United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
Corbett O'Meara United States District Judge.
matter is before the Court on Petitioner James Cooper's
pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner was convicted of assault
with intent to murder, Mich. Comp. Laws § 750.83,
torture, Mich. Comp. Laws § 750.85, and first-degree
home invasion, Mich. Comp. Laws § 750.110a(2).
Petitioner raises four claims for habeas corpus relief.
Respondent, through the Attorney General's Office, has
filed an answer in opposition arguing that one of
Petitioner's claims is procedurally defaulted and that
all of the claims lack merit. The Court finds no basis for
habeas corpus relief and denies the petition.
convictions arise from the assault of Henry Merritt at his
home in Adrian, Michigan on December 30, 2012. The Michigan
Court of Appeals described the evidence adduced at trial as
In December 2012, the victim, Henry Merritt, allowed his
adult daughter, Jessica Tabernero, and her daughter to live
in his home with him. Tabernero had a bad drug addiction.
After her work ended at a local bar in the early morning
hours of December 30, 2012, Tabernero went to the home of
defendant's brother-in-law, Eric Williams, where
defendant also lived, and began using crack cocaine. Also
present were defendant; defendant's wife, Leah Cooper;
Williams; and Jessica Miller. All were, and had been,
ingesting significant amounts of crack cocaine. Soon after
her arrival, defendant asked Tabernero to have sex with Leah
as a birthday present to her; she agreed, and after doing so
she exited the room and began showing signs of overdosing.
While in that condition she stated that her father had raped
her. Hearing this, defendant asked for her father's name
and address, left the house and picked up Leondre McCarver,
defendant's drug supplier, and proceeded to Merritt's
Thus, in the early morning of December 30, 2012, Merritt
heard a noise that sounded like a loud boom coming from his
kitchen. Merritt went to his kitchen and saw two men, a black
man and a white man. Merritt identified the white man as
defendant, though he had never seen either man
before.1 Merritt asked the two men why they were
in his home, to which they responded, “‘We're
here to do a job.'” After this interaction, Merritt
was “subdued by both of them and beat unmercifully
around [his] face area.” The men then took Merritt to
his bedroom, where defendant accused Merritt of having sex
with Tabernero. Merritt told them that he did not have sex
with his daughter, 2 but that his ex-wife's
husband had done so.
Undeterred by Merritt's statement, both men continued to
beat and choke Merritt while also continuing to accuse him of
having sex with Tabernero. Defendant told Merritt that if he
had “anything to do with sex” in his home,
defendant was going to kill him. After this, Merritt was in
and out of consciousness. Eventually, the two men dragged
Merritt to the bathroom, “[f]orcibly, ” with a
belt around his neck. Defendant and McCarver continued to
beat Merritt in the bathroom.
Defendant then put Merritt in the bathtub, continued punching
Merritt, and told McCarver to get a gas can that was just
outside Merritt's house. Defendant then doused Merritt
with gasoline and said, “‘You're going to
feel it, you're going to feel the wrath of me, you're
going to feel the pain.'” Defendant then lit
Merritt on fire. Merritt's neck was the only part of his
body that caught on fire.
Merritt prayed “the whole time out loud and to
[himself] asking God to help [him]....” The pain from
the fire was indescribably hot, and Merritt endured the heat
until the gasoline burned itself out. To help with the pain,
Merritt turned on the shower. Defendant reacted violently
after Merritt turned on the water, punching him repeatedly.
After that, defendant repeatedly hit Merritt's head with
a hammer. Merritt was lit on fire again, burning his neck and
upper back. Eventually, defendant and McCarver left the
bathroom, and Merritt moved a dresser to block the bathroom
door. However, both men obtained reentry after they broke the
Eventually, defendant and McCarver left. The damage to
Merritt's body was horrific. His middle finger was sliced
off and he was stabbed in the arm either with a knife or the
claw of a hammer. Merritt's arm was broken, his neck and
the top part of his shoulders were burnt, and his face was
bloody and swollen. Before getting help for his injuries,
Merritt went downstairs in his home to smoke a cigarette.
After he finally3 lit the cigarette, Merritt went
outside and called for help; Merritt's neighbors, Laurie
Damon and Tori Helsel, came to his rescue. Both testified
that his injuries were so horrific that they were surprised
that he could talk. Merritt was evacuated by helicopter to a
1Merritt was shown a photo array before trial and
selected defendant without hesitation.
2Tabernero subsequently indicated that this was
true. Merritt had not raped her.
3Despite being soaked in gasoline, Merritt did not
catch himself on fire. When asked if he was able to light his
cigarette, Merritt explained: “Yeah, but my finger that
was cut off, hanging off, the end of my finger, by doing this
it put it out, the cigarette out.” The blood from
Merritt's missing finger was putting the cigarette out.
People v. Cooper, 309 Mich.App. 74, 76-79 (Mich. Ct.
App. Jan. 22, 2015).
a jury trial in Lenawee County Circuit Court, Petitioner was
convicted of assault with intent to murder, torture, and
first-degree home invasion. On August 14, 2013, Petitioner
was sentenced as a twelfth-offense habitual offender to 320
to 640 months' imprisonment for first-degree home
invasion, life imprisonment for assault with intent to commit
murder, and 900 to 1, 800 months' imprisonment for
filed an appeal of right in the Michigan Court of Appeals
raising these claims: (i) defense counsel was ineffective in
eliciting testimony regarding Petitioner's alleged drug
dealing and prior assault of a prosecution witness; (ii) the
prosecutor improperly vouched for the credibility of
prosecution witnesses and defense counsel was ineffective for
failing to object; and (iii) defense counsel was ineffective
in failing to cross-examine accomplice about plea agreement.
Petitioner also filed a motion for remand. The trial court
granted the motion to remand to allow Petitioner to file a
motion for new trial and for the trial court to conduct an
evidentiary hearing on the ineffective assistance of counsel
claims. People v. Cooper, No. 318159 (Mich. Ct. App.
May 6, 2014), ECF No. 8-11, Pg. ID 1036. Following an
evidentiary hearing pursuant to People v. Ginther,
390 Mich. 436 (1973), the trial court denied the motion for
new trial. 7/30/14 Op. & Order, ECF No. 8-11, ...