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
G. EDMUNDS UNITED STATES DISTRICT JUDGE.
matter has come before the Court on petitioner Mark
Yancey's habeas corpus petition under 28 U.S.C. §
2254. Petitioner is challenging his state convictions for
first-degree, premeditated murder, Mich. Comp. Laws §
750.316(1)(a), and possession of a firearm during the
commission of a felony (“felony firearm”), Mich.
Comp. Laws § 750.227b. He maintains that (1) there was
insufficient evidence to sustain his convictions, (2) he was
denied a fair trial by the admission of hearsay, (3) the
prosecutor's remarks deprived him of a fair trial, (4) he
was denied the assistance of counsel for several months, and
(5) he was denied effective assistance of trial counsel.
Respondent Jeffrey Woods urges the Court to deny the petition
on grounds that Petitioner procedurally defaulted part of his
third claim and the state courts' decisions were not
contrary to federal law, unreasonable applications of federal
law, or unreasonable determinations of the facts. The Court
agrees that the state courts' decisions were objectively
reasonable. Therefore, Petitioner is not entitled to relief,
and the Court will deny the petition.
The Trial and Sentence
charges against Petitioner were based on allegations that he
shot and killed a teenage boy in Detroit, Michigan on May 20,
2009. Petitioner and his co-defendant, Duane Sain
(“Sain”), were tried together, but before
separate juries, in Wayne County Circuit Court.
victim's mother, Paula Holliman, testified that her son
was sixteen years old when he was killed and that everyone
loved him. Dr. Francisco Diaz performed the autopsy on the
victim and testified that the victim was shot in the back and
on the right knee. The cause of death was multiple gunshot
wounds, and the manner of death was homicide.
police officer Robert Skender was dispatched to the scene of
the shooting. He testified that, although there was a street
light at the site, it was a little darker than the area where
he found the victim. After EMS took the victim to the
hospital, he secured the area.
Porter testified that, about 4:00 or 5:00 p.m. on May 20,
2009, he and his friends (Daniel Hines (“Hines”),
someone named “C.J.”, and the victim) were
“hanging out” on Stout Street near Wadsworth
Avenue. An argument broke out between the Vaughn Street
group, which included Petitioner and Sain, and the Stout
Street group, which included C.J. and Hines. The argument
pertained to someone named “Jock” or “Young
Jock” who had stolen some drugs from C.J.'s friend.
Everyone scattered when someone other than the defendants
fired a gun into the air.
that same day before 11:00 p.m., he (Porter), Hines, C.J.,
and the victim walked back to the area of Stout and Wadsworth
Streets. A burgundy Caprice car with a black hood and a
damaged front end drove up behind them. Hines said,
“There they go right there.” He (Porter) then
turned and noticed that Sain was driving the car, and
Petitioner was seated on the passenger side of the car with a
gun. He could see the driver because the car drove slowly
under a street light, which lit up the car. He heard about
ten gunshots come from the car, and, as he and his friends
ran away, the victim said that he was hit and fell down.
Someone in the car then yelled “Black Point, ”
which was the name of a gang associated with the boys from
the shooting, some older people arrived and appeared to
assist the victim. He and Hines ran to his house where he
told his mother and sister what had happened; they called the
911 operator. Then he and Hines went to C.J.'s house, and
all three of them returned to where the victim had been shot.
The police arrived, but he did not speak with any officers at
the scene, and the EMS crew took the victim away on a
stretcher. He learned the next day that the victim had died.
On June 6, 2009, he spoke with Sergeant Diaz and told him
what had happened. He also viewed two photo lineups. He
identified Petitioner as the shooter and Sain as the driver
of the car that drove by him and his friends immediately
before the shooting. He knew the defendants from the
neighborhood, and, at the time, he thought that
Petitioner's name was Monte.
corroborated much of Porter's testimony about the
incidents that occurred on May 20, 2009. He stated that
Petitioner and Sain were his friends and that he saw them
during the argument on the afternoon of May 20, 2009. Later
that night, he saw someone shooting from the front passenger
seat of a brown Caprice, which had a hood of a different
color. He had previously seen Sain driving the car, but he
did not see who was driving the car on May 20, 2009. He also
did not see who was shooting from the car, and he did not
tell Sergeant Diaz that the car belonged to Sain.
police officer Eugene Fitzhugh testified that he responded to
the homicide scene and took photographs. He collected a
baseball cap, a tee shirt, a cell phone, and approximately
sixteen casings, all of which were nine millimeter casings.
He had to use a flashlight because there was no street
lighting and it was extremely dark there.
Michael Martell of the Detroit Police Department also
responded to the scene. He told the evidence technician what
to document, photograph, and collect. There were some street
lights on, but the area was not well lit.
Lieutenant David Vroman of the Michigan State Police
testified that he examined seventeen fired cartridge casings
and determined that ten of them came from one gun and the
other seven came from another gun. He also examined two fired
bullets, but he had no gun with which to compare the bullets,
and one of the bullets appeared to be unrelated to the case.
Gary Diaz was the officer in charge of the case. He explained
that he learned about Porter and Hines from tips and from
officers who worked in the area. He interviewed Porter, who
identified Petitioner and Sain in photographs and stated that
they were the individuals whom he saw during the shooting.
Hines, on the other hand, initially was uncooperative, but he
“came clean” and told Diaz what he saw after Diaz
showed him Porter's statement. Both Hines and Petitioner
told him that the Caprice they saw at the shooting was
Sain's car. He investigated other witnesses, including
someone named Monte, but he never learned the identity of
“C.J., ” and he was unable to determine who fired
the gunshots on the afternoon of May 20, 2009. He also did
not recover a weapon.
did not testify or present any witnesses. His defense was
that there were holes in the prosecution's case. Defense
counsel pointed out to the jury that the lighting was poor at
the scene of the shooting and that the only witness to
implicate Petitioner was Porter, who could not have seen
Petitioner in the car at the time of the shooting. Defense
counsel also pointed out that Porter had identified
Petitioner as Monte during the pretrial proceedings and that
Monte was someone else. Counsel concluded her closing
argument by stating that the prosecution had not met its
burden of proof and that, if the jurors doubted whether
Petitioner pulled the trigger, the only proper verdict was a
“not guilty” verdict.
trial court instructed the jury on second-degree murder as a
lesser-included offense of first-degree murder, but on March
3, 2010, Petitioner's jury found him guilty, as charged,
of first-degree murder and felony firearm. On March 18,
2010, the trial court sentenced Petitioner to a mandatory
term of two years in prison for the felony-firearm conviction
and to a consecutive term of life imprisonment without the
possibility of parole for the murder conviction.
The Direct Appeal and Post-Conviction Proceedings
direct appeal, Petitioner challenged the sufficiency of the
evidence supporting his murder conviction, the use of
hearsay, the prosecutor's conduct, the photographic
identification, and the verdict form. The Michigan Court of
Appeals rejected Petitioner's arguments and affirmed his
convictions. See People v. Yancey, No. 297815, 2011
WL 3518212 (Mich. Ct. App. Aug. 11, 2011.) The Michigan
Supreme Court denied leave to appeal because it was not
persuaded to review the issues. See People v.
Yancey, 490 Mich. 974; 806 N.W.2d 738 (2011) (table).
subsequent motion for relief from judgment, Petitioner argued
that he was denied counsel for several months during the
pretrial investigative stage and that trial counsel deprived
him of effective assistance. The trial court denied
Petitioner's motion in a reasoned opinion. See People
v. Yancey, No. 09-024170-02-FC (Wayne Cty. Cir. Ct. July
9, 2013). The trial court also denied Petitioner's motion
for reconsideration. See People v. Yancey, No.
09-024170-02-FC (Wayne Cty. Cir. Ct. Aug. 19, 2013).
appealed the trial court's decision, but both the
Michigan Court of Appeals and the Michigan Supreme Court
denied leave to appeal for failure to establish entitlement
to relief under Michigan Court Rule 6.508(D). See People
v. Yancey, No. 319355 (Mich. Ct. App. Jan. 10, 2014);
People v. Yancey, 496 Mich. 864; 849 N.W.2d 385
(2014). The Michigan Supreme Court denied Petitioner's
motion for reconsideration on September 29, 2014. See
People v. Yancey, 497 Mich. 872; 853 N.W.2d 375 (2014)
The Habeas Petition and Responsive Pleading
October 3, 2014, Petitioner filed his habeas corpus petition
through counsel. As noted above, he argues that (1) he was
convicted on insufficient evidence, (2) he was denied a fair
trial by the admission of hearsay, (3) the prosecutor
committed misconduct, (4) he was denied the assistance of
counsel for several months during the pretrial stage, and (5)
he was denied effective assistance of trial counsel.
Respondent argues, among other things, that the portion of
Petitioner's third claim which challenges the
prosecutor's opening statement and her direct examination
of the victim's mother is procedurally defaulted.
procedural default is “a critical failure to comply
with state procedural law.” Trest v. Cain, 522
U.S. 87, 89 (1997). It “is not a jurisdictional matter,
” id., and to obtain habeas relief on
procedurally defaulted claims, a petitioner “must
establish cause and prejudice for the defaults” and
“also show that the claims are meritorious.”
Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir.
2010) (internal citation omitted).
claims lack merit for the reasons given below. And because
“federal courts are not required to address a
procedural-default issue before deciding against the
petitioner on the merits, ” Hudson v. Jones,
351 F.3d 212, 215 (6th Cir. 2003), the Court “cut[s] to
the merits here, since the cause-and-prejudice analysis adds
nothing but complexity to the case.” Babick,
620 F.3d at 576.
Standard of Review
statutory authority of federal courts to issue habeas corpus
relief for persons in state custody is provided by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA).” Harrington v.
Richter, 562 U.S. 86, 97 (2011). “AEDPA sharply
limits the circumstances in which a federal court may issue a
writ of habeas corpus to a state prisoner whose claim was
‘adjudicated on the merits in State court
proceedings.' ” Johnson v. Williams, 568
U.S. 289, __, 133 S.Ct. 1088, 1094 (2013) (quoting 28 U.S.C.
§ 2254(d)). The Court may not grant a state
prisoner's application for the writ of habeas corpus
unless the state court's adjudication of the
prisoner's claims on the merits
(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.
28 U.S.C. § 2254(d).
Under the “contrary to” clause [of §
2254(d)(1)], a federal habeas court may grant the writ 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. Under the
“unreasonable application” clause [of §
2254(d)(1)], a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle
from [the Supreme] Court's decisions but unreasonably
applies that principle to the facts of the prisoner's
Williams v. Taylor, 529 U.S. 362, 412-13 (2000)
(O'Connor, J., opinion of the Court for Part II).
“[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Id. at
thus imposes a ‘highly deferential standard for
evaluating state-court rulings, ' Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997), and
‘demands that state-court decisions be given the
benefit of the doubt, ' Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam).”
Renico v. Lett, 559 U.S. 766, 773 (2010). “A
state court's determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded
jurists could disagree' on the correctness of the state
court's decision.” Richter, 562 U.S. at
101 (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). To obtain a writ of habeas corpus from a federal
court, a state prisoner must show that the state court's
ruling on his or her claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
“ ‘[i]n a proceeding instituted by an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to be
correct, ' unless rebutted by ‘clear and convincing
evidence.' ” Holland v. Rivard, 800 F.3d
224, 242 (6th Cir. 2015) (quoting 28 U.S.C. §
2254(e)(1)), cert. denied, 136 S.Ct. 1384 (2016).
Finally, “review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated
the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
The Sufficiency of the Evidence
first habeas claim alleges that Petitioner was convicted on
the basis of insufficient evidence in violation of his right
to due process. Petitioner contends that the testimony of the
main prosecution witness was totally inconsistent with his
statement to the police and that the investigating detective
may have told the witness what to say and whom to identify as
the perpetrators of the crime. Petitioner further alleges
that the prosecutor failed to establish his intent.
Michigan Court of Appeals adjudicated Petitioner's claim
on direct appeal and opined that there was sufficient
evidence from which a rational trier of fact could conclude
that Petitioner was the shooter and that he premeditated the
shooting. Petitioner maintains that the state court failed to
provide a reasonable or thoughtful analysis of the issue and,
instead, used boilerplate language to resolve the issue.
Process Clause of the Fourteenth Amendment to the United
States Constitution “protects the accused against
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364
(1970). Following Winship, the critical inquiry on
review of a challenge to the sufficiency of the evidence
supporting a criminal conviction is
whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt. But this inquiry
does not require a court to “ask itself whether
it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Instead,
the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. This
familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)
(internal citations and footnote omitted) (emphases in
Supreme Court, moreover, has “never questioned the
sufficiency of circumstantial evidence in support of a
criminal conviction, even though proof beyond a reasonable
doubt is required.” Desert Palace, Inc. v.
Costa, 539 U.S. 90, 100 (2003). Circumstantial evidence
in criminal cases is “intrinsically no different from
testimonial evidence, ” Holland v. United
States, 348 U.S. 121, 140 (1954), and the prosecution
has no affirmative duty to rule out every hypothesis except
that of guilt, Jackson, 443 U.S. at 326.
claims face a high bar in federal habeas proceedings because
they are subject to two layers of judicial deference.”
Coleman v. Johnson, 566 U.S. 650, __, 132 S.Ct.
2060, 2062 (2012) (per curiam). First, “
‘it is the responsibility of the jury . . . to decide
what conclusions should be drawn from evidence admitted at
trial.' ” Id. (quoting Cavazos v.
Smith, 565 U.S. 1, 2 (2011) (per curiam)).
And second, on habeas review, “a federal court may not
overturn a state court decision rejecting a sufficiency of
the evidence challenge simply because the federal court
disagrees with the state court. The federal court instead may
do so only if the state ...