United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
GEORGE CARAM STEEH, District Judge.
Hamza Gibson, ("Petitioner"), presently confined at the Chippewa Correctional Facility in Kincheloe, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for assault with intent to commit murder and aggravated domestic violence. For the reasons that follow, the petition for writ of habeas corpus is DENIED.
Petitioner was convicted following a bench trial in the Wayne County Circuit Court. Petitioner was also convicted of assault with intent to do great bodily harm but this charge was vacated on appeal by the Michigan Court of Appeals.
On April 12, 2009, petitioner assaulted Frances Magett, the mother of his children, in the street outside her home. Petitioner punched her, knocked her to the ground, and continued to stomp, kick, and punch the victim in the face while telling her, "die, bitch, die." Petitioner broke the victim's nose during the assault. (Tr. 3/25/10, pp. 14-18, 29-32, 42, 55; Tr. 3/26/10, pp. 5, 25). During the assault, the victim's cousin, Nicole Burnside, called 911 and asked for help. (Tr. 3/25/10, pp. 29-30). Two women who were walking down the street attempted to help the victim, but petitioner showed them a gun that was in his waistband, causing the women to back away with their hands up. Petitioner left the victim lying nearly unconscious in the street, speeding away in his car. (Id. at 30-33).
Burnside and two pedestrians picked the victim up off the ground and assisted her up the steps to her house. The victim was unable to stand and collapsed as she was being helped up the steps. The victim was taken by an ambulance to the hospital. (Id. at 15-16, 34). The victim suffered a broken nose, swollen face, two black eyes, facial lacerations, and a cut lip requiring stitches. (Id. at 16-18, 55; Tr. 3/26/10, pp. 32-33).
Petitioner admitted striking the victim "quite a few times, " but denied intending to kill her. (Tr. 3/26/10, pp. 5-8).
Petitioner's conviction was affirmed on appeal. People v. Gibson, No. 297814, 2011 WL 2858884 (Mich. Ct. App. July 19, 2011); lv. den. 490 Mich. 971 (2011).
Petitioner filed a habeas petition, which was held in abeyance to permit petitioner to return to the state courts to exhaust additional claims that he had failed to raise in the state courts prior to filing his habeas petition. The Court administratively closed the case. Gibson v. McLaren, 2013 WL 1337353 (E.D. Mich. April 1, 2013).
Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Gibson, XX-XXXXXX-XX (Third Judicial Circuit Court for the County of Wayne, September 10, 2013). The Michigan appellate courts denied petitioner leave to appeal. People v. Gibson, No. 319683 (Mich.Ct.App. February 4, 2014); lv. den. 497 Mich. 853 (2014).
On September 25, 2014, the Court lifted the stay and reinstated the case to the Court's active docket.
In his amended habeas petition, petitioner seeks habeas relief on the following grounds:
I. The lack of sufficient evidence sustaining my assault with intent to murder conviction.
II. Conviction obtained by violating double jeopardy protections.
III. Denial of arraignment on assault with intent to murder.
IV. Bindover issue.
Although unclear, petitioner may also be seeking habeas relief on two additional claims that he raised in his original habeas petition. These claims are:
V. (Claim # 3 on the original petition). Denial of right to effective appeal.
VI. (Claim # 4 on the original petition). Denial of due process and the effective assistance of counsel.
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 ...