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Cunningham v. Bauman

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

May 31, 2018

DERRION CUNNINGHAM, Petitioner,
v.
CATHERINE S. BAUMAN, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          DENISE PAGE HOOD, CHIEF JUDGE, UNITED STATES DISTRICT COURT

         Petitioner, Derrion Cunningham, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is incarcerated at the Alger Maximum Correctional Facility in Munising, Michigan. He challenges his convictions for assault with a dangerous weapon, two counts of possession of a firearm by a felon, two counts of possession of a firearm during the commission of a felony, and carrying a concealed weapon, claiming that he received ineffective assistance of counsel. Respondent, through the Attorney General's Office, has filed an answer in opposition to the petition, arguing that Petitioner's ineffective assistance of counsel claim is meritless. For the reasons set forth below, the Court denies the petition and denies a certificate of appealability.

         I. BACKGROUND

         Petitioner's convictions arise from an April 28, 2018 attempted armed robbery involving Petitioner's neighbor, Kurby Nelson.

         Mr. Nelson testified at trial that he knew Petitioner as “DJ, ” who had lived three houses away from him for about a year and half. According to Mr. Nelson, in the early morning on April 28, 2012 while loading up his car before work, he was approached by a man wearing a navy blue bandana on the lower half of his face. He testified that the man pointed a dark handgun at him and ordered him to get in the car. Mr. Nelson refused, and he and the man began to struggle. During the struggle, the bandana was pushed up and Mr. Nelson recognized the assailant as DJ. After briefly thwarting the attacker, Mr. Nelson ran to his door and knocked loudly. DJ again ran up to him and managed to take his bag before Mr. Nelson's stepdaughter answered the door. Mr. Nelson revealed on cross-examination that his live-in girlfriend had recently had an affair with DJ.

         Mr. Nelson called the police soon after the April 28, 2012 incident. Two officers arrived and walked with Mr. Nelson to DJ's house. They did not find the missing bag and no one answered the door.

         Detroit police sergeant Robert Avery testified that he conducted surveillance on Petitioner's home. He noticed Petitioner, who matched the description of the man Mr. Nelson reported as the armed robber, walking out of his house and turning north. Sergeant Avery testified that Petitioner had a “bulge” in his pocket or waistband. He called for back-up, and when the additional officers arrived, Petitioner ran back toward his house. Detroit police officer Ryan Connor testified that when he came to the scene, Petitioner was running toward his house. When Petitioner failed to comply with Officer Connor's order to stop, Officer Connor chased him to the side door of the home, which led to a basement staircase. Officer Connor testified that he heard a “loud metallic thud” in the basement area. (ECF No. 8-3 at 27.) After detaining Petitioner, Officer Connor took the stairs to the basement and found a handgun near the staircase. Petitioner denies that the gun was his.

         After a two-day bench trial in Wayne County Circuit Court, Petitioner was convicted of assault with a dangerous weapon, two counts of possession of a firearm by a felon, two counts of possession of a firearm during the commission of a felony (“felony-firearm”), third offense, and carrying a concealed weapon. He was acquitted on the armed robbery and unlawful intent to imprison charges. On October 12, 2012, the trial court sentenced Petitioner to ten years for the felony-firearm offense and five years' probation for all other convictions.

         Petitioner filed an appeal of right in the Michigan Court of Appeals, asserting that trial counsel was ineffective in two ways: 1) by failing to sufficiently investigate the case; and 2) by failing to call witnesses. The Court of Appeals affirmed the conviction. People v. Cunningham, No. 313427, 2014 WL 3746503 (Mich. Ct. App. July 29, 2014).

         Thereafter, Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the same claim raised in the Michigan Court of Appeals along with two additional claims: 1) Officer Conner improperly paused to drink water during cross examination to cover his lying; and 2) officers lied about having a warrant to search his house. The Michigan Supreme Court denied leave to appeal. People v. Cunningham, 497 Mich. 954 (2015). Petitioner then filed the instant petition for habeas relief, asserting that his trial counsel was ineffective.

         II. STANDARD

         The petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). The AEDPA provides:

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 ...

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