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Greene v. Burt

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

April 13, 2018

Brian Greene, #345131, Petitioner,
v.
Sherry Burt, Respondent.

          Anthony P. Patti Mag. Judge

          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

          JUDITH E. LEVY United States District Judge.

         This is a pro se habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Brian Greene (“Petitioner”) was convicted of racketeering, larceny of $1, 000 or more but less than $20, 000, and larceny of $20, 000 or more following a jury trial with two co-defendants in the Ogemaw County Circuit Court. He was sentenced as a third habitual offender to concurrent terms of 10 to 40 years imprisonment, 2 to 10 years imprisonment, and 2 to 20 years imprisonment in 2012. In his petition, he raises claims concerning the conduct of the prosecutor, the effectiveness of trial and appellate counsel, the sufficiency of the evidence, an amendment to the information, the jury instructions, and the state court's jurisdiction. For the reasons set forth below, the Court denies habeas relief. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         I. Facts and Procedural History

         Petitioner's convictions arise from his participation in a series of larcenies, including the theft of a trailer, tractor supplies, and lawn equipment with his co-defendants in Ogemaw County, Michigan, in 2010. The Michigan Court of Appeals described the underlying facts as follows:

Defendant was tried along with co-defendants David Ritchie and Fabian Loonsfoot. Defendant, Ritchie, Loonsfoot and Ritchie's girlfriend, Misr Abdur-Rahim, were members of a group that robbed businesses of their equipment. Abdur- Rahim accepted a plea deal and agreed to testify against her co-defendants. Abdur-Rahim testified that defendant would come to where she lived with Ritchie and she would hear the two “talk about places that they could hit larcenies at, ” and that she was with defendant and Ritchie on several occasions when equipment was stolen. The larcenies happened the same way with the same individuals: “They would take a trailer hooked onto a truck, go to the place where they planned on committing their larcenies, fill the trailer up and go.” Abdur- Rahim acted as a lookout and observed defendant and the others load “tractor supply stuff” and “lawn equipment” into the trailers. Both the stolen trailer and the stolen equipment were found at Abdur-Rahim and Ritchie's home.

         Defendant was convicted and sentenced as outlined above. People v. Greene, No. 308448, 2013 WL 951294, at *1 (Mich. Ct. App. Feb. 21, 2013) (unpublished) (footnote omitted).

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising claims concerning (1) the use of the crime of larceny as the basis for his racketeering conviction and (2) the conduct of the prosecutor. The court denied relief on those claims and affirmed Petitioner's convictions. Id. at *1-3. Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Greene, 494 Mich. 871 (2013).

         Petitioner returned to the state trial court and filed a motion for relief from judgment, asserting that appellate counsel was ineffective for failing to raise claims concerning the jury instructions, the sufficiency of the evidence, the conduct of the prosecutor, the effectiveness of trial counsel, and a jurisdictional defect. The trial court denied relief, stating that Petitioner was attempting to raise the same or similar issues as raised on direct appeal. People v. Greene, Nos. 11-3674-FH, 11-3679-FH (Ogemaw Cty. Cir. Ct. May 2, 2014). 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 MCR 6.508(D).” People v. Greene, No. 322381 (Mich. Ct. App. Sept. 19, 2014). Petitioner filed an application for leave to appeal which the Michigan Supreme Court, which was similarly denied. People v. Greene, 498 Mich. 851 (2015).

         Petitioner then filed this federal habeas petition. He raises the following claims:

I. The prosecution vouched for the credibility of the single witness against him, whose testimony was not permitted due to the fruit of the poisonous tree doctrine, creating a radical jurisdictional defect and voiding any process against him in these matters.
II. Ineffective assistance of appellate counsel for abandoning review of the sufficiency of the elements of the accusations for larceny and criminal enterprise/racketeering counts, as well as the other issues not raised on direct appeal.
III. The elements of larceny between $1, 000 and $20, 000 and criminal enterprise were never proven beyond a reasonable doubt.
IV. Ineffective assistance of counsel for failure to object to an information that was amended to include offenses never established under probable cause to be bound over. Counsel also did not object to speculative testimony during trial, nor to testimony of a witness being coerced by the police by threat of having her child taken away from her.
V. The prosecution amended the information to include two receiving and concealing offenses without a bindover or a motion for similar acts, and then submitted an inadmissible allegation during trial, thereby prejudicing him.
VI. Improper jury instructions violated due process.
VII. There were jurisdictional defects.

         Respondent has filed an answer to the petition, contending that it should be denied because the claims are procedurally defaulted and/or lack merit. (Dkt. 13.) Petitioner has filed a reply to that answer. (Dkt. 15.)

         II. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part:

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.

28 U.S.C. §2254(d) (1996).

         “A 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 curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

         “[T]he ‘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 curiam)).

         The Supreme Court has held that “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)). 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. Thus, in order to obtain federal habeas relief, a state prisoner must show that the state court's rejection of a 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, 1152 (2016).

         Section 2254(d)(1) limits a federal 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.

         The requirements of “clearly established law” are to be determined solely by Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court, '” and “[i]t therefore cannot form the basis for habeas relief under AEDPA.” 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 may be useful in assessing the reasonableness of the state court's decision. 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.2d 354, 359 (E.D. Mich. 2002).

         A state court's factual determinations are presumed correct on federal habeas review. 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 also ‚Äúlimited to the ...


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