United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS , GRANTING PARTIAL CERTIFICATE OF APPEALABILITY,
AND GRANTING PERMISSION FOR LEAVE TO APPEAL IN FORMA
GERSHWIN A. DRAIN United States District Judge
Rashod Brown was convicted in the Wayne Circuit Court of
second-degree murder, Mich. Comp. Laws Â§ 750.317, two counts
of assault with intent to commit murder, Mich. Comp. Laws Â§
750.83, felon in possession of a firearm, Mich. Comp. Laws Â§
750.224f, and possession of a firearm during the commission
of a felony. Mich. Comp. Laws Â§ 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.
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.
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.
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.
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).
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).
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