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 Demetrius William Edwards 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. Edwards, 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 an amended brief on
appeal, raising what now form his four habeas claims among
the six claims raised:
I. Defendant Edwards 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 affecting 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 Edwards'
Sixth Amendment right to a public trial was ultimately
introduced at the trial itself and relied upon by the trier
II. Reversal is required where the trial court failed to
comply with MCR 6.402(b) by neglecting “by personally
addressing the defendant” to ascertain, whether
defendant Edwards had voluntarily chosen to give up his Sixth
Amendment right to trial by jury, given the strong
presumption against waiver of fundamental constitutional
rights and that waiver cannot be presumed to be voluntarily
from a silent record.
III. The felony murder conviction must be vacated where the
trial court judge's factual findings were fundamentally
inconsistent with the guilty of felony murder verdict, given
that the trial court judge acquitted defendant Edwards of
felony murder when he concluded that there was no proof of
malice and when he declared that he did.
IV. Violation of defendant Edwards' Sixth and Fourteenth
Amendment right to adequate notice of charge require
reversal, where defendant Edwards was charged with felony
murder, but the felony information and the statute itself
omitted the essential mens rea of malice element,
leaving Defendant Edwards completely unaware of the
prosecution's duty to prove this element and hindering
his ability to prepare to disprove it.
V. Defendant Edwards was (1) 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; (2) 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 Edwards' absence; (3)
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 Edwards,
his attorney, or the prosecutor and relied on evidence that
he gathered during his solo viewing to convict defendant
VI. Defendant Edwards was deprived of his Sixth Amendment
right to the effective assistance of counsel where trial
court counsel failed to conduct a pretrial investigatory
interview of essential prosecution witness Deonte Smith, who
was the only witness who supported that the homicide occurred
during the commission of an attempted larceny.
also filed a supplemental pro se brief raising an
additional five claims:
I. Mr. Edwards is entitled to a new trial because the
constitutional requirement that the felony information set
forth every element of the crime charged was abdicated where
the felony murder statute does not completely define the
crime of felony murder, and the felony information in this
case lacked the essential element of malice contrary to U.S.
Const. Ams. VI, XIV, resulting in a failure to charge a
criminal offense, thus this portion of the information must
II. Mr. Edwards is entitled to a new trial because he was
denied his Sixth and Fourteenth Amendment right to a public
trial by the court's removal of the public from the
preliminary examination at the end of business hours, and
proceeded with the examination to secure the testimony of Mr.
Deonte Smith, who for some unknown reason did not want to
testify in public. Smith subsequently refused to testify at
trial on the ground of privilege and his recorded testimony
was used to convict Mr. Edwards, then a new trial is
III. Mr. Edwards is entitled to a new trial because the trial
court's factual findings were inconsistent with the
guilty of felony murder verdict to the extent that the trial
judge concluded that Appellant did not initially intend to
kill the decedent. Thus, Appellant's felony murder
conviction must be vacated in absence of a judicial finding
of the element of malice.
IV. Mr. Edwards is entitled to a new trial because trial
counsel was ineffective for failing to object to: (a) the
felony information which charged no crime, (b) the closure of
the courtroom during preliminary examination, (c) the trial
court's failure to comply with MCR 6.402, (d) the trial
court's second visit to the crime scene without counsel
or notice to defendant and opportunity to be heard on any
objections, and failing to investigate contrary to U.S.
Const. Ams. VI and XIV; Const. 1963, Art. I, sec. 20.
V. Mr. Edwards is entitled to a new trial because the
register of actions show that there was no criminal complaint
filed in this case and the filing of a recommendation for a
warrant does not constitute a complaint as defined by MCR
6.101. Thus, in absence of a filed complaint, lawful judicial
authority is absent and the proceedings are without legal
force or effect.
Michigan Court of Appeals affirmed Petitioner's
convictions in an unpublished opinion. Edwards, 2015
WL 1069275. Petitioner subsequently filed an application for
leave to appeal in the Michigan Supreme Court filed by his
current counsel. The application raised what now form his
four habeas claims, as well as additional claims not present
in this action. The Michigan Supreme Court denied the
application because it was not persuaded that the questions
presented should be reviewed. People v. Edwards, 870
N.W.2d 68 (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 member 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. 7-3, 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 ...