Brantley v. Harry

          OPINION & ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE

         Brayce Brantley, (“Petitioner”), a Michigan prisoner, filed this action under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Wayne Circuit Court of both first-degree felony and premeditated murder, Mich. Comp. Laws § 750.316; first-degree home invasion, Mich. Comp. Laws § 750.110a(2); two counts of assault with intent to commit murder, Mich. Comp. Laws § 750.83; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. Petitioner was sentenced to life imprisonment for the murder conviction and lesser terms for his other convictions.

         The petition raises thirteen claims: (1) the verdict was against the great weight of the evidence, (2) a prosecution witness's identification testimony was tainted by a suggestive pretrial identification procedure, (3) a co-defendant's hearsay statement implicating Petitioner as the shooter was erroneously admitted at trial, (4) one of Petitioner's life sentences for his first-degree murder convictions should be vacated, (5) Petitioner was entitled to a pretrial competency hearing, (6) the presence of six jurors with friends or family in law enforcement denied Petitioner his right to an unbiased jury, (7) the prosecutor committed misconduct during the questioning of a police witness, (8) the trial court erroneously failed to reread testimony requested by the deliberating jury, (9) Petitioner's trial was rendered unfair by the substitution of the trial judge when the verdict was read, (10) defense counsel failed to preserve the foregoing errors, (11) the trial court relied on an erroneous set of facts in sentencing Petitioner, affecting his chances at commutation, (12) the cumulative effect of the foregoing errors rendered Petitioner's trial unfair, and (13) appellate counsel's actions prejudicially conferred jurisdiction on the state court.

         The Court denies the petition because Petitioner's claims are without merit. The Court also denies Petitioner a certificate of appealability, but grants permission to 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). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendants' convictions arise from a home invasion and shooting at an apartment building in Detroit on March 6, 2014. According to the prosecutor's theory of the case, defendants Brantley and Stoudemire accompanied John Stevenson to an apartment for the purpose of robbing Marquis Walker, who sold marijuana and was a competitor of defendants' friend, Dwan Wilson. While at the apartment, shooting erupted during which Walker was wounded, Walker's fiancée Jenny Vallis was wounded and paralyzed, and Walker's friend Austin Freeman was killed. Witnesses identified Brantley as the shooter. Stevenson pleaded guilty to second-degree murder and testified against Brantley and Stoudemire at their joint trial.

People v. Brantley, 2017 WL 62010, at *1 (Mich. Ct. App. January 5, 2017).

         Prior to trial, defense counsel moved to suppress surviving victim Marquise Walker's in-court identification of Petitioner based on a suggestive pretrial identification procedure. The trial court held an evidentiary hearing on the claim. Detroit Police Detective Johnell White testified that Walker identified Petitioner in all three sets of photograph arrays he showed him. On questioning by the court, White explained that after showing Walker the black-and-white array of six photographs and Walker selected Petitioner, White showed him the single color photograph of Petitioner for confirmation. This occurred before Walker said he was certain that Petitioner was the shooter. 4/23/2015 Tr., Ex. 8 to Rule 5 Filing, at 15-16 (Dkt. 8-8). White acknowledged that this was not his standard procedure for photo arrays. Id. at 17. The court ruled that the fact that Walker was shown more than one photo array did not render the procedure unduly suggestive, and it denied the motion. Id. at 23.

         At trial, Dwan Wilson testified that on the date of the incident he lived in a basement apartment on Lansing Street in Detroit. Wilson was home with Petitioner's co-defendant Kimani Stoudemire when Petitioner and John Stevenson came over. 4/29/2015 Tr., Ex. 10 to Rule 5 Filing, at 50 (Dkt. 8-10). A woman came to the door to buy some marijuana, and Wilson sold her some. The woman mentioned that there was someone else selling marijuana upstairs in the building. Petitioner then started talking about going upstairs and robbing them. Petitioner was armed with a handgun. Wilson did not see anyone else armed with a firearm. Petitioner told Wilson that he was going to help Wilson kill someone. Wilson declined, and Petitioner then convinced Stoudamire and Stevenson to go with him.

         Petitioner, Stoudamire, and Stevenson then left to go to the upstairs apartment. Ten minutes later, Wilson heard about four gunshots. Wilson later spoke to Stoudamire over the phone, and he told Wilson that they went up and knocked on the door, somebody kicked in the door, and Petitioner went inside shooting. Wilson identified Petitioner and Stoudamire in photo lineup procedures.

         Marquise Walker testified that on the date of the shooting he was living in a third-floor apartment on Lansing Street. Walker sold marijuana, chips, pop, cigarettes, and other things from the apartment. He was in the apartment with Austin Freeman and Jenny Vallis at the time of the incident. At about 6 p.m., there was a knock and Walker found three men standing at his door. Walker recognized two of the men. They asked if he had any marijuana, and Walker answered that he did not. Vallis, who was sitting on a nearby bed, responded that they still had two cigarettes left. Walker was then shot in the shoulder by Petitioner. He did not see the gun until it fired. Petitioner shot him again in the lower abdomen, and Walker stumbled onto the bed.

         Walker saw Petitioner and Stevenson come into the apartment, and Petitioner shot Vallis. Walker closed his eyes and continued to hear shots. After the men left, Walker locked the door and saw that Freeman had also been shot and was unresponsive. Vallis could not speak. Walker found the phone and called 9-1-1.

         Police officers and EMS arrived, kicked down the door, and took Walker to the hospital . Petitioner identified Petitioner's photograph as the shooter in a set of three photograph arrays. He was certain that three men entered his apartment and that Petitioner was the shooter. 4/29/2015 Tr. at 109-113.

         Jenny Vallis testified that she was Walker's girlfriend, and they lived together at the apartment. On the evening of the incident, three men came to their door, and she recognized Stevenson as one of them. She was lying on the bed when one of the men shot her. Vallis was eventually taken to the hospital, but she lost the use of her legs as a result of the shooting.

         John Stevenson testified that on the evening of the shooting he was in the basement apartment with Stoudmire and Petitioner. 4/30/2015 Tr., Ex. 11 to Rule 5 Filing, at 14-16 (Dkt. 8-11). They went upstairs to Walker's apartment to rob him. Stevenson testified that Petitioner knocked on the door, and Walker answered. Stevenson asked for marijuana and cigarillos. Walker said he did not have cigarillos, but he had marijuana. When Walker turned to get the marijuana, Petitioner shot him in the back. Stevenson heard a few more shots being fired. Stevenson went into the apartment, but he did not take anything. Stevenson was arrested about a week later and made a statement to police. He subsequently pleaded guilty to a reduced charge of second-degree murder, with a sentence agreement of fifteen to thirty years.

         Based on this evidence, Petitioner and his co-defendant were found guilty by separate juries.

         Following sentencing, Petitioner was appointed appellate counsel who filed a claim of appeal. Appellate counsel filed a brief on appeal raising four claims:

I. Defendant-Appellant Brayce Brantley is entitled to a new trial because the verdict was against the great weight of the evidence.

II. Defendant-Appellant Brayce Brantley was denied due process and a fair trial when Marquis Walker was allowed to identify him in court, following suggestive pretrial identification procedures.

III. Defendant-Appellant Brayce Brantley was denied due process and a fair trial when his co-defendant's statement, incriminating Mr. Brantley, was admitted through hearsay over his trial counsel's objection.

IV. Defendant-Appellant Brayce Brantley is entitled to have his case remanded to the trial court for modification of his judgment of conviction and sentence to specify a single conviction of first-degree murder supported by two theories.

Petitioner also filed a supplemental pro se brief on appeal that raised an additional nine claims:

V. Petitioner was denied a fair trial as guaranteed by both state and federal constitutions when the government proceeded against Petitioner without first ascertaining whether or not Petitioner was even competent to stand trial.

VI. Petitioner was denied a fair trial by and through the violation of his guaranteed state and federal constitutional rights to an unbiased and impartial jury, when six jurors were permitted to remain on Petitioner's jury - especially after disclosing during voir dire that they had either close friends or family in the legal profession and or law enforcement.

VII. Petitioner was denied a fair trial as guaranteed under both federal and state constitutions, when the prosecution failed to ensure that Petitioner's due process protections were secured by arguing facts not in evidence, that not only effectively took away Petitioner's right to present a defense, but impermissibly shifted the burden of proof on Petitioner, and made him a witness against himself.

VIII. Petitioner was denied a fair trial as guaranteed under both state and federal constrictions, when the court refused to have critical testimony re-read to Petitioner's deliberating jury as requested.

IX. Petitioner was denied a fair trial as guaranteed under both state and federal constitutions, when Petitioner's judge was substituted on the last day of trial without any explanation on the record, and without first fulfilling the requirements of MCR 2.630 and MCR 6.440.

X. Petitioner was denied a fair trial as guaranteed under both state and federal constitutions, when trial counsel abandoned his duty to protect Petitioner's constitutional rights from the misconduct of both the trial court and the prosecution.

XI. Petitioner was denied a fair trial as guaranteed under both state and federal constitutions, when the sentencing court placed on the record a false set of facts and prejudicial remarks which prejudiced Petitioner when the court made Petitioner the leader of the group of perpetrators, all of which were contrary to the physical facts and evidence presented at trial.

XII. Petitioner was denied his fundamental protections to a fair criminal proceeding by and through the cumulative effect of error that took place at the hands of the trial court, the prosecution, defense counsel and appellate counsel.

XIII. Petitioner reserves the right to raise the issue of constructive denial of appellate counsel should the need arise - depending upon the outcome of the decision of the Court of Appeals - especially where appellate counsel; in raising its four issues; may have given jurisdiction to a court that did not have it from the beginning as ...