United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
GERSHWIN A. DRAIN, District Judge.
Petitioner Edward Pinder filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Pinder is a state prisoner in the custody of the Michigan Department of Corrections pursuant to convictions for assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, felonious assault, Mich. Comp. Laws § 750.82, intentional discharge of a firearm at a dwelling or occupied structure, Mich. Comp. Laws § 750.234b, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. He argues that his convictions were obtained in violation of his constitutional rights because: his guidelines were incorrectly scored, the prosecution withheld exculpatory evidence and knowingly used perjured testimony, he received ineffective assistance of trial counsel, insufficient evidence was presented to sustain the convictions, and he received ineffective assistance of appellate counsel. Respondent argues that the claims are non-cognizable, procedurally defaulted, and meritless.
I. Background and Procedural History
The Michigan Court of Appeals summarized the evidence adduced at trial leading to Petitioner's convictions as follows:
All of defendant's convictions stem from a series of encounters he had with the complainants, Anthony and Gracie Gladney. The complainants first encountered defendant as they were exiting their vehicle outside Anthony's mother's home. Gracie testified that, as she exited the vehicle, she was almost struck by defendant as he rode by on a bike. Words were exchanged and defendant took a gun from a pocket and brandished it about. The complainants retreated into the house. The record suggests that, less than one hour later, defendant returned while the complainants, Anthony's mother, and her caregiver were sitting on the porch. The four occupants on the porch quickly retreated into the home, and defendant called out, "If I see you again tonight, you're done." According to Gracie's testimony, at this same time, she attempted to close the window blinds and saw defendant point a gun at the home. She recalled hearing five gunshots fired toward the home. Anthony's testimony differed only in that he recalled a period of time, less than one-half hour, separating the retreat from the porch and the gunshots.
People v. Pinder, No. 290225, 2010 WL 3489676, *1 (Mich. Ct. App. Sept. 7, 2010).
Petitioner was convicted following a bench trial in Wayne County Circuit Court of assault with intent to do great bodily harm less than murder, felon in possession of a firearm, felonious assault, intentional discharge of a firearm at a dwelling, and felony firearm. He was sentenced on November 26, 2008, to five to ten years' imprisonment for the assault conviction, two to five year's imprisonment for the felon-in-possession conviction, two to four years' imprisonment for the felonious-assault conviction, and two to four years' for the discharge of a firearm.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising these claims: (i) insufficient evidence presented to support conviction for assault with intent to cause great bodily harm less than murder; (ii) insufficient evidence presented to support felonious assault conviction; and (iii) offense variable 1 incorrectly scored. The Michigan Court of appeals affirmed Petitioner's convictions and sentences. People v. v. Pinder, No. 290225, 2010 WL 3489676, (Mich. Ct. App. Sept. 7, 2010).
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. Pinder, 488 Mich. 996 (Mich. Dec. 20, 2010).
Petitioner returned to the trial court and filed a motion for relief from judgment. He raised these claims: (i) Michigan Court of Appeals denied Petitioner due process of law when it applied a technical bar to sentencing claim; (ii) ineffective assistance of trial counsel; and (iii) ineffective assistance of appellate counsel. The trial counsel denied leave to appeal. Petitioner sought leave to appeal the trial court's decision in the Michigan Court of Appeals and, after the court of appeals denied leave, People v. Pinder, No. 306098 (Mich. Ct. App. Oct. 22, 2012), in the Michigan Supreme Court, which also denied leave to appeal. People v. Pinder, 493 Mich. 868 (Mich. Oct. 22, 2012).
Petitioner then filed the pending habeas petition. He raises these claims:
I. Michigan courts refuse to apply protection of federal and state law by not correcting a plain error involving Pinder's sentence score.
II. The prosecution withheld exculpatory evidence and knowingly used perjured testimony of victims.
III. Pinder was denied the effective assistance of counsel for the following reasons:
a. Counsel failed to obtain the entire scope of discovery. This discovery evidence was exculpatory and should have been available at preliminary examination.
b. Counsel did not object to withheld evidence.
c. Counsel did not properly object to Pinder's sentence score for OV1.
IV. There was insufficient evidence to support Pinder's conviction of assault with intent to cause great bodily ...