United States District Court, E.D. Michigan, Southern Division
LAMAR L. WALKER, II, Petitioner,
THOMAS WINN, Respondent.
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY,
AND (3) DENYING PERMISSION TO APPEAL IN FORMA
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
a habeas case brought by a Michigan prisoner under 28 U.S.C.
§ 2254. Petitioner Lamar L. Walker, II was convicted
after a bench trial in the Wayne Circuit Court of
second-degree murder, Mich. Comp. Laws § 750.317,
possession of a firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b, and interfering with a
police investigation, Mich. Comp. Laws § 750.483a(3)(b).
He was sentenced to 25 to 40 years for the murder conviction,
2 years for the firearm conviction, and 2 to 10 years for the
interfering with an investigation conviction.
petition raises two claims: (1) Petitioner was denied the
effective assistance of counsel and (2) insufficient evidence
was presented to disprove that Petitioner acted in
self-defense. The Court will deny the petition because
Petitioner's claims are without merit. The Court will
also deny Petitioner a certificate of appealability, and it
will deny permission to proceed on appeal in forma pauperis.
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 from the shooting death of
defendant's uncle, Jeffrey Perry, in the early morning
hours of July 5, 2013. Specifically, on July 4, 2013, Jeffrey
and defendant attended a fireworks display with Briana Noland
(Jeffrey's girlfriend), Noland's two small children,
Chantel Tatum (defendant's girlfriend), and Terrell Perry
(the victim's son). Defendant took an AK-47 automatic
rifle with him to the show, planning to shoot it after the
fireworks. Later that evening, they dropped Noland and her
children at their home, and then continued driving in the
white van that they had driven to the fireworks. A fight then
ensued between Jeffrey and Terrell, after which Terrell was
left on the side of the road. Defendant and Jeffrey then
exchanged heated words, and defendant fired on Jeffrey at
close range with the AK-47. Tatum, who was still in the van,
witnessed the shooting. Terrell, who was still nearby, heard
the shots and saw the van “lighting up” with
gunfire. Defendant then pushed Jeffrey's body out of the
van and ordered Terrell back inside. The van was later set on
fire and left to burn. After the shooting, defendant left the
state. He later confessed to Tony Wright, a friend of
Jeffrey's, that he had shot Jeffrey, but defendant
claimed he had done so to protect Terrell. Defendant was
arrested when he returned to Michigan and, in a statement to
police, he denied any involvement with the shooting.
People v. Walker, No. 322810, 2016 WL 453455, at *1
(Mich. Ct. App. Feb. 4, 2016).
his conviction and sentence as indicated above, Petitioner
filed a claim of appeal in the Michigan Court of Appeals. His
brief on appeal raised the following claims:
I. Repeated errors and acts on the part of defense counsel
denied the defendant of his state and federal constitutional
right to the effective assistance of counsel and the right to
a fair trial pursuant to U.S. Const. Amds. VI, XIV; Const.
1963 Art. I, secs. 17, 20.
II. Due Process requires reversal where the defendant's
convictions were obtained on the basis of legally
insufficient evidence pursuant to U.S. Const. Amds. V, VI,
XIV; Const. 1963 Art. I, secs. 17, 20.
Michigan Court of Appeals affirmed Petitioner's
convictions in an unpublished opinion. Id.
Petitioner subsequently filed an application for leave to
appeal in the Michigan Supreme Court that raised the same
claims. The Michigan Supreme Court denied the application
because it was not persuaded that the questions presented
should be reviewed by the Court. See People v.
Walker, 885 N.W.2d 469 (Mich. 2016) (table).
Standard of Review
U.S.C. § 2254(d) curtails a federal court's review
of constitutional claims raised by a state prisoner in a
habeas corpus action if the claims were rejected on the
merits by the state courts. Relief is bared under this
section unless the state court adjudication was
“contrary to” or resulted in an
“unreasonable application of” clearly established
Supreme Court law.
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
[this] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams
v. Taylor, 529 U.S. 362, 405-06 (2000).
‘unreasonable application' prong of the statute
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.
that a state court unreasonably applied clearly established
Supreme Court law is no easy task because “[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), quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004). “Section
2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction
through appeal. . . . As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103 (internal quotation
Ineffective Assistance of Counsel
first claim asserts that he was denied the effective
assistance of trial counsel. Petitioner argues that his
attorney performed deficiently by advising him to waive his
right to a jury trial because counsel had a close
relationship with the trial judge and could have a private
conversation with him about the case. Petitioner also asserts
that his counsel was ineffective for dismissing his desire to
testify in his own defense. Finally, Petitioner asserts that
his counsel was ineffective for failing to move to suppress
the admission of the firearm admitted at trial.
establish ineffective assistance of counsel, a defendant must
show both that: (1) counsel's performance was deficient,
i.e., “that counsel's representation fell below an
objective standard of reasonableness”; and (2) the
deficient performance resulted in prejudice to the defense.
Strickland v. Washington, 466 U.S. 668, 687-88
(1984). “[A] court must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial
strategy.'” Id. at 689 (quoting Michel
v. Louisiana, 350 U.S. 91, 101 (1955)). The test for
prejudice is whether “there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Id. at 694.
reciting the controlling standard, the Michigan Court of
Appeals found that Petitioner failed to demonstrate that he
was denied the effective assistance of counsel with respect
to any of his three allegations. Walker, 2016 WL
453455, at *2-5. The decision of the state appellate court
did not result in an unreasonable application of the
Petitioner asserts that his counsel coerced him into waiving
his right to a jury trial based on a relationship he had with
the trial court. The trial record belies the claim:
THE COURT: Okay. Today is the day set for a jury trial. And
we've had a chance to talk about some scheduling issues
off the record. It's my understanding the defendant now
wishes to waive his right to trial by jury. And I have before
me what appears to be a signed waiver ...