United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY IN
G. EDMUNDS UNITED STATES DISTRICT JUDGE.
Jill Day, currently in the custody of the Michigan Department
of Corrections, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, through counsel. She
challenges her convictions for assault with intent to commit
murder and felony firearm.
petition raises five claims: (i) insufficient evidence
supports Petitioner's conviction for assault with intent
to commit murder; (ii) the admission of irrelevant,
prejudicial evidence and irrelevant opinion testimony denied
Petitioner her right to a fair trial; (iii) the prosecutor
committed misconduct by discussing facts not in evidence and
eliciting improper opinion testimony; (iv) Petitioner was
denied her right to a fair and impartial jury when the jury
panel viewed her in restraints; and (v) defense counsel was
ineffective. For the reasons explained below, the Court
denies the petition. The Court grants a certificate of
appealability in part.
Michigan Court of Appeals provided this overview of the
circumstances leading to Petitioner's convictions:
The victim, Steven Podschwit, was shot at six times in his
driveway while trying to leave for work early one morning.
Two bullets hit him in the chest and arm. He testified that
he witnessed a dark-colored minivan slowly drive by after the
shooting. Other witnesses also reported seeing a dark blue
minivan in the driveway of a house next to the victim's
home. The police determined that defendant drove a dark blue
Honda Odyssey minivan and owned a .45 caliber handgun.
However, the police could not locate the handgun and
defendant could not provide an explanation as to where it
could be. When the police searched defendant's house they
found targets used for shooting practice; defendant had
visited the shooting range a week before the incident.
Moreover, the police found a torn photograph of the
victim's house and driveway in defendant's house. The
victim testified that he was receiving blocked phone calls
from someone prior to the incident. These phone calls were
traced to a phone number for a prepaid cell phone for which
defendant had phone cards. The victim's ex-wife also
testified that she received a phone call from a female
inquiring about the victim's address and work location.
The police were able to determine that this phone call came
from the same prepaid cell phone. The jury convicted
defendant of assault with intent to murder and
People v. Day, No. 306104, 2012 WL 6604704 (Mich.
Ct. App. Dec. 18, 2012). Also relevant to the case is the
relationship among several individuals: Steven Podschwit, Guy
Fisher (Guy), Nicole Fisher (Nicole), and the Petitioner.
After being shot, Podschwit told police that he thought Guy
might be the shooter because Guy previously accused Podschwit
of having an affair with Guy's wife, Nicole. ECF No. 4-6,
Pg. ID 560-62. Guy admitted to his wife Nicole that he had an
extramarital affair with Petitioner. ECF No. 4-7, Pg ID 713.
Nicole and Guy Fisher owed Petitioner over $110, 000, a debt
that had accumulated over a period of years. The Court
addresses additional relevant testimony below.
was convicted by a jury in St. Clair County Circuit Court of
assault with intent to commit murder and felony firearm. She
was sentenced on August 19, 2011, to 15 to 50 years for the
assault conviction, to be served consecutively to two years
for the felony-firearm conviction. Petitioner filed a motion
for new trial on the ground that the verdict was against the
great weight of the evidence. The trial court denied the
motion. (ECF No. 4-14).
filed an appeal of right in the Michigan Court of Appeals
presenting the following claims: (i) the verdict was against
the great weight of the evidence and insufficient evidence
supported the convictions; (ii) the prosecutor was improperly
permitted to admit irrelevant, highly prejudicial evidence
and to elicit opinion testimony; (iii) prosecutor committed
misconduct by discussing facts not in evidence and eliciting
improper opinion testimony; (iv) Petitioner was denied right
to a fair and impartial jury when the jury viewed her in
restraints; and (v) ineffective assistance of counsel. The
Michigan Court of Appeals affirmed Petitioner's
convictions. People v. Day, No. 306104, 2012 WL
6604704 (Mich. Ct. App. Dec. 18, 2012).
filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims raised in the Michigan
Court of Appeals. The application was denied. People v.
Day, 836 N.W.2d 688 (Mich. 2013).
then filed this petition for a writ of habeas corpus. She
raises these claims:
I. The evidence is insufficient to sustain Petitioner
Day's conviction for assault with the intent to commit
murder and therefore it would be a denial of due process and
a denial of Ms. Day's federal constitutional right to be
free from conviction in the absence of proof beyond a
reasonable doubt to allow Ms. Day's conviction to stand.
II. Petitioner Day was denied her due process right to a fair
trial under the federal constitution when the prosecutor was
permitted to admit irrelevant, but highly prejudicial
evidence, as well as elicit irrelevant opinion testimony
regarding the evidence in an improper attempt to bolster the
III. Ms. Day was denied her due process right to a fair trial
under the federal constitution when the prosecutor engaged in
severe outcome-determinative misconduct by discussing facts
not in evidence and repeatedly eliciting improper opinion
IV. Petitioner was denied her federal constitutional right to
a fair and impartial jury where the jury panel impermissibly
viewed her in restraints.
V. Petitioner was denied the effective assistance of counsel
guaranteed by the federal constitution where her trial
attorney, with no strategic purpose, made several
28 U.S.C. § 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214, imposes the following
standard of review for habeas cases:
An application for a writ of habeas 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, 405-406 (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.
AEDPA “imposes a highly deferential standard for
evaluating state-court rulings, and demands that state-court
decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal
quotations omitted). 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) (quotation omitted).
The Supreme Court has emphasized “that even a strong
case for relief does not mean the state court's contrary
conclusion was unreasonable.” Id. at 102.
Pursuant to section 2254(d), “a habeas court must
determine what arguments or theories supported or . . . could
have supported, the state court's decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision” of the Supreme
Court. Id. Although 28 U.S.C. § 2254(d), as
amended by the AEDPA, does not completely bar federal courts
from re-litigating claims that have previously been rejected
in the state courts, a federal court may grant habeas relief
only “in cases where there is no possibility fairminded
jurists could disagree that the state court's decision
conflicts with” the Supreme Court's precedents.
Id. A “readiness to attribute error [to a
state court] is inconsistent with the presumption that state
courts know and follow the law.” Woodford v.
Viscotti, 537 U.S. 19, 24 (2002).
court's factual determinations are presumed correct on
federal habeas review. See 28 U.S.C. § 2254(e)(1). A
habeas petitioner may rebut this presumption of correctness
only with clear and convincing evidence. Id.
Moreover, for claims that were adjudicated on the merits in
state court, habeas review is “limited to the record
that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
Sufficiency of the Evidence (Claim I)
claims that insufficient evidence was offered to prove beyond
a reasonable doubt that she is guilty of assault with intent
to commit murder.
Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364
(1970). On direct review, review of a sufficiency of the
evidence challenge must focus on whether “after viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the