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Winston v. Nagy

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

June 14, 2018

EDWARD WINSTON, 658150, Petitioner,
v.
NOAH NAGY, [1] Respondent.

          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

         This 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.

         The 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.

         Petitioner's 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.

         I. Background

         The 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).

         Following 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 MRE 804(b).

         The 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).

         In 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.

         Petitioner 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).

         Petitioner 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.

         II. Standard of Review

         Under 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)).

         “[T]he ‘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 appeal.” Id.

         III. Analysis

         A. Admission of Murdered Eyewitness's ...


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