United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS (DOCUMENT NO. 1), CLOSING THE
CASE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
OR LEAVE TO APPEAL IN FORMA PAUPERIS
STEPHEN J. MURPHY, III United States District Judge.
Hicks, currently on parole supervision with the Michigan
Department of Corrections through the Wayne County Parole
Office in Detroit, Michigan, filed a pro se petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his conviction for unarmed robbery and being a
fourth felony habitual offender, Mich. Comp. Laws
§§ 750.530, 769.12. For the reasons stated below,
the Court will deny the petition.
was convicted following a jury trial in the Wayne County
Circuit Court. The 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):
Defendant's conviction arises out of an incident on March
28, 2001, outside a Mobil gasoline station on Fenkell Road in
Detroit. Erin Branham, the victim, testified that she arrived
at the gas station around to meet a coworker who daily drove
her to work. Branham entered the station to make a purchase
and noticed that two men entered shortly after she did. She
recognized them from other encounters at the gas station and
had a brief conversation with them. After making her
purchase, Branham left the station and waited outside for her
coworker. As she stood with her purse strap over her shoulder
and her hand on her purse, she felt someone pulling her purse
strap from behind her. She reacted by moving forward, and the
tugging grew stronger, forcing her backward. She struggled to
hold on to her purse, but the perpetrator wrestled the purse
away from her and ran down Fenkell Street. As the perpetrator
ran away, Branham recognized him as one of the men she spoke
to in the gas station that morning, later identified as
Valerie Jackson, an employee of the Mobil station, witnessed
the incident from inside the gas station. Immediately after
the incident, Branham entered the gas station and asked
Jackson to call the police, which she did. A few minutes
later, Branham flagged down two passing police officers,
Officer Mark Frazier and Officer John Baritche, told them
about the incident, and described the perpetrator to them.
Jackson confirmed Branham's description of the
perpetrator to the officers, and the officers immediately
informed their dispatcher of the crime and the
A few minutes later, the officers received a call from their
police sergeant, who was at a BP gas station six or seven
blocks down the street. Officers Frazier and Baritche went to
the BP station and saw a man who matched Branham's
description of the perpetrator. The officers approached the
man, whom Officer Frazier identified in court as defendant,
and arrested him. When the officers searched defendant's
person upon arrest, papers, bills, and medical cards,
including items belonging to the victim, fell out of
After his arrest, defendant provided a written statement that
read: "[Y]es, I was in the gas station. Me and her [sic]
talked for a while. She went outside to look for her ride,
and I went outside and snatched her purse and went about my
business." During trial, defendant, who represented
himself with the assistance of his former counsel, rested
without presenting any evidence. In his closing argument,
defendant admitted committing larceny from a person, but
claimed that he did not commit unarmed robbery. The jury
convicted defendant of unarmed robbery. The trial court
subsequently sentenced defendant to 14 to 22-1/2 years'
imprisonment, departing from the sentencing guidelines range
of 50 to 125 months. Defendant now appeals.
People v. Hicks, 259 Mich.App. 518, 520-21 (2003).
conviction was affirmed on appeal. Id., lv. den. 471
Mich. 97 (2004); reconsideration den., 472 Mich. 869
(2005). Hicks filed a post-conviction motion for relief from
judgment on November 21, 2005. On November 29, 2005, Hicks
filed a supplemental post-conviction motion for relief from
judgment. The trial court denied the motions. People v.
Hicks, No. 01-004688-01 (Third Jud. Cir. Ct. Dec. 13,
2005). The Michigan appellate courts denied Hicks leave to
appeal. People v. Hicks, No. 274181 (Mich. Ct. App.
May 14, 2007); lv. den. 480 Mich. 921 (2007).
November 16, 2007, Hicks filed a petition for a writ of
habeas corpus, which was ultimately held in abeyance so that
Hicks could complete additional post-conviction proceedings
in the state courts. Hicks v. Bell, No.
2:07-cv-14916, 2008 WL 2115252 (E.D. Mich. May 19, 2008).
the course of the next few years, Hicks filed several
supplemental post-conviction motions, which were ultimately
denied. People v. Hicks, No. 01-004688-01 (Third
Jud. Cir. Ct. Aug. 11, 2014). The Michigan appellate courts
denied Hicks leave to appeal. People v. Hicks, No.
323645 (Mich. Ct. App. Dec. 11, 2014); lv. den. 498
Mich. 919 (2015).
January 25, 2016, the Court granted Hicks's motion to
lift the stay and to amend the petition. Hicks seeks habeas
relief on a number of grounds. For purposes of judicial
clarity, the Court will adopt respondent's renumbering
and paraphrasing of the claims:
I. The trial court abused its discretion when it granted
Hicks's request for self-representation without
determining that his waiver of counsel was unequivocal,
voluntary, and knowingly made.
II. There was insufficient evidence of a forceful or violent
act to support unarmed robbery.
III. The prosecutor engaged in multiple acts of prejudicial
IV. The trial court improperly scored Offense Variable 4 and
also improperly exceeded the sentencing guidelines for his
V. The trial court gave improper jury instructions related to
a forceful or violent act.
VI. The trial court improperly admitted hearsay.
VII. Hicks was denied the effective assistance of appellate
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 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;
(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.
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, 405-06 (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
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). The "AEDPA thus 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) (quoting Lindh v.
Murphy, 521 U.S. 320, 333 n.7 (1997)). "[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) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
has emphasized "that even a strong case for relief does
not mean the state court's contrary conclusion was
unreasonable." Harrington, 562 U.S. at 102.
Furthermore, pursuant to § 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. 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." Id.
Claim One - Hicks knowingly, intelligently, and
unequivocally exercised his right to self-representation
first claims that the trial court erred in permitting him to
represent himself at trial when he did not unequivocally
request to represent himself and did not ...