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Bilal v. Rewerts

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

May 6, 2019

AKRAM RAHAM BILAL, Petitioner,
v.
RANDEE REWERTS, Respondent.

          OPINION

          Janet T. Neff, United States District Judge

         This is 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 claim.

         Discussion

         I. Factual allegations

         Petitioner 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 felony-firearm convictions.

         On 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, PageID.14.)

         The 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 ON ACCIDENT.
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: DEN[]YING [PETITIONER] A FAIR TRIAL.
A. THROUGHOUT [PETITIONER'S] TRIAL, THE PROSECUTOR USED A STRATEGY THAT WAS CALCULATED TO SCARE THE JURY INTO CONVICTING [PETITIONER].
B. THE PROSECUTOR EXPRESSED HIS BELIEF IN THE GUILT OF [PETITIONER].
VI. THE TRIAL COURT VIOLATED [PETITIONER'S] DUE PROCESS RIGHTS BY ADMITTING GRUESOME PHOTOGRAPHS OF THE DECEDENT WHERE THE UNFAIR PREJUDICE SUBSTANTIALLY OUTWEIGHED ANY PROBATIVE VALUE.
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.)

         Petitioner's 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.

         Violet 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.)

         Gregory 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.)

         On the 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.)

         Petitioner 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., PageID.34.)

         Jeffrey 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.[1]

         On 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.

         Petitioner 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.[2] (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.)

         Petitioner 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.)

         Petitioner 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.)

         Petitioner timely filed the instant habeas action on March 21, 2019.

         II. AEDPA standard

         This 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).

         The 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).

         A 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).

         The 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).

         III. Ground II: Sufficiency of the Evidence

         Petitioner 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).

         The 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. 2009)).

         The 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 (1992).
* * *
“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 ...

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