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Fundunburks v. Brewer

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

May 8, 2019

CANDICE FUNDUNBURKS, #753292, Petitioner,
v.
SHAWN BREWER, Respondent,

          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.

         Petitioner 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 pauperis.

         I. Background

         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):

         On the 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 morning.
[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 entry 6-13.

         Petitioner’s 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. 2017).

         Petitioner 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 of ...

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