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Abu-Jebreel v. Palmer

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

November 16, 2017

ABDURRAHMAAN ABU-JEBREEL, Petitioner,
v.
CARMEN PALMER, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL, (3) DENYING CERTIFICATE OF APPEALABILITY, AND (4) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS

          LINDA V. PARKER U.S. DISTRICT JUDGE

         Michigan prisoner Abdurrahmaan Abu-Jebreel (“Petitioner”) filed this habeas case under 28 U.S.C. § 2254. Petitioner is challenging his convictions following a bench trial in the Circuit Court for Wayne County, Michigan, for armed robbery, assault with intent to cause great bodily harm, possession of a firearm by a felon, and possession of a firearm during the commission of a felony.

         The state trial court sentenced Petitioner as a second habitual offender to periods of incarceration of 16 to 40 years for the armed robbery conviction, 6 to 15 years for the assault conviction, 3 to 7½ years for the felon in possession conviction, and a consecutive 2-year term for the felony-firearm conviction.

         Petitioner raises four claims in his application for habeas relief: (1) the sentencing guidelines were erroneously scored; (2) the trial court did not consider Petitioner's trial testimony when it made its findings following the bench trial; (3) the trial court failed to consider the law on “imminent threat of death”; and, (4) Petitioner was deprived of the effective assistance of trial counsel. The Court finds that Petitioner's claims are without merit. Therefore, it is denying his petition. The Court also is denying Petitioner's motion for appointment of counsel, a certificate of appealability, and leave to appeal in forma pauperis.

         I. Background

         This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals in its decision affirming Petitioner's sentence and convictions:

This case arises out the shooting and robbery of complainant Evan McCarver in the home of Kennesha McKenney. McKenney did not testify at any of the proceedings below. According to McCarver's testimony, McKenney invited him to the apartment. McCarver stated that he had an occasional sexual relationship with McKenney and was unaware that defendant was allegedly living with her. Per McCarver's account, he was talking on the telephone with his brother when defendant came into the apartment. McCarver stated that he saw defendant pull a handgun and point it at his head, and McCarver walked into the bedroom and hid behind the door. He heard a clicking noise twice and thought it was a gun jamming and that he was going to be shot. McCarver was dialing 911 when defendant walked into the bedroom and demanded that McCarver give him the cell phone, and defendant shot him after the phone was handed over.
Defendant raised defenses of insanity and that he acted in self-defense or defense of others. Defendant testified that the apartment was his residence part time, there was animosity between himself and McCarver, McCarver was known to carry a firearm, and defendant acted in self-defense and out of concern of harm to McKenney and children present in the home. Defendant stated that McCarver was attacking him, but was unarmed when he was shot. Defendant testified that McCarver did not have a gun at the time of the shooting and fled to the bedroom before defendant shot him.

People v. Abu-Jebreel, No. 319059, 2015 WL 1396528, at *1 (Mich. Ct. App. March 26, 2015). These facts 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).

         Following his conviction and sentence as indicated above, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate brief filed by counsel raised one claim, and Petitioner added two additional claims in a supplemental pro se brief:

I. Defendant is entitled to resentencing where offense variable 19 was erroneously scored, resulting in an improperly inflated guidelines range. Defendant's state and federal due process rights to be sentenced on accurate information were denied.
II. As a result of the judge not remembering the judge erred in failing to properly instruct on imminent death threat instruction and/or on great bodily harm instruction thus violating defendant's due process right.
III. Defendant asserts that he was denied effective assistance of trial counsel.

         The Michigan Court of Appeals affirmed Petitioner's convictions and sentence in an unpublished opinion. Abu-Jebreel, 2015 WL 1396528, at *3. Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims he raised in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was not persuaded that it should review the ...


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