United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, A CERTIFICATE OF APPEALABILITY, AND PERMISSION
TO APPEAL IN FORMA PAUPERIS
Honorable Bernard A. Friedman United States District Judge.
matter is before the Court on the petition of Donovan Young
for a writ of habeas corpus under 28 U.S.C. § 2254.
Young was convicted after a jury trial in the Wayne Circuit
Court of first-degree murder, Mich. Comp. Laws §
750.316, assault with intent to commit murder, Mich. Comp.
Laws § 750.83, 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
conviction and lesser terms for the other convictions.
raises five claims: (1) the prosecutor withheld exculpatory
evidence by failing to list two people on its witness list
that would have testified favorably to the defense; (2)
petitioner was denied the effective assistance of counsel for
failure to move for separate trials from petitioner's
co-defendant; (3) the prosecutor committed misconduct at
trial; (4) petitioner was denied the effective assistance of
counsel when his trial attorney failed to request a felonious
assault instruction; and (5) petitioner confrontation rights
were violated when the trial court ruled that he could not
recall a prosecution witness for additional cross
was tried jointly with his co-defendant, Kevin Craig, in
relation to a fatal shooting in Detroit. This Court recites
verbatim the relevant facts relied upon by the Michigan Court
Defendants' convictions arise from the shooting death of
Antonio Turner and nonfatal gunshot injuries to Darneil
Richardson on June 12, 2011, on Sorrento Street in Detroit.
Richardson and defendant Craig were rival drug dealers.
Richardson testified that he encountered defendant Craig on
the street and the two became involved in an argument. Turner
and defendant Young also were present. According to
Richardson, defendant Young pointed a .357 caliber revolver
at Turner's face, said “f* *k it, ” and
pulled the trigger, but the revolver did not discharge.
Richardson then observed defendant Craig also pull out a gun.
Richardson and Turner both ran off. As Richardson was
running, he heard gunshots and was shot in the leg. Turner
was shot three times and died at the scene.
A witness, Barbara Ingram, testified that she saw defendant
Craig and another man both pull out guns, which were pointed
at Turner. After Turner put his hands up in the air, shooting
started. Ingram briefly ducked for cover, but then looked up
again and saw Turner on the ground. Defendant Craig had left,
but then returned and shot Turner. Another witness, Ariel
Sydes, testified that she heard a gunshot, looked outside,
and saw defendant Craig, who was armed with a gun, chasing
Richardson. Turner was lying in the middle of the street.
Neither defendant testified at trial. Both defendants
attacked the credibility of the prosecution witnesses and
argued that the evidence failed to show that the two
defendants were acting in concert and did not establish who
actually shot the victims. . . .
Viewed in a light most favorable to the prosecution, the
evidence established that multiple gunshots were fired after
Richardson saw defendant Young point a revolver at
Turner's face and pull the trigger. Witnesses testified
that both defendant Young and codefendant Craig were armed
with guns. Ingram testified that she heard ''a lot of
gunshots.'' Richardson testified that he heard 15 to
17 gunshots. Sydes testified that she heard one gunshot
followed by another ''set'' of two or three
gunshots. Turner sustained three gunshot wounds. All of these
events occurred outside Richardson's drug house, after
Richardson, accompanied by Turner, had been confronted by
defendant Craig, a rival seller of drugs. The evidence
supported an inference that defendant Young and codefendant
Craig were acting in concert outside of Richardson's drug
house. Regardless of whether defendant Young was able to fire
his revolver after Richardson and Turner fled, the jury could
find that defendant Young's act of pointing the revolver
at Turner's face and pulling the trigger was the impetus
for the shooting.
People v. Young, No. 310435, 2014 WL 3745186, at *1,
5 (Mich. Ct. App. July 29, 2014). These facts are presumed
correct on habeas review. See 28 U.S.C. §
2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th
his conviction Petitioner filed a claim of appeal in the
Michigan Court of Appeals. The appellate brief filed by his
appointed counsel raised a single claim challenging the
sufficiency of the evidence. Petitioner also filed a
supplemental pro se brief, raising what now form his first
through fourth habeas claims. Petitioner also filed a motion
to remand the case to the trial court for an evidentiary
hearing on his ineffective assistance of counsel claim. The
Michigan Court of Appeals granted the motion and remanded the
case to the trial court to hold a hearing. People v.
Young, No. 310435 (Mich. Ct. App. Order, Feb. 20, 2014).
evidentiary hearing, Petitioner's trial counsel, Lillian
Diallo, and Petitioner testified. Dkt. 11-16. The trial court
denied Petitioner's claim:
Well, the claim by Mr. Young now that he would have taken the
deal rather than face life without parole in prison is
somewhat captious (sic) in the sense that anybody in their
right mind would take such an offer if the option was to go
to prison for the rest of your natural life. That aside, the
decision for separate juries or one jury was mine and mine
alone. And whether the Defendant understood that is of no
moment. The trial would have proceeded in front of me with
one jury once I was persuaded that there was no conflict. Now
to say well, it would have been different if the codefendant
testified or didn't testify, none of us has a crystal
ball. So none of us could know whether his codefendant would
testify or not testify. As every Defendant, including Mr.
Young, has the absolute right not to testify. So the claim
that Ms. Diallo was ineffective because of a ruling of mine
is without merit. The motion for whatever relief Mr. Young is
asking is denied. And I find that Ms. Diallo was not
ineffective in her representation of him.
Id. at 27B28.
appellate counsel then filed a supplemental brief on appeal,
raising the following claim:
Was it error for the trial court judge to deny the
defendant-appellant's motion for a new trial where he
alleged that he would have accepted the plea and sentence
agreement extended to him if he understood that his joint
trial with the codefendant would be conducted before a single
jury B and not before separate juries B which was contrary to
his trial counsel's assurance and which denied him the
effective assistance of trial counsel?
Michigan Court of Appeals affirmed Petitioner's
convictions in an unpublished opinion. Young, 2014
WL 3745186. Petitioner subsequently filed an application for
leave to appeal in the Michigan Supreme Court, raising the
same claims that he raised in his pro se supplemental brief.
Petitioner also raised what now forms his fifth habeas claim.
The Michigan Supreme Court denied the application because it
was not persuaded that the questions presented should be
reviewed by the Court. People v. Young, 859 N.W.2d
516 (Mich. March 3, 2015) (Table decision).
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:
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 B
(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 ...