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Weston v. Prelesnik

March 2, 2010

VINCENT WESTON #194331, PETITIONER,
v.
JOHN PRELESNIK, RESPONDENT.



The opinion of the court was delivered by: Honorable Paul L. Maloney Chief United States District Judge

HONORABLE PAUL L. MALONEY

Magistrate Judge Ellen S. Carmody

OPINION and ORDER

Overruling the Petitioner's Objections and Adopting the R&R; Dismissing the 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus;

Entering Judgment in Favor of the Respondent; Declining to Issue a Certificate of Appealability;

Terminating and Closing the Case

Due to events occurring in October 1999, Vincent Weston was charged with one count of first-degree murder - premeditated (MICH. COMP. LAWS § 750.316), two counts of assault with intent to commit murder (MICH. COMP. LAWS § 750.83), one count of felon in possession of a firearm (MICH. COMP. LAWS § 750.224f), and one count of possessing a firearm during the commission of a felony (MICH. COMP. LAWS § 750.227b). Following a bench trial in Michigan state court, the judge found Weston guilty of the following offenses:

-- instead of first-degree murder, 40-80 years imprisonment for the second-degree murder for the killing of Calvin Berry (MICH. COMP. LAWS § 750.317); -- 20-40 years imprisonment for assault with intent to murder, as charged, for the killing of Mandell Moore (MICH. COMP. LAWS § 750.83);

-- instead of assault with the intent to commit murder, 5-10 years imprisonment for assault with the intent to inflict bodily harm less than death for the shooting of Melvin Berry (MICH. COMP. LAWS § 750.84);

-- 2-5 years for felon in possession of a firearm, as charged (MICH. COMP. LAWS § 750.224f); -- 2 years for possessing a firearm during commission of a felony, as charged (MICH. COMP. LAWS § 750.227b).

The state trial judge ran all sentences concurrently except for the felony-firearm sentence, which ran consecutively. Weston appealed, asserting two assignments of error: (1) his state sentencing guidelines were based on materially false information, so his sentence violates his due process right to be sentenced based on accurate information, and (2) if trial counsel waived Weston's challenge to the inaccurately-scored sentencing guidelines, that constituted ineffective assistance of counsel requiring resentencing. The Michigan Court of Appeals affirmed Weston's convictions and sentence, explaining the factual background and addressing the merits as follows:

Defendant's convictions arose from a shooting that occurred at a Detroit home.

[D]efendant and Mandell Moore visited a bank to cash Moore's $3,800 check. Defendant waited in the car, while Moore entered the bank. After cashing the check, Moore purchased [items costing a total of $2,240].

At approximately 10:00 p.m. that evening, Calvin Berry and Melvin Berry visited defendant and Moore. Melvin Berry and defendant were close friends. Defendant and Moore were also close friends. [D]efendant was drinking cognac as the four men lounged in the living room. Later, while Moore was playing video games and Melvin Berry was talking on his cellular phone, defendant inexplicably began firing a gun. There was no argument preceding the shooting. Defendant did not speak while he fired the gun, but he did make "noises." Defendant shot Melvin Berry in the hand and the bullet w[ent] through his arm into his chest. Calvin Berry asked, "Man, what are you doing?" Defendant shot Calvin Berry in the face. Moore ran to the back of the house, but defendant chased him while continuing to fire the gun. Moore was shot in the neck and the hand and he fell to the floor. Defendant walked past him and fired again, grazing Moore's head. Defendant then returned to the living room. Moore escaped through a window.

In the living room, Melvin Berry tried to exit [through] the front door, but could not open the door because of his injury. Defendant approached Melvin Berry, pointed the gun at him, and pulled the trigger. When the gun did not fire, defendant ran to the back of the house and exited through the back door. ...


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