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Wright v. Rivard

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

April 30, 2018

EDDIE WRIGHT, #337007, Petitioner,
v.
STEVEN RIVARD, Respondent.

          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

          MARK A. GOLDSMITH United States District Judge

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Following a jury trial in the Macomb County Circuit Court, Eddie Wright (“Petitioner”) was convicted of assault with intent to commit murder, Mich. Comp. Laws § 750.83; carrying a concealed weapon, Mich. Comp. Laws § 750.227(2); felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. He was sentenced as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent terms of 10 ½ to 20 years imprisonment on the assault, concealed weapon, and felon in possession convictions and a term of two years imprisonment on the felony firearm conviction to be served consecutively to the assault conviction but concurrently to the other convictions in 2014. In his pleadings, Petitioner raises claims concerning the sufficiency of the evidence and the validity of his sentence. For the reasons set forth, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         I. BACKGROUND

         Petitioner's convictions arise from the attempted shooting of Sheikh Nyang following an altercation on Hudson Street in Warren, Michigan on June 2, 2013. The trial testimony revealed that a fight involving Petitioner and Nyang occurred on the outskirts of Nyang's driveway, following Petitioner's threats to kill Nyang and his family. While Nyang's two young daughters played in the front yard, Nyang and his wife were in the driveway vacuuming the inside of their car when Nyang heard Petitioner say, “I'm going to kill you and your kids.” 1/8/14 Trial Tr., pp. 41-42 (Dkt. 7-6). Nyang did not recognize the man and responded, “What”? As Petitioner approached Nyang, he again threatened to kill Petitioner and his children. Id. at 45.

         When Petitioner was within six steps of Nyang, he pulled out a gun from the inside of his pants, racked the chamber, and pointed it at Nyang's head. Id. at 47. Nyang's wife screamed as she rushed her children into the backyard. Id. at 50, 77, 79. While continuing to point the gun at Nyang, Petitioner pulled the trigger, but the gun jammed. Id. at 50. Nyang heard the click and could see the hollow point bullet protruding from the magazine. Id. at 50-51. Petitioner attempted to clear the jam by racking the slide again, but Nyang did not give him a second chance. Id. at 54. Nyang lunged toward Petitioner and they wrestled each other on the ground. Id. Petitioner smelled like alcohol. Id. Petitioner continued to try to chamber another round. Id. at 50. Nyang managed to swipe the gun away from Petitioner. Id. A woman, later identified as Petitioner's wife, Malesa Wright, drove up to the scene. Id. at 51. She yanked Petitioner into the passenger side of her car and sped away. Id. at 54.

         During the altercation, one of Nyang's neighbors, a woman named Tamika Watkins, called the police. Id. at 55. Watkins saw the entire incident as it occurred, which prompted her to call 911. 1/9/14 Trial Tr., pp. 8-15 (Dkt. 7-7). Watkins told the police dispatcher the getaway car's make, model, and license plate number. Id. at 19.

         The police arrived on the scene shortly after the incident. 1/8/14 Trial Tr., pp. 100-01 (Dkt. 7-6). Warren Police Officer David Huffman interviewed Nyang, Nyang's wife, Tamika Watkins, and another neighbor. Id. at 102-03. Huffman went to a nearby house to look for the perpetrator, but no one responded so he began canvassing the area looking for the getaway car. Id. at 104. Officer Huffman located the car and saw a woman matching the getaway driver's description on the porch. Id. at 107. Huffman spoke with her and learned that she was Petitioner's wife. 1/9/14 Trial Tr., p. 56 (Dkt. 7-7). She admitted that a man gave her a gun that day, which she put on the passenger floor of her car. Id. at 57. She told Huffman that Petitioner was home and called him outside. 1/8/14 Trial Tr., p. 108 (Dkt. 7-6). Huffman then spoke to Petitioner who initially denied being on Hudson Street that day, but then admitted that he had been there and was involved in a verbal confrontation. Id. at 111. Petitioner denied having a gun. Id. at 112. Huffman arrested Petitioner and took him into custody. 1/9/14 Trial Tr., p. 59 (Dkt. 7-7).

         Petitioner's wife consented to a search of their home and car. Id. at 59, 65. Officer Huffman recovered a partially filled box of nine-millimeter bullets, which was missing six bullets, from the laundry room. Id. at 60-61. The police never found the gun, and they did not find any shell casings or bullets at the scene. Id. at 67.

         Following his convictions and sentencing, Petitioner pursued an appeal of right with the Michigan Court of Appeals raising the same claims presented on habeas review, detailed below. The court denied relief on those claims and affirmed his convictions and sentences. People v. Wright, No. 320619, 2015 WL 3389513, *1-4 (Mich. Ct. App. May 26, 2015) (per curiam).

         Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Wright, 873 N.W.2d 107 (2016).

         Petitioner thereafter filed his federal habeas petition. He raises the following claims:

         I. Insufficient evidence or motion for directed verdict should have been granted.

         II. Resentencing for felon in possession and carrying a concealed weapon. Respondent has filed an answer to the petition contending that it should be denied. Petitioner has filed a reply to that answer.

         II. ...


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