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Smith v. Sherry

April 26, 2010

BOBBY WAYNE SMITH, JR., #270490, PETITIONER,
v.
JERI-ANN SHERRY, RESPONDENT.



The opinion of the court was delivered by: Anna Diggs Taylor United States District Judge

HON. ANNA DIGGS TAYLOR UNITED STATES DISTRICT JUDGE

OPINION AND ORDER 1) DENYING PETITION FOR WRIT OF HABEAS CORPUS; 2) DENYING CERTIFICATE OF APPEALABILITY; 3) DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL; 4) GRANTING MOTION TO EXPAND RECORD AND 5) DENYING MOTION FOR DISCOVERY

(This Order Resolves Docket Entries 1, 15 & 16)

Petitioner Bobby Wayne Smith has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who is currently incarcerated at the Chippewa Correctional Facility in Kincheloe, Michigan, challenges his convictions for first-degree premeditated murder, conspiracy to commit first-degree murder, and two counts of possession of a firearm during the commission of a felony. For the reasons set forth below, the Court shall deny the petition.

I. Factual Background

Petitioner was jointly tried with three co-defendants, Kevin Tyran Harris, Lamont Bernard Heard, and Antwan Lamont Williams. The Michigan Court of Appeals set forth the facts pertinent to Petitioner's convictions as follows:

All the convictions stem from the shooting death of Lonnie Adams. The victim, a resident of Ypsilanti, came to Pontiac on August 30, 1995. According to his grandmother, Adams was there to visit family. Sometime around midnight that night, several people in the neighborhood heard gunshots. Several eyewitnesses testified at trial that, after having heard the volley of gunshots, they saw four men in dark clothing standing around Adams' body. Two witnesses testified that they believed they saw shots fired at the victim as he lay on the ground. One eyewitness testified that he saw four men chasing and shooting at Adams. According to this witness, one of the four exclaimed, "You trying to rob me. I've got something for your ass."

Some of the most dramatic testimony was offered by a minor. Almost thirteen years old at the time of the shooting and seventeen years old as of trial, this witness testified that she saw Adams pounding and screaming at the door of her residence. This witness saw three men chase and shoot Adams after he left her residence. The witness identified one of the three shooters as Terry Cooley, who had died as of trial. When the witness showed reluctance in naming the other two, the trial judge cleared the courtroom of all spectators. Then, outside of the presence of the jury, the court questioned the witness about her reluctance to testify. She indicated that she was afraid to identify the other two men because she feared for her life. After the jury returned, the witness identified defendants Heard and Smith as the other two men she saw chase and shoot Adams.

Dion Coleman testified that he and the four defendants were members of a street gang known as Project Posse. Coleman testified that Adams and defendant Williams got into an argument while at a dice game on the night of the shooting. Coleman testified that after Adams left the game, the four defendants and Antoine McNeal engaged in conversation during which they discussed killing Adams. According to Coleman, he and McNeal declined to go along with the murder. McNeal also testified that while he and Coleman were present when the murder was being planned, he and Coleman backed out. Coleman further testified that he saw the four defendants later that evening dressed in black and carrying a variety of weapons. According to Coleman, the men left with Cooley, traveling in a group of three and a group of two. McNeal testified that he witnessed the five men chasing Adams, and saw sparks fly from the group as they chased the victim. According to McNeal, Smith later told him that the four defendants and Cooley had killed Adams. Coleman testified that Smith also admitted his involvement in the murder. According to Coleman, the day after the murder, he, the four defendants, Cooley, and McNeal, met and agreed to keep quiet. Coleman indicated he at first kept the agreement, even going so far as to lie about the incident to the police and in another proceeding held in the district court. Coleman admitted on cross-examination that the police had told him that he could be charged with the murder if he continued to be uncooperative.

Sheila Scott, defendant Heard's girlfriend, testified that she was present when the four defendants, McNeal, and Cooley met up before the murder at Heard's station wagon. Heard and Harris gave her some unidentified personal items to hold, and Williams gave her a bike. The men then ran off, the hoods of their sweaters over their heads. At some later point in time, Scott witnessed the four defendants and Cooley chasing the victim. Soon thereafter, she heard the sound of gunshots.

Heard then returned to his car, and the two drove to a liquor store. According to Scott, while the two were at the store, Heard stated the men had killed Adams.

Later, Heard explained to Scott that Adams "was going to stick them up so they had to get him before he got them."

Joseph Morris testified that he was incarcerated with defendant Harris at some point after the Adams murder. According to Morris, while the two were in their cell, Harris confessed to being involved in the murder.

People v. Heard, et al., No. 221827, 2002 WL 1424420, at *1-2 (Mich. Ct. App. Jun. 28, 2002).*fn1

II. Procedural History

Following a trial in Oakland County Circuit Court, a jury convicted Petitioner of first-degree premeditated murder, conspiracy to commit first-degree murder, and two counts of possession of a firearm during the commission of a felony. The court sentenced him to life imprisonment for the murder and conspiracy convictions, to be served consecutively to two years imprisonment for each of the felony-firearm convictions.

Petitioner appealed his convictions to the Michigan Court of Appeals, presenting the following claims:

I. Mr. Smith was denied his state and federal constitutional rights to a fair trial when the trial court gave improper jury instructions regarding accomplice liability and was denied the effective assistance of counsel because defense counsel failed to object to the instructions.

II. Mr. Smith was denied his constitutional right to a fair trial and due process of law due to prosecutorial misconduct.

The Michigan Court of Appeals affirmed Petitioner's convictions. Heard, et al., No. 221827, 2002 WL 1424420 at *10. Petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court, presenting the same two claims, which the court denied. People v. Smith, 468 Mich. 872 (2003).

Subsequently, Petitioner filed a post-conviction motion for relief from judgment pursuant to Michigan Court Rule 6.502. He argued that he was denied the effective assistance of trial counsel for 1) failure to investigate additional evidence of an alternate suspect; 2) failure to present a relevant and material alibi witness; 3) failure to challenge the trial court's jurisdiction; 4) failure to object to alleged prosecutorial misconduct; 5) failure to assert that the verdict was against the great weight of the evidence; 6) allowing inadmissible hearsay testimony into evidence; and 7) the cumulative harm of the errors that denied him a fair trial. Petitioner also argued that he was denied the effective assistance of appellate counsel for failure to raise the ineffectiveness of trial counsel on direct appeal.

The trial court rejected these claims, because it found it had jurisdiction and because Petitioner failed to show prejudice from the problems alleged in his claims, as required by Michigan Court Rule 6.508(D)(3). People v. Smith, No. 98-163898 (Oakland Cty. Cir. Ct. Jan. 24, 2006) (unpublished). The court found that in light of the overwhelming evidence against Petitioner, he failed to demonstrate that the alleged errors would have changed the outcome of the trial. Id. at 2.

Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals raising the same claims. The court denied leave to appeal for "failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Smith, No. 270486 (Mich. Ct. App. Nov. 28, 2006) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which it denied for "failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Smith, 480 Mich. 854 (2007).

Petitioner now seeks the issuance of a writ of habeas corpus on the same nine grounds he raised in his previous appeals.

III. Pending Motions

Petitioner has filed a Motion to Expand the Record and a Motion for Discovery. Petitioner seeks permission to expand the record to include affidavits from Eric Handy, his trial counsel, Shalina Pryor, an alleged alibi witness, and a self-executed affidavit. He contends they support claims presented in his habeas corpus petition. Rule 7, Rules Governing Section 2254 Cases, allows for expansion of the record in habeas corpus proceedings as follows:

(a) If the petition is not dismissed summarily the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition.

(b) The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, . . . Affidavits may be submitted and considered as part of the record.

Rule 7, Rules Governing Section 2254 Cases.

The Court notes that the Handy and Pryor affidavits are already part of the record. It further determines that Petitioner's self-executed affidavit is relevant to the determination of the merits of the habeas corpus petition, and, therefore, shall grant the request to expand the record with it.

Petitioner has also filed a Motion for Discovery. Petitioner seeks access to grand jury transcripts from an unrelated case in which he contends he was confused with an individual named "Poo Bah" who was the actual perpetrator in that proceeding. In the present case, he raised a mis-identification defense and argued that he had again been mistaken for "Poo Bah" when identified as a shooter.

Rule 6, Rules Governing Section 2254 Cases, provides that leave of court is required before a habeas corpus petitioner may conduct discovery. Respondent has filed portions of the state court record in accordance with Rule 5, Rules Governing Section 2254 Cases. The Court determines that the record contains adequate information about Petitioner's mis-identification defense and no further materials are necessary at this time for a fair disposition of the petition. The Court therefore denies the Motion for Discovery.

IV. Standard of Review

Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only if he can show that the state court's adjudication of his claims on the merits-

(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.

28 U.S.C. § 2254(d). Simply stated, under § 2254(d), Petitioner must show that the state court's decision "was either contrary to, or an unreasonable application of, [the Supreme] Court's clearly established precedents, or was based upon an unreasonable determination of the facts." Price v. Vincent, 538 U.S. 634, 639 (2003).

A state court's decision 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, 412-13 (2000). A state court's decision is an "unreasonable application of" clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

"[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." 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 411. "Rather, it is the habeas applicant's burden to show that the state court applied [Supreme Court precedent] to the facts of his case in an objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 25 (2002).

V. Discussion

A. Jury ...


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