United States District Court, E.D. Michigan, Southern Division
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
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
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.
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.
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
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)
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.
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.
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
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. 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.
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.
the appeal remained pending, Petitioner moved to remand his
case to the trial court for an evidentiary hearing on his
claim about trial counsel. 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.
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.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) requires federal habeas petitioners who
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. “
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).
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.
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 ...