United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
M. LAWSON United States District Judge.
prisoner Spencer Williams has filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254 challenging his
convictions for assault with intent to murder, felon in
possession of a firearm, and possession of a firearm during
the commission of a felony (felony firearm), after a bench
trial in the Wayne County, Michigan circuit court. He was
sentenced to concurrent prison terms of 18 to 30 years plus a
consecutive term of two years. Williams contends that the
trial evidence was insufficient to support his convictions,
trial and appellate counsel were ineffective, the prosecutor
committed misconduct, the trial court failed to consider a
lesser included offense, and the bind-over decision was
defective. The respondent filed an answer to the petition
contending that it should be denied because the claims lack
merit and certain claims are barred by procedural default.
The Court finds that the petitioner's claims do not
warrant federal habeas relief. The Court, therefore, will
deny the petition.
petitioner's convictions arise from the non-fatal
shooting of Damon Moore outside of Moore's residence in
Hamtramck, Michigan in October 2009. Before trial, the
petitioner was offered a plea deal in which he could plead
guilty to assault with intent to murder and felony firearm in
exchange for the dismissal of other charges, coupled with a
sentencing agreement of consecutive prison terms of 11 to 20
plus two years. Against the advice of counsel, he rejected
that offer and proceeded with a bench trial.
trial, 31-year-old victim Damon Moore testified that he and
the petitioner were like brothers. The petitioner had dated
his cousin and they had known each other for 15 years. He
never had a problem with the petitioner. That changed on
October 4, 2009.
night, Moore went to a party hosted by the petitioner's
cousin, which was only a few blocks from his house. He was at
the party with the petitioner and another man named Mike and
he drank a few beers. At some point, the petitioner asked to
borrow his car to go pick up some girls. Moore let him take
the car. The petitioner was gone for several hours, perhaps
as long as six hours, which upset Moore.
the petitioner returned, the girls were in the backseat.
Moore got into his car with the petitioner, Mike, and the
girls and they drove back to Moore's house sometime after
midnight. Moore went into the house and spoke to his
girlfriend. He then went back outside to park his car in back
of the house. As he drove in the alley, the petitioner with
Mike and the two girls, now in the petitioner's car,
followed him. The petitioner flashed his lights. Moore
stopped his car and the petitioner came over and retrieved
something from Moore's car. Moore and the petitioner
argued and tussled in the back of Moore's car. Mike then
grabbed Moore from behind and Moore let the petitioner go.
While Moore continued to tussle with Mike, the petitioner
went back to his car. When Moore next saw him, he was holding
a gun, which Moore described as a black and woodgrain
petitioner was standing about six feet away when he shot
Moore in the right thigh. Moore fell down. The petitioner
walked back and forth and moved closer to Moore until he was
about five feet away. According to Moore, the petitioner
looked spaced out and was saying things like, “I'm
gonna start killing mother fucker, mother fucker gonna stop
disrespecting me.” The petitioner then shot Moore again
in the calf of the same leg while continuing to mutter to
himself. He then shot Moore a third time above the knee in
the same leg.
was surprised by the shooting and thought that the petitioner
was going to kill him. Moore also testified that the
petitioner pointed the gun at his chest and tried to fire
again, but it did not fire. While the petitioner was messing
with the gun, someone yelled out and threatened to call the
police. Moore yelled at them to take him to the hospital, but
the petitioner, Mike, and the girls left the scene, driving
away in both cars. Moore was woozy and next remembered waking
up in the hospital. Moore underwent several surgeries and
lost his right leg due to his injuries. Moore spoke with the
police, his girlfriend, and his mother at the hospital and
told them that the petitioner was the person who shot him.
girlfriend, 27-year-old Tenisha Lewis, testified that she
lived with Moore in the house where the shooting occurred in
October 4, 2009. She recalled that Moore went to a party
hosted by one of the petitioner's relatives that day and
returned home late during the early morning hours. The
petitioner's car was at the house while Moore was at the
party. She spoke with Moore on the phone around 11:00 a.m.
and then spoke to him in person when he came home around 1:00
a.m., although she was not sure of the exact time. When Moore
went back outside, she got out of bed and looked out of the
window. She saw Moore get into his car and the petitioner get
into his own car. Moore pulled around to the back and the
petitioner followed him. She went back to bed.
minutes later, she heard three gunshots. She called
Moore's brother and told him that she heard gunshots. The
police and an ambulance arrived, as did Moore's brother.
She did not see Moore's car outside after the shooting.
When she visited Moore in the hospital, he told her who shot
him and she reported it to the police. She did not personally
witness the shooting.
Police Officer Robert George testified that he was called to
the scene of the shooting where he found Moore lying in the
alley with gunshot wounds to his leg. Moore told him his name
and then fell into unconsciousness. Moore had lost a large
amount of blood and his leg looked mangled. Officer George
assisted EMS in transporting Moore to the hospital. When
George returned to the scene of the shooting, he recovered a
shell casing that had been hidden in the blood and two
bullets from holes in the asphalt where Moore had been lying
on the ground.
parties stipulated to the admission of Moore's medical
records and stipulated that the petitioner had prior felony
convictions and was not eligible to possess a firearm at the
time of the shooting.
counsel moved for a directed verdict; the motion was denied.
The petitioner presented an alibi defense. Defense counsel
indicated that there were three potential alibi witnesses:
the petitioner's sister, mother, and girlfriend. The
petitioner's sister was not present at trial and his
mother and girlfriend refused to testify. The petitioner,
however, testified on his own behalf, stating that he was 27
years old and admitting that he had prior convictions for
theft and dishonesty and had used aliases in the past. The
petitioner acknowledged that he was Moore's friend, that
he had dated Moore's cousin, and that he had known him
for 15 years. He also admitted that he did not have any
problems with Moore or his girlfriend. The petitioner denied
being in the Detroit area when the shooting occurred and
claimed that he was in Saginaw babysitting his sister's
two children at that time. He testified that he went to
Saginaw on September 23, 2009 where he remained until his
arrest on November 13, 2009. The petitioner theorized that
Moore was pinning the shooting on him because the petitioner
knew who committed the crime but refused to tell Moore. The
petitioner also testified that Moore was a gang member who
had been on America's Most Wanted and that Moore
was blaming him for the shooting because he knew about
murders that Moore had committed.
trial court found the petitioner guilty of assault with
intent to commit murder, felon in possession, and felony
In reviewing the evidence presented in this matter, I've
considered most significantly the testimony of Damon Moore
and that testimony that I found to be important and to be
credible was Mr. Moore's testimony that the Defendant
borrowed his vehicle, that that was at a party on October
4th, 2009, that was a family member of the Defendant. Mr.
Moore described it as his cousin's. And that was a 2002
Cadillac that was borrowed and the purpose of borrowing the
car was that he was going to - Mr. Williams was going to find
some women to bring back to the party.
Mr. Moore testified that he drank some beers at the party and
that he initially said no to borrowing the car but eventually
allowed Mr. Williams to borrow the car. And at one point,
after several hours, he called Mr. Williams and Mr. Williams
indicated he'd come back and he didn't but he did
eventually come back with two girls in the back seat.
That eventually they left the party, went back to Mr.
Moore's house on Lumpkin and that was also the home of
Tenisha Lewis. And that Mr. Moore indicated that he went
inside and spoke to Ms. Lewis and when he came back out, he
got in his vehicle and was going to pull it around to the
back of the alley where he was going to park it, but that the
lights were flashed on the car that Mr. Williams was driving.
Then he stopped and got out of the vehicle and that's
when the fight ensued. He called it a tussle between himself
and Mr. Williams. And that that tussle lasted for a short
while and that when that broke up, I think my recollection of
the testimony was it broke up in part because this individual
who was identified as Mike, and say for the record that Mr.
Moore testified that he didn't know Mike's last name.
He said he thought it might be Mike Johnson, but wasn't
sure what his name - but Mike grabbed him around the neck and
they began to tussle and it was at that point that he noticed
that Mr. Williams had got a gun, which he identified as an
AK-47, was pointing it at him and he said that he was
pointing it at the area between his stomach and his leg and
he was about six feet away pointing the gun at him.
And at that point, he says he was shot by Mr. Williams in the
right thigh, at which point, he fell to the ground, as he
said, on his butt and his legs separated. And he indicated
that at that point, the Defendant was walking back and forth
about five feet away. And as he indicated in his testimony,
looking spaced out and saying things like motherfucker gonna
start (as spoken) disrespecting me. And at which point, he
shot him again, this time in the lower leg, in the calf area.
And again, he, Mr. Moore, indicated that the Defendant
appeared to be talking to himself and then shot him in the
leg a little above the knee and Mr. Moore indicated he
thought he was going to die. And at that point, he says he
heard the Defendant say, “It's time for
motherfuckers to die.” And at that point, the - he said
the Defendant, Mr. Williams, was pointing the gun at his
chest. He tried to shoot the gun and he says he was about
five feet away and the gun wouldn't fire. He heard some -
and he said specifically he saw him pulling on the trigger of
the gun but it wouldn't fire.
At that point he heard someone hollering, someone in the
neighborhood. And Mr. Moore says I kept telling him to take
me to the hospital. At that point, he says the Defendant and
Mike and the two girls who were in the car drove away. And he
was left there bleeding profusely from his right leg. I found
his testimony to be credible, with respect to what occurred.
I also found the testimony of Tenisha Lewis to be credible.
And in specific, her testimony that Damon Moore did in fact
drive a black Cadillac Deville and more specifically what I
found to be credible was that she saw Spencer Williams late
that night or early morning when Damon Moore came back. She
talked with him and then she looked out the window and she
saw both Damon Moore and Spencer Williams out in front of the
house and that they then - the last she saw of them the cars
were driving around the corner and the next thing she knows,
she heard the three shots. She went out and looked in the
back alley and didn't see anything and went back in and
called Damon's brother and then shortly after that she
learned from the police that someone had been shot and she
proceeded to Detroit Receiving Hospital where she found out
in fact that it was Damon Moore that had been shot. And she
did indicate that there were three shots that she heard,
which was consistent with the testimony of Mr. Moore.
I'll also point out that the testimony from Police
Officer Robert George I found to be credible. That in
particular what I thought was interesting was that he found
two bullets in the asphalt, which would indicate to me, the
consistency in terms of the testimony from Mr. Moore that he
was shot twice in the leg when he was laying down after he
had been shot the first time and fell down. So I think it
adds to the credibility and consistency of the testimony from
Now I've also considered the testimony of the one defense
witness, that being the Defendant himself, Mr. Williams. I
find Mr. Williams' testimony to be less than credible.
I've taken into consideration the fact that as indicated
in his cross- examination, he has used other names such as
John Jackson and Robert Jackson. He has two prior convictions
that relate to theft or dishonesty: one stealing from a mall,
another regarding a sticker, an illegal sticker, that was
used for his vehicle. And this indicates to me a pattern of
less than honesty in terms of his characteristics.
But perhaps what is the most compelling thing about the
testimony is I tried to get a better understanding of, in
terms of - Mr. Williams' testimony was that he was being
falsely accused by Mr. Moore because he was on America's
Most Wanted and he was a gang member himself. But I just - I
saw no connection between that and why he'd single out
Mr. Williams. He was asked specifically by the prosecution,
was there any beef between you. No, there was no beef. There
was no beef between him and Ms. Lewis [sic]. So the whole
concept of just blindly picking Mr. Williams as the person
he's going to accuse for someone else committing this
terrible act to him that nearly killed him and caused him to
lose his leg, just didn't add up and didn't make
sense to me. And as I indicated, I found it less than
I find the testimony, with respect to not only the fact that
he was shot terribly three times in the leg and left bleeding
at that point, but also the testimony regarding the fact that
he attempted to shoot him in the chest and made the statement
regarding that it was time for him to die, to be credible.
And it's on that basis that I find Mr. Williams guilty of
Count 1, assault with intent to murder. Because Counts 2 and
3 were pled in the alternative, I am not ruling on those
since I found him guilty of the more serious offense of
assault with intent to murder.
I also find him guilty on Count 4, weapons, firearm
possession by a felon. There was a stipulation as to a prior
. . .
I find him guilty of Count 5, felony firearm because I find
that he did have possession of an assault rifle at the time
of the shooting of Mr. Moore and therefore guilty of felony
Trial Tr. at 103-09 (Mar. 24, 2010) (some punctuation and
grammar corrected for clarity). The trial court subsequently
sentenced the petitioner to the concurrent prison terms noted
petitioner filed a direct appeal in the Michigan Court of
Appeals raising claims concerning the sufficiency of the
evidence and newly-discovered evidence. The court denied
relief on those claims and affirmed his convictions.
People v. Williams, No. 297732, 2011 WL 2859296
(Mich. Ct. App. July 19, 2011). The Michigan Supreme Court
denied the petitioner's application for leave to appeal.
People v. Williams, 490 Mich. 1003, 807 N.W.2d 317
petitioner filed a motion for relief from judgment in the
trial court raising claims concerning the sufficiency of the
evidence, newly-discovered evidence, the effectiveness of
trial and appellate counsel, the conduct of the prosecutor,
the failure to consider a lesser included offense, the
bind-over decision, and the validity of his sentence. The
trial court denied relief, finding that the claims that had
previously been raised and denied on direct appeal were
barred by Michigan Court Rule 6.508(D)(2), the remaining
claims were barred by Michigan Court Rule 6.508(D)(3) because
the petitioner failed to establish good cause for failing to
raise those claims on direct appeal, and those remaining
claims also lacked merit. People v. Williams, No.
09-029211-01 (Wayne Co. Cir. Ct. Jan. 22, 2013). The Michigan
Court of Appeals denied the petitioner's delayed
application for leave to appeal because he failed to
establish entitlement to relief under Michigan Court Rule
6.508(D). People v. Williams, No. 314833 (Mich. Ct.
App. Oct. 8, 2013). The Michigan Supreme Court denied his
ensuing application for leave to appeal. People v.
Williams, 495 Mich. 978, 843 N.W.2d 763 (2014).
petitioner thereafter filed his federal habeas corpus
petition, in which he raises the following claims:
I. He was deprived of his Fifth and Fourteenth Amendment
rights based upon insufficient evidence to support the
II. He is entitled to an evidentiary hearing or new trial
based upon newly-discovered evidence.
III. He was deprived of his Sixth Amendment right based upon
ineffective assistance of trial counsel.
IV. He was deprived of his Sixth Amendment right based upon
ineffective assistance ...