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Lyons-Bey v. Campbell

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

February 14, 2018

DAVID MAURICE LYONS-BEY, Petitioner,
v.
SHERMAN CAMPBELL, Respondent,

          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 FORMA PAUPERIS

          JOHN CORBETT O'MEARA, UNITED STATES DISTRICT JUDGE

         David 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.

         I. Background

         Petitioner 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. 2009):

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 appeals followed.

         People v. Lyons, No. 319252, 2015 WL 6438128, at *1-2 (Mich. Ct. App. Oct. 22, 2015).

         The Michigan Court of Appeals affirmed petitioner's conviction. Id.

         The 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 petition. Id.

Petitioner seeks a writ of habeas corpus on the following grounds:
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 reasonable doubt.
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.

         II. Standard of Review

         28 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:

         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 in the State court proceeding.

         A 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).

         III. Discussion

         A. Claim # 1. The ineffective assistance of trial counsel claims.

         Petitioner first argues he was denied the effective assistance of trial counsel.

         To show 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).

         More 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 Strickland standard 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.

         Petitioner 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 alibi.

         Petitioner's 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 claim:
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 ...

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