plaintiff’s religion, and because defendants have failed to show that outright prohibition of such items is the least restrictive means of serving defendants’ legitimate penological objectives, defendants must either allow plaintiff to possess and use an altar and incense in his cell or must offer him the opportunity to use such items regularly in a designated location in the prison facility on terms comparable to those on which members of other religious groups are permitted to participate in religious rituals and ceremonies.

Therefore, as a prevailing party, the plaintiff’s attorney fees were paid. Still most of his complaints were denied.

In this 1992 case, ninja is used to refer to the attire of law enforcement personnel. Recall this previous case of DEA agents in ninja outfits. This case arises with allegation of excessive force, which will become a common theme for future cases involving ninja law enforcement.

MITCHELL L. POPE, Plaintiff, v. CRAIG KLEMENS; SGT. PAT WILSON; DON KNECHTEL; PATTY LUCIANO; CLYDE SMITH; PAUL WEIDNER; and MARK BURNS, All City of Lansing, Michigan Police Officers, Defendants.
File No. 5:90-CV-55
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
1992 U.S. Dist. LEXIS 8686

Decided – February 18, 1992

The case arises from the search of an apartment where the police had previously made a purchase of cocaine (but not from the Plaintiff):

According to plaintiff, the following occurred during the search. The police entered the residence and yelled, “police search warrant.” Two search warrants were put on the counter. Plaintiff states that he thought it was a joke, but when he rounded the corner into the kitchen, he saw a “person with a mask on in a ninja suite [sic] holding a pistol. This was the first person in the door. This person came towards me, and put the pistol at my face with the light on for the sites. This person backed me up a sort [sic] distance till my rear came to the table, and I was there with my hands up and had this gun at my face, pointed between my eyes. . . . This person kicked me in the chest, while I had my hands over my head. He kicked at me while he had me at gun point. And kicked with intent to do grate [sic] bodily harm.”

Based on that,

Plaintiff accuses all defendants of violating his fourth amendment rights on the grounds that there was no probable cause to justify the search and seizure. Plaintiff also states a claim for excessive force against the person allegedly camouflaged in a “ninja” suit who, while pointing a gun at plaintiff, allegedly kicked plaintiff in the chest.

Plaintiff seeks $ 300,000.00 in compensatory damages and the return of all arrest cards and other incriminating information.

Dismissing the claim, the Court writes:

Plaintiff has provided no evidence of any injury or corroborating evidence by any of the other witnesses. Allegations supported by only a scintilla of evidence are insufficient to demonstrate a genuine issue of fact. Accordingly, I find in favor of defendants on plaintiff’s fourth amendment excessive force claim.