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Smith v. Rivard

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

May 18, 2017

William Smith, Petitioner,
v.
Steven Rivard, Respondent.

          Anthony P. Patti, Mag. Judge

         OPINION 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 [10], DENYING MOTION FOR EXTENSION OF TIME TO FILE REPLY [7], AND DENYING MOTION TO STAY PETITION [12]

          JUDITH E. LEVY, United States District Judge

         This is 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.

         The pro 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.

         I. Background

         The 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).

         After he was sentenced, Petitioner filed an appeal of right. His appellate counsel filed a brief on appeal raising three claims:

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 a mistrial?

         Petitioner also filed a supplemental pro se brief raising the following claims:

I. Is the Defendant entitled to a new trial where witnesses testimony contradicts indisputable facts and defies realities?
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?

         The 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).

         II. ...


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