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Marks v. Winn

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

May 8, 2017

DEVAUGHN A. MARKS, Petitioner,
v.
THOMAS WINN, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE.

         This is a petition for a writ of habeas corpus filed by a state prisoner under 28 U.S.C. § 2254. After a jury trial in the Washtenaw Circuit Court, Petitioner Devaughn Marks was convicted of armed robbery, Mich. Comp. Laws § 750.529, conspiracy to commit armed robbery, Mich. Comp. Laws § 750.157a, and resisting and obstructing a police officer. Mich. Comp. Laws § 750.81d(1). Petitioner was sentenced as a fourth-time habitual felony offender to 15 to 30 years for the armed robbery and conspiracy convictions and 16 to 24 months for the resisting or obstructing conviction.

         The petition raises four claims: (1) Petitioner's trial counsel was ineffective for failing to object to the victim identifying him at trial, (2) the prosecutor committed misconduct by distorting the burden of proof during closing argument, (3) Petitioner was denied the effective assistance of trial and appellate counsel when his attorneys failed to challenge the jurisdiction of the trial court, and (4) Petitioner's Sixth Amendment right to a jury trial was violated by the trial court scoring the sentencing guidelines based on facts not found beyond a reasonable doubt by the jury. The court will deny the petition because review of all of Petitioner's claims is barred by his procedural default, having failed to raise them in the state courts during his appeal of right. The court will also deny a certificate of appealability, and deny leave to appeal in forma pauperis.

         I. BACKGROUND

         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):

On November 9, 2009, Brahim Brucetta was working for New York Pizza Depot. At approximately 10:00 p.m., he was sent to deliver a pizza to an apartment. He knocked on the door to the apartment, which appeared to be unoccupied, and was attempting to call his employer when defendant came up behind him and put a gun to his head. Defendant forced him into another apartment, where his co-defendant was waiting, armed with a knife. The two men robbed Brucetta of his wallet, money, and phone and left him in the apartment. Brucetta left the apartment, located a security officer and asked him to call the police. The police arrived almost immediately and shortly thereafter located and arrested defendant and his co-defendant. Though Brucetta's wallet was found, neither defendant nor his co-defendant was found to have a weapon at the time of their arrest.

People v. Marks, No. 301118, 2011 WL 6268227, at *1 (Mich. Ct. App. Dec. 15, 2011).

         Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate brief raised the following claims:

I. Petitioner's trial was rendered fundamentally unfair when jury saw his co-defendant in shackles.
II. Insufficient evidence was presented at trial to sustain Petitioner's convictions for armed robbery and conspiracy to commit armed robbery.
III. The trial court incorrectly scored the sentencing guidelines.

         Petitioner also filed a supplemental pro se brief raising the following additional claims:

I. The trial court erred in denying Petitioner's motion for a directed verdict because insufficient evidence was presented to sustain the charged offenses.
II. The trial court erred in scoring the sentencing guideline offense variables.
III. Insufficient evidence was presented at trial to support the armed robbery charge.
IV. Insufficient evidence was presented at trial to support the conspiracy to commit armed robbery charge.
V. The cumulative effect of trial errors rendered Petitioner's trial fundamentally unfair.

         The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. Id.

         Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court raising an ...


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