United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA
SEAN F. COX, UNITED STATES DISTRICT COURT JUDGE
Arthur Marshall, (“Petitioner”), presently
incarcerated at the Chippewa Correctional Facility in
Kincheloe, Michigan, has filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In his
application, filed through his attorney Frank D. Eaman,
petitioner challenges his conviction for assault with intent
to commit murder, Mich. Comp. Laws, § 750.83, possession
of a firearm by a felon, Mich. Comp. Laws, § 750.224f,
and possession of a firearm during the commission of a
felony, Mich. Comp. Laws, § 750.227b. He was sentenced
as a fourth-offense habitual offender, Mich. Comp. Laws,
§ 769.12, to concurrent prison terms of 35 to 60 years
for the assault and the felon-in-possession convictions and a
consecutive two-year term of imprisonment for the
felony-firearm conviction. For the reasons stated below, the
petition for a writ of habeas corpus is DENIED WITH
was convicted of the above offenses following a jury trial in
the Jackson County Circuit Court. This Court recites verbatim
the relevant facts regarding petitioner's conviction from
the Michigan Court of Appeals' opinion affirming his
conviction, 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):
Defendant's convictions arose from the nonfatal shooting
of Jamaal Hunt during the early morning hours of July 5,
2009, in Jackson, Michigan.
People v. Marshall, 298 Mich.App. 607, 610, 830
N.W.2d 414, 418 (2012), judgment vacated in
part, appeal denied in part, 493 Mich. 1020, 829
N.W.2d 876 (2013).
Court supplements the findings made by the Michigan Court of
Appeals with additional evidence found in the record.
Ann Wilks testified that on the 4th of July she went to her
sister's house with Lakeyda Powell. At the point that she
was to be taken home, her sister went to another car to speak
to someone, leaving her sitting in her sister's car.
Wilks testified that she saw a confrontation occur between
two men on the street, one of whom she believed to be
petitioner. Wilks testified that she believed it was
petitioner because she had seen him earlier that day at the
915 house on the stoop. (Tr. 1/25/2010, pp. 111-113, 116).
Wilks then testified to the events following the shooting as
A [Ms. Wilks]: I don't -- I mean, I-- that's what I
told the dispatcher when they called, I said, “it was
the fuckin white boy.” Q [Prosecutor]:Who was over at
Q Do you recall -- let me rephrase this, when you were in the
car and you saw the person that you believed to be Dustin
Marshall shoot Jamaal, did you actually see the gun?
A I seen a withdraw from a waist and I seen fire.
Q From -- and who was withdrawing from his waist?
A The person that shot Jamaal.
Q Is that Dustin Marshall?
A I guess, yeah.
Q You guess? You've identified him as the person you
believe to be the shooter.
Q Is that the person you saw pull something out of his waist?
A I believe so.
Q And how many times did you hear fire?
A Three or four.
Q Did you see a weapon in Mr. Hunt's hand?
Q When -- you stated initially that you saw him walk by when
you were first in the car, was that Dustin Marshall or was
that Jamaal Hunt?
A That was Jamaal.
Q And he was walking to the area of 915?
Q It was that house that he was shot in front of?
Q Did you see anything in his hands, like a firearm or a
knife or any type of weapon in his -- in his hands at that
A He didn't have anything in his hands.
(Id. at 119-122).
trial court found that portions of conversations captured by
a body microphone were admissible under the “excited
utterance” exception of the hearsay rule, allowing
those portions to be entered into evidence following the
testimony of Officer Wesley Stanton.
Wesley Stanton testified that he spoke with Lasonia Wilks
within minutes of the shooting. Stanton testified to the
events as follows:
She was just frantic. She was--she was saying, “My
brother got shot.” I kept asking who shot him, she kept
telling me, “The white boy.” Yelling, the white
boy that stays a couple houses down, she pointed in the
general direction, that being 915 Francis Street. She stated
-- I asked her who got shot, I believe she stated that it was
Jamaal, her brother.
(Id. at 214).
later testified to the following events that transpired when
he re-initiated contact with Wilks after securing the crime
[Stanton] I pulled her -- or she came out of 919 Francis
Street and I spoke with her by herself in the driveway. I
asked her basically who -- who shot her brother, Jamaal. She
then told me Dustin Marshall.
Q [Prosecutor] Would you please tell the jury her degree of
-- her degree of certainty.
A: [Stanton] She said it very frank, very certain.
Q Did she appear confused?
Q Did she appear to think about which person she was going to
A Not at all.
(Tr. 1/25/2010, pp. 214, 226).
asked about the events leading up to the shooting and the
witness's familiarity with the petitioner, Stanton
testified that Wilks told him the following:
A [Officer Stanton] I believe I asked her at some point in
the conversation if she was familiar with Mr. Marshall and
she kept saying, “Yeah, he's the white boy that
stays right there, ” pointing to 915 Francis Street. I
said what happened on this evening, she told me that she was
in her - or in a vehicle in the driveway at 919, she said she
was in the back seat, she climbed over to the front seat. She
said once she got to the front seat she heard a couple
subjects having words and I asked her -- I think I asked her
where Dustin was and she said that he was on the porch of 915
Q [Prosecutor] What else did she tell you?
A She -- she said that her brother, Jamaal, went over to the
-- where the two people were having words at and then she
said Dustin came off the porch onto the yard. ·She
said it happened right in the yard of 915 Francis Street. She
said once he got there and Dustin came off the porch she said
Dustin started shooting Jamaal. She said that she seen - she
heard the shots and she seen the muzzle flashes, or she - I
think she called it fire, and then she saw Jamaal fall to the
I asked -- I asked her where Dustin got the gun from and she
said, “Right here, ” pointing to her waistband.
Then I asked her how close Dustin was to Jamaal and she said
-- I think she said, “About this close, ” and we
were standing ...