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Fisher v. Campbell

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

January 3, 2017

CLARENCE FISHER, Petitioner,
v.
SHERMAN CAMPBELL, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE

         This is 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.

         I. BACKGROUND

         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 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).

         Following 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 prosecutorial misconduct.

         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).

         II. STANDARD OF REVIEW

         28 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.

         “A 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)).

         “[T]he ‘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 ...


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