United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
CORBETT O'MEARA UNITED STATES DISTRICT JUDGE.
Delangelo Johnson seeks habeas corpus relief under 28 U.S.C.
§ 2254. Petitioner is a state prisoner in the custody of
the Michigan Department of Corrections pursuant to
convictions for second-degree murder, felon in possession of
a firearm, and possession of a firearm during the commission
of a felony. He raises eight claims for habeas relief.
Respondent argues that the claims are procedurally defaulted
and/or meritless. The Court denies the petition.
convictions arise from the killing of Ayanna May. On
September 15, 2002, May and Petitioner's girlfriend,
Rashawn Cook, argued outside Cook's home on Ashton Street
in Detroit. May stood outside her car in front of Cook's
home. A person identified as Petitioner exited Cook's
home and entered the driver's seat of a van. The van
drove close to May, an arm reached out the driver's side
window and three shots were fired in May's direction. May
sustained a fatal gunshot to the head.
a jury trial in Wayne County Circuit Court, Petitioner was
convicted of second-degree murder, Mich. Comp. Laws §
750.317, felon in possession of a firearm, Mich. Comp. Laws
§ 750.224f, and possession of a firearm during the
commission of a felony, Mich. Comp. Laws § 750.227b.
Petitioner was sentenced to life imprisonment for the murder
conviction, one to five years' imprisonment for the felon
in possession conviction, and two years' imprisonment for
filed an appeal of right in the Michigan Court of Appeals. He
raised these claims: (i) trial court improperly instructed
the jury on second-degree murder; and (ii) he was denied his
right to confrontation, a fair trial and due process by
admission of witness's preliminary examination testimony.
The Michigan Court of Appeals affirmed Petitioner's
convictions. People v. Johnson, No. 249497, 2004 WL
2726065, at *2 (Mich. Ct. App. Nov. 30, 2004).
filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims raised in the Michigan
Court of Appeals. The Michigan Supreme Court denied leave to
appeal. People v. Johnson, 699 N.W.2d 701 (Mich.
then filed a motion for relief from judgment in the trial
court, raising these claims: (i) denied right to a fair trial
and impartial jury; (ii) unduly suggestive pretrial
photographic identification; (iii) evidence of prior bad acts
improperly admitted; (iv) prosecutorial misconduct; (v)
ineffective assistance of trial counsel; (vi) cumulative
effect of prejudicial errors; and (vii) ineffective
assistance of appellate counsel. The trial court dismissed
the motion without prejudice and ordered appointment of
counsel to represent Petitioner in the filing of a motion for
relief from judgment. See 2/16/06 Order, ECF No.
11-13. Petitioner, through counsel, filed another motion for
relief from judgment raising essentially raising the same
claims raised in the first motion. The trial court denied the
motion. See 4/13/09 Order, ECF No. 11-14. Petitioner
sought leave to appeal in the Michigan Court of Appeals and
Michigan Supreme Court. Both state appellate courts denied
leave to appeal. See 10/25/10 Order, ECF No.11-9;
People v. Johnson, 796 N.W.2d 70 (Mich. 2011).
then filed a petition for writ of habeas corpus in this
Court. The Court found that the petition was time-barred by
the one-year statute of limitations applicable to habeas
corpus petitions. See 7/9/12 Order, ECF No. 13. The
Sixth Circuit Court of Appeals reversed this Court's
decision that the petition was untimely and remanded for
further proceedings. Johnson v. Rapelje, 542 F.
App'x 453 (6th Cir. Oct. 22, 2013).
seeks habeas corpus relief on these grounds:
I. Petitioner was denied a fair trial and due process where,
over objection, the trial court instructed on second-degree
II. Extraneous influence on jurors deprived Petitioner of a
fair trial and due process.
III. Use of unnecessarily suggestive pretrial identification
procedure deprived Petitioner of due process and a fair
IV. Impermissibly introduction of prior bad acts denied
Petitioner due process and a fair trial.
V. Prosecutorial misconduct in the form of denigrating
defense counsel and engaging in burden shifting argument
denied due process and a fair trial.
VI. Ineffective assistance of trial counsel in failure to
object, failure to file pretrial motions, failure to remove
jurors for cause, failure to interview alibi witnesses and
present an alibi defense and failure to present expert
testimony at trial prejudiced Petitioner.
VII. Lack of due diligence by the prosecutor in producing eye
witness prejudiced Petitioner.
VIII. Failure to provide constitutionally effective
representation on appeal.
filed an answer to the petition arguing that certain of the
claims are procedurally defaulted and that all are meritless.
Petitioner filed a reply brief.
Standard of Review
of this case is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Under the
AEDPA, a state prisoner is entitled to a writ of habeas
corpus only if he can show that the state court's
adjudication of his claims -
(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;
(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.
28 U.S.C. § 2254(d).
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 (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 408.
“[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.
Supreme Court has explained that “[a] federal
court's collateral review of a state-court decision must
be consistent with the respect due state courts in our
federal system.” Miller-El v. Cockrell, 537
U.S. 322, 340 (2003). The “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court
rulings, ' and ‘demands that state-court decisions
be given the benefit of the doubt.'” Renico v.
Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v.
Murphy, 521 U.S. 320, 333 n. 7 (1997); Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
“[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). The
Supreme Court has emphasized “that even a strong case
for relief does not mean the state court's contrary
conclusion was unreasonable.” Id. at 102.
Furthermore, pursuant to § 2254(d), “a habeas
court must determine what arguments or theories supported or
... could have supported, the state court's decision; and
then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of th[e
Supreme] Court.” Id.
28 U.S.C. § 2254(d), as amended by the AEDPA, does not
completely bar federal courts from relitigating claims that
have previously been rejected in the state courts, it
preserves the authority for a federal court to grant habeas
relief only “in cases where there is no possibility
fairminded jurists could disagree that the state court's
decision conflicts with” Supreme Court precedent.
Id. Indeed, “Section 2254(d) reflects the view
that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems, ' not
a substitute for ordinary error correction through
appeal.” Id. (quoting Jackson v.
Virginia, 443 U.S. 307, 332 n. 5 (1979)) (Stevens, J.,
concurring)). 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
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id.
at 103, 131 S.Ct. at 786-87.
a state court's factual determinations are entitled to a
presumption of correctness on federal habeas review. See 28
U.S.C. § 2254(e)(1). A petitioner may rebut this
presumption with clear and convincing evidence. See
Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
Moreover, habeas review is “limited to the ...