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Stewart v. Trierweiler

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

July 31, 2018

LARRY DEVEL STEWART, Petitioner,
v.
TONY TRIERWEILER, Respondent,

          OPINION AND ORDER ON REMAND DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This matter is on remand from the United States Court of Appeals for the Sixth Circuit. Larry Devel Stewart, (“Petitioner”) is incarcerated at the Bellamy Creek Correctional Facility in Ionia, Michigan. In 2015 he filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b); armed robbery, Mich. Comp. Laws § 750.529; conspiracy to commit armed robbery, Mich. Comp. Laws §§ 750.157a, 750.529; and felony-firearm, Mich. Comp. Laws § 750.227b. Dkt. 1. The district court (Rosen, J.) conditionally granted the petition on certain claims, Dkt. 9, but the Sixth Circuit reversed and remanded for consideration of the remaining claims. Dkt. 19. On remand the case was assigned to this Court, and Petitioner filed Supplemental Pleadings in support of his original petition. Dkt. 23. For the reasons stated below, the petition for writ of habeas corpus is DENIED.

         II. Background

         Petitioner was convicted following a jury trial in the Macomb County Circuit Court, in which he was tried jointly with co-defendant Renyatta Hamilton. The facts relied upon by the Michigan Court of Appeals are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009). Those facts are as follows:

The prosecution presented evidence at trial to establish that defendant ambushed and shot Kevin Brown in a botched robbery attempt that was set up when his girlfriend and codefendant, Renyatta Hamilton, lured Brown to the apartment complex where she was staying. Brown sustained four gunshot wounds in the incident and later died from his injuries.
[. . .]
[At trial] Defendant testified that he told Detective Quinn, “[W]hat I'm being charged with is not what happened, ” and that “[t]here was a fistfight and [the victim] pulled a gun on him.”
[. . .]
[Petitioner] testified during direct examination that he returned to the apartment where the shooting occurred on the morning of December 19, 2011, to retrieve his shoes, and, once there, fought a heavy-set man with dreadlocks who pulled out a gun that discharged several times.
[. . .]
The trial court admitted into evidence several testimonial statements Hamilton made to Detective Jeffrey Barbera . . . Hamilton told Barbera that she saw [Petitioner] with a gun the evening before the shooting, and that she contacted [Petitioner] and Brown moments before the shooting.
[. . .]
[Petitioner's co-defendant and the witness at whose apartment the shooting took place] agreed that [Petitioner] and Hamilton were both present at [the apartment] on the night of December 18, 2011. [Co-defendant] noticed a gun on a table inside the apartment and said that [Petitioner] wrapped it in a t-shirt later that evening. According to [the co-defendant], Hamilton admonished [Petitioner] to hide the gun . . . Hamilton then hid the gun in her purse and left her pruse on the table. After the shooting the following morning, [the co-defendant] followed Hamilton into the apartment's bathroom, from where she called [Petitioner] and said “Baby, I've been shot.” [The co-defendant] knew Hamilton had called [Petitioner] because [Petitioner] was “the only person [the co-defendant] knew that she called baby.” Hamilton's cellular telephone records revealed that there were 28 separate contacts between her cellular telephone and [the victim's] cellular telephone between 2:01 p.m. on December 17, 2011, and 8:41 a.m. on December 19, 2011, the morning of the shooting. In the same period, there were 127 separate contacts between Hamilton's phone and defendant's phone.

People v. Stewart, No. 313097, 2014 WL 1233946, at *1, *5, *6 (Mich. Ct. App. Mar. 25, 2014). Petitioner's conviction was affirmed on appeal. Id., lv. den. 497 Mich. 882, 854 N.W.2d 714 (2014).

         Petitioner sought a writ of habeas corpus on the following grounds:

I. The prosecutor violated Mr. Stewart's due process and the Fifth Amendment right to silence by referencing his post-Miranda silence and request for counsel, contrary to Doyle v. Ohio.
II. The trial court violated Mr. Stewart's Sixth Amendment right to confront witnesses by denying his motion for severance or separate juries and then admitting Renyatta Hamilton's inadequately-redacted police statements without a proper limiting instruction.
III. The prosecution failed to prove beyond a reasonable doubt that Mr. Stewart was involved in a conspiracy, or that he acted with the malice required for felony murder.
IV. The trial court committed plain error by failing to instruct the jury on the factually-supported, lesser included offense of involuntary manslaughter.
V. The prosecution violated Mr. Stewart's due process rights by engaging in pervasive, flagrant, and ill-intentioned prosecutorial misconduct throughout his trial.
VI. Defense counsel was constitutionally ineffective by failing to object to the prosecutor's aforementioned Doyle violation, erroneous jury instruction, and to the failure to instruct the jury on involuntary manslaughter.

         Judge Gerald E. Rosen, the original district court judge in this case, granted Petitioner a conditional writ of habeas corpus on his second and fifth claims, finding that Petitioner was denied a fair trial because of prosecutorial misconduct and a violation of his Sixth Amendment right to confrontation. Judge Rosen declined to address Petitioner's other claims. See Stewart v. Mackie, 196 F.Supp. 3D 734 (E.D. Mich. 2016).

         The Sixth Circuit reversed the district court's decisions on the second and fifth claims and remanded the case to this court to adjudicate Petitioner's remaining claims. Stewart v. Trierweiler, 867 F.3d 633 (6th Cir. 2017); cert. den. No. 17-1288, 2018 WL 1317616, at * 1 (U.S. May 14, 2018). The remaining claims are therefore Petitioner's first, third, fourth, and sixth claims.

         On remand, this case was reassigned to the undersigned upon the retirement of Chief Judge Rosen. On December 21, 2017, this court reopened the case and gave Petitioner ninety days to file a supplemental brief and respondent sixty days from the receipt to file a supplemental answer, if he so chose. Dkt. 21. Petitioner filed a supplemental petition on March 19, 2018. Respondent did not file a supplemental answer.

         III. Standard of Review

         Section 2254(d) of Title 28 of the United States Code, as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), requires the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) 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 (2) 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.

         A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. 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.” Id. at 410-11.

         The Supreme Court explained that “[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 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)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[A] 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)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fair-minded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         The Court notes that the Michigan Court of Appeals reviewed and rejected Petitioner's first claim under a plain error standard because Petitioner failed to preserve the issue as a constitutional claim at the trial court level. The AEDPA deference applies to any underlying plain-error analysis of a procedurally defaulted claim. See Stewart v. Trierweiler, 867 F.3d at 638.[1]

         III. Discussion

         A. First Claim: Whether Petitioner's due process and Fifth Amendment right to remain silent was violated because the prosecutor referred to his post-Miranda silence and his request for counsel.

         Petitioner contends that the prosecutor impermissibly used his post-Miranda silence and his request for counsel against him.

         It is a violation of the Due Process clause of the Fourteenth Amendment for the prosecution to use a defendant's post-arrest silence (i.e. after he or she has been given Miranda warnings) to impeach a defendant's exculpatory testimony. Doyle v. Ohio, 426 U.S. 610, 619 (1976). Although the Doyle rule was established in the context of a defendant's invocation of Miranda's right to remain silent, it also applies to an invocation of the right to counsel. See Wainwright v. Greenfield, 474 U.S. 284, 295, n. 13 (1986).

         In certain cases, a defendant might open the door for post-arrest silence to be introduced as evidence by the prosecution:

It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather ...

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