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McConer v. Burt

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

March 12, 2019

Kevin June McConer, # 401888 Petitioner,
v.
Sherry Burt, Respondent.

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus proceeding brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner's conviction stems from the fatal beating of Dale Glenn outside petitioner's Detroit home on July 28, 2011. On February 10, 2012, a Wayne County Circuit Court jury found him guilty of second-degree murder, MlCH. Comp. Laws § 750.317. The trial court sentenced petitioner to twenty to forty years' imprisonment.

         After unsuccessful attempts to overturn his conviction in state court, petitioner filed this habeas corpus petition. He seeks federal habeas corpus relief on the same grounds rejected by the Michigan Court of Appeals:

I. Petitioner was deprived of due process by pervasive prosecutorial misconduct in the prosecutor's repeated, unfounded assertions that witnesses had been intimidated.
II. Petitioner's constitutional rights were violated where the trial court failed to develop a factual basis for the intelligent exercise of challenges during voir dire by asking generalized leading questions, admonishing potential jurors who admitted partiality, and refusing to permit petitioner's attorney to conduct voir dire.
III. Ineffective assistance of counsel because counsel failed to investigate and present witnesses on petitioner's behalf which ultimately prejudiced petitioner.

(Am. Pet., 6-11, ECF No. 4, PageID.81-87).

         Respondent argues that the petition should be denied because all grounds raised by petitioner lack merit. Further, respondent argues that Ground I is also barred by procedural default.[1] (ECF No. 8).

         Chief Judge Jonker has referred the matter to me for all purposes, including the issuance of a report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Rule 10 of the Rules Governing Section 2254 Cases in the District Courts. After review of the state-court record, I conclude petitioner has not established grounds for federal habeas corpus relief. Petitioner has not shown that the state court decision rejecting the grounds raised in the petition was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or that it 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). I recommend that the petition be denied on the merits.

         Standard of Review

          The Court's review of this petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA "dictates a highly deferential standard for evaluating state-court rulings which demands the state court decisions be given the benefit of the doubt." Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted). "AEDPA requires heightened respect for state court factual and legal determinations." Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). "State-court factual findings [] are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence." Davis v. Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

         If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((" '[A]ny claim that was adjudicated on the merits in State court proceedings' is subject to AEDPA deference.") (quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal habeas "retrials" and ensures that state court convictions are given effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It prohibits" 'using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.'" Parker v. Matthews, 567 U.S. 37, 38 (2012) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 779 (2010)).

         The AEDPA standard is difficult to meet "because it was meant to be." Harrington v. Richter, 562 U.S. 86, 102 (2011). "Section 2254(d) reflects that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through appeal." Id. at 102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). Section 2254(d) states that an application for a 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); see White v. Wheeler, 136 S.Ct. 456, 460 (2015).

         The only definitive source of clearly established federal law for purposes of § 2254(d)(1) is the holdings - not dicta - of Supreme Court decisions. White v. Woodall, 134 S.Ct. 1697, 1702 (2014); see Woods, 135 S.Ct. at 1377 ("Because none of our cases confront 'the specific question presented by this case,' the state court's decision could not be 'contrary to' any holding from this Court.). "[W]here the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims." Id. (quotations and internal citations omitted). Further, under section 2254(d)(1), "habeas relief may be granted only if the state court's adjudication 'resulted in a decision that was contrary to, or involved an unreasonable application of,' Supreme Court precedent that was 'clearly established' at the time of the adjudication." Shoop v. Hill, 139 S.Ct. 504 (2019) (per curiam).

         An unreasonable application of the Supreme Court's holding must be" 'objectively unreasonable,' not merely wrong; even 'clear error' will not suffice." White v. Woodall, 134 S.Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)); see Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (per curiam). Rather, "[a]s a condition for obtaining habeas corpus relief 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." White v. Woodall, 134 S.Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103); see also Dunn v. Madison, 138 S.Ct. 9, 11 (2017) (per curiam). "[C]ircuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court, '" and "[i]t therefore cannot form the basis for habeas relief under AEDPA." Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v. Matthews, 567 U.S. at 48-49); see Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (per curiam) ("As we have repeatedly emphasized, [] circuit precedent does not constitute 'clearly established Federal law, as determined by the Supreme Court.' ").

         "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254(d)(2) requires that this Court accord the state trial court substantial deference. If reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination. Brumfield v. Cain, 135 S.Ct. 2269, 2277(2015).

         Proposed Findings of Fact

          A. Circuit Court Proceedings

         Petitioner's trial began on February 2, 2012, and it concluded with the jury's verdict on February 10, 2012, finding him guilty of second-degree murder. (TTI-TTVI, ECF No. 9-6 through 9-11).

         1. Jury Selection

         Judge Annette Berry conducted the voir dire. The prosecutor and defense counsel had provided the judge with a list of questions that they wanted her to ask potential jurors. Judge Berry denied petitioner's attorney's request to conduct his own voir dire. The judge noted that the attorneys had the opportunity to approach the bench and request that certain questions be asked. All the jurors selected indicated that they could be fair and impartial. (TTI, 6-8, 14-154, ECF No. 9-6, PageID.216-18, 224-364).

         One prospective juror stated that he was "partially" a racist, and that his brother and a "good buddy" were police officers. He did not want to sit on a homicide case and stated that he could not be fair. (Id. at 80-83, PageID.290-93). Another prospective juror, at age 61, considered himself an old person who should not have to serve on a jury. He related that he had been convicted three times for alcohol-related driving offenses, that he had received unfair treatment in one trial, and that he could not be fair and impartial. (Id. at 90-96, PageID.300-06). These individuals were excused for cause and did not serve on petitioner's jury. (Id. at 82-83, 96, PageID.292-93, 306).

         2. Trial

         The trial court judge gave the jury its preliminary instructions, including the instruction that opening statements and closing arguments are not evidence. (Id. at 158, PageID.368). The attorneys then gave their opening statements. (Id. at 162-87, PageID.372-97). Before the jury heard testimony from any witness, the judge reiterated that the opening statements were not evidence. (TTII, 11, ECF No. 9-7, PageID.409).

         DB, [2] the prosecution's primary witness, was sitting outside petitioner's house during the offense. DB testified that, as Dale Glenn was walking down the street, petitioner's co-defendant, William Smith, [3] called him over. When Dale Glenn approached, Mr. Smith struck him in the head with a 40-ounce beer bottle, causing Mr. Glenn to fall to the cement sidewalk. Mr. Smith then kicked and stomped Dale Glenn several times in his head and face. Petitioner, who had been barbequing nearby, walked over and joined in the assault by kicking Mr. Glenn. The beating stopped when it was interrupted by oncoming cars. Petitioner and William Smith then carried Dale Glenn ...


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