United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY,
AND (3) GRANTING PERMISSION TO APPEAL IN FORMA
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
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.
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.
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
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
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).
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.
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.
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.
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.
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
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.
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
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.
on this evidence, Petitioner and his co-defendant were found
guilty by separate juries.
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
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
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
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
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 ...