United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF
HONORABLE DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE
Anthony Allen, (“Petitioner”), confined at the
Macomb Correctional Facility in New Haven, Michigan, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, through his attorney John Minock, challenging
his conviction for first-degree premeditated murder, M.C.L.A.
750.316, and several counts of assault with intent to commit
murder, M.C.L.A. 750.83. For the reasons that follow, the
petition for writ of habeas corpus is DENIED.
was convicted following a jury trial in the Wayne County
Circuit Court, in which he was tried jointly with his
co-defendant Willie James Robinson, but with separate juries.
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 e.g. Wagner v. Smith, 581 F.3d 410, 413 (6th
Defendants' convictions arise from a drive-by shooting in
which a seven-year-old girl was killed and her mother and
siblings were wounded. The injured victims were inside a
parked car when they were shot. There was no dispute at trial
that defendant Allen drove defendant Robinson's car while
Robinson repeatedly fired an automatic carbine rifle.
Robinson's theory at trial was that he did not intend to
kill anyone, and was shooting at the car in retaliation for
an earlier confrontation in which his car was struck with a
baseball bat. Allen's theory was that he did not know
that Robinson was going to shoot at anyone.
The events that culminated in the shooting began with Donnell
Brown's sale of a car stereo, either to Robinson or
Robinson's friend, for $40, which allegedly was paid for
with counterfeit money. Although the facts surrounding the
sale and the ensuing confrontation over the counterfeit money
were disputed, at some point, Anthony Niebrzydowski
(“Blue”) became involved, and either he or Brown
threw a bat that struck Robinson's car. Allen was with
Robinson during this argument, which was witnessed by
Blue's sister, Aelizabeth Niebrzydowski
(“Niebrzydowski”). Robinson left, but threatened
Approximately thirty minutes later, Robinson and Allen
returned. Niebrzydowski and her three daughters were in
Blue's girlfriend's car to go shopping. The car was
parked at an angle and was partially on the grass and
partially on the driveway, with the back end of the car
nearly in the street. The passenger door was open. The
girls' brother, “B.J., ” approached the car
with Blue. Brown was sitting on the porch. Robinson's car
came around the corner. Allen was driving, and Robinson was
firing the gun. Brown ran inside the house. The car was
showered with bullets. Niebrzydowski's left index finger
was hit as it was on the steering wheel and a bullet also
grazed her behind her ear on the right side. One daughter was
killed by a gunshot to her head. Two of Niebrzydowski's
other daughters and B.J. received nonfatal wounds.
Robinson admitted the shooting, but denied knowing that
anyone was inside the car. In his statement to the police,
Robinson said, “When we turned onto Dolphin I saw Blue
standing next to a white car that was parked in the yard.
When I saw Blue I began firing at the car.” He claimed
that he fired the weapon about eight times. When asked,
“Did you see anyone inside the vehicle when you shot at
[B]lue, ” Robinson responded, “No. Blue was
standing on the outside by the passenger side. I was shooting
at the car.”
People v. Allen, No. 246419, 2004 WL 2290483, at *1
(Mich. Ct. App. Oct. 12, 2004).
addition to this evidence, Mario Godfrey testified that he
received a telephone call from petitioner on February 25,
2002 at about 12:30 p.m. Petitioner informed Godfrey that
Brown and Blue attempted to “jump” Mr. Robinson
and that “then we did a drive by.” On
cross-examination, Mr. Godfrey admitted that in his statement
to the police he did not inform them that petitioner said
that the men had done a drive-by shooting, but instead told
the police that petitioner said that his co-defendant
“shot up the car.” (Tr. 8/21/02, pp. 156, 168).
conviction was affirmed on appeal. People v. Allen,
No. 246419, 2004 WL 2290483 (Mich. Ct. App. Oct. 12, 2004);
lv. den. 477 Mich. 903, 722 N.W.2d 793 (2006).
filed a petition for writ of habeas corpus, which was held in
in abeyance to permit petitioner to return to the state
courts to exhaust additional claims. The Court also
administratively closed the case. Allen v.
Wolfenbarger, No. 08-10403, 2010 WL 3397338 (E.D. Mich.
Aug. 27, 2010).
filed a post-conviction motion for relief from judgment
pursuant to M.C.R. 6.500, et. Seq., which was
denied. People v. Allen, No. 02-003922 (Third
Jud.Cir.Ct. Nov. 26, 2013). The Michigan appellate courts
denied petitioner leave to appeal. People v. Allen,
No. 321298 (Mich.Ct.App. May 28, 2014); lv. den. 497
Mich. 953, 858 N.W.2d 427 (2015); reconsideration
denied, 497 Mich. 1031, 863 N.W.2d 46 (2015).
12, 2016, this Court granted petitioner's motion to lift
the stay and his motion to amend his habeas petition.
amended habeas petition, petitioner seeks habeas relief on
the following grounds:
I. Petitioner was denied his constitutional right to due
process where the trial court erred in instructing the jury
regarding the intent and temporal requirements for aiding and
abetting first-degree murder, the key issues in the case. The
ineffectiveness of trial counsel and appointed appellate
counsel excuse the procedural defaults of failure to make a
contemporaneous objection and failure to develop the record
on direct appeal.
II. The prejudicial conduct of the trial judge during trial
denied Petitioner due process and a fair trial.
Standard of Review
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:
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).
“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 410-11. “[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)). Therefore, 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.”
Harrington, 562 U.S. at 103. A habeas petitioner
should be denied relief as long as it is within the
“realm of possibility” that fairminded jurists
could find the state court decision to be reasonable. See
Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
The statute of limitations issue.
first contends that petitioner's amended petition is
barred by the Antiterrorism and Effective Death Penalty
Act's (AEDPA) statute of limitations found in 28 U.S.C.
§ 2244(d)(1). Respondent contends that the petition is
untimely because petitioner did not return to the state
courts to file his post-conviction motion for relief from
judgment within a reasonable time after this Court held his
petition in abeyance nor did he file his motion to lift the
stay within a reasonable time of the Michigan Supreme Court
denying petitioner's post-conviction appeal. Respondent
further argues that the claims raised by petitioner in his
amended petition are untimely because the amended petition
was filed after the one year limitations period had expired
and the claims contained in his amended petition do not
relate back to the claims raised in his original petition.
respondent's first argument, respondent acknowledges that
the opinion and order holding the petition in abeyance did
not give petitioner any deadlines with which to return to the
state courts to exhaust his claims and to return to this
court following the exhaustion of such claims. In light of
the fact that this Court failed to set such deadlines, this
Court believes that it would be unfair to rule that
petitioner had somehow not complied with the terms of the
second argument is also without merit. When a habeas
petitioner files an original petition within the one-year
deadline, as petitioner did here, and subsequently presents
new claims in an amended petition that is filed after the one
year limitations period expired, the new claims relate back
to the date of the original petition if the new claims share
a “common core of operative facts” with the
original petition. See Mayle v. Felix, 545 U.S. 644,
amended habeas petition contains two of the same claims that
he raised in his original petition, with the addition of a
claim that appellate counsel was ineffective for not properly
raising on petitioner's appeal of right the instructional
error and ineffective assistance of trial counsel claims that
petitioner raised in his original petition. The Court denies
respondent's motion to dismiss because petitioner's
ineffective assistance of appellate counsel claim shares the
same common core of operative facts as the claims raised in
petitioner's original habeas petition concerning the
defective jury instruction and ineffective assistance of
trial counsel claims. See Cowan v. Stovall, 645 F.3d
815, 819 (6th Cir. 2011).
event, the statute of limitations does not constitute a
jurisdictional bar to habeas review. A federal court, can, in
the interest of judicial economy, proceed to the merits of a
habeas petition. See Smith v. State of Ohio Dept. of
Rehabilitation, 463 F.3d 426, 429, n. 2 (6th Cir.
2006)(quoting Trussell v. Bowersox, 447 F.3d 588,
590 (8th Cir. 2006)). This Court need not resolve
the dispute over the timeliness of petitioner habeas
application. Assuming that the current petition was timely,
petitioner's habeas application fails on the merits.
See Ahart v. Bradshaw, 122 F. App'x. 188, 192
(6th Cir. 2005).
Claim # 1. The defective jury instruction/ineffective
assistance of counsel claim.
first contends that the jury instructions on aiding and
abetting were inaccurate and misleading because they gave
conflicting instructions regarding the specific intent
required to be convicted as an aider and abettor and also
because the instructions failed to distinguish between being
an aider and abettor to an offense and being an accessory
after the fact. Petitioner further contends that his trial
counsel was ineffective for failing to object to the
defective jury instructions and his appellate counsel was
ineffective for failing to develop a record on
petitioner's appeal of right regarding the
judge initially gave the jury the following instruction on
aiding and abetting:
Now, I've stated to you that Murder in the First Degree,
and also Assault with Intent to Commit Murder are what we
call specific intent crimes.
At the time of giving the assistance, the aider and abetter
must either have the intent himself to kill the victim, or to
assault with intent to commit murder.
He must either have that intent himself, or he must aid and
abet another person, knowing that that person intends to
kill, or intends to do great bodily - intends to kill, or
kills another person. In other words, the aider and abetter
either intends himself, or he knows that the person that he
is assisting intends to do the act.
(Tr. 8/23/02, pp. 82-83)(emphasis added).
the jury was excused, but before it began deliberations,
defense counsel objected to the jury instruction as being
ambiguous with respect to the issue of the specific intent
required to convict petitioner under an aiding and abetting
theory. The judge agreed to give a clarifying instruction to
the jurors. The judge gave the following instruction to the
The specific intent in the first count of Murder in the First
Degree, is that the perpetrator specifically intended to kill
the victim. And that the aider and abetter [sic] knew that