United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, and GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
PATRICK J. DUGGAN, District Judge.
Petitioner James Taylor filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is a state prisoner in the custody of the Michigan Department of Corrections pursuant to a conviction for assault with intent to do great bodily harm less than murder. He argues that his conviction was obtained in violation of his constitutional rights because the trial court improperly declared a mistrial and insufficient evidence was presented to establish his guilt beyond a reasonable doubt. Respondent argues that the claims are meritless. The Court will deny the petition.
II. BACKGROUND AND PROCEDURAL HISTORY
Petitioner's convictions arise from events that occurred in Caro, Michigan on June 25, 2007. On that date, at approximately 11:00 p.m., Abrien Swires drove with his girlfriend, Krysta Essenmacher, to Tonya Johnson's house. When he parked his vehicle in front of Tonya's house, Chandel Goodrich, Petitioner's girlfriend, yelled at him for driving recklessly. Goodrich claimed that Swires almost hit her and her young child. Petitioner then also began yelling at Swires for being disrespectful to Goodrich. Swires testified that he ignored them and entered Tonya Johnson's house. A few minutes later, Petitioner entered Tonya Johnson's house. He yelled at Swires and then approached Goodrich. Petitioner yelled at Goodrich so vehemently that Swires became scared for Goodrich's safety. Swires testified that he warned Petitioner to get away from Goodrich. In response, Petitioner approached Swires. Swires then noticed that Petitioner was carrying a tire iron. Petitioner raised his arm and struck Swires on the head with the tire iron. Petitioner then left the home. Swires was taken to the hospital where he received five staples to close a head wound.
Several witnesses testified that Petitioner used a metal object, possibly a tire iron, to strike Swires. Others testified that Petitioner used only his fist.
Following a jury trial in Tuscola County Circuit Court, Petitioner was convicted of assault with intent to commit great bodily harm less than murder. He was acquitted of a felonious assault charge. On April 10, 2008, Petitioner was sentenced as a fourth habitual offender to 11 to 25 years' imprisonment.
Petitioner filed an appeal of right in the Michigan Court of Appeals. He raised this claim through counsel:
I. Two sentencing-guidelines variables were misscored.
He raised the following claims in a pro per supplemental brief:
I. Did the charges of felonious assault and assault with intent to do great bodily harm less than murder violate the double jeopardy clauses of the United States and Michigan Constitutions where both of the charges arose from a single act and both offenses serve the same societal interests?
II. Did the trial court err in its sua sponte declaration of a mistrial without conducting a manifest necessity hearing and without considering other alternatives or did the trial court err in sua sponte declaring a mistrial where there was no manifest necessity to do so and in any event did the retrial of the Defendant violate the federal and state constitutional prohibitions against double jeopardy?
III. Was it error for Judge Matuzak to take actions in this case when it had been assigned to Judge Josyln or was the Defendant denied a fair trial when Judge Matuzak held the retrial of this matter?
IV. Was there insufficient evidence to justify permitting the jury to consider the offense of assault with intent to do great bodily harm less than murder?
V. Did the trial court err in failing to instruct the jury on the lesser offense of assault and battery?
VI. Was the Defendant denied his constitutional right to a fair trial where the trial court prohibited the Defendant's ...