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Brown v. Mackie

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

January 23, 2018

Rashod Brown, Petitioner,
v.
Thomas Mackie, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [1], GRANTING PARTIAL CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

          GERSHWIN A. DRAIN United States District Judge

         I. INTRODUCTION

         Petitioner Rashod Brown was convicted in the Wayne Circuit Court of second-degree murder, Mich. Comp. Laws § 750.317, two counts of assault with intent to commit murder, Mich. Comp. Laws § 750.83, 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. Petitioner was sentenced as a third-time habitual felony offender to concurrent controlling sentences of twenty to forty years for the murder and assault convictions, one to five years for the felon in possession conviction, and a consecutive five-year term for the firearm conviction.

         Petitioner raises three claims in the amended habeas petition: (1) his trial counsel was ineffective for failing to both conduct an adequate pretrial investigation and call two witnesses at trial; (2) his trial counsel was ineffective for failing to object to an aiding and abetting jury instruction; and (3) his appellate counsel was ineffective for failing to raise certain claims. The Court will deny all three claims.

         The Court will grant Petitioner a certificate of appealability on the first claim, and will deny a certificate of appealability on the second and third claims. The Court will grant Brown permission to proceed on appeal in forma pauperis.

         II. Background

         The 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):

This case arises from a shooting that took place in Detroit, Michigan. Around 5:30 p.m. on March 16, 2010, Darrell Young was working at a mechanic shop at the corner of Grand River Avenue and Martindale Road. Young was underneath a car when a group of approximately five men approached. The men were talking about the gold Chevy Malibu in front of the shop - Young's brother's car. Young testified that one of the group apparently believed that the car was his. Young began to emerge from underneath the car and one of the men hit him in the face. Young then retreated underneath the car. The men then walked away and down the block. Shortly thereafter, police officers arrived; they talked to Young and to the group who had just left the shop. Defendant flagged down the officers from across the street and told them that the Malibu in question was his car and that it had been stolen the previous month. The police investigated and determined that the car did not belong to defendant and he became very aggravated. The Young brothers were later driving on Littlefield and, ultimately, defendant shot many times at both of them while they were in the vehicle. The bullets went “everywhere.” One of the Young brothers was injured and a neighbor in the area, David Adams, was killed.

People v. Brown, No. 303099, 2012 WL 1890180, at *1 (Mich. Ct. App. May 22, 2012).

         Following his conviction, Petitioner filed an appeal as of right. His appellate counsel raised the following claims:

I. The trial court should have allowed a self-defense jury instruction when there was evidence that the appellant was fired upon by the complainants Derell and Darrell Young, and his assault with intent to murder convictions on insufficient evidence denied appellant his state and federal constitutional right to due process.
II. The aiding and abetting jury instruction was improperly given to the jury when there was no evidence that a second shooter was aided and abetted by the appellant Rashod Brown and his murder in the second degree conviction on insufficient evidence denied appellant his state and federal constitutional right to due process.
III. There was ineffective assistance of counsel when the attorney failed to request a self-defense jury instruction.
IV. The evidence is insufficient to sustain defendant's conviction of murder in the second degree; alternatively, the verdict is against the great weight of the evidence; it would be a denial of due process and a miscarriage of justice to allow the defendant's conviction to stand.

See Dkt. No. 1, pp. 2-3 (Pg. ID 2-3).

         The Michigan Court of Appeals affirmed Petitioner's convictions. Brown, 2012 WL 1890180, at *1. Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same four claims as in the Michigan Court of Appeals and adding four claims:

V. Due process requires a new trial on affirmation of two exculpatory witnesses who confirm that the defendant was with them at the time the crimes in question transpired.
VI. Mr. Brown was denied his Sixth Amendment right to the effective assistance of counsel where counsel failed to present a defense by investigating and locating exculpatory witnesses for which he knew would corroborate defendant's account of events transpiring on the night in question.
VII. Mr. Brown was denied effective assistance of trial counsel where counsel failed to object to the trial court's improper jury instruction based on a theory of aiding and abetting when there was no evidence that a second shooter was aided and abetted by Mr. Brown.
VIII. Where appellate counsel was privy to arguments V, VI, [and] VII above, yet failed to investigate the existence of such witnesses or related constitutional claims, appellate ...

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