United States District Court, E.D. Michigan, Southern Division
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
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
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.
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
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.
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
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).
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 ...