United States District Court, W.D. Michigan, Northern Division
Honorable Gordon J. Quist Judge
REPORT AND RECOMMENDATION
Timothy P. Greeley United States Magistrate Judge
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner James Kimple is incarcerated
with the Michigan Department of Corrections at the Marquette
Branch Prison (MBP) in Marquette, Michigan. Following a
three-day jury trial in the Calhoun County Circuit Court,
Petitioner was convicted of second-degree murder, Mich. Comp.
Laws § 750.317, and felony firearm, Mich. Comp. Laws
§ 750.227b. On June 21, 2013, the court sentenced
Petitioner as a habitual offender-second offense, Mich. Comp.
Laws § 769.10, to a prison term of 40 to 60 years for
second-degree murder to be served consecutive to a prison
term of 2 years for the felony firearm violation.
December 13, 2016, Petitioner filed his habeas corpus
petition raising 2 grounds for relief, as follows:
I. The trial court denied Mr. Kimple a fair trial and the
right to present a defense by denying the requested
instructions on self-defense, given the evidence presented at
trial regarding the prolonged bullying Mr. Kimple suffered at
the hands of the decedent and his reasonable fear of great
bodily harm on the night of the shooting; in the alternative,
trial counsel was ineffective for failing to object to the
final jury instructions.
II. The prosecutor engaged in misconduct in closing argument
which violated Mr. Kimple's due process rights; trial
counsel was constitutionally ineffective for failing to
object to the misconduct.
(Pet., ECF No. 1, PageID.3.) Respondent has filed an answer
to the petition (ECF No. 5) stating that the grounds should
be denied because they are procedurally defaulted or
meritless. Upon review and applying the standards of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds
are meritless. Accordingly, I recommend that the petition be
Michigan Court of Appeals described the facts underlying
Petitioner's convictions as follows:
Juan Tyler Riddle was fatally shot in the back at
approximately 9:10 p.m. in Albion on May 4, 2012. A few hours
later, defendant surrendered himself to police. Defendant
admitted to Detective Luis Tejada of the Albion Department of
Public Safety that he had shot Riddle when they met on the
street, but had done so because he feared Riddle was going to
seriously injure him. Defendant was subsequently arrested and
bound over for trial.
At trial, Tejada testified that defendant told him the
shooting stemmed from a chance encounter with Riddle.
Defendant was walking downtown when Riddle pulled up next to
him in his car and rolled down the window on the passenger
side. The two exchanged words. Riddle then pulled over and
exited the car. Afraid that Riddle was going to draw a weapon
out of the car, defendant pulled his 9mm handgun out of his
waistband and fired twice in Riddle's direction, after
which Riddle turned and ran away. Having accidentally ejected
the handgun's clip, defendant paused long enough to
reinsert it and pull the slide back to chamber another round,
and then fired two or three more shots at Riddle as he fled.
According to the forensic pathologists, one of these bullets
hit Riddle in the back and passed upward through his heart,
causing his death.
Tejada also identified inconsistencies between the evidence
and aspects of defendant's statement. First, the
bullet-hole evidence found at the scene contradicted
defendant's explanation of the shooting. Second, the
layout of the street was inconsistent with defendant's
explanation of where he was when he first saw Riddle's
Defendant's girlfriend and mother both testified that
defendant was afraid of Riddle and Riddle's brother,
because they had long harassed him. Defendant's mother
testified that the latest harassing incident had occurred the
day before the shooting, when Riddle had knocked a meal out
of defendant's hand and then stomped on it. This
incident, defendant told Tejada, prompted him to begin
carrying a handgun for protection.
(Mich. Ct. App. Op., ECF No. 6-10, PageID.263-264.)
was charged with open murder. (Calhoun Cty. Cir. Ct. Docket
Sheet, ECF No. 6-1, PageID.56.) The prosecutor presented
testimony that Petitioner and his mother told police he had
shot Riddle at the direction of his girlfriend. (Trial Tr.
II, ECF No. 6-6, PageID.153, 192.)
counsel explored several possible defenses before trial.
Petitioner was examined to determine his competence, but was
found to be competent. (Hrg. Tr. II, ECF No. 6-4,
PageID.116.) Petitioner's counsel also submitted proposed
jury instructions that included instructions on self-defense.
At trial, however, the court did not read the self-defense
instructions and Petitioner's counsel never raised the
issue of self-defense. When the judge asked counsel if either had
any objection to the instructions as read-instructions that
made no mention of self-defense-each counsel indicated he did
not. (Trial Tr. III, ECF No. 6-7, PageID.233.)
counsel argued that Petitioner's fear of Riddle was
justified in light of the history of confrontation between
them. (Id., PageID.227.) Counsel contended that
Petitioner simply panicked and did not act rationally when he
fired wildly at Riddle. (Id., PageID.227-228.) He
urged the jury to convict Petitioner of no more than
voluntary manslaughter. (Id.)
jury deliberated for several hours before finding Petitioner
guilty of second-degree murder, a middle ground between the
first-degree murder conviction sought by the prosecutor and
the voluntary manslaughter conviction proposed by the
with the assistance of counsel, raised two issues in the
Michigan Court of Appeals-the same issues he raises in this
Court. (Pet'r's Appeal Br., ECF No. 6-10,
PageID.282.) By unpublished opinion issued February 17, 2015,
the court of appeals affirmed the trial court. (Mich. Ct.
App. Op., ECF No. 6-10, PageID.263-269.) Petitioner sought
leave to appeal that decision in the Michigan Supreme Court.
That court denied leave by order entered September 29, 2015.
(Mich. Order, ECF No. 6-11, PageID.360.) This timely petition
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
The AEDPA “prevents federal habeas
‘retrials'” and ensures that state court
convictions are given effect to the extent possible under the
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An
application for writ of habeas corpus on behalf of a person
who is incarcerated pursuant to a state conviction cannot be
granted with respect to any claim that was adjudicated on the
merits in state court unless the adjudication: “(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 upon an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.” 28
U.S.C. § 2254(d). This standard is “intentionally
difficult to meet.” Woods v. Donald, 575 U.S.
__, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the holdings, and not the dicta, of the
Supreme Court. Williams v. Taylor, 529 U.S. 362, 412
(2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th
Cir. 2001). In determining whether federal law is clearly
established, the Court may not consider the decisions of
lower federal courts. Williams, 529 U.S. at 381-82;
Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir.
2002). Moreover, “clearly established Federal
law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state
court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011).
Thus, the inquiry is limited to an examination of the legal
landscape as it would have appeared to the Michigan state
courts in light of Supreme Court precedent at the time of the
state-court adjudication on the merits. Miller v.
Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing
Greene, 565 U.S. at 38).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘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.'” Woods, 135
S.Ct. at 1376 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S. 415, 424 (2014) (internal quotations omitted).
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003);
Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
contends that he was denied due process by the trial
court's failure to instruct the jury on self-defense.
Alternatively, Petitioner argues that his counsel rendered
ineffective assistance by failing to object to the
instructions which excluded the self-defense instruction. The
Michigan Court of Appeals concluded that Petitioner had
waived his claim of instructional error by expressly
approving the instructions as read. (Mich. Ct. App. Op., ECF
No. 6-10, PageID.264.) The appellate court noted that even if
Petitioner had not waived the claim he was not entitled to
the instruction because he never made a self-defense claim at
trial. Instead, the court noted, he “argued
that [he] panicked and began shooting wildly during a
confrontation with Riddle . . . .” (Id.,
PageID.265.) Finally, the court of appeals noted, there was
no evidence admitted supporting a self-defense argument:
CJI2d 7.23 (“Past Violence by Complainant or
Decedent”) instructs the jury to consider evidence
“that the decedent may have committed violent acts in
the past and that the defendant knew about these acts”
when considering whether a defendant “honestly and
reasonably feared for his safety.” CJI2d 7.23.1. Here,
no one testified that Riddle was a violent and brutal person.
The only act of violence attributed to Riddle was that he had
knocked a chicken dinner out of defendant's hand and
stomped on it. No. one alleged that defendant and Riddle had
ever fought or that Riddle had ever specifically threatened
defendant harm. In the absence of evidence that Riddle
committed specific violent acts, the trial court did not err
in omitting CJI2d 7.23 from its instructions to the jury. See