United States District Court, E.D. Michigan, Southern Division
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
A. GOLDSMITH United States District Judge
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.
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.
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
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
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).
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).
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).
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).
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
vi. “[Petitioner] received ineffective assistance of
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).
STANDARD OF REVIEW
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 ...