The opinion of the court was delivered by: Patrick J. Duggan United States District Court
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
At a session of said Court, held in the U.S. District Courthouse, Eastern District of Michigan, on March 29, 2010.
PRESENT: THE HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE
Petitioner, Jerome R. Williams, is a state inmate currently incarcerated at Kinross Correctional Facility in Kincheloe, Michigan. Petitioner was convicted at the conclusion of a Wayne County Circuit Court jury trial of second-degree murder, Mich. Comp. Laws Ann. §750.317; felon in possession of a firearm, id. §750.224f; assault with intent to do great bodily harm, id. §750.84; and possession of a firearm during the commission of a felony, id. §750.227b. Petitioner was sentenced as an habitual offender, id. §769.10, to 40 to 60 years imprisonment for the murder conviction; one year 10 months to seven years six months for the felon in possession conviction; five years 10 months to 15 years for the assault conviction; and a two-year consecutive term of imprisonment for the felony firearm conviction. Petitioner filed a pro se petition for habeas corpus under 28 U.S.C. §2254. For the reasons stated below, the Court denies the petition.
The state appellate court in this case set forth the underlying facts, which are presumed correct on habeas review, see Monroe v. Smith, 197 F. Supp. 2d 753, 758 (E.D. Mich. 2001), as follows:
This case arose when the murder victim pulled his car up to the curb in front of an apartment building where defendant's mother lived and called out for defendant. Defendant poked his head out of the second story window and engaged the murder victim in conversation while the murder victim's cousin sat in the passenger seat. Defendant eventually came down from the second-floor apartment and approached the car visibly armed with a chrome pistol.
He crouched down at the driver's-side window, which was nearest to the curb, and resumed his conversation with the murder victim. After a short discussion about a previous shooting, defendant stood up and said, "but you know what, man,"pulled out his pistol, stepped back onto the curb, and started firing at the driver. Defendant killed the driver. The passenger was shot four times in the arm and once in the leg before he was able to escape the car and get help.
People v. Williams, No. 256437, 2005 WL 3179732, *1 (Mich. Ct. App. Nov. 29, 2005) (per curiam).
Petitioner filed an appeal of right and raised the following claims:
I. Where the evidence of first-degree murder was insufficient, [Petitioner] is entitled to a new trial where the jury was allowed to consider this charge in violation of due process, which substantially decreased [Petitioner's] chances of acquittal.
II. The trial court denied [Petitioner's] right to a fair trial by failing to grant the defense request to sever the felon-in-possession charge from the other counts alleged, effectively predisposing the jury against him as a convicted felon.
III. [Petitioner] is entitled to resentencing because the sentencing judge increased the statutory sentencing guidelines range in his case based on facts which were not proven to a jury beyond a reasonable doubt, in violation of Blakely v Washington.
IV. [Petitioner] did not received the effective assistance of counsel at sentencing where counsel failed to object to points assessed that were inconsistent with the jury's verdict and resulted in an extremely long minimum sentence.
V. [Petitioner's] judgment of sentence must be corrected where [Petitioner's] sentence for second-degree murder must be reduced in accordance with the two-thirds rule of People v Tanner, 387 Mich 683 (1972) and People v Thomas, 447 Mich 390 (1994).
The Michigan Court of Appeals affirmed Petitioner's conviction, but remanded the matter for a five-month reduction of Petitioner's second-degree murder sentence so that it would not exceed two-thirds of the maximum sentence imposed. Williams, 2005 WL 3179732, *2.
Petitioner then filed an application for leave to appeal with the Michigan Supreme Court which was denied. People v. Williams, 475 Mich. 869, 714 N.W.2d 654 (2005)(table). However, Justice Marilyn J. Kelly would have held the "case in abeyance for People v. Drohan, lv. gtd. 472 Mich. 881, 693 NW2d 823 (2005)." Id.
Petitioner now seeks a writ of habeas corpus raising the first four of the five arguments asserted in his direct appeal. For the reasons set forth below, the Court denies the petition.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this court's habeas corpus review of state court decisions. Petitioner is entitled to the writ of habeas corpus if he can show that the ...