United States District Court, E.D. Michigan, Southern Division
DEVAUGHN A. MARKS, Petitioner,
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
H. CLELAND UNITED STATES DISTRICT JUDGE.
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.
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
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).
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
also filed a supplemental pro se brief raising the following
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
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.
Michigan Court of Appeals affirmed Petitioner's
conviction in an unpublished opinion. Id.
subsequently filed an application for leave to appeal in the
Michigan Supreme Court raising an ...