Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sheer v. Warren

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

May 8, 2019

DAVID SHEER, Petitioner,
v.
PAT WARREN, [1] Respondent.

          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

          HON. GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         David 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.

         I. Background

         Petitioner 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).

         Petitioner's conviction was affirmed on appeal. Id.; lv. den. 492 Mich. 855, 817 N.W.2d 85 (2012).

         Petitioner 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 (2016).

         Petitioner 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 to object.[2]
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 evidence.
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.[3]
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 supreme] court.[4]
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.[5]
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.[6]
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.[7]

         Respondent 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).

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.