United States District Court, E.D. Michigan, Southern Division
BRIAN D. WELLONS, Petitioner,
CATHERINE S. BAUMAN, Respondent.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
F. Cox U.S. District Judge.
Brian D. Wellons seeks habeas corpus relief under 28 U.S.C.
§ 2254. Petitioner is a state prisoner in the custody of
the Michigan Department of Corrections pursuant to
convictions for second-degree murder, felon in possession of
a firearm, and two counts of possession of a firearm during
the commission of a felony. He raises six claims for habeas
relief. Respondent argues that the claims are procedurally
defaulted and/or meritless. The Court denies the petition.
convictions arise from a shooting in Pontiac, Michigan on May
20, 2011, which resulted in the death of Craig Atkins.
Petitioner and Atkins were both romantically involved with
the same woman, Keisha Connelly. Amanda Atkins testified that
the victim was her uncle. On the evening of the shooting,
Craig Atkins told Amanda that he was going to take Connelly
to the store. Amanda saw them drive away together. In the
meantime, Petitioner entered the parking lot and began
talking to Clintones Royal, who was sitting in Amanda's
van. When Atkins returned, he approached Amanda's
vehicle. Amanda heard someone ask her uncle who he was and
then heard a gunshot. Amanda testified that the gunshot came
from the direction of where Petitioner had been standing.
Royal also testified that Petitioner shot Atkins while he was
standing outside a vehicle talking to her. Petitioner
testified in his own defense. He testified that he knew
Atkins had recently been released from prison for murdering
someone. Petitioner was frightened of Atkins because two
weeks earlier Atkins had said Petitioner looked like someone
who owed him money. Petitioner testified that, on the night
of the shooting, Atkins crept up to the van where Petitioner
was talking to Royal and reached toward his waistband.
Petitioner panicked and shot Atkins. Petitioner did not turn
himself into police because he was on parole and carrying a
gun. Petitioner was shot five or six days after he shot
Atkins. Police located him in the intensive care unit of a
hospital and arrested him upon his hospital discharge.
was convicted by a jury in Oakland County Circuit Court of
second-degree murder, felon in possession of a firearm, and
two counts of felony-firearm. He was acquitted of the charge
of first-degree premeditated murder. On November 8, 2011, he
was sentenced as follows: 50 to 90 years' imprisonment
for the second-degree murder conviction, 6 to 60 years'
imprisonment for the felon-in-possession conviction, and 5
years' imprisonment for the felony-firearm convictions.
filed an appeal of right in the Michigan Court of Appeals
arguing that insufficient evidence supported submission of
the first-degree murder charge to the jury, the prosecutor
engaged in misconduct, offense variable 3 was misscored, the
trial court made several errors in evidentiary rulings, the
courtroom was improperly partially closed during trial, trial
counsel was ineffective, and the cumulative effect of errors
warrants a new trial. The Michigan Court of Appeals affirmed
Petitioner's convictions and sentences. People v.
Wellons, 2013 WL 1631973 (Oakland County Cir. Ct. Apr.
16, 2013). Petitioner sought leave to appeal in the Michigan
Supreme Court raising the same claims raised in the Court of
Appeals. The Michigan Supreme Court denied leave to appeal.
People v. Wellons, 495 Mich. 865 (Mich. Sept. 30,
then filed the pending habeas corpus petition. He raises
I. There was insufficient evidence of premeditation to submit
the first-degree murder charge to the jury as a possible
II. The prosecutor denied the Petitioner due process and a
fair trial by improper questioning of the Petitioner to the
extent that the Petitioner was seriously prejudiced.
III. The trial court erred in denying the Petitioner's
objection to the scoring of OV 3 and resentencing is
IV. Mr. Wellons was denied his rights to a fair trial when
a. Abused its discretion, over defense objection, in
admitting a photo that had nothing to do with the criminal
case, but, would bring sympathy to the victim and his mother
for the loss of a son;
b. Refused to allow the defense to question a witness about
whether they knew that Mr. Wellons was shot in retaliation
for shooting Mr. Atkins, to support his defense and attack
Mr. Atkins' credibility;
c. Erred when it allowed the jury to hear that the
prosecution witness was being made uncomfortable by someone
within the court, where, it could not be shown that Mr.
Wellons had anything to do with the alleged actions, the
court should have instructed the jury to disregard the
d. Excluded the public during Mr. Wellons' trial denying
him his constitutional rights, and;
e. When it gave the jury a recording that was not submitted
as an exhibit, which they based their verdict upon, and
counsel was ineffective for failing to object.
V. Substantial prosecutorial misconduct deprived Mr. Wellons
of his ... rights to a fair trial, and trial counsel was
ineffective for not objecting, where the prosecutor:
a. Mischaracterized the evidence to support his arguments;
b. Vouched for witness' credibility;
c. Repeatedly commented upon Mr. Wellons not having
supporting witnesses to validate his testimony, thus,