United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
BERNARD A. FRIEDMAN, SENIOR U.S. DISTRICT JUDGE.
is a Michigan prisoner who has filed a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Following a jury trial in Ingham County Circuit Court,
Petitioner was convicted of second-degree murder, Mich. Comp.
Laws § 750.317. She was sentenced as a third-offense
habitual offender, Mich. Comp. Laws § 769.11, to 300 to
480 months of imprisonment. Petitioner now challenges the
conviction by asserting a sufficiency of the evidence claim.
For the reasons set forth below, the Court shall deny the
instant petition. The Court shall also deny a certificate of
appealability and leave to proceed on appeal in forma
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):
evening of June 14, 2015, defendant and her eight-year
boyfriend, Jeremy Marshall, visited a club. While at the
club, Marshall apparently interacted with other women, and
these interactions led to an argument between the two. When
the two returned home later that evening, according to
defendant, she and Marshall engaged in a lengthy physical
altercation during which Marshall assaulted and attempted to
rape defendant.[FN1] Two neighbors corroborated
defendant’s account of the
altercation.[FN2]Marshall’s brother, who was
sleeping on a couch in the home, testified that the couple
argued at the club and in the car but said that, once they
returned home, “[e]verything cooled down.”
Consistent with Marshall’s brother’s recollection
of the events that evening, there were also no physical
markings on defendant to support her or the neighbors’
testimony that a physical altercation
occurred.[FN3] At some point during the early
morning hours of June 15, 2015, defendant used a kitchen
knife to stab Marshall to
death.[FN4]Marshall’s cellphone was
recovered during the investigation, and it reflected text
messages to and from a woman, but not defendant, that were
“flirtatious, probably sexual” in nature, that
“described sexual positions they favor or like,”
and that involved plans to meet. Defendant was originally
charged with open murder, MCL 750.316, but, concluding that
the prosecution failed to present sufficient evidence to
support that charge, the trial court instructed the jury only
on the elements of second-degree murder and voluntary
manslaughter. The jury found defendant guilty of
second-degree murder, and she was sentenced as described
above. . . .
[FN1] This is consistent with how defendant
described the events that took place during the early morning
hours of June 15, 2015, at trial and how she describes them
on appeal. [H]owever, it is not how she described those
events to police officers that arrived at her home that
[FN2] It should be noted that defendant admitted
asking her 19-year-old daughter to speak with the neighbors
“to get them on [her] side.”
[FN3] Similarly, defendant did not mention the
alleged assault or attempted rape to police officers who
arrived at the home later that morning.
[FN4] Defendant stabbed Marshall in “his
upper left side of his chest,” and he was pronounced
dead at 5:23 a.m. that morning.
People v. Fundunburks, No. 327479, at *1-2 (Mich.
Ct. App. July 19, 2016) (unpublished); see docket
conviction was affirmed on appeal, id., and the
Michigan Supreme Court denied the application for leave to
appeal. People v. Fundunburks, 889 N.W.2d 260 (Mich.
seeks habeas relief on the following ground:
Defendant-Appellant is entitled to a new trial or entery
[sic] of the lesser ofense [sic] of voluntary manslaughter,
where there was insufficient evidence to find for a
conviction of Second-Degree Murder.
Defendant submits the prosecution failed to satisfy the
requirements of malice. There was no evidence submitted that
defendant either intended to kill, or intended to create a
very high risk of death with the knowledge that her act would
cause death or great bodily harm. The evidence supports a
finding of voluntary manslaughter. . . . What was in dispute
was defendant’s state of mind when she acted.
Defendant’s actions, while intentional, were . . .
committed “under the influence of passion, in the heat