Petition for Writ of Certiorari — Larry A. McGhee, Petitioner v. Michigan

lAS

NO.

0 5

* * * * * * * * * * * * * * * * * *

IN THE UNITED STATES SUPREME COURT

***************

LARRY

A MCGHEE,

Petitioner,

Duncan MacLaren,

Respondent,,

ON PETITION FOR WRIT OF CERTIORARI TO

THE MICHIGAN SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

i

(f?7C,

-t4L,

hi! LARRY A. MCGHEE

LARRY A. MCGHEE # 501411

Kinross Correctional Facility

4533 W Industrial Park Dr.

Kincheloe, Michigan 49788

r

L

TT

TTi7.TT1

I

TABLE OF CONTENTS

APPENDIXS

i

INDEX OF AUTHORITIES

ii-iv

QUESTIONS PRESENTED

v

OPINIONS BELOW

1

JURISDICTION

1

US CONSTITUTION

-

1-3

MICE. CONSTITUTION

2-3

STATUTE

3

SUMMARY OF ARGUMENT

3-10

STATEMENT OF THE CASE

10-13

LEGAL ANALYSIS

13-24

argument i

1319

argument ii

19-23

argument iii.

23-24

CONCLUSION

24

RELIEF REQUESTED

24

1

ATTACHED APPENDIXS

Appendix--A- Michigan Supreme Court Order

Appendix-B- Michigan Court. of Appeals ORDER

Appendix-C- Trial Court ORDER

Appendix-D- Search Warrant AFFIDAVIT

Appendix-E- Forensic Laboratory REPORT

Appendix-F- Grand Jury Testimony Northern

Appendix-G-- Police Statement Northern

U

RZEX c' 14JI1tfl[FB

cases

ten

pagas

V PL=W Jrey,

530 LE 466, 477 (2O)

)O,2324

a1iin V tILAW PL-Xicol

564 US 647, 654 n.1 (MI)

a)

a1ifornia V Gsn

399(s149,158(19)

Cra.tucd V

""".."

shiiton,

541W36,69(24)

..

EWSLn

qitts V Dxy,

469 US 387, 396 (1965)

..........

Frmks V D1awa,

483 US 154, 155-56 (1978)

Gice V

514 US 115, 1W (1995)

Illinois V

462 US 213 (1983)

Jonas V Uiit& States,

362 US 257, 269 (190)

Fj=les V N3rzay&

556W 111, 122 (2O9)

72,23

passim

23

..........

14,15

14,15

.

.........

17

t1er-Diaz V M3achutt.s,

lbrter V L'ri2oJiuii,

558w3,3940(.200)

7,8

Po V

562 US 115, 121-23 (2D10)

19

&o V Unted States,

287 US 2X*, 210-11 (1932)

.........

6,19

Smith V Robbim,

528 US 259 (X@)

22

ill

Stricklard V Nadiingtrm,

U-ite3 States V Crcnic,

46 W 6Q, 654 (1984)

......o..

uiiw St@t@o V &itte

83 Fod 374, 377-78 (Th Cir. 20)

22

7,18,19

Ulited StAL63 V GriJ,

547w 90, 91-102 (2)

...,......

19

Ulited States V

158 F3d 913, 923 (6Th Cir. 1998)

..........

7

Uiit SLa-UZ V V€itrc

380w102, 10&(1965)

LAIJAaffo V IflhJDi.s,

587w 50 (2O12)

14

........

21

OI}1RCPII\UCN

W: LaFave Sar a seiz=e,

§3.7 at 338 (3d. 3d. 19)

..........

7

E Onst. )¼n. IV

...,......,

pawilb

1E Q3t. Ai. VI

.......o..

passill,.

i'i srs 07BI=GAL AMMUC

MIQ1IGN (flUJICNL £ISIQ

Mich. axot. 1963.

Art I. §11

Mich. (rt. 1963.

Act 12O

NIcHEGN ST1tJ1uY EWISIN

t.t1333.7401(2)(a)(i)

pssin

1'A

V

QUESTIONS PRESENTED

WHETHER THE TRIAL COURT ERRED IN FINDING

THAT PETITIONER FAILED TO SHOW ENTITLEMENT

TO RELIEF PURSUANT TO MCR 6.508 WHERE TRIAL

COUNSEL WAS INEFFECTIVE WHEN TRIAL COUNSEL

FAILED TO CHALLENGE THE VERACITY OF THE

AFFIDAVIT THAT WAS USED TO PROCURE A SEARCH

WARRANT WHERE CONFLICTING TESTIMONIES WERE

GIVEN BY INFORMANT TO FEDERAL AND LOCAL

GRAND JURIES AND STATEMENT MADE CONTRARY TO

THOSE TESTIMONIES AND GOVERNMENT AGENT

KNOWINGLY AND INTENTIONALLY SHOW A RECKLESS

DISREGARD FOR THE TRUTH USING STALE

INFORMATION AND TRIAL COUNSEL FAILED TO

REQUEST A FRANKS HEARING.

ii

WHETHER THE TRIAL COURT ABUSED ITS

DISCRETION IN DENYING RELIEF WHERE TRIAL

COUNSEL WAS INEFFECTIVE WHEN TRIAL COUNSEL

WAIVED PETITIONERS RIGHT TO CROSS EXAMINE

HIS ACCUSER

B. WHETHER THE TRIAL COURT ERRED IN FINDING

THAT PETITIONER FAILED TO SHOW CAUSE AND

PREJUDICE WHERE PETITIONER WERE RENDERED THE

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

WHEN APPELLATE COUNSEL FAILED rp

FILE THE

CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL

COUNSEL.

iii

WHETHER

THE

TRIAL COURT DENIED THE

PETITIONER THE DUE PROCESS OF THE LAW WHEN

IT SENTENCE PETITIONER UNDER A STATUTE THAT

WAS OUTDATED DURING THE PENDENCY OF

PETITIONERS' CASE.

1

* * * * * * * * * * *

OPINIONS BELOW

The

Michigan

Supreme

Court

DENIED

Petitioners' Application For Leave to Appeal,

holding that the Petitioner failed to meet

the burden of establishing entitlement to

Relief under NCR 6.508(D), in doing so,

DENIED Petitioners' Motions to remand For an

Evidentiary Hearing to People V Ginther,

Franks V Delaware, and for Resentencing,

Dated October 30, 2018. (see Appendix-A

-Michigan Supreme Court Unpublished Opinion

Case No 157460).

The Michigan Court of Appeals DENIED

Application For Leave to Appeal, holding that

the Petitioner failed to establish that the

Trial Court Erred in DENYING the Notion For

Relief From Judgment. (see Appendix-8

-Michigan Court of Appeals Unpublished

Opinion Dated February 22, 2018, Case No

340080).

The Trial Court DENIED Petitioners' Notion

For Relief From Judgment in a lengthy Opinion

that was contrary to Supreme Court Precedent,

Dated May 25, 2017. (see Appendix-C- Trial

Court Op inion, Case No 01-177766-FC).

JURISDICTION

This Petition For Writ of Certiorari is filed

within 90 days of the October 30, 2018,

Michigan Supreme Court ORDER DENYING

Petitioner Relief, as required by US Supreme

Court Rule 13(1).

This Court has Jurisdiction pursuant to 28

U.S.C. §1254(1).

UNITED STATES CONSTITUTION AND

2

MICHIGAN CONSTITUTION AMENDMENT

U.S. Constitution Am. IV

"the right of tne people to be secured in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no warrant shall

issue, but upon probable cause, supported by

oath and affirmation, and particularly

describing the place to be searched, and the

person or things to be seized.

Mich. Const. 1963, Art 1, §11.

"the persons, houses, papers and possessions

of every person shall be secured from

unreasonable searches and seizures. No

warrant to search any place or to seize any

person or thing shall issue without

describing them, not without probable cause s

supported by oath or affirmation. The

provision of this section snail not be

construed to bar from evidence in any

criminal

proceeding any narcotic drug,

firearm, bomb, explosive or any other

dangerous weapon, seized by a peace officer

outside tne curtilage of any dwelling house

in this State".

UNITED STATES CONSTITUTION AND

MICHIGAN CONSTITUTION AMENDMENT

U.S. Constitution Am. VI

"in all criminal prosecution, the accused

shall enjoy the right to a speedy and public

trial by an impartial jury of the State and

District wherein the crime shall have been

committed, which the District shall have been

previously ascertained by law, and to he

informed of the nature and cause of the

accusation, to be confronted with the

witnesses against him, to have compulsory

process for obtaining witnesses in his favor,

and to have the assistance of counsel for his

defense".

3

Mich. Const. 1963, art 120.

Constitution adopted

Constitution

States

here, the Michigan

verbatim the United

Amendment"

STATUTORY PROVISION

3. MCL 333.7401(2)(a)(i)

"MCL 333.7401(2)(a)(i), requires that a

itlinifluni term of 20 years in prison for

or more of a

grams

possession of 650

controlled substance'.

MCL 333.7401(2)(a)(ii)

"MCL 333.7401(2)(a)(ii) requires not more

than 30 yeara in prison for a person in

possession of 450 grams, but less than 1,000

gratis

************

summary of arguments

.1

PETITIONER WAS RENDERED THE INEFFECTIVE

ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL

FAILED TO INVESTIGATE CONFLICTING EVIDENCE

PRESENTED TO BOTH THE POLICE AND GRAND JURIES

AND EVIDENCE THAT GOVERNMENT KNOWINGLY AND

INTENTIONALLY SHOWED A RECKLESS DISREGARD FOR

A SEARCH WARRANT

THE TRUTH IN PROCURING

CHALLENGE THE STALE EVIDENCE USED TO PROCURE

THE SEARCH WARRANT AND REQUEST A HEARING TO

ESTABLISHED PROBABLE CAUSE PURSUANT TO FRANK

V Delaware.

The United States Supreme Court held in

Franks V Delaware, 483 US 154, 155-56 (1978)1

"that where the defendant makes a substantial

preliminary showing that false statements

knowingly and intentionally, or with reckless

disregard for tne truth, was included by the

4

affiant in the warrant affioavit, and if the

allegedly false statement is necessary to the

finding of 'Probable Cause' the Fourth

Amendment requires that a Hearing be held at

the defendants' request Should an allegation

of perjury or reckless disregard for the

truth be established by a preponderance of

the eviaence the affiaavit as to the

allegations snould be set asiae and if the

remaining affidavits are insufficient to

support Probable Cause" tnen the search

warrant must be voided and the Fruits of the

search excluded. EMPHASIS ADDED.

Here, Trial Counsel knew that Lamark Northern

testimony was inconsistent before two Grand

Juries, and again made conflicting statements

to the Police concerning Petitioner and drug

activities in 1994 and 1995.

The alleged incident was outlined in DEA

Agent Furmack April 26, 1997 Police Report.

Here, Agent Furmack states: "Mr. Northern was

a drug dealer and that Mr. Northern informed

him of drug transaction between Joe AbrahaLi,

Mr. Abraham was Mr. Northern drug supplier.

The report went on to include Demar Garvin,

Roderick Lee and Willie Adams, who went to

Mr. Abrahams' home in Belleville to pick u

10 Kilograms. Accordingly, Mr. Northern

stated that 8 Kilograms were for Willie

Adams, 1 Kilogram was for Mr. Garvin, and 1

Kilogram were to be divided between Mr.

Garvin, Mr. Marvin Smith, Mr. Ahmed Anthony

and himself. Petitioner was not mentioned in

this transaction.

Next, Mr. Northern testified before a Federal

Grand Jury, here Mr. Northern repeated the

trip to Mr. Abraham house for the 10

Kilograms, he stated that that trip occurred

in 1995, but, although the same incident, tne

car in which they drove was now Mr. Roderick

Lees' car, and they had to wait until Mr.

Abraham get the drug. He further testified,

that while waiting Roderick Lee. informed

them that 2 Kilograms were for Willie Adams,

5

and the rest were to be divided between Mr.

Roderick and Mr. Deivar. Here, Mr. Northern

denied the truthfulness of DEA Agents'

Furmack account of the statement made. There

was no mention of Petitioner.

Next, Mr. Northern again testified, this time

before the Oakland County Grand Jury, here

Mr.. Northern for the first time implicated

Petitioner, this version of eventa different

from the previous two accounts. This time Mr.

Northern testified that he can't remember tne

type of car they rode in, and this time, it

was Mr. Roderick and Mr. Nathaniel Lee that

had pooled money with Willie Adams, Toodaloo

Adams and Petitioner to purchase the cocaine.

Mr. Northern testimony to the Federal Grand

Jury, Oakland County Grand Jury and that to

DEA Agent Furmack was inconsistent in facts.

Here, Agent Sharpe failed to inform the

Magistrate Judge tnat the affidavit included

inconsistent statements made by Mr. Northern

in (1) Mr. Northern Police Report to Agent

Furmack, (2) Oakland County Grand Jury, and

(3) Federal Grand Jury.

The search warrant was not issued until 1998.

Agent Sharpe failed to tally the number of

buys Mr. Northern made, in an effort to

mislead tne Magistrate.

The Trial Counsel was ineffective where

Counsel failed to Notion the Trial Court to

suppress the evidence for lack of Probable

Cause.

In order to obtain New Trial, a defendant

must show: (1) Counsels' performance fell

below an objective standard of reasonableness

and (2) but for Counsels' deficient

performance,

there

is

a

reasonable

probability that the outcome would have been

different. Strickland V Washington, 466 US

668, 687 (1984). Strickland, at 691., permit

Counsel to make a reasonable decision tnat

makes particular investigations unnecessary.

It can not be said that Trial Counsel was

performing Trial Strategy, knowing that the

warrant was defective, and that there was "No

Probable Cause pursuant to Franks V

Delaware, 438 US 154, 171-2 (1978). A Franks

nearing would have put the veracity of the

Government evidence to the test.

STALENESS

In this case, Mr. Northern alleged statement

and testimonies before the Grand Juries

occurred sometime in 1994 and 1995

respectively. The search warrant was not

issued until 1998. DEA Agent Furijiack report

was not generated until April 26, 1997, some

2 and 3 years since the Grand Juries

testimonies and 4 years before the issuing of

the Warrant by the Magistrate Judge

"The Probable Cause showing may have grown

STALE in view of the time that has passed

since the warrant was issued". The facts in

an affidavit supporting a search warrant must

be sufficiently close in time to the issuance

of the warrant and the subsequent search

conducted so that Probable Cause can be said

to exist as to the time of tne search, and

not simply, as of some time in the past.

EMPHASIS ADDED., see Sagro V United States,

287 Us 206, 210-11 (1932).

Here, Petitioner was using the home as rental

property, and had not been to the home in

some time, as indicated by the next door

neighbor Marilyn Bender, whom testified that

although she lived next door to 483 Montana

for some time, she knew the resident at the

time as Mr. Butler and she had never seen

Petitioner. (Trial Transcript Vol II, page

241-243).

Mr. Michael Butler was renting the property

at 483 Montana, and claimed to have moved out

of the hone, leaving the keys on the kitchen

7

table because Petitioner did not want Mr.

Butler recently paroled brother residing in

the home. (Trial Transcript Vol II, page 210225)

When looking at the totality of the

circumstances, coupled with Petitioners

personal information being put in a box and

stored in a back bedroom closet. Can not be

reasonably to establish that Petitioner main

resident was the hoie in question.

Stale information cannot, at least alone,

provide the basis for Probable Cause. United

States V Frechette, 583 F3d 374, 377-78 (6th

Cir. 2009). That Court held: "this is because

Probable Cause determination is concerning

with facts relating to a presently existing

condition. United States V Spikes, 158 F3d

913, 923 (6th Cir. 1998). W. LaFave, Search

and Seizure §3.7 at 338 (3o. ed. 1996)'.

That Court further explained: "the staleness

inquiry depends on the inherent nature of the

crime. Frechette, at 378. Insomuch, that

Court reasoned: 'in the contents of drug

crimes information goes stale very quickly

because drugs are quickly sold or consumed".

EMPHASIS IN ORIGINAL.

In allowing the staleness of tne 1994 and

1995 evidence to go uncontested, Trial

Counsels' representation fell well below Lfle

assistance that is guaranteed a Defendant

under the Sixth Amendment. Where counsel

failed to conduct a thorough investigation of

possible mitigating evidence. Porter V

McCallum, 558 US 30. 39-40 (2009).

ii

TRIAL COUNSEL WAS INEFFECTIVE WHEN COUNSEL

DENIED PETITIONERS' RIGHT TO CONFRONT HIS

ACCUSER THAT ACCUSED PETITIONER OF POSSESSION

MORE THEN 650 GRAMS OF NARCOTICS WHICH

REQUIRED A MANDATORY SENTENCE OF 20 YEARS OR

CHALLENGE THE ANALYSIS REPORT OF DENNIS E.

LIPPERT WHERE THE NARCOTICS WAS LESS THEN 5

GRANS OVER THE 650 THRESHOLD.

In this case, the Government entered into the

evidence several Laboratory Report prepared

by Dennis E. Lippert of the State Police

Forensic Laboratory. These report alleges

that the aount of Narcotics found at tne

Montana street home weighed 654.2 gra.t15.

The Sixth Amendment [GUARANTEE] a Defendant

the right to confront his accuser, unless,

tne witness are unavailable for Trial and the

Defendant had an opportunity to cross examine

the witness in a prior proceeding. Crawford V

Washington, 541 US 36, 69 (2004).

Petitioner had no opportunity to cross

examine or crialienge the report prepared by

Dennis E. Lippert, tne reports were

introduced at Trial

to

establish

the

substance found

and

the weight of the

substance. Insomuch, the weight of the

substance

could

potentially

increase

Petiti oners ! sentence.

Trial Counsel was ineffective in the failure

to object or seek

to cross examine the

reports produced to increase Petitioner

sentence. This Court held in Porter V

McCallum, 558 US 30, 39-40 (2009): "the duty

of an Attorney is to conduct a thorough

investigation of possible mitigating evidence

is well established by [OUR] cases". Id,.

Strickland, at 688.

Here Petitioner was prejudice by Trial

Counsel deficient performance during the

course of Trial. Had Counsel challenged tne

Warrant on the basis of: (1) inconsistent

statements and testimonies, (2) staleness of

the evidence and (3) that DEA Agent Jerome

Sharpe knowingly and intentionally showed a

reckless disregard for the truth in procuring

a search warrant. Pursuant to Franks V

Delaware, 483 US 154, 155-56 (1978), Coun3el

could have showed that the warrant was

"DEFECTIVE" and insufficient, to support

"Probable Cause". Albeit, Counsel could have

shown by a preponderance of the evidence.

To obtain relief on the basis on Ineffective

Assistance of Counsel, the Defendant as a

general rule, bears the burden to meet two

standaros.

First

Defendant

must

show

deficient

performance

that the Attorney

errors was so serious that Counsel was riot

function as the Counsel guaranteed the

Defendant by the Sixth Amendment. Stricklano,

at 687. Second, the Defendant must show that

the Attorneys' error prejudiced the defense.

Ibd.

iii

PETITIONER WAS DENIED THE DUE PROCESS OF THE;

LAW WHERE THE TRIAL COURT SENTENCE PETITIONER

PURSUANT TO MCL 333.7401(2)(a)(i) THAT WAS

AMENDED PURSUANT TO MCL 333.7401(2)(a)(ii)

DURING THE PENDENCY OF PETITIONERS' CASE.

Here, Petitioner was charged under MCL

333.7401(2)(a)(i), wnich require a mandatory

minimum

prison

term of 20 years for

possession of 650 grains or more of a

controlled substance.

In 2003, the Michigan Legislature Awenaed

that

Statute

pursuant

to

MCL

333.7401(2)()(ii), unuer the new Aiiendment,

the Statute provides: "that a person wno

possessed a controlled suostance in the

amount of at least 450 grams, but less tnen

1,000 grams,

was

guilty of a Felony

punisnable by imprisonment for not more than

30 years, or a fine of not more trian

$500,000.00 or both.

Had the Trial Court properly sentence the

Petitioner, Petitioner would have been

sentence less then the mandatory 20 years in

prison

Under the Michigan Sentencing Scheme, a

10

Defendant will typically be given an

indeterminate sentence MCL 769.8. The

maximum sentence under truis system is set by

law. MCL 769.8(1).

Under the Sixth Amendment to the United

States Constitution, a Criminal Defendant is

guaranteed the right to a speedy and public

trial, by an impartial Jury. The Sixth

Amendment right to a Jury Trial, considered

together with the Due Process Clause of the

Fourteenth Amendment, guarantees Criminal

Defendants' to a Jury determination that he

is guilty of every element of the crime witn

whicn he is charged beyond a reasonable

doubt Apprendi V New Jersey, 530 US 466,

477 (2000).

Here, the sentence of 20 to 30 years in

prison was significantly increased where the

Trial Court relied on an outdated Michigan

Statute which requires a mandatory 20

years. Where Petitioner is a first time

offender.

In this case, the Amended Statute went into

effect on March 1, 2003, Petitioner was

found guilty by a Jury on May 28, 2004, and

was sentence on July 1, 2004

************

STATEMENT OF THE CASE

Petitioner was charged with: 1 Count of

Possession N/Intent to Deliver Over 650

grams of Cocaine" contrary to MCL

333.7401(2)(a)(l), 1 Count of "Possession

N/Intent to Deliver Heroin Under 50 grams"

contrary to MCL 333-7402(2)(a)(iv), and 1

Count of Possession N/Intent to Deliver

Marijuana"

contrary

to

MCL

333.7402(2) (d) (iii).

This case stem from the statement made to

the DEA Agent Randy Furmack by Hr. Lamark

Nortnern and the testimony in two Grand

Juries.

11

It is unclear how DEA Agent Furmack and Mr.

Northern cae into contact with one another,

albeit, Mr. Nortnern testified that he

Qurchased Cocaine from Petitioner in 1994 or

1995 in increments of 7 grams and 28 grainsDEA Furmack tnen related the information

received from Mr. Northern to Special Agent

Jerome Sharpe. As set forth in DEA Agent

Furmack April 26, 1997 report, Mr. Northern

further alleged: 'that he was a drug dealer,

that ne recalled a drug deal between Joe

Abraham, wno was Mr. Nortnern drug supplier,

Mr. Northern indicated that Mr. Demar Garvin

and fir. Roderick Lee went to Mr. Abrahali

nottie in Belleville, that they made the trip

in tic. Willie Adams' blue Cadillac to pick up

10 Kilogram of Cocaine. tic. Northern alleged

tnat 8 Kilograms were for Mr. Adams, 1

Kilogram was for Mr. Garvin and 1 Kilogram

was to be dividea up between fir. Garvin, Mr.

Smith, Mr. Ahmed Anthony and Mr. Northern.

On July 29, 19971 Mr. Northern testified

before a Federal Grand Jury in Detroit, Mr.

Northern recounted the statement given, this

L ime Mr. Northern alleged that he, Mr.

Roderick and Mr. Garvin went to Mr. Abraham

home to purchase 10 Kilos' that this incident

occurred in 1995, this time Mr. Northern

alleges that they went in Mr. Roderick car,

ana that they nad to wait to yet the drugs,

while waiting Mr. Roderick informed them that

2 Kilos were for Mr. Adams and the rest were

to oe divided between Mr. Roderick and Mr.

Dinar. fir. Northern denied that the Police

report by DEA Agent Furmack were accurate.

Later, Mr. Northern testified before the

Oakland County Grand Jury, in tni3 testimony,

Mr. Northern jm.iijcaced Petitioner, this

time, Mr. Northern te s tified that ne couldn't

remember wnat type of car tney rode in and

that tic. Roderick ana Mr. Lee had pooled the

money with Mr. Willie Adams, Toodaloo Adams

ana Petitioner to purchase the Cocaine, that

Mr. Willie Adams were getting at least 2

12

Kilos, and Mr. Toodaloo Auans and Petitioner

were getting 1 each.

Aithougn trie alleged incident occurred in

1994 and 1995 respectfully.

The warrant

for the 483 Montana nome in

Pontiac, Michigan was procured in 1998.

During the execution of the Search warrant of

the 483 Montana hoc1te, the police seized

Marijuana found behind a hidden panel in the

bathrooii, (Trial Transcript Vol II, pages

111), Cocaine was found in a green box

containing a knee brace, also in the

bathroom, (Trial Transcript Vol II, pages

154-156), heroin was found in a Fritos bag in

the packet of a jacket flanging in the closet,

(Trial Transcript Vol II, page 176), Cocaine

was found in the console of a 1981 Grand Prix

parked in the garage, (Trial Transcript Vol

II, page 159) The State Police Crime Lab

reported that the co1ibined weight of the

Cocaine was 654.2 grams, (Preliiinary Hearing

Transcript 3/21/10, page 85). Also found as

proof of resicency were documents in the name

of Larry McGhee, these documnts had been

stuffec in a paper bag by the tenants and

laced in a closet" (Trial Transcript Vol II,

page 224).

Mr. Michael Butler testified tnat he had

rented the 483 Montana home from Petitioner

for more then a year, that Petitioner did not

want Mr. Butler recently Paroled brother to

move in the home, and told Hr. Butler to

wove, Mr. Butler was said to nave iiioved out

in August 1998, (Trial Transcrit Vol II,

pages 210-225)

Ms. Marilyn Bender testified that she lived

next door to the 483 Montana resident, that

she knew Mr. Butler as the resident of the

home, that Hr. Butler moved out and someone

else moved in and she saw a lot of cars

hece, that she never saw Petitioner at the

home and did not recognize Petitioner in

Court, (Tcial Transccit Vol II, page 241-

13

243).

Mr.

Lamark No r t h er ri testified to buying

Cocaine from Petitioner in 1995, and admitted

that he was testifying in exchange for a

favorable outcome to his own drug case,

(Trial Transcript Vol III, pages 57-58).

Petitioner argue that the Property was used

as rental Property, That he resided in

Atlanta Georgia, where he was apprehended in

2001, further Petitioner look to the items

found in the resident at the time of the

search, and reason, that had the resident

oeen Petitioners' primary resident, than why

would Petitioners' belonging be stuffed in a

paper bag in the closet. The totality of the

circumstances does not fit the allegations .

Tne Jury founa Petitioner guilty as charged

on May 28, 2004.

On July 1, 2004, Petitioner was sentence to:

20-30 years for Count 1, Possession with

Intent to Deliver over 650 9r5ti5 of Cocaine,

Count II 1 to 20 years for Possession with

Intent to Deliver Heroin under 50 grams, and

Count III 90 days for Possession with Intent

to Deliver Marijuana.

LEGAL ANALYSIS

i. ineffective assistance of trial counsel

probable cause

DEFICIENT PERFORMANCE BY TRIAL COUNSEL

In the case before the Court, Government

Agent

Jerome

Sharpe

knowingly

and

intentionally showed a Reckless disregard for

the truth in procuring a Search Warrant for

Petitioners rental property, when Government

Agent presentea conflicting testimonies and

statements beforet the Magistrate .

A reviewing Court must deterli'iine whether the

14

Magis trate bed a substantial

basis

for

concludjnq that Probable Ceuse exist.

Illinois V Gte., 462 US 213 (1983). The

United States Sureme Court bela that d rigid

application of such a two pronged test was

not required to establisn a substantial basis

for crediting hearsay. Gates, at 231 n 6,

238 Rather

Probable Cause determination

snould be based on the totality of the

circumstance.

A claim of Probable Cause existence is set

forth in a sworn Affidavit by Law enforcement

seeking a Warrant, Tne Affidavit must contain

facts detailing the underlying circumstances

which lead the Affidnt to believe that

Probable Cause exist and can be found on

hearsay. United States V Ventresca, 380 US

102. 108-09 (1965). Moreover, the Affidavit

estaolishing Probable Cause may be based on

personal observation of another person vino

supplied the information to the Affiant so

long as a substantial basis for crediting the

hearsay is presented. Jones \T United State,

362 US 257, 269 (1960).

Here,. Government Agent Sharpe in procuring

the Search Warrant, failed to provide the

issuing Megistrate with the "inconsistent"

testimonies before the local aria Federal

Grano Juries, ana the inconsistent statement

made to Government Agent Furmack.

Tne Affiant neither observed tne inforiiiant,

nor sough to verify the information.

"The task of the issuing Magistrate is simply

to make a practical, common sense decision

nether, given all the circumstances set

forth in the affidavit before hi,.!, including

the

veracity and

bsi j of knowledge of

persons supplying hearsay information, there

is a fair probability that contraband or

evidence of a crime will he found in a

particular place. Gates, at 238.

A reviewing Court must [only] determine

15

whether the Magistrate had a substantial

basis for concluding that Probable Cause

existed. Gates, at 238-39.

In Jones V United States, 362 US 257 (1960).

Tnis Court held: "an Affidavit in support of

a search warrant was challenged as

insufficient because it rested wholly on

hearsay, the Affiant did not personally

observe the alleged illegal activity Jones,

at 257. In particular, the Affiant averred

tnat an unnamed informant told him that the

defendant

was

involved

in

narcotics

trafficking and kept heroin in nis apartment

for that purpose. Jones, at 268. Tne

informant also claimed to nave purchased

narcotics from the oefenoant at the

apartment. Tne Affiant further indicated that

the informant nad given him information on

previous occasion wnicn was correct and that

other sources had also provided the sae

information about the defendant. Jones1 26869. The Affiant averred, the defendant was an

admitted user of narcotics. Jones, at 269.

Tne Jones Court held that the Affidavit

established Probable Cause because there was

a Substantial basis for crediting the

hearsay. Jones, at 267-68. Tne Jones Court

went on to explain: 'that it the Affiant had

nerely been told that the defendant was

selling narcotics in his apartment, such

information may have not been enough to

support a warrant". EMPHASIS ADDED. Jones, at

271.

In failing to Motion the Trial Court for a

Hearing to test the veracity of the warrant,

due to the inconsistent testimonies made to

both the Federal Grand Jury and the Oakland

County Grand Jury, and the statement made to

the police concerning Petitioners' drug

activities, Trial Counsel performance fell

way below the objective standard, where a

Motion pursuant to Franks V Delaware, 483 US

154 (1978), would have voided the warrant.

Tne Franks Court held:

16

"to mandate an evidentiary hearing, the

challengers' attack must be more than

conclusionary and must be supported by more

than a mere desire to cross examine. The

allegation of deliberate falsehood or

reckless

disregard

must

point

out

specifically with supporting reasons, the

portion of the warrant Affidavit tnat is

claimed to be false, it must also be

accompanied with an offer of proof, including

Affidavits, or sworn or otnerwise reliable

statements

of

the

witnesses,

or

a

satisfactory explanation of their absence".

"if these requirements as to allegations

and offer of proof are taet, and if when

material that is the subject of the

allegation falsity or reckless disregard is

set to one side, there remains sufficient

content in the warrant Affidavit to support a

finding of Probable Cause, no hearing is

required, [BUT] if the remaining content is

insufficient, the defendant is entitled to a

hearing

if, after a hearing a defendant by a

preponderance of tne evidence, that the false

statements was included in the Affidavit by

the Affiant knowingly and intentionally, or

with the reckless disregard for the truth,

and the false statements was necessary to the

finding of Probable Cause, then the Search

Warrant must he voided and the Fruits of tne

search excluded from the Trial to the same

extent as if Probable Cause was lacking on

the face of the Affidavit". Franks, at 15556.

In Franks, the defendant in a State criminal

Trial claimea that his Fourtn Amendment

riyns were violated in connection with the

Trial Courts' failure to allow defendant to

challenge the veracity of the Affidavit for a

search warrant under which clothing and a

knife had been seized, and thac such clothing

and knife should have been excluded at his

17

prosecution for rape. This Court neld: "We

will not view the admission of such evidence

as harmless beyond a reasonable doubt' wnere

the sole issue at the Trial nad been whether

tfle woman with wnom the defenoant admitced

naviria sexual relations had consented to tne

relations, and there is no assurance that if

warrant had been quashed and the knife

excluded from Trial as evidence, the Jury

would have found no consent as it had,

particularly, in view of there having been

other countervailing evidence on the issue".

Franks, Id,

Unfortunately, in this case, Trial Counsel

effectively denied Petitioners right to

challenge the veracity of the Affidavit that

the Government used to procure a Search

Warrant of Petitioners rental property.

Moreover, the challenge to the Affidavit at

Trial could have 'VOIDED" the search warrant

and excluded evidence in Petitioners State

Criminal Prosecution.

Petitioner has met the burden of Deficient

performance by Trial Counsel. 'To establish

Ineffective

Assistance

of

Counsel,

a

defendant

must

show

both

deficient

performance by Counsel and prejudice. Knowles

V Mirzayance, 556 US 111, 122 (2009). To

establish deficient performance, a person

challenging a conviction must show that

Counsels' representation fell below an

reasonableness.

objective

standard

of

Strickland, at 688.

The error in failing to challenge the

Affidavit, fell below an objective standard

of reasonableness, where Petitioner was

pitted against charges and consequently,

convictions in the State Prosecution.

PREJUDICE TO PETITIONER

Had Trial Counsel Motioned the Trial Court to

have the Search Warrant Voided and the

evidence seized excluded, there is a"HIGH"

18

probability that Petitioner would not have

been convicted of the within charges, where

tne evidence would have been excluded from a

Criminal Prosecution. Franks, at 155-56.

Although

this

Court afford deference to

Counsels "STRATEGIC" decisions. Strickland,

at 690-91. For this defence to apply there

must he some evidence that the decision was

just that: STRATEGIC. EMPHASIS ADDED.

These cases also make clear that Counsels'

decision to fail to discharge that duty can

not be strategic. The only conceivable

strategy

that

might

support

forgoing

Counsels' ethical obligations under these

circumstances would be a reasoned conclusion

that further investigation is futile and

thus, a waste of valuable time. Strickland,

at 691.

STALENESS

Again, Trial Counsel was Ineffective in the

failure to challenge the STALENESS of the

information used by the Government to procure

a Search Warrant for Petitioners' rental

property.

Here, Mr. Northern alleges that drug

transaction between himself and Petitioner

occurred in 1994 and 1995. Mr. Northern did

not part with this information to DEA Furmack

until Mr. Northern himself was caught with

drug.

Petitioner submit, that the years between the

allegations and the time it took to procure a

Search Warrant stale the information, thus,

lose any Probable Cause.

In United States V Frechette, 583 F3d 374,

377-78 (6th Cir. 2009), that Court held:

"Stale information cannot, at least alone,

provide the oasis for Probable Cause. The

Court went on to explain: "this is because

Probable Cause determination is concerning

19

witr facts relating to a presently existing

condition. The staleness inquiry depends on

the inherent nature of the crime. Frechette,

at 378 In the content of drug crimes,

information goes stale very quickly because

drugs are quickly sold and consumed. Facts

is, an Affidavit supporting a Search Warrant

must be sufficiently close in time to the

issuance of the warrant and the subsequent

searcn conducted so that Probable Cause can

be said to exist as to the time of the search

and not simply as of some time in the past.

V United States, 287 US 206, 210-11

United States V Grubbs, 547 US 90,

(1932).

91-102 (2006).

Here, had Trial Counsel challenged the

Affidavit on the basis of Probable Cause,

where the information used to procure the

Search Warrant was stale There is a

Probability that the Trial Court would have

voided the Warrant in light of the staleness.

Here, Trial Counsel was Ineffective in his

failure to make a challenge and investigate

the mitigating evidence. Premo V Moore, 562

US 115, 121-23 (2010), citing Strickland, at

691.

ii. ineffective assistance of counsel

confrontation

At Petitioners State Criminal Prosecution,

the Prosecutor introduce several Laboratory

Report prepared by Dennis E. Lippert of the

State Police Forensic Laboratory Division,

these Report were introduced to establish the

quantity or weight of the drugs recovered in

the 483 Montana home. Here, the weight of the

substance were of great significance to

Petitioner, a greater weight, could possibly

mean an increased punishment.

Moreover, Trial Counsel failed to require

that the person that prepared the report

testify.

20

The introduction of "hearsay': testimony

violates a defendants' Sixth A.endment right

o confront the witness against ni, unless,

the witness is unavailable for Trial and the

defendant baa a prior ouportunity to cross

examine the witnes. Crawford V Washington,

541 US 36, 69 (2004).

More and more, forensic evidence plays' a

decisive role in criminal Trials today, but

it is hardly it;imune from the risk of

ianipulation. Nelendez Diaz V Massachusetts,

557 US 305, 318 (2009)

A forensic analyst may feel pressure, or have

an incentive to alter the evidence in a

manner favorable to the rosecution. laid,.

Even the most well meaning analyst may lack

essential training, contaminate a sample, or

err during the testing process. Bullcoining V

New Mexico, 564 US 6471 654 n.1 (2011).

(documenting laaoratory proh1eni6)

This Court further held: "to guara against

such miscnief and mistakes and the risk o

false convictions they invite, our Criminal

Justice" system depenos on adversarial

testing and cross examination, because cross

examination may be the greatest legal engine

ever invented for the discovery of the

truth'. California V Green, 399 US 149, 158

(1970).

The

Court promises every person

accused of a crime the right to confront his

accusers.

There is no Trial strategy where Trial

Counsel failure to put tne Government charges

meaningful

against

Petitioner

to

a

aaversariai test, Os: United States Supreme

Court has neld: ttnat that failure constitute

a denial of defendants' Sixth Amendment

iyhts. UNITED States V Cronic, 466 US 648,

Trial

at

654

Here,

Counsel

(1984).

representation fell below an objective

standard of reasonableness and tnere is a

reasonable prooability that, out for Trial

Counsels' error, tne results of the

21

proceedings would nave been ditferent.

Strickland V Washington, 466 Us 668, 691-92

(1984).

In

Williams V Illinois, 567 Us 50 (2012).

four Justices in

That Court held: 'The

the view that

Williams plurality took

forensic reports qualifies as "TESTIMONIAL"

only wrien it is prepared for the primary

purpose of accusing a targeted individual who

is in custody or under suspicion. Williams,

at 84. Meanwhile, four dissenting Justices

took the broader view that even a report

devised purely for investigatory purposes

without a target in mind can qualify as

"TESTIMONIAL" when

it

is made under

circumstances wflicn would lead an objective

witness, reasonably to believe tnat it would

be available for use at a later Trial.

Williams, at 121.

Moreover, a routine postarrest forensic

report, like the one nere, wust quality as

testimonial. For even under the plur'alitys'

more deanding test, tneres' no question that

Petitioners' was in custody when the

Government conducted it forensic test or

that tne report was prepared for the primary

purpose of securing a future conviction.

EMPHASIS ADDED.

Counsels failure to object to the report

being introauced into evidence, or demand

that the person that prepared tne report be

maoe available for cross examination,

prejudice the Petitioner, insomuch, that

Petitioner was denied the opportunity to put

tne Government evidence to its test, thus,

Counsels performance fell below an objective

standard, where any reasonable Attorney in

tnese dais of forenic would have demanded

the opportunity to cross examine the preparer

of an report that increases the punishment.

In that, there is no strategic docijiori ntde

oy Trial Counsel.

a. ineffective assistance of appellate

22

In

bring an Appeal of right E Cow nis

conviction,

a

criminal

defendant

is

attempting to oeRR)nstrate that the conviction

with its' consequent, drastic loss of liberty

is unlawful.

To Qro6ecute the Appeal, a

ccifflindl appellant must face an adversary

proceeding that, like a Trial, is governed oy

intricate rules that to a layperson would be

nopelessly

forbiodiny

an

unrepresented

A,pe11ant, like an unrepresented defendant at

Trial, is unable to protect the vital

in

at stake.

In Evitta V Lucey, 469 US 387, 396 (1985).

Our United States SupreL.Le Court

held:

accordingly, the State created iipeaient

does not sixuply evaoorate once aefendent

Apoellant. Counsel fails' to raise and

research vitualable claiis, a defendant is

entitleu to the Effective Assistance of

Counsel on his first Appeal as a matter of

riynt. Staitn V Roobin, 528 US 259 (2000).

In this case, Appellate Counsel was

Ineffective, when Appellate Counsel failed to

raise or preserve Petitioners claims that he

suffered 'Ineffective Assistance of Trial

Coun.el" oased upon Trial Counsels' failure

to: (1) test tne veracity of the Affidavit

used to procure the Search Warrant, (2) test

tne Scai.eness of the information used to

procure a Search Warrant, (3) effectively

waived Petitioners' Sixth Amendment right to

Confront his accuser, and (4) failed to

assure Petitioner was sentence according to

Statute. Strickland, at 687.

Appellate Counsel performance was objectively

unreasonable and prejudice Petitioner where

Counsel failed to raise an Apprendi claim on

Direct Appeal.

A first Appeal as of right therefore is not

adjudicated in accord with tne Due Process of

Law if the Appellate does not have Effective

Assistance of Counsel. In short, the promise

23

tnat a criminal defendant has a right to

Counsel on Appeal, like the promise that a

criminal defendant has a right to Counsel at

Trial would be a futile gesture unless it

comprehended the Effective Assistance of

Counsel. Evitts, at 402-05. Goeke \' Branch,

514 US 115, 120 (1995). EMPHASIS IN ORIGINAL.

iii. denied due process

sentencing

Under the Michigan Sentencing Scnenie a

defendant will typically be given an

indeterminate Sentence. MCL 769.8. The

maximum sentence under this system is set by

law. MCL 769.8(1).

Here, Petitioner was charged under MCL

333.7401(2)(a)(i), which require a mandatory

sentence of 20 years for possession of 650

grams or more of a controlled substance.

In 2003, during the pendency of Petitioner

current conviction, the Michigan Legislature

Amended tnat Statute to:

MCL

333.7401(2)(a)(ii), which provide: "a

person who possess a control substance in the

amount of at least 450 grants, out less than

1,000 grams was guilty of a felony punishable

by imprisonment for not more thun 30 years,

or a fine of not more than $500,000.00 or

both".

Under

the Sixth

Amendment to the Unitea

States Constitution, a criminal defendant is

guaranteed the right to a speedy and public

Trial by an impartial Jury. The Sixth

Amendment right to a Jury Trial considered

together with the Due Process Clause of the

Fourteenth Auienowen t,

guarantees Criminal

defendants' to a Jury determination that he

is guilty of every element of the crime with

which he is charged beyond a reasonable

doubt. Aprendi V New Jersey, 530 US 466,. 477

(2000).

24

C

Because a criminal defendant is entitled to

have a Jury decide his or her guilt, other

than the fact of a Prior Conviction" any

facts that increases the penalty for a crime

beyond the prescribed Statutory maximum must

be submitted to a Jury, and proved beyond a

reasonable doubt. Qrenai 1 at 490. Thus, any

fact triat exposes tne defendant to greater

punishment than that authorized by the Jury

guilty verdict, is an element of the crime

that must be proven beyond a reasonable

doubt. Aprendi, at 494.

CONCLUSION

Accordingly, the Trial Court, Michigan Court

of Appeals and Michigan Supceme Court erred

in finding the Petitioner did not meet the

Standards set in f'ICR 6.508(D)(3), in showing

Prejudice and Good Cause.

In this instant, Good Cause is waived under

Strickland, at 668, where Appellate Counsel

failed to raise the claim, thus, rendering

Petitioner tne Ineffective Assistance of

Appellate Counsel.

move

that

this

WHEREFORE,

Petitioner

Honorable Court reverse the Trial Court ORDER

REMAND this matter back to the Trial Court.

VERIFICATION

Petitioner, LARRY A. MCGHEEI declare under

the penalty of perjury that the above is true

and accurate.

Dated: November 28, 2018

/S/ LARRY A. MCGHEE

Kinross Correctional Facility

4533 h Industrial Park Dr.

Kincheloe, Michigan 49788