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Miller v. Rivard

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

May 31, 2018

STEVE RIVARD, Respondent.



         Petitioner 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.

         The 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.

         I. BACKGROUND

         Petitioner 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).

         On 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.


         Pursuant 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; 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)(1) and (2).

         “[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. 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).

         “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) (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.


         A. Claim One: Insufficient Evidence

         Petitioner 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 the arm.

Pet. for Writ of Habeas Corpus, Affidavit of Kilak Kesha, M.D., Assistant Medical Examiner (Docket No. 1, Page ID 47).

         The 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.

         1. Clearly Established Supreme Court Precedent

         The Due 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 original).

         The 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. 2018).

         2. Application

         The 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). ‚ÄúPremeditation 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 ...

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