United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
AVERN COHN, District Judge.
This is a habeas case under 28 U.S.C. § 2254. Petitioner Rafiel Riggins (Petitioner), proceeding pro se, is incarcerated at a Michigan correctional facility as a result of his state court conviction of assault with intent to commit murder, M.C.L. §750.83, felon in possession of a firearm, M.C.L. §750.224f, and possession of a firearm during the commission of a felony, M.C.L. §750.227b. Petitioner was sentenced to 30-to-60 years for the assault conviction, a concurrent term of 1-to-5 years for the felon in possession conviction, and a consecutive ten years for the felony firearm conviction. Petitioner raises eight claims, as will be set forth below. The petition will be dismissed because none of the claims warrant habeas relief.
Petitioner's conviction resulted from the shooting of Robert Mynum. The following was the evidence at trial.
Over a period of several years prior to the shooting, Petitioner and the victim, who were close friends, were each involved in a sexual relationship with Monique Brothern. On May 8, 2006, Brothern called Mynum numerous times because she wanted to see him later that night. Petitioner was with Mynum and other men at a house when Brothern called. After Petitioner left the house, Mynum went to meet Brothern in front of her house.
When Mynum arrived at Brothern's house, she walked outside and stepped into his minivan. As they talked in the van, Mynum heard gunshots coming from outside the passenger side of the van. Brothern climbed out the van, and Mynum dropped to the floor. Mynum was shot in the left ankle, left lower leg, left upper thigh, left buttocks, and right calf. After the gunshots stopped, Mynum saw Petitioner open the van door, holding a gun, and looking angry.
Mynum initially thought Petitioner was there to save him; however, before falling and passing-out, Petitioner hit him in the head with the gun. Mynum also remembered hearing Petitioner's voice as he was kicked, just prior to losing consciousness. Mynum never saw Petitioner firing the gun.
Brothern, who had run back to her house after the shooting, looked out her window and saw Petitioner lift Mynum out of the van. She then she saw Mynum falling on Petitioner. Petitioner pushed Mynum off and kicked him in the face. Brothern ran outside to help; Petitioner told her to get back in the house. Brothern never saw Petitioner with a gun.
According to Petitioner, he went with Mynum to pick up Brothern. After she climbed into the van, a car drove by and fired multiple shots. Some shots hit Mynum; Petitioner pulled him out the van. Petitioner grabbed a gun he saw lying in the middle of the street, as he dragged Mynum to the sidewalk. Petitioner attempted to pull Mynum to the house for safety and only slapped him in the face in an attempt to revive him.
Tezereina Lewis, who resided on the same street, testified that she looked out her window after hearing gunshots to see one person on top of another, beating him multiple times in the head. The man on top asked if the other man was "ready to die." The man on top then handed something off to a third person. When police arrived, this man told them that somebody had hurt his friend. Lewis called police and told them the man claiming to be a witness had been hitting the other man. Lewis identified the attacker as wearing a red t-hirt, the same color shirt Petitioner was wearing when police arrived.
A second neighbor, Kathleen Starasinich was in bed, watching television, when she heard gunshots. She called 9-1-1, heard another gunshot, and then the sound of someone getting beaten. One man said, "come on bitch, wake up, " and "I'm going to fuck you up, bitch." In between these statements, Starasinich heard another gunshot. A few minutes later the police arrived. Starasinich went to the scene. She heard Petitioner telling policemen, "that's my boy, that's my man. You all ain't going to get an ambulance for him." Starasinich believed that Petitioner's voice was the same one that earlier said "I'm going to fuck you up bitch." She told this to police officers.
Police Officer Ricky Betts arrived on the scene after a call of shots fired and an assault. Mynum was lying in the driveway covered with blood. Petitioner stood nearby, talking to other police officers on the scene. Betts recovered a handgun near a fence about fifteen feet from the minivan, and ten feet from the location of Mynum and Petitioner.
Evidence technicians recovered three.40 caliber shell casings. The shell casings came from the recovered firearm, a blue steel automatic, which also had blood in the barrel. The minivan had two bullet holes in the glass on the rear driver's side door. Blood led from the walkway of the house to the porch. Petitioner had blood smears on both his pants and gym shoes. Petitioner had insufficient particles on his hands and body to identify the presence of gunshot residue.
Mynum woke up in the hospital three days later. He needed multiple skin grafts and stitches for the gunshot injuries. He also injured his lip, had scars around his eyes, had a fracture above his eye, and had hearing difficulties. Mynum spent one month in hospital recovering from his injuries. At the time of trial, he suffered memory loss and hearing problems in his right ear.
Petitioner filed a direct appeal in the Michigan Court of Appeals, raising the following claims:
I. Petitioner's conviction of assault with intent to murder was constitutionally deficient and must be vacated because there was insufficient evidence to convict him of shooting Robert Mynum.
II. Petitioner is entitled to resentencing where the trial court violated his state and federal constitutional due process rights in wrongly scoring offense variables, and where these mistakes resulted in a higher sentencing guidelines range.
The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. People v. Riggins, No. 274093, 2008 WL 314934, (Mich. Ct. App. Feb. 5, 2008). Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims that were raised in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed by the Court. People v. Riggins, 481 Mich. 881 (2008).
Petitioner then filed the current petition. (Doc. 1). After filing, Petitioner moved to hold his petition in abeyance so that he could return to the state court to exhaust his state court remedies with respect to additional claims. (Doc. 11). The Court granted the motion. (Doc. 14)
Petitioner returned to the state court and filed a motion for relief from judgment, raising the following claims:
I. Petitioner is entitled to a new trial where the public was excluded from the courtroom and there was no accommodation for public access to the proceedings during jury selection, which violated [Petitioner's] Sixth Amendment Right to a public trial.
II. Petitioner was denied due process and a fair trial, where the prosecution: (a) withheld evidence; (b) failed to admit evidence for the jury to view, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Defense trial counsel was constitutionally ineffective in failing to present a defense and raise these issues during trial.
III. Petitioner was denied due process and a fair trial where, (a) the court made improper judicial comments and (b) improper evidentiary ruling.
IV. Defense trial counsel and appellate counsel were constitutionally ineffective when trial counsel failed to object to: (a) the closure of the court, (b) the waiver of witnesses, (c) the improper evidentiary ruling, the witnesses' statements not being admitted, and (d) failure to raise issues of constitutional magnitude.
V. The court abused [its] discretion by imposing court costs and attorney
fees without [assessing] defendant's ability to pay.
VI. [Petitioner] was constructively denied the right to counsel, when counsel was assigned on the same day of his preliminary examination, shortly before the hearing itself.
The trial court denied the motion for relief from judgment, rejecting each of Petitioner's new claims on the merits. See Doc. 22-5, Opinion and order on Defendant's Motion for Relief from Judgment. Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, raising the same claims. The Michigan Court of Appeals denied the application for leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). People v. Riggins, No. 307591 (Mich. Ct. App. June 8, 2012). The Michigan Supreme Court also denied relief under Rule 6.508(D). People v. Riggins, 493 Mich. 917 (2012) (table).
Petitioner then filed an amended petition (16), presenting the following claims: (1) sufficiency of the evidence, (2) improper scoring of a sentencing variable, (3) denial of a public trial, (4) prosecutorial misconduct, (5) judicial bias, (6) ineffective assistance of counsel, (7) improper imposition of costs and fees, and (8) constructive denial of counsel at preliminary examination.
III. Standard of Review
28 U.S.C. § 2254(d) 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 Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...