United States District Court, Eastern District of Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER’S MOTION FOR A STAY (Dkt. #23) AND HIS PETITION FOR WRIT OF HABEAS CORPUS (Dkt. #1)
DENISE PAGE HOOD UNITED STATES DISTRICT JUDGE
Petitioner Dwayne Binyard has filed a pro se habeas corpus petition under 28 U.S.C. § 2254 and a motion to stay these proceedings. The habeas petition challenges Petitioner’s state convictions for first-degree (pre-meditated) murder, Mich. Comp. Laws § 750.316(1)(a), assault with intent to commit murder, Mich. Comp. Laws § 750.83, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission, or attempt to commit, a felony (felony firearm), Mich. Comp. Laws § 750.227b. Petitioner alleges in his habeas petition that his trial attorney was ineffective for failing to present an alibi defense and that the evidence adduced at trial did not support the jury’s verdict. In his pending motion for a stay, Plaintiff asks the Court to hold his habeas petition in abeyance while he exhausts state remedies. Respondent Kenneth Romanowski argues in an amended answer to the habeas petition that Petitioner’s claims lack merit. The Court agrees that Petitioner’s claims do not warrant habeas relief, and because it is not an abuse of discretion to deny a stay, the Court will deny the motion for a stay and the habeas corpus petition.
The charges against Petitioner arose from an argument and shooting at a Coney Island restaurant on West McNichols Street in Detroit, Michigan on March 2, 2008. David Bradley, Jr., and DeShawn Bell were shot during the incident. Mr. Bell survived the shooting, but Mr. Bradley died from his gunshot wounds. Neither victim was armed during the incident.
Petitioner was tried in Wayne County Circuit Court where the evidence established that, during the early morning hours of March 2, 2008, he asked his girlfriend, Beverly Lane, to fix him something to eat. Because Ms. Lane did not feel like cooking, she suggested that Petitioner go to the nearby Coney Island and get some food. Petitioner left the house after Ms. Lane gave him permission to use her red car. Petitioner came back to the house and said that he had gotten into an argument with some men at the Coney Island. He asked Lawrence Works, who lived in the Lane family’s basement, for a gun. Petitioner left the house with a gun, but returned to the house a second time and asked Ms. Lane to inform the police that her car had been stolen. He informed her mother (also named Beverly Lane) that he “got into it” with a guy and that he shot the guy. He then called someone for a ride and left the house.
Norris Elkins testified that he was sitting in his vehicle outside the Coney Island when the shooting occurred. He looked through the glass windows of the restaurant and saw a man shoot someone inside the restaurant. The lighting was good, and he was only about ten feet away from the shooter. He identified Petitioner at trial as the shooter.
Continuing, Mr. Elkins testified that, after Petitioner exited the restaurant and entered a red car, he (Elkins) tried to stop Petitioner by ramming his vehicle into the driver’s door of the red car. Petitioner exited the passenger side of the car and ran away.
The gun which fired the bullets that were removed from the two victims was found in the red car that Petitioner entered and exited after the shooting. There were no useable fingerprints on it, but his fingerprint was found on the driver’s side of the car. He was arrested a few weeks after the shooting.
During the intervening investigation, the police showed a photo array containing Petitioner’s photograph to Norris Elkins, a second eyewitness named Myron Logan, and the surviving victim, DeShawn Bell. Although Norris Elkins did not identify Petitioner in the photo array, he testified at trial that he left a telephone message for the police after he viewed the array, stating that Petitioner was number one in the array. Detective Donald Olsen confirmed at trial that Petitioner’s photo was number one in the photo array.
Eyewitness Myron Logan was unable to identify Petitioner at trial, but he did identify Petitioner in the photo array. He claimed at trial that he was not sure who the shooter was. Detective Olsen, however, testified that Mr. Logan immediately picked Petitioner out of the photo array and identified him as “the guy that did the shooting.” And, according to Detective Olsen, Mr. Logan did not appear to be suffering from any psychological issues or medication.
The surviving victim, DeShawn Bell, was unable to make an identification when the police showed him the photo array, and he did not testify at trial. Petitioner also did not testify or present any witnesses, and on October 9, 2008, the jury found him guilty, as charged, of first-degree (premeditated) murder, assault with intent to commit murder, felon in possession in possession of a firearm, and felony firearm. The trial court sentenced Petitioner to life imprisonment for the murder conviction and to concurrent terms of fourteen to fifty years in prison for the assault conviction and nine months to five years in prison for the felon-in-possession conviction. Petitioner received a consecutive sentence of two years in prison for the felony firearm conviction.
Petitioner appealed his convictions on grounds that he was denied effective assistance of trial counsel and that the jury’s verdict was based on insufficient evidence. He moved to remand his case to the trial court so that he could file a motion for new trial and seek an evidentiary hearing on his ineffective-assistance-of-counsel claim. The Michigan Court of Appeals granted Petitioner’s motion, and, on remand, the trial court held an evidentiary hearing, known as a Ginther hearing. At the conclusion of the hearing, the trial court denied Petitioner’s motion for new trial and concluded that Petitioner was not deprived of effective assistance of counsel. The Michigan Court of Appeals subsequently affirmed Petitioner’s convictions in an unpublished, per curiam opinion. See People v. Binyard, No. 290259, 2010 WL 3184493 (Mich. Ct. App. Aug. 12, 2010). Petitioner raised the same issues in the Michigan Supreme Court, which denied leave to appeal on February 7, 2011, because it was not persuaded to review the issues. See People v. Binyard, 488 Mich. 1040; 794 N.W.2d 325 (2011).
On October 12, 2011, Petitioner signed and dated his habeas corpus petition. He raises the same two issues that he presented to the state courts. On July 19, 2012, Respondent filed a second amended answer to the petition through counsel. Petitioner filed a reply to the answer, and on July 21, 2014, he filed the pending motion for a stay.
II. The Motion for a Stay
In his motion for a stay, Petitioner asks the Court to hold his habeas case in abeyance while he “fully and properly exhausts” state remedies. The Court has authority to issue stays, but a stay is warranted only in “limited circumstances, ” such as when “there was good cause for the petitioner’s failure to exhaust his claims first in state court, ” the unexhausted claims are not “plainly meritless, ” and the petitioner is not “engage[d] in abusive litigation tactics or intentional delay.” Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
Petitioner does not appear to be engaged in abusive litigation tactics, but he has not identified the issues that he wants to raise in state court, nor alleged why he did not pursue state remedies for any unexhausted issues before he filed his habeas corpus petition. Consequently, the motion for a stay (Dkt. #23) is denied. The Court will proceed to address Petitioner’s current claims, using the following standard of review.
III. Standard of Review
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, __, 131 S.Ct. 770, 783 (2011). Pursuant to § 2254, the Court may not grant a state prisoner’s application for the writ of habeas corpus unless the state court’s adjudication of the prisoner’s 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).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court may grant the writ 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. Under the “unreasonable application” clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal ...