United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) DENYING PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL
DENISE PAGE HOOD, District Judge.
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner was convicted after a bench trial in the Wayne Circuit Court of felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, and domestic violence. MICH. COMP. LAWS § 750.81(2). As a result, Petitioner was sentenced to one-to-five years for the possession charge, a consecutive five-year term for the felony-firearm charge, and a one year probationary term for the domestic violence charge. The petition raises two claims: (1) insufficient evidence was presented to sustain Petitioner's firearm convictions, and (2) the prosecution did not establish a nexus between the firearms and Petitioner. The petition will be denied because Petitioner's claims are without merit. The Court will also deny Petitioner a certificate of appealability and deny him permission to proceed on appeal in forma pauperis.
Petitioner's convictions result from a domestic violence call in Detroit. Detroit Police Officers Ned Gray and Mario White testified at Petitioner's bench trial that they responded to a call at a residential address in Detroit. When they arrived the officers met Petitioner's girlfriend, Sisbohn Danielle Cotton Allen. Allen's lip was "busted, " and she was crying. She said that she had an argument with Petitioner, and he hit her with a closed fist.
After Allen spoke with the officers, Petitioner came downstairs from the second floor, and the officers arrested him. When Officer White handcuffed him, Petitioner asked Officer Gray to go upstairs and retrieve his coat. Petitioner did not specify where they would be.
When Officer Gray went upstairs, he found only one bedroom. Lying on the bed officer Gray saw an open duffle bag on top of a man's coat. When he lifted the bag, he saw two guns, men's socks, and men's underwear inside. Officer Gray brought the coat and bag downstairs and asked defendant if the duffle bag was his. Petitioner replied in the affirmative.
The parties stipulated that defendant was previously convicted of a felony and was not eligible to carry a firearm.
Petitioner called Allen to testify in his defense. She testified that both officers, not just Officer Gray, went upstairs to her bedroom and they left her alone with Petitioner downstairs. Allen said that, after the police left, she discovered her bedroom was ransacked. Allen also testified that she was seeing another man romantically when she was dating Petitioner. His first name was Jonathan, but she did not know his last name. Allen claimed that the duffle bag that the police recovered belonged to Jonathan and it had been hidden under her bed, not on top of it. She also claimed that Jonathan never contacted her to retrieve the duffle bag or guns.
The prosecutor called Officer Gray in rebuttal. Officer Gray testified that he went upstairs to the bedroom alone. Officer White stayed with Petitioner. According to police protocol, they could not leave a domestic violence suspect alone with a victim. When he was upstairs, Officer Gray did nothing but retrieve the items on the bed. He did not open drawers, move other items, or look under the mattress.
In rendering its verdict, the trial court found that Officer Gray was credible and Allen was not. It then found Petitioner guilty on all counts. He was sentenced as indicated above.
Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals, raising the following claims:
I. Petitioner was wrongfully convicted of the crimes of felon in possession of a firearm and felony firearm, second offense, because the People failed to introduce evidence sufficient to prove the gun possession charges beyond a reasonable doubt and therefore Petitioner was convicted based upon insufficiency of the evidence.
II. Petitioner was wrongfully convicted of the crimes of possession of a firearm by a felon and felony firearm, second offense, because a nexus was never proven between Petitioner and the weapons introduced at trial, sufficient to prove physical or constructive possession of the firearms by Petitioner.
The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. People v. Miller, No. ...