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Maxey v. Rivard

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

September 26, 2017

KENNETH MAXEY, Petitioner,
v.
STEVEN RIVARD, Respondent.

          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

         Kenneth 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 PREJUDICE.

         I. BACKGROUND

         Petitioner 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.

         Petitioner 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).

         On 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).

         Martin 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. 39, 68).

         Just 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).

         Renea, 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).

         During 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).

         Petitioner's 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 561 (2011).

         Petitioner 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).

         Petitioner 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 range.
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 error].
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.

         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 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; 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)). 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, 1152 (2016).

         III. ...


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