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Rymes v. McCullick

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

June 22, 2018

DEVONTE ANTONIO RYMES, Petitioner,
v.
MARK MCCULLICK, Respondent.

          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.

         Devonte 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.

         Rymes 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.

         BACKGROUND

         Rymes's 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 incident.
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 clothing.
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 omitted).

         Following 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).

         Rymes then filed his federal habeas petition. He raises the following claims:

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 reasonable doubt.
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.

         Respondent 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 merit.

         STANDARD OF REVIEW

         Rymes 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 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 ...

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