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Murphy-Ellerson v. Rivard

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

July 27, 2018

STEVE RIVARD, Respondent,



         Petitioner Lamarr Franklin Murphy-Ellerson has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his assault and firearms convictions and sentences. He alleges a variety of claims, none of which persuades the Court that he is in custody in violation of the Constitution or laws of the United States. Therefore, the petition will be denied.


         A Washtenaw County, Michigan jury convicted the petitioner of two counts of assault with intent to commit murder, two counts of assault with intent to do great bodily harm less than murder, possession of a loaded firearm in a vehicle, discharge of a firearm from a motor vehicle, discharge of a firearm toward a dwelling or occupied structure, carrying a concealed weapon, and possession of a firearm in the commission of a felony (felony firearm). The facts of the case were summarized by the Michigan Court of Appeals on direct appeal as follows:

In December 2011, someone fired shots at home where several people had gathered for a party. The shooter fired at the home while driving past it. Matthew Lewis was hit in the leg as he was standing outside the home. Lewis was not able to identify the shooter or the car, but Amber King, another guest at the party, testified that she was in the kitchen when she saw Murphy-Ellerson pull up in a silver car, roll his window down, point a gun in her direction, and fire multiple shots. King stated that she had earlier had a confrontation with Murphy-Ellerson at a convenience store.
Murphy-Ellerson initially denied that he knew King and denied knowing about or being involved in the shooting. In a subsequent statement, he told a detective that he was in the car during the shooting, but was not the shooter. He later recanted and claimed that he was not in the car during the shooting.

         The jury found that Murphy-Ellerson was the shooter and convicted him accordingly. People v. Murphy-Ellerson, No. 312651, 2014 WL 2158171, at * 1 (Mich. Ct. App. May 22, 2014).

         The petitioner was sentenced to concurrent prison terms totaling twenty to forty years, except that his conviction for felony firearm earned him an additional two-year consecutive sentence. The petitioner's conviction was affirmed on appeal. Ibid.; lv. den. 497 Mich. 947, 857 N.W.2d 37 (2014) (Table). However, the court of appeals vacated his convictions of assault with intent to do great bodily harm, as duplicative of the more serious offenses.

         The petitioner filed a timely petition for habeas corpus, alleging the following grounds for relief:

I. Right to present defense witness testimony was denied.
II. Double Jeopardy violation.
III. Fair trial denied by allegations of threats and payment offers by other parties.
IV. Trial counsel was ineffective in failing to investigate and question a defense witness.
V. Prosecutorial misconduct.
VI. Erroneously scored state sentencing guidelines claims (offense variables 3, 4, and 13) are not reviewed on federal petitions for habeas corpus relief, and petitioner does not belabor the Court by presenting the same here after sentencing guideline issues were exhausted before the Michigan Supreme Court.

         Pet. at 2. These are the same grounds raised by his attorney on direct appeal. The warden opposes the petition on the merits, and also raises certain procedural defenses, which need not be addressed here. See Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (holding that “federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits”) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)).


         The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the standard of review federal courts must apply when considering an application for a writ of habeas corpus raising constitutional claims, including claims of ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). Because Murphy-Ellerson filed his petition after the AEDPA's effective date, its standard of review applies. Under that statute, if a claim was adjudicated on the merits in state court, a federal court may grant relief only if the state court's adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or if the adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). “Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.” White v. Woodall, 572 U.S. 415, ___, 134 S.Ct. 1697, 1702 (2014) (internal quotation marks and citations omitted). “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.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

         The distinction between mere error and an objectively unreasonable application of Supreme Court precedent creates a substantially higher threshold for obtaining relief than de novo review. The AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be “given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (finding that the state court's rapid declaration of a mistrial on grounds of jury deadlock was not unreasonable even where “the jury only deliberated for four hours, its notes were arguably ambiguous, the trial judge's initial question to the foreperson was imprecise, and the judge neither asked for elaboration of the foreperson's answers nor took any other measures to confirm the foreperson's prediction that a unanimous verdict would not be reached” (internal quotation marks and citations omitted)); see also Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 841 (6th Cir. 2017); Dewald v. Wriggelsworth, 748 F.3d 295, 298-99 (6th Cir. 2014); Bray v. Andrews, 640 F.3d 731, 737-39 (6th Cir. 2011); Phillips v. Bradshaw, 607 F.3d 199, 205 (6th Cir. 2010); Murphy v. Ohio, 551 F.3d 485, 493-94 (6th Cir. 2009); Rockwell v. Yukins, 341 F.3d 507, 511 (6th Cir. 2003) (en banc). Moreover, habeas review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011).

         Even though the state appellate courts did not give full consideration to the petitioner's federal claims on appeal, AEDPA's highly deferential standard for reviewing a habeas petitioner's constitutional claims applies here. The petitioner must show that “the state court decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law' or involved an ‘unreasonable determination of the facts.'” Kelly v. Lazaroff, 846 F.3d 819, 831 (6th Cir. 2017) (quoting 28 U.S.C. § 2254(d)). That standard applies “even when a state court does not explain the reasoning behind its denial of relief.” Carter v. Mitchell, 829 F.3d 455, 468 (6th Cir. 2016). “Under [Harrington v. Richter, 562 U.S. 86 (2011)], ‘[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on its merits in the absence of any indication or state-law procedural principles to the contrary.'” Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 460 (6th Cir. 2015) (quoting Harrington, 562 U.S. at 99). There is nothing in this record that suggests a basis for rebutting that presumption. See Johnson v. Williams, 568 U.S. 289, 133 S.Ct. 1088, 1097 (2013).


         The petitioner contends that the trial court trenched upon his right to present a defense by excluding testimony from the petitioner's stepfather that the state's sole eyewitness, Amber King, attempted to solicit or extort money from him in exchange for giving favorable testimony for the petitioner. His attorney objected to the exclusion of that testimony at trial on evidentiary grounds, but his appellate attorney couched the issue as a constitutional claim. The Michigan Court of Appeals reviewed and rejected the petitioner's claim so stated under a plain error standard because the petitioner did not characterize it in that way at the trial court. People v. Murphy-Ellerson, 2014 WL 2158171, at * 1-2. The court determined that the trial judge mishandled the evidentiary issue, but concluded that the error was harmless. It reasoned as follows:

Here, the primary issue at trial was the shooter's identity and King was the only witness who could positively identify Murphy-Ellerson as the shooter. For that reason, this case largely turned on her credibility. Murphy-Ellerson's lawyer impeached King with inconsistencies in her trial testimony, preliminary examination testimony, and her statements to officers. His lawyer also solicited testimony from her that she ...

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