United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING
PERMISSION TO APPEAL IN FORMA PAUPERIS
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner Edward Winston's
amended petition for a writ of habeas corpus brought under 28
U.S.C. § 2254 [docket entry 17]. Petitioner was
convicted after a bench trial in Wayne County Circuit Court
of two counts of second-degree murder, Mich. Comp. Laws
§ 750.316, and one count of possession of a firearm
during commission of a felony. Mich. Comp. Laws 750.227b.
Petitioner was sentenced to two concurrent terms of 26 to 50
years for the murder convictions and a consecutive 2-year
term for the firearm conviction.
petition asserts six grounds for relief: (1) the trial court
violated petitioner's right to confrontation when it
admitted a statement made to police by an eyewitness who was
murdered prior to trial; (2) appellate counsel was
ineffective for failing to raise his third through sixth
claims on direct appeal; (3) trial counsel was ineffective
for failing to call defense witnesses, (4) the trial court
erred in failing to warn a prosecution witness regarding his
right against self-incrimination, (5) the trial court erred
in failing to appoint an expert witness for petitioner, and
(6) the evidence admitted at trial was insufficient to
support petitioner's convictions.
claims are meritless or are barred by his procedural default
in state court. Therefore, his petition will be denied. The
Court will also deny a certificate of appealability and
permission to appeal in forma pauperis.
Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct
pursuant to 28 U.S.C. § 2254(e)(1):
Defendant-Winston's conviction arises out of his
commission of a gang-related shooting that left two people
[Francois Fields and Felcia Anderson] dead and two others
[Mack Law and Pierre Pulley] seriously injured from multiple
gunshot wounds. Several neighbors identified two individuals,
defendant and Mark Moore, as they ran from the scene. A few
minutes later, other witnesses placed Moore and defendant at
a local drug house; both were wearing dark clothes and
hoodies. Moore had an AR 15 assault rifle and defendant had a
10 millimeter Glock handgun. Several weeks later, defendant
admitted to [fellow A-Team gang member Charles] Spivey that
he and Moore had murdered Fields. Soon after, Moore turned
himself in. Defendant was apprehended in Arizona.
One of the neighbors who witnessed the defendants running
from the scene was Juanita Steward. She was Moore's aunt,
and her son was defendant's best friend. Defendant had
wanted to run into Steward's house, but she told him to
keep running. At first, she did not want to give the police
any information; she was afraid that the defendants would
harm her. The police learned that she had valuable
information about the murders and issued an investigative
subpoena. At the interview, she was very nervous about
whether Moore or defendant would find out that she had
identified them as the killers. Because she was unavailable
to testify, the prosecution moved to introduce the statement
under oath that Steward had given to the police. She was
unavailable because she had been murdered before the trial.
The prosecution alleged that Steward had been murdered by
Moore and defendant to keep her from testifying against them
at trial. At an evidentiary hearing, Terrance, Steward's
son, testified that he had received warnings from defendant
regarding his mother. Defendant also asked Terrance what his
mother had seen and whether she had talked to police.
Steward's brother and her friend also testified that
Steward had received threats from Moore and Defendant. The
trial court granted the prosecution's motion over the
objection of Defendant's counsel.
People v. Winston, 2011 WL 1377074, at *1-2 (Mich.
Ct. App. April 12, 2011).
his conviction, petitioner filed an appeal of right. His
appointed appellate counsel raising the following single
claim on appeal:
I. Whether the trial court denied [Winston] his Sixth
Amendment right to confront his accuser when it admitted a
prior statement of unavailable witness Juanita Steward
erroneously holding that the statement was admissible under
Michigan Court of Appeals affirmed petitioner's
conviction in an unpublished opinion in April 2011.
Id. Petitioner then filed an application for leave
to appeal in the Michigan Supreme Court, raising the same
claim that he raised in the Michigan Court of Appeals. The
Michigan Supreme Court denied the application because it was
“not persuaded that the questions presented should be
reviewed.” People v. Winston, 804 N.W.2d 333
(Mich. 2011) (table decision).
January 2013, petitioner filed the instant petition for a
writ of habeas corpus, raising the claim he presented to the
state courts in his direct appeal. Petitioner also filed a
motion to stay the case so that he could return to the state
courts and pursue what are now his other five habeas claims.
The Court granted the motion and petitioner filed a motion
for relief from judgment in the state trial court, raising
his new claims. The trial court denied the motion for relief
from judgment because petitioner's claims ran afoul of
Mich. Ct. R. 6.508(d)(3) and were meritless.
then filed an application for leave to appeal those claims to
the Michigan Court of Appeals. The Michigan Court of Appeals
denied the delayed application for leave to appeal, finding
that petitioner alleged “grounds for relief that could
have been raised previously and he has failed to establish
good cause for failing to previously raise the issues, and
has not established that good cause should be waived. MCR
6.508(D)(3)(a).” Rule 5 Materials Ex. 12. Petitioner
then filed an application for leave to appeal in the Michigan
Supreme Court, but it was denied with citation to Rule
6.508(D). People v. Winston, 877 N.W.2d 728 (Mich.
2016) (table decision).
then returned to this case, filing a motion to lift the stay
and reopen the case and a motion to amend his petition to add
his second through sixth claims. The Court granted
petitioner's motion to reopen. Respondent responded to
the petition and petitioner replied to the response. The
matter is now ready for decision.
Standard of Review
28 U.S.C. § 2254(d)(1), if a state court considered the
petitioner's claims on the merits, the Court may not
grant relief unless the decision was contrary to or
unreasonably applied clearly established Supreme Court law.
“A state court's decision is ‘contrary
to' . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth'”
by the Supreme Court “or if it ‘confronts a set
of facts that are materially indistinguishable from a
[Supreme Court decision] and nevertheless arrives at
a'” different result. Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000)).
‘unreasonable application' prong of the statute
permits a federal habeas court to ‘grant the writ if
the state court identifies the correct governing legal
principle from [the Supreme] Court but unreasonably applies
that principle to the facts of petitioner's case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting
Williams, 529 U.S. at 413). However, even if the
Court believes that the state court erred, it cannot grant
relief “so long as ‘fairminded jurists could
disagree' on the correctness” of the decision.
Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). To obtain relief, a petitioner “must show that
the state court's ruling . . . 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 (internal
quotation omitted). Critically, § 2254(d) guards against
only the most “extreme malfunctions in the state
criminal justice systems, ” and it is “not a
substitute for ordinary error correction through
Admission of Murdered Eyewitness's ...