United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS
ARTHUR J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE.
Bernard Smith, (“Petitioner”), confined at the
Cotton Correctional Facility in Jackson, Michigan, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application,
petitioner challenges his convictions for first-degree felony
murder, M.C.L.A. 750.316(b), and assault with intent to rob
while armed, M.C.L.A. 750.89. For the reasons that follow,
the petition for writ of habeas corpus is DENIED.
was convicted of the above offenses following a jury trial in
the Wayne County County Circuit Court. This Court recites
verbatim the relevant facts relied upon by the Michigan Court
of Appeals, which are presumed correct on habeas review
pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v.
Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant's convictions arose as the result of the death
of Annette Ralston. An autopsy revealed Ralston died of a
combination of multiple stab, incised, and blunt force
wounds, with the most immediate cause of death likely being a
severing of her left carotid artery. Defendant had been
acquainted with the victim for a period of a few weeks prior
to her death and he was often seen at her residence. The
victim's 15-year-old son and the victim's roommate
both testified that defendant was present in the victim's
home the evening before her body was discovered.
At trial, two witnesses familiar with defendant testified
that he had arrived at their home a few days after the
murder. At some point during their conversation, defendant
told both witnesses that he had done a very bad thing and
eventually admitted that he had killed a woman as part of a
robbery attempt. Both witnesses testified that defendant
provided details of the murder, including that he had used a
knife and had driven the victim's son to his foster home
prior to the murder. The latter assertion was confirmed by
the son at trial.
People v. Smith, No. 286701, 2009 WL 3837414, at * 1
(Mich. Ct. App. Nov. 17, 2009).
conviction was affirmed on appeal. Id., lv. den. 485
Mich. 1130, 779 N.W.2d 813 (2010).
filed a petition for writ of habeas corpus, which was held in
abeyance so that petitioner could return to the state courts
to exhaust additional claims.
post-conviction motion for relief from judgment was filed on
petitioner's behalf in the Wayne County Circuit Court.
The motion was denied by the trial court. People v.
Smith, No. 08-003328-01-FC (Wayne Cty.Cir.Ct., Nov. 12,
then filed a second motion for relief from judgment, which
was denied as an impermissibly filed successive motion for
relief from judgment pursuant to M.C.R. 6.502(G). People
v. Smith, No. 08-003328-01-FC (Wayne Cty.Cir.Ct., June
filed a motion for the state trial court to vacate its order
denying the first motion for relief from judgment and
reissuing its opinion denying his second motion for relief
from judgment. The judge denied the motion. People v.
Smith, No. 08-003328-01-FC (Wayne Cty.Cir.Ct., Nov. 2,
Michigan appellate courts denied petitioner leave to appeal.
People v. Smith, No. 331894 (Mich.Ct.App. June 27,
2016); lv. den. 501 Mich. 901, 902 N.W.2d 419
January 10, 2018, the Court granted petitioner's motion
to lift the stay and granted his motion to amend the
petition. Petitioner seeks habeas relief on the following
I. Petitioner was denied his federal and state constitutional
right to a fair trial by jury when the jurors were affected
by extraneous information.
II. The state trial judge deprived Petitioner of his federal
and state constitutional right to a properly instructed jury.
III. There was insufficient evidence to support
Petitioner's convictions for felony-murder and assault
with intent to rob while armed.
IV. The state trial judge deprived Petitioner of his rights
to due process and an impartial jury when she allowed the
jurors to submit questions for witnesses during the course of
V. The suppression of impeachment evidence favorable to
Petitioner's defense violated due process.
VI. Based on newly discovered evidence, there was
insufficient evidence to sustain Petitioner's convictions
for felony-murder and assault with intent to rob while armed.
VII. Habeas issues V & VI were not raised during
Petitioner's direct appeal because he had ineffective