United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
V. PARKER, U.S. DISTRICT JUDGE
McGhee, (“Petitioner”), confined at the Kinross
City Correctional Facility in Kincheloe, Michigan, filed a
pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his application, petitioner challenges
his conviction for second-degree murder, Mich. Comp. Laws
§ 750.317. For the reasons stated below, the petition
for a writ of habeas corpus is DENIED WITH PREJUDICE.
was convicted following a jury trial in the Wayne 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 conviction involves the stabbing death of
William Fish on May 18, 2009, in Detroit. The prosecution
alleged that defendant stabbed Fish in anger over an earlier
fight that had occurred between defendant and an individual
named Cameron, and in which Fish was also involved. Defendant
maintained that Fish assaulted him with a knife and that he
stabbed Fish in self-defense during a struggle for that
knife. At trial, two men who were present with Fish during
the stabbing, Benjamin Tucker and Patrick Mayo, provided
their versions of the incident, as did defendant. In
addition, all three men testified about the earlier fight, as
did a fourth witness, Johnny McDaniel.
People v. McGhee, No. 295708, 2011 WL 566844, at *1
(Mich. Ct. App. Feb. 17, 2011).
Court also recites these additional facts. The medical
examiner testified that the cause of death was multiple stab
wounds, finding that “[T]here were three stab wounds,
one on the right chest, one on the left chest and one on the
left arm.” (ECF No. 6-9 at Pg ID 452.) The stab wound
labeled “number one, ” located on the right upper
chest, proceeded through the spaces between the ribs and
perforated the lower part of the right lung. (Id.)
Stab wound “number two, ” located on the left
lower chest, went through the tissues beneath the ribs and
tore the tissue that envelopes the heart, the pericardium.
(Id.) This wound also ripped the right side of the
heart and the middle portion of the heart. (Id. at
Pg ID 452-53.) The combination of the piercing of the right
lung and heart caused “extensive bleeding into the
chest cavity, ” according to the medical examiner.
(Id. at Pg ID 453.) Stab wound “number three,
” located on the lateral portion of the left arm,
slashed through the skin and the soft tissues beneath the
skin as well as the muscle beneath the soft tissue.
(Id.). The first injury was a downward motion, and
the second injury was an upward motion. (Id. at Pg
ID 465.) Although the medical examiner could not definitively
state that Fish's left arm injury constituted a defensive
wound, he did say that the injury to the left arm might be a
defensive wound. (Id. at Pg ID 466.)
testified that the victim (Fish) “pulled out a
knife.” (ECF No. 6-11 at Pg ID 837.) Petitioner further
testified that Fish cut petitioner's right arm with the
knife, which caused him to bleed. (Id. at Pg ID
838-39.) A struggle then ensued, according to petitioner, in
which he grabbed Fish's hand. (Id. at Pg ID
839.) Breaking free, petitioner testified that he ran away.
Petitioner claimed he had no reason to harm Fish and denied
intentionally stabbing him repeated times that night.
(Id. at Pg ID 841.)
conviction was affirmed on appeal. People v. McGhee,
No. 295708, 2011 WL 566844; lv. den. 490 Mich. 896, 804
N.W.2d 555 (2011). Petitioner filed a post-conviction motion
for relief from judgment, which was denied. People v.
McGhee, No. 09-017549-FC (Third Cir. Ct., Dec. 3, 2012).
The Michigan appellate courts denied petitioner leave to
appeal. People v. McGhee, No. 316330 (Mich. Ct. App.
Oct. 25, 2013); lv. den. 495 Mich. 993, 845 N.W.2d 117
(2014); reconsideration den. 497 Mich. 857, 852 N.W.2d 160
seeks a writ of habeas corpus on the following grounds:
I. The state court unlawfully deprived the Petitioner of his
due process, equal protection, and other protected rights
under the United States and Michigan Constitutions when it
responded to the jury's request to review key testimony
by indicating that it would take substantial time to prepare
a transcript and asked the jury to rely on its collective
memories, thus forcing a coerced verdict.
II. Petitioner was denied his right to counsel of choice, by
his trial judge, in violation of his Sixth Amendment, thus, a
structural error was committed against him, which requires
III. Mr. McGhee was denied his constitutional right to a fair
and impartial jury, by the trial court not holding a hearing
pursuant to Remmer v. United States, 347 Us 227,
320; 74 S.Ct. 450; 98 L.Ed.2d 654 (1954), where after opening
statements were given, juror 9 seen [sic] the victim's
family and knew one of them, because they worked at Ford
Motor Company together, and, at least one other juror worked
at the same Ford plant, yet, no inquiry was undertaken to
protect Mr. McGhee's rights and counsel was ineffective
in failing to completely preserve this issue.
IV. Substantial prosecutorial misconduct deprived Petitioner
of his rights to a fair trial pursuant to Us [sic]
Constitutional Amend V, XIV, Mich. Const. 1963, Art. 1,
§ 17 and 20.
V. Petitioner was denied his Fifth Amendment constitutional
rights to a fair and impartial trial where the trial court
abused its discretion in allowing in prejudicial evidence
that went to the conclusion of law for the trier of fact to
VI. Petitioner was denied his constitutional right to the
effective assistance of appellate counsel on his appeal of
right. U.S. Const. Am.
VII. The state courts erred and violate[d] Petitioner's
right to a fair trial, and due process of law regarding
ineffective assistance of counsel without holding an
evidentiary hearing to assess counsel's performance as
identified in the above issues, and prejudice suffered.
U.S. Const. Amend. V, XIV; Mich. Const. 1963, Art 1,
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-
(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.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when a state court decision
“unreasonably applies the law of [the Supreme Court] to
the facts of a prisoner's case.” Id. at
409. A federal habeas court may not “issue the writ
simply because that ...