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Clark v. Campbell

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

May 18, 2017

ANDREW CLARK, Petitioner,
v.
SHERMAN CAMPBELL, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS; (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) DENYING PERMISSON TO APPEAL IN FORMA PAUPERIS

          LINDA V. PARKER U.S. DISTRICT JUDGE

         Petitioner Andrew Clark, (“Petitioner”), confined at Saginaw Correctional Facility in Freeland, 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 first-degree murder, Mich. Comp. Laws § 750.316; unlawful driving of an automobile, Mich. Comp. Laws § 750.413; arson of personal property, Mich. Comp. Laws § 750.74(1)(b)(i); and larceny in a building, Mich. Comp. Laws § 750.360. For the reasons stated below, the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.

         I. Background

         Petitioner was convicted after a jury trial in the Macomb County Circuit Court and sentenced to life imprisonment for the murder conviction and lesser terms of years for his other convictions. 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 was convicted of murdering Robert Miller, who died from multiple stab wounds. Miller's body was discovered inside his condominium. An autopsy revealed that he had been stabbed 132 times and sustained other blunt force injuries. Miller's car was missing from his house after the offense, and was later discovered burning less than a mile from defendant's home.
Defendant's DNA profile matched DNA taken from items located at the crime scene. Telephone records showed that defendant and Miller were in telephone contact in the weeks leading up to the offense and that defendant was the last person who called Miller on the night of the offense. A cell phone “ping search” placed defendant and Miller together on the night of the murder. A handwritten note was found at the crime scene which stated, “He said tell the family he loved them. Sincerely, ‘The Killer.'” A forensic document examiner testified that the writing on the note was consistent with defendant's writing. A diamond studded earring was found at the crime scene, which matched another earring found during a search of defendant's residence. In a recorded jailhouse telephone conversation, defendant told his brother that he killed Miller during a “robbery” that he set up. The police found receipts at defendant's home indicating that he had pawned Miller's wedding rings, and pawnshop business records also identified defendant as the person who pawned the rings. Surveillance video showed defendant's friend buying a gas can and gasoline a short distance from where the car was found. Miller's computer equipment was found in the trunk of the burned car. After defendant was arrested, he gave a police interview in which he claimed that he killed Miller in self-defense after Miller made unwanted sexual advances toward him.

People v. Clark, No. 310253, 2013 WL 6670834, at *1 (Mich. Ct. App. Dec. 17, 2013).

         After his sentencing, Petitioner was appointed appellate counsel who filed a claim of appeal in the Michigan Court of Appeals. Appellate counsel filed a brief on appeal raising two claims: (1) Petitioner is entitled to a new trial where the trial court erred in failing to suppress his statement, and (2) Petitioner is entitled to a new trial where the closing arguments of the prosecutor were improper. Id. at *1-2. The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. Id. Petitioner did not appeal this decision to the Michigan Supreme Court.

         Petitioner subsequently filed a motion for relief from judgment in the trial court, raising the same five claims that he raises in the present action. (ECF No. 12-16.) The trial court denied the motion for relief from judgment in an opinion dated June 24, 2014, on the grounds that the claims were either barred from review for Petitioner's failure to raise them on direct appeal or because they were without merit. (ECF No. 12-17.)

         Petitioner then filed an application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals denied the application for leave to appeal “for failure to establish entitlement to relief under Michigan Court Rule 6.508(D).” People v. Clark, No. 322762 (Mich. Ct. App. Oct. 3, 2014). Petitioner applied for leave to appeal this decision in the Michigan Supreme Court, but that court also denied relief under Rule 6.508(D). People v. Clark, 864 N.W.2d 558 (Mich. 2015) (table).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. Whether defense counsel's performance or lack thereof constitutes ineffective assistance of defense counsel?
II. Whether prosecutorial misconduct occurred during the course of trial?
III. Whether appellate counsel's performance or lack thereof constitutes ineffective assistance of ...

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