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Anderson v. Klee

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

March 29, 2017

ERIC KARL ANDERSON, Petitioner,
v.
PAUL KLEE, [1]Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          HON. GERSHWIN A. DRAIN, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Eric Karl Anderson, (“Petitioner”), confined at the Gus Harrison Correctional Facility in Adrian, 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, James Sterling Lawrence, petitioner challenges his conviction out of the Wayne County Circuit Court for two counts of armed robbery, Mich. Comp. Laws § 750.529, one count of assault with intent to rob while armed, Mich. Comp. Laws § 750.89, [2] and one count of possession of a firearm during the commission of a felony (felony-firearm), Mich. Comp. Laws § 750.227b. For the reasons stated below, the petition for a writ of habeas corpus is DENIED.

         II. BACKGROUND

         On April 18, 2010, in the city of Detroit, Gregory Matthews and Stephon Tolin were robbed at gunpoint. Around 3:19 a.m. while Matthews and Tolin stood in front of Matthews's home, Matthews saw petitioner and another individual walk past them. The area was lit by a pole with a light in front of Matthews' house and by a porch light attached to the house. (Tr. 11/3/10, pp. 10, 66). Matthews recognized both petitioner and his accomplice because he had seen them five or six times in the neighborhood. (Tr. 11/3/10, pp. 10-14, 20-21, 65). Matthews identified, with certainty, petitioner as one of the assailants that robbed him. (Tr. 11/3/10. pp. 14-15, 22). However, Matthews did not know petitioner's name until petitioner's ex-girlfriend told Matthews his name and suggested he view a picture of petitioner on Facebook. Once he looked on Facebook, Matthews was able to identify petitioner as the assailant and brought the picture to the police. Tolin could not identify either robber and testified that a gun was in his face the entire time. (Tr. 11/3/10 Tr. p. 77).

         Matthews saw petitioner and the other individual turn around and run towards him and Tolin, this time with their faces covered and armed with handguns. (Tr. 11/3/10, pp. 6-9). The robbers pointed their handguns at Matthews and Tolin and then took Matthews' money, wallet, house keys, and car keys and Tolin's phone and fifty dollars. (Tr. 11/3/10, pp. 8-9, 25, 75, 77). The other assailant placed Matthews in a headlock, while petitioner struck Matthews with his handgun above Matthews' right eyebrow and nose. (Tr. 11/3/10, pp. 8, 33, 68). Afterwards, Matthews and Tolin were told to leave the area. (Tr. 11/3/10, pp. 11, 33-34). Within a minute after leaving the house, Matthews heard two gunshots. (Tr. 11/3/10, p. 12).

         Matthews called and woke his mother, Omeake Taylor, on his cell phone, telling her that he had been robbed and that the assailants took the keys to his car. Taylor looked out her window on the second floor and saw two individuals near her son's car, which was parked in her driveway. (Tr. 11/3/10, pp. 27, 121-122, 124). Earlier that day, Taylor had seen the individual on the passenger side of Matthews' car wearing the same beige shirt, without his face covered. Taylor identified this man as petitioner. (Tr. 11/3/10, pp. 122, 133).

         Darius Nunlee testified that on the morning of April 18, he and petitioner went to a club in downtown Detroit before going to the Coney Island on Woodward and Mack. (Tr. 11/3/10, pp. 165-166). According to Nunlee, petitioner got shot at the Coney Island so he drove him to Sinai Grace Hospital. (Tr. 11/3/10, pp. 167-168). Nunlee and Petitioner have been friends since elementary school. (Tr. 11/3/10, p. 186).

         Petitioner's conviction was affirmed on appeal. People v. Anderson, 2012 WL 3536791; lv. den. 829 N.W.2d 221 (2013).

         Petitioner now seeks a writ of habeas corpus on the following grounds:

I. Petitioner was denied a fair trial by the missing witness and refusal to provide a missing witness jury instruction.
II. Petitioner was prejudiced by ineffective assistance of trial counsel.

         III. STANDARD OF REVIEW

         Title 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.

         The 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. Viscotti, 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)(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 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).

         IV. ANALYSIS

         A. Claim # 1. The missing witness claim and missing witness instruction claim.

         Petitioner alleges that the prosecutor failed to exercise due diligence in locating and subpoening Arielle Johnson for trial and should not have been excused from producing her at trial. Petitioner further contends that the trial court judge erred in failing to give a requested adverse inference instruction to the jury. Petitioner requests that this Court ...


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