United States District Court, W.D. Michigan, Southern Division
HOLMES BELL, UNITED STATES DISTRICT JUDGE
a habeas corpus action brought by a state prisoner pursuant
to 28 U.S.C. § 2254. On May 26, 2011, following a jury
trial in the Washtenaw County Circuit Court, Petitioner
Richard Charles Gentry was convicted of one count of
conspiracy to commit first-degree murder, Mich. Comp. Laws
§ 750.316(1)(a), two counts of assault with intent to
commit murder, Mich. Comp. Laws § 750.83, and two counts
of possession of a firearm during the commission of a felony
(felony firearm), Mich. Comp. Laws 750.227b. On June 22,
2011, Petitioner was sentenced as a fourth-offense felony
offender, Mich. Comp. Laws § 769.12, to life
imprisonment on the conspiracy to commit first-degree murder
conviction, concurrent to 30 to 50 years on the two assault
with intent to commit murder convictions. Those sentences, in
turn, are consecutive and subsequent to two concurrent five
year sentences on the felony firearm convictions.
pro se petition, Petitioner raises four grounds for
relief, the same grounds he raised in the Michigan Court of
Appeals and Michigan Supreme Court on his direct appeal:
I. Was there sufficient identification evidence?
II. Was the identification admissible?
III. Was there evidence for an arrest?
IV. Was there ineffective assistance of counsel?
ECF No. 1, PageID.6-10.) On September 9, 2013, Respondent filed an
answer to the petition (ECF No. 5), stating that the grounds
should be denied because they are noncognizable, procedurally
defaulted, and/or without merit. On September 17, 2013,
Respondent filed the state-court record, pursuant to Rule 5,
Rules Governing § 2254 Cases. (ECF Nos.
review and applying the AEDPA standards, the Court finds that
all habeas grounds are meritless. Accordingly, the Court will
deny the petition for failure to raise a meritorious federal
and Factual Background
the early morning hours of June 1, 2010, Ryan Allen backed a
pickup truck into a parking space in the courtyard of the
Forest Court Apartments in Ypsilanti, Michigan. He called for
bystander Kevin McMillan, a person with whom Allen had argued
a few hour earlier, to come over to the truck. As McMillan
approached, Allen said “get him.” A gunman
concealed in the bed of the pickup sprang up and fired three
shots hitting McMillan, his friend Ariel Ortiz, and a nearby
apartment. The testimony was remarkably consistent regarding
the events of the day. The only dispute was the identity of
the gunman. McMillan testified that the gunman was
Petitioner. Petitioner testified that McMillan was simply
wrong because Petitioner was babysitting in the Detroit area
at the time of the shooting. The jury apparently found
McMillan to be the more credible witness.
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
See Penry v. Johnson, 532 U.S. 782, 792 (2001). The
AEDPA “prevents federal habeas
‘retrials'” and ensures that state court
convictions are given effect to the extent possible under the
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The
AEDPA has “drastically changed” the nature of
habeas review. Bailey v. Mitchell, 271 F.3d 652, 655
(6th Cir. 2001). An application for writ of habeas corpus on
behalf of a person who is incarcerated pursuant to a state
conviction cannot be granted with respect to any claim that
was adjudicated on the merits in state court unless the
adjudication: “(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 upon an unreasonable determination of the
facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d). This standard is
“intentionally difficult to meet.” Woods v.
Donald, 575 U.S. ___, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015)
(internal quotation marks omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the “clearly established”
holdings, and not the dicta, of the Supreme Court.
Williams v. Taylor, 529 U.S. 362, 412 (2000);
Bailey, 271 F.3d at 655. In determining whether
federal law is clearly established, the Court may not
consider the decisions of lower federal courts. Lopez v.
Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d
at 655. Moreover, “clearly established Federal
law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state
court. Greene v. Fisher, 132 S.Ct. 38 (2011). Thus,
the inquiry is limited to an examination of the legal
landscape as it would have appeared to the Michigan state
courts in light of Supreme Court precedent at the time of the
state-court adjudication on the merits. Miller v.
Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing
Greene, 132 S.Ct. at 44).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'” Woods, 2015 WL
1400852, at *3 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S. ___, 134 S.Ct. 1697, 1705 (2014) (quotations marks
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003);
Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
Sufficiency of the evidence
§ 2254 challenge to the sufficiency of the evidence is
governed by the standard set forth by the Supreme Court in
Jackson v. Virginia, 443 U.S. 307, 319 (1979), which
is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” This standard of review recognizes
the trier of fact's responsibility to resolve reasonable
conflicts in testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.
Id. Issues of credibility may not be reviewed by the
habeas court under this standard. See Herrera v.
Collins, 506 U.S. 390, 40102 (1993). Rather, the habeas
court is required to examine the evidence supporting the
conviction, in the light most favorable to the prosecution,
with specific reference to the elements of the crime as
established by state law. Jackson, 443 U.S. at 324
n.16; Allen v. Redman, 858 F.2d 1194, 1196-97 (6th
Jackson v. Virginia standard “gives full play
to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319. Moreover,
because both the Jackson standard and AEDPA apply to
Petitioner's claims, “‘the law commands
deference at two levels in this case: First, deference should
be given to the trier of fact's verdict, as contemplated
by Jackson; second, deference should be given to the
Michigan [appellate court's] consideration of the trier
of fact's verdict, as dictated by AEDPA.'”
Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)
(en banc) (quoting Tucker v. Palmer, 541 F.3d 652,
656 (6th Cir. 2008)). This standard erects “a nearly
insurmountable hurdle” for petitioners who seek habeas
relief on sufficiency of the evidence grounds. Id.
at 534 (quoting United States v. Oros, 578 F.3d 703,
710 (7th Cir. 2009)).
McMillan identified Petitioner as the person who sprang up
from the bed of the pickup and fired the near-fatal shots.
People v. Gentry, No. 305644, 2012 WL 4039279 at *1
(Mich. Ct. App. Sept. 13, 2012). Applying the
Jackson standard, the Michigan Court of Appeals
concluded that such evidence was sufficient to support
finding the essential elements of the charged crimes beyond a
argues that there was insufficient evidence of his identity
as the assailant. We disagree. We review a challenge to the
sufficiency of the evidence de novo.
[W]hen determining whether sufficient evidence has been
presented to sustain a conviction, a court must view the
evidence in a light most favorable to the prosecution and
determine whether any rational trier of fact could have found
that the essential elements of the crime were proven beyond a
The element of identity is always an essential element in a
criminal prosecution. Here, one of the victims, Kevin
McMillan, identified Gentry as the assailant at trial. On
appeal, Gentry raises a series of factual claims to challenge
the credibility of McMillan's identification. “The
credibility of identification testimony is a question for the
trier of fact that we do not resolve anew.” Further,
“positive identification by witnesses may be sufficient
to support a conviction of a crime.” Accordingly, the
evidence, viewed in the light most favorable to ...