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Robinson v. Winn

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

June 6, 2019

TOM WINN, [1] Respondent.



         Bennie L. Robinson, (“petitioner”), confined at the Saginaw Correctional Facility in Freeland, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for two counts of second-degree murder, M.C.L.A. § 750.317, felon in possession of a firearm, M.C.L.A. § 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), M.C.L.A. § 750.227b. The trial court sentenced petitioner as a fourth habitual offender, M.C.L.A. § 769.12, to 60 to 100 years' imprisonment for each murder conviction, 40 months to 5 years' imprisonment for the felon in possession of a firearm conviction, and two years' imprisonment for the felony-firearm conviction. For the reasons stated below, the application for a writ of habeas corpus is DENIED WITH PREJUDICE.

         I. Background

         Petitioner was convicted of the above offenses following a jury trial in the Wayne 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):

Defendant's convictions arise from the December 19, 2011 shooting deaths of Earl Thomas, Jr. (Thomas) and Marcus Fly at a drug house in Detroit. At least two other men were present in the home at the time Thomas and Fly were shot. One person, David Sumlin, testified at trial that defendant entered the home in which he, Thomas, Fly, and Frank Coleman were engaged in selling drugs. Sumlin testified that after remaining in the home for approximately half hour, defendant pulled a handgun and ordered Sumlin and Coleman into separate rooms. Sumlin then heard gunshots and, after eventually leaving the room he was in, found Thomas dead and Fly missing. Fly's body was later discovered in the basement. Sumlin was not able to identify defendant or anyone else in a photographic array conducted shortly after the crime, but he later identified defendant at the preliminary examination and at trial. Coleman, who had absconded from parole, did not testify at the preliminary examination and could not be located for trial. Another witness, Larry Davis, testified that shortly after the shooting, Coleman called him on the phone and told him that defendant had shot his brother, Thomas.
The prosecutor's theory at trial was that another person, Edward Robinson, had sent defendant to the house to harm Thomas's brother, Davis, because of a falling out between Robinson and Davis related to their ongoing sale of drugs. The defense theory at trial was misidentification.

People v. Robinson, No. 323467, 2016 WL 232328, at *1 (Mich. Ct. App. Jan. 19, 2016).

         Petitioner's conviction was affirmed on appeal. Id., lv. den. 500 Mich. 855, 884 N.W.2d 271 (2016).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. The trial court abused its discretion in over ruling defendant's objections to Mr. Coleman['s] proposed excited utterance and violated Mr. Robinson's right to confront an adverse witness.
II. The trial court abused its discretion in overruling defendant's objection to Rob”s (sic) alleged statements to Davis that he was sending Robinson over an[d] violated Mr. Robinson's Constitutional right to Confrontation.
III. The evidence was insufficient to support the conviction in violation of Mr. Robinson's state and federal constitutional rights to be free of conviction in the absence of proof beyond [a] reasonable [doubt].
IV. The trial court abused its discretion in ruling the prosecution had shown due diligence admitting [to] produce Frank Coleman and by denying Robinson a missing witness instruction, thus denying Mr. Robinson his state and federal constitutional right to confrontation.
V. The governmental failure to investigate, disclose and analyze physical evidence deprived defendant/petitioner of due process and a fair trial.
VI. Petitioner was denied his Sixth Amendment right to effective assistance of counsel where his trial attorney failed adequately [to] impeach the credibility of the two main prosecution witnesses when he had sworn depositions, out-court-statements, police reports on hand, by failing to impeach Larry Davis and David Sumlin and to argue to [the] jury about a manifest discrepancy between their testimony.
VII. The defendant was denied his Sixth Amendment right to effective assistance of counsel due to trial attorney's failure to suppress, and object to the identification evidence.
VIII. The prosecutor violated the defendant's right to due process guaranteed under the Fourteenth Amendment by obtaining a conviction through the knowing use of perjured testimony, alternatively, defense trial [counsel] was constitutionally ineffective [by] failing to object to the testimony of Larry Davis.
IX. Mr. Robinson was denied a fair trial where the prosecutor both improperly vouched for the credibility of witnesses and improperly vouched for defendant's guilt during his closing arguments.
X. Mr. Robinson's” (sic) constitutional right[s] to a fair trial were violated by the cumulative effects of the multiple errors committed at trial and his conviction must be reversed.

         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.

         “[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         This Court notes that the Michigan Court of Appeals reviewed and rejected several of petitioner's claims under a plain error standard because he failed to preserve the issues as constitutional claims at the trial court level. The AEDPA deference applies to any underlying plain-error analysis of a procedurally defaulted claim. See Stewart v. Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017); cert. den. 138 S.Ct. 1998 (2018).[2]

         III. Discussion

         A. Claims ## 1 and 2. The excited utterance and confrontation claims.

         Petitioner contends that the trial court abused its discretion when it allowed the introduction of Coleman's out-of-court statement to Davis, that Davis' brother had been shot by petitioner. Coleman did not testify at petitioner's trial.

         The Michigan Court of Appeals found the statement admissible as an excited utterance, as follows:

Davis testified that he received a telephone call from Coleman shortly after the shooting in which Coleman told Davis that defendant had shot his brother. Coleman's statement related to a fatal shooting, a startling event. The evidence indicated that the call was made approximately 10 minutes after the police received a 911 call about the shooting, and according to Davis, Coleman was “screaming in the phone” during his statement. This evidence supports that Coleman was still “under the influence of an overwhelming emotional condition” when he made the statement. Although defendant argues that there was no evidence that Coleman's statement was based on personal knowledge, Sumlin's testimony that Coleman was at the home ...

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