United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) GRANTING A CERTIFICATE OF APPEALABILITY
WITH RESPECT TO PETITIONER'S THIRD CLAIM, AND (3) DENYING
A CERTIFICATE OF APPEALABILITY WITH RESPECT TO
PETITIONER'S REMAINING CLAIMS
CARAM STEEH UNITED STATES DISTRICT JUDGE.
a habeas case filed by a Michigan prisoner under 28 U.S.C.
§ 2254. Petitioner Bryant Lamont Royster was
convicted after a bench trial in the Wayne Circuit Court of
first-degree felony murder, Mich. Comp. Laws § 750.316.
Petitioner was sentenced to life imprisonment.
petition raises four claims: (1) Petitioner's right to a
public trial was violated when the courtroom was cleared of
members of the public during his preliminary examination, (2)
Petitioner was denied adequate notice of the charges because
the felony information omitted the element of malice from the
felony murder charge, (3) Petitioner's right to be
personally present, his right to confront witnesses, and his
right to counsel were violated during two mid-trial visits to
the crime scene, and (4) Petitioner was denied the effective
assistance of counsel by his attorney's failure to
investigate prosecution witness Deonte Smith prior to trial.
Court finds that Petitioner's claims are without merit or
barred by his state court procedural defaults. Therefore, the
petition will be denied. The Court will, however, grant a
certificate of appealability with respect to Petitioner's
third claim, but it will deny a certificate of appealability
with respect to his other claims.
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). See Wagner v.
Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case is the latest and-with life sentences-now the last
of these young defendants' routine disrespect for the
rule of law. The facts of this case stretch back to the
evening of September 24, 2010. On that day, Edwards was free
on a GPS tether to “settle [his] affairs, ”
having been sentenced just the day before for a prior armed
robbery conviction. Apparently, those affairs included a trip
to the Eastland Mall with Royster and two acquaintances,
Devante Smith and Jaisaun Holt.
Around 8:30 p.m., the decedent, Cedell Leverett, was sitting
in the driver's seat of his Mercedes parked in the valet
area of Eastland Mall. Another car was parked nearby. Deborah
Gaca observed Edwards get out of the other car, and run
towards the valet area in a crouched position. Edwards was
holding a gun. Royster, who was standing outside the
driver's side of the other car, yelled, “Pop him,
pop that mother f***** good.” Edwards then fired four
shots into the Mercedes at close range, killing Leverett.
Edwards ran back to the other car, which was backing out, and
fled the scene. Police subsequently arrived and found over
$3, 000 in the decedent's pocket. Corroborating
Edwards's and Royster's presence at the Eastland Mall
during this time were a surveillance video and Edwards's
Holt confirmed in a police interview (which he later
disavowed at trial) that Edwards intended “to get [the
decedent's] glasses and he hit him, ” before
Royster whisked them away in the car. Although Holt also
elaborated that Edwards claimed to have shot the decedent
after the decedent brandished a firearm, police found no
weapons in or around the Mercedes or on the decedent's
person during their investigation immediately after the
shooting. Devante claimed the others left the Eastland Mall
Deonte Smith, Devante's brother, provided further
information regarding the shooting during a police interview.
Deonte stated that he saw defendants, Holt, and his brother
(Devante) at a high school football game sometime after the
shooting. At the game, “they” told Deonte they
had seen a man walking around the Eastland Mall with a
diamond watch and $12, 000 to $15, 000 cash in his pocket.
Holt kept tabs on this man and reported to Edwards by phone.
Edwards “bragged” to Deonte that he tracked the
man outside and tried to rob the man of his watch, but
because the man was reaching for something, Edwards shot him.
Others at the football game told Edwards he was stupid for
not getting anything.
About a week after the shooting, a security officer at the
Northland Mall in Southfield saw Edwards toss a gun under an
SUV in the parking lot while fleeing a fight. Edwards was
arrested at the scene. Royster was apparently arrested
shortly thereafter. Subsequent tests of the gun revealed that
this weapon had fired the shell casings and bullet fragments
found in and around the Mercedes and inside the decedent at
the Eastland Mall one week earlier. In addition, police
interviewed another individual who had previously accompanied
the decedent on the day of his death and whom the police
found at the scene of the Eastland Mall after the shooting.
That individual surrendered a diamond watch and sunglasses.
Notably, the decedent's daughter saw the decedent wearing
a diamond watch and sunglasses earlier that same day.
The case subsequently proceeded to trial at the conclusion of
which the court made its findings on the record. As noted,
the court acquitted defendants of first-degree premeditated
murder, but found them guilty of the offenses at issue.
Defendants were sentenced, and this appeal followed.
People v. Royster, 2015 WL 1069275, at *1-2 (Mich.
Ct. App. March 10, 2015).
his conviction and sentence, Petitioner filed an appeal of
right. His appellate counsel filed a brief on appeal, raising
three claims, the third of which forms part of his third
I. The trial court's finding of guilty of felony murder
must be reversed when defendant was merely present at the
mall where the murder occurred.
II. Defendant was denied due process to a fair trial when he
was denied the effective assistance of counsel when trial
counsel failed to subpoena exculpatory witnesses.
III. Defendant was denied the right of confrontation and the
right to a fair trial when the trial court observed the scene
of the crime without the parties present and used information
gathered from the scene to find defendant guilty.
also filed a supplemental pro se brief raising an
additional five claims:
I. Defendant Royster was deprived of his structural right to
a public trial when the District Court judge expelled the
members of the public in attendance at the preliminary
examination at the end of business hours and proceeded to
conduct the preliminary examination in the complete absence
of the general public and ultimately secured testimony from
Deonte Smith. This error seriously affected the fairness,
integrity, and public reputation of the judicial proceedings
because the preliminary examination testimony of Deonte Smith
which was secured in violation of defendant Royster's
Sixth Amendment right to a public trial was ultimately
introduced at the trial itself and relied upon by the trier
of fact to convict defendant Royster of felony murder.
II. Reversal is required where the trial court failed to
comply with the requirements of MCR 6.402(B), to the extent
that the trial court judge completely neglected to ascertain
“by personally addressing the defendant, whether
defendant Royster voluntarily chose to give up his Sixth
Amendment right to trial by jury, and given the strong
presumption against waiver of fundamental constitutional
rights the waiver cannot be presumed to be voluntary from a
III. Reversal is required due to the violation of Defendant
Royster's Sixth and Fourteenth Amendment right to
adequate notice of charge, where defendant Royster was
charged with felony murder, but the felony Information and
the statute itself omitted the essential mens rea of
malice element, leaving defendant Royster completely unaware
of the prosecution's duty to prove this element which
hindered his ability to prepare to disprove it.
IV. Defendant Royster was deprived of his right to be present
during all critical stages of the proceedings where he was
excluded from the viewing of the alleged scene of the crime
over his objection, without adequate justification for his
exclusion, denied his right to confrontation when one of the
star witnesses was permitted to attend the viewing of the
alleged scene of the crime and permitted to provide
additional testimony in defendant Royster's absence,
completely deprived of his Sixth Amendment right to counsel
during a critical stage of the proceedings when the trial
court judge who was also the trier of fact reported to the
alleged scene of the crime, for a second time, without
defendant Royster, his attorney, or the prosecutor and relied
on evidence that he gathered during his solo viewing to
convict defendant Royster.
V. Defendant Royster was deprived of his right to the
effective assistance of counsel based on his attorney's
failure to: (1) object to the admission of transcribed
testimony which was secured in violation of the Sixth
Amendment right to a public trial, (2) counsel failed to
object to the trial court judge's failure to inquire into
the voluntariness of the waiver of trial by jury, and (3)
counsel's failure to object to the defective felony
first pro se claim now forms his first habeas claim.
His third pro se claim is now his second habeas
claim. His fourth pro se claim makes up the rest of
his third habeas claim. Finally, Petitioner's fourth
habeas claim asserts a different factual-the failure to
investigate Deonte Smith prior to trial-then the one
presented to the Michigan Court of Appeals.
Michigan Court of Appeals affirmed Petitioner's
convictions in an unpublished opinion. Royster, 2015
WL 1069275. Petitioner subsequently filed an application for
leave to appeal in the Michigan Supreme Court, raising the
same claims 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. Royster, 870 N.W.2d 67 (Mich.
Oct. 15, 2015)(Table).
Standard of Review
U.S.C. § 2254(d)(1) curtails a federal court's
review of constitutional claims raised by a state prisoner in
a habeas action if the claims were adjudicated on the merits
by the state courts. Relief is barred under this section
unless the state court adjudication was “contrary
to” or resulted in an “unreasonable application
of” clearly established Supreme Court law.
state court's decision is ‘contrary to' . . .
clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court
cases]' or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[this] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per curiam), 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.
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). “Section
2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction
through appeal. . . . As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Richter, 562 U.S. at 103 (internal quotation
first claim asserts that his right to a public trial was
violated when the state district judge cleared members of the
public from the courtroom during the first day of the
preliminary examination. Petitioner claims that the error was
prejudicial because after the courtroom was cleared witness
Deonte Smith provided what Petitioner claims is the only
evidence that the murders were perpetrated during the course
of a robbery. Respondent asserts in part that the claim is
procedurally defaulted because no contemporaneous objection
was made to the closure of the courtroom.
Sixth Amendment to the United States Constitution guarantees
that a criminal defendant, “shall enjoy the right to a
. . . public trial.” U.S. Const. Amend. VI. This right
is made applicable to the States through the Fourteenth
Amendment. Presley v. Georgia, 558 U.S. 209, 212
(2010) (citing In re Oliver, 333 U.S. 257 (1948)).
“The requirement of a public trial is for the benefit
of the accused; that the public may see he is fairly dealt
with and not unjustly condemned, and that the presence of
interested spectators may keep his triers keenly alive to a
sense of their responsibility and to the importance of their
functions.” Id., at 270 n.25 (quotation marks
and citation omitted). “In addition to ensuring that
judge and prosecutor carry out their duties responsibly, a
public trial encourages witnesses to come forward and
discourages perjury.” Waller v. Georgia, 467
U.S. 39, 46 (1984).
Waller Court identified four factors a court must
consider, and findings a court must make, before excluding
members of the public from the courtroom: (I)“the party
seeking to close the hearing must advance an overriding
interest that is likely to be prejudiced, ” (ii)
“the closure must be no broader than necessary to
protect that interest, ” (iii) “the trial court
must consider reasonable alternatives to closing the
proceeding, ” and (iv) “it must make findings
adequate to support the closure.” Id. at 48.
many other constitutional rights held by the criminally
accused, however, the right to a public trial may be
forfeited or waived if not asserted. See Levine v. United
States, 362 U.S. 610, 619 (1960) (“The continuing
exclusion of the public in this case is not to be deemed
contrary to the requirements of the Due Process Clause
without a request having been made to the trial judge to open
the courtroom at the final stage of the proceeding, thereby
giving notice of the claim now made and affording the judge
an opportunity to avoid reliance on it. This was not a case
of the kind of secrecy that deprived petitioner of effective
legal assistance and rendered irrelevant his failure to
insist upon the claim he now makes. Counsel was present
throughout, and it is not claimed that he was not fully aware
of the exclusion of the general public.”).
Sixth Circuit explained:
While we agree that the right to a public trial is an
important structural right, it is also one that can be waived
when a defendant fails to object to the closure of the
courtroom, assuming the justification for closure is
sufficient to overcome the public and media's First
Amendment right to an open and public trial proceeding. See
Freytag v. Commissioner, 501 U.S. 868, 896 (1991)
(“[T]he Sixth Amendment right to a trial that is
‘public,' provide[s] benefits to the entire society
more important than many structural guarantees; but if the
litigant does not assert [it] in a timely fashion, he is
foreclosed.”) (collecting cases); see also Peretz
v. United States, 501 U.S. 923, 936-37 (1991) (citing
Levine v. United States, 362 U.S. 610, 619 (1960)).
Because [the habeas petitioner] failed to object to the
closure, his claim is procedurally defaulted unless he can
show cause and prejudice for the default. Coleman v.
Thompson, 501 U.S. 722, 750 (1991).”
Johnson v. Sherry, 586 F.3d 439, 444 (6th Cir.
neither counsel for Petitioner nor counsel for his
co-defendant objected to the removal of members of the public
during the preliminary examination.
record indicates that for about a half-hour during the first
day of the preliminary examination, proceedings were
interrupted by repeated disturbances by members of the
public, prompting the court to remove members of the public
from the hearing. In the midst of an otherwise unremarkable
examination of a witness by the prosecutor during the
preliminary examination, there appears an alarming entry in
the record: “(At 3:54 p.m. to 3:55 p.m., riot in
courtroom).” Dkt. 6-3, at 76. The next fifteen pages of
the record describe the tumult in the courtroom and the
court's efforts to retain control over the proceedings:
• The court warns anyone that is standing that they will
be arrested. Id. at 76.
• A police officer orders an unidentified man out of the
• The court warns the people in the courtroom about the
dangers of a mob mentality. Id. at 77.
• Two people leave the courtroom crying. Id.
• A member of the public accuses one of the defendants
of saying, “that's why that motherfucker
• A member of the public accuses one of the defendants
of spitting on a girl in the courtroom. Id.
• The record indicates, “(At 3:59 p.m. to 4:00
p.m., another riot in courtroom and in hallway).”
Id. at 78-79.
• The court orders one side of the gallery, apparently
the side there in support of the defendants, ...