Petition for Writ of Certiorari — Alvin Perry Jordan, Petitioner v. Michigan

NO._________

IN THE SUPREME COURT OF THE UNITED STATES

ALViN PERRY JORDAN,

-

Petitioner,

PEOPLE OF THE STATE OF MICHIGAN,

Respondent.

On Petition for Writ of Certiorari to the

State of Michigan Court of Appeals

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

VOLUME I

Alvin Perry Jordan #961277

Petitioner, Pro Se

St. Louis Correctional Facility

8585 N. Croswell Road

St. Louis, Michigan 48880

*NOTICE: This document was prepared with the assistance of a non-attorney prisoner

assigned to the Legal Writer Program with the Michigan Department of

Corrections.

TABLE OF CONTENTS

APPENDIX A: Michigan Court of Appeals Opinion Affirming State Court Judgment of

Conviction and Sentence. People v. Jordan, 2017 Mich. App. LEXIS 367

(Mich. Ct. App., Mar. 7, 2017).

APPENDIX B: Steinberg, Risk Taking in Adolescence, Association for Psychological

Science, 2007, Vol 16, No. 2, p 56.

APPENDIX C: Michigan Supreme Court Order Denying Leave to Appeal. People v.

; 901 N.W.2d 109; 2017 Mich. LEXIS 1785 (2008).

Mich.

Jordan,

APPENDIX A

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Page 1 of 6

2017 Mich. App. LEXIS 367, *

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ALVIN PERRY JORDAN, DefendantAppellant.

No. 328474

COURT OF APPEALS OF MICHIGAN

2017 Mich. App. LEXIS 367

March 7, 2017, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF

APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE

RULES OF STARE DECISIS.

PRIOR HISTORY: [*1] Wayne Circuit Court. LC No. 15-000968-01-FC.

CORE TERMS: sentence, self-defense, gun, murder, phone, defense counsel, mandatory,

imprisonment, offenders, cell, plain error, ineffective, sweatshirts, parole, shot,

premeditated murder, armed robbery, verdict form, resentencing, apartment, robbery, jury

verdict, felony murder, life sentence, apartment building, searches and seizures, ineffective

assistance of counsel, constitutional prohibition, unusual punishment, unpreserved

JUDGES: Before: SERV1TTO, P.3., and STEPHENS and RONAYNE KRAUSE, 33.

OPINION

PER CURIAM.

A jury convicted defendant, Alvin Perry Jordan, of first-degree premeditated murder, MCL

750.316(1)(a), first-degree felony murder, MCL 750.316(1)(b), armed robbery, MCL 750.529,

and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.1

The trial court sentenced defendant to life imprisonment without the possibility of parole for

each murder conviction, and to 15 years to life imprisonment for the robbery conviction, those

sentences to be served concurrently, but consecutive to a two-year term of imprisonment for

the felony-firearm conviction. We affirm defendant's convictions, but remand for resentencing

on his armed robbery conviction, and for correction of the judgment of sentence to specify one

conviction for first-degree murder, supported by two different theories.

FOOTNOTES

1 The jury acquitted defendant of an additional count of felonious assault.

Defendant's convictions arise from the December 29, 2014 shooting death of Will Wright, who

was shot and killed during a robbery after a drug sale. Testimony at trial indicated that Wright

went to an apartment building to sell narcotic pills to Tanzania Corbin, the mother of

defendant's girlfriend. After the sale, as Wright was [*2] exiting the building, he was

approached by defendant. According to a witness, Lee Butler, the two men struggled over a

gun. Defendant prevailed and Wright attempted to run away, but defendant shot him in the

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back. Defendant thereafter went through Wright's pockets and then left.

Both Corbin and Wright's friend, Nathan Lemons, who had accompanied Wright to the

apartment building, denied that Wright was armed with a gun. Corbin also denied seeing

defendant with a gun on the date of the offense, but admitted seeing him with a gun the day

before. According to Corbin, after she heard two gunshots outside her apartment, defendant

returned to her apartment and told her that he had shot Wright. Defendant removed his jacket,

placed it in a closet, and then left. Shortly thereafter, the police arrived and seized a hooded

sweatshirt during a search of Corbin's apartment. The sweatshirt contained blood, and DNA

testing confirmed that the blood matched Wright's DNA. Defendant was also identified as a

"possible contributor" to DNA taken from blood found under fingernail clippings from Wright's

left hand.

I. SELF-DEFENSE

[*3]

On appeal, we first address defendant's argument that defense counsel was ineffective

during

theory

a

such

to

for failing to request a jury instruction on self-defense, despite alluding

claim

counsel

of

assistance

ineffective

an

his closing argument. Because defendant did not raise

limited

is

issue

this

of

review

our

hearing,

evidentiary

an

in a motion for a new trial or request

to errors apparent from the record. People v Snider, 239 Mich App 393, 423; 608 NW2d 502

(2000), citing People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).

Whether a person has been denied the effective assistance of counsel is a mixed question of

fact and constitutional law. People vJordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). To

establish a claim of ineffective assistance of counsel, defendant must show that: (1) counsel's

representation "fell below an objective standard of reasonableness"; and (2) but for counsel's

deficient performance, there is a reasonable probability that the outcome of the proceeding

would have been different. People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012), citing

Strickland v Washington, 466 U.S. 668, 688-694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). This

Court presumes that defense counsel rendered effective assistance and exercised reasonable

professional judgment in all significant decisions. Vaughn, 491 Mich at 670. Defendant must

"overcome the strong presumption that counsel's performance was born from a sound trial

strategy." People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). Because defendant

bears the burden of demonstrating both deficient performance and prejudice, he necessarily

bears the burden of establishing the [*4] factual predicate for his claim. People v Carbin, 463

Mich 590, 600; 623 NW2d 884 (2001).

Whether to request a particular jury instruction can be a matter of trial strategy, and counsel is

given wide discretion with regard to matters of strategy. People v Gonzalez, 468 Mich 636, 644645; 664 NW2d 159 (2003); People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007).

Although defense counsel discussed Butler's testimony that he saw two men wrestling over a

gun, counsel used this testimony, not to argue self-defense, but to argue that defendant could

not be guilty of premeditated or felony-murder, and, at most, was guilty only of second-degree

murder due to the lack of time to premeditate. Counsel also argued that the prosecution had

not shown that defendant took anything from Wright. Counsel further argued that someone

else, perhaps a bystander, could have taken the gun after the shooting.

We cannot conclude that counsel's decision to pursue this line of strategy, and to not request a

self-defense instruction, was objectively unreasonable, particularly considering the lack of

evidence supporting a legally viable claim of self-defense. A person is entitled to use deadly

force in self-defense if the person honestly and reasonably believes "that he is in imminent

danger of death or great bodily harm and that it is necessary for him to exercise deadly force

A person who acts as the

[.J" [*5] People v Riddle, 467 Mich 116, 119; 649 NW2d 30 (2002).

. People v Guajardo,

self-defense

justifiable

in

acted

have

to

found

be

cannot

initial aggressor

300 Mich App 26, 35-36, 43; 832 NW2d 409 (2013). Apart from Butler's testimony describing

an actual struggle for the weapon, very little other evidence supported a finding that defendant

acted in self-defense. Indeed, the great body of evidence directly refuted such a theory.

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Although Butler described a struggle over the gun, he also stated that the gun was never in

Wright's hands while the two men were wrestling. Moreover, Butler testified that after

defendant prevailed in the struggle, Wright was trying to run away when defendant shot him.

The physical evidence confirmed that Wright was shot in the back from a distance of more than

two feet, at an angle consistent with someone bent over trying to run away. Lemons stated that

Wright was unarmed, and Corbin similarly stated that she had never seen Wright with a gun.

Lemons also testified that it was defendant who approached Wright as Wright was exiting the

apartment building after the drug sale. No evidence indicated that Wright approached or

attacked defendant, or acted as an initial aggressor in the confrontation with defendant.

Defendant did not testify about his own version [*6] of the shooting, or offer any witnesses

who were supportive of a self-defense claim.

Given this evidence, counsel's strategy to attack the element of premeditation and to argue the

lack of evidence of an underlying felony to support the felony-murder charge was not

objectively unreasonable. Moreover, to the extent that the testimony describing a struggle over

the gun could be deemed minimally sufficient to support a self-defense instruction, considering

the lack of other evidence supporting a self-defense claim, and the body of evidence refuting

any legal claim of self-defense, it is not reasonably probable that the outcome of the trial would

have been different if a self-defense instruction had been requested and given. Therefore,

defendant was not prejudiced by counsel's failure to request the instruction .2

FOOTNOTES

defendant's guilt

that counsel

note

we

Initially,

argument.

closing

counsel's

during

of second-degree murder

whether to

decision

the

,

Regardless

claim.

a

such

making

not

was

he

that

stated

specifically

concede guilt on a lesser is a matter of trial strategy, which this Court will not secondguess. People v Emerson (After Remand), 203 Mich App 345, 349; 512 NW2d 3 (1994).

2 We also reject any suggestion that defense counsel improperly conceded

II. DEFENDANT'S LIFE-WITHOUT-PAROLE SENTENCES

Defendant argues that his mandatory sentence of life imprisonment without the possibility of

parole violates the constitutional prohibition on cruel and unusual punishment considering his

age, 18 years, at the time of the offense. Because defendant did not challenge the

[*7] this issue is

constitutionality of his mandatory life sentence in the trial court,

defendant's substantial

affecting

error

plain

for

issue

unpreserved. Accordingly, we review this

(1999).

130

NW2d

597

763-764;

750,

Mich

rights. People v Cannes, 460

As defendant observes, in Miller v Alabama, 567 U.S. ; 132 S Ct 2455, 2460; 183 L Ed 2d

407 (2012), the United States Supreme Court held that a sentence of "mandatory life without

parole for those under the age of 18 at the time of their crimes violates the Eighth

Amendment's prohibition on 'cruel and unusual punishments." The Court explained the

rationale behind drawing a distinction between 18-year-old offenders and their younger

counterparts, stating:

To recap: Mandatory life without parole for a juvenile precludes consideration of his

chronological age and its hallmark features—among them, immaturity, impetuosity,

and failure to appreciate risks and consequences. It prevents taking into account

the family and home environment that surrounds him—and from which he cannot

usually extricate himself—no matter how brutal or dysfunctional. It neglects the

circumstances of the homicide offense, including the extent of his participation in

the conduct and the way familial and peer pressures may have affected him.

Indeed, it ignores that he might have been charged and convicted of a lesser

offense if not for incompetencies associated with youth—for example, [*8] his

inability to deal with police officers or prosecutors (including on a plea agreement)

And finally, this mandatory

or his incapacity to assist his own attorneys

.

.

.

.

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punishment disregards the possibility of rehabilitation even when the circumstances

most suggest it. [Id., 132 S Ct at 2468.1

On appeal, defendant urges this Court to extend the holding in Miller to 18-year-old offenders.

As discussed by this Court in People v Skinner, 312 Mich App 15, 23-27; 877 NW2d 482 (2015),

the Miller decision represents a culmination of several decisions by the United States Supreme

Court over the last 30 years that have gradually eased the automatic imposition of harsh

sentencing for young offenders. As noted in Skinner, these decisions are based on the

perceived differences between juvenile offenders and those who have reached the age of

majority. Id. at 23-27. In contrast, defendant points only to a study noting that young adult

brains share common risk-taking or impulse control features with those of juveniles.

Defendant's study does support a position that, globally, mandatory life sentences for young

offenders who have not reached full brain development is somehow unfair, or that the

distinction between a 17-year-old and an 18-year-old is somehow "pure legal fiction." Any

philosophical [*9] merit to defendant's position aside, defendant points to no legal authority to

support his position. Accordingly, we decline defendant's invitation to extend Miller to 18-yearold offenders. The trial court did not violate the constitutional prohibition on cruel and unusual

punishment by adhering to the demarcation between those who have attained the age of 18

years and those under 18 years of age, and by thereby imposing the mandatory sentence of life

imprisonment without parole for defendant's conviction of first-degree murder.

We agree with defendant, however, that the trial court erred by entering a judgment of

sentence reflecting two convictions and two life sentences for first-degree murder. Although the

jury found defendant guilty of both first-degree premeditated murder and first-degree felony

murder, because the two convictions arise from the death of a single victim, they violate the

double jeopardy protection against multiple punishments for the same offense. People v Long,

246 Mich App 582, 588; 633 NW2d 843 (2001). Accordingly, we remand for modification of the

judgment of sentence to specify a single conviction of first-degree murder supported by two

theories: premeditated murder and felony murder. Id.; People vBigelow, 229 Mich App 218,

220-221; 581 NW2d 744 (1998).

III. DEFENDANT'S STANDARD [*10] 4 BRIEF

Defendant raises additional issues in a pro se supplemental brief filed pursuant to Supreme

Court Administrative Order No. 2004-6, Standard 4.

A. ADMISSIBILITY OF EVIDENCE

Defendant challenges the admission at trial of (1) photographs of him that were obtained from

his cell phone, and (2) the hooded sweatshirt recovered by the police during their search of

Corbin's apartment. Defendant argues that each of these items should have been excluded as

evidence because they were obtained through an illegal search. Defendant acknowledges that

he never challenged the admissibility of this evidence in the trial court, leaving the issues

unpreserved. Therefore, our review is limited to plain error affecting defendant's substantial

rights. Cannes, 460 Mich at 763-764. To constitute a "plain" error, the error must be "clear or

obvious." Id. Defendant further argues, however, that defense counsel was ineffective for failing

to seek suppression of this evidence. Because defendant did not raise an ineffective assistance

of counsel claim in an appropriate motion in the trial court, review of that issue is limited to

errors apparent from the record. Snider, 239 Mich App at 423.

"In general, searches conducted without both a warrant and probable cause [*11] to believe

evidence of wrongdoing might be located at the place searched are unreasonable per se."

Lavigne v Forshee, 307 Mich App 530, 537; 861 NW2d 635 (2014). Unless an exception

applies, evidence that has been seized in violation of the constitutional prohibition against

unreasonable searches and seizures must be excluded from trial. Id. at 537-538; People v

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Chowdhuiy, 285 Mich App 509, 516; 775 NW2d 845 (2009).

Defendant correctly asserts that a warrant is generally required before the police may lawfully

U.S. ; 134 5 Ct 2473, 2494-2495; 189 L Ed

search a suspect's phone. Riley v California,

2d 430 (2014); People v Gingrich, 307 Mich App 656, 665-666; 862 NW2d 432 (2014).

Although defendant argues that the police unlawfully searched his phone, he points to no

evidence addressing the circumstances under which the police obtained the photos or other

data from his phone. The lower court record discloses that plaintiff filed a pretrial motion to

admit photos obtained from defendant's cell phone. Plaintiffs brief in support of that motion

specifically states that "[a] search warrant was executed on the contents of Defendant's cell

phone that resulted in 692 images being recovered." Defendant never challenged the veracity

of that statement, and he has presented nothing on appeal to indicate that this assertion is

false or inaccurate, that the referenced warrant was somehow defective, or to establish any

other irregularity. Because the record indicates that [*12] the cell phone photos were

obtained pursuant to a search warrant, and defendant has not presented anything to suggest

otherwise, we conclude that defendant has failed to demonstrate a plain error related to the

seizure or admission of the cell phone photographs. Furthermore, absent any basis for

concluding that the cell phone photos were illegally obtained, defendant's related ineffective

assistance of counsel claim cannot succeed. Counsel is not required to raise a meritless issue.

People v Moorer, 262 Mich App 64, 76, 683 NW2d 736 (2004).

Defendant also challenges the admission of the hooded sweatshirt that the police recovered

during a search of Corbin's home shortly after the offense. "One established exception to the

general warrant and probable cause requirements is a search conducted pursuant to consent."

People v Borchard—Ruhland, 460 Mich 278, 294, 597 NW2d 1 (1999). "The consent exception

to the warrant requirement allows a search and seizure when consent is unequivocal, specific,

and freely and intelligently given." People v Frohriep, 247 Mich App 692, 702; 637 NW2d 562

(2001) (quotation omitted). Defendant lacks standing to assert this issue. "The right to be free

from unreasonable searches and seizures is personal, and the right cannot be invoked by a

(2016); slip op at 5. Therefore,

NW2d

Mich App , ;

third party." People v Mandi,

defense counsel's stipulation [*13] to the sweatshirt's admission was not ineffective

assistance and we deny defendant's request for a remand on this issue.

B. JURY VERDICT FORM

Defendant next argues that the jury verdict form was defective because it did not allow the jury

to choose a "general not guilty" option in which it could find defendant not guilty of all charges.

Defendant acknowledges that there was no objection to the verdict form at trial. Thus, this

issue is unpreserved and our review is limited to plain error affecting defendant's substantial

rights. Cannes, 460 Mich at 763-764. We find no merit to this issue.

Defendant correctly observes that "a criminal defendant is deprived of his constitutional right to

a jury trial when the jury is not given the opportunity to return a general verdict of not guilty."

People v Wade, 283 Mich App 462, 467; 771 NW2d 447, lv den 486 Mich 909 (2009). However,

this is not what occurred here. The jury verdict form used at trial presented the jury with the

following options for count 1, first-degree premeditated murder:

NOT GUILTY

MR

GUILTY OF HOMICIDE—MURDER FIRST DEGREE-PREMEDITATED

OR

GUILTY OF THE LESS SERIOUS OFFENSE OF HOMICIDE-MURDER SECOND

DEGREE [Jury verdict form, p 1.]

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Similar options, including a specific 'not guilty" option, were provided for each of [*14] the

other charged offenses. The verdict form clearly provided the jury with the option of finding

defendant "not guilty" of each charged offense. Thus, there was no error, plain or otherwise. In

addition, because defense counsel is not required to raise a meritless issue, Moorer, 262 Mich

App at 76, counsel was not ineffective for failing to object to the verdict form.

C. ARMED ROBBERY SENTENCE

Defendant also argues, and we agree, that the trial court erred when it imposed a sentence of

15 years to life for defendant's armed robbery conviction. The trial court's sentence violates

MCL 769.9(2), which provides that "[t]he court shall not impose a sentence in which the

maximum penalty is life imprisonment with a minimum for a term of years included in the same

sentence." A violation of MCL 769.9(2) renders a sentence wholly invalid and requires

resentencing de novo. People v Parish, 282 Mich App 106, 108; 761 NW2d 441 (2009).

Accordingly, we vacate defendant's invalid sentence for armed robbery and remand for

resentencing on that offense.

We affirm defendant's convictions, but vacate his sentence for armed robbery and remand for

resentencing on that offense, and remand for correction of the judgment of sentence to specify

a single conviction for first-degree murder, supported by two different theories. [*15] We do

not retain jurisdiction.

/5/ Deborah A. Servitto

/5/ Cynthia Diane Stephens

Is! Amy Ronayne Krause

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APPENDIX C

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Page 1 of 1

2017 Mich. LEXIS 1785, *

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ALVIN PERRY JORDAN, DefendantAppellant.

SC: 155703

SUPREME COURT OF MICHIGAN

2017 Mich. LEXIS 1785

September 12, 2017, Decided

PRIOR HISTORY: [*1] COA: 328474. Wayne CC: 15-000968-FC.

People v. Jordan, 2017 Mich. App. LEXIS 367 (Mich. Ct. App., Mar. 7, 2017)

JUDGES: Stephen J. Markman, Chief Justice. Brian K. Zahra, Bridget M. McCormack, David F.

Viviano, Richard H. Bernstein, Joan L. Larsen, Kurtis T. Wilder, Justices.

OPINION

Order

On order of the Court, the motion to supplement the application for leave to appeal is

GRANTED. The application for leave to appeal the March 7, 2017 judgment of the Court of

Appeals is considered, and it is DENIED, because we are not persuaded that the questions

presented should be reviewed by this Court.

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