United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY,
(3) AND DENYING PERMISSION TO APPEAL IN FORMA
Honorable Denise Page Hood Chief United States District Judge
a habeas case filed by a Michigan prisoner under 28 U.S.C.
§ 2254. Petitioner Derrick Berete Lister was convicted
after a jury trial in the Saginaw Circuit Court of
first-degree home invasion, Mich. Comp. Laws §
750.110a(2); conspiracy to commit first-degree home invasion,
Mich. Comp. Laws § 750.110a(2); assault with intent to
do great bodily harm less than murder, Mich. Comp. Laws
§ 750.84; conspiracy to commit assault with intent to do
great bodily harm less than murder, Mich. Comp. Laws §
750.84; carrying a firearm with unlawful intent, Mich. Comp.
Laws § 750.226; felon in possession of a firearm, Mich.
Comp. Laws § 750.224f; and three counts of possession of
a firearm during the commission of a felony (felony-firearm),
Mich. Comp. Laws § 750.227b.
was sentenced to two terms of 26 years and 8 months to 50
years' imprisonment for the home invasion and conspiracy
to commit home invasion convictions. These two sentences run
concurrently with each other but consecutively to his other
sentences. He was further sentenced to two concurrent terms
of 12 years and 8 months to 20 years for the assault and
conspiracy to commit assault convictions, a concurrent term
of 6 to 10 years for the felon in possession conviction, a
concurrent term of 4 to 8 years for the carrying a firearm
with unlawful intent conviction, and three terms of 2 years
for his felony-firearm convictions to be served concurrently
with each other but consecutively to his other terms. Adding
the consecutive terms together, Petitioner was sentenced to a
composite term of 41 years and 8 months to 72 years
petition raises ten claims: (1) the prosecutor impermissibly
exercised a peremptory challenge to strike the only
African-American male member from his jury; (2) insufficient
evidence was presented to sustain Petitioner's assault
and conspiracy to assault convictions; (3) the trial court
erred in imposing consecutive sentences; (4) Petitioner's
trial counsel was ineffective for failing to fully
investigate an alibi defense; (5) Petitioner's trial
counsel was ineffective for additional reasons; (6) the
prosecutor committed misconduct at trial, (7) the prosecutor
improperly withheld an amended witness list from the defense;
(8) appellate counsel was ineffective for failing to raise
meritorious issues on direct appeal; (9) the prosecutor
withheld exculpatory evidence from the defense; and (10)
appellate counsel failed to raise issues of ineffective
assistance of trial counsel on direct appeal.
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 also deny a
certificate of appealability and deny permission to appeal in
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):
The charges against defendant resulted from an incident in
which defendant and another man entered a home, which was
occupied by several women and children, and fired gunshots.
Before trial, the trial court granted defendant's motion
for the appointment of an investigator because of
difficulties in contacting several individuals, in accessing
police records, and in gathering information regarding alibi
At trial, Catherine Williams, Ashley Williams, and Chanquiece
Moton testified that on the evening of November 24, 2011,
they were at Ashley Williams's home when defendant
knocked on the door. Ashley Williams answered the door, and
defendant entered the home, pointed a gun at Ashley Williams,
and stated that he was going to kill her.1 Ashley Williams
ran into the kitchen; defendant pursued her and fired shots
in her direction. The witnesses stated that a second man,
Willie Youngblood, also entered the home and began shooting.
Moton stated that defendant also threatened to kill her and
Ashley Williams's children. Catherine Williams and Ashley
Williams showed the police a photograph of defendant they
found on Facebook.
Mary Jones, defendant's girlfriend of three years,
testified that she and defendant lived in Columbus, Ohio, and
were visiting Saginaw, Michigan at the time the incident
occurred. Jones testified that she and defendant argued about
defendant's sexual encounter with Ashley Williams. Jones
testified that on the day of the incident, she dropped
defendant off at Youngblood's home at 11:00 a.m. and she
went to her aunt's home. She and defendant left for Ohio
that evening, and a few hours later, at 1:29 a.m., their car
was stopped by police in Ohio for missing taillights.
The jury convicted defendant of felon in possession of a
firearm, conspiracy to commit first-degree home invasion,
first-degree home invasion, conspiracy to commit assault with
intent to do great bodily harm less than murder, assault with
intent to do great bodily harm less than murder, carrying a
firearm with unlawful intent, and three counts of
1Ashley Williams stated that she knew defendant
because they had a sexual encounter shortly before the
People v. Lister, 2014 WL 4495234, at *1-2 (Mich.
Ct. App. Sept. 11, 2014).
his conviction and sentence, Petitioner filed an appeal of
right. His appellate counsel filed a brief on appeal, raising
what now form his first three habeas claims:
I. The prosecutor's exercise of a peremptory strike to
exclude the only African-American male member of the jury
violated Defendant's constitutional right to equal
protection of the law.
II. Defendant's assault with intent to cause great bodily
harm and conspiracy to commit an assault with intent to
commit great bodily harm convictions are not supported by
sufficient evidence. U.S. Const Am XIV.
III. The trial court erred when it imposed consecutive terms
on Counts V and VI because it disagreed with the jury's
acquittal of Defendant on the original counts VII and VIII.
This is constitutional error under the 6th Amendment.
Defendant is entitled to a re-sentencing.
also filed a supplemental pro se brief raising an additional
I. Defendant was denied his Sixth Amendment right to
effective assistance of counsel, where counsel failed to
fully investigate alibi defense evidence, within motioning
the court for production of ‘critical' and
appointed investigator, in whom was appointed by the court to
conduct an investigation into said alibi.
II. Appointed appellate counsel was ineffective contrary to
both the federal and state constitutions, where appellate
counsel failed to raise on appeal as a matter of right, the
‘cumulative errors' of trial counsel.
Michigan Court of Appeals affirmed Petitioner's
convictions in an unpublished opinion, but the court ordered
that the judgment of sentence was to be amended to indicate
that Petitioner's felony-firearm sentences were to run
concurrently with his conspiracy convictions. Id.
subsequently filed an application for leave to appeal in the
Michigan Supreme Court. The application raised the same five
claims raised in the Michigan Court of Appeals, and it also
presented two additional claims:
I. The prosecution failed to provide sufficient evidence for
the jury to find Defendant-Appellant guilty of assault with
intent to commit great bodily harm and conspiracy to commit
assault with intent to commit great bodily harm beyond a
reasonable doubt, where there was irrefutable evidence that
would substantiate a reliable alibi.
II. Defendant-Appellant was deprived of his federal and state
constitutional rights to the effective assistance of counsel,
where appointed appellate counsel refused to brief and/or
provide assistance within perfecting
Defendant-Appellant's in propria persona issues on
Michigan Supreme Court denied the application because it was
not persuaded that the questions presented should be
reviewed. People v. Lister, 859 N.W.2d 522 (Mich.
then filed a motion for relief in the trial court, raising
I. Was the Defendant deprived of his federal and state
constitutional rights to effective assistance of counsel,
where counsel's performance fell below an objective
standard of reasonableness, based on the following cumulative
errors of counsel during trial.
II. Was the Defendant denied a fair trial contrary to his
14th Amendment rights, where the prosecution engaged in
improper comments and offered contradictory evidence to
support and change the theory with regards to the weapon used
before the jury?
III. Did the prosecution deprive Defendant of his right to
right to cross examine, where then the prosecutor failed to
comply with MCL § 767.40a, within withholding the
amended res gestae witness list?
IV. Was the Defendant deprived of his Sixth and Fourteenth
Amendment rights, when the prosecution withheld
“exculpatory information” from the Defendant
during his trial?
V. Was the Defendant deprived of his federal and state
constitutional rights, where the appointed appellate counsel
failed to raise the issues incorporated herein?
VI. Did trial court err in allowing conviction of Defendant
of three separate counts of violating the felony-firearm
statute, MCL 750.227b, in a single criminal transaction?
trial court denied the motion for relief from judgment in an
opinion dated July 25, 2015. Dkt. 18-13. After discussing the
merits of the claims, the trial court found that
“Defendant has not demonstrated that any of the alleged
errors outlined in his motion resulted in actual prejudice as
required by Mich. Ct. R. 6.508(D)(3)(b).” Id.,
at 3, 7.
filed an amended motion for relief from judgment a few days
before the trial court ruled on his first motion, raising one
additional basis in support of his ineffective assistance of
trial counsel claim. See Dkt. 18-12. The trial court denied
the amended motion on the basis that it was a prohibited
successive motion for relief from judgment under Michigan
Court Rule 6.502(G)(2), and it was otherwise without merit.
See Dkt. 18-14.
appealed the denial of his motion for relief from judgment in
the Michigan Court of Appeals. His application for leave to
appeal was denied because Petitioner failed “to meet
the burden of establishing entitlement to relief under Mich.
Ct. R. 6.508(D).” People v. Lister, No. 328917
(Mich. Ct. App. Nov. 4, 2015). Petitioner's subsequent
appeal to the Michigan Supreme Court was denied by citation
to the same court rule. People v. Lister, No. 152845
(Mich. Sept. 6, 2016).
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 rights under Batson v.
Kentucky, 476 U.S. 79 (1986), were violated when the
prosecutor used a peremptory challenge to strike the only
male African-American juror from the jury. Petitioner asserts
that the struck juror had satisfactorily answered the voir
dire questions, and the prosecutor had no non-discriminatory
reason to strike him over other jurors that answered the
questions in the same way.
reciting the controlling constitutional standard, the
Michigan Court of Appeals rejected this claim on the merits
During voir dire, the prosecution exercised one of its
peremptory challenges on the sole black male from the jury
pool. Because the prosecutor offered a race-neutral
explanation and the trial court ruled on whether the
explanation was a pretext, the first step is moot, and our
analysis begins with the second step. Knight, 473
Mich. at 338. When defendant objected to the use of the
peremptory challenge on this potential juror, the prosecutor
stated that he used the challenge because of the
gentleman's statement that he would require scientific
evidence in order to convict. This is a race-neutral reason
and satisfies step two of the Batson process.
For the final step of the Batson process, the trial
court concluded that the prosecutor's reason for
dismissing the gentleman was not pretextual. After our review
of the record, we conclude that the trial court did not
clearly err in making this determination.
The prosecutor's decision to excuse the sole black male
from the jury pool was based on the following exchange:
[Prosecutor]: How many of you expect to see some kind of
scientific evidence in this case that's going to be