United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE
AMENDED HABEAS CORPUS PETITION, DENYING A
CERTIFICATE OF APPEALABILITY, AND GRANTING
LEAVE TO APPEAL IN FORMA PAUPERIS
GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE.
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
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 July 23, 2013) (unpublished).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.
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.
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
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).
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).
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).
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).
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).
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).
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).
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.
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.
Standard of Review
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).
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.
Claim One: Insufficient Evidence
alleges first that the prosecution deprived him of due
process and a fair trial by producing insufficient evidence
of felony murder.
Clearly Established Federal Law
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.
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).
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
“[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.
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).
Application of the Law to the Facts
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
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 ...