The opinion of the court was delivered by: Honorable John Corbett O'meara District Judge
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Walter Lumpkin, ("petitioner"), presently confined at the Mound Correctional Facility in Detroit, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his convictions for armed robbery, M.C.L.A. 750.529; carjacking, M.C.L.A. 750.529a; and being a fourth felony habitual offender, M.C.L.A. 769.12. For the reasons stated below, petitioner's application for writ of habeas corpus is DENIED.
Petitioner was convicted of the above offenses following a jury trial in the Wayne County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Here, the victim testified that he was sitting in the driver's side seat of a parked car between 4:00 a.m. and 5:00 a.m. when he was approached by two black men, one of them went to the passenger side of the car and the other to his side of the car, banged on the window with a gun, and then opened his car door.
The victim was forcibly removed from the car by having his arm pulled, he was turned physically around so that his back was to the perpetrator, and a gun was placed to the back his head. The perpetrator kept asking the victim for his money. The other perpetrator came around to the driver's side and was checking inside the car. The perpetrator who was holding the gun then went through the victim's front and back pockets, retrieved the victim's wallet, and turned him back around to face him. After asking, again, where the money was, the perpetrator pulled the victim to the side, got into the driver's seat, his accomplice got into the back seat of the vehicle, and they drove off with the wallet and the vehicle. The victim testified that defendant was the primary perpetrator of both the armed robbery and the carjacking. On cross examination, defense counsel elicited testimony from the victim that his statement to the police on the day of the incident was that the main perpetrator of the crimes was a dark-skinned black male and counsel indicated that defendant was a light-skinned black male. The victim also testified that it was dark outside when the events occurred.
The police officer who took the initial complaint in this matter testified that the victim described the perpetrators of the crime as one dark-skinned black male, who held the gun to his head, and one light-skinned black male, who patted him down, took his wallet, and kept asking him for his money. The arresting officer testified that when he stopped the victim's carjacked vehicle the next morning, defendant was driving the vehicle. The police investigator who conducted the photo lineup testified that the victim immediately picked defendant out from the lineup and identified him as the man who had the gun and pulled him out of the car.
People v. Lumpkin, No. 245440, * 1-2 (Mich.Ct.App. May 18, 2004). Petitioner's conviction was affirmed on appeal. Id., lv. den. 471 Mich. 949; 690 N.W. 2d 111 (2004). Petitioner then filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq., which the trial court denied. People v. Lumpkin, No. 02-000774-01 (Wayne County Circuit Court, April 28, 2006). The Michigan appellate courts denied petitioner leave to appeal. People v. Lumpkin, No. 276810 (Mich. Ct.App. June 21, 2007); lv. den. 480 Mich. 953; 741 N.W. 2d 360 (2007).
Petitioner seeks a writ of habeas corpus. For the purposes of judicial clarity and economy, the Court will paraphrase the claims rather than recite them verbatim:
I. Petitioner was deprived of his right to due process and a fair trial when the trial judge gave the jurors a supplemental instruction on the elements of aiding and abetting when the prosecution had not tried the case under the theory that petitioner was an aider and abettor, but that he was the principal.
II. Petitioner's right to be free from double jeopardy was violated when he was convicted of armed robbery and carjacking.
III. Petitioner was deprived of a fair trial because of prosecutorial misconduct.
IV. Petitioner was deprived of the effective assistance of trial counsel and appellate counsel.
V. Petitioner was deprived of the effective assistance of appellate counsel.
28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 410-11.
A. Claim # 1. The Instructional ...