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Etchie v. Warren

United States District Court, Eastern District of Michigan, Southern Division

March 31, 2015

CAROL ETCHIE, Petitioner,
v.
MILLICENT WARREN, Respondent.

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS

Victoria A. Roberts, United States District Judge.

Carol Etchie, (“Petitioner”), confined at the Women’s Huron Valley Correctional Facility in Ypsilanti, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges her conviction for assault with intent to murder, M.C.L.A. § 750.83, and felony firearm, M.C.L.A. § 750.227b.

For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

A jury convicted Petitioner in Wayne County Circuit Court. The evidence produced at trial reflects that Lino Jimenez, and his girlfriend, Amy Aguilar, were en route to look at a possible used car for Ms. Aguilar located on Lawndale Street. (Tr. 9/21/10, pp. 97-98). Because there were no available parking spots on the road, Mr. Jimenez parked in an empty lot that was between an empty business and Petitioner’s house. (Id. at 99-100, 119). There were no signs, so Mr. Jimenez thought he was parking in a vacant lot and parked close to the empty business. (Id. at 101, 107, 115-16, 166, 187, 206). One of their daughters who remained in the car began yelling, prompting Ms. Aguilar to leave the car seller’s house. Ms. Aguilar saw Petitioner yelling at her daughter, attempted to move the car, but hit a pole. Mr. Jimenez heard the commotion, looked out of the house window, saw Ms. Aguilar attempting to move the car, left the house and moved the car back to its original spot. As Ms. Aguilar explained to Mr. Jimenez that a “lady” was yelling at their daughter, Petitioner approached the car. (Id. at 102-109, 124-125, 166-168).

She attempted to take a picture. When Mr. Jimenez tried to speak to Petitioner, she told him to “get away.” Less then a minute later, Petitioner pulled a gun out of a pouch she carried around her neck. Mr. Jimenez asked if she was going to shoot him; he then heard four shots. He was hit in his hand, back of the arm, back, and the back of the head. (Id. at 106-110).

Ms. Alissa Johnson Shahan was walking with her next door neighbor at approximately 7:00 p.m. in the evening. Ms. Shahan observed the confrontation between Petitioner and Mr. Jimenez. Petitioner pulled out a gun and Mr. Jimenez put his hands in the air. Mr. Jimenez said “shoot me shoot me I’m not afraid of no gun.” Petitioner shot Mr. Jimenez 3 times and he fell to the ground. Petitioner stood over Mr. Jimenez and shot at him 2 more times. (Id., p. 207).

Petitioner testified that she was 65 years of age at the time of the incident. Petitioner went to the front door of her house after hearing a commotion outside. Petitioner testified that when she goes to the front door she brings a fanny pack which holds her gun for protection. Petitioner testified that she has been the victim of crimes in the past. (Tr. 9/22/10, pp. 8-10). Much of Petitioner’s testimony concerning the events mirrored the testimony of the victim and the other witnesses. (Id., pp. 14-20). Petitioner, however, testified that she shot Mr. Jimenez in self-defense. Petitioner testified that Mr. Jimenez walked toward her vehicle parked in her driveway and tried to open the rear door, but the car was locked. Mr. Jimenez began walking away before turning around and charging at her. Petitioner claimed that Mr. Jimenez came within 18 inches to 24 inches from her before raising his hand to try and back hand her. Petitioner unzipped her fanny pack, pulled the gun out and shot Mr. Jimenez. Petitioner testified that she shot Mr. Jimenez because she was afraid he was going to hurt her. Petitioner testified that when she fired the first shot, Mr. Jimenez was trying to punch her. Mr. Jimenez fell after being shot. Mr. Jimenez began to rise from the ground. Petitioner was surprised that Mr. Jimenez was able to get back up and she shot him two more times. Petitioner testified that she was afraid of Mr. Jimenez getting to her before she could enter her home. (Id., pp. 20-28).

Petitioner’s conviction was affirmed. People v. Etchie, No. 301497, 2012 WL 556194, (Mich. Ct. App. Feb 21, 2012), lv. den. 493 Mich. 865, 820 N.W.2d 918 (2012).

Petitioner seeks a writ of habeas corpus on the following ground: Ms. Etchie was denied her constitutional right to the effective assistance of counsel due to counsel’s failure to introduce evidence of Ms. Etchie’s post-traumatic stress disorder which developed following a brutal attack in her younger years.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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