United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DENYING THE MOTION FOR AN EVIDENTIARY HEARING,
DENYING THE MOTION FOR RECONSIDERATION, DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO APPEAL IN
CORBETT O'MEARA, UNITED STATES DISTRICT JUDGE
Maurice Lyons-Bey, (“petitioner), filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his convictions for assault with intent to do
great bodily harm less than murder, conspiracy to commit
assault with intent to do great bodily harm less than murder,
armed robbery, and conspiracy to commit armed robbery. For
the reasons that follow, the petition for writ of habeas
corpus is DENIED.
was convicted of the above offenses following a jury trial in
the Macomb County Circuit Court, in which he was jointly
tried with co-defendant Damien Banks. Petitioner was
acquitted of charges of assault with intent to commit murder
and conspiracy to commit first-degree murder. This 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.
Brad Bohen lived down the street from Tiffany Greathouse.
After meeting in the neighborhood, Bohen became friends with
Greathouse's brother, Maliki Greathouse, and her
boyfriend, defendant Banks. On the day in question, Bohen
testified that Banks and Maliki were visiting his home when
he took a phone call from his attorney. Bohen told his
attorney that he had gathered sufficient money to pay a $650
retainer plus additional fees and that he wished to procure
his services. When Banks and Maliki heard this conversation,
they allegedly looked at each other and left.
Later that day, Bohen left his home with approximately $2,
500 in cash in his pocket. He travelled with his friend Renee
Nomer and her two children to Costco and then to T.G.I.
Friday's for dinner. While inside the restaurant, Bohen
fielded two phone calls from Banks. Bohen alleged that Banks
wanted him to purchase some Xanax and Adderall from him.
Bohen told Banks that he could meet him at the restaurant.
Banks called once and claimed to be outside the restaurant.
Bohen could not find him in the parking lot and returned to
his table. Bohen testified that Banks called again and
claimed to be waiting outside. When Bohen exited the
restaurant, he saw Greathouse sitting inside a vehicle in the
parking lot. Bohen asserted that Greathouse pointed toward
the back of the restaurant.
Bohen walked toward the back parking lot and saw Banks and
Lyons standing near the dumpster. Lyons is the boyfriend of
Greathouse's mother and Bohen had not met him before the
attack. As Bohen approached the men, someone struck him from
behind in the head and he fell to the ground. Banks and Lyons
ran toward him, and Bohen initially believed they were coming
to assist him. However, Banks and Lyons joined the fray,
keeping him on the ground, and hitting and kicking him. A
young female employee of the restaurant came out at the end
of her shift and saw two tall, thin black men wearing hooded
jackets beating a white man who was curled on the ground in
fetal position. One man was using a “small, blunt
object” that “looked like a hammer” to beat
the victim in the head. She saw a third man standing watch.
She yelled and the men ran away, with one man dropping
something out of his pocket along the way. At the end of this
encounter, Bohen had only $661 remaining in his pockets.
Bohen was hospitalized for five days and required surgery to
remove a shard of his skull from his brain. Investigating
officers brought photographic lineups to the hospital for
Bohen's review. The first included black and white
photographs and Bohen was unable to identify his attackers.
In the second lineup, Bohen identified Banks. In a third,
Bohen selected Lyons from the array.
Following a joint trial before a single jury and several days
of jury deliberations, the jury acquitted the defendants of
the greatest charged offenses and convicted them of assault
with intent to commit great bodily harm, armed robbery, and
conspiracy to commit those offenses. These consolidated
v. Lyons, No. 319252, 2015 WL 6438128, at *1-2 (Mich.
Ct. App. Oct. 22, 2015).
Michigan Court of Appeals affirmed petitioner's
Michigan Supreme Court denied petitioner leave to appeal
because it was “not persuaded that the question
presented should be reviewed by” it. People v.
Lyons, 499 Mich. 958, 879 N.W.2d 871 (Mich. 2016). The
court also remanded to the trial court on a sentencing issue
that is not being raised by petitioner in his current
Petitioner seeks a writ of habeas corpus on the following
I. Petitioner is entitled to a new trial where he was denied
effective assistance of trial counsel, where trial counsel
failed to file a notice of alibi and trial counsel concurred
in the instructions as given, which did not include an
instruction on the lack of presence (alibi).
II. Petitioner is entitled to a new trial where the trial
court erred in its denial of the admission of evidence of a
[sic] videotape of the offense.
III. Petitioner was deprived of his Fifth and Fourteenth
Amendment rights of due process when the court denied his
motion for a direct verdict of acquittal. His convictions
violates both state and federal constitutional rights to be
free from conviction on the absence of proof beyond a
IV. Where the officer-in-charge testify's [sic] that he
possessed no information, knowledge or belief that Petitioner
has committed (2) armed robberies against Bradley Bohen; the
officer is shown to have filed a false police report and
committed fraud upon the court, and the court has not
acquired jurisdiction to try the (2) armed robbery charges,
absent a showing of probable cause existed to arrest
Petitioner at the time the request for a warrant was made.
V. The trial court erred in giving lesser-included jury
instructions, where Petitioner's sole defense is alibi;
and where the jury instruction has effectively amended the
felony information, violating Petitioner's rights to
notice of the charge and statutory right to be provided a
preliminary examination on the lesser-included charge.
VI. Petitioner was denied a fair trial, where the prosecutor
suborned perjured testimony; and where the TGI Friday's
security video footage exonerates and confirms
Petitioner's non-presence on the scene of these crimes
when they occurred; Petitioner is entitled to an evidentiary
hearing and bond pending appeal.
VII. Petitioner was denied his constitutional right to
directly appeal his state criminal conviction, where his
substitute appellate counsel failed to file an
appellate's [sic] brief on appeal within (56) days after
receiving the last transcripts in Petitioner's case; and
Petitioner should be remanded to state court for a new appeal
and bond pending appeal.
Standard of Review
U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), imposes the
following standard of review for habeas cases:
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;
(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.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
at 410-11. “[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)). Therefore, in order to obtain habeas relief in
federal court, a state prisoner is required to 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.”
Harrington, 562 U.S. at 103. A habeas petitioner
should be denied relief as long as it is within the
“realm of possibility” that fairminded jurists
could find the state court decision to be reasonable. See
Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
Claim # 1. The ineffective assistance of trial counsel
first argues he was denied the effective assistance of trial
that he or she was denied the effective assistance of counsel
under federal constitutional standards, a defendant must
satisfy a two prong test. First, the defendant must
demonstrate that, considering all of the circumstances,
counsel's performance was so deficient that the attorney
was not functioning as the “counsel” guaranteed
by the Sixth Amendment. Strickland v. Washington,
466 U.S. 668, 687 (1984). In so doing, the defendant must
overcome a strong presumption that counsel's behavior
lies within the wide range of reasonable professional
assistance. Id. In other words, petitioner must
overcome the presumption that, under the circumstances, the
challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689. Second, the defendant
must show that such performance prejudiced his defense.
Id. To demonstrate prejudice, the defendant must
show that “there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 694.
“Strickland's test for prejudice is a
demanding one. ‘The likelihood of a different result
must be substantial, not just conceivable.'”
Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir.
2011)(quoting Harrington, 562 U.S. at 112). The
Supreme Court's holding in Strickland places the
burden on the defendant who raises a claim of ineffective
assistance of counsel, and not the state, to show a
reasonable probability that the result of the proceeding
would have been different, but for counsel's allegedly
deficient performance. See Wong v. Belmontes, 558
U.S. 15, 27 (2009).
importantly, on habeas review, “the question ‘is
not whether a federal court believes the state court's
determination' under the Strickland standard
‘was incorrect but whether that determination was
unreasonable-a substantially higher threshold.'”
Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)(quoting Schriro v. Landrigan, 550 U.S. 465,
473 (2007)). “The pivotal question is whether the state
court's application of the Strickland standard
was unreasonable. This is different from asking whether
defense counsel's performance fell below
Strickland's standard.” Harrington v.
Richter, 562 U.S. at 101. Indeed, “because the
Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.”
Knowles, 556 U.S. at 123 (citing Yarborough v.
Alvarado, 541 U.S. at 664). Pursuant to the §
2254(d)(1) standard, a “doubly deferential judicial
review” applies to a Strickland claim brought
by a habeas petitioner. Id. This means that on
habeas review of a state court conviction, “[A] state
court must be granted a deference and latitude that are not
in operation when the case involves review under the
itself.”Harrington, 562 U.S. at 101.
“Surmounting Strickland's high bar is
never an easy task.” Id. at 105 (quoting
Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Because of this doubly deferential standard, the Supreme
Court has indicated that:
Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard.
Harrington v. Richter, 562 U.S. at 105.
first contends that trial counsel was ineffective for failing
to investigate or call alibi witnesses. Petitioner further
claims that trial counsel was ineffective for failing to file
an alibi notice. Petitioner also argues that trial counsel
was ineffective for failing to request an instruction on
first appellate counsel raised this claim in his appellate
brief. Petitioner separately raised this claim in a pro
per motion to remand which he filed with the Michigan
Court of Appeals. The Michigan Court of Appeals denied the
motion to remand. People v. Lyons, No. 319252 (Mich.
Ct. App. Oct. 22, 2014); reconsideration den. No.
319252 (Mich. Ct. App. Nov. 26, 2014).
The Michigan Court of Appeals rejected petitioner's
Defense counsel did not file a notice of alibi defense as
required by MCL 768.20(1). However, defendant took the stand,
against counsel's advice, and testified that he was in
Detroit visiting a friend and then his sister at the time of
the Macomb County offense. In closing argument, counsel did
not discuss defendant's alibi defense, focusing instead
on the disparity between the description of the offenders and
Lyons, and Bohen's memory deficits caused by two earlier
accidents. Counsel further emphasized the changes in
Bohen's story over time. Subsequently, counsel did ...