United States District Court, E.D. Michigan, Southern Division
Patricia T. Morris United States Magistrate Judge.
OPINION AND ORDER DENYING THE AMENDED HABEAS CORPUS
PETITION DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING
LEAVE TO APPEAL IN FORMA PAUPERIS
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.
matter has come before the Court on petitioner Billy Gene
Drake's pro se amended petition for the writ of habeas
corpus under 28 U.S.C. § 2254. The Petition challenges
Petitioner's state convictions for First-Degree Murder,
Mich. Comp. Laws §750.316(1)(a), Assault with Intent to
Commit Murder, Mich. Comp. Laws § 750.83, and Possession
of a Firearm During the Commission of a Felony (felony
firearm), Mich. Comp. Laws § 750.227b. Petitioner
alleges as grounds for habeas relief that his trial and
appellate attorneys were ineffective and that the trial
court's rulings on the availability of a witness and a
request for a jury instruction were erroneous. None of these
claims warrant habeas relief. Accordingly, the Petition will
charges against Petitioner arose from two shootings in Port
Huron, Michigan on June 17, 2010. As explained by the state
court, the shootings
claimed the life of Chester Chapman and injured Chester's
cousin, Jerry Chapman. The shootings occurred a few hours
after an acquaintance of defendant, Travis [Watson], was
involved in an argument with Jerry's brother, Terry
Chapman. The Chapman family was preparing to leave a family
member's residence when defendant and Travis walked
toward the residence from opposite directions. Witnesses
testified that a verbal argument ensued between Travis and
Terry, at which point Travis called defendant over to the
residence and instructed him to “do it.” Although
defendant had the gun pointed at another family member's
head, Chester and Jerry were both shot. Chester died a short
time later as a result of the shooting.
People v. Drake, No. 303941, 2012 WL 2335343, at *1
(Mich. Ct. App. June 19, 2012).
was tried before a jury in St. Clair County Circuit Court.
His defense was that he was in Detroit at the time of the
shootings. On March 11, 2011, the jury found Petitioner
guilty, as charged, of First-Degree Murder, Assault with
Intent to Commit Murder, and Felony Firearm. On April 13,
2011, the trial court sentenced Petitioner to two years in
prison for the felony-firearm conviction, followed by
concurrent terms of life imprisonment for the murder
conviction and forty to eighty years in prison for the
appealed his convictions as of right, arguing that (1) his
trial attorney was ineffective for failing to object to
hearsay, (2) the trial court erroneously denied his request
for a jury instruction on Manslaughter, and (3) the trial
court deprived him of his right to confront a witness by
ruling that a witness was unavailable. The Michigan Court of
Appeals rejected Petitioner's claims and affirmed his
convictions in an unpublished, per curiam opinion. See
id. Petitioner raised the same issues in an
application for leave to appeal in the Michigan Supreme
Court. On December 26, 2012, the Michigan Supreme Court
denied leave to appeal. See People v. Drake, 493
Mich. 919; 823 N.W.2d 598 (2012) (table).
October 9, 2013, Petitioner filed his first federal habeas
corpus petition. He claimed that: (1) trial counsel was
ineffective for failing to investigate and present a
manslaughter defense instead of an alibi defense; (2) the
trial court erroneously refused to re-read testimony to the
jury during its deliberations; (3) trial counsel was
ineffective for failing to present an expert witness on
Deoxyribonucleic Acid (DNA); and (4) appellate counsel was
ineffective for failing to present these issues to the
Michigan Court of Appeals during Petitioner's appeal of
right. This Court summarily dismissed the petition without
prejudice because Petitioner had failed to exhaust state
remedies for his claims. See Drake v. Rivard, No.
2:13-cv-14281 (E.D. Mich. Oct. 28, 2013).
subsequently raised his unexhausted claims in a motion for
relief from judgment in the state trial court. While the
post-conviction motion was pending in state court, Petitioner
commenced this action. See Dkt. No. 1. In his habeas
petition, he raised the three issues that he presented to the
state court on direct appeal. In a separate motion, he moved
to hold his habeas petition in abeyance while he continued to
pursue state remedies. See Dkt. No. 3. On July 9, 2014, the
Court granted Petitioner's motion for a stay and closed
this case for administrative purposes. See Dkt. No. 8.
state trial court subsequently denied Petitioner's motion
for relief from judgment because Petitioner could have raised
his claims about trial counsel in the appeal of right and he
failed to show that appellate counsel was ineffective for not
raising the claims on appeal. The state court also found no
merit in Petitioner's claims. See People v. Drake,
No. 10-002434-FC (St. Clair Cty Cir. Ct. Jan. 22, 2015).
appealed the trial court's decision to the Michigan Court
of Appeals, which denied leave to appeal for failure to
establish entitlement to relief under Michigan Court Rule
6.508(D). Specifically, the Court of Appeals stated that
Petitioner could have raised his claims previously and failed
to establish “good cause” for not doing so and
actual prejudice from the irregularities alleged. See
People v. Drake, No. 327099 (Mich. Ct. App. June 18,
2015). On May 24, 2016, the Michigan Supreme Court likewise
denied leave to appeal under Michigan Court Rule 6.508(D).
See People v. Drake, 499 Mich. 926; 878 N.W.2d 840
30, 2016, Petitioner returned to this Court with an Amended
Habeas Corpus Petition (Dkt. No. 9) and a Motion to Re-Open
this Case (Dkt. No. 11). The Amended Petition alleges as
grounds for relief the three claims that Petitioner presented
to the state court on direct appeal and the three claims that
he raised in his state-court motion for relief from judgment
and subsequent appeal. The Court granted Petitioner's
Motion and re-opened this case. See Dkt. No. 15.
Thomas Mackie argues in his Response to the Amended Petition
that Petitioner's claims are procedurally defaulted,
time-barred, meritless, or not cognizable on habeas review.
See Dkt. No. 19. Petitioner replies that all of his claims
are properly before the Court. See Dkt. No. 21.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) requires habeas petitioners who
challenge “a matter ‘adjudicated on the merits in
State court' to show that the relevant state court
‘decision' (1) ‘was contrary to, or involved
an unreasonable application of, clearly established Federal
law,' or (2) ‘was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceedings.'” Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018) (quoting 28 U.S.C.
§ 2254(d)). “[A] federal habeas court may not
issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable.” Williams v. Taylor, 529 U.S.
362, 411 (2000). “AEDPA thus imposes a ‘highly
deferential standard for evaluating state-court rulings,'
Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and
‘demands that state-court decisions be given the
benefit of the doubt,' Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam).” Renico v.
Lett, 559 U.S. 766, 773 (2010).
state court's determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded
jurists could disagree' on the correctness of the state
court's decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of
habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on his or her claim
“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.
Ineffective Assistance: Failure to Object to Alleged
Watson voluntarily reported to the police one day after the
shooting and subsequently cooperated with the police. He did
not testify at Petitioner's trial, but Sergeant Joseph
Platzer, the lead investigator on the case, testified that
the information Travis provided to the police during an
interview “was consistent with the information that
[the police] obtained during [their] investigation.”
See 3/8/11 Trial Tr., at 976 (Dkt. No. 20-10, p. 41 (Pg. ID
736). Petitioner alleges that his trial attorney should have
objected to this testimony because Sergeant Platzer's
testimony about a non-testifying co-defendant's statement
was inadmissible hearsay. Petitioner also claims that
Sergeant Platzer's testimony violated his right of
Michigan Court of Appeals rejected Petitioner's claim on
direct appeal because the officer's testimony was not
specific enough to fall within the definition of hearsay and,
therefore, any objection would have been overruled. The Court
of Appeals concluded that defense counsel was not ineffective
for failing to advance a futile argument.
Clearly Established Federal Law
prevail on his ineffective-assistance-of-counsel claim,
Petitioner must show “that counsel's performance
was deficient” and “that the deficient
performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). The
deficient-performance prong “requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id.
“[T]he defendant must show that counsel's
representation fell below an objective standard of
reasonableness. Id. at 688.
“prejudice” prong “requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.” Id. at 687. A defendant must
demonstrate “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
standards created by Strickland and § 2254(d) are both
‘highly deferential,' and when the two apply in
tandem, review is ‘doubly' so.” Richter, 562
U.S. at 105 (internal and end citations omitted). “When
§ 2254(d) applies, the question is not whether
counsel's actions were reasonable. The question is