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Witherspoon v. Nagy

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

June 11, 2019

NOAH NAGY, [1] Respondent.



         Norwood 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 conviction.

         For the reasons stated below, the petition for a writ of habeas corpus is DENIED.

         I. Background

         Petitioner 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).

         Petitioner's conviction was affirmed on appeal. Id., lv. den., 498 Mich. 948, 872 N.W.2d 439 (2015).

         Petitioner 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.

         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)). 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).

         III. Discussion

         A. Claims ## 1 and 4. The procedurally defaulted claims.

         In his first claim, petitioner alleges that the prosecutor committed a Brady[2] 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 committed misconduct.

         Respondent 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.

         When 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).

         The 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.

         Petitioner 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.

         Additionally, 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).

         Finally, 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.

         B. Claim # 2. The speedy trial claim.

         Petitioner next alleges that his Sixth Amendment right to a speedy trial was violated because of a delay of approximately 16 months ...

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