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Coleman v. Rivard

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

August 18, 2017

DAVONTRAL J. COLEMAN, Petitioner,
v.
STEVEN RIVARD, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS.

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.

         This is a habeas case brought by a Michigan prisoner under 28 U.S.C. § 2254. Petitioner Davontral Coleman was convicted after a jury trial in the Saginaw County Circuit Court of three counts of assault with intent to commit murder, Mich. Comp. Laws ' 750.83, two counts of possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b, and one count of carrying a firearm with unlawful intent, Mich. Comp. Laws ' 750.226. As a result of these convictions Petitioner is serving a sentence of 22-to-42 years. The petition raises two claims: (1) Petitioner was denied the effective assistance of counsel, and (2) Petitioner's Sixth and Fourteenth Amendment rights were violated at sentencing. The Court finds that Petitioner's claims are without merit. Therefore, the petition will be denied. The Court will also deny Petitioner a certificate of appealability, but it will grant permission to proceed on appeal in forma pauperis.

         I. Background

         The facts relied upon by the Michigan Court of Appeals are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009). Those facts are as follows:

Defendant's convictions stem from a shooting that occurred in front of Jennifer McReynolds's Saginaw residence on September 5, 2009. A group of approximately 25 or 30 people had gathered in the yard in front of the residence. Witnesses testified that they suddenly heard what sounded like firecrackers and realized that someone was firing bullets into the crowd. Jewel Lee, who was 12 years old at the time of trial, suffered a nonfatal gunshot wound to the head.
Luven West lived in a home separated from McReynolds's residence by a vacant field and a chain link fence. West heard the gunshots and thought that they were coming from behind her house. She looked out her front door and saw two young men at the end of her driveway. One of the men “walked off real fast, looking back, ” while the other man, who West identified as defendant, rode away on a bicycle. A police investigation revealed that the gunshots were fired from the vacant field. The police recovered eight .22 caliber shell casings along the fence line that separated West's yard from the field. Officers also found a .22 caliber rifle underneath West's vehicle parked in her driveway. A latent finger print on the rifle matched defendant's left, little finger. The rifle also contained DNA evidence from at least three different people. Defendant's DNA was consistent with a sample taken from the rifle. Expert testimony established that the probability of a person's DNA matching the sample on the rifle was one in 791 Caucasians, one in 419 Hispanics, and one in 381 African Americans. Defendant was not the main contributor of the DNA evidence on the rifle. The jury convicted defendant as charged.

People v. Coleman, No. 306915, 2012 WL 6178154, at *1 (Mich. Ct. App. Dec. 11, 2012).

         Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals which raised the following claims:

I. Defendant was denied the effective assistance of counsel when: (1) based upon misunderstandings of law and fact, counsel told the jury that Defendant lied about not being at the shooting or touching the firearm, and (2) neglected to object to the jury being told that Defendant was years earlier caught with a gun.
II. Defendant is entitled to a re-sentencing where guidelines error altered the sentencing range. Here, points were erroneously scored under offense variable (“OV”) 13 because: (1) no “continuing pattern” of felonious conduct exists and (2) the conduct scored under OV 13 was already scored under PRV 7. The error increased the range and resentencing is required.

         It is important to note that nowhere in Petitioner's brief on appeal did he argue that his Sixth and Fourteenth Amendment rights were implicated by the manner in which the trial court calculated the sentencing guidelines. The Michigan Court of Appeals affirmed Petitioner's convictions and sentence in an unpublished opinion. Id.

         Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court which raised the same claims as in the Michigan Court of Appeals and an additional claim not presented in this action. The Michigan Supreme Court denied the application on July 3, 2013, because it was not persuaded that the questions presented should be reviewed by the Court. People v. Coleman, 832 N.W.2d 388 (Mich. 2013) (unpublished table decision). Petitioner did not file a petition for a writ of certiorari in the United States Supreme Court.

         II. Standard of Review

         28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was “contrary to” or ...


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