United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE
Witherspoon, (“petitioner”), confined at the
Lakeland Correctional Facility in Coldwater, Michigan, seeks
the issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, petitioner
challenges his conviction for first-degree felony murder,
MICH. COMP. LAWS § 750.316(1)(b); and armed robbery,
MICH. COMP. LAWS § 750.529. He was sentenced to life
imprisonment for the first-degree murder conviction, and to
60 to 80 years' imprisonment for the armed robbery
reasons stated below, the petition for a writ of habeas
corpus is DENIED.
was convicted 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 January 18, 2012,
shooting death of Hussan Hussein, an attendant at a gas
station in the city of Highland Park, Michigan. The gas
station attendant is separated from the public behind a
partitioned area. The door that allows customers entry into
the store is equipped with a locking mechanism that allows
the attendant to “buzz” a customer into the store
from behind the partition. It was the prosecutor's theory
of the case that defendant entered the gas station, went to
the beverage coolers, selected a juice, and deliberately
broke the glass bottle on the floor. He then selected another
juice, purchased it, and left the store. When defendant left
the store, codefendant Brian Matthew Evans placed a stick in
the door to prevent it from locking. Hussein left the
partitioned area to clean up the broken bottle when Evans
entered with his face partially obscured. Evans shot the
victim three times, twice in the legs and once in the chest.
After the shooting, Evans gave his cellular telephone to his
then-wife, Tanganyika Felton, who later gave it to the
police. An analysis of defendant's and Evans's
cellular telephones disclosed that the telephones placed
calls to each other in the vicinity of the gas station at the
time of the shooting. Additionally, both men were identified
on the station's video surveillance recording by their
respective parole officers. Defendant admitted to his parole
officer that he had visited the gas station, but denied any
involvement in the crimes.
Defendant was convicted following a jury trial and the trial
court sentenced defendant as noted above. Defendant now
appeals as of right.
People v. Witherspoon, No. 317382, 2014 WL 7214102,
at *1 (Mich. Ct. App. Dec. 18, 2014).
conviction was affirmed on appeal. Id., lv. den.,
498 Mich. 948, 872 N.W.2d 439 (2015).
seeks a writ of habeas corpus on the following grounds:
I. The Brady violation Claim.
II. Speedy Trial Claim.
III. Ineffective Assistance of Trial Counsel Claim.
IV. Prosecutorial Misconduct Claim.
V. Sufficiency of the Evidence Claim.
VI. Admission into evidence of several photographs.
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.
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)). 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,
Claims ## 1 and 4. The procedurally defaulted
first claim, petitioner alleges that the prosecutor committed
a Brady violation by failing to provide the
investigative subpoena testimony of Tanganyika Felton before
the preliminary examination, thereby limiting the opportunity
for impeachment of her preliminary examination testimony. In
his fourth claim, petitioner alleges that the prosecutor
contends that petitioner's first and fourth claims are
procedurally defaulted because petitioner did not preserve
these claims in the trial court and the Michigan Court of
Appeals relied on this failure to reject petitioner's
claims. See People v. Witherspoon, 2014 WL 7214102,
at *1, 7.
the state courts clearly and expressly rely on a valid state
procedural bar, federal habeas review is also barred unless
petitioner can demonstrate “cause” for the
default and actual prejudice as a result of the alleged
constitutional violation, or can demonstrate that failure to
consider the claim will result in a “fundamental
miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750-51 (1991). If petitioner fails to show
cause for his procedural default, it is unnecessary for the
court to reach the prejudice issue. Smith v. Murray,
477 U.S. 527, 533 (1986). However, in an extraordinary case,
where a constitutional error has probably resulted in the
conviction of one who is actually innocent, a federal court
may consider the constitutional claims presented even in the
absence of a showing of cause for procedural default.
Murray v. Carrier, 477 U.S. 478, 479-80 (1986). To
be credible, such a claim of innocence requires a petitioner
to support the allegations of constitutional error with new
reliable evidence that was not presented at trial. Schlup
v. Delo, 513 U.S. 298, 324 (1995). In addition,
“‘[A]ctual innocence' means factual
innocence, not mere legal insufficiency.” Bousley
v. United States, 523 U.S. 614, 624 (1998).
Michigan Court of Appeals clearly indicated that by failing
to object at trial, petitioner had not preserved his
Brady or prosecutorial misconduct claims. The fact
that the Michigan Court of Appeals engaged in plain error
review of petitioner's claims does not constitute a
waiver of the state procedural default. Seymour v.
Walker, 224 F.3d 542, 557 (6th Cir. 2000). This Court
finds the Michigan Court of Appeals' reviewed
petitioner's claims for plain error as enforcement of the
procedural default. Hinkle v. Randle, 271 F.3d 239,
244 (6th Cir. 2001). Petitioner's first and fourth claims
are procedurally defaulted.
has failed to allege any reasons to excuse his procedural
default. Although ineffective assistance of counsel may be
cause to excuse a procedural default, that claim itself must
be exhausted in the state courts. Edwards v.
Carpenter, 529 U.S. 446, 451 (2000). Petitioner raised
an ineffective assistance of counsel claim in the state
courts but did not raise a claim that counsel was ineffective
for failing to object to the failure of the prosecutor to
supply petitioner with the investigative subpoena testimony
of Tanganyika Felton before the preliminary examination or to
the prosecutor committing misconduct by introducing
irrelevant and prejudicial information. Because petitioner
never raised in the Michigan courts a specific claim about
trial counsel's failure to object to the alleged
Brady violation or to the alleged prosecutorial
misconduct, any alleged ineffectiveness of counsel cannot
constitute cause to excuse petitioner's default with
respect to his first or fourth claims. See Wolfe v.
Bock, 412 F.Supp.2d 657, 684 (E.D. Mich. 2006). Because
petitioner has not demonstrated any cause for his procedural
default, it is unnecessary to reach the prejudice issue
regarding his first and fourth claims. Smith, 477
U.S. at 533.
petitioner has not presented any new reliable evidence to
support any assertion of innocence which would allow this
Court to consider his Brady or prosecutorial
misconduct claims as a ground for a writ of habeas corpus in
spite of the procedural default. Petitioner's sufficiency
of evidence claim (Claim # 5) is insufficient to invoke the
actual innocence doctrine to the procedural default rule.
See Malcum v. Burt, 276 F.Supp.2d 664, 677 (E.D.
Mich. 2003). Because petitioner has not presented any new
reliable evidence that he is innocent of this crime, a
miscarriage of justice will not occur if the Court declined
to review petitioner's procedurally defaulted claims on
the merits. See Harris v. Stegall, 157 F.Supp.2d
743, 751 (E.D. Mich. 2001).
assuming that petitioner had established cause for his
default, he would be unable to satisfy the prejudice prong of
the exception to the procedural default rule, because his
claims would not entitle him to relief. The cause and
prejudice exception is conjunctive, requiring proof of both
cause and prejudice. See Matthews v. Ishee, 486 F.3d
883, 891 (6th Cir. 2007). For the reasons stated by the
Michigan Court of Appeals in rejecting petitioner's first
and fourth claims and the Assistant Attorney General in her
answer, petitioner has failed to show that his first and
fourth claims have any merit. The reasons justifying the
denial of petitioner's first and fourth claims were
“ably articulated by the” Michigan Court of
Appeals, therefore, “the issuance of a full written
opinion” by this Court regarding the merits of these
claims “would be duplicative and serve no useful,
jurisprudential purpose.” See Bason v. Yukins,
328 Fed.Appx. 323, 324 (6th Cir. 2009). Petitioner is not
entitled to relief on his first and fourth claims.
Claim # 2. The speedy trial claim.
next alleges that his Sixth Amendment right to a speedy trial
was violated because of a delay of approximately 16 months