United States District Court, E.D. Michigan, Southern Division
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.
CARAM STEEH UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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).
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.
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).
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:
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.
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 ...