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Flemister v. Palmer

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

April 12, 2019

MERCEDES VALENTINO FLEMISTER, Petitioner,
v.
CARMEN D. PALMER, Respondent.

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

          VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.

         Petitioner Mercedes Valentino Flemister filed a pro se habeas corpus petition challenging his state convictions for first-degree (felony) murder, Mich. Comp. Laws § 750.316(1)(b), two counts of armed robbery, Mich. Comp. Laws § 750.529, first-degree home invasion, Mich. Comp. Laws § 750.110a(2), unlawfully driving away an automobile, Mich. Comp. Laws § 750.413, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. Petitioner alleges that his trial attorney was ineffective and that the trial court violated his right of confrontation by allowing the jury to hear testimony about his co-defendant's statements to a relative.

         The State argues in its answer that Petitioner's ineffective assistance of counsel claim lacks merit and that the Michigan Court of Appeals reasonably rejected the claim. The State also argues that Petitioner was not denied his right of confrontation and that any error was harmless. The Court agrees that Petitioner's claims do not warrant habeas relief. Accordingly, the Court will deny the petition.

         I. Background

         The Michigan Court of Appeals summarized the facts leading to Petitioner's arrest and convictions as follows:

On December 7, 2011, defendant and his half-brother Dale Freeman embarked on a crime spree in Detroit. First, they stole a minivan. They then robbed a woman, at gunpoint, at a gas station. Finally, while looking for other victims, they saw a lone man walking down the street to work. Defendant and Freeman abducted the man and forced him to take them to his home. After arriving at his house, defendant went inside with the victim, while Freeman remained in the stolen car.[1] In the course of [a] robbery, defendant shot the victim, killing him. . . . .
The wife of the murder victim unequivocally identified defendant as her husband's assailant in court, and the victim of the gas station robbery identified defendant as the man that robbed her. The police . . . found defendant's fingerprint on a roll of tape in the car used in the crimes. Moreover, defendant's cousin . . . testified that defendant told him that defendant and Freeman stole a car, searched for robbery victims, abducted the homeowner, robbed the homeowner in his home, and shot him.

People v. Flemister, No. 317459, 2014 WL 7441311, at *1, *2 (Mich. Ct. App. Dec. 30, 2014) (footnote in original) (emphasis omitted).

         Petitioner was extradited from Texas about six months after the crimes. He and Freeman were tried jointly before a single jury in Wayne County Circuit Court. Neither one testified. Petitioner did not present witnesses. His defense was that the prosecution did not prove its case beyond a reasonable doubt. Defense counsel argued to the jury that the photo show-up was tainted, the man in the surveillance video at the gas station did not resemble Petitioner, the victims' description of the perpetrator did not match Petitioner, no independent evidence corroborated the identifications, and Petitioner's cousin, Spencer Flemister, was not a credible witness because he got a good deal for testifying against the defendants.

         Freeman's only witness was his, and Petitioner's, mother (Diana Flemister) who testified that, since Freeman's spinal-cord injury in 2010, she was his care-giver and that Freeman was always at home with her. Mrs. Flemister testified that Petitioner did a lot of truck driving and was living out of state or traveling between Texas and Detroit at the time of the crimes.

         Freeman's defense was that he was present during the crimes, but that he did not assist in committing them, and that he did not know the other person intended to commit the crimes. He also maintained, like Petitioner, that their cousin Spencer was not believable.

         On June 19, 2013, the jury found Petitioner guilty, as charged, of first-degree (felony) murder, two counts of armed robbery, first-degree home invasion, unlawfully driving away an automobile, felon in possession of a firearm, and possession of a firearm during the commission of a felony.[2] On July 3, 2013, the trial court sentenced Petitioner to two years in prison for possession of a firearm during the commission of a felony, followed by life imprisonment for the murder and concurrent prison terms of 75 to 150 years for the two robberies, ten to twenty years for the home invasion, and three to five years for being a felon in possession of a firearm and unlawfully driving away an automobile.

         In an appeal of right, Petitioner argued through appellate counsel that his trial attorney was ineffective and that the trial court erred by allowing his cousin to testify about Freeman's statements to their cousin regarding Petitioner's involvement in the crimes. Petitioner argued in a pro se supplemental brief that the prosecutor's comments about Petitioner being visible in a photograph and surveillance video encroached on the province of the jury.

         While the appeal remained pending, Petitioner moved to remand his case to the trial court for an evidentiary hearing on his claim about trial counsel.[3] The Michigan Court of Appeals granted the motion for a remand and retained jurisdiction. See People v. Flemister, No. 317459 (Mich. Ct. App. Apr. 16, 2014). Petitioner subsequently moved for a new trial. The trial court held an evidentiary hearing and denied the motion for a new trial.

         The Michigan Court of Appeals affirmed Petitioner's convictions. See Flemister, 2014 WL 7441311. The Michigan Supreme Court denied his subsequent application for leave to appeal because it was not persuaded to review the issues. See People v. Flemister, 497 Mich. 1029; 863 N.W.2d 53 (2015). On August 29, 2016, Petitioner filed his habeas corpus petition.

         II. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires federal 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 proceeding.” 28 U.S.C. § 2254(d). Deciding whether a state court's decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons-both legal and factual-why state courts rejected a state prisoner's federal claims, ” Hittson v. Chatman, 576 U.S. __, __, 135 S.Ct. 2126, 2126, 192 L.Ed.2d 887 (2015) (GINSBURG, J., concurring in denial of certiorari), and to give appropriate deference to that decision, Harrington v. Richter, 562 U.S. 86, 101-102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018). When, as in this case, the last state court to decide a prisoner's federal claim explains its decision on the merits in a reasoned opinion, “a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.” Id. at 1192. “

         [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). In fact, “[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.” Richter, 562 U.S. at 101 (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.

         “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). “Furthermore, state findings of fact are presumed to be correct unless the defendant can rebut the presumption by clear and convincing ...


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