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Williams v. Perry

United States District Court, W.D. Michigan, Northern Division

July 21, 2017

MITCH PERRY, Respondent.



         This is an action for habeas corpus relief under 28 U.S.C. § 2254. On June 13, 2017, Magistrate Judge Timothy P. Greeley issued a Report and Recommendation (“R&R”) recommending that the Court dismiss the action with prejudice because Petitioner's claims are without merit, and recommending that the Court deny a certificate of appealability (ECF No. 18). Before the Court are Petitioner's objections to the R&R (ECF No. 19).

         This Court makes a de novo determination of those portions of an R&R to which specific objections are made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). “[A] general objection to a magistrate's report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). The Court may accept, reject, or modify any or all of the magistrate judge's findings or recommendations. Id.

         1. Sufficiency of the Evidence

         Petitioner argues that the magistrate judge improperly denied his claim that there was insufficient evidence to convict him of felony-firearm, carrying a concealed weapon, and felon-in-possession. A § 2254 challenge to the sufficiency of the evidence is governed by the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979), which 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 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, 443 U.S. at 319. Moreover, because both the Jackson standard and the AEDPA apply to Petitioner's claims, “‘the law commands deference at two levels in this case: First, deference should be given to the trier-of-fact's verdict, as contemplated by Jackson; second, deference should be given to the Michigan [court's] consideration of the trier-of-fact's verdict, as dictated by AEDPA.'” Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc) (quoting Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008)). This double-deference standard erects “a nearly insurmountable hurdle” for petitioners who seek habeas relief on sufficiency-of-the-evidence grounds. Id. at 534 (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).

         As indicated in the R&R, the Michigan Court of Appeals noted the following evidence of Petitioner's guilt:

[S]everal eyewitnesses testified that they saw defendant in possession of a firearm. One bar patron testified that she “looked back and . . . saw a gun” in defendant's hand, and added that she noticed “the shine” from the butt of the gun. She was “certain” she saw defendant holding a gun. Her male companion testified that he got within ten feet of defendant, and observed defendant “reach into his waistband and pull out a firearm” with his right hand. This eyewitness had “no doubt at all” that defendant pulled out a gun. A bar employee also stated she saw defendant “pull something out of his pocket that [she] thought was a [black] gun.” And all these witnesses testified that they heard the sound of gunfire, and one testified that defendant ran out of the bar after the gunshot. In addition, a police officer testified that he saw a bullet hole in the bar's front door, made by a weapon with a caliber larger than .177-which means that the weapon in question is a “firearm” per MCL 8.3t and 750.222(d).

(MCOA Op. 2, ECF No. 13-9.)

         Petitioner contends that this evidence was insufficient because: (1) there was no ballistics evidence supporting the officer's opinion that the caliber of the weapon was larger than .177; (2) none of the witnesses could conclude that it was a “firearm” that Petitioner brandished; and (3) there was no testimony stating that the hole in the door was not present prior to the incident.

         As to the first issue, ballistics evidence regarding the caliber of the weapon was not necessary. Witnesses testified that they heard a gunshot. A “firearm” is “any weapon which will, is designed to, or may readily be converted to expel a projectile by action of an explosive.” Mich. Comp. Laws § 750.222(e). A reasonable jury could infer that the gunshot sound was caused by a weapon “designed to . . . expel a projectile by action of an explosive.” In addition, the officer who saw the hole in the door could rely on his experience with firearms to determine whether the hole was large enough to be caused by something larger than a pellet gun, and the jury could rely on his opinion. As to the second issue, multiple witnesses saw Petitioner with a gun. This is sufficient for a rational jury to find that he was in possession of a firearm. As to the third issue, a witness unmistakably testified that the hole in the door was not present before the incident. (Trial Tr. 168-69, ECF No. 13-4.) Thus, Petitioner's objections to the denial of this claim are without merit.

         2. Improper Sentence Score

         Petitioner objects to the conclusion that his claim of improper sentence scoring is meritless, but he does not address the reasons given by the magistrate judge for this conclusion. Petitioner merely states that he has presented a viable claim. This is not sufficient to enable the Court discern the issue in contention. The Court discerns no error in the magistrate judge's disposition of this claim.

         3. Ineffective Assistance of Counsel

         Similarly, Petitioner objects to the denial of his claim of ineffective assistance of counsel, but he fails to identify any particular error in the magistrate judge's conclusion. Petitioner claims that the magistrate judge should have made an independent conclusion rather than examining the state court's decision on appeal; however, the magistrate judge applied the correct standard of review. Where, as here, a claim has already been adjudicated by the state court, this Court is not permitted to review it on a blank slate. The Court must consider the state court's adjudication of the claim, and may grant relief only if “it is shown that the earlier state court's decision ‘was contrary to' federal law then clearly established in the holdings of [the Supreme] Court, § 2254(d)(1); or that it ‘involved an unreasonable application of' such law, § 2254(d)(1); or that it ...

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