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Roby v. Burt

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

July 27, 2017

DYTERIUS ROBY, Petitioner,
v.
S.L. BURT, Respondent,

          OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING THE MOTION FOR AN EVIDENTIARY HEARING AND FOR THE APPOINTMENT OF COUNSEL, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE SEAN F. COX UNITED STATES DISTRICT JUDGE.

         Dyterius Roby, (“petitioner”), presently confined at the Muskegon Correctional Facility in Muskegon, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for assault with intent to commit murder, Mich. Comp. Laws, § 750.83; carrying a weapon with unlawful intent, Mich. Comp. Laws, § 750.226; felon in possession of a firearm, Mich. Comp. Laws, § 750.224f; and felony-firearm, Mich. Comp. Laws, § 750.227b. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted following a jury trial in the Saginaw County Circuit Court. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals's opinion, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This case arises out of a shooting incident that occurred on the morning of April 24, 2009. Cornelius Owens testified that at approximately 10:15 a.m. that morning, he was walking his dog into his backyard after visiting with his neighbors. As he entered the backyard, he encountered Roby, who began shooting at him. Owens ran out of the yard and across the street as Roby gave chase and continued to shoot at him. Roby's gun then became jammed, which gave Owens a chance to hide behind a garage. Having apparently lost track of Owens, Roby then left the scene. Owens suffered several gunshot wounds, for which he was treated at the hospital. The shooting was allegedly in retaliation for a recent altercation that had occurred between Owens and two other men from the neighborhood.
Owens's testimony was corroborated by eye witness Maurice Harris, who testified that he saw Roby chasing and shooting at Owens. Further, Detective Jason Ball, who the trial court qualified as an expert in forensic analysis of cellular data, testified that a cellular phone believed to be in Roby's possession on the morning of April 24th was tracked as having been in the vicinity of the shooting between approximately 9:30 and 10:30 a.m.
Roby testified in his own defense and denied any involvement in the shooting. He testified that he was asleep at his girlfriend's house until approximately 10:40-11:00 a.m. Roby also testified that the cellular phone that was introduced into evidence as allegedly belonging to him actually belonged to his brother. And although Roby admitted that he sometimes used his brother's phone, he denied he had possession of it on the day of the shooting. However, Roby's girlfriend contradicted his testimony, testifying that he had that phone with him when she saw him on the afternoon of April 24, 2009.

People v. Roby, No. 301608, 2011 WL 5067252, at * 1 (Mich. Ct. App. Oct. 25, 2011).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 491 Mich. 909; 810 N.W.2d 907 (2012).

         Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Roby, No. 09-032607-FC (Saginaw Cty.Cir.Ct., July 2, 2014). The Michigan appellate courts denied petitioner leave to appeal. People v. Roby, No. 324411 (Mich.Ct.App. Mar. 12, 2015); lv. Den. 499 Mich. 913, 827 N.W.2d 287 (2016).

         Petitioner filed a petition for writ of habeas corpus, seeking relief on the following grounds:

I. Where newly discovered evidence demonstrates Petitioner's actual innocence, should this gateway showing provide equitable tolling?
II. The state court erred constitutionally when it allowed an unqualified expert to testify.
III. Defense counsel was constitutionally ineffective for failing to request a stipulation that Mr. Roby was ineligible to possess a firearm and not objecting to testimony of his parole and prior prison status[.]
IV. The prosecutor's numerous instances of prosecutorial misconduct deprived Petitioner of a fair trial, hence, habeas relief is appropriate under both, 28 USC 2254(d)(1)-(2).
V. The trial court's instruction to the jury that they may infer that Petitioner's intent to kill the victim could be proved if he used a dangerous weapon violated his Sixth Amendment rights and the Morissette v United States, 342 U.S. 246 (1952), decision.
VI. Petitioner was denied his right to effective assistance of counsel due to counsel's failure to investigate and call several eyewitnesses who would have testified that Petitioner was not the shooter.
VII. Petitioner was denied the right to effective assistance of appellate counsel contrary to the Sixth Amendment which resulted in issues with substantial merit being overlooked which was prejudicial to Petitioner's appeal of right, had the issues been raised Petitioner's conviction would have been vacated.

         Respondent filed a motion to dismiss the petition on the ground that it was filed outside of the one year statute of limitations contained in 28 U.S.C. § 2244(d)(1). This Court denied the motion to dismiss, finding that the petition was timely filed. Respondent was ordered to file an answer addressing the merits of the petition within sixty days of the Court's order. Roby v. Burt, No. 2:16-CV-12727, 2017 WL 1091257 (E.D. Mich. Mar. 23, 2017).

         Respondent has now filed an answer to the petition. Petitioner filed a reply to the answer as well as a motion for an evidentiary hearing and for the appointment of counsel.

         II. Standard of Review

         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, 405-06 (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 410-11. “[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)). The Supreme Court has emphasized “that 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.

         “[I]f this standard is difficult to meet, that is because it was meant to be.” Harrington, 562 U.S. at 102. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from relitigating claims that have previously been rejected in the state courts, it preserves the authority for a federal court to grant habeas relief only “in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” the Supreme Court's precedents. Id. Indeed, “Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal.” Id. at 102-03 (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         III. Discussion

         A. Claim # 1. The newly discovered evidence claim.

         Petitioner first claims that he has newly discovered evidence in the form of affidavits from Mr. Patrick Atkins and Mr. Johnny King that establishes his actual innocence, so as to equitably toll the limitations period in this case.

         This Court previously determined that the petition was timely filed, thus, any equitable tolling argument is now moot and need not be addressed by the Court. See e.g. Scott v. Collins, 286 F.3d 923, 931 (6th Cir. 2002).

         To the extent that petitioner raises a freestanding actual innocence claim, he is not entitled to habeas relief.

         In Herrera v. Collins, 506 U.S. 390, 400 (1993), the Supreme Court held that a habeas petitioner's claim of actual innocence based on newly discovered evidence fails to state a claim for habeas relief in the absence of any independent constitutional violation occurring in the underlying state criminal proceeding. Federal habeas courts sit to ensure that individuals are not imprisoned in violation of the constitution, not to correct errors of fact. Id., see also McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013)(“We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence”). Freestanding claims of actual innocence are non-cognizable on federal habeas review. See Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007)(collecting cases). Petitioner is not entitled to relief on any such claim.

         B. Claim # 2. The expert witness claim.

         Petitioner next contends that the trial court judge erred in ruling that Detective Jason Ball could testify as an expert on cellular phone data, because Detective Ball lacked the qualifications to testify as an expert and his testimony was not supported by the requisite underlying data.

         The Michigan Court of Appeals rejected petitioner's claim:

During trial, defense counsel requested a separate record in order to question Saginaw City Police Department Detective Jason Ball regarding his expertise in forensic analysis of cellular data. Detective Ball testified that he had received special training relating to forensic analysis of cellular data. He explained that, although he had no formal certification, in October 2007, he took a two-day training class on the subject. Detective Ball claimed that at that time, that class was the only training available for forensic data analysis of cellular phones. He further explained that during that training he learned about the history of cell phones and cellular service systems, how to retrieve and analyze data that is stored by cell phone companies, and how to track cell phones to pinpoint locations at the time of usage. Detective Bell stated that, since that training, he had worked on numerous cases in which he was asked to analyze data to determine “where a particular cell phone was at the time that certain calls were made[.]” And in one homicide case, he testified at trial regarding the location of several cell phones at the time of the murder, which led to several convictions.
Detective Ball then testified regarding the process of his data analysis. According to Detective Bell, he first looks at the phone records provided by the servicing company, in this case Sprint Nextel. Each company's records are different, but, based on his training, he is able to decipher when certain calls were sent or received, and when each call ended. Based on those records he then looks at global positioning system (GPS) coordinates to locate the specific tower(s) through which the call was sent. Detective Ball also testified that, although he was not an engineer, he was capable of testifying to signal strength of towers in order to determine which tower a call would most likely “hit[ ] off” at any particular location.
Defense counsel objected to Detective Ball being qualified as an expert, taking issue with that fact that Detective Ball could not determine what tower a call hit off of without looking at other records that were not admitted into evidence. However, after noting ...

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