Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Liceaga v. Berghuis

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

May 16, 2017

ANTONIO LICEAGA, Petitioner,
v.
MARY BERGHUIS, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABLITY, AND GRANTING PERMISSION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

          MARK A. GOLDSMITH United States District Judge

         Petitioner Antonio Liceaga, currently confined at the Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in Ottawa County Circuit Court, Petitioner was convicted of second-degree murder, Mich. Comp. Laws § 750.317; and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. As a result of these convictions, Petitioner is serving consecutive sentences of 160 to 240 months' imprisonment for the murder conviction, and two years' imprisonment for the felony-firearm conviction.

         The petition raises eight claims: (i) insufficient evidence supported Petitioner's convictions; (ii) a first-degree murder charge was improperly submitted to the jury, because insufficient evidence was presented to show premeditation and deliberation; (iii) convictions for second-degree murder and felony-firearm were against the great weight of the evidence; (iv) the trial court denied Petitioner a fair trial and his right to due process by allowing irrelevant and prejudicial evidence before the jury, failing to control the prosecutor, and denying Petitioner's motion for a new trial; (v) the prosecutor committed misconduct; (vi) trial counsel was ineffective; (vii) the trial court improperly scored offense variable 6; and (viii) appellate counsel was ineffective.

         For the reasons explained below, the Court denies the petition because Petitioner's claims are without merit and/or not cognizable on federal habeas corpus review. The Court declines to issue Petitioner a certificate of appealability, but grants Petitioner leave to proceed on appeal in forma pauperis.

         I. BACKGROUND

         Petitioner was convicted of the above charges following a jury trial in the Ottawa County Circuit Court. 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 shooting death of his friend, Felipe Van, who died from a single gunshot to the left frontal area of his head. Gunpowder was embedded in the skin around the entry wound, indicating that Felipe was shot at close range. The principal issue at trial was defendant's state of mind at the time of the shooting. Defendant admitted shooting Felipe, but claimed it was an accident. Defendant testified that he and Felipe had a habit of playing with the gun and that, when the shooting occurred, he did not know there was a bullet in the chamber.
* * *
According to a witness, Dalvin Kann, defendant and Felipe were playing around, but Kann could tell from defendant's facial expression and tone of voice that he was getting mad. Shortly before the shooting, defendant told Felipe that he was going to “grab my gun and shoot you.” Evidence was presented that defendant had shot the gun one or two days earlier, and that he told others on the day before the shooting that he had two or three bullets left, thus supporting an inference that defendant knew that the gun was operational and loaded when he obtained it. After obtaining the gun, defendant approached Felipe, pointed the gun at him, and stated, “Do you want to play?” Kann heard a clicking sound, following which a shot was fired. The evidence of a clicking sound supports an inference that defendant manually cocked the gun before firing it. The evidence also indicated that the gun was placed near or against Felipe's head when it discharged, which supports an inference of a deliberate intent to kill. After the shooting, defendant hid the gun and ran from the house.

People v. Liceaga, No. 280726, 2009 WL 186229, at *1-2 (Mich. Ct. App. Jan. 27, 2009) (per curiam). Petitioner's conviction was affirmed on appeal. Id. at *7, leave denied, 766 N.W.2d 846 (Mich. 2009).

         Petitioner filed a motion for relief from judgment in the trial court. The trial court denied the motion. People v. Liceaga, No. 07-031053-FC, Order (Ottawa County Circuit Court May 27, 2010) (Dkt. 17-15). Both Michigan appellate then denied leave to appeal. People v. Liceaga, No. 300429 (Mich. Ct. App. Jan. 4, 2011) (Dkt. 17-21), leave denied, 800 N.W.2d 591 (Mich. July 25, 2011).

         Petitioner then filed a habeas corpus petition in this Court on November 18, 2011 (Dkt. 1). He also filed a motion to stay the matter to allow him to exhaust claims related to newly-discovered evidence in state court. The Court granted the stay. See 4/30/2012 Order (Dkt. 6).

         Petitioner filed a motion to correct sentence in the trial court on June 26, 2012. The trial court denied the motion. People v. Liceaga, No. 07-031053-FC, Order (Ottawa County Circuit Court July 23, 2012) (Dkt. 17-25). Both Michigan appellate courts denied leave to appeal. People v. Liceaga, No. 315578 (Mich. Ct. App. May 22, 2013) (Dkt. 17-25), leave denied 839 N.W.2d 487 (Mich. 2013).

         Petitioner filed a motion for evidentiary hearing in the trial court. The trial court denied the motion on May 31, 2013. People v. Liceaga, No. 07-31053-FC, Order (Ottawa County Circuit Court May 31, 2013) (Dkt. 17-27). The Michigan Court of Appeals and Michigan Supreme Court both denied leave to appeal. See 10/15/2013 Order (Dkt. 17-27), leave denied, 847 N.W.2d 635 (Mich. 2014).

         The Court then granted Petitioner's motion to reinstate the petition. See 12/3/2014 Order (Dkt. 11). Petitioner seeks habeas corpus relief on the following grounds:

i. “[Petitioner's] convictions for second degree murder and felony firearm should be overturned because there was insufficient credible evidence at trial to prove [Petitioner] guilty of the crimes.”
ii. “[Petitioner] should receive a new trial because there was insufficient evidence to convict the [Petitioner] of first degree murder on the theory of premeditation and deliberation, yet, that charge was submitted to the jury along with others.”
iii. “[Petitioner's] convictions for second degree murder and felony firearm must be reversed because they are against the great weight of the evidence and involve a miscarriage of justice.”
iv. “The trial court denied [Petitioner] a fair trial and his due process rights by: erring in his evidentiary rulings by allowing irrelevant and unfairly prejudicial evidence before the jury; by failing to control the prosecuting attorney; and by denying [Petitioner's] motion for a new trial.”
v. “The prosecutor's actions denied [Petitioner] a fair trial and his due process rights under the Michigan and Federal Constitutions.”
vi. “[Petitioner] received ineffective assistance of trial counsel.”
vii. “[Petitioner] must be resentenced where the trial court improperly gave him twenty five points for [Offense Variable (“OV”] 6, overruling a defense objection to this score. ”
viii. “[Petitioner] was deprived of due process of law where his appellate lawyer omitted and failed to raise the issues presented in his motion for relief from judgment on the appeal of right.”

Am. Pet. at 4-14 (Dkt. 9).

         II. STANDARD OF REVIEW

         Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.