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Smith v. Bergh

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

November 21, 2017

HOWARD SMITH, #416157, Petitioner,
DAVID BERGH, Respondent.



         Petitioner Howard Smith has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a bench trial in the Wayne County Circuit Court, Petitioner was convicted of second-degree murder, Mich. Comp. Laws § 750.317, carrying a concealed weapon, Mich. Comp. Laws § 750.227, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. He was sentenced to 20 to 35 years imprisonment on the murder conviction, concurrent terms of one to five years imprisonment on the concealed weapon and felon in possession convictions, and a consecutive term of two years imprisonment on the felony firearm conviction. In his pleadings, Petitioner raises claims concerning double jeopardy, the sufficiency of the evidence, the conduct of the prosecutor, the application of state self-defense law, and the effectiveness of trial and appellate counsel. For the reasons that follow, the court denies with prejudice the habeas petition. The court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's convictions arise from a firearm death. The relevant facts, as decided by the Michigan Court of Appeals, are presumed correct. See 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).

Smith's convictions arise from the shooting death of Farrod Potter during the early morning hours of June 27, 2010, outside a lounge in Detroit. At trial, several witnesses, including Raymond Grant, testified that they had celebrated a family birthday at the lounge. As Grant was entering the lounge, he accidentally stepped on Smith's shoe. Grant apologized to Smith before they continued on their separate ways. Near the lounge's closing time, Smith followed Grant's aunt across the street to talk. Shortly thereafter, Grant and a group of friends, including Potter, came across the street. Grant again apologized to Smith, who declined to acknowledge his acceptance of the apology. Although Grant became irritated by Smith's attitude, the testimony of the several trial witnesses consistently described that Grant and his acquaintances walked away from Smith back toward the lounge or their cars. Smith, who was armed with a .25-caliber handgun, jogged or walked in pursuit of Grant and his acquaintances. Smith declared that he should shoot someone in the back, after which Smith drew his handgun. Grant grabbed Smith around his arms to prevent Smith from shooting, but Smith was able to raise the gun toward Potter and shoot him once in the chest. No evidence suggested that Grant or his acquaintances possessed weapons of any kind that morning, or that any of them ever threatened Smith. Smith raised a self-defense claim at trial.

People v. Smith, No. 301559, 2012 WL 832848, at *1 (Mich. Ct. App. March 13, 2012).

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising the following claims:

I. Convictions and sentences for both felon in possession of a firearm and felony firearm violate the Double Jeopardy Clause. U.S. Const. amend. V.
II. The conviction for second degree murder, carrying a concealed weapon, and felony firearm must be reversed where the prosecution failed to present sufficient evidence to disprove self-defense, thus violating his Amends. V and XIV rights to be convicted only upon proof beyond a reasonable doubt.
III. The evidence was insufficient to support the charge of second-degree murder. If at all, the conviction can be no more than involuntary manslaughter.
IV. The prosecutor committed misconduct by misleading the court when presenting and offering a stipulation during closing arguments that was never stipulated to by the defense and when presenting misleading witness testimony, which deprived Defendant of a fair trial and violated Defendant's right to due process under the Michigan and United States Constitutions.
V. Trial counsel's failure to object to and preserve the prosecution's misleading misstatements of witness testimonies, along with his misrepresentation of stipulations offered to the court during trial, deprived Defendant of his state and federal constitutional right to effective assistance of counsel and a fair trial.

         The court denied relief on those claims and affirmed his convictions. Id. at *1-6. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Smith, 492 Mich. 867, 819 N.W.2d 873 (2012).

         Petitioner subsequently filed a motion for relief from judgment with the state trial court raising the following claims:

I. Did the trier of fact apply the incorrect law of self defense violating the due process rights of the defendant as guaranteed to him under the U.S. Const. and the Mich. Const. 1963, Art. 1 §§ 17, 20?
II. Must Defendant's second-degree murder conviction be reversed where the prosecution failed to establish the necessary elements beyond a reasonable doubt, resulting in the violation of Defendant's due process rights under the U.S. Constitutional Amendment V and XIV, and the Michigan Constitution 1963, Art 1, §§ 17, 20?
III. Did the prosecutor commit misconduct by intentionally misleading and lying to the trial court, misquoting and misrepresenting testimony, violating Defendant's substantial rights under U.S. Const. Amends. V, VI, XIV, and the Mich. Const. 1963, Art 1, §§ 17, 20?
IV. Did the prosecutor commit misconduct and abuse his authority by overcharging Defendant with second-degree murder where the facts and evidence only supported self-defense accidental death, or at most, manslaughter, denying Defendant his due process rights under the U.S. Const. Amends. V, VI, XIV, and the Mich. Const. 1963, Art. 1 §§ 17, 20?
V. Did the prosecutor commit misconduct by arguing facts not in evidence, violating Defendant's due process rights under the U.S. Const. Amends. V, VI, XIV, and the Mich. Const. 1963, Art. 1 §§ 17, 20?
VI. Was Defendant denied effective assistance of trial counsel, violating his constitutional rights under [both] state and federal Constitutions where counsel failed to present evidence that would have been exculpatory in nature?
VII. Was Defendant denied his right to the effective assistance of appellate counsel where counsel failed to raise the herein issues on direct appeal. U.S. Const. Amends. VI and XIV; Mich. Const 1963, Art. 1, §§ 17, 20?

         The court denied relief citing Michigan Court Rule 6.508(D)(2) and (D)(3). The court also ruled that Petitioner failed to establish that appellate counsel was ineffective. People v. Smith, No. 10-007618-01-FC (Wayne Co. Cir. Ct. Oct. 25, 2013). Petitioner then filed an application for leave to appeal with the Michigan Court of Appeals, which was denied “for failure to establish entitlement to relief under MCR 6.508(D).” People v. Smith, No. 319896 (Mich. Ct. App. June 27, 2014). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Smith, 497 Mich. 1010, 861 N.W.2d 893 (2015).

         Petitioner thereafter filed his federal habeas petition. (Dkt. #1.) He raises the 12 claims that he raised on direct appeal and collateral review of his convictions in the state courts. Respondent has filed an answer to the petition (Dkt. #5) contending that it should be denied because the claims lack merit and/or are barred by procedural default.

         III. Standard of Review

         The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed his habeas petition after the AEDPA's effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:

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; or
(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.

28 U.S.C. § 2254(d) (1996).

         “A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

         “[T]he ‘unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state court's application of [Supreme Court] precedent ‘unreasonable, ' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been ‘objectively unreasonable.'” Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus 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) (quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

         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) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 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. Thus, in order to obtain habeas relief in federal court, a state prisoner must show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id.; see also White v. Woodall, __ U.S. __, 134 S.Ct. 1697, 1702 (2014). Federal judges “are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.” Woods v. Donald, __ U.S. __, 135 S.Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. Woods v. Etherton, __ U.S. __, 136 S.Ct. 1149, 1152 (2016).

         Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held on numerous occasions that it is not ‘an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71-72. Section 2254(d) “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.'” Harrington, 562 U.S. at 100. Furthermore, it “does not require citation of [Supreme Court] cases-indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16.

         The requirements of clearly established law are to be determined solely by Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly established Federal law as determined by the Supreme Court'” and it cannot provide the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam); see also Lopez v. Smith, __ U.S. __, 135 S.Ct. 1, 2 (2014) (per curiam). The decisions of lower federal courts, however, may be useful in assessing the reasonableness of the state court's resolution of an issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F.Supp.2d 354, 359 (E.D. Mich. 2002) (Tarnow, J.). A state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Lastly, habeas review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         IV. Discussion

         A. Direct Appeal Claims

         1. Double Jeopardy ...

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