United States District Court, W.D. Michigan, Northern Division
Honorable Paul L. Maloney Judge.
REPORT AND RECOMMENDATION
MAARTEN VERMAAT U.S. MAGISTRATE JUDGE.
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Clinton Allen Crawford is
incarcerated with the Michigan Department of Corrections at
the Chippewa Correctional Facility (URF) in Kincheloe,
Michigan. Following a six-day jury trial in the Muskegon
County Circuit Court, Petitioner was convicted of
second-degree murder, Mich. Comp. Laws § 750.317, and
possessing a firearm during the commission of a felony, Mich.
Comp. Laws § 750.227b. On June 28, 2013, the court
sentenced Petitioner to a prison term of 26 to 40 years for
second-degree murder, consecutive to a sentence of 2 years
for the felony firearm violation.
25, 2016, Petitioner filed his habeas corpus petition raising
two grounds for relief:
I. Where the prosecutor improperly used witness Deasyia
Wyrick's prior inconsistent statement as substantive
evidence and the court erred in instructing the jury that it
could consider statements used to impeach a witness as
substantive evidence, [Petitioner] was deprived of his due
process right to a fair trial. Furthermore, trial counsel was
ineffective for failing to object to the prosecutor's use
of Wyrick's testimony as substantive evidence, and for
failing to object to jury instruction 4.5(2).
II. People v. Houston should be overruled and this case
remanded for [Offense Variable] 3 to be re-scored and
[Petitioner] to be resentenced.
(Pet., ECF No. 1, PageID.2-3, 7.) Respondent has filed an
answer to the petition (ECF No. 5) stating that the grounds
should be denied because they are without merit or
non-cognizable. 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 or not cognizable on habeas review.
Accordingly, I recommend that the petition be denied.
Petitioner's challenges to his convictions and sentences
does not require a detailed recounting of the testimony
elicited or the exhibits admitted at trial. The Michigan
Court of Appeals summarized the facts as follows:
Jerry Huck and Scott Cooper, the victim, drove to meet
defendant to buy cocaine. During the drive, Huck gave Cooper
$6, and Cooper put it in his hat. Once the two arrived at the
meeting location, defendant walked up to Cooper and handed
Cooper cocaine. Huck saw Cooper take something out of his hat
to give to defendant. Cooper immediately said,
“let's go, ” and Huck drove away. As Huck was
driving away, he heard two gunshots hit his vehicle. He
looked over and saw that Cooper had been shot in the head.
Huck looked into his rearview mirror and saw defendant in the
street. Huck did not see defendant fire a gun nor did he see
defendant holding a gun. Huck originally denied driving to
Muskegon to buy cocaine and originally told the police that a
black male ran by his vehicle, pulled out a gun, and started
shooting. At trial, nearby security footage related to the
incident showed an unidentifiable person walk up to
Huck's vehicle. The vehicle then drove away and the man
seen in the street walked away from the scene. No. gun or
gunfire was present in the video. One of defendant's
friends, Deasyia Wyrick, testified that she had only seen
defendant with a gun once in the past three years. The
prosecution asked Wyrick about her interview with Steve
Winston, a police detective. The prosecution asked Wyrick if
she told Winston that defendant had a gun on him “all
the time.” Wyrick denied making that statement. Winston
subsequently testified that Wyrick, in fact, indicated that
defendant had a gun on him “all the time.” During
its closing rebuttal argument, the prosecutor used
Wyrick's prior inconsistent statement to argue that
defendant possessed a gun at the time of the shooting because
he had a gun on him “all the time.”
(Mich. Ct. App. Op., ECF No. 6-17, PageID.1348.)
prosecutor's argument invited the jurors to use Ms.
Wyrick's out-of-court statement to Detective Winston-her
statement that Petitioner carried a gun all the time-not only
for impeachment purposes, but also as substantive evidence
that Petitioner, in fact, carried a gun all the time.
Typically, inviting substantive use of an out-of-court
statement would run afoul of the hearsay rules. The standard
Michigan criminal jury instruction on the topic reads:
You have heard evidence that, before the trial, witnesses
made statements that may be inconsistent with their testimony
here in court.
(1) You may consider an inconsistent statement made before
the trial only to help you decide how believable the
witnesses' testimony was when testifying here in court.
Mich. Crim. Jury Inst. 4.5. The instruction the trial court
read in Petitioner's case, however, was different:
Evidence has been offered that one or more witnesses in this
case previously made statements inconsistent with their
testimony at this trial. You may consider such earlier
statements in deciding whether the testimony at this trial
was truthful and in determining the facts of this case.
(Trial Tr. V, ECF No. 6-12, PageID.1241.) The variation given
by the trial court is consistent with the Michigan standard
instruction; however, it is appropriate in only limited
circumstances. For example, the jurors might consider the
out-of-court statement as substantive evidence if “the
earlier statement was made under oath” or if the
out-of-court statement was otherwise admissible as
substantive evidence under the Michigan Rules of Evidence
hearsay rules. Mich. Crim. Jury Inst. 4.5.
trial court instructed the jurors on first-degree murder,
second-degree murder, and voluntary manslaughter. (Trial Tr.
V, ECF No. 6-12, PageID.1243-1246.) Petitioner's counsel
argued that the prosecutor's proofs fell short because
there was no credible evidence that showed a gun in
Petitioner's hand that night. (Id., PageID.1207,
1213.) To the extent the jurors felt otherwise, however,
Petitioner's counsel argued that the crime
“proven” was nothing more than voluntary
manslaughter because the evidence showed, at most, that
Petitioner fired at the truck in a fit of understandable rage
after Huck and Cooper ripped him off. (Id.,
PageID.1218-1220.) The jury adopted the middle ground,
finding Petitioner guilty of second-degree murder along with
the felony firearm violation. (Trial Tr. VI, ECF No. 6-13,
trial court initially sentenced Petitioner as set forth
above. (Sentencing Tr. I, ECF No. 6-14.) Petitioner's
appellate attorneys challenged the guidelines scoring of
three variables. (Pet'r's Mot. for Resentencing, ECF
No. 6-15.) The court rejected two of the three challenges,
but accepted the third. (Id.) Petitioner was