United States District Court, E.D. Michigan, Southern Division
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
CARAM STEEH, UNITED STATES DISTRICT JUDGE
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.
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).
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).
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, §
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 &
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.
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).
A. The procedural default issue.
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.
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
Claims ## 1, and 7. The ineffective assistance of trial
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.
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