United States District Court, E.D. Michigan, Southern Division
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
E. LEVY United States District Judge.
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.
Facts and Procedural History
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.
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).
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).
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).
then filed this federal habeas petition. He raises the
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
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
III. The elements of larceny between $1, 000 and $20, 000 and
criminal enterprise were never proven beyond a reasonable
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.
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.)
Standard of Review
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;
(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 curiam) (quoting Williams
v. Taylor, 529 U.S. 362, 405-06 (2000)); see also
Bell 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
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,
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
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.
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 “limited
to the ...