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Harper v. Palmer

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

June 29, 2017

Willie Harper, Petitioner,
v.
Carmen Palmer, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [7], CERTIFICATE OF APPEALABILITY, AND LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

          JUDITH E. LEVY UNITED STATES DISTRICT JUDGE

         Willie Harper (“Petitioner”), confined at the Chippewa Correctional Facility in Kincheloe, Michigan, has filed an amended pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. (Dkt. 7.) In his application, Petitioner challenges his conviction of three counts of assault with intent to murder, Mich. Comp. Laws § 750.83[1]; carrying a concealed weapon, Mich. Comp. Laws § 750.227; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and possession of a firearm during the commission of a felony (felony-firearm), Mich. Comp. Laws § 750.227b. Petitioner was sentenced as a second-offense habitual offender, Mich. Comp. Laws § 769.10, to concurrent terms of 25 to 50 years for each count of assault with intent to murder, 40 to 60 months for carrying a concealed weapon and felon in possession, and a consecutive term of two years for felony-firearm.

         For the reasons stated below, the Court denies the petition for a writ of habeas corpus. The Court further denies a certificate of appealability and leave to appeal in forma pauperis.

         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). Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).

In Docket No. 308639, defendant appeals as of right his convictions resulting from his shooting at three individuals at an apartment complex in Detroit, Michigan. Michael Clemons and Kevin Miller were with Steven Tee standing behind a gate and near a brick wall near the front of the apartment complex. Clemons and Miller saw a truck drive by with the passenger side facing the complex. Clemons identified defendant as driving the vehicle. The car briefly stopped, and defendant looked over at the three men. Defendant then continued down the road, made a u-turn over the sidewalk, drove back toward the apartment building, and stopped in front of the gate with the driver's side facing the complex.
Defendant then extended a semi-automatic gun out of the window. Clemons testified that defendant said, “[Y]aw thought I was playing and I told you I will be right back.” Miller never saw the shooter's face, but testified that the shooter pulled out a gun and said, “I told you I would be back.” Clemons saw defendant point the gun at him, Tee, and Miller, and start shooting through the gate. Miller dropped to the ground while Tee and Clemons ran. Clemons and Miller heard the bullets hitting the concrete and bricks of the building. When running, Clemons looked back to see where defendant was located. Defendant then looked directly at Clemons, shot two more times, and hit Clemons in the forehead with one of the bullets. Brandon Bunch, a resident of the apartment complex, testified and confirmed that Clemons had been shot in the head and had a slight wound. Bunch also testified that before defendant drove away from the scene, he said “I'll be back.”
Two police officers noticed defendant driving at a high rate of speed and disregard a stop sign. They pursued him and saw that he threw an assault weapon out of the window. Defendant continued to flee from the police but when he attempted to turn left, he was unsuccessful, and his car struck a fence. Defendant ran out of the car and began fleeing on foot. He was eventually subdued and arrested, and the gun he threw out of the window was recovered. In a written statement to the police, defendant admitted that he was at the apartment complex because he had been robbed by four males two days before the shooting, but he claimed that he only shot the gun in the air and ran from the police because he had the gun. Clemons and Miller testified that they never saw defendant point his gun and fire it in the air. Clemons later went to the hospital and received staples and stitches for the bullet wound.
In Docket No. 309330, defendant appeals by leave granted his plea of no contest to felonious assault and felony-firearm relating to his behavior in pursuing a female victim with a gun. The trial court ordered defendant to pay $68 in state costs per conviction, $130 for the crime victim's rights fee, $600 in court costs, and $400 in attorney fees. Defendant now appeals in both dockets on several grounds.[2]

People v. Harper, Nos. 308639, 309330; 2013 WL 4766677, at *1-2 (Mich. Ct. App. Sept. 5, 2013), vacated in part on other grounds by 497 Mich. 885 (2014).

         Petitioner's conviction was affirmed in part and vacated in part on appeal. Id. The Michigan Supreme Court denied leave to appeal in Docket No. 308639, and ordered the court of appeals to hold in abeyance Docket No. 309330 pending decisions in two other cases. People v. Harper, 495 Mich. 947 (2014). After those two court of appeals decisions were issued, the Michigan Supreme Court vacated the part of the court of appeals opinion addressing court costs and remanded for reconsideration of this issue, but denied leave to appeal all other aspects of Petitioner's application. People v. Harper, 497 Mich. 885 (2014).

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

I. The Michigan courts unreasonably applied federal law in finding that there was no violation of Petitioner's right to effective counsel as guaranteed by the Sixth Amendment, where trial counsel failed to object to the absence of Dr. Janowicz and Steve Tee, failed to obtain an expert witness, failed to object to the admission of medical records where the author of said records did not testify, failed to object to perjured testimony and other instances of prosecutorial misconduct and failed to investigate.
II. The state court unreasonably applied federal law in concluding that there was sufficient evidence to support Petitioner's convictions for assault with intent to commit great bodily harlm [sic]. Therefore, petitioner is entitled to issuance of the writ of habeas corpus.
III. The state courts unreasonably applied federal law in denying Petitioner a new trial where the prosecutor transgressed the bounds of professional conduct by denigrating defense witnesses which denied Petitioner a fair trial.
IV. Petitioner is entitled to habeas relief where the trial judge erroneously scored him 50 points under offense variable 6, over defense objection, which caused Petitioner to be sentenced based on inaccurate information and to a longer minimum term allowed by law.

(Dkt. 7 at 9.)

         II. Legal Standard

         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 (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 court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. “[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.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). And “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or . . . could have supported [] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id.

         Thus, to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, _|__ U.S. __, 136 S.Ct. 1149, 1152 (2016).

         III. Analysis

         Petitioner raises four separate claims. First, he argues the state courts unreasonably applied federal law in rejecting his ineffective assistance of counsel claims. Second, he argues the state courts unreasonably applied federal law in concluding there was sufficient evidence to convict him of assault with intent to commit murder. Third, he argues the state courts unreasonably applied federal law in denying him a new trial despite what Petitioner describes as prosecutorial misconduct. Finally, Petitioner argues the trial judge incorrectly scored his offense level, causing him to serve a longer sentence than was permissible.

         A. Ineffective Assistance of Counsel Claim

         Petitioner first contends that the state courts unreasonably applied federal law in finding no Sixth Amendment violation because his trial counsel was ineffective in (1) failing to object to the introduction of medical records prepared by Dr. Janowitz, who did not testify at trial; (2) failing to ensure the prosecutor produced Steven Tee as a witness at trial; (3) failing to obtain an expert witness; (4) failing to object to perjured testimony from Kevin Miller; (5) failing to object to prosecutorial misconduct; and (6) failing to investigate and adequately prepare for trial. (Dkt. 7 at 34-48.)

         Respondent argues that Petitioner has procedurally defaulted part of this claim because he failed to properly raise the issue before the Michigan Court of Appeals. (Dkt. 8 at 28.) Specifically, Respondent argues Petitioner is procedurally defaulted from raising two parts of this claim: (1) that counsel was ineffective for failing to object to Mr. Tee's absence at trial, and (2) that counsel was ineffective for failing to object to the admission of the medical records. (Id.) These two arguments, Respondent argues, were not supported in Petitioner's brief to the Michigan Court of Appeals “with citations to the record and to relevant legal authority, ” which is “tantamount to abandoning [them.]” (Id.)

         While failing to raise claims on direct appeal can result in procedural default, the Court declines to find these two claims defaulted. The Michigan Court of Appeals stated that “defendant fails to explain or cite any authority” to support his arguments, 2013 WL 4766677 at *7, but they do not expressly say that he did so little as to “simply [] announce a position . . . and then leave it up to [the] Court to discover and rationalize the basis for his claims.” People v. Kevorkian, 248 Mich.App. 373, 389 (2001) (quoting Mitcham v. Detroit, 355 Mich. 182 (1959)). And Respondent has not supplied the briefs submitted to the court of appeals, so this Court is unable to determine whether Petitioner truly failed to provide any support for his claims. Accordingly, these two claims are not defaulted, and the Court will consider all of Petitioner's arguments on the merits.

         To show that he was denied the effective assistance of counsel, a defendant must satisfy a two-prong test. First, the petitioner must demonstrate that, considering all of the circumstances, counsel's performance was so deficient “that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the petitioner must overcome a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Second, the petitioner must demonstrate prejudice by showing “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “Strickland's test for prejudice is a demanding one. ‘The likelihood of a different result must be substantial, not just conceivable.'” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011) (quoting Harrington, 562 U.S. at 112).

         And on habeas review of state court determinations, “[t]he question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.'” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Thus, pursuant to 28 U.S.C. § 2254(d)(1), “doubly deferential judicial review” applies to a Strickland claim brought by a habeas petitioner, id., and “a state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Harrington, 562 U.S. at 101.

         Because of this doubly deferential standard, the Supreme Court has indicated that:

Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Harrington, 562 U.S. at 105. Thus, a reviewing court must “affirmatively entertain the range of possible ‘reasons [counsel] may have had for proceeding'” as he did. Cullen v. ...


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