Cory Donald v. Lloyd Rapelje

580 F. App'x 277
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 26, 2014
Docket12-2624
StatusUnpublished
Cited by14 cases

This text of 580 F. App'x 277 (Cory Donald v. Lloyd Rapelje) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cory Donald v. Lloyd Rapelje, 580 F. App'x 277 (6th Cir. 2014).

Opinions

OPINION

KAREN NELSON MOORE, Circuit Judge.

The Sixth Amendment guarantees a criminal defendant the assistance of counsel for his defense. Although generally a defendant must show that his counsel’s performance was deficient and prejudicial in order to prevail on a claim of ineffective assistance of counsel, in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court held that there are certain situations where the reliability of a trial becomes so unlikely that the defendant need not show that he was actually prejudiced by the absence. Instead, prejudice is presumed. One such situation is the absence of counsel during a critical stage of trial.

During sixteen-year-old Cory Donald’s criminal trial, his attorney was absent from the courtroom during the testimony of a government witness. Although the [278]*278judge noticed that the attorney was absent, he nonetheless proceeded with the trial without informing Donald that he had a right to have an attorney present or asking Donald if he consented to continuing without his attorney. Donald was convicted of one count of felony murder and two counts of armed robbery and was sentenced to life in prison.

On direct appeal, Donald argued that his attorney’s absence denied him his Sixth Amendment right to effective assistance of counsel. The Michigan Court of Appeals concluded that the testimony that occurred during Donald’s attorney’s absence did not implicate Donald in the crime, and so the absence was not during a critical stage and thus the Cronic presumption of prejudice did not apply. Donald then filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254, and the district court granted a conditional writ of habeas corpus. Lloyd Rapelje, Warden of the Michigan state prison, appeals the district court’s decision. Because holdings of the Supreme Court dictate that the taking of testimony at trial is a “critical stage,” the Michigan Court of Appeals’s failure to apply Cronic to the absence of an attorney during the taking of evidence that implicated Donald, and its conclusion that Donald was not denied effective assistance of counsel was contrary to, and an unreasonable application of, clearly established federal law. Accordingly, we AFFIRM the district court.

I. BACKGROUND

A. Factual Background

On November 14, 2005, Cory Donald (“Donald”) and Rashad Moore (“Moore”) entered Mohamed Makki’s1 (“Makki”) home. While Donald and Moore were inside, Makki was shot and Makki’s acquaintance Michael McGinnis (“McGinnis”) was robbed. Makki died soon after from the gunshot wounds.

Much of the information about that day comes from the testimony of Seante Lig-gins (“Liggins”).2 Liggins testified that on the day of the incident, he gathered with Donald, Moore, Dewayne Sainé (“Sainé”), and Fawzi Zaya (“Zaya”) in a Detroit, Michigan, parking lot. R. 8-8 (9/20/06 Trial Tr. at 143) (Page ID # 2204). While the men drank alcohol and smoked marijuana, Moore and Zaya discussed robbing Makki. Id. at 253-54 (Page ID # 2207-08). Lig-gins testified that the gathering moved on to a nearby vacant house where he saw Sainé and Donald walk to the back of the house. When Donald returned, he was situating something on his hip that Liggins believed was a gun. Id. at 162-63 (Page ID # 2223-24). At some point Moore announced to the group that it was time to go “hit the lick,” and Liggins, Moore, and Donald got into Liggins’s car. Id. at 161, 163 (Page ID #2222, 2224). Moore directed Liggins to drive them to a house at 5251 Kendall Street in Dearborn, Michigan. Id. at 164-65 (Page ID # 2224-25). Moore spoke on his cell phone during the drive. Id. at 164 (Page ID # 2224). Lig-gins stopped the car in front of a house at 5251 Kendall Street. He stayed in the car while Moore and Donald entered the house. Id. at 165 (Page ID # 2226).

The only testimony as to what transpired inside the house came from Michael [279]*279McGinnis. McGinnis testified that a person entered the house wearing a face mask and holding a gun. R. 8-7 (9/19/06 Trial Tr. at 154-55) (Page ID # 1993-94). McGinnis lay face-down on the floor; he heard a person whose voice he did not recognize say “let it go” and then heard two shots. Id. at 156-57 (Page ID # 1995-96). Someone stood over McGinnis, holding a gun to his head and searching through his pockets. Id. at 155-57 (Page ID # 1994-96). The individual took between two hundred and three hundred dollars' and a cell phone from McGinnis’s pockets. Id. at 161 (Page ID #2000). McGinnis testified that he heard someone walk down the basement stairs, return from the basement, and whisper “I got shot, I got shot.” Id. at 158 (Page ID # 1997). The individuals left the house and McGinnis went to the kitchen where he found Makki slumped over and gasping for air. Id. at 158 (Page ID # 1998). McGinnis first took marijuana from the house and $2,400 in cash that was on his person but not taken during the robbery and put those items in his car and then sought assistance from neighbors, who contacted the police. Id. at 162, 164, 166 (Page ID # 2001, 2003, 2005). The police responded to the house around 8:30 p.m. and pronounced Makki dead. R. 8-9 (9/21/06 Trial Tr. at 74) (Page ID # 2389); R. 8-7 (9/19/06 Trial Tr. at 210) (Page ID # 2049).

Liggins testified that Moore and Donald were in the house for approximately seven minutes and that he heard two or three gunshots come from the house during that time. R. 8-8 (9/20/06 Trial Tr. at 165,176) (Page ID # 2226, 2237). Liggins testified that when Moore and Donald returned to the car, both had weapons and Donald said that Moore had shot him. Id. at 168-69 (Page ID # 2229-30). Liggins drove a few blocks away from Makki’s house and saw Saine’s parked car. Id. at 171 (Page ID # 2232). Donald jumped out of Liggins’s car and entered Saine’s car. Id. at 172 (Page ID #2233). Liggins testified that he did not see or hear any phone calls being made during the time between when he left Makki’s house and when he encountered Sainé. Id. at 172 (Page ID # 2233). In a statement to the police, Sainé stated that Donald called him and asked Sainé to pick him up because he had been shot in the foot. R. 8-9 (9/21 /06 Trial Tr. at 214, 215-16) (Page ID # 2529, 2530-31).

Hospital records show that Donald was taken to Sinai Grace Hospital and treated for a gunshot wound to the right foot. Id. at 85 (Page ID # 2400). At trial, laboratory technicians testified that Donald’s DNA was found on the barrel of the murder weapon, but not on the handle. R. 8-7 (9/19/06 Trial Tr. at 86) (Page ID # 1924). Donald’s DNA also matched drops of blood on the carpet and a piece of plastic in Moore’s vehicle. Id.

B. State Proceedings

At trial, the prosecution argued that Moore, Zaya, Liggins, Sainé, and Donald all participated in the plan to rob Makki. The prosecution argued that Moore shot Makki, but that Donald was guilty of felony murder through aiding and abetting.

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Bluebook (online)
580 F. App'x 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cory-donald-v-lloyd-rapelje-ca6-2014.