United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
Antonio Rymes is serving time in a Michigan prison after
being convicted by a Wayne County Circuit Court jury. The
jury found him guilty of the following crimes: armed robbery
(Mich. Comp. Laws § 750.529), assault with intent to
commit murder ("AWIM") (Mich. Comp. Laws §
750.83), being a felon in possession of a firearm (Mich.
Comp. Laws § 750.224f), resisting or obstructing a
police officer (Mich. Comp. Laws § 750.81d(1)), and
possessing a firearm during the commission of a felony (Mich.
Comp. Laws § 750.227b). The court sentenced him as a
second habitual offender to concurrent terms of 30 to 50
years' imprisonment on the armed robbery and AWIM
convictions, a concurrent term of 5 to 7 and-one-half
years' imprisonment on the felon in possession
conviction, concurrent terms of 2 to 3 years'
imprisonment on the resisting or obstructing convictions, and
a consecutive term of 2 years' imprisonment on the felony
firearm conviction in 2013.
now petitions the Court for a writ of habeas corpus under 28
U.S.C. § 2254. He raises claims concerning the
sufficiency of the evidence, the conduct of the prosecutor,
and the effectiveness of trial counsel. For the reasons
below, the Court will deny his petition with prejudice, deny
him a certificate of appealability, and deny him leave to
proceed in forma pauperis on appeal.
convictions arise from an armed robbery and police chase on
March 25, 2013 in Detroit, Michigan. The Michigan Court of
Appeals described the relevant facts, which are presumed
correct on habeas review. See 28 U.S.C. § 2254(e)(1);
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
They are as follows:
On March 25, 2013, at approximately 11:30 p.m., Brandon Foote
was walking home alone in the middle of Queen Street in
Detroit, Michigan. Detroit Police Officers Johnny Fox and
Joshua Christian were on patrol in the area at the time.
Officer Fox was wearing a thermal black shirt and a Polo
black shirt that stated "'Police'" on the
front and back, and a black jacket with his silver police
badge clipped to it. The black jacket was open so that the
word "Police" on the Polo shirt would have been
visible. Officer Christian was dressed similarly, except that
he was wearing a black hooded sweatshirt with the word
"Police" on the front and the back of the
sweatshirt instead of a black jacket. The officers were
driving a fully marked police car on the night of the
As Foote approached the intersection of Queen and Alma, a car
drove past him. He looked back twice when he heard a car door
shut, but he did not see anyone, when he looked back a third
time, approximately 10 seconds after hearing the car door
slam, Foote saw defendant standing behind him and pointing a
gun approximately 8 to 10 inches away from him. Defendant was
at least 1 ½ feet away from Foote and stated,
"'You know what time it is. Run your
pockets.'" Foote could see the tip of the gun, and
reached into the right pocket of his jacket to hand his cell
phone over to defendant. Foote intentionally tripped himself
to make himself fall so that defendant would not shoot him.
Foote sat down, leaned back and reached toward defendant to
give him the cell phone.
During the same time period, Officers Fox and Christian were
walking to their police car on Queen when they saw Foote
walking in the middle of the street. A car passed them and
when the vehicle stopped, defendant got out of the passenger
side of the vehicle. Officer Fox saw defendant run toward
Foote with his arm extended. Officer Christian saw defendant
point a silver handgun at Foote. The officers believed that
an armed robbery was taking place, so they proceeded toward
the scene of the robbery. Officer Fox took out his gun and
stated over his police radio that there was an armed robbery
in the area of Alma and Queen. By this time, Foote had fallen
to the ground and defendant was standing over him, Officer
Fox was headed toward them on the sidewalk while Officer
Christian ran southbound in the middle of Queen. As they
approached defendant, Officer Christian told defendant to
drop the gun or stop. Christian testified that he told
defendant he and Fox were police officers. Foote testified
that he heard a police officer state "Freeze, don't
shoot," but he never heard them identify themselves as
police officers, though he could tell that they were by their
As soon as defendant was given the command by the police, he
began to run away while turning his body and firing a shot at
Officers Christian and Fox. By this time, defendant was 15 to
19 feet away from Officer Christian. According to Officer
Fox, defendant did not look at the officers before firing the
gunshots, Officer Christian believed he was firing at him.
The officers returned gunfire. Defendant fired a second
gunshot toward the officers, which prompted Officer Christian
to fire three more gunshots. Defendant then fell to the
ground, having been shot by the officers in the buttocks and
chest. The officers immediately secured defendant's
handgun, a .40 caliber Smith and Wesson. Forensic evidence
failed to identify defendant's DNA on the handgun, but
did identify some of the bullets recovered from the scene as
coming from defendant's handgun.
People v. Rymes, No. 320224, 2015 WL 2412369, *1-2
(Mich. Ct. App. May 19, 2015) (unpublished) (footnotes
his convictions and sentencing, Rymes filed an appeal of
right with the Michigan Court of Appeals raising several
claims of error, including those presented on habeas review.
The court denied relief on those claims and affirmed his
convictions. Id. at *2-6. Rymes also filed an
application for leave to appeal with the Michigan Supreme
Court, which was denied in a standard order. People v.
Rymes, 498 Mich. 921, 871 N.W.2d 198 (2015).
then filed his federal habeas petition. He raises the
I. The assault with intent to murder convictions must be
reversed where the prosecution's evidence was
insufficient to prove beyond a reasonable doubt that he
intended to commit murder; alternatively, one of the two
assault with intent to murder counts must be vacated where
the evidence does not support the conviction beyond a
II. He was denied his state and federal constitutional rights
to due process of law and a fair trial guaranteed him through
the Sixth and Fourteenth Amendments and const. 1963, Art. 1,
§§17, 20 through improper, burden shifting argument
of the prosecutor. Further, trial counsel's failure to
object deprived him of his Sixth Amendment right to the
effective assistance of counsel.
has filed an answer to the petition contending that it should
be denied because the prosecutorial misconduct claim is
barred by procedural default and all of the claims lack
filed his petition in 2017, so the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) governs. See
Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA
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 ...