United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
NANCY G. EDMUNDS, District Judge.
Marvin Habib Shammami, ("Petitioner"), presently confined at the Cooper Street Correctional Facility in Jackson, Michigan, has filed a petition for writ of habeas corpus through his attorney James C. Thomas, pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84, and possession of a firearm during the commission of a felony (felony firearm), M.C.L.A. § 750.227b. For the reasons that follow, the petition for writ of habeas corpus is DENIED.
Petitioner was originally charged with assault with intent to murder and felonyfirearm. Following a jury trial in the Oakland County Circuit Court, petitioner was found guilty of the lesser offense of assault with intent to do great bodily harm and guilty as charged of felony-firearm.
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 arises out of an incident that happened on the evening of February 10, 2011, into the early morning hours of February 11, 2011, at a club in Southfield that resulted in the shooting of Michael Yasso. Yasso was shot twice, first in the stomach and then in the arm. Defendant's theory of the case was that the shots occurred quickly, both before Yasso fell to the ground, and were fired in self-defense. The prosecution's theory of the case was that both gunshots constituted unnecessary force and that, even if the second shot occurred before Yasso fell to the ground, the shots were not fired in self-defense.
People v. Shammami, No. 309603, 2013 WL 3717790, * 1 (Mich.Ct.App. July 16, 2013).
Petitioner's conviction was affirmed on appeal, Id .; lv. den. 495 Mich. 902, 839 N.W.2d 214 (2013).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Trial counsel's representation fell below an objective standard of reasonableness when the testimony at the post-conviction hearing revealed that defense counsel failed to either investigate or call known eye-witnesses, even though the trial judge ruled at the conclusion of the hearing that two of the witnesses were credible and could have contributed exculpatory evidence to petitioner's case at trial.
II. The prosecuting attorney deprived petitioner of a fair trial by engaging in prosecutorial misconduct when he argued to the jury in closing argument about petitioner's "failure" to produce witnesses in support of his case.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 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 ...