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Dupree v. Gidley

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

April 5, 2018

YUL DUPREE, Petitioner,
v.
LORI GIDLEY, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE

         Yul Lynn Dupree, (“petitioner”), confined at the Central Michigan Correctional Facility in St. Louis, Michigan, seeks the issuance of 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, M.C.L. § 750.110a(2). For the reasons stated below, the petition for a writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted 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):

[Steve] Bruggeman testified that while he was on the front porch of his home smoking a cigarette, he saw an individual crouched between [Elizabeth] Palen's vehicle and the garage of 2144 Manchester Boulevard in the city of Harper Woods. Bruggeman's home was directly across the street from Palen's and one house to the left. The individual broke into the garage, exited with a lawn mower, and walked down the street with it. Although he was not wearing his glasses and could not give full facial details of the perpetrator, Bruggeman identified the individual as a person wearing a blue, red, and white basketball jersey. Bruggeman informed Palen of the suspected break-in and reported it to the police. Palen noticed the garage door was open about eight inches. The garage door and the side door were closed before Palen entered her home 40 minutes earlier. Sergeant Hammerle responded to the report and observed defendant, wearing a blue basketball jersey, pushing a lawn mower down the street. Defendant was one standard city block away from Palen's home at this time. The lawn mower that defendant had matched the description Palen gave of hers, and she later confirmed it was her mower.

People v. Dupree, No. 308411, 2013 WL 1689279, at *2 (Mich. Ct. App. Apr. 18, 2013).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 495 Mich. 854, 836 N.W.2d 158 (2013). Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Dupree, No. 11-008861-01-FC (Wayne Cty.Cir.Ct. November 13, 2014). The Michigan appellate courts denied petitioner leave to appeal. People v. Dupree, No. 308411 (Mich. Ct. App. Apr. 18, 2013); lv. den. 495 Mich. 854, 836 N.W.2d 158 (2013).

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

I. Defendant Dupree had decided not to testify even before the trial began. Trial counsel was ineffective in promising he would testify in opening statement, then later breaking this promise at trial.
II. Mr. Dupree was constructively denied counsel by the spot/late appointment of trial counsel at the time of the preliminary examination. U.S. Const Ams VI & XIV.
III. There was insufficient evidence at trial to convict Dupree of home invasion and his conviction is in violation of his U.S. Const, Ams V, XIV; Mich. Const 1963, Art 1, § 17 rights.
IV. Mr. Dupree was deprived of a fair trial when the prosecutor mischaracterized the evidence to support its arguments and vouched for the star witness' credibility and trial counsel was ineffective in failing to object. U.S. Const Ams VI, XIV.
V. Mr. Dupree's constitutional right was violated when trial court did not determine whether Mr. Dupree was competent at the time of sentence. U.S. Const Am XIV.
VI. Mr. Dupree was denied the right to meaningful allocution due to lack of competency. U.S. Const Am XIV.
VII. Mr. Dupree was denied his U.S. Const Ams VI, XIV and Mich. Const 1963, Art 1, §§ 17, 20 rights to the effective assistance of trial counsel in:
a. failing to excuse a potentially bias juror, and;
b. failing to allow defendant to assist with his own defense;
c. failing to move for a direct verdict;
d. failed to investigate an insanity defense and ensure Mr. Dupree was competent at the time of trial and sentencing.
VIII. Mr. Dupree was denied the effective assistance of appellate counsel where counsel neglected strong and critical issues which must be seen as significant and obvious compared to the single issue that was raised. U.S. Const Ams VI & XIV.

         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. The procedural default issue.

         Respondent contends that petitioner's second through seventh claims are procedurally defaulted because petitioner raised them only for the first time in his post-conviction motion for relief from judgment and failed to show cause and prejudice, as required by M.C.R. 6.508(D)(3), for not raising these claims on direct appeal. Petitioner argues that any default should be excused because of appellate counsel's failure to raise these claims on petitioner's appeal of right.

         Procedural default is not a jurisdictional bar to review of a habeas petition the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). Additionally, “[F]ederal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003)(citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). “Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.” Lambrix, 520 U.S. at 525. In the present case, this Court believes that application of a procedural bar would not affect the outcome of this case, and the Court deems it more efficient in this case to proceed directly to the merits.[1]

         B. Claims ## 1, and 7. The ineffective assistance of trial counsel claims.

         The Court consolidates petitioner's first and seventh claims together for judicial economy. In his first claim, petitioner alleges that his trial counsel was ineffective by promising that he would testify in opening statement and then later breaking this promise at trial. In his seventh claim, petitioner alleges that trial counsel was ineffective by 1) failing to excuse a potentially biased juror, 2) failing to allow petitioner to assist in his own defense, 3) failing to move for a directed verdict, and 4) failing to investigate an insanity defense and ensure petitioner was competent at the time of trial and sentencing.

         To show that he 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 ...


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