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Epperson v. Burt

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

October 28, 2016

DWAYNN EPPERSON, Petitioner,
v.
S.L. BURT, Respondent.

          ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS (DOCUMENT NO. 1), DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE

         Michigan prisoner Dwaynn Epperson filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. He was convicted of assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84, and felonious assault, Mich. Comp. Laws § 750.82, following a jury trial in the Wayne County Circuit Court. He was sentenced to concurrent terms of 6 to 25 years imprisonment and 6 to 15 years imprisonment on those convictions in 2012. In his pro se pleadings, Epperson raises claims concerning the sufficiency of the evidence, the charging decision of the prosecutor, and double jeopardy. For the reasons below, the Court will deny the petition, deny a certificate of appealability and deny leave to proceed in forma pauperis on appeal.

         BACKGROUND

         Epperson's convictions arose from an altercation with Jeremiah Fish in Detroit, Michigan on January 16, 2012. The Court adopts the statement of facts set forth by defense counsel on direct appeal to the extent that it is consistent with the record:

Jeremiah Fish is the complaining witness in this case. At the time of the offense, he was 17 years of age. (TT 5/1/2012 p 91). On January 16, 2012, he went to visit his friend, Vanessa Wheatley, at her house, located at 4810 Cabot Street in the City of Detroit. (TT 5/1/2012 p 92). Mr. Fish testified that he arrived about noon and went into Ms. Wheatley's bedroom where they watched TV and smoked marijuana. He has known Ms. Wheatley for approximately 3 years. (TT 5/1/2012 p 94). After approximately 2 hours, Mr. Epperson walked into Vanessa's room and told Mr. Fish that he had to leave because it was getting late. (TT 5/1/2012 p 97). It should be pointed out at this point that Mr. Fish's testimony about arriving at noon was inconsistent with the testimony of Vanessa Wheatley, who indicated he arrived at approximately 10:00 p.m. and departed around midnight. (TT 5/1/2012 p 160).
Mr. Fish continued his testimony by indicating he was shocked that Mr. Epperson was asking him to leave because this was not Mr. Epperson's house. Mr. Epperson left the room, but returned to ask Mr. Fish to leave once again. Mr. Fish responded "I'm not your kid and not going to listen to you". Mr. Epperson started yelling and told him to get out of the room. Eventually, Mr. Epperson put his hands on Mr. Fish to grab him by the collar with both hands. (TT 5/1/2012 p 101). A fight ensued. Mr. Fish indicated that he hit him and knocked him down falling into the closet. (TT 5/1/2012 p 102). As Mr. Epperson was trying to get up, Mr. Fish struck him again. (TT 5/1/2012 p 103). At this point, Mr. Fish began to leave the house with Mr. Epperson following. (TT 5/1/2012 p 104). Mr. Fish was standing in front of the house when Mr. Epperson came at him, striking him with something in his right hand. Mr. Fish did not see a weapon and prior to being struck he heard Vanessa Wheatley say "Jeremiah watch out." (TT 5/1/2012 p 105). Although Mr. Fish did not feel as though he had been stabbed, he saw blood on his abdomen. He soon discovered he was stabbed in the lower abdomen. (TT 5/1/2012 p 107). Mr. Fish testified that Mr. Epperson tried to come at him again 3 or 4 times. (TT 5/1/2012 p 108). Eventually Mr. Epperson and Vanessa Wheatley walked down the street, borrowed a telephone and called the police. Ultimately, Mr. Fish was transported to the hospital by EMS where he underwent surgery and stayed for several days. (TT 5/1/2012 p 114).
Vanessa Wheatley was the next witness to testify. (TT 5/1/2012 p 159). Ms. Wheatley testified that on January 16, 2012, Jeremiah Fish came over to her home at approximately 9 or 10:00 at night. They sat in her bedroom watching TV. (TT 5/1/2012 p 160). She testified that Dwaynn Epperson is her step-father, he is her sister Melissa's (age 7) father and they share the same mother. (TT 5/1/2012 p 163). It was approximately 11 or 12:00 at night when Mr. Epperson asked Mr. Fish to leave. (TT 5/1/2012 p 164). Ms. Wheatley stated that Mr. Epperson came in and said "Jeremiah are you going to leave, it's getting late." Jeremiah Fish said "No, I'm not leaving, it's not your house." (TT 5/1/2012 p 165). Mr. Epperson pushed Jeremiah and they started fighting.
Ms. Wheatley stated she only saw about 10 seconds of the fight because she went to ask her mother if Jeremiah could stay. Eventually, Mr. Fish left the house and she followed him. (TT 5/1/2012 p 168). She never saw Mr. Epperson run from the house with a weapon. Also, she never heard Mr. Epperson say anything to Mr. Fish once they were outside the house. Ms. Wheatley stated she did not notice any injury to Jeremiah Fish until they had walked up to Michigan Avenue. Mr. Fish showed her a wound the size of a quarter. At that point, she saw her uncle on the street and asked if they could use his telephone. (TT 5/1/2012 p 170). She never saw Mr. Epperson with a weapon. (TT 5/1/2012 p 171). She admitted that she and Mr. Fish had been smoking marijuana in her bedroom before this happened. (TT 5/1/2012 p 172). She further testified that she didn't see any altercation outside between Mr. Fish and Mr. Epperson because she wasn't paying attention.
On cross-examination Ms. Wheatley testified that upon his arrival, Mr. Fish looked high. (TT 5/1/2012 p 175). They both smoked marijuana. She stated that during the portion of the fight she witnessed between Mr. Fish and Mr. Epperson, Mr. Fish was basically throwing all of the punches. (TT 5/1/2012 p 178). Ms. Wheatley testified that located in her room was a TV stand with sharp edges, a big screen TV with sharp edges and a heater with sharp edges. (TT 5/1/2012 p 179). Ms. Wheatley testified she never saw a weapon in Mr. Epperson's hand and never saw him threaten Mr. Fish with a weapon. (TT 5/1/2012 p 180).
Police Officer Donald Hyatt testified that on January 16, 2012, he was working patrol in a marked scout car. He was the officer who responded to the call regarding Jeremiah Fish. Upon his arrival, he saw the victim and a white female. He observed a puncture wound mark about 2 inches on Mr. Fish's abdomen. (TT 5/1/2012 p 190). There was also some blood on his stomach. Officer Hyatt described Mr. Fish's demeanor as "calm, upset." (TT 5/1/2012 p 192). After speaking with Mr. Fish, the officer went to 4810 Cabot and observed the suspect peeking through the window. (TT 5/1/2012 p 193). A white female came to the door and the officer asked for Mr. Epperson. Mr. Epperson came outside and was arrested. (TT 5/1/2012 p 194). A pat down of Mr. Epperson produced a State of Michigan Identification card with the address of 4810 Cabot. (TT 5/1/2012 p 196). On cross-examination, the officer testified that no knife or other weapon was found. (TT 5/1/2012 p 199).
Police Officer Mark Williams testified that he interviewed Mr. Epperson after his arrest. (TT 5/1/2012 p 205). He testified to providing Mr. Epperson with his constitutional rights and Mr. Epperson agreed to make a statement. Mr. Epperson denied stabbing anyone and could not remember having a knife or stabbing Mr. Fish.
The next witness to testify was Dr. James Tibursky, M.D. Dr. Tibursky treated Mr. Fish at Detroit Receiving Hospital. (TT 5/2/2012 p 5). Dr. Tibursky testified that there was a very small wound to the outside, less than an inch long, it penetrated the skin and muscle and there was little bleeding. The wound was approximately 5 or 6 inches deep. (TT 5/2/2012 p 9). Dr. Tibursky did exploratory surgery and repaired a hole in Mr. Fish's colon.
On cross-examination, Dr. Tibursky testified that it is possible that the wound could have been made by another sharp object besides a knife. The object would have had to be narrow and long. (TT 5/2/2012 p 13).
Following the testimony of Dr. Tibursky, the people moved to amend the criminal information to include "a metal cutting instrument." There was no objection by the defense. (TT 5/2/2012 p 28).

Def. App. Brf. 5-8, ECF No. 9-9.

         At the close of trial, the jury convicted Epperson of assault with intent to do great bodily harm less than murder, and felonious assault. The trial court subsequently sentenced him to concurrent terms of 6 to 25 years imprisonment and 6 to 15 years imprisonment.

         Following sentencing, Epperson filed an appeal of right with the Michigan Court of Appeals raising the same claims presented on habeas review. The Michigan Court of Appeals denied relief on those claims and affirmed Epperson's convictions. People v. Epperson, No. 311933, 2014 WL 265520 (Mich. Ct. App. Jan. 23, 2014) (unpublished). Epperson then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Epperson, 495 Mich. 1008 (2014).

         Epperson filed a federal habeas petition in 2015. Pet., ECF No. 1. He raises claims concerning the sufficiency of the evidence, the charging decision of the prosecutor, and double jeopardy. Id. Respondent contends that the petition should be denied because the double jeopardy claim is ...


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