United States District Court, E.D. Michigan, Southern Division
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.
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.
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).
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
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.
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).
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.
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.
Standard of Review
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
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.
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.
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).
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.
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.
contends that the prosecutor impermissibly used his
post-Miranda silence and his request for counsel
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
certain cases, a defendant might open the door for
post-arrest silence to be introduced as evidence by the
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 ...