United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
Sheer, (“petitioner”), confined at the Macomb
Correctional Facility in Lenox Township, Michigan, seeks the
issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, petitioner
challenges his conviction for armed robbery, M.C.L.A.
750.529. The trial court sentenced Sheer as an habitual
offender, fourth offense, M.C.L.A. 769.12, to 18 to 40
years' imprisonment, to be served consecutive to a parole
sentence. For the reasons stated below, the petition for a
writ of habeas corpus is DENIED.
was convicted of the above offenses following a jury trial in
the Oakland County Circuit Court. This Court recites verbatim
the relevant facts relied upon by the Michigan Court of
Appeals, which are presumed correct on habeas review pursuant
to 28 U.S.C. § 2254(e)(1). See Wagner v.
Smith, 581 F.3d 410, 413 (6th Cir. 2009):
At about 11:00 p.m. on November 10, 2009, a man entered and
robbed an adult novelty store with a utility knife, taking
$588 and a number of DVDs. Sheer's former girlfriend,
Misty Michelle Justice, testified at trial. Before
Justice's testimony commenced, juror questions distracted
the trial court, and the trial court inadvertently neglected
to swear in Justice. Neither the prosecution nor Sheer
objected to Justice's subsequent unsworn testimony.
Justice testified that at about 10:00 p.m. on November 10,
2009, Sheer left the couple's trailer in Justice's
vehicle, and then returned to the trailer at about 4:00 a.m.
According to Justice, when Sheer returned, he had money and
DVDs. On November 19, 2009, Justice gave the police her
account of Sheer's behavior surrounding the time of the
robbery. Thereafter, the police searched the trailer and
found 38 DVDs that were stolen during the robbery. The police
also searched Justice's vehicle and found a utility
knife. Sheer now appeals.
People v. Sheer, No. 302109, 2012 WL 470194, at *1
(Mich. Ct. App. Feb. 14, 2012).
conviction was affirmed on appeal. Id.; lv. den. 492
Mich. 855, 817 N.W.2d 85 (2012).
filed a post-conviction motion for relief from judgment
pursuant to M.C.R. 6.500, et. seq., which the trial
court denied. People v. Sheer, No. 10-230574-FC
(Oakland County Cir. Ct. Feb. 6, 2015). The Michigan
appellate courts denied petitioner leave to appeal.
People v. Sheer, No. 328623 (Mich. Ct. App. Nov. 4,
2015); lv. den. 500 Mich. 853, 883 N.W.2d 752
seeks a writ of habeas corpus on the following grounds:
I. Mr. Sheer was denied his right to a fair trial, a properly
instructed jury, and his full right to confrontation, under
the U.S. Const Am VI, and Const 1963, Art 1, § 20, where
the trial court failed to have a - perhaps the key -
prosecution witness sworn under oath or affirming the truth
of her proposed testimony, as is required by statute and
court rule, and the witness provided highly prejudicial and
incriminating evidence; and, his Sixth Amendment right to the
effective assistance of counsel through counsel's failure
II. The prosecutor violated appellant[']s due process
rights by providing false testimony that Misty Justice and
defendant lived together at the time of the armed robber[y]
at Intimate Idea store; alternatively[, ] due process
entitled appellant to a new trial based on newly discovered
III. Defendant was unlawfully deprived of the effective
assistance of trial counsel when trial counsel failed to
object to the State's violation of the court's
discover[y] order, and to object to the voice identification
testimony and further because he failed to adequately
challenge misidentification of the defendant and where he
failed to adequately investigate possible methods to impeach
Mistie Justice as part of his trial strategy. Because of
these cumulative errors of trial counsel deprived defendant
from receiving a fair trial.
IV. Decision [that] counsel was not ineffective in not
objecting to voice identification was objectively
unreasonable as state court decision arrived at a conclusion
opposite to that reached by [the supreme] court.
V. Decision [that] counsel was not ineffective in not
challenging the in court identification was objectively
unreasonable as [the] state court's decision arrived at a
conclusion opposite to that reached by [the supreme] court.
VI. Decision [that] counsel was not ineffective in not
properly investigating his trial strategy to impeach the
perjury testimony of the prosecutor's witness was
objectively unreasonable as [the] state court's decision
arrived at a conclusion opposite to that reached by [the
VII. The prosecutor unlawfully deprived the defendant of his
due process right to a fair trial when the prosecutor
[admitted] into evidence Exhibits PX1, PX4, PX5 and PX6 based
on hearsay testimony of Officer Dennis Servis which was not
authenticated by the sworn testimony of Mistie Justice and
further trial counsel's failure to object to this highly
prejudicial hearsay testimony evidence amounted to
ineffective assistance of counsel at trial.
VIII. Decision [that] counsel was not ineffective in not
objecting to the highly prejudicial uncorroborated testimony
of the officer was objectively unreasonable as [the] state
court's decision arrived at a conclusion opposite to that
reached by [the supreme] court.
IX. Defendant Sheer is entitled to relief from judgment
because the trial court[']s ruling [that] Sheer had not
shown cause under MCR 6.508(D)(3) for not raising the issues
he now raises on appeal was clearly erroneous and [an] abuse
of discretion as appellate counsel['s] failure to raise
them unlawfully deprived him of his Sixth Amendment right to
effective assistance of counsel on appeal.
has filed an answer in opposition to the petition for a writ
of habeas corpus, which is construed in part as a motion to
dismiss on the basis that petitioner's claims are barred
by procedural default. See Alvarez v. Straub, 64
F.Supp.2d 686, 689 (E.D. Mich. 1999).