United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING (1) THE PETITION FOR A WRIT
OF HABEAS CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3)
LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE PAUL D. BORMAN UNITED STATES DISTRICT JUDGE
Maxey, (“petitioner”), incarcerated at the
Chippewa Correctional Facility in Kincheloe, Michigan, seeks
the issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, petitioner
challenges his conviction for two counts of assault with
intent to do great bodily harm less than murder, M.C.L.A.
§ 750.84; two counts of assault with a dangerous weapon,
M.C.L.A. § 750.82; discharge of a firearm at a building,
M.C.L.A. § 750.234; possession of a firearm by a felon,
M.C.L.A. § 750.224f; and possession of a firearm during
the commission of a felony, M.C.L.A. § 750.227b. For the
reasons stated below, the petition is DENIED WITH
was convicted of the above offenses following a jury trial in
the Wayne County Circuit Court and was acquitted of assault
with intent to commit murder.
was friends with Shron Bennett (“Shoney”), Dyrric
Dunbar, and Adam Handley. (Tr. 8/31/2009, p. 18). Handley,
Bennett, and another friend of theirs got into a fight in the
summer of 2008 with Christopher Sims over a girl. The fight
progressed to the point that Bennett pulled out a gun.
(Id. at 19-20). Bennett warned Christopher and his
brother Timothy Sims that “next time he sees [them]
there's gonna be bloodshed and bullets.”
(Id. at 21). On several subsequent occasions,
Bennett made shooting gestures at the Sims brothers.
(Id. at 21-22).
April 18, 2009, Christopher was driving in his car with his
cousin Derek Martin. When the men pulled up to a stoplight,
petitioner walked up to the car. As he approached the car,
petitioner placed his hand under his shirt as though he was
reaching for a gun. (Id. at 24-26, 55). Christopher
Sims told Martin “that was Kenny, pull off.”
(Id. at 28). Although Christopher did not actually
see a weapon, Martin saw a black handgun. (Id. at
30; Tr. 9/1/09, pp. 5-6, 17). Martin drove away and the two
men went to Christopher's home. (Tr. 8/31/09, pp. 29-30).
and Christopher later left the house to pick up Martin's
girlfriend Ronata Brown. (Id. at 30-32). Timothy
Sims was on the porch of the house. Renea Sims, his mother,
later returned home, after hearing about the earlier
encounter between the men. (Id. at 78-81, Tr.
9/1/2009, p. 32). While Timothy Sims was out on his porch, he
was approached by a neighbor, who informed Sims that a couple
of men were in the backyard of Timothy's house. Timothy
and his mother went to the backyard to check. (Tr. 8/31/2009,
pp. 81, 114). Timothy noticed two men walking in the alley
behind the house. (Id. at 83). Timothy informed his
mother, Renea. Renea, afraid that the men were there to steal
Timothy's car from the backyard, told him to go to the
front of the house and call the police. (Id. at 84;
Tr. 9/1/09, p. 38). While Timothy was doing so, he ran into
Derek Dunbar in the front of the house, who was walking up
the driveway. (Id.) Dunbar was wearing a dark
hoodie. Timothy Sims testified that Dunbar stopped, pulled
out a black nine millimeter handgun, and began shooting
toward the front porch. (Tr. 8/31/09, pp. 84-87). Renea Sims
later testified that one of the two men in the backyard said
“there's one of them right there, ” before
the two men began shooting. The shots missed Renea's head
as she ran and hid behind Timothy's car. (Tr. 9/1/09, pp.
before the shooting started, Christopher Sims and Martin
pulled up with Brown, at around 10:00 p.m. As they were
walking toward the house, they saw someone wearing a hoodie.
Christopher asked, “who was that, ” at which
point a man began shooting. Brown, Martin, and Christopher
ran up the walkway to Christopher's backyard. Timothy was
standing on the porch at that time, as was a Mr. Ealy. Renea
was hiding behind a car in the backyard. Christopher heard a
large number of shots, including shots coming from the back
of his house. Christopher, Martin, and Brown all went into
the house. By the time they got inside, the shots stopped.
(Id. at 32-36, 87).
still hiding behind Timothy's car, looked in the alley
around this time and saw that Shron Bennett was one of the
gunmen. (Tr. 9/1/09, pp. 43, 47). Renea identified petitioner
as the second gunman behind the house, “with a gun on
his side” and with “a long bullet clip in the
bottom of it.” (Id. at 45-48).
a break in the shooting, Christopher went into his backyard
to bring his mother into the house. As Christopher did so,
the shots started up again. By the time that Christopher and
his mother got into the house, the shots stopped again. (Tr.
8/31/09, pp. 36-37). Christopher saw two shadows in the
backyard running down the alley behind his house.
(Id. at 37, 64).
conviction was affirmed on appeal, although his case was
remanded for re-sentencing. People v. Maxey, No.
294418, 2011 WL 668368 (Mich. Ct. App. Feb. 24, 2011);
reconsideration den., No. 294418 (Mich. Ct. App.
Apr. 21, 2011); lv. den. 490 Mich. 903, 804 N.W.2d
filed a post-conviction motion for relief from judgment,
which was denied. People v. Maxey, No. 09-12497-FC
(Wayne County Cir. Ct., May 24, 2013). The Michigan appellate
courts denied petitioner leave to appeal. People v.
Maxey, No. 316917 (Mich. Ct. App. May 2, 2014); lv.
den. 845 N.W.2d 741 (2014).
seeks a writ of habeas corpus on the following grounds:
I. Petitioner should be granted a new trial because his
attorney was ineffective in failing to obtain his medical
records showing that, contrary to the trial testimony, he was
not capable of running, and in failing to call witnesses on
behalf of petition[er].
II. Petitioner is entitled to resentencing because the
statutory sentencing guidelines were misscored as to offense
variable 10, which affected (sic) the sentencing guideline
III. The trial court violated petitioner's constitutional
right to a public trial by closing the courtroom for jury
selection / voir dire, and defense counsel was
constitutionally ineffective in failing to object.
IV. Wayne County's unconstitutional practice of assigning
counsel on the exact day of the preliminary examination,
which has already been federally condemned, constitutes a
state impediment to the effective assistance of counsel and
effectively served to constructively deprive Petitioner Maxey
of his right to counsel at all critical stages of the
judicial proceedings...[requiring reversal due to structural
V. The trial court erred reversibly in instructing the jury
on felonious assault, which is a cognate lesser included
offense of assault with intent to murder.
VI. Appellate counsel's failure to pursue issues 3, 4,
and 5 [herein] constituted ineffective assistance of
appellate counsel in violation of his Sixth Amendment
[rights] and this was cause for petitioner['s] failure to
raise these issues on his direct appeal and resulted in
actual prejudice to petitioner.
STANDARD OF REVIEW
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 h3abeas 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;
(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.
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)). In order to obtain habeas relief in federal
court, a state prisoner is required to show that the state
court's rejection of his claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S.
at 103. A habeas petitioner should be denied relief as long
as it is within the “realm of possibility” that
fairminded jurists could find the state court decision to be
reasonable. See Woods v. Etherton, 136 S.Ct. 1149,