United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
L. LUDINGTON United States District Judge.
Derek Burks, a state prisoner presently confined at the
Kinross Correctional Facility in Kincheloe, Michigan,
filed a pro se application for the writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner was
convicted in Wayne County, Michigan of assault with intent to
commit armed robbery, Mich. Comp. Laws § 750.89,
felonious assault, Mich. Comp. Laws § 750.82, felon in
possession of a firearm, Mich. Comp. Laws § 750.224f,
and possession of a firearm during the commission of a
felony, second offense, Mich. Comp. Laws § 750.227b. The
trial court sentenced Petitioner as a habitual offender,
fourth offense, to five years in prison for the
felony-firearm conviction, followed by concurrent sentences
of twenty to forty years in prison for the
assault-with-intent-to-commit-armed-robbery conviction, two
to four years in prison for the felonious-assault conviction,
and three to five years in prison for the felon-
in-possession conviction. In his habeas petition, Petitioner
raises one claim about the prosecuting attorney in his case
and four claims about his trial attorney. Respondent Kenneth
McKee urges the Court through counsel to deny the petition on
the basis that the state courts' rejection of
Petitioner's claims did not result in decisions that were
contrary to federal law, unreasonable applications of federal
law, or unreasonable determinations of the facts. Because the
Court agrees that Petitioner's claims do not warrant
habeas relief, the petition will be denied.
was tried before a jury in Wayne County Circuit Court, where
Domenico Policchio testified that, on February 19, 2011, at
about 10:30 p.m., he was drinking coffee in the back room of
his pizza business on Michigan Avenue in Detroit. He was
standing fifteen to eighteen feet away from the front door
when he heard the door open. He saw a light-complected black
man approach his employee with a gun. The armed man said,
“Give me your money. I know you got it, I know you got
it. Give me your money or I'm going to kill.” He
(Policchio) went to the back of his business to get a gun,
but then he heard several gunshots. He did not see anything
more, and his employee was unharmed. On February 23, 2011,
some police officers showed him six photographs. He informed
the police that the person in the first photo was the person
who had come into his pizzeria on February 19, 2011. At
trial, Mr. Policchio identified Petitioner as the armed man
who came into his business on February 19, 2011, and demanded
money. 8/10/11 Trial Tr. at 7-16, ECF No. 6-8, Page ID
Flores testified that he was working behind the counter of
the pizzeria about 10:00 or 10:30 p.m. on February 19, 2011,
when an armed man walked in the door and pointed a silver
automatic handgun at him. The man came to the counter and
said, “Give me your money, give me your money. I know
you got money, or I'm going to kill you.” When the
man went to the side of the counter near the west wall of the
building, Mr. Flores pulled his semi-automatic gun from his
pocket and fired all eight shots at the man. The man fled the
pizzeria and headed east on Michigan Avenue. On February 23,
2011, police officers showed Mr. Flores six black and white
photos, but he was unable to identify anyone. He mentioned
the man in position number four because that man was
light-complected, but he was not sure about his choice at the
time. At the preliminary examination, however, he identified
Petitioner because Petitioner's face looked just like the
man he had seen in the pizzeria. Id. at 33-43, Page
ID 330-40. Mr. Flores also identified Petitioner at trial.
Id. at 41, Page ID 338.
Police Officer Lillie Drake testified that she prepared and
conducted the photo line-up in Petitioner's case.
Petitioner's photo was number one in the array. Mr.
Policchio identified someone in the array, but Mr. Flores did
not. Officer Drake also was present when a buccal swab was
taken from Petitioner. Id. at 52-56, Page ID 349-53.
Police Officer Donald Covington was the first officer to
arrive at the crime scene. He spoke with Arnulfo Flores and
took a .32 caliber Beretta semi-automatic gun from Mr.
Flores. The owner of the pizzeria indicated to him that he
caught only a glimpse of the man who had entered his business
that night. The suspect was described as a light-complected
black male who was in his mid-twenties and wore a goatee.
When the Dearborn police notified the Detroit Police that a
suspect matching this description was at Oakwood Hospital, an
officer in another scout car was directed to the hospital.
Id. at 56-63, Page ID 353-60.
Police Officer Stephen Petroff was in the back-up unit that
responded to the pizzeria on February 19, 2011. About 10:50
p.m. that night, officers received a call indicating that an
injured person was at Oakwood Hospital. Officer Petroff went
to the hospital and was directed to the emergency room where
he saw Petitioner, who had been shot in the chest, stomach,
and thigh. Id. at 66-69, Page ID 363-66.
Raymond Diaz was working as an evidence technician for the
Detroit Police Department on February 19, 2011. He found four
.32 caliber casings at the crime scene. He also saw two fired
bullets, suspected bullet holes on the west wall, suspected
blood on the wall of the pizzeria, and suspected blood on the
street. He collected blood samples from the west wall and
from the trail of blood outside. Id. at 70-81, Page
scientist Brandon Good testified that three items of evidence
were submitted to the Michigan Department of State Police for
analysis: one was a known DNA sample from Petitioner, another
one was a blood swab taken from outside the pizzeria, and the
third one was taken from the west wall of the pizzeria. He
determined that the bloodstain taken from the west wall
matched Petitioner's DNA profile and that the blood stain
collected from the street generated a partial profile, which
matched Petitioner's DNA profile. Id. at 84-96,
Page ID 381- 93.
did not testify, but he called two Detroit police officers to
testify in his defense. Officer Adrian Lawrence testified
that, on February 19, 2011, he was working in the homicide
section of the police department where he was informed by
officers at the crime scene that there was an attempted armed
robbery at the pizzeria on Michigan Avenue. He received
additional information that Mr. Flores had shot somebody in
the chest, stomach, and leg and that the assailant ran out of
the pizzeria and jumped into a white truck. Subsequently, the
Dearborn Police advised Detroit police officers that there
was a shooting victim at Oakwood Hospital, and Officer
Covington informed Officer Lawrence that the person at the
hospital was the suspect from the pizzeria. Officer Lawrence
did not know how the officers at the scene were able to
confirm that the shooting victim at the hospital was the same
person as the suspect in the attempted robbery at the
pizzeria. 8/11/11 Trial Tr. at 10-23, ECF No. 6-9, Page ID
second and final defense witness was Officer Raymond Sturley
who testified that, approximately six days after the incident
at the pizzeria, he went to 2352 17th Street to check a green
1997 Buick LaSabre, which was registered to Petitioner. The
vehicle was located about a mile and a half from Bona's
Pizzeria on Michigan Avenue. There was blood on the
driver's seat, but he was unable to do a complete
inventory search because the vehicle was locked. He impounded
the car because there was blood on the seat, but to the best
of his knowledge, no one recovered any evidence from the
vehicle. Id. at 24-35, Page ID 426-37.
closing arguments, the prosecutor maintained that the
evidence of Petitioner's guilt was overwhelming. Defense
counsel argued to the jury that the issue was one of
identity, that the prosecution's identification evidence
was flawed, and that there was reason to doubt where the
police found Petitioner's DNA. At the conclusion of
defense counsel's closing argument, Petitioner got up
from his seat and said, “I'm sorry, it's my
life! This is my life. . . . I got a bullet in my back that
he won't take out.” His brother added, “The
bullet will prove he's innocent. There's a bullet
right here that don't go to that man's gun. I promise
you!” Id. at 58, Page ID 460.
prosecutor then gave his rebuttal argument and informed the
jury that Petitioner's emotional outburst was not
evidence. Id. at 60-62, Page ID 462-64. The trial
court's charge to the jury followed.
following day, August 12, 2011, the jury found Petitioner
guilty, as charged, of assault with intent to commit armed
robbery, felonious assault, felon in possession, and felony
firearm. The trial court subsequently sentenced Petitioner as
a habitual offender to five years in prison for the
felony-firearm conviction, followed by concurrent prison
terms of twenty to forty years for the conviction for assault
with intent to commit armed robbery, two to four years for
the felonious assault conviction, and three to five years for
the felon-in-possession conviction.
appealed his convictions through counsel and then requested a
remand so that he could seek a new trial on the basis of
newly discovered evidence and a claim of ineffective
assistance of trial counsel. The Michigan Court of Appeals
granted Petitioner's motion for a remand, but the trial
court denied Petitioner's motion for new trial upon
remand. See People v. Burks, No. 11-002411-01, Op.
and Order Denying Defendant's Mot. for a New Trial (Wayne
Cty. Cir. Ct June 3, 2012), ECF No. 6-13, Page ID 930-37. The
Michigan Court of Appeals subsequently affirmed
Petitioner's convictions in an unpublished decision.
See People v. Burks, No. 306588, 2013 WL 1500976
(Mich. Ct. App. Apr. 11, 2013). On November 25, 2013, the
Michigan Supreme Court denied leave to appeal because it was
not persuaded to review the issues. See People v.
Burks, 839 N.W.2d 221 (Mich. 2013) (table).
filed his habeas petition on February 19, 2015. He alleges in
his first ground for relief that he was denied due process
and a fair trial by the prosecutor's failure to disclose
the search warrant for Petitioner's vehicle. His
remaining four claims allege that his trial attorney was
ineffective for failing to (1) request a hearing for the
purpose of challenging the eyewitnesses' in-court
identifications of him, (2) seek discovery of any and all
search warrants executed by the police during their
investigation, (3) present exculpatory witnesses at trial,
and (4) move to adjourn the trial so that a bullet could be
removed from Petitioner's back.
statutory authority of federal courts to issue habeas corpus
relief for persons in state custody is provided by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA).” Harrington v.
Richter, 562 U.S. 86, 97 (2011). Pursuant to §
2254, the Court may not grant a state prisoner's
application for the writ of habeas corpus unless the state
court's adjudication of the prisoner's claims on the
(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;
(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.
28 U.S.C. § 2254(d).
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. Rather, that
application must also be unreasonable.” Williams v.
Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus
imposes a ‘highly deferential standard for evaluating
state-court rulings, ' Lindh v. Murphy, 521 U.S.
320, 333, n. 7 (1997), and ‘demands that state-court
decisions be given the benefit of the doubt, '
Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam).” Renico v. Lett, 559
U.S. 766, 773 (2010).
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.” Richter, 562 U.S. at
101 (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). To obtain a writ of habeas corpus from a federal
court, a state prisoner must show that the state court's
ruling on 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.
court's determination of a factual issue is presumed to
be correct unless the petitioner rebuts the presumption with
clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
Holland v. Rivard, 800 F.3d 224, 242 (6th Cir.
2015), cert. denied, 136 S.Ct. 1384 (2016). In
addition, “review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated
the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
alleges that the prosecutor deprived him of due process and a
fair trial by failing to disclose the search warrant that was
executed on Petitioner's vehicle. Petitioner contends
that the warrant constituted favorable evidence because his
defense was that he was incorrectly identified by the
complaining witnesses and that his DNA evidence was recovered
from somewhere other than at the crime scene. According to
Petitioner, trial counsel's attempt to create doubt
regarding the origin of the DNA evidence would have been
significantly enhanced if the search warrant had been
disclosed. The ...