United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
JOHN CORBETT O'MEARA, District Judge.
Michigan prisoner Elrick Cooper ("petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his constitutional rights. The petitioner was convicted of armed robbery, MICH. COMP. LAWS § 750.529, and possession of a firearm during the commission of a felony ("felony firearm"), MICH. COMP. LAWS § 750.227b, following a jury trial in the Saginaw County Circuit Court. He was sentenced to 25 to 50 years imprisonment on the armed robbery conviction and a consecutive term of two years imprisonment on the felony firearm conviction in 2010.
In his pleadings, the petitioner raises claims concerning the sufficiency of the evidence for his felony firearm conviction and the effectiveness of trial counsel relative to the jury instructions. For the reasons set forth herein, the court finds that those claims lack merit and denies the habeas petition. The court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.
II. Facts and Procedural History
The petitioner's convictions arise from a party store robbery in Saginaw, Michigan on October 8, 2007. The Michigan Court of Appeals provided a factual summary, which is presumed correct on habeas review. See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009) (citing 28 U.S.C. § 2254(e)(1); Monroe v. Smith, 197 F.Supp.2d 753, 758 (E.D. Mich. 2001), aff'd, 41 F.Appx. 730 (6th Cir. 2002). Those facts are as follows:
On October 8, 2007, a man wearing a ski mask and appearing to wield a small handgun robbed the Fast Lane Drive-Thru Party Store at 1200 State Street in Saginaw. Police responded to the scene and, based on the reports of witnesses who observed the robber flee the scene, were able to track defendant down at a nearby apartment. While a search of this apartment was conducted, defendant was detained. Police found money hidden behind the refrigerator and inside a fuse box, as well as a number of items lying on the ground outside an open bathroom window, including a ski cap and a small handgun. Defendant was then taken into custody.
At trial, the prosecution presented DNA evidence from sweat found on the ski cap, handgun, and a "do rag." Although the results from the handgun were inconclusive, the results from the cap and do rag were highly consistent with defendant's DNA. The forensic scientist who collected the DNA swabs from the handgun and the other items also testified that the trigger on the handgun had been welded shut and that, to her knowledge, the operability of the handgun had not been tested by the police. Defendant was convicted as charged....
People v. Cooper, No. 296677, 2011 WL 6785982, *1 (Mich. Ct. App. Dec. 27, 2011) (unpublished).
Following his convictions and sentencing, the petitioner filed an appeal of right with the Michigan Court of Appeals raising the same claims presented on habeas review. The court determined that the claims lacked merit and affirmed the petitioner's convictions. Id. at *1-2. The petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Cooper, 493 Mich. 917, 823 N.W.2d 568 (2012).
The petitioner thereafter filed his federal habeas petition raising the following claims as grounds for relief:
I. He was deprived of his constitutional right to due process of law by being convicted of possession of a firearm during the commission of a felony where the "firearm" possessed had been modified permanently by welding the trigger mechanism in place.
II. He was deprived of the effective assistance of counsel by his attorney's failure to request an instruction to the jury that either defined "firearm" in the language of MCL 750.22(d) or the language of the Supreme Court in Peals, including that concerning substantial alteration in footnote 7.
The respondent has filed an answer to the petition contending that it should be denied because the claims lack merit.
III. Standard of Review
Federal law imposes the following standard of review ...