United States District Court, Eastern District of Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
DAVID M. LAWSON UNITED STATES DISTRICT JUDGE
Petitioner Maurice Dewayne Mayes, presently confined at the Chippewa Correctional Facility, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his convictions and sentences for armed robbery, Mich. Comp. Laws § 750.529, conspiracy to commit armed robbery, Mich. Comp. Laws § 750.157a, resisting or obstructing a police officer, Mich. Comp. Laws § 750.81d(1), and possession of a firearm during the commission of a felony. Mich. Comp. Laws § 750.227b. The petitioner was sentenced as a third-time habitual felony offender to prison terms of 270 to 500 months for robbery and conspiracy, 2 to 4 years for resisting or obstructing, and a consecutive two year term for the firearm conviction. The petition raises four claims: (1) the trial court did not acquire jurisdiction over his case; (2) the trial court erred by excluding evidence and failing to instruct the jury that the firearm associated with the petitioner was inoperable; (3) the trial court erred by failing to instruct the jury on lesser offenses; and (4) insufficient evidence was presented at trial. The respondent has filed a response to the petition. The Court finds that the petitioner’s claims lack merit and will deny the petition.
The petitioner was jointly tried with Larry Hibler and Truman Canon in the Saginaw County, Michigan circuit court for the January 12, 2004 robbery of a Burger King restaurant in Saginaw, Michigan. At trial, employees of the restaurant testified that on the night of the robbery four men entered the establishment and “jumped the counter.” Hibler brandished a handgun and ordered an employee to open the safe. Other testimony indicated that the man later identified as the petitioner had a handgun visibly tucked into his waistband. The employee complied with Hibler’s demand and the man later identified as the petitioner stuffed the cash from the safe into his pocket. Meanwhile, one employee, Marcus Harrison, who had hid in the freezer, called 9-1-1 on his cell phone.
Nearby police officers quickly responded to the call and converged on the restaurant. The perpetrators fled on foot in different directions. The petitioner was chased by one officer into a nearby woods. The officer eventually overtook the petitioner and tackled him. The officer recovered $1, 207 in small bills from the petitioner’s pocket. An inoperable handgun was later found on the ground along the path on which the petitioner ran.
After conviction and sentencing, the petitioner filed a direct appeal raising three claims:
I Did the trial court err reversibly by denying Appellant’s request that the court instruct the jury that it could not convict Appellant of possession of a firearm during the commission of a felony if the firearm in question was inoperable after having refused a codefendant’s request to present evidence that the gun found was inoperable?
II. The trial court erred reversibly by refusing to give instructions on lesser included offenses requested by Appellant at trial.
III. The trial court erred reversibly by allowing insufficient evidence to be used in Appellant’s trial by the prosecution.
The Michigan Court of Appeals affirmed the petitioner’s convictions in an unpublished opinion, People v. Mayes, No. 259184, 2006 WL 2061353, at *1 (Mich. Ct. App. July 25, 2006), and the state supreme court denied leave to appeal, People v. Mayes, 477 Mich. 1003 (2007) (table).
The petitioner filed a motion for relief from judgment in the trial court on February 27, 2007. The motion appears to have raised the first two claims that the petitioner presented to the state courts during his direct appeal. The trial court denied the motion on February 28, 2007.
The petitioner attempted to file a delayed application for leave to appeal in the Michigan Court of Appeals from the denial of his motion for relief from judgment. On August 30, 2007, the court of appeals dismissed the petitioner’s delayed application because the petitioner failed to pursue the case in conformity with the Michigan court rules. The petitioner did not appeal that order to the Michigan Supreme Court.
The petitioner filed another motion for relief from judgment in the trial court on October 8, 2008. The motion appears to have claimed that the state district court erred in binding the petitioner over to the circuit court for trial. On January 7, 2009, the trial court issued an opinion and order denying the motion. The petitioner did not appeal the denial of this motion to the Michigan Court of Appeals or to the Michigan Supreme Court.
In October 2011, the petitioner filed his habeas petition with this Court raising the claims he presented to the Michigan Court of Appeals. He also contends that the trial court had no jurisdiction because of a defect in the procedure transferring the case to circuit court after the preliminary examination in the district court. The respondent filed an answer to the ...