United States District Court, E.D. Michigan, Southern Division
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.
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.
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
People v. Burns, No. 305037, 2012 WL 4093758, at *1
(Mich. Ct. App. Sept. 18, 2012).
conviction was affirmed on direct appeal. Id., lv.
den. 493 Mich. 941, 826 N.W.2d 719 (2013).
filed a petition for a writ of habeas corpus on October 1,
2014, [Doc. # 1], in which he sought habeas relief on the
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.
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.
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. #
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