United States District Court, E.D. Michigan, Southern Division
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
HONORABLE VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE
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
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
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).
conviction was affirmed on appeal. Id., lv. den. 492
Mich. 867, 819 N.W.2d 870 (2012).
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).
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.
Standard of Review
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;
(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.
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).
Claim # 1. Denial of a right to counsel at a critical stage
of the proceedings and lack of a knowingly and intelligent
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
Michigan Court of Appeals addressed the facts surrounding
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. ...