United States District Court, E.D. Michigan, Southern Division
STEVEN B. ANDERSON, Plaintiff,
THOMAS WINN, Defendant.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING
PERMISSION TO APPEAL IN FORMA PAUPERIS
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE.
B. Anderson, (“Petitioner”), a Michigan prisoner,
filed this action under 28 U.S.C. § 2254. Petitioner was
convicted after a jury trial in the Kalamazoo Circuit Court
of first-degree premeditated murder, Mich. Comp. Laws §
750.316, assault with intent to commit murder, Mich. Comp.
Laws § 750.83, felon in possession of a firearm, Mich.
Comp. Laws § 750.224f, and three counts of possession of
a firearm during the commission of a felony. Mich. Comp. Laws
§ 750.227b. Petitioner was sentenced as a third-time
habitual felony offender to a controlling sentence of life
imprisonment for the murder conviction and lesser terms for
his other offenses.
petition raises ten claims: (1) the prosecutor committed
misconduct by introducing false testimony, (2) Petitioner was
denied the effective assistance of trial and appellate
counsel, (3) the trial court erred in admitting hearsay, (4)
the trial court erred in failing to intervene when the
prosecutor committed misconduct, (5) the prosecutor engaged
in additional acts of misconduct, (6) the prosecutor withheld
exculpatory evidence, (7) Petitioner's trial counsel was
ineffective for additional reasons, (8) the trial court
lacked jurisdiction, (9) the jury's verdict was against
the great weight of the evidence, and (10) the
ineffectiveness of Petitioner's appellate counsel
constitutes cause to excuse any procedural default of the
claims raised on state post-conviction review.
Court denies the petition because Petitioner's claims are
without merit or barred by his state court procedural
default. The Court also denies Petitioner a certificate of
appealability, but grants permission to appeal in forma
Michigan Court of Appeals summarized the facts surrounding
Petitioner's case as follows:
The prosecution arises out of a shooting in Kalamazoo in
which one man was killed and a second man was injured. There
was strong evidence reflecting that the attack on the two
victims was perpetrated by Anderson, Wright, who had
allegedly been assaulted weeks earlier by, among others, the
homicide victim, and Jaquan Henderson, who was convicted of
second-degree murder and other charges following a separate
trial. The evidence showed that, during the commission of the
offenses, Wright wielded and fired a .44 caliber handgun,
Henderson employed a .380 caliber weapon, and that Anderson
discharged a shotgun. The evidence further indicated that the
surviving victim had been struck by shotgun fire, while the
deceased was hit by a gunfire from a .44 caliber firearm.
People v. Anderson, 2014 WL 2931820, at *1 (Mich.
Ct. App. June 26, 2014).
evidence presented at trial indicated that on December 17,
2011, Romney Hunter and other men assaulted and robbed Robert
Wright. Wright was hospitalized after the assault. Wright
told the police he did not know who assaulted him.
weeks later, during the early evening hours of January 8,
2012, Hunter and Troy Whitfield were standing outside a
residential address in Kalamazoo, while friends were drinking
and working on a vehicle parked in the driveway. Whitfield
heard shots, so he jumped in the back of the vehicle, and he
and two other men drove away. Whitfield sustained two shots
to his leg.
Whitfield and the others returned to the scene, Whitfield saw
Hunter lying on the ground at the end of the driveway. Hunter
had been shot in the chest and killed. An ambulance arrived
and transported Whitfield to the hospital.
ground at the scene of the shooting the police found
Petitioner's cell phone. They also found several spent
casings and an empty 12-gauge shotgun shell. A shotgun
consistent with the shell found at the scene was subsequently
located in the Kalamazoo River.
Sandifer testified that on January 8, 2012, he was with
Petitioner when Petitioner saw Hunter. Petitioner called
Wright and told him that he spotted one of the guys that
jumped him. They met up with Wright, and Petitioner handed
him a handgun. Henderson was also present. Sandifer was
charged with two counts of accessory after the fact and
testified as a prosecution witness pursuant to a plea
testified that Petitioner, Wright, and Henderson walked
towards the house where the shooting eventually happened,
while Sandifer drove past them. Sandifer heard gunshots. He
saw Petitioner running through a field, and he saw Henderson
and Wright running down the street.
got in Sandifer's car and they drove to Bernice
Wyatt's house; Wyatt was Petitioner's girlfriend.
Sandifer saw Petitioner pull a shotgun out of his pants leg.
Petitioner said that the shotgun jammed and that he had lost
his cell phone. (The shotgun later found in the Kalamazoo
River, which matched the shotgun shell discovered at the
scene of the shooting, was also jammed.) Sandifer later heard
Petitioner call Wyatt and tell her to have someone take the
guns to his sister's house.
Shoffner testified that he was friends with Petitioner. He
identified photographs of the men brandishing guns that were
consistent with those used in the shooting. On the evening of
January 8, 2012, Shoffner was at Wyatt's home. Petitioner
told Shoffner that he was present at a shooting and that his
shotgun jammed after he shot it. Petitioner also said that he
dropped his cell phone at the scene.
at Wyatt's direction, Shoffner took a garbage bag to
another house. He saw the barrel of a shotgun poking out of
the bag. The next morning Shoffner heard Petitioner talking
to someone on the phone about getting rid of something in the
Ford testified that Wright was the father of her children. On
January 8, 2012, Ford heard Wright call Petitioner and
Henderson. She was also present in the car with Wright when
he met Petitioner and Sandifer. She did not see any guns, but
she heard a reference to the shotgun. Ford testified that
they drove to the area of the shooting, and Henderson and his
brother arrived in another vehicle. Ford testified pursuant
to a plea agreement in a pending drug case.
observed Wright, Petitioner, and Henderson walk off. She did
not see any weapons. Ford heard gunshots. She saw Henderson
get into one vehicle while Wright walked back from the
location of the shooting.
Mister testified that a few days after the shooting, Shoffner
brought a black garbage bag to her home. He placed it on her
back porch, where it remained until it was removed a few days
to Petitioner's trial, co-defendant Jaquan Henderson was
tried and convicted of second-degree murder. When the
prosecutor called Henderson as a witness, Petitioner's
counsel objected, arguing that the prosecutor was knowingly
presenting false testimony. Defense counsel noted that
Henderson testified in his own defense at his trial that he
lied to the police during interviews, and that the prosecutor
conducted a lengthy cross examination “where it was
apparent that [the prosecutor] caught Mr. Henderson, again,
even lying during his own trial.” ECF No. 8-10
counsel indicated that she had reviewed Henderson's trial
transcripts, and that “it was very apparent to the
prosecution that he was not truthful at his own testimony.
There were numerous pages where he was cross-examined by the
- by the prosecutor where it came off that he was not
truthful. So, I - I have no faith that this man will uphold
his oath to tell the truth today. He's not been truthful
up until this point.” Id. at PageID.696-97.
[W]hat was given in terms of any, I guess, incentive to
testify on Mr. Henderson's behalf is that when he
testifies, the thing that I can do for him is, I will write
to the prison as it relates to his cooperation in this matter
and I will explain fully what he has done in that regards. It
was also discussed with his appellate attorney and that Mr.
Henderson should be aware, that if his appeal somehow was
successful that anything he says here in court today that he
could not be facing charges on any more serious matter if it
went back, because that was first-degree open - murder back
then. The jury came with second-degree. So, whatever happens
here, if his appeals granted, it would still go back and he
would be subject to not the more serious first-degree - life
time without parole offense. And, I believe that Mr.
Henderson was made aware of that.
Id. at PageID.699-700.
trial court overruled the objection, stating:
That's certainly something that the attorneys can explore
given what was indicated in the police reports. I don't
know what's in there. I don't have those in front of
me. Given his testimony at trial - but, I'm not here to
make a decision as to whether or not somebody's lying or
not. That's up to the jury. They can certainly make that
determination on their own, and unfortunately there are folks
that do not tell the truth under oath. And, again, that's
for the jury to sort out. I don't - I'm not aware of
any authority I have to exclude someone just because they
have said an inconsistent statement, or again, have lied in
the past. That's not for me to determine. That's for
all of you to question with regards to cross-examination.
Id. at PageID.700.
counsel renewed the objection later in the trial, noting that
Henderson had taken a polygraph examination which indicated
he was being deceptive. ECF No. 8-11 PageID.755-56. The
prosecutor informed the court that the polygraph questions
related to a firearm and what he may have done with it during
the commission of the offense. The detectives then
re-interviewed him, and he gave further information.
Id. at PageID.756. The prosecutor added,
“Let's be clear, I'm not putting up a witness
who I believe will lie intentionally about any material fact
in this case.” Id. at PageID.756-57.
testified that he was then in prison because of his role in
the shooting. He was testifying in exchange for the
prosecutor writing a letter to the prison authorities.
Henderson testified that had known Wright for about a year.
Henderson met Petitioner on the night of the incident. On
January 8, 2012, Wright called Henderson and told him to meet
him in a residential neighborhood. When Henderson arrived,
Wright asked him to beat up a guy who was around the corner
because the guy had jumped him.
and Sandifer then arrived. Wright told Petitioner that he was
going to have Henderson “whoop” the guy.
Petitioner said “I ain't come to watch nobody
fight. I'm fixin' to body one of them.”
Id. at PageID.716. ...