United States District Court, E.D. Michigan, Southern Division
HON. GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
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
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Brown, (“petitioner”), confined at the Carson
City Correctional Facility in Carson City, 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 assault with intent to commit
murder, M.C.L. § 750.83, felon in possession of a
firearm, M.C.L. § 750.224f, and possession of a firearm
during the commission of a felony (felony-firearm), M.C.L.
§ 750.227b. The trial court sentenced petitioner as a
habitual offender under M.C.L. § 769.10, to 356 months
to 75 years for the assault with intent to commit murder
conviction, three to seven years and six months for the felon
in possession of a firearm conviction, and two years for the
felony-firearm conviction. For the reasons stated below, the
petition for a writ of habeas corpus is DENIED.
testified that he knew the complainant's name to be
Theresa Renee Smith and not Shirley Ann Smith. (T. 5/5/2011,
p. 11). He testified that he also knew Tony George, and the
cab driver, Dennis Weldon. (Id.). Petitioner further
testified that he had known Weldon for more than one year and
would call him when he needed a cab ride. (Id., p.
Weldon testified that on July 17, 2010, he was employed by
the Checker Cab Company when he picked petitioner up at the
Travelers Inn. (T. 5/3/2011, p. 144). Weldon testified that
he drove petitioner to an address near Maxwell St. where he
waited while petitioner went into the house and then came
back to the cab. (Id., p. 145).
Brodock George (a/k/a/ Eric) testified that on July 17, 2010,
he was in the area of Maxwell St. when he saw petitioner
getting into in a yellow cab. (T. 5/4/2011, p. 8). He
testified that petitioner told him, “[Y]ou better-she
down there dying; you better go save her; you probably could
save that b----; she probably dead, so.” (Id.,
p. 10). George testified that petitioner told him he was
talking about Ree Ree and that he knew Ree Ree.
(Id., p. 11). George also testified that petitioner
had a gun and that he was holding it in his hand, when
petitioner told him that he just shot Ree Ree and she
probably was dead. (Id., pp. 12-13). George went to
her house where he found Ree Ree laying on a mattress in the
living room talking to the 911 operator. One of her friends
was applying pressure to her. (Id., pp. 13-15).
George testified that he could see Ree Ree was bleeding from
her chest and leg, and she was in pain and light headed.
(Id., p. 17). George asked Smith what happened and
she said, “he shot me in the chest.”
(Id., p. 20). George testified that he did not ask
who shot Smith because he knew, having spoken to petitioner
moments earlier. (Id.). George testified that when
the police arrived and asked Smith who did it, she said,
“Henry Brown, he shot me in the chest.”
(Id., p. 21).
Tyrone Gray of the Detroit Police Department testified that
during the afternoon of July 17, 2010, he was dispatched to
8320 Maxwell St. on a shooting complaint. (Id., pp.
32-33). When Officer Gray entered the front door he observed
a woman suffering from multiple gunshot wounds lying on a
mattress with gunshot wounds to her chest and lower leg. The
woman identified herself as Shirley Ann Smith and was crying,
in great pain, and going in and out of consciousness.
(Id., pp. 34-36). Officer Gray testified that the
victim said, “I was shot by Henry Brown; please, sir, I
don't want to die; Henry shot me.” (Id.,
p. 38). Gray further testified that Eric George informed him
that petitioner was riding in a Checker cab. (Id.,
p. 43). Gray testified that he and other officers followed a
Checker cab that was on Maxwell St. as it drove onto Van Dyke
Road and then turned left on Harper, where a traffic stop was
made and petitioner was arrested. (Id., pp. 44-45).
Upon arrest, petitioner told Gray, “F--- that b----;
she going to get out by eight o'clock; what the Judge
going to do, give her some blow? That b---- ain't
testifying. This s--- is a joke.” (Id., p.
Nathan Duda of the Detroit Police Department testified that
on July 17, 2010, he prepared and executed a search warrant
for Room No. 118 at the Travelers Inn located at 11560 Harper
Ave. Duda obtained a registration card from the manager on
which the defendant gave his address as 8777 Woodlawn St.
(Id., pp. 75-77). Duda further testified that he
then obtained a search warrant for that address. Duda stated
that the two women at the residence told him that petitioner
lived upstairs. (Id., pp. 80-81). Duda observed
Officer Wilson recover a silver .45 caliber semi- automatic
loaded handgun in that room. (Id., pp. 83-84).
During cross-examination, Sgt. Duda testified that there was
one live round in the gun. (Id., p. 85).
Douglas Williams of the Detroit Police Department also
testified that on July 17, 2010, he participated in the
execution of a search warrant at 8777 Woodlawn St. where he
recovered a silver .45 caliber automatic handgun in an
upstairs bedroom. Williams stated that the gun was loaded
with one live round. (Id., pp. 88-89).
Lieutenant Brian Bergeron of the Michigan State Police Crime
Lab (MSP) testified that he examined four fired shell
casings, two fired bullets, and a firearm. (Id., p
107). He testified that it was his opinion that the four
shell casings and the two fired bullets were fired in the
firearm that he examined. (Id., p. 127).
conviction was affirmed on appeal. People v. Brown,
No. 310156, 2013 WL 4487506 (Mich. Ct. App. Aug. 22, 2013);
lv. den. 495 Mich. 916, 840 N.W.2d 369 (2013).
then filed a motion for relief from judgment which was
denied. People v.Brown, No. 10-008214-01-FC (Wayne
County Circuit Court, May 3, 2016). The Michigan appellate
courts denied petitioner leave to appeal. People v.
Brown, No. 335013 (Mich. Ct. App. Dec. 21, 2016);
lv. den. 501 Mich. 908, 902 N.W.2d 621 (2017).
filed a second motion for relief from judgement based on
newly discovered evidence, which was also denied. People
v. Brown, No. 10-008214-01-FC (Wayne County Circuit
Court, Dec. 14, 2016). The Michigan appellate courts denied
petitioner leave to appeal. People v. Brown, No.
337650 (Mich. Ct. App. July 6, 2017); lv. den. 501
Mich. 911, 902 N.W.2d 878 (2017).
alleges in his habeas corpus petition that: (1) his sentence
is cruel and unusual punishment; (2) the victim's
out-of-court statements were inadmissible hearsay; (3) the
evidence was insufficient to sustain his convictions; (4) his
trial and appellate attorneys were ineffective; and (5) the
prosecutor (a) failed to correct perjured testimony and (b)
suppressed exculpatory impeachment evidence. The State argues
in its answer to the habeas petition that: (1) the state
court reasonably applied clearly established federal law when
it adjudicated petitioner's sentencing claim; (2)
petitioner's evidentiary claim is not cognizable on
habeas review, and his claim under the Confrontation Clause
is abandoned and meritless; (3) there was sufficient evidence
to convict petitioner; (4) petitioner has not proved the
factual predicate for his claim about trial counsel, and
petitioner's claim about appellate counsel is
procedurally defaulted and meritless; and (5)
petitioner's prosecutorial-misconduct claim is
procedurally defaulted and meritless.
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,
Claim # 1. The sentencing claim.
alleges that his sentence of 29 years and 8 months to 75
years in prison on the assault with intent to commit murder
conviction, for repeatedly shooting a woman, constitutes
cruel and unusual punishment, because petitioner was 49 years
old when he was sentenced.
habeas petitioner who seeks to challenge the severity of a
prison sentence on Eight Amendment grounds faces a formidable
challenge. He may obtain relief only by demonstrating that a
state court decision contravened or misapplied “clearly
established” Supreme Court precedent. However, the
Supreme Court has acknowledged “that our precedents in
this area have not been a model of clarity.”
Lockyer v. Andrade, 538 U.S. 63, 72 (2003).
“Indeed, in determining whether a particular sentence
for a term of years can violate the Eighth Amendment, we have
not established a clear or consistent path for courts to
follow.” Id. Thus, the Supreme Court declared
that the general applicability of the proportionality
standard to term-of-years sentences was clearly established,
but confessed a lack of clarity as to the factors lower
courts should consider in making that determination.
Id. The Supreme Court concluded that “the only
relevant clearly established law amenable to the
‘contrary to' or ‘unreasonable application
of' framework is the gross disproportionality principle,
the precise contours of which are unclear, applicable only in
the ‘exceedingly rare' and ‘extreme'
Lockyer, the Supreme Court reversed the Ninth
Circuit's grant of a writ of habeas corpus on the ground
that two twenty-five-year-to-life sentences imposed under
California's “three strikes” law, where the
triggering felony was the theft of $150 worth of video tapes,
violated the Cruel and Unusual Punishment Clause of the
Eighth Amendment. The Supreme Court noted that the
“thicket” created by its jurisprudence consisted
primarily of its decisions in Solem v. Helm, 463 US.
277 (1983), Harmelin v. Michigan, 501 U.S. 957
(1991), and Rummel v. Estelle, 445 U.S. 263 (1980).
The California state court observed that the proportionality
rule set forth in Solem was cast into doubt by
Harmelin, and proceeded to analyze Andrade's
sentence under the approach taken in Rummel, where
the Supreme Court rejected a claim that a life sentence
imposed under Texas' recidivist statute was grossly
disproportionate to the theft felonies that formed the
predicate for the sentence. The California court concluded
that Andrade's sentence was not disproportionate. The
Supreme Court held that this decision was not contrary to or
an objectively unreasonable application of federal law that
was clearly established by the Supreme Court.
Lockyer, 538 U.S. at 72-77.
plurality of the Supreme Court held that the Eighth Amendment
does not require strict proportionality between the crime and
sentence. Harmelin, 501 U.S. at 965. As the Supreme
Court observed in Lockyer, it is generally
recognized after Harmelin that the Cruel and Unusual
Punishment Clause of the Eighth Amendment forbids only an
extreme disparity between crime and sentence, that is,
sentences that are “grossly disproportionate” to
the crime. Id. at 1001 (Kennedy, J., concurring);
Coleman v. Mitchell, 268 F.3d 417, 453 (6th Cir.
2001)(citing Coker v. Georgia, 433 U.S. 584, 592
(1977)); United States v. Hopper, 941 F.2d 419, 422
(6th Cir. 1991)).
the context of capital punishment, successful challenges to
the proportionality of particular sentences have been
exceedingly rare.” Rummel, 445 U.S. at 272.
Rummel was convicted of obtaining $120.75 by false pretenses,
a crime punishable by at least two years, but not more than
ten years in prison. He was sentenced as a recidivist to life
imprisonment with the possibility of parole. His two prior
felonies consisted of fraudulent use of a credit card to
obtain $80 worth of goods and services, a felony punishable
by two to ten years in prison; and passing a forged check for
$28.36, a crime punishable by two to five years in prison.
The Supreme Court held that Rummel's life sentence under
the state recidivist statute did not constitute cruel and
unusual punishment. In Harmelin, the Supreme Court
upheld a life sentence without the possibility of parole for
possession of more than 650 grams of cocaine for an offender
with no prior felony convictions.
Supreme Court overturned a life sentence in Solem on
the ground that it was significantly disproportionate to
Helm's crime and therefore prohibited by the Eighth
Amendment. However, Helm had been sentenced to life
imprisonment without the possibility of parole for
uttering a “no account” check for $100, and his
prior felonies also were minor, nonviolent crimes. By
contrast, the Supreme Court reaffirmed Rummel and
found constitutionally sufficient a sentence of twenty-five
years to life imposed upon a fifth felony conviction.
Ewing v. California, 538 U.S. 11, 24-31 (2003).
present case, petitioner's sentence fell within the
maximum sentence set by state law, and “a sentence
within the statutory maximum set by statute generally does
not constitute ‘cruel and unusual
punishment.'” United States v. Organek, 65
F.3d 60, 62 (6th Cir. 1995)(citation omitted)(quoted with
approval in Austin v. Jackson, 213 F.3d 298, 302
(6th Cir. 2000). “As long as the sentence remains
within the statutory limits, trial courts have historically
been given wide discretion in determining ‘the type and
extent of punishment for convicted defendants.'”
Austin, 213 F.3d at 301 (quoting Williams v. New
York, 337 U.S. 241, 245 (1949)).
light of “the vagueness of the gross-disproportionality
principle and the admonition that the principle is
“applicable only in the ‘exceedingly rare'
and ‘extreme' case, ” this Court concludes
that the state courts did not unreasonably apply clearly
established law in rejecting petitioner's proportionality
claim. See Smith v. Howerton, 509 Fed.Appx. 476, 484
(6th Cir. 2012)(internal quotations omitted).
sentence of 29 years, 8 months to 75 years in prison was
within the statutory limits of the offense of assault with
intent to commit murder. Petitioner's minimum sentence of
twenty-nine years and eight months was also within the
sentencing guidelines range of 171 months to 356 months for
the assault with intent to commit murder
conviction. Brown, 2013 WL 4487506, at *8. In
Michigan, sentences within a correctly scored guidelines
range are presumptively proportionate. See Hastings v.
Yukins, 194 F.Supp.2d 659, 673-674 (E.D. Mich.
2002)(citing to People v. Bailey, 218 Mich.App. 645,
647; 554 N.W.2d 391 (1996)). This Court concludes that
petitioner's sentence of 29 years and 8 months to 75
years in prison for assault with intent to commit murder and
an additional 2 years for the felony-firearm conviction was
not extreme or grossly disproportionate to the offense or to
the offender, so as to entitle him to habeas relief. See
Benton v. Booker, 403 Fed.Appx. 984, 986 (6th Cir.
2010)(imposition of prison term of 25-50 years for
petitioner's second-degree murder conviction was not
unconstitutionally disproportionate to the offense or the
offender, particularly where sentence was less than the
statutory maximum for the offense).
further challenges the trial court's scoring of several
offense variables and prior record variables of the Michigan
courts are the final arbiters of state law. See Bradshaw
v. Richey, 546 U.S. 74, 76 (2005); Sanford v.
Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Therefore,
claims which arise out of a state trial court's
sentencing decision are not normally cognizable on federal
habeas review, unless the habeas petitioner can show that the
sentence imposed exceeded the statutory limits or is wholly
unauthorized by law. See Vliet v. Renico, 193
F.Supp.2d 1010, 1014 (E.D. Mich. 2002). Thus, a sentence
imposed within the statutory limits is not generally subject
to habeas review. Townsend v. Burke, 334 U.S. 736,
741 (1948); Cook v. Stegall, 56 F.Supp.2d 788, 797
(E.D. Mich. 1999).
claims that the state trial court incorrectly scored or
calculated his sentencing guidelines range under the Michigan
Sentencing Guidelines are not cognizable claims for federal
habeas review, because they are basically a state law claim.
See Tironi v. Birkett, 252 Fed.Appx. 724, 725 (6th
Cir. 2007)(unpublished); Howard v. White, 76
Fed.Appx. 52, 53 (6th Cir. 2003)(unpublished); McPhail v.
Renico, 412 F.Supp.2d 647, 656 (E.D. Mich. 2006). Errors
in the application of state sentencing guidelines cannot
independently support habeas relief. See Kissner v.
Palmer, 826 F.3d 898, 904 (6th Cir. 2016). Petitioner
had “no state- created interest in having the Michigan
Sentencing Guidelines applied rigidly in determining his
sentence.” See Mitchell v. Vasbinder, 644
F.Supp.2d 846, 867 (E.D. Mich. 2009). “[I]n short,
petitioner had no federal constitutional right to be
sentenced within Michigan's guideline minimum sentence
recommendations.” Doyle v. Scutt, 347
F.Supp.2d 474, 485 (E.D. Mich. 2004). Any error by the trial
court in calculating his guideline score would not merit
habeas relief. Id. Petitioner's claims that the
state trial court improperly departed above the correct
sentencing guidelines range would thus not entitle him to
habeas relief, because such a departure does not violate any
of the petitioner's federal due process rights.
Austin v. Jackson, 213 F.3d at 301.
petitioner is not entitled to habeas relief on his first
Claim # 2. The hearsay and confrontation claims.
contends that the trial court abused its discretion when it
allowed the introduction of the victim's out-of-court
statements as either an excited utterance or a dying
declaration. The victim did not testify at petitioner's
Michigan Court of Appeals found the statements admissible as
The trial court did not abuse its discretion in ruling that
Shirley's statement to George was admissible as an
excited utterance. George testified that defendant told him
that Shirley was “down there dying” and that
“you better go save her[.]” George ran to the
Maxwell Street home, where the shooting occurred, and saw
that Shirley was bleeding from her chest and leg. Shirley was
gasping for air and was lightheaded. Shirley told George that
“he shot me in the chest;” George knew that
“he” referred to defendant given George's
prior conversation with defendant. Shirley was still under
the stress of the event, i.e., she was lying on a mattress
and bleeding as a result of multiple gunshot wounds. The
statement also was related to the startling event, the
shooting. Given the circumstances of the shooting, it is
reasonable to conclude that Shirley was so overwhelmed that
she lacked the capacity to fabricate. Thus, the trial court
did not abuse its discretion admitting Shirley's
statement as an excited utterance.
In addition, the trial court did (sic) abuse its discretion
in ruling that Shirley's statement to George was also
admissible as a dying declaration. Defendant argues that
Shirley's statement was not within the dying declaration
exception because Shirley did not die; she was not in life
threatening danger, and she failed to testify at trial. But
Shirley was “unavailable as a witness” under MRE
804(a)(5) because the prosecution showed due diligence in its
attempts to locate her to testify at the trial. Moreover,
Shirley need not have actually died for her statement to be
admissible as a dying declaration; she must only have
believed death was imminent when she made the statement. It
is reasonable to conclude that Shirley believed her death was
imminent because of the seriousness of her injuries, her
difficulty breathing, and because the statement concerned the
cause of what Shirley believed to be her impending death.
For many of the same reasons as above, the trial court did
not abuse its discretion in ruling that Shirley's
statement to Officer Gray was admissible as an excited
utterance under MRE 803(2). Officer Gray found Shirley lying
on a mattress with a gunshot wound to her chest and two
gunshot wounds to her lower leg. Officer Gray testified that
Shirley was sighing, crying, and appeared to be in great
pain. Shirley told Officer Gray, “I was shot by Henry
Brown; please, sir, I don't want to die; Henry shot
me.” Shirley was patently under the stress of being
shot, and her statement related to that event. Therefore,
Shirley's statement to Officer Gray ...