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Burns v. Woods

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

October 31, 2017

DOUGLAS ROY BURNS, Petitioner,
v.
JEFFREY WOODS, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.

         Douglas Roy Burns, (“petitioner”), confined at the Chippewa Correctional Facility in Kincheloe, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his convictions for two counts of assault with intent to commit murder, M.C.L.A. 750.83, and two counts of possession of a firearm during the commission of a felony, M.C.L.A. 750.227b. For the reasons that follow, the petition for a writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted following a jury trial in the Oakland County Circuit Court. Petitioner's conviction arose from an encounter between petitioner and the Pontiac Police Department. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which 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):

Defendant's convictions arise out his assault of two police officers on May 27, 2010. City of Pontiac Police Sergeant Ryan Terry and Officer Tim Morton responded to defendant's home because of a dispute between defendant and his neighbors. Defendant was irate and yelled at the officers to get off of his property. Terry and Morton returned to defendant's home later that day because of threats that defendant had made to the mayor of Pontiac over the telephone. As the officers talked to defendant's wife at the front door, they could hear defendant yelling in the background. When defendant came to the front door, he was wearing only a bathrobe with large front pockets, and Terry saw defendant place a small handgun into one of the pockets. Terry yelled “gun, gun, gun” to alert Morton that defendant had a gun, and the officers unsuccessfully attempted to subdue defendant. After a brief struggle, defendant fired two shots at the officers, prompting Morton to fire one shot at defendant, which missed and struck a piano. Defendant then fired a third shot at the officers, who sustained nonlife-threatening injuries. Defendant was eventually subdued and apprehended after additional police officers arrived and sprayed tear gas into defendant's home.

People v. Burns, No. 305037, 2012 WL 4093758, at *1 (Mich. Ct. App. Sept. 18, 2012).

         Petitioner's conviction was affirmed on direct appeal. Id., lv. den. 493 Mich. 941, 826 N.W.2d 719 (2013).

         Petitioner filed a petition for a writ of habeas corpus on October 1, 2014, [Doc. # 1], in which he sought habeas relief on the following grounds:[1]

I. Denial of right to present a defense.
II. Ineffective assistance of trial counsel.
III. The trial court inappropriately ignored petitioner's request for substitute counsel.

         Respondent filed an answer on May 8, 2015, [Doc. # 11]. As part of their answer, respondent alleged that petitioner's second and third claims were defaulted because petitioner abandoned the claims by not properly raising them in his Standard 4 brief on his appeal of right.

         On January 20, 2017, this Court held the petition in abeyance, staying the proceedings to permit petitioner to return to the state courts to exhaust his second and third claims. [Doc. # 14].

         In a letter request, dated May 31, 2017, [Doc. # 15], petitioner requested that the petition be reopened and that “this matter be adjudicated on the sole exhausted issue, to wit, Issue # 1: Denial of right to present a defense.” Petitioner further informed this Court that he intended to “forfeit and abandon the other two Issues, the non-exhausted ones, to wit II: Ineffective assistance of trial ...


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