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Anderson v. Perry

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

January 22, 2018

MITCH PERRY, Respondent.



         Petitioner Kevin Anderson has filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) challenging his state convictions for felon in possession of a firearm (felon in possession), Mich. Comp. Laws § 750.224f, carrying a concealed weapon without a permit (CCW), Mich. Comp. Laws § 750.227, and possession of a firearm during the commission of a felony (felony firearm), second offense, Mich. Comp. Laws § 750.227b. Respondent Mitch Perry urges the Court to deny the petition on the basis that the state courts' rejection of Petitioner's claims did not result in decisions that were contrary to federal law, unreasonable applications of federal law, or unreasonable determinations of the facts. See Answer at 31 (Dkt. 10). For the reasons stated below, the Court denies the petition for writ of habeas corpus, declines to issue a certificate of appealability, and grants leave to proceed in forma pauperis on appeal.

         I. BACKGROUND

         The charges against Petitioner arose from an incident that occurred in Detroit on May 19, 2010. Petitioner was tried before a jury in Wayne County Circuit Court where the evidence established that,

[i]n the early morning hours of May 19, 2010, defendant admittedly chose to drive under the influence of alcohol. In full view of two Detroit police officers, he rear-ended another vehicle. The officers instructed defendant to remain parked while they talked to the other driver. Instead, defendant drove away. Another patrol vehicle arrived on the scene and stopped defendant's vehicle less than a mile away. The officers noted that defendant appeared intoxicated so they removed him from the vehicle. At that time, one officer saw a revolver sitting on the passenger seat. Another officer conducted a pat-down search and found an empty gun holster on defendant's person. Defendant claimed that the car belonged to his mother and was used by several relatives. He inexplicably denied that he was wearing a gun holster and claimed ignorance that a gun was in the car.

People v. Anderson, No. 301012, 2012 WL 639331, at *1 (Mich. Ct. App. Feb. 28, 2012).

         On September 3, 2010, the jury found Petitioner guilty, as charged, of felon in possession, CCW, and felony firearm. The trial court sentenced Petitioner on September 15, 2010, to concurrent terms of two to seven years in prison for the felon-in-possession and CCW convictions and to a consecutive term of five years in prison for the felony-firearm conviction.

         On appeal from his convictions, Petitioner argued through counsel that he was denied a fair trial by the admission of prejudicial evidence that he had committed murder in the past and that he refused a sobriety test at the time of his arrest. Appellate counsel also argued that trial counsel was ineffective for failing to object to the evidentiary errors.

         In a pro se supplemental brief, Petitioner raised arguments about his trial and appellate attorneys. Petitioner alleged that his trial attorney was ineffective for failing to challenge the warrantless search and seizure and the denial of a prompt arraignment. The Michigan Court of Appeals rejected all of Petitioner's claims and affirmed his convictions and sentences. See Anderson, 2012 WL 639331.

         In an application for leave to appeal in the Michigan Supreme Court, Petitioner raised a search-and-seizure claim and two issues about his statement to the police that he had previously killed someone. On September 4, 2012, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Anderson, 819 N.W.2d 868 (Mich. 2012) (table).

         On October 15, 2012, Petitioner filed his first habeas corpus petition. See Anderson v. Perry, No. 12-cv-14550 (E.D. Mich. Oct. 15, 2012) (Dkt. 1). Respondent moved for summary judgment and dismissal of the petition on the basis that Petitioner had not exhausted state remedies for any of his claims. Id. (Dkt. 10). Petitioner then moved to hold his petition in abeyance while he exhausted state remedies for his claims. Id. (Dkt. 12). The Court granted Respondent's motion for summary judgment, denied Petitioner's motion to hold his petition in abeyance, and dismissed the petition without prejudice. Id. (Dkt. 13).

         Petitioner subsequently returned to state court and filed a motion for relief from judgment in which he raised the ineffective-assistance issues now before this Court. The trial court denied Petitioner's motion on the basis that the issues were raised on direct appeal and could not be re-litigated in the trial court pursuant to Michigan Court Rule 6.508(D)(2). People v. Anderson, No. 10-005910-01-FH (Wayne Cty. Cir. Ct. Feb. 14, 2014). Petitioner appealed the trial court's decision, but the Michigan Court of Appeals denied leave to appeal because Petitioner “failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Anderson, No. 321365 (Mich. Ct. App. June 10, 2014).[1] On November 25, 2014, the Michigan Supreme Court likewise denied leave to appeal for failure to establish entitlement to relief under Rule 6.508(D). People v. Anderson, 856 N.W.2d 20 (Mich. 2014) (table).

         On January 21, 2015, Petitioner returned to this Court and filed the instant habeas corpus petition. He contends that his trial attorney was ineffective because the attorney: (i) postponed the arraignment to suppress the fact that the arresting officers severely beat him; (ii) failed to file a motion in limine to suppress admission of the weapon; (iii) failed to procure the videotape from the police officers' cruisers; (iv) failed to interview and call the driver of the other vehicle involved in the collision; (v) advised Petitioner not to tell the truth; and (vi) failed to procure evidence that would have proved there was a delay in the arraignment. Pet. at 26 (cm/ecf page). As noted above, the trial court rejected these claims on the basis that the claims were raised on direct appeal, and the State's appellate courts denied leave to appeal the issues under Michigan Court Rule 6.508(D).


         Petitioner raised two of his claims about trial counsel (I.B. and I.F.) in the Michigan Court of Appeals on direct review. As to those claims, 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:

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 ...

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