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Allen v. Rapelje

United States District Court, E.D. Michigan, Southern Division

June 5, 2015

BERNARD ALLEN, Petitioner,
LLOYD RAPELJE, Respondent.


MARK A. GOLDSMITH, District Judge.

Petitioner Bernard Allen, confined at the Saginaw Correctional Facility in Freeland, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 2), through his attorney, Laura K. Sutton, challenging his conviction for two counts of armed robbery, Mich. Comp. Laws § 750.529. For the reasons explained fully below, the Court denies the petition for writ of habeas corpus.


Petitioner was convicted following a jury trial in the Wayne County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).

This case arose out of a robbery that occurred at approximately 5:30 a.m. on January 20, 2007, when the victims, Damien Boyd and Lamarco Greenwood, stopped at a gas station on Fenkell Street in the city of Detroit to fill Greenwood's 1996 Ford Taurus with gas on their way to work. They were subsequently robbed by two men, who pulled up to the gas station in a 1994 gold Chevrolet Lumina. Boyd gave detailed testimony regarding the circumstances surrounding the armed robbery. He also identified defendant in court as the driver of the Lumina. Three days after the robbery, police officers attempted to stop a Lumina that fit the description of the vehicle that Boyd had given. When the police activated the lights and siren, the Lumina accelerated, turned right and crossed through an open field. A chase ensued, and ultimately, the Lumina stopped and the occupants fled on foot. One of the officers observed defendant exit the Lumina from the driver's seat. The officer chased defendant and ultimately found defendant hiding in a large black trash receptacle, where defendant was apprehended.
On January 24, 2007, Sergeant Robert Lalone conducted a lineup with defendant and the other perpetrator. Officer Lalone and Boyd both testified at trial that Boyd identified defendant in the lineup. Officer Lalone further testified that Greenwood identified defendant in the lineup.
Although Greenwood was expected to appear and testify at trial, he failed to appear. The prosecution sought to introduce Greenwood's testimony from defendant's preliminary examination. The trial court determined that this was permissible, and Greenwood's testimony from the preliminary examination was read into the record.
Defendant presented an alibi defense at trial, claiming that he was with his girlfriend. Defendant's girlfriend testified that at the time of the armed robbery, defendant was at home with her and the couples' children.
A jury convicted defendant of two counts of armed robbery.

People v. Allen, No. 278735, 2009 WL 1508881, at *1 (Mich. Ct. App. May 26, 2009).

The Michigan Court of Appeals affirmed Petitioner's conviction was affirmed on appeal, id. at *8, and the Michigan Supreme Court denied leave to appeal. People v. Allen, 777 N.W.2d 156 (Mich. 2010).

Petitioner filed a post-conviction motion for relief from judgment (Dkt. 8-9), which was denied. People v. Allen, No. 07-5400-01, Op. & Order (Wayne Cnty. Cir. Ct. June 2, 2011) (Dkt. 8-7). The Michigan appellate courts denied Petitioner leave to appeal. People v. Allen, No. 307330, Order (Mich. Ct. App. May, 21, 2012) (Dkt. 8-15); People v. Allen, 822 N.W.2d 581 (Mich. 2012).

In the brief in support of the petition for writ of habeas corpus, Petitioner seeks habeas relief on the following grounds:

i. "Bernard B-Gregory Allen was wrongfully denied his Sixth Amendment right to retained counsel of choice."
iii. "Bernard B-Gregory Allen was wrongfully denied his due process rights to a fair trial and to present a defense where the trial court told the jury not to concern themselves with why complainant Greenwood failed to appear."
iiii. "Bernard B-Gregory Allen's right to confrontation was denied by the improper admission of hearsay testimony of prior identification."
iiv. "Bernard B-Gregory Allen's convictions for armed robbery violate due process and constitute an extreme malfunction of the Michigan criminal justice system because the evidence was insufficient as to each element of the charged offenses."
iv. "Bernard B-Gregory Allen was denied the effective assistance of trial counsel when counsel's total trial performance is considered."
ivi. "Bernard B-Gregory Allen is entitled to habeas relief because he was denied his right to the effective assistance of counsel on his direct appeal."

iPet'r Br. at (Dkt. 5).


Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, 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 presented in the State court proceeding.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). An "unreasonable application" occurs when "a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.

The Supreme Court has explained that a "federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Thus, the AEDPA "imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010) (quotation marks and citations omitted). A "state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102. Furthermore, pursuant to section 2254(d), "a habeas court must determine what arguments or theories supported or... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. Habeas relief is not appropriate unless each ground that supported the state-court's decision is examined and found to be unreasonable under the AEDPA. See Wetzel v. Lambert, 132 S.Ct. 1195, 1199 (2012).

"If this standard is difficult to meet, that is because it was meant to be." Harrington, 131 S.Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from re-litigating claims that have previously been rejected in the state courts, it preserves the authority for a federal court to grant habeas relief only "in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" the Supreme Court's precedents. Id. Indeed, section 2254(d) "reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. (quotation marks omitted). Thus, a "readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law." Woodford v. Viscotti, 537 U.S. 19, 24 (2002). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state-court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 131 S.Ct. at 786-787.


A. Claim One: Choice-of-Counsel Claim.

Petitioner alleges he was denied his right to counsel of choice when the trial court, on the first day of trial, denied his request for an adjournment so that he could retain a new lawyer. Pet'r Br. at 8. At the beginning of the case, Petitioner had retained attorney Randall Upshaw to represent him. Upshaw represented Petitioner at the preliminary examination. After the case was bound over to the Wayne County Circuit Court for trial, Upshaw filed a motion to withdraw as counsel. The trial judge later noted, "I allowed [Upshaw] to withdraw because he wasn't being paid and I appointed Ms. George because [Petitioner] indicated [he] did not have the fund[s] to hire a lawyer...." 5/21/2007 Trial Tr. at 4 (Dkt. 8-3).

On the same day that the trial court granted Upshaw's motion to withdraw, he appointed an attorney to represent Petitioner. See Register of Actions at 2 (Dkt. 8-1). The trial judge issued an order on that date, setting trial for May 21, 2007. See 4/12/2007 Trial/Notice at 1 (cm/ecf page) (Dkt. 8-8). The order also stated that "[n]o adjournments will be granted, except upon order of the Trial Judge for contingency which could not have been anticipated." Li

On the first day of trial, Petitioner informed the court that he wished to hire a new attorney:

MS. GEORGE: I'm Jacqueline George representing Mr. Allen. It's come to my attention that my client wishes to retain an attorney at this point. His brother is here saying that he would pay this new ...

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