United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
AVERN COHN, District Judge.
This is a habeas case under 28 U.S.C. § 2254. Petitioner Vincent Emery (Petitioner), proceeding pro se, is a state inmate at the Alger Correctional Facility in Munising, Michigan. Petitioner challenges his convictions for assault with intent to do great bodily harm, armed robbery, felon in possession of a firearm, felonious assault, and possession of a firearm during the commission of a felony. Respondent, through the Attorney General's office, filed a response, arguing that Petitioner's claims are without merit. For the reasons which follow, the petition will be denied.
The Michigan Court of Appeals summarized the evidence adduced at trial leading to Petitioner's convictions as follows:
This case arises from a shooting that occurred at a residence on Belding in Westland, Michigan around midnight on February 3, 2007. On that date, Jessica Sloup received a call from defendant at about 9:00 p.m., asking her to come over to his new house and bring the man she was dating, Daniel Popovits, so they could all hang out that night. Sloup picked up Popovits when he got off work and drove him to defendant's house, arriving around midnight. Defendant was standing on the porch when they arrived and let them in the house. Another man, Jason Shuford, was present in the house when Sloup and Popovits arrived. Shortly after they arrived, defendant came out of the kitchen, sneaking around a corner with a gun pointed at Popovits. Defendant approached Popovits and pistol-whipped him on the left side of his head. Then, defendant pointed the gun at Popovits's face. When Popovits reached for the gun, defendant fired it. The bullet hit Popovits in his left forearm, and exited out his elbow. After shooting Popovits, defendant told him to empty his pockets and demanded his keys and cell phone with the gun still pointed at him. Popovits complied, emptying his pockets of his cell phone and cash. Defendant told Popovits and Sloup to leave, which they did. Sloup was driving Popovits to the hospital when they were pulled over by a police officer. A week after the incident, police arrested defendant in West Virginia.
People v. Emery, No. 282613, 2009 WL 1101534, *1 (Mich. Ct. App. Apr. 23, 2009).
B. Procedural History
Petitioner was convicted by a jury in Wayne County Circuit Court of assault with intent to do great bodily harm, armed robbery, felon in possession of a firearm, felonious assault and possession of a firearm during the commission of a felony. On November 15, 2007, he was sentenced to one to ten years' imprisonment for the assault with intent to do great bodily harm conviction, seventeen to twenty-six years' imprisonment for the armed robbery conviction, one to five years' imprisonment for the felon-in-possession conviction, one to four years' imprisonment for the felonious assault conviction, and two years' imprisonment for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising these claims: (i) Petitioner was denied his right to the effective assistance of counsel when trial court denied Petitioner's request for removal of court-appointed attorney; (ii) counsel was ineffective in failing to investigate and present a substantial defense; and (iii) sentence imposed for armed robbery conviction violated Mich. Comp. Laws § 769.34(2)(B). The Michigan Court of Appeals affirmed Petitioner's convictions and sentences. People v. Emery, No. 282613, 2009 WL 1101534, *1 (Mich. Ct. App. Apr. 23, 2009).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Emery, 485 Mich. 976 (2009).
Petitioner then filed a motion for relief from judgment in the trial court raising a claim that his appellate attorney was ineffective in failing to provide factual support for the ineffective assistance of trial counsel claim raised on direct appeal. The trial court denied the motion. 3/30/11 Opinion, People v. Emery, No. 07-006705-01-FC (Wayne County Cir. Ct). The Michigan Court of Appeals denied Petitioner's application for leave to appeal the trial court's decision, People v. Emery, No. 309208 (Mich. Ct. App. Sept. 18, 2012); as did the Michigan Supreme Court. People v. Emery, 493 Mich. 952 (2013).
Petitioner then filed the pending habeas petition. He raises these claims:
I. The trial court's denial of Emery's request for the removal of his courtimposed attorney, who refused to challenge the credibility of the complaining witnesses, deprived Emery of his state and federal constitutional right to effective assistance of counsel and his Fourteenth Amendment right to due process.
II. Emery was denied his constitutional right to the effective assistance of counsel by his trial attorney's failure to ...