United States District Court, E.D. Michigan, Southern Division
BENNIE L. ROBINSON, Petitioner,
TOM WINN,  Respondent.
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE
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
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,
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).
conviction was affirmed on appeal. Id., lv. den. 500
Mich. 855, 884 N.W.2d 271 (2016).
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
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
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
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
Standard of Review
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;
(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.
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).
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).
Claims ## 1 and 2. The excited utterance and confrontation
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
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 ...