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Irvin v. Winn

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

December 2, 2016

ROYALE LAMPTON IRVIN, Petitioner,
v.
THOMAS WINN, Respondent.

          OPINION & ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, & DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          LINDA V. PARKER U.S. DISTRICT JUDGE

         I. Introduction

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Royale Lampton Irvin (“Petitioner”) is challenging his convictions of second-degree murder in violation of Michigan Compiled Laws Section 750.317 and possession of a firearm during the commission of a felony, second offense, in violation of Michigan Compiled Laws Section 750.227b, following a jury trial in the Wayne County Circuit Court. The trial court sentenced Petitioner to consecutive terms of 35 to 70 years imprisonment and five years imprisonment for those convictions in 2011. In his petition, he raises claims concerning the admission of text messages at trial, an upward sentencing departure, and the late appointment of counsel at his preliminary examination. For the reasons set forth below, the Court is denying the petition for a writ of habeas corpus. The Court also is denying a certificate of appealability and leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's convictions arise from the shooting death of Derry/Derek Kirkland[1] at his home in Detroit, Michigan, during the early morning hours on January 29, 2011. The Michigan Court of Appeals described the relevant facts as follows:

The evidence at trial showed that defendant went to the home of Karen Thomas (“Tee Tee”) at 3:00 a.m. and knocked on the door. When Derek Kirkland, her boyfriend, answered the door, defendant asked whether Tee Tee was home and then shot Kirkland five times through the door. Several witnesses testified that, after the shooting, defendant claimed that he did not “do drivebys, ” he did “knock knocks.” Two other individuals were charged. One of them drove with defendant to Thomas' home and the other obtained the address of the home and information that Thomas, the intended victim, was home at that time. Both of these individuals were allowed to plead to lesser charges in exchange for their testimony. Defendant testified that he went to the home to confront “Tee Tee, ” who he believed had participated in a rape of his sister two years earlier. Defendant claimed that he acted in self-defense and that, when he knocked on the door, Kirkland opened the door with a gun in his hands.

People v. Irvin, No. 306188, 2013 WL 6124275, *1 (Mich. Ct. App. Nov. 21, 2013) (unpublished). These factswhich are presumed correct on habeas review. See 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals asserting that the trial court erred in admitting text messages sent by Karen Thomas, that the trial court erred in departing above the state sentencing guidelines in imposing his sentence, that he was denied due process because counsel was appointed moments before the start of his preliminary examination, and that trial counsel was ineffective for failing to object to prosecutorial misconduct and for failing to properly represent him at sentencing. The Michigan Court of Appeals denied relief on those claims and affirmed Petitioner's convictions and sentences. Id. at *1-3. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the text message, upward sentencing departure, and preliminary examination appointment of counsel claims. The court denied leave to appeal in a standard order. People v. Irvin, 846 N.W.2d 397 (Mich. 2014).

         Petitioner dated his initial federal habeas petition on September 25, 2014. In that petition, he raised claims concerning the admission of text messages at trial, an upward sentencing departure, the late appointment of counsel at his preliminary examination, and the constructive denial/ineffective assistance of trial counsel. The Court dismissed that petition without prejudice to allow Petitioner to return to the state courts and exhaust his constructive denial/ineffective assistance of trial counsel claim.

         Petitioner subsequently moved to reopen this case to proceed on an amended petition containing only his three properly-exhausted claims. The Court granted Petitioner's motion and reopened the case on December 2, 2014. Respondent has since filed an answer to the petition, as amended, contending that it should be denied because all three claims lack merit and the final claim is also procedurally defaulted. Petitioner filed a reply to the answer.

         III. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets forth the standard of review federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. AEDPA provides in relevant part:

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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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