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
GERSHWIN A. DRAIN, UNITED STATES DISTRICT JUDGE
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,  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
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).
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,
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,
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).
conviction was affirmed on appeal. People v.
Anderson, 2012 WL 3536791; lv. den. 829 N.W.2d
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
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;
(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.
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,
Claim # 1. The missing witness claim and missing witness
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 ...