United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) GRANTING A CERTIFICATE OF APPEALABILITY
WITH RESPECT TO PETITIONER'S FIRST CLAIM, (3) GRANTING
PERMISSION TO APPEAL IN FORMA PAUPERIS, AND (4) GRANTING
PETITONER'S COUNSEL'S MOTION TO WITHDRAW (DKT.
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
a habeas case brought by a Michigan prisoner under 28 U.S.C.
§ 2254. Petitioner Marcus Robinson was convicted after a
jury trial in the Kalamazoo Circuit Court of second-degree
murder, Mich. Comp. Laws 750.317, assault with intent to do
great bodily harm less than murder, Mich. Comp. Laws 750.84,
three counts of possession of a firearm during the commission
of a felony, Mich. Comp. Laws 750.227b, felon in possession
of a firearm, Mich. Comp. Laws 750.224f, and carrying a
concealed weapon, Mich. Comp. Laws 750.227. He was sentenced
to 45 to 75 years for the murder conviction, consecutive
two-year terms for the felony-firearm convictions, and lesser
concurrent terms for the other convictions.
petition raises two claims: (1) Petitioner was denied the
effective assistance of counsel when his trial attorney
failed to request a jury instruction regarding the defense of
accident, and (2) the trial court erred in failing to
instruct the jury on the lesser offense of involuntary
manslaughter. The Court will deny the petition because
Petitioner's claims are without merit. The Court will,
however, grant Petitioner a certificate of appealability with
respect to his first claim, and it will grant him permission
to proceed on appeal in forma pauperis. Petitioner will be
denied a certificate of appealability with respect to his
second claim. Finally, Petitioner's counsel's motion
to withdraw (Dkt. 7) will be granted.
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.
Defendant and his friend, Cortez Howard, met the victims,
Jared Boothe and Brian Tolson, in an apartment complex
parking lot to talk about a situation involving Howard,
Boothe's younger brother, and a female friend. Prior to
the meeting, Howard told defendant that he was friends with
the victims and that he did not expect any violence at the
meeting. Howard also told defendant that neither of them
needed to bring a gun to the parking lot meeting.
Nevertheless, defendant had heard that Boothe and Tolson were
looking for him and that one of them might have had a gun.
Defendant and Howard arrived with two other friends, who
stayed in a nearby car. Defendant and Howard approached
Boothe and Tolson, and defendant pulled out his gun and
flashed it at Boothe during the encounter.
Boothe began to walk away from the parking lot, and defendant
followed him. Tolson then told defendant not to “creep
up” on his brother. Tolson then asked defendant,
“what are you going to do, shoot me[?]” Defendant
responded, “I will, but don't make me have
to.” Tolson thereafter jumped and grabbed defendant.
During the altercation, defendant shot Tolson in the chest,
causing his death. Defendant claimed that prior to his
discharge of the gun, Tolson picked him up and slammed him
into the ground.
Boothe then punched the defendant in the head several times
and attempted to pick him up and slam him on the ground. The
defendant ended up landing on top of Boothe. The gun fired
again, hitting Boothe in the chest, but not killing him.
After the shootings, defendant got back in the car and drove
away while flashing his gun at the victims.
People v. Robinson, No. 314906, 2014 WL 4930702 WL,
at *1 (Mich. Ct. App. Oct. 2, 2014).
his conviction Petitioner filed a claim of appeal in the
Michigan Court of Appeals. His appellate brief combined his
two habeas claims into a single claim:
I. The trial court reversibly erred in denying the defense
request for an instruction on involuntary manslaughter, as
that is a necessarily included lesser offense of first degree
murder, the defense presented sufficient evidence putting the
issue of Mr. Robinson's intent and state of mind into
issue, and the jury may well have convicted Mr. Robinson only
of involuntary manslaughter as they had a reasonable doubt as
to the charged offense of premeditated murder. In addition,
Mr. Robinson was denied a fair trial where the trial judge
failed to sua sponte instruct the jury on the law of
accident, as that was a crucial issue in the homicide charge,
or, in the alternative, he was denied his Sixth Amendment
right to effective assistance of counsel due to his trial
attorney's failure to request an accident instruction.
Michigan Court of Appeals affirmed Petitioner's
convictions in a 2-1 unpublished opinion. Robinson,
2014 WL 4930702. The dissenting judge found that the trial
court erred in failing to instruct the jury on involuntary
manslaughter and accident.
subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the same claims. The Michigan
Supreme Court denied the application because it was not
persuaded that the questions presented should be reviewed.
People v. Robinson, 862 N.W.2d 652 (Mich. 2015)
Standard of Review
U.S.C. § 2254(d) curtails a federal court's review
of constitutional claims raised by a state prisoner in a
habeas corpus action if the claims were rejected on the
merits by the state courts. Relief is barred under this
section unless the state court adjudication was
“contrary to” or resulted in an
“unreasonable application of” clearly established
Supreme Court law.
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
[this] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams
v. Taylor, 529 U.S. 362, 405-06 (2000).
‘unreasonable application' prong of the statute
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.
that a state court unreasonably applied clearly established
Supreme Court law is no easy task because “[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), quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004). “Section
2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction
through appeal. . . . As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented in
federal court was so ...