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Brown v. Rewerts

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

June 20, 2019

HENRY BROWN, Petitioner,
RANDEE REWERTS, [1] Respondent.



         Henry 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.

         I. Background

         Petitioner 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. 12).

         Dennis 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).

         Tony 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).

         Officer 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. 52).

         Sergeant 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).

         Officer 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).

         Detective 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).

         Petitioner's 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).

         Petitioner 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).

         Petitioner 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).

         Petitioner 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.

         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. Claim # 1. The sentencing claim.

         Petitioner 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.

         A 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' case.” Id.

         In 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.

         A 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)).

         “Outside 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.

         The 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).

         In the 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)).

         In 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).

         Petitioner's 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.[2] 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).

         Petitioner further challenges the trial court's scoring of several offense variables and prior record variables of the Michigan Sentencing Guidelines.

         State 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).

         Petitioner's 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.

         Accordingly, petitioner is not entitled to habeas relief on his first claim.

         B. Claim # 2. The hearsay and confrontation claims.

         Petitioner 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 trial.

         The Michigan Court of Appeals found the statements admissible as follows:

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 ...

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