United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE HABEAS PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON
PAGE HOOD CHIEF JUDGE
Dana Maurice Miller filed a pro se habeas corpus
petition challenging his state convictions for first-degree
(premeditated) murder, Mich. Comp. Laws § 750.316(1)(a),
felon in possession of a firearm, Mich. Comp. Laws §
750.224f, and possession of a firearm during the commission
of a felony (“felony firearm”), Mich. Comp. Laws
§ 750.227b. Petitioner alleges as grounds for relief
that: (1) the evidence at trial was insufficient to support
his murder conviction; (2) the trial court abused its
discretion by admitting testimony about Petitioner's
prior “bad acts;” (3) the prosecutor denied him a
fair trial by questioning him about being arrested in front
of a “dope” house and neglecting to visit his
mother; (4) the prosecutor denied him a fair trial by
introducing evidence that a prosecution witness did not have
a criminal record; (5) the trial court erred by rejecting his
defense and penalizing him for exercising his right to
testify; (6) defense counsel was ineffective for failing to
call the medical examiner as a witness; (7) defense counsel
was ineffective for arguing an invalid defense; (8) the trial
court violated his right of confrontation; (9) the
prosecution failed to establish the corpus delicti
of the murder; and (10) the prosecutor and defense counsel
denied him the right to present a defense by not producing
the medical examiner as a witness.
State argues in an answer to the habeas petition that
Petitioner failed to exhaust state remedies for part of his
seventh claim, that Petitioner procedurally defaulted claims
three and four, that some of Petitioner's claims are not
cognizable on habeas review, and that the state court
reasonably adjudicated Petitioner's claims. Because the
Court agrees that none of Petitioner's claims warrant
habeas relief, the Court will deny the petition.
was charged with premeditated murder and two firearm offenses
in Wayne County, Michigan. He was tried before a circuit
court judge in Wayne County Circuit Court. The state
appellate court summarized the facts at Petitioner's
bench trial as follows:
Undisputed testimony established that defendant and the
victim, his stepson, got in an argument and physical
altercation on August 28, 2012. Defendant, who was armed,
fired two shots, the victim fled the scene, and defendant
pursued the victim and fired another shot at him. Though the
victim was able to evade defendant, one of the shots hit him.
He went to a nearby house, informed the residents that
defendant had shot him, and died shortly thereafter.
Defendant . . . testified that a group of armed men ordered
him to shoot the victim, and told him that if he failed to do
so, they would harm his family. Defendant further asserted
that he fired the first two shots in the air as a warning to
the victim, and that he fired the third shot by accident
after he stumbled while chasing the victim.
Defendant's attorney built on defendant's testimony
and argued that defendant was under duress during the night
in question. [She] also claimed that a conviction for
second-degree murder or manslaughter was appropriate, because
defendant had been in a physical fight with the victim
shortly before the murder and supposedly did not intend to
kill the victim.
People v. Miller, No. 314659, 2014 WL 2753719, at *1
(Mich. Ct. App. June 17, 2014).
January 8, 2013, the trial court found Petitioner guilty, as
charged, of first-degree (premeditated) murder, felon in
possession of a firearm, and felony firearm. The court
sentenced Petitioner to life imprisonment for the murder
conviction, two to five years in prison for the
felon-in-possession conviction, and two years in prison for
the felony-firearm conviction. The court ordered the
sentences for murder and felon-in-possession to run
concurrently with each other, but consecutive to the
felony-firearm sentence. The Michigan Court of Appeals
affirmed Petitioner's convictions in an unpublished
decision, see id., and on November 25, 2014, the
Michigan Supreme Court denied leave to appeal because it was
not persuaded to review the issues. See People v.
Miller, 497 Mich. 905; 856 N.W.2d 21 (2014). On June 5,
2015, Petitioner filed his habeas corpus petition.
STANDARD OF REVIEW
to 28 U.S.C. § 2254(d), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), the Court
may grant an application for the writ of habeas corpus only
if the state court's adjudication of the prisoner's
claims on the merits
(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)(1) and (2).
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. Rather, that
application must also be unreasonable.” Williams v.
Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus
imposes a ‘highly deferential standard for evaluating
state-court rulings, ' Lindh v. Murphy, 521 U.S.
320, 333, n. 7 (1997), and ‘demands that state- court
decisions be given the benefit of the doubt, '
Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam).” Renico v. Lett, 559
U.S. 766, 773 (2010).
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) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of
habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on his or her 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. at 103.
Claim One: Insufficient Evidence
alleges that the evidence at trial did not support his
conviction for first-degree murder because there was
insufficient evidence of premeditation and deliberation. The
trial court found sufficient evidence of premeditation and
deliberation, in part, because Petitioner shot the victim as
he was running away. In support of his
sufficiency-of-the-evidence claim, Petitioner relies on the
post-trial affidavit of the medical examiner, Dr. Kilak
Kesha, who states in his affidavit that,
[b]ased on the entrance wound, it is unlikely that the
deceased was running away from the person who shot him when
he was struck by the bullet. The bullet entered the side of
Pet. for Writ of Habeas Corpus, Affidavit of Kilak Kesha,
M.D., Assistant Medical Examiner (Docket No. 1, Page ID 47).
Michigan Court of Appeals determined on review of
Petitioner's claim that the prosecution presented
sufficient evidence to prove beyond a reasonable doubt that
Petitioner intentionally shot and killed the victim. The
Court of Appeals concluded that the evidence was sufficient
to prove first-degree murder.
Clearly Established Supreme Court Precedent
Process Clause of the United States Constitution
“protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In
re Winship, 397 U.S. 358, 364 (1970). Following
Winship, the critical inquiry on review of a
challenge to the sufficiency of the evidence supporting a
criminal conviction is
whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt. But this inquiry
does not require a court to “ask itself whether
it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Instead,
the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. This
familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)
(internal citations and footnote omitted) (emphases in
Supreme Court has “made clear that Jackson
claims face a high bar in federal habeas proceedings because
they are subject to two layers of judicial deference.”
Coleman v. Johnson, 566 U.S. 650, 651 (2012)
(per curiam). First, it is the responsibility of the
jury to decide what conclusions should be drawn from the
evidence admitted at trial. Id. (quoting Cavazos
v. Smith, 565 U.S. 1, 2 (2011) (per curiam)).
“And second, on habeas review, ‘a federal court
may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the
federal court disagrees with the state court. The federal
court instead may do so only if the state court decision was
‘objectively unreasonable.' ” Id.
(quoting Cavazos, 565 U.S. at 2); see also
Tanner v. Yukins, 867 F.3d 661, 672 (6th Cir. 2017)
(explaining that “two layers of deference apply [to a
sufficiency-of-the-evidence claim], one to the jury verdict,
and one to the state appellate court”), cert.
denied, No. 17-729, __ S.Ct. __, 2018 WL1369141 (U.S.
Jackson standard “must be applied with
explicit reference to the substantive elements of the
criminal offense as defined by state law.”
Jackson, 443 U.S. at 324 n. 16. The Michigan Court
of Appeals explained the elements of first-degree,
premeditated murder as:
“(1) the intentional killing of a human (2) with
premeditation and deliberation.” People v.
Bennett,290 Mich.App. 465, 472; 802 N.W.2d 627 (2010).
Premeditation means “to think about beforehand, ”
and deliberation means “to measure and evaluate the
major facets of a choice or problem.” People v.
Plummer,229 Mich.App. 293, 300; 581 N.W.2d 753 (1998).
Premeditation and deliberation “may be inferred from
the circumstances surrounding the killing.” People
v. Anderson,209 Mich.App. 527, 537; 531 N.W.2d 780
(1995). “Premeditation may be established through
evidence of (1) the prior relationship of the parties, (2)
the defendant's actions before the killing, (3) the
circumstances of the killing itself, and (4) the
defendant's conduct after the ...