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Holmes v. Palmer

April 27, 2010

ROD STERLING HOLMES, # 333682, PETITIONER,
v.
CARMEN D. PALMER, RESPONDENT.



The opinion of the court was delivered by: Honorable Nancy G. Edmunds

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Rod Sterling Holmes, currently incarcerated at the Michigan Reformatory in Ionia, Michigan, was convicted by a Wayne County, Michigan, circuit court jury of (1) interfering with a police investigation, MICH. COMP. LAWS § 750.483a(4)(b), (2) carrying a concealed weapon (CCW), MICH. COMP. LAWS § 750.227, (3) three counts of assault with intent to murder, MICH. COMP. LAWS § 750.83, (4) three counts of felon in possession of a firearm, MICH. COMP. LAWS § 750.227f, and (5) three counts of possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. He was sentenced to (1) two to ten years in prison for the interfering-with-a-police-investigation conviction, (2) one to five years in prison for the CCW conviction, (3) thirty to sixty years in prison for each of the assault convictions, and (4) one to five years in prison for each of the felon-in-possession convictions to be served consecutive to concurrent sentences of two years in prison for each of the felony-firearm convictions. In his pro se pleadings, Holmes alleges: (1) ineffective assistance of trial counsel, (2) insufficient evidence to show that he assaulted a police officer, and (3) insufficient evidence to support his two convictions for felony firearm. For the reasons stated below, the Court will deny the petition and will also decline to issue a certificate of appealability and leave to proceed on appeal in forma pauperis.

II. BACKGROUND

The Michigan Court of Appeals summarized the facts of the case. The recitation of those facts are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). They are as follows:

Defendant's convictions arise out of a dispute between Curtis Bell and him that occurred on August 31, 2006. Bell was at his home in Detroit with Gary Jefferson and Brenda Patterson. Bell was sitting on his porch that evening when defendant pulled up and called Bell over to his car. Defendant got out of the car and punched Bell in the jaw, claiming that Bell "had some guys" steal defendant's van. Defendant and "George," who had been inside the car with defendant, then went into Bell's home and instigated a physical altercation with Jefferson. Patterson saw that George was carrying a gun and immediately left the house. She heard a gunshot as she was exiting through the back door. Jefferson was shot in the shoulder.

Bell called the police. As he was talking to police officers in front of his house, he heard rustling in the bushes and heard defendant say "Hey, Curt."

He then heard two gunshots, and he and the officers took cover. Shortly thereafter, the police observed defendant quickly leave his nearby home and speed away in his vehicle. Officers stopped the car and arrested him. The police recovered a semi-automatic handgun in the trunk of the car. They also recovered an assault rifle from the attic and a.44-caliber revolver from under a seat cushion during a search of defendant's home. Testing confirmed that the rifle was the weapon that was fired toward Bell and the officers outside Bell's home.

People v. Holmes, No. 276591, 2008 WL 5056691, at *1 (Mich.Ct.App. Oct. 14, 2008).

Following his sentencing, Holmes filed a claim of appeal in the Michigan Court of Appeals, raising the same claims as raised in his habeas petition, plus a sentencing-error claim. The Court of Appeals affirmed Holmes's convictions, but remanded the case to the trial court for the limited purpose of amending the judgment of sentence to reflect that his sentences for his felony-firearm and CCW convictions run concurrently. Holmes, No. 276591, 2008 WL 5056691, at *1.

Subsequently, Holmes filed an application for leave to appeal the Court of Appeals's decision in the Michigan Supreme Court, raising the same claims and adding the following:

(1) appellate counsel was ineffective for not filing an evidentiary hearing. On April 28, 2009, the Michigan Supreme Court denied Holmes's application. People v. Holmes, 483 Mich. 977, 764 N.W.2d 248 (2009). It does not appear that Holmes filed a writ of certiorari in the United States Supreme Court or a post-conviction motion in the state court. Rather, on July 17, 2009, he filed this habeas petition.

III. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this Court's habeas corpus review of state-court decisions. Specifically, 28 U.S.C. § 2254(d) states in pertinent part:

(d) 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 at the State court proceedings.

Under (d)(1), a federal court may grant a writ of habeas corpus under two different clauses, both of which provide two bases for relief. Under the "contrary to" clause, a federal court may grant habeas relief 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 decided on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The words "contrary to" should be construed to mean "diametrically different, opposite in character or nature, or mutually opposed." Id.

Under the "unreasonable application" clause, a federal court may grant habeas relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts. Williams, 529 U.S. at 407-08. Relief is also available under this clause if the state court decision either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context. Id., at 407; Arnett v. Jackson, 393 F.3d 681, 686 (6th Cir. 2005). The proper inquiry for the "unreasonable application" analysis is whether the state ...


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