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Wellons v. Bauman

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

June 29, 2017

BRIAN D. WELLONS, Petitioner,
v.
CATHERINE S. BAUMAN, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          Sean F. Cox U.S. District Judge.

         Petitioner 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.

         I. Background

         Petitioner's 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.

         Petitioner 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.

         Petitioner 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, 2013).

         Petitioner then filed the pending habeas corpus petition. He raises these claims:

I. There was insufficient evidence of premeditation to submit the first-degree murder charge to the jury as a possible verdict.
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 required.
IV. Mr. Wellons was denied his rights to a fair trial when the court:
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 statement;
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, ...

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