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Rollins v. Rivard

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

December 6, 2016

STEVEN RIVARD, Respondent.



         Anttonio J. Rollins, (“Petitioner”), currently incarcerated at the Thumb Correctional Facility in Lapeer, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his conviction of assault with intent to commit murder under Mich. Comp. Laws § 750.83 and possession of a firearm in the commission of a felony under Mich. Comp. Laws § 750.227b. (Dkt. # 1.) For the reasons that follow, court will deny the petition.

         I. Background

         Petitioner 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):

This case arises out of a shooting in Detroit, Michigan, on the evening of September 7, 2012. At approximately 11:00 p.m., the victim, Robert Monroe, was working as a pizza delivery man. He received an order to deliver to the home of his step-mother's sister, Samari Blakely (the victim's aunt). After arriving at his aunt's house, the victim parked his car in the street, went to the door, and knocked. He heard a voice behind him call his nickname, “LB.” The victim turned and saw a black Grand Prix parked on the street. He approached the Grand Prix. Defendant was in the front passenger seat, which was next to the curb, and had rolled down his window. The victim knew defendant, who was a distant relative, by defendant's nickname, “J Rock.” The victim had seen defendant at family gatherings in the past. Although he had no problem with defendant, the victim's sisters, Autumn Blakely and Renee Monroe, had unspecified issues with defendant.[1] Two other men were in the Grand Prix with defendant - one in the driver's seat and another in the rear passenger seat. The victim approached defendant, who was still seated in the Grand Prix, and they shook hands. The victim spoke briefly with the man in the backseat.
Suddenly, while the victim was standing about three feet from the Grand Prix, gunshots were fired from the area of defendant's seat. Although he never saw a gun, the victim saw sparks from the gunshots and felt bullets strike him in the stomach and lower chest. He was shot again in the back as he fled. He was positive defendant was the person who shot him. Uncertain whether he could trust his aunt - having just been shot in front of her home - the victim went to a nearby liquor store and asked the employees to call an ambulance. The police arrived and transported to victim to the hospital, where he underwent surgery. As discussed infra, there was conflicting evidence about how many times the victim was shot, and whether he was actually shot in the back, but one bullet retrieved from his body was admitted into evidence at trial and the victim testified that two bullets remained inside him.
On September 16, 2014, Sergeant Terence Sims of the Detroit Police Department tried to interview the victim in the hospital, but he ordered Sergeant Sims to leave. According to the victim, he did so because he did not feel well enough to talk and had tubes running into his mouth and side. According to Sergeant Sims, the victim was in bad physical shape and became very agitated before ordering Sergeant Sims to leave. Sergeant Sims spoke with the victim's family afterwards and identified defendant as a possible suspect. A week later, Sergeant Richard Seagram came to the hospital, and the victim provided a written statement indicating that “J Rock” was the person who shot him. The victim also identified defendant in a photographic array conducted by Sergeant Seagram.
At trial, defendant elected not to testify. The parties stipulated to the admission of a police report prepared by Officer Brandolyn Johnson, who was an absent witness endorsed by the prosecution. The report was read into the record, marked as an exhibit, and admitted into evidence. In pertinent part, it stated that, at the liquor store immediately after the victim was shot, he told the police that he had been shot twice, in the upper abdomen and chest - not three times, as his trial testimony, that he was shot in the stomach, chest, and back, would indicate - by “an unknown black male driving a black Grand Prix [.]” The victim's medical records were also admitted into evidence. The medical records indicated that defendant (sic) was “brought in with three entry wounds to the abdomen.”
During her closing argument, the prosecutor made several statements to which defendant takes issue on appeal. The prosecutor stated, “Now [the victim]'s honest with you and told you [he] did not have a problem with the defendant.” The prosecutor further argued: “[Y]ou will get the medical records of [the victim] who almost died a couple of times. Serious injuries inside. Messed up to the point he has a colostomy bag. This is not a person who would come in here and indicate somebody else did it and let the real shooter-[.]” Defendant objected after this statement, arguing that the prosecutor was vouching for the credibility of the witness. The trial court agreed and stated, “you can't do that.” Finally, the prosecutor stated:
Now the victim is on that stand talking to you. No he is not a professional witness. He's not rehearsed. What you see is what you got [sic]. He was genuine. Even when you asked him questions [referring to written questions jurors submitted that were approved by counsel before the victim answered them, ] he turned around and looked at you and said naw, I didn't say that, whatever, whatever. Kind of slouched in the chair. He's just talking. He's telling you what happened to him, simple as that.
The trial court instructed the jury that the attorneys' arguments and statements were not evidence to be considered in deciding the case and that it was free to determine the credibility of the witnesses.

People v. Rollins, No. 321488, 2015 WL 5314292, at *1-2 (Mich. Ct. App. Sept. 10, 2015). Petitioner's conviction was affirmed on appeal. Id.; leave to appeal den. at 876 N.W.2d 562 (Mich. 2016).

         II. Standard of Review

         28 U.S.C. section 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996, imposes the following standard of review:

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 in the State court proceeding.

         A 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 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 ...

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