United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO APPEAL IN FORMA PAUPERIS
H. CLELAND, UNITED STATES DISTRICT JUDGE
a habeas case filed by a state prisoner under 28 U.S.C.
§ 2254. Petitioner Clarence Fisher was convicted after a
jury trial in the Wayne Circuit Court of assault with intent
to commit murder, Mich. Comp. Laws § 750.83, armed
robbery, Mich. Comp. Laws § 750.529, and possession of a
firearm during the commission of a felony. Mich. Comp. Laws
§ 750.227b. Petitioner was sentenced to concurrent terms
of 13 to 30 years for the assault conviction and 9 to 30
years for the robbery conviction, to be served consecutively
to a two year term for the firearm conviction. The petition
raises two claims: (1) the prosecutor committed misconduct
during opening statements and closing arguments, and (2)
Petitioner's trial counsel was ineffective for failing to
object to the misconduct. The Court will deny the petition
because Petitioner's claims are without merit. The Court
will also deny a certificate of appealability, and deny leave
to appeal in forma pauperis.
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):
The victim, Dominic French, testified that he was standing
outside his work place during the early morning hours of
September 2, 2012, when he saw defendant walking on the other
side of the street. French was familiar with defendant
because French was friends with defendant's sister.
Defendant walked by French but then turned and went back
toward him. When defendant was about 10 feet away, he pulled
out a gun “like a revolver.” French raised his
hands, but defendant “just started shooting.”
Defendant continued to walk closer as he fired the gun. After
French fell to the ground, defendant stood over him and
kicked him in the head. Then defendant went through
French's pockets and took $300.
People v. Fisher, No. 316111, 2014 WL 3747627, at *1
(Mich. Ct. App. July 29, 2014).
his conviction and sentence, Petitioner filed a claim of
appeal in the Michigan Court of Appeals. His appellate brief
raised the following claims:
I. Prosecutorial misconduct denied Fisher a fair trial.
II. Fisher was denied the effective assistance of trial
counsel by his counsel's failure to object to the
Michigan Court of Appeals affirmed Petitioner's
conviction in an unpublished opinion. Id. Petitioner
subsequently filed an application for leave to appeal in the
Michigan Supreme Court raising the same claims. The
application was denied by standard order. People v.
Fisher, 497 Mich. 955, 858 N.W.2d 452 (2015) (table).
STANDARD OF REVIEW
U.S.C. § 2254(d)(1) curtails a federal court's
review of constitutional claims raised by a state prisoner in
a habeas action if the claims were adjudicated on the merits
by the state courts. Relief is barred under this section
unless the state court adjudication was “contrary
to” or resulted in an “unreasonable application
of” clearly established Supreme Court law.
state court's decision is ‘contrary to' . . .
clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court
cases]' or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[this] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000)).
‘unreasonable application' prong of [the statute]
permits a federal habeas court to ‘grant the writ if
the state court identifies the correct governing legal
principle from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts' of
petitioner's case.” Wiggins v. Smith, 539
U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at
413). “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)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)); see ...