United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti, Mag. Judge
AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING
A CERTIFICATE OF APPEALABILITY, DENYING PERMISSION TO APPEAL
IN FORMA PAUPERIS, DENYING MOTION TO APPOINT COUNSEL ,
DENYING MOTION FOR EXTENSION OF TIME TO FILE REPLY , AND
DENYING MOTION TO STAY PETITION 
E. LEVY, United States District Judge
a habeas case brought by a Michigan prisoner under 28 U.S.C.
§ 2254. Petitioner William Smith was convicted after a
jury trial in the Wayne Circuit Court of second-degree
murder, Mich. Comp. Laws ' 750.317, and he was sentenced
as a fourth-time habitual felony offender to a term of fifty
to eighty years' imprisonment.
se petition raises eight claims: (1) insufficient evidence
was presented at trial to sustain Petitioner's
conviction, (2) the admission of gruesome autopsy photographs
rendered Petitioner's trial fundamentally unfair, (3) a
police officer impermissibly testified that a prosecution
witness was truthful, (4) the verdict went against the great
weight of the evidence, (5) an insufficient foundation was
offered for admission of the autopsy photographs, (6) the
admission of hearsay evidence rendered the evidence
supporting the conviction insufficient, (7) the cumulative
effect of trial errors violated due process, and (8) the
prosecutor committed misconduct. The Court will deny the
petition because the claims are without merit. The Court will
also deny Petitioner a certificate of appealability and deny
him permission to proceed on appeal in forma pauperis.
Petitioner's motions for appointment of counsel and to
stay his petition will also be denied.
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).
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
Defendants' convictions arise from the fatal beating of
52- year-old Dale Glenn outside defendant McConer's
Detroit home in the late evening of July 28, 2011. The
prosecutor's theory at trial was that defendants Smith
and McConer beat Glenn because they suspected him of
stealing. The prosecution's principal witness, DB, was
sitting outside defendant McConer's house during the
offense. According to DB, as Glenn was walking down the
street, defendant Smith called him over. When Glenn
approached, defendant Smith struck Glenn in the head with a
40-ounce beer bottle, causing Glenn to fall to the cement
sidewalk. Defendant Smith then kicked and stomped Glenn
several times in his head and face. Defendant McConer, who
had been barbequing nearby, then walked over and joined in
the assault by kicking Glenn in the lower part of his body.
Both defendants stopped the beating because of oncoming cars.
The defendants then carried Glenn across the street and left
him in a vacant field. Glenn was discovered and taken to the
hospital where he died on July 30, 2011, from blunt force
head trauma. The defense theory for both defendants was that
they were not involved in Glenn's death. Both defendants
argued that DB, who admittedly had consumed 160 ounces of
beer that evening, and the other prosecution witnesses were
not credible. They were convicted and sentenced as outlined
above and now appeal as of right.
People v. Smith, No. 309422, 2014 WL 1510056, at *1
(Mich. Ct. App. Apr. 15, 2014).
he was sentenced, Petitioner filed an appeal of right. His
appellate counsel filed a brief on appeal raising three
I. Was Appellant denied due process when he was convicted of
second-degree murder where the prosecutor failed to prove
that his acts or encouragement, as either a principal or an
aider and abettor, caused the death, and because of these
proof deficiencies must his conviction be vacated?
II. Did the judge deny Appellant a fair trial by admitting,
over objection, two particularly gruesome autopsy photographs
that were far more prejudicial than probative?
III. Was Appellant denied a fair trial by Sergeant
McGinnis' “human lie-detector” testimony, in
which he told the jury that eyewitness Darral Bolden was
being truthful and was counsel ineffective for not moving for
also filed a supplemental pro se brief raising the following
I. Is the Defendant entitled to a new trial where witnesses
testimony contradicts indisputable facts and defies
II. Was the Defendant denied his due process rights where the
probative force of photographs were substantially out weighed
by the danger of unfair prejudice?
III. Did the trial court err in violation of the Defendants
due process rights where insufficient evidence was presented
at trial to sustain his conviction?
IV. The cumulative effect of errors.
V. Did the prosecutor violate Defendants due process rights
by prodigious use of improper testimony and knowingly make
improper comments to the jury in closing arguments?
Michigan Court of Appeals affirmed Petitioner's
conviction in an unpublished opinion. Smith, 2014 WL
1510056, at *17. Petitioner subsequently filed an application
for leave to appeal in the Michigan Supreme Court which
raised the same claims as in the Michigan Court of Appeals.
The Michigan Supreme Court denied the application because it
was not persuaded that the questions presented should be
reviewed by the Court. People v. Smith, 497 Mich.
1026 (2015) (table).