United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS  AND DECLINING TO ISSUE CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT
Lloyd Jackson, (“Petitioner” or
“Jackson”), incarcerated at the Ojibway
Correctional Facility in Marenisco, Michigan, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Dkt. No. 20. In his application, filed pro
se, Petitioner challenges his conviction for felon in
possession of a firearm, Mich. Comp. Laws § 750.224f;
possession of a short-barreled shotgun, Mich.
Laws § 750.224b; and two counts of possession of a
firearm in the commission of a felony
(“felony-firearm”), Mich. Comp. Laws §
750.227b. For the reasons stated below, the petition for writ
of habeas corpus is DENIED. Accordingly, the
Court will also DENY Petitioner's
Request for a Certificate of Appealability and Leave to
Appeal In Forma Pauperis.
was convicted following a jury trial in the Bay County
Circuit Court. 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). The Michigan Court of Appeals
This case has its origins in an apparent altercation between
several men at a residence in the early morning hours of July
4, 2008, in Bay City, Michigan.
James Lyman testified that he was a police officer with the
Bay City police department. Lyman stated that he responded to
a dispatch concerning a fight that possibly involved a
firearm. As he drove toward the area indicated in the
dispatch, he saw three men headed away from him and toward
11th Street and another three men headed toward his car.
Lyman stopped his car, exited, and ordered the three men
approaching him to the ground. Lyman agreed that defendant
was yelling and excitable at the scene and that he said
something to the effect that those other guys were
“swingin' on some girls, ” which he
understood to mean striking them. Because the three men would
not comply with his order, he drew his gun and repeated his
order. Eventually, the three men got on the ground.
Officer John Harned testified that he was following Lyman on
the way to the scene. He saw Lyman pull over next to three
men. He, however, proceeded past Lyman and drove towards the
three men who were walking away. The three men ran to the
west and he lost them. Harned testified that all three of the
men that ran away were wearing white t-shirts. After he lost
sight of the three men, Harned went back to the point where
Lyman stopped and helped him secure the scene.
Officers Leslie Gillespie and Brad Peter testified that they
too responded to the dispatch. When she arrived, Gillespie
saw that Lyman had three suspects on the ground at gun point.
She assisted officer Lyman in handcuffing the suspects. When
Peter arrived, Lyman and Gillespie had already secured the
three suspects. Gillespie also noticed that a car was parked
somewhat “cock-eyed into a driveway”; part of the
car was “in the road, part was up into the
driveway.” She said she recognized the car from a stop
that she had made two weeks earlier and that the car belonged
to defendant. She said the car was running, had its lights
on, and the front driver's side door was open. She also
said that defendant had some injuries to his face-his eye was
Dawn Harsch testified that she lived next door to the home at
issue. In the early morning hours of July 4, 2008, she heard
“a lot of yelling” and so she looked outside. She
saw a taller black man with a gun. The man started to take
off his shirt and passed the gun to a shorter black man. The
shorter black man then took the gun and stuck it in her yard.
She stated that the shorter black man had a shirt on. Harsch
told her husband to call 9-1-1, but the police arrived even
before he could call. She then got her robe and went outside
to tell an officer where the gun was located.
Officer Peter said that a neighbor approached him at the
scene and spoke to him. After he spoke with her, Peter
searched the bushes near the woman's home next to a
fence. There he found a small sawed-off shotgun. Peter said
that the neighbor indicated that the man with no shirt had
had the shotgun. Defendant had no shirt on. The other two men
detained at the scene, Cory Jackson-defendant's
brother-and Malcolm Baty, both had shirts on. Harned said
that he found a t-shirt lying in the driveway just south of
where they located the gun. Harned noted that defendant was
the only person at the scene who did not have a shirt on.
. . . .
At trial, the prosecutor asked Harsch whether an officer had
asked her if she could identify the man who had the gun and
she testified that “he did.” The prosecutor then
asked her whether she pointed to one of the men in custody
and she said, “no.” The prosecutor later called
Officer Peter to the stand and asked him whether he had asked
Harsch if she could identify the man who had the shotgun at
the scene and he stated that he did. When the prosecutor
asked what she did or said, defendant's trial counsel
objected to the question because it asked for hearsay. The
prosecutor responded that he was offering the testimony as a
prior inconsistent statement because Harsch had testified
that she did not identify defendant as the taller black man
who had the shotgun. See MRE 801(d)(1)(A). The trial court
agreed that the testimony was admissible for that purpose. At
that point, Peter testified that, after he asked Harsch if
she could identify the man with the shotgun, she
“pointed to the black male subject who was on the
ground who had no shirt on.” Defendant's trial
counsel then cross examined Peter about the circumstances
under which Harsch pointed out defendant and noted that she
might simply have pointed to him because he was the only man
left who was not wearing a shirt.
After defendant's trial counsel made his motion for a
directed verdict, the prosecutor asked the trial court to
instruct the jury that Peter's testimony that Harsch
pointed to defendant could be used as substantive evidence
that defendant possessed the shotgun, rather than just
evidence of a prior inconsistent statement. The trial court
agreed that it was admissible for that purpose under MRE
801(d)(1)(C) and later instructed the jury that it could use
the testimony as evidence that defendant possessed the
People v. Jackson, No. 294112, 2011 WL 192390, at
*1-2, 9-10 (Mich. Ct. App. Jan. 20, 2011).
conviction was affirmed on appeal by the Michigan Court of
Appeals, although the case was remanded to the trial court to
amend the judgment of sentence to reflect the correct amount
of credits for time served. Id. at *1. Petitioner
did not file an application for leave to appeal to the
Michigan Supreme Court. See Aff. of Corbin R. Davis,
Clerk of the Michigan S.Ct., dated July 24, 2012. Dkt. No.
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, which was held in abeyance to permit him
to return to the state courts to exhaust additional claims
which had not yet been presented to the state courts.
Jackson v. Smith, No. 4:12-CV-11463, 2013 WL 2447783
(E.D. Mich. June 5, 2013), Dkt. No. 15.
filed a post-conviction motion for relief from judgment with
the trial court, which was denied. People v.
Jackson, No. 08-10666-FH (Bay Cty. Cir. Ct. July 1,
2013), reconsideration denied, No. 08-10666-FH (Bay
Cty. Cir. Ct. July 31, 2013). The Michigan appellate courts
denied Jackson leave to appeal. People v. Jackson,
No. 318547 (Mich. Ct. App. Mar. 17, 2014), leave
denied, 497 Mich. 903, 856 N.W.2d 35 (2014).
September 12, 2016, this Court reopened the case to the
Court's active docket, amended the caption, and permitted
Petitioner to file an amended habeas petition. See
Dkt. No. 21.
original habeas application, Petitioner sought relief on the
I. There was insufficient evidence that he possessed the
shotgun, so as to support his conviction.
II. There was insufficient evidence to convict him on the
felon in possession of a firearm charge because there was no
requisite felony, and Petitioner's counsel was
ineffective for stipulating that there was a requisite
III. The trial court violated his due process rights when it
admitted a police officer's testimony about another
witness's statement of identification, where there was no
proper identification procedure.
Dkt. No. 1, p. 17 (Pg. ID 17). In his amended habeas
application, Petitioner raises additional claims, which this
Court will number as claims four through six:
IV. His conviction for felon in possession of a firearm
violated the Ex Post Facto Clause and the Due Process Clause.
V. He was denied the effective assistance of appellate
counsel where his attorney did not raise issues in his appeal
as of right.
VI. He was denied the effective assistance of trial counsel
because trial counsel stipulated to a prior conviction that
allegedly did not exist.