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McGhee v. MacLaren

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

May 18, 2017

BRYAN MCGHEE, Petitioner,



         Bryan 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.

         I. Background

         Petitioner 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).

         The 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.)

         Petitioner 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.)

         Petitioner's 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 (2014).

         Petitioner 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 automatic reversal.
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 determine[.]
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, §17, 20.

         II. Standard of Review

         28 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; or
(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.

         A 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 ...

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