United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
PAGE HOOD CHIEF JUDGE.
prisoner Corey Hinton (“Petitioner”) has filed a
pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 alleging that he is being held in
violation of his constitutional rights. Petitioner was
convicted of first-degree felony murder, Mich. Comp. Laws
§ 750.316, 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,
following a jury trial in the Wayne County Circuit Court. He
was sentenced to life imprisonment without parole, a
concurrent term of one to seven and one-half years
imprisonment, and a consecutive term of two years
imprisonment on those convictions. In his pleadings,
Petitioner raises claims concerning the non-production of a
witness and the admission of his prior testimony, the jury
instructions, the composition of the jury, and the
effectiveness of trial and appellate counsel. For the reasons
that follow, the Court denies with prejudice the habeas
petition. The Court also denies a certificate of
appealability and denies leave to proceed in forma
pauperis on appeal.
Facts and Procedural History
convictions arise from the shooting death of Robert Shields
in Ecorse, Michigan on March 2, 2010. The testimony at trial
revealed that Petitioner shot Shields in the back while they
were driving in a van with several other young men after a
drug deal went awry. Shields' body was left in the street
and the men drove away. The men abandoned the van and fled on
foot. Petitioner claimed that he acted in self-defense.
trial, Durrell Thornton testified that when he was visiting a
friend in River Rouge in the morning on March 2, 2010, he met
Robert Shields for the first time. Shields said that he
wanted to buy some marijuana and crack cocaine. 6/22/10 Trial
Tr., pp. 111-12. In response, Thornton called another friend,
Antonio Broadnax, in order to contact Petitioner and
facilitate the drug deal. Id. at 113. Four or five
men, including Broadnax, Petitioner, Tony Bouie, and Denzel
Fowler, came to the house in a white van and met with Shields
outside. Id. at 115-16. Shields came back into the
house saying that they did not have what he wanted, but then
went back outside. The van also left, but Thornton did not
see where Shields went. Id. at 117-19. Thornton
returned to his own home a short time later. Id. at
Bouie testified that he was riding in the van with Broadnax
(who was driving), Petitioner, Fowler, and Brandon Crawford
on March 2, 2010 smoking some marijuana while others were
drinking when Broadnax received a call from Thornton about a
drug deal. Id. at 147-51. They drove to River Rouge
and Thornton and Shields came outside. Id. at
150-51. Shields got into the van and sat and talked to
Petitioner. Id. at 151. The music in the van was
loud so he did not hear their conversation. Id. at
152. Bouie saw Shields run into the steering wheel, heard a
gunshot, and saw that Shields had been shot in the back.
Id. at 153. Petitioner was holding the gun.
Id. No one else had a weapon. Id. at 157.
Broadnax jumped out of the van and Shields fell out of the
same door of the van. Broadnax got back into the van and they
drove to an alley where they abandoned the van and ran away.
Id. at 153-54. While fleeing, Bouie, Broadnax, and
Petitioner obtained a ride from Julian Agee, and Bouie and
Broadnax went to Bouie's house. Id. at 155-56.
Upon further questioning, Bouie recalled telling the police
that he looked back in the van, saw Petitioner with a gun,
and heard him say to Shields, “Put your hands up before
I shoot you, ” id. at 166-67, or
“Don't move before I shoot you.” Id.
at 195-96. Bouie did not see any physical altercation between
Shields and Petitioner before the shooting. 6/23/10 Trial
Tr., p. 15.
also testified that he received a call from Petitioner, who
was trying to disguise his voice to sound like Broadnax,
after the shooting. Petitioner told him to say the shooting
was self-defense. Id. at 26-27. Bouie also spoke
with Petitioner at the Ecorse Police Department lockup.
Petitioner again told him to say it was self-defense and that
Shields had a gun. Petitioner also warned him not to go to
court because they would all get locked up. Id. at
Broadnax testified that he picked up Petitioner and Bouie in
his white van on March 2, 2010 and then they picked up Fowler
and Crawford. While they were out, Petitioner asked him to
drive to a house in River Rouge because he had to handle some
business. Id. at 77-80. Broadnax later realized
Petitioner was going to sell marijuana. When Shields was in
the van, Broadnax was driving and not paying much attention
to the passengers. He then heard a commotion arise between
Petitioner and Shields in the back of the van. Id.
at 82. Shields lunged toward Broadnax grabbing the steering
wheel. Broadnax heard a gunshot and saw that Shields was shot
in the lower back. Petitioner had the gun. Id. at
83. No one else had a gun that he saw. Id. at 84.
Broadnax put the car in park and hopped out of the van.
Shields fell out onto the street. Id. at 84-85.
Broadnax got back into the van, drove around the corner, and
parked behind a friend's apartment. They then fled the
area on foot. Id. at 85-86. Broadnax and Bouie
stayed together and were picked up, along with Petitioner, by
Julian Agee and taken to Bouie's house. Id. at
87-88. Only Broadnax and Bouie went in the house.
Id. at 88. Broadnax called the police and reported
his van stolen, but police officers subsequently came to his
house and arrested him. Id. at 89. He was taken to a
holding cell at the Ecorse Police Department. Id.
Broadnax was initially charged with the crime, but accepted a
deal in which he pleaded guilty to accessory after the fact
and agreed to testify at trial. Id. at 90-91.
Broadnax did not see Petitioner buy or have a gun before the
shooting and did not know that he was going to shoot Shields.
Id. at 92.
Fowler testified that he was with Crawford when they were
picked up by Broadnax, Bouie, and Petitioner in a van on
March 2, 2010. 6/24/10 Trial Tr., pp. 59-60. Petitioner asked
him if he still had a gun for sale, and Fowler said that he
did. Petitioner agreed to buy it for $50.00, paid him the
money, and retrieved the gun from where Fowler had hidden it
in the bushes. Id. at 61-62. He was drinking some
liquor and others were smoking marijuana while they drove
around and eventually went to a neighborhood in River Rouge.
Id. at 64. A white man (Shields) got into the van
and they drove away. Id. at 65. The music was loud,
but Fowler heard some “loudness” from the rear of
the van. When he looked back, he saw Shields running up to
grab the steering wheel, and then he heard a gunshot.
Id. at 66. Petitioner had the gun. Id. at
67. Broadnax hopped out of the van while it was still rolling
and Shields fell out of the van. Id. at 67-68. No
one else had any weapons. Id. at 68. They drove
away, parked the van, and ran. Id. at 69. He and
Crawford went to Crawford's house. Id. Fowler
went to the police station voluntarily and gave a statement
the next day. While he was in lockup, he heard Petitioner
telling Bouie to say it was self-defense. Id. at 71.
Crawford did not appear for trial. After hearing from a
police officer assigned to the case, the trial court ruled
that the prosecution exercised due diligence in attempting to
produce him and allowed his preliminary examination testimony
to be read into the record. 6/22/10 Trial Tr., pp. 5-20.
Crawford testified that he went to Fowler's house in the
morning on March 2, 2010 and they were picked up in a white
van containing Broadnax, Bouie, and Petitioner. 6/24/10 Trial
Tr., p. 109-10. They planned to drink alcohol and smoke
marijuana. Id. at 111. Petitioner said he had to go
“catch a sale” for marijuana and they drove to a
neighborhood in River Rouge. Id. at 111-12. A white
man (Shields) got into the van. There was an argument over
the marijuana between Shields and Petitioner. Crawford then
heard Shields “pleading for his life, ” saw
Shields move toward the steering wheel, and heard a gunshot.
Id. at 114-15. He saw Petitioner with the gun.
Id. at 116. Broadnax was so shocked that he hopped
out of the van, causing Shields to fall out onto the street.
Id. at 119. At this point, they were in Ecorse.
Broadnax got back into the van and they drove around the
corner, exited the van, and ran away. Id. at 120-22.
Crawford and Fowler ran off together to Crawford's house
and did not stay with the other men. Id. at 122,
124. Crawford went to the police station the next day and
gave a statement. Id. at 127-28.
testified in his own defense at trial. He acknowledged that
he was friends with Broadnax, Bouie, Crawford, and Fowler and
was acquainted with Thornton. Id. at 162-63. He was
at the gas station with Bouie in the morning on March 2, 2010
when Broadnax picked them up in his white van. Id.
at 164-65. He said that they always drink, smoke marijuana,
and “catch sales” in the van. Id. at
165. As they were getting in the van, Broadnax received a
call about a drug deal. They drove to a house in River Rouge.
Thornton came out and told Broadnax that he sold Shields a
gun and Shields was trying to sell him a cell phone.
Id. at 166-67. Shields got into the van. Broadnax
showed him the marijuana and there was a dispute about its
quantity. Id. at 170. They left in the van and
picked up Fowler and Crawford. Petitioner saw Fowler pass
Crawford a gun. Id. at 173. They returned to the
house where Shields was to sell him the marijuana. According
to Petitioner, no one was drinking or smoking at that time.
Id. at 176. Shields came outside and got into the
van. Shields pulled out his wallet and asked to see the
marijuana. Id. at 177. Broadnax passed the bag of
marijuana to Bouie who showed it to Shields. Shields then
took out his own bag of marijuana and said, “This is
what weed is supposed to look like.” Bouie asked to see
Shields' marijuana, Shields gave it to him, and Bouie
refused to return it. Id. at 178-79. Shields and
Bouie argued and tussled. Id. at 179-80. During the
fight, Shields pulled out a gun. Id. at 181.
Petitioner then sees Crawford pointing his gun at Shields.
Fowler and Bouie were telling Crawford to shoot, but he did
not do so. Id. at 182-83. Bouie was holding down
Shields' shooting hand, but Shields was trying to raise
his gun, so Petitioner grabbed the gun from Crawford and shot
Shields just as he turned toward the front of the van.
Id. at 184, 187. Shields grabbed the steering wheel
and swerved the van. Broadnax stopped the van and hopped out.
Shields then either fell out of the van or was thrown out.
Id. at 188. Broadnax got back in the van and they
drove to an alley. They all exited the van and ran.
Id. at 189. Petitioner, Broadnax, and Bouie ran away
together, flagged down Julian Agee, and obtained a ride to
Bouie's house. Id. at 190. Petitioner testified
that Bouie took Shields' wallet and Fowler took both
guns. Id. at 191. At Bouie's house, they smoked
some marijuana and split the $60 from Shields' wallet
between the three of them. Id. at 192. Petitioner
was arrested the next day. Id. at 193. Petitioner
stipulated that he had a prior felony conviction and was
unable to possess a firearm at the time of the shooting.
close of trial, the jury convicted Petitioner of first-degree
felony murder, felon in possession of a firearm, and felony
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals. Appellate counsel
raised the following claims: (1) the trial court violated due
process by instructing the jury that it could consider his
previous, unnamed conviction when evaluating his testimony
and failing to give a limiting instruction on the proper use
of that evidence, and (2) trial counsel was ineffective for
failing to object to the jury instruction. Petitioner raised
the following additional claims in a supplemental brief: (3)
the trial court erred in ruling that the prosecution
exercised due diligence in attempting to locate witness
Brandon Crawford and admitting his preliminary examination
testimony, and (4) he was denied his right to a jury drawn
from a fair cross-section of the community, equal protection,
and the effectiveness of counsel where the jury array only
included four African-Americans and counsel objected only
verbally. The court denied relief on the claims and affirmed
his convictions. People v. Hinton, No. 299877, 2012
WL 130423 (Mich. Ct. App. Jan. 17, 2012) (unpublished).
Petitioner filed an application for leave to appeal with the
Michigan Supreme Court, which was denied in a standard order.
People v. Hinton, 492 Mich. 866, 819 N.W.2d 895
subsequently filed a motion for relief from judgment with the
state trial court. He raised the following claims: (1) trial
counsel was ineffective for failing to investigate an
insanity defense and his capacity to stand trial and (2)
appellate counsel was ineffective for raising that issue on
direct appeal. The trial court denied relief on those claims
finding that Petitioner had not shown good cause or actual
prejudice under Michigan Court Rule 6.508(D)(3) as the
underlying claim lacked merit. People v. Hinton, No.
10-003149-FC (Wayne Co. Cir. Ct. Nov. 25, 2013). Petitioner
filed a delayed application for leave to appeal with the
Michigan Court of Appeals, which was denied for failure to
meet the burden of establishing entitlement to relief under
Michigan Court Rule 6.508(D). The court specifically cited
Michigan Court Rule 6.508(D)(3)(a) and ruled that Petitioner
alleged grounds for relief that could have been raised
previously and that he failed to establish good cause for
failing to do so. People v. Hinton, No. 320097
(Mich. Ct. App. March 18, 2014). Petitioner filed an
application for leave to appeal with the Michigan Supreme
Court, which was denied for failure to meet the burden of
establishing entitlement to relief under Michigan Court Rule
6.508(D). People v. Hinton, 497 Mich. 888, 854
N.W.2d 733 (2014).
thereafter filed his federal habeas petition raising the
I. The trial court abused its discretion in ruling that the
prosecution had shown due diligence in attempting to
subpoena, locate and produce Brandon Crawford, and permitting
his prior recorded testimony to be read to the jury under MRE
804(A)(5), thus denying Petitioner his state and federal
constitutional rights to confrontation.
II. He was denied his constitutional rights to due process of
law and a fair trial when the trial judge failed to give the
jury a curative or limiting instruction on the use of a prior
conviction, the relevance of which was only for consideration
of the felon in possession of a firearm charge against him,
and actually gave a standard instruction advising the jury
that it could consider the conviction in evaluating his
testimony, despite the fact that his attorney did not object
to the error.
III. He was denied his federal and state constitutional right
to (1) an impartial jury drawn from a fair cross-section of
the community, (2) equal protection of the law, and (3) the
effective assistance of counsel, where there were four
African-American persons in the array from which his jury was
selected and counsel only objected verbally; he therefore is
entitled to an evidentiary hearing to support his claims.
IV. He was denied his state and federal constitutional right
to the effective assistance of counsel where defense counsel
failed to adequately investigate and pursue his mental
illness status prior to trial.
V. Petitioner was denied his right to effective appellate
counsel when his appellate counsel failed to raise the prior
issue on direct appeal.
has filed an answer to the petition contending that it should
be Petitioner has filed a reply to that answer.
Standard of Review
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), codified at 28 U.S.C.
§ 2241 et seq., govern this case because
Petitioner filed his habeas petition after the AEDPA's
effective date. Lindh v. Murphy, 521 U.S. 320, 336
(1997). The AEDPA provides:
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.
28 U.S.C. §2254(d) (1996).
state court's decision is ‘contrary to' . . .
clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court
cases]' or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[that] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per v. Cone, 535 U.S.
685, 694 (2002).
‘unreasonable application' prong of §
2254(d)(1) permits a federal habeas court to ‘grant the
writ if the state court identifies the correct governing
legal principle from [the Supreme] Court but unreasonably
applies that principle to the facts of petitioner's
case.” Wiggins v. Smith, 539 U.S. 510, 520
(2003) (quoting Williams, 529 U.S. at 413); see
also Bell, 535 U.S. at 694. However, “[i]n order
for a federal court to find a state court's application
of [Supreme Court] precedent ‘unreasonable, ' the
state court's decision must have been more than incorrect
or erroneous. The state court's application must have
been ‘objectively unreasonable.'”
Wiggins, 539 U.S. at 520-21 (citations omitted);
see also Williams, 529 U.S. at 409. “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, 521 U.S. at 333, n. 7;
Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
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)).
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. In order to obtain habeas relief in
federal court, a state prisoner must 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.” Id.; see also
White v. Woodall, U.S., 134 S.Ct. 1697, 1702 (2014).
Federal judges “are required to afford state courts due
respect by overturning their decisions only when there could
be no reasonable dispute that they were wrong.”
Woods v. Donald, U.S., 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015).
A habeas petitioner cannot prevail as long as it is within
the “realm of possibility” that fairminded
jurists could find the state court decision to be reasonable.
Woods v. Etherton, ___ U.S. ___, 136 S.Ct. 1149,
2254(d)(1) limits a federal habeas court's review to a
determination of whether the state court's decision
comports with clearly established federal law as determined
by the Supreme Court at the time the state court renders its
decision. Williams, 529 U.S. at 412; see also
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)
(noting that the Supreme Court “has held on numerous
occasions that it is not ‘an unreasonable application
of clearly established Federal law' for a state court to
decline to apply a specific legal rule that has not been
squarely established by this Court”) (quoting
Wright v. Van Patten, 552 U.S. 120, 125-26 (2008)
(per curiam)); Lockyer, 538 U.S. at 71-72. Section
2254(d) “does not require a state court to give reasons
before its decision can be deemed to have been
‘adjudicated on the merits.'”
Harrington, 562 U.S. at 100. Furthermore, it
“does not require citation of [Supreme Court]
cases-indeed, it does not even require awareness of [Supreme
Court] cases, so long as neither the reasoning nor the result
of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8 (2002); see also
Mitchell, 540 U.S. at 16.
requirements of clearly established law are to be determined
solely by Supreme Court precedent. Therefore, “circuit
precedent does not constitute ‘clearly established
Federal law as determined by the Supreme Court'”
and it cannot provide the basis for federal habeas relief.
Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per
curiam); see also Lopez v. Smith, ___ U.S. ___ 135
S.Ct. 1, 2 (2014) (per curiam). The decisions of lower
federal courts, however, may be useful in assessing the
reasonableness of the state court's resolution of an
issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir.
2007) (citing Williams v. Bowersox, 340 F.3d 667,
671 (8th Cir. 2003)); Dickens v. Jones, 203 F.Supp.
354, 359 (E.D. Mich. 2002).
court's factual determinations are presumed correct on
federal habeas review. See 28 U.S.C. §
2254(e)(1). A petitioner may rebut this presumption with
clear and convincing evidence. Warren v. Smith, 161
F.3d 358, 360-61 (6th Cir. 1998). Habeas review is
“limited to the record that ...