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Smith v. Rivard

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

February 28, 2017

TYRONE SMITH, Petitioner,
v.
STEVEN RIVARD, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE

         Tyrone Smith, (“Petitioner”), confined at the Carson City Correctional Facility in Carson City, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se habeas petition, Petitioner challenges his conviction and sentence for two counts of armed robbery, M.C.L.A. § 750.529; first-degree home invasion, M.C.L.A. § 750.110a(2); assault with intent to commit criminal sexual conduct involving sexual penetration, M.C.L.A. § 750.520g(1); possession of a short-barreled shotgun or rifle, M.C.L.A. § 750.224b; felon in possession of a firearm, M.C.L.A. § 750.224f; possession of a firearm during the commission of a felony (felony-firearm), M.C.L.A. § 750.227b; and assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84. For the reasons that follow, the petition for a writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted following a jury trial in the Genesee County Circuit Court. 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):

Defendant's convictions arise from the assault and robbery of the 63-year-old victim, Carrie Mance. Mance lived with Alfred Jackson, whom she had a relationship with for 41 years. Mance went to sleep at approximately 5:00 a.m. on June 3, 2010, and left the patio door cracked open. She testified that she woke to find defendant in her bedroom, sitting on the floor, going through her purse. It was later discovered that Mance was missing money and a cellular telephone. Mance testified that defendant told her to lie down when he noticed that she was awake. Mance observed a shotgun on top of the television in her bedroom. Defendant covered Mance's head with the comforter and started beating her head with his fists. Mance testified that defendant continued to beat her, rubbed her buttocks, and penetrated her rectum with his finger. Mance testified that she had never met or seen defendant before the assault and robbery occurred.
Eventually, Mance was able to escape and run to the front of the apartment where Jackson was sleeping on the couch. Defendant followed Mance and ordered Jackson to give him money. When Jackson did not immediately comply, defendant went through Jackson's pockets and took his money. Defendant pulled Mance back into the bedroom, told her to get on the bed, and started to beat her again. Mance testified that defendant suddenly stopped beating her and stated that he was shot. Defendant ran from the bedroom. Mance followed defendant and observed Jackson and defendant struggling over the shotgun. Mance saw defendant kick Jackson in the ribs. Defendant fled the apartment with the shotgun, and Mance called 911.
Police responded to the apartment complex. Defendant was discovered lying face down in the threshold of the door to an apartment unit in another building that was in the same apartment complex as Mance's apartment. Defendant was with Larry Montgomery, who called defendant his cousin. Mance's cellular telephone was recovered from inside the apartment where defendant was discovered. Montgomery directed the police to a shotgun that was in a bush outside of the apartment building. Montgomery was endorsed as a witness by the prosecution, but did not appear at trial. The prosecution informed the trial court that it could not locate Montgomery and defense counsel requested a missing witness jury instruction. A due diligence hearing was held, and the trial court concluded that the prosecution exercised due diligence and denied defense counsel's request for the instruction.
Defendant was transported to a hospital, and arrested later that day. Defendant was interviewed by police twice, once at the hospital and once while he was in the county jail. Defendant initially denied touching Mance, but later admitted to touching her buttocks. Defendant claimed that Mance initiated the contact, and he denied penetrating her rectum. Defendant admitted to stealing Mance's money, but claimed he did so when she was in a different room. Defendant also admitted stealing a cellular telephone, but denied robbing Mance and Jackson. Defendant denied bringing the shotgun into the house, but admitted carrying it out of the house.

People v. Smith, No. 302093, * 1-3 (Mich.Ct.App. Mar. 15, 2012).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 492 Mich. 867, 819 N.W.2d 870 (2012).

         Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Smith, No. 10-27247-FC (Genesee County Circuit Court, Oct. 23, 2013). The Michigan appellate courts denied petitioner leave to appeal. People v. Smith, No. 319499 (Mich.Ct.App. Apr. 7, 2014); lv. den. 497 Mich. 903, 856 N.W.2d 5 (2014).

         Petitioner seeks a writ of habeas corpus on the following grounds: (1) The trial judge failed to obtain a valid waiver of counsel from Petitioner, (2) The prosecutor's failure to produce an endorsed res gestae witness, denying Petitioner the right to a fair trial; (3) The reasonable doubt instruction was defective, and (4) the admission of other acts evidence denied Petitioner a right to a fair trial.

         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         A 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, 405-06 (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 409. 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. at 410-11. “[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)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         III. Discussion

         A. Claim # 1. Denial of a right to counsel at a critical stage of the proceedings and lack of a knowingly and intelligent waiver.

         Petitioner claims that he did not knowingly and intelligently waive his right to counsel before representing himself during portions of his trial. Petitioner claims that the judge failed to comply with M.C.R. 6.005(D)'s requirements for obtaining a valid waiver of counsel. Petitioner argues that his waiver was invalid because he was not sufficiently warned of the dangers of self-representation or of the penalties for the charged offenses.

         The Michigan Court of Appeals addressed the facts surrounding Petitioner's claim:

At the beginning of trial before the jury was selected, defendant asked the trial court if he could cross-examine the witnesses himself. The trial court stated that the decision should be discussed between defendant and defense counsel. The trial court cautioned defendant regarding self-representation by telling defendant “just be careful, because [defense counsel] is a professional at this; and it's like anything else, you know, if you've never changed a tire, don't start trying to change one now, you know what I'm saying?” The trial court also informed defendant that ultimately “the answer would have to be yes” if defendant was sure that he wanted to cross-examine witnesses himself.
Defense counsel gave an opening statement, and then informed the trial court that defendant had indicated he wanted to cross-examine the first witness, Mance, himself. Defense counsel stated that he thought it was a bad idea. The trial court asked defendant whether he wanted to cross-examine Mance and defendant answered in the affirmative. The trial court asked defendant if he discussed the decision with his attorney, and informed defendant that he would be held to the same standard as a lawyer with regard to cross-examination. After defendant affirmed that he was sure he wanted to cross-examine Mance, the trial court stated that it would allow it. ...

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