United States District Court, W.D. Michigan, Southern Division
T. Neff, United States District Judge
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Promptly after the filing of a petition
for habeas corpus, the Court must undertake a preliminary
review of the petition to determine whether “it plainly
appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief
in the district court.” Rule 4, Rules Governing §
2254 Cases; see 28 U.S.C. § 2243. If so, the
petition must be summarily dismissed. Rule 4; see Allen
v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district
court has the duty to “screen out” petitions that
lack merit on their face). A dismissal under Rule 4 includes
those petitions which raise legally frivolous claims, as well
as those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434,
436-37 (6th Cir. 1999). After undertaking the review required
by Rule 4, the Court concludes that the petition must be
dismissed because it fails to raise a meritorious federal
Akram Raham Bilal is incarcerated with the Michigan
Department of Corrections at the Carson City Correctional
Facility (DRF) in Carson City, Montcalm County, Michigan.
Petitioner pleaded guilty to being a felon in possession of a
firearm, Mich. Comp. Laws § 750.224f Following a
four-day jury trial in the Jackson County Circuit Court,
Petitioner was convicted of second-degree murder, Mich. Comp.
Laws § 750.317, concealing the death of an individual,
Mich. Comp. Laws §333.2841(3), and two counts of
possessing a firearm during the commission of a felony
(felony firearm), Mich. Comp. Laws § 750.227b. On
October 22, 2015, the court sentenced Petitioner as a
third-offense felony offender, Mich. Comp. Laws §
769.11, to concurrent prison terms of 30 to 60 years on the
murder conviction and 6 to 10 years each on the
felon-in-possession and concealing-a-death convictions,
together with two consecutive terms of 2 years on the
April 11, 2019, Petitioner filed his habeas corpus petition.
Under Sixth Circuit precedent, the application is deemed
filed when handed to prison authorities for mailing to the
federal court. Cook v. Stegall, 295 F.3d 517, 521
(6th Cir. 2002). Petitioner placed his petition in the prison
mailing system on March 21, 2019. (Pet., ECF No. 1,
petition raises seven grounds for relief, as follows:
I. THE TRIAL COURT ERR[ED] WHEN DENYING [PETITIONER'S]
MOTION FOR AN EVIDENTIARY HEARING AND A NEW TRIAL WHEN AN
EVIDENTIARY HEARING IS NECESSARY TO SHOW [PETITIONER] WAS
DENIED THE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL AS TRIAL COUNSEL FAILED TO UPHOLD THE STANDARDS OF
THE SIXTH AMENDMENT BY FAILING TO REQUEST A JURY INSTRUCTION
II. [PETITIONER'S] CONVICTION OF SECOND-DEGREE MURDER
MUST BE VACATED AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE
BEYOND A REASONABLE DOUBT THAT [PETITIONER] ACTED WITH THE
ESSENTIAL ELEMENT OF MALICE.
III. [PETITIONER] IS ENTITLED TO RESENTENCING BECAUSE THE
STATUTORY SENTENCING GUIDELINES WERE MISSCORED AS TO OFFENSE
VARIABLES, WHICH AFFECTED THE STATUTORY GUIDELINES RANGE.
IV. [PETITIONER] WAS DENIED HIS CONSTITUTIONAL RIGHT TO AN
IMPARTIAL JURY, UNDER U.S. CONST. AMENDS. VI AND XIV; MICH.
CONST. 1963, ART. 1, SEC. 20, BY THE COURT ALLOWING A JUROR
THAT WAS A VICTIM OF DOMESTIC VIOLENCE, HAD LOST A CHILD AS A
RESULT, AND HAD INITIALLY EXPRESSED UNCERTAINTY AS TO WHETHER
SHE COULD BE UNBIASED IN [PETITIONER'S] CASE, THAT ALSO
INVOLVED DOMESTIC VIOLENCE AND A DEATH AS A RESULT.
V. PROSECUTORIAL MISCONDUCT AND/OR THE POLICE DENIED
[PETITIONER'S] DUE PROCESS OF LAW IN [THE] FOLLOWING
WAYS: DENYING [PETITIONER] A FAIR TRIAL.
A. THROUGHOUT [PETITIONER'S] TRIAL, THE PROSECUTOR USED A
STRATEGY THAT WAS CALCULATED TO SCARE THE JURY INTO
B. THE PROSECUTOR EXPRESSED HIS BELIEF IN THE GUILT OF
VI. THE TRIAL COURT VIOLATED [PETITIONER'S] DUE PROCESS
RIGHTS BY ADMITTING GRUESOME PHOTOGRAPHS OF THE DECEDENT
WHERE THE UNFAIR PREJUDICE SUBSTANTIALLY OUTWEIGHED ANY
VII. [PETITIONER] WAS DENIED HIS DUE PROCESS RIGHTS TO A FAIR
TRIAL BY THE INEFFECTIVE ASSISTANCE OF BOTH TR[IA]L COUNSEL
AND APPELLATE COUNSEL PURSUANT TO U.S. CONST. AMS. VI, XIV,
CONST. 1963, ART. 1, § 20.
A. [PETITIONER] WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, AS EVIDENCE[D] BY TRIAL COUNSEL'S FAILURE TO
PROPERLY INVESTIGATE AND PRESENT EVIDENCE.
B. [PETITIONER] WAS DENIED HIS DUE PROCESS RIGHT TO EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL.
(Pet., ECF No. 1, PageID.5-9, 11-12.)
convictions arose out of the shooting death of Violet Renee
McElroy. The following facts are taken from Petitioner's
brief on appeal to the Michigan Court of Appeals, which is
attached to the petition.
McElroy died from four gunshot wounds to her head, left
cheek, left upper chest, and mid-back from a .22-caliber,
bolt-action rifle. (Def.-Appellant's Br. on Appeal, ECF
No. 1-1, PageID.29-30.) Petitioner and McElroy were
romantically involved, and police knew Petitioner from six to
eight past domestic altercations, during which both
Petitioner and McElroy were highly intoxicated.
(Id., PageID.32, 34.)
Dillay testified that he and Joseph Wisner were working for
the garbage company on July 8, 2015, when Wisner found a .22
rifle, wrapped in a blanket, in a garbage dumpster. Wisner
kept the weapon. Both Dillay and Wisner were interviewed by
police the following day. Wisner testified consistently with
Dillay. (Id., PageID.29-30.)
morning of July 5, 2015, police officers were directed to a
dumpster behind the Reed Manor Apartment complex in Jackson,
Michigan, where they found a dead woman wrapped in
blood-soaked bedding tied up with a cord. Sergeant Rob Jenks
was directed to an apartment, where he found Petitioner.
Jenks could see blood in the apartment. (Id.,
PageID.28.) Officer Dean Schuette, Jr., testified that he
also had contact with Petitioner at the apartment. Petitioner
told Schuette that he did not know what had happened and that
he was intoxicated. Schuette transported Petitioner to the
jail. (Id., PageID.29.) He subsequently interviewed
Petitioner, and the recorded interview was played for the
jury. (Id., PageID.31.) Schuette testified that he
subsequently reviewed a surveillance video, which showed
Petitioner dragging the body. (Id.)
testified that McElroy was his girlfriend and that they had
experienced good times and bad times. Petitioner stated that
McElroy had stabbed him on three prior occasions and that he
had called the police on McElroy on a number of occasions. He
acknowledged that he previously had been jailed after a fight
with McElroy that occurred while they were both intoxicated.
On July 4, 2015, he and McElroy attended a family gathering.
Petitioner claimed that they had been having a good time,
until McElroy became angry, throwing clothes around and
throwing a phone at Petitioner. Petitioner claims that he saw
an open bottle of tequila and poured it down the drain.
Seeing this, McElroy said, “I'm tired of you,
Bitch[.]” (Id., PageID.32.) According to
Petitioner, McElroy had Petitioner's rifle, which was
kept loaded. Petitioner grabbed the rifle, and the firearm
went off. Petitioner thought he was shot, and his “body
went into some kinda mode.” (Id., PageID.33.)
Petitioner stated that, when he saw that McElroy was dead, he
panicked, put the rifle in a garbage can, wrapped McElroy in
a blanket, and dragged her to the dumpster. (Id.) On
cross-examination, Petitioner acknowledged that he did not
tell his story to police at the time. Instead, he admitted,
the police report indicated that McElroy came at him with a
knife and that he acted in self-defense. Petitioner could not
explain how McElroy had four gunshot injuries. (Id.,
Amley of the Michigan State Police testified as an expert in
firearms and tool-mark examination. The defense stipulated
that the rifle found in the trash was the one fired by
Petitioner on the evening in question. Amley testified about
the firing mechanism of the bolt-action rifle (id.,
PageID.31), which requires pulling the bolt back and
re-engaging it between each shot.
September 17, 2015, after a day of deliberations, the Jury
found Petitioner not guilty of first-degree murder, but
guilty of second-degree murder, concealing the death of an
individual, and felony firearm. Petitioner was sentenced as
previously described on October 22, 2015.
appealed his convictions and sentences. In the brief filed by
appellate counsel in the court of appeals, Petitioner raised
the first three issues presented in his habeas petition.
(Def.-Appellant's Br. on Appeal, ECF No. 1-1,
PageID.20-52.) Petitioner presented the fourth issue by way
of a Standard 4 supplemental brief on appeal.
(Def.-Appellant's Supp. Br. on Appeal, ECF No. 1-1,
PageID.54-66.) In an unpublished opinion issued on January
24, 2017, the Michigan Court of Appeals rejected all four
appellate grounds and affirmed the convictions and sentences.
(Mich. Ct. App. Op., ECF No. 1-1, PageID.68-74.) Petitioner
raised the same four issues in an application for leave to
appeal to the Michigan Supreme Court. (Def.-Appellant's
Appl. for Leave to Appeal, ECF No. 1-1, PageID.78-92.) The
supreme court denied leave to appeal on September 12, 2017.
(Mich. Ord., ECF No. 1-1, PageID.95.)
filed a motion for relief from judgment on October 18, 2017,
raising the claims presented as Grounds V, VI, and VII of his
habeas petition. (Mot. for Relief from J., ECF No. 1-1,
PageID.97-117.) In an order issued on December 27, 2017, the
trial court denied the motion, holding that Petitioner did
not raise a jurisdiction defect and had failed to demonstrate
good cause and actual prejudice to excuse his failure to
raise the issues on appeal, either in his pro per
supplemental brief in the court of appeals or in his
application for leave to proceed in the Michigan Supreme
Court. (Jackson Cir. Ct. Order, ECF No. 1-1, PageID. 119.)
appealed the denial of his motion for relief from judgment to
both the Michigan Court of Appeals and the Michigan Supreme
Court, raising the same three grounds. Those courts denied
leave to appeal on August 8, 2018, and February 4, 2019,
respectively. (Mich. Ct. App. Order, ECF No. 1-1, PageID.162;
Mich. Order, ECF No. 1-1, PageID.204.)
timely filed the instant habeas action on March 21, 2019.
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
The AEDPA “prevents federal habeas
‘retrials'” and ensures that state court
convictions are given effect to the extent possible under the
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An
application for writ of habeas corpus on behalf of a person
who is incarcerated pursuant to a state conviction cannot be
granted with respect to any claim that was adjudicated on the
merits in state court unless the adjudication: “(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based upon an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.” 28
U.S.C. § 2254(d). This standard is “intentionally
difficult to meet.” Woods v. Donald, 575 U.S.
__, 135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the holdings, and not the dicta, of the
Supreme Court. Williams v. Taylor, 529 U.S. 362, 412
(2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th
Cir. 2001). In determining whether federal law is clearly
established, the Court may not consider the decisions of
lower federal courts. Williams, 529 U.S. at 381-82;
Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir.
2002). Moreover, “clearly established Federal
law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state
court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011).
Thus, the inquiry is limited to an examination of the legal
landscape as it would have appeared to the Michigan state
courts in light of Supreme Court precedent at the time of the
state-court adjudication on the merits. Miller v.
Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing
Greene, 565 U.S. at 38).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'” Woods, 135
S.Ct. at 1376 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S. 415, 424 (2014) (internal quotations omitted).
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003);
Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
Ground II: Sufficiency of the Evidence
contends that his conviction for second-degree murder should
be vacated, as there was insufficient evidence to prove that
that he acted with malice. A § 2254 challenge to the
sufficiency of the evidence is governed by the standard set
forth by the Supreme Court in Jackson v. Virginia,
443 U.S. 307, 319 (1979), which 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 standard of review recognizes the trier of
fact's responsibility to resolve reasonable conflicts in
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Id.
Issues of credibility may not be reviewed by the habeas court
under this standard. See Herrera v. Collins, 506
U.S. 390, 401-02 (1993). Rather, the habeas court is required
to examine the evidence supporting the conviction, in the
light most favorable to the prosecution, with specific
reference to the elements of the crime as established by
state law. Jackson, 443 U.S. at 324 n.16; Allen
v. Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).
Jackson v. Virginia 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, 443 U.S. at 319. Moreover,
because both the Jackson standard and AEDPA apply to
Petitioner's claims, “the law commands deference at
two levels in this case: First, deference should be given to
the trier-of-fact's verdict, as contemplated by
Jackson; second, deference should be given to the
Michigan Court of Appeals' consideration of the
trier-of-fact's verdict, as dictated by AEDPA.”
Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008).
This standard erects “‘a nearly insurmountable
hurdle'” for petitioners who seek habeas relief on
sufficiency-of-the-evidence grounds. Davis v.
Lafler, 658 F.3d 525, 534 (6th Cir. 2008) (quoting
United States v. Oros, 578 F.3d 703, 710 (7th Cir.
Michigan Court of Appeals comprehensively examined
Petitioner's sufficiency claim, as follows:
Bilal argues that the evidence was insufficient to support
his second-degree murder conviction. This Court
“review[s] de novo a challenge to the sufficiency of
the evidence.” People v Henry (After Remand),
305 Mich.App. 127, 142; 854 N.W.2d 114 (2014). “[W]hen
determining whether sufficient evidence has been presented to
sustain a conviction, a court must view the evidence in a
light most favorable to the prosecution and determine whether
any rational trier of fact could have found that the
essential elements of the crime were proven beyond a
reasonable doubt.” People v Wolfe, 440 Mich.
508, 515; 489 N.W.2d 748 (1992), amended 441 Mich. 1201
* * *
“The elements of second-degree murder are: (1) a death,
(2) caused by an act of the defendant, (3) with malice, and
(4) without justification or excuse.” People v
Goecke, 457 Mich. 442, 463-464; 579 N.W.2d 868 (1998).
“[M]alice is the intention to kill, the intention to do
great bodily harm, or the wanton and willful disregard of the
likelihood that the natural tendency of defendant's
behavior is to cause death or great bodily harm.”
People v Aaron, 409 Mich. 672, 728; 299 N.W.2d 304
(1980). “Intent to kill may be inferred from all the
facts in evidence, including the use of a deadly
weapon.” People v Henderson, 306 Mich.App. 1,
11; 854 N.W.2d 234 (2014). “Minimal circumstantial