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White v. Woods

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

May 2, 2017

BRIAN WHITE, Petitioner,
v.
JEFFREY WOODS, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS.

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254. Petitioner Brian White was convicted after a jury trial in the Wayne Circuit Court of two counts of first-degree murder, Mich. Comp. Laws § 750.316(1)(a), three counts of assault with intent to commit murder, Mich. Comp. Laws § 750.83, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. Petitioner was sentenced to a controlling term of life imprisonment without possibility of parole for the murder convictions and lesser terms for the other offenses.

         The petition raises five claims: (1) Petitioner's double jeopardy rights were violated when the misconduct of the prosecutor caused his first trial to end in a mistrial, (2) Petitioner's counsel was ineffective for failing to present an audio recording of a prosecution witness's recanting statement, (3) Petitioner's counsel was ineffective for failing to more thoroughly cross examine prosecution witness Jessica Cooper, (4) the prosecutor committed misconduct by arguing facts not in evidence, and (5) Petitioner's counsel was ineffective for failing to call an expert witness on identification testimony and failing to explore other defenses prior to his second trial.

         The Court finds that Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will also deny a certificate of appealability, and deny permission to proceed on appeal in forma pauperis.

         I. Background

         Petitioner and his co-defendant, Jonathan May, were tried twice in relation to the shooting of five persons resulting the death of two of the victims. In September 2013, the defendants' first joint trial ended in a mistrial. In January 2014, Petitioner was retried separately and convicted of the charged offenses.

         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 February 2012 shooting deaths of Ernest Bryant and Brinda Long, and the nonfatal shooting assaults of Eric Bowler, Quintus Parham, and Donte Laird. All five victims had been riding around in a van and had stopped at Parham's house. Just after Parham got out of the van, three men approached the vehicle and began firing shots. The prosecution relied principally on the identification testimony of Eric Bowler to link defendants to the crime. Bowler, who knew both defendants from the neighborhood, gave a statement to the police identifying defendants as the shooters shortly after the shooting. In March 2013, however, Bowler gave a statement to a defense investigator in which he denied knowing the shooters. Shortly after giving that statement, Bowler notified the police, and later similarly testified at trial, that he was forced at gunpoint to go to defendant May's attorney's office and was coerced into giving a false statement denying that he knew the shooters. Bowler reaffirmed to the police, and at trial, that defendants May and White were the shooters. The defense theory at trial was that the identification testimony was not credible.
* * *
The prosecution's theory at trial was that there was a history of problems between defendant White and victim Parham, including a prior incident in August 2011 when Parham shot up a van occupied by White's then girlfriend, Pamela Cooper. Less than a week before the instant offenses were committed, Parham pleaded no contest to assault charges in Cooper's case pursuant to a plea agreement that included a sentence of 3 to 10 years.

People v. White, No. 320696, 2015 WL 6161448, *1, 5 (Mich. Ct. App. Oct. 20, 2015).

         Following his conviction and sentence Petitioner filed a claim of appeal in the Michigan Court of Appeals. His brief on appeal filed by appellate counsel raised what now form Petitioner's first and second habeas claims. Petitioner also filed a supplemental pro se brief that raised what now form his remaining claims.

         The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion. Id. Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same five claims he presented to the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was “not persuaded that the questions presented should be reviewed.” People v. White, 877 N.W.2d 887 (Mich. May 2, 2016) (Table).

         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 state court adjudication is “contrary to” Supreme Court precedent under § 2254(d)(1) “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives at a ...


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