United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
LAURIE J. MICHELSON, District Judge.
Petitioner Jeff Hurley seeks a writ of habeas corpus. Hurley is currently serving a sentence of seven to twenty two years imprisonment resulting from his Wexford Circuit Court convictions for resisting and obstructing a police officer, Mich. Comp. Laws § 750.81(d)(1), operating a motor vehicle while intoxicated, Mich. Comp. Laws § 257.624a, carrying a concealed weapon, Mich. Comp. Laws § 750.227, felon in possession of firearm, Mich. Comp. Laws § 750.224f, and felony-firearm, Mich. Comp. Laws § 750.227b. Hurley claims that he was denied the effective assistance of counsel when his attorney failed to seek a stipulation as to the existence of a prior felony, resulting in the prosecution presenting evidence of a prior conviction for obstruction of justice, and when his attorney failed to object to the prosecutor's cross-examination of Petitioner regarding his failure to tell his version of the events to the police. He also claims that the trial court improperly scored his sentencing guidelines. Having reviewed Hurley's petition, the warden's response, and the state-court record, the Court finds that the state courts reasonably concluded that Hurley's claims were without merit. Hurley's petition, therefore, is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hurley's convictions arise from a November 20, 2009 shooting, and his interactions with police in the aftermath of that shooting, in Wexford County, Michigan. According to the trial testimony, Hurley and his friend Joshua Baldwin had been drinking with friends at Baldwin's mother's house when the group went to Wal-Mart, where Baldwin purchased a box of.45 caliber ammunition. The group continued to drink at the house of another friend, Tamitha Simmons. Hurley and Baldwin began playing with a.45 caliber pistol which Hurley had retrieved from a white van. At some point after this, Baldwin sustained a gunshot wound to his left leg.
Baldwin testified that he had no recollection of how the injury occurred. Hurley testified that he was in the drive-thru at McDonald's when an unnamed passenger in the van received a phone call that Baldwin had shot himself. Other witnesses, Justin Coutu and Theresa O'Farrell, testified that Hurley told them the shooting occurred at McDonald's. They testified that Hurley was pounding on O'Farrell's door looking for a licensed driver to take his friend who had been shot to the hospital. Coutu drove Baldwin to the hospital. Hurley went with them and helped bring Baldwin inside the emergency room around 3:48am. Security camera footage showed Hurley running out of the hospital at 3:50am.
Having received calls from neighbors regarding gunshots and from the hospital regarding a victim with a gun-shot wound, Cadillac police began patrolling the area in search of the white van. They encountered Hurley driving the van and activated their overhead lights. The officers testified that after Hurley stopped the van, he was uncooperative and combative, ignoring instructions to walk backwards toward the officers and to turn around and get on the ground. He also attempted to bring his hands to the front of his body while handcuffed. When Hurley refused to submit to a Breathalyzer test, the officers obtained a search warrant and took him to the hospital to be tested. While at the hospital, he spat at an officer, had to be held down for a photograph, and was eventually returned to the police car. Tests showed that his blood alcohol level was.13. The jury also saw video footage of Hurley from security cameras at the traffic stop, hospital, and Wal-Mart.
As noted, the jury ultimately convicted Hurley of resisting and obstructing a police officer, Mich. Comp. Laws § 750.81(d)(1), operating a motor vehicle while intoxicated, Mich. Comp. Laws § 257.624a, carrying a concealed weapon, Mich. Comp. Laws § 750.227, felon in possession of firearm, Mich. Comp. Laws § 750.224f, and felony-firearm, Mich. Comp. Laws § 750.227b. He was sentenced, as a fourth habitual offender, Mich. Comp. Law § 769.12, to forty-six to 180 months on the resisting and obstructing conviction, to be served concurrently with ninety-three days on the operating while intoxicated conviction, and a consecutive sentence of thirty-six to 240 months on the felon in possession of a firearm conviction, to be served concurrently with sixty to 240 months on the concealed weapon conviction, and twenty-four months on the felony firearm conviction. (Sentencing Tr. at 29-30.)
After sentencing, Hurley filed an appeal in the Michigan Court of Appeals on the following grounds:
I. Defense trial counsel was constitutionally ineffective in failing to offer to stipulate to an undisclosed felony conviction for the charge of felon in possession of firearm rather than permitting the prosecutor to introduce appellant's conviction for obstructing justice which was unfairly prejudicial and similar to the resisting and obstructing charge in the present case.
II. Defense trial counsel was constitutionally ineffective in failing to object to the prosecutor's eliciting on cross-examination that appellant did not previously tell the police his stor[y], where appellant had exercised Miranda rights following arrest.
III. The trial court improperly scored ov-3 and ov-19 of the sentencing guidelines, and due process requires resentencing, where an eyewitness sustained a self-inflicted gunshot wound that did not result from appellant's alleged possession of the gun; and where appellant's resisting and obstructing the officers in arresting appellant had already allegedly disposed of the gun involved in the felon in possession and carrying and concealing charges.
(Dkt. 8-7, Mich. Ct. App. Proceedings, at 9.)
The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. Hurley, 2011 WL 2739453, at *5. Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims as in the Michigan Court of Appeals. The Michigan Supreme Court denied the application in a one-sentence order because it was "not persuaded that the questions presented should be reviewed" by the Court. People v. Hurley, 490 Mich. 914 (2011) (table). Hurley subsequently filed his petition for writ of habeas corpus on November 20, 2012. (Dkt. 1.) He seeks habeas relief on the same three grounds he raised in his appeal to the Michigan Court of Appeals. ( See id. )
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which governs this case, "circumscribe[s]" the standard of review that federal courts apply when considering an application for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). Under the statute, a federal court may not grant habeas relief to a state prisoner with respect to any claim that has been "adjudicated on the merits in State court proceedings" unless the state-court adjudication "(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, ...