United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEASCORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE
Dwight Roberson, presently confined at the Muskegon
Correctional Facility in Muskegon, Michigan, has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, Petitioner
challenges his conviction for first-degree home invasion,
Mich. Comp. Laws § 750.110a(2), second-degree home
invasion, Mich. Comp. Laws § 750.110a(3), receiving or
concealing stolen property valued between $200 and $1, 000,
Mich. Comp. Laws § 750.535(4)(a), malicious destruction
of a house, causing damages between $1, 000 and $20, 000,
Mich. Comp. Laws § 750.380(3)(a), and participating in a
criminal enterprise, Mich. Comp. Laws § 750.159i. The
trial court sentenced Petitioner, as a second-habitual
offender, Mich. Comp. Laws § 769.10, to concurrent terms
of 20 to 30 years in prison for the first-degree home
invasion and criminal enterprise convictions, 10 to 15 years
for the second-degree home invasion conviction, 2 to 5 years
for the malicious destruction conviction, and time served for
the receiving or concealing conviction. For the reasons
stated below, the petition for a writ of habeas corpus is
was convicted of the above charges following a jury trial in
the Wayne County Circuit Court. 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):
The prosecutor charged defendant and four codefendants with
participating in four Detroit robberies: breaking and
entering Your Place Lounge located at 17326 East Warren early
on August 31, 2008, invading a residence on Woodhall Street
on September 27, 2008, and robbing two other Woodhall Street
residences on September 29, 2008. The robbery targets all
were located within three blocks of one another.
Defendant undisputedly occupied a residence located at 4889
Woodhall Street, in the midst of the robbery targets. Detroit
police officers testified that they first investigated a
potential connection between 4889 Woodhall Street and the
robberies immediately after the August 31, 2008 breaking and
entering of the lounge, to which 4889 Woodhall was the
closest residence, immediately adjacent to the lounge across
an alley. Officers observed suspect movement inside 4889
Woodhall, entered the house, found liquor, pieces of a cash
register, and other items taken from the lounge, and arrested
defendant and his four charged codefendants, who were
released days later.
Several Woodhall Street residents testified about the
robberies of their houses, and two residents recalled seeing
four to six African-American males engaged in suspicious
behavior on Woodhall Street in the early morning hours of
September 29, 2008. The suspicious behavior included pushing
a trash receptacle full of pipes down the sidewalk and
carrying a large duffel bag, which items the group
transported to 4889 Woodhall. The trash receptacle bore the
address of one of the broken and entered homes. None of the
Woodhall Street residents could identify defendant as one of
the Woodhall home invaders. However, later on September 29,
2008, the police descended on 4889 Woodhall and arrested
defendant and a codefendant as they tried to flee from the
house; police arrested another codefendant inside the house.
At the time of the arrests, the police found the trash
receptacle containing copper piping stolen from one
of the Woodhall Street houses, a Wii game system stolen from
another Woodhall residence, and several other items of stolen
property from the three invaded Woodhall homes.
People v. Roberson, No. 291436, 2010 WL 2292011, at
*1 (Mich. Ct. App. June 8, 2010).
his sentencing, Petitioner filed a claim of appeal with the
Michigan Court of Appeals, raising the same claims raised in
his initial habeas petition. The Court of Appeals affirmed
his convictions and sentences. Id. at *8. Petitioner
then filed an application for leave to appeal with the
Michigan Supreme Court, raising the same claims. On December
20, 2010, the Michigan Supreme Court denied the application.
People v. Roberson, 791 N.W.2d 443 (Mich. 2010). On
April 14, 2011, Petitioner filed his habeas petition. (Dkt.
1). The proof of service was signed and dated April 6, 2011.
On August 29, 2012, Petitioner filed a motion to stay
proceedings and hold his habeas petition in abeyance. On
October 1, 2012, the Court entered an order holding
Petitioner's petition in abeyance. 10/1/2012 Op. &
Order (Dkt. 10). The Court also administratively closed the
returned to the trial court and filed a post-conviction
motion for relief from judgment pursuant to Mich. Ct. R.
6.500, et. seq., with the Wayne County Circuit
Court, which was denied. People v. Roberson, No.
08-14259-01 (Wayne County Circuit Court, December 11, 2012).
The Michigan appellate courts denied Petitioner leave to
appeal. People v. Roberson, No. 315525 (Mich. Ct.
App. October 8, 2013); lv. den. 791 N.W.2d 443
(Mich. 2014). Petitioner then filed an amended habeas
petition on December 24, 2014. (Dkt. 11).
November 2, 2016, Petitioner filed a motion to reopen his
petition for a writ of habeas corpus (Dkt. 17) and on
November 4, 2016, he filed a motion to amend his petition
(Dkt. 18). On December 12, 2016, the case was reopened and
placed on the court's active docket. (Dkt. 19).
Respondent filed a supplemental answer on January 31, 2017.
(Dkt. 20). Petitioner filed a reply on March 13, 2017, (Dkt.
22) and the brief in support of his reply to respondent's
supplemental answer on April 3, 2017. (Dkt. 23).
seeks a writ of habeas corpus on the following grounds:
I. Mr Roberson was denied his state and federal right to a
fair trial when the judge instructed the jury on the theory
of engaging in a continuing criminal enterprise under which
he had not been charged. Furthermore, defense trial counsel
was constitutionally ineffective in assenting to the
II. Mr Roberson was denied his state and federal due process
rights to notice of the charges against him when the trial
judge instructed the jury on the theory of engaging in a
continuing criminal enterprise under which he had not been
III. Mr Roberson was denied his state and federal rights to
due process of law and a fair trial through the
prosecutor's misconduct in shifting the burden of proof
to him, questioning him about privileged communication with
trial counsel, questioning him about whether he would present
a witnesses who had their own rights against
self-incrimination, and commenting on Mr Roberson's
privileged communications during closing argument.
IV. Trial counsel was ineffective by failing to investigate
and call alibi witnesses.
V. Trial and appellate counsel were ineffective by failing to
raise scoring issues.
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:
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;
(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.
Supreme Court has explained that “a federal court's
collateral review of a state-court decision must be
consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322,
340 (2003). The “AEDPA thus imposes a ‘highly
deferential standard for evaluating state-court rulings,
' and ‘demands that state-court decisions be given
the benefit of the doubt.'” Renico v.
Lett, 559 U.S. 766, 773 (2010), quoting Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam).
“[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), The Supreme Court has emphasized “that even a
strong case for relief does not mean the state court's
contrary conclusion was unreasonable.” Id.,
citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Furthermore, pursuant to § 2254(d), “a habeas
court must determine what arguments or theories supported
or...could have supported, the state court's decision;
and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of
the Supreme Court. Id. 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).