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Boswell v. Gidley

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

April 5, 2019

Tyrone Boswell, Petitioner,
v.
Lori Gidley and Duncan McLaren, Respondents.

          OPINION AND ORDER DENYING THE AMENDED HABEAS CORPUS PETITION, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          HON. GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE.

         This matter has come before the Court on Petitioner Tyrone Boswell's Amended Petition for the Writ of Habeas Corpus under 28 U.S.C. § 2254. Petitioner challenges his Wayne County, Michigan conviction for first-degree, felony murder, Mich. Comp. Laws § 750.316(1)(b). In his Amended Petition, Petitioner alleges as grounds for relief that the prosecution's proofs were insufficient and against the great weight of the evidence, his trial and appellate attorneys were ineffective, the officer in charge of the case committed perjury, and the trial judge was biased. The State urges the Court to deny the Amended Petition because some of Petitioner's claims are procedurally defaulted, one of the claims is not cognizable on habeas review, and the state appellate court's rejection of Petitioner's claims was reasonable. The Court agrees that Petitioner's claims do not warrant relief. Accordingly, the Amended Petition will be denied.

         I. Background

         Petitioner waived his right to a jury trial and was tried before a judge in Wayne County Circuit Court. The state appellate court accurately summarized the evidence at trial as follows:

[T]his case involves the murder of, and larceny from, Michael Yost, who lived on Muirland in Detroit with his girlfriend, Kimberly Burrell. On the night of June 13, 2009, Yost, carrying at least $200 cash in his wallet and wearing an $800 silver watch encrusted with diamonds, left the home he shared with Burrell to walk to a Marathon gas station near his home. On the way to the gas station, Yost came into contact with defendant and a man who defendant referred to as Dirt, but who police learned went by the name “Mudd.” Defendant and Dirt were the last two people seen with Yost before he was shot in the back of the head and his wallet and watch were stolen.

People v. Boswell, No. 307342, 2013 WL 3814345, at *1 (Mich. Ct. App. July 23, 2013) (unpublished). Eyewitnesses Shanise Tipton and Deante Simmons were able to identify the suspects by their clothing.

         The prosecution's theory was that, at a minimum, Petitioner aided and abetted his accomplice in killing Yost during the commission of a larceny. Petitioner did not testify or present any witnesses. His defense was that he was merely present at the crime scene and that, at most, he was guilty of a larceny.

         The trial court, as the trier of fact, found Tipton and Simmons to be credible because they were unbiased and had no motive for lying. The court noted that Tipton never equivocated about what she saw and that Petitioner corroborated Tipton's and Simmons' testimony when he admitted to a police officer that he was present at the crime scene when the shooting occurred. The trial court concluded that Petitioner worked in tandem with “Dirt” and was guilty, as charged, of felony murder. See 10/14/11 Trial Tr., at 3-44, Dkt. No. 13-6, pp. 3-44 (Pg. ID 628-669). The trial court sentenced Petitioner to mandatory life imprisonment without the possibility of parole. See 11/4/11 Sentence Tr., at 12, Dkt. No. 13-7, p. 12 (Pg. ID 682).

         In an appeal of right, Petitioner argued through his first appellate attorney that the prosecution failed to introduce legally sufficient evidence to support his conviction beyond a reasonable doubt. Petitioner filed a supplemental brief through substitute appellate counsel, arguing that there was insufficient evidence of his guilt, the verdict was against the great weight of the evidence, and he was denied the effective assistance of trial counsel by counsel's failure to adequately consult with him, visit the crime scene, and interview res gestae witnesses. After substitute counsel was permitted to withdraw from the case, a third attorney was appointed to represent Petitioner on appeal, and that attorney filed a supplemental brief which alleged that trial counsel was ineffective for failing to call certain witnesses. The Michigan Court of Appeals rejected Petitioner's claims and affirmed his conviction in an unpublished opinion. See Boswell, 2013 WL 3814345. Although Petitioner claims that he submitted an application for leave to appeal in the Michigan Supreme Court, the state supreme court has no record of the application. See Larry Royster's Affidavit, Dkt. No. 13-9, p. 1 (Pg. ID 921).

         In 2014, Petitioner commenced this case. See Pet. for Writ of Habeas Corpus, Dkt. No. 1. The petition raised two grounds for relief: insufficient evidence of guilt and ineffective assistance of trial counsel (failure to call certain witnesses). See id., at 6, 8, Dkt. No. 1, pp. 6, 8 (Pg. ID 6, 8).

         Petitioner simultaneously moved to hold his habeas petition in abeyance while he pursued state remedies for three new claims. See Mot., at 1-4, Dkt. No. 2, pp. 1-4 (Pg. ID 148-151). On August 13, 2014, the Court granted Petitioner's motion and closed this case for administrative purposes. See Order, at 1-4, Dkt. No. 4, pp. 1-4 (Pg. ID 153-156).

         Meanwhile, on July 8, 2014, Petitioner filed a motion for relief from judgment in the state trial court. He argued that the prosecution elicited fabricated testimony from the officer in charge of the case, that the trial judge was biased, and that appellate counsel was ineffective for failing to raise his two new claims on direct appeal. See Mot. for Relief from J., Dkt. No. 13-11, pp. 1-4 (Pg. ID 933-936). On August 20, 2014, the trial court denied Petitioner's motion under Michigan Court Rule 6.508(D)(3) because Petitioner had not shown “good cause” for failing to raise his perjury and judicial-bias claims on appeal and actual prejudice from the alleged irregularities. The trial court also found no merit in Petitioner's claims, including his claim about appellate counsel. See People v. Boswell, No. 11-005601-FC (Wayne Cty. Cir. Ct. Aug. 29, 2014), Dkt. No. 13-12, pp. 1-4 (Pg. ID 978-981).

         Petitioner appealed the trial court's decision, but the Michigan Court of Appeals denied leave to appeal for failure to establish entitlement to relief under Rule. 6.508(D). The Court of Appeals stated that Petitioner had alleged grounds for relief which could have been raised previously and that Petitioner had failed to establish both “good cause” for failing to previously raise the issues and actual prejudice from the alleged irregularities. The Court of Appeals rejected Petitioner's claim about appellate counsel for lack of merit. See People v. Boswell, No. 325648 (Mich. Ct. App. Apr. 9, 2015), Dkt. No. 13-13, p. 1 (Pg. ID 983).

         Petitioner raised the same issues in the Michigan Supreme Court. He also incorporated by reference his supplemental brief from his direct appeal where he argued that there was insufficient evidence of guilt at trial, that the verdict was against the great weight of the evidence, and that he was denied the effective assistance of counsel. On March 29, 2016, the Michigan Supreme Court denied leave to appeal because Petitioner had failed to establish entitlement to relief under Rule 6.508(D). See People v. Boswell, 499 Mich. 881; 876 N.W.2d 535 (2016).

         On June 6, 2016, Petitioner filed a motion to amend his habeas petition and to re-open this case. See Mot., at 1-6, Dkt. No. 6, pp. 1-6 (Pg. ID 159-164). The grounds for relief in the amended petition allege that: (1) there was insufficient evidence at trial to sustain Petitioner's conviction; (2) trial counsel failed to subpoena exculpatory res gestae witnesses; (3) the trial court's verdict was against the great weight of the evidence; (4) trial counsel was ineffective for failing to: (a) consult adequately with Petitioner, (b) visit the crime scene, and (c) interview certain res gestae witnesses; (5) the conviction was based on the perjured testimony of police officer Scott Shea; (6) the trial judge was biased; and (7) appellate counsel was ineffective for failing to present claims five and six in the appeal of right. See Memorandum of Law Supporting First Am. Pet., at 4-13, Dkt. No. 7, pp. 4-13 (Pg. ID 224-233).

         The Court granted Petitioner's Motion to Amend his Habeas Petition and to re-open this case. See Op. and Order, at 1-5, Dkt. No. 10, pp. 1-5 (Pg. ID 241-245.) In the same order, the Court directed the State to file an Answer to the Amended Petition and granted Petitioner permission to file a Reply to the State's Answer. Id., at 4, Dkt. No. 10, p. 4 (Pg. ID 244). The State subsequently filed an Answer to the Amended Petition, see Answer in Opp'n to Am. Pet., Dkt. No. 12, and although the Court extended the deadline for filing a Reply to the State's Answer, see Order, Dkt. No. 15, Petitioner has not filed a Reply.

         The State maintains that Petitioner's first four claims are procedurally defaulted because Petitioner did not raise those claims in the Michigan Supreme Court on direct review. Petitioner, however, has submitted documentation showing that he placed his supreme court application in the prison's outgoing mail on September 13, 2013. See Pet. for Writ of Habeas Corpus, Ex. A, Dkt. No. 1 (Pg. ID 19). For some unknown reason, the application apparently never reached the state supreme court, and the Michigan Supreme Court informed Petitioner on May 1, 2014, that it did not receive any papers from him in 2013. See id., Ex. C (Pg. ID 23). Petitioner does not appear to be at fault for failing to raise his first four claims in the Michigan Supreme Court on direct review. The Court, therefore, excuses the alleged procedural default related to Petitioner's first four claims and proceeds to address those claims, using the following standard of review.

         II. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires habeas petitioners who challenge “a matter ‘adjudicated on the merits in State court' to show that the relevant state court ‘decision' (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.'” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (quoting 28 U.S.C. § 2254(d)). “[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. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt,' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).

         “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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         III. Analysis

         A. Claim One: Insufficient Evidence

         Petitioner alleges first that the prosecution deprived him of due process and a fair trial by producing insufficient evidence of felony murder.

         1. Clearly Established Federal Law

         The Due Process Clause of the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). Following Winship, the critical inquiry on review of a challenge to the sufficiency of the evidence supporting a criminal conviction is

whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote omitted) (emphases in original). “Circumstantial evidence may support a conviction, McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003), and such evidence need not remove every reasonable hypothesis except that of guilt. Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995).” Apanovitch v. Houk, 466 F.3d 460, 488 (6th Cir. 2006).

         Moreover, under AEDPA, the Court's “review of a state-court conviction for sufficiency of the evidence is very limited.” Thomas v. Stephenson, 898 F.3d 693, 698 (6th Cir. 2018). The Supreme Court has “made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam).

         First, it is the responsibility of the trier of fact to decide what conclusions should be drawn from the evidence admitted at trial. Id. “And second, on habeas review, ‘a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'” Id.

“[T]his standard is difficult to meet, ” no doubt, but “that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). “[H]abeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Id. at 102-03, 131 S.Ct. 770 (internal quotation marks and citation omitted).

Thomas, 898 F.3d at 698.

         2. Felony Murder

         The Jackson “standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law, ” Jackson, 443 U.S. at 324 n.16, and, in Michigan,

[t]he elements of first-degree felony murder are: “ ‘(1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [MCL 750.316(1)(b), here larceny].' ” People v. Carines, 460 Mich. 750, 758-759, 597 N.W.2d 130 (1999) (citation omitted).

People v. Smith, 478 Mich. 292, 318-19; 733 N.W.2d 351, 365 (2007).

To prove felony murder on an aiding and abetting theory, the prosecution must show that the defendant (1) performed acts or gave encouragement that assisted the commission of the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of the predicate felony. People v. Carines, 460 Mich. 750, 755, 597 N.W.2d 130 (1999).

People v. Riley, 468 Mich. 135, 140; 659 N.W.2d 611, 614 (2003). Malice may be inferred from the use of a deadly weapon, Carines, 460 Mich. at 759; 597 N.W.2d at 136, and from participation in the underlying offense, People v. Bulls, 262 Mich.App. 618, 625; 687 N.W.2d 159, 164 (2004).

         3. Application of the Law to the Facts

         The parties stipulated that Yost was killed by a gunshot wound to the head. The relevant questions are whether Petitioner shot Yost or aided and abetted “Dirt” in shooting Yost, whether the shooting occurred during the commission of an enumerated felony, and whether Petitioner possessed the requisite intent.

         The trial court concluded that sufficient evidence existed to prove that Petitioner either shot Yost or aided and abetted “Dirt” in killing Yost, because the two men were working in ...


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