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Burks v. McKee

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

September 15, 2017

DEREK BURKS, Petitioner,
KENNETH MCKEE, Respondent.


          THOMAS L. LUDINGTON United States District Judge.

         Petitioner Derek Burks, a state prisoner presently confined at the Kinross Correctional Facility in Kincheloe, Michigan, [1] has 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.


         Petitioner 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 304-313.

         Arnulfo 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.

         Detroit 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.

         Detroit 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.

         Detroit 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.

         Officer 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 ID 367-78.

         Forensic 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.

         Petitioner 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 412-25.

         The 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.

         During 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.

         The 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.

         On the 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.

         Petitioner 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).

         Petitioner 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.


         “The 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 merits

(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.

28 U.S.C. § 2254(d).

         “[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. 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).

         “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.” 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.

         A state 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).



         Petitioner 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 ...

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