United States District Court, E.D. Michigan, Southern Division
BILLY W. WELCH, JR., Plaintiff,
SHERRY BURT, Defendant.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS  AND DENYING CERTIFICATE OF APPEALABILITY
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
12, 2018, Petitioner Billy W. Welch, Jr.-a Michigan state
prisoner- filed his habeas petition under 28 U.S.C. §
2254. An Isabella County Circuit Court jury convicted Welch
of assault with intent to rob while armed, Mich. Comp. Laws
§ 750.89; conspiracy, Mich. Comp. Laws § 750.157a;
and aggravated assault, Mich. Comp. Laws § 750.81a. As a
fourth-time habitual felony offender, Welch was sentenced to
a term of 35 to 60 years' imprisonment for the first two
offenses, and a lesser term for the aggravated-assault
claims prosecutorial misconduct for arguing facts not in
evidence and for vouching for witnesses' credibility.
Because the claims are without merit, the Court will deny the
petition. The Court will also deny a certificate of
Court recounts the relevant facts relied upon by the Michigan
Court of Appeals.
Defendant's convictions arise out of the robbery of a
taxi driver that was committed by defendant and several other
individuals. While robbing the driver, defendant and one of
the other individuals, Matthew Epps, pointed imitation
handguns at the driver's head and threatened his life.
Upon exiting the taxi after the robbery, defendant struck the
driver in the head with the handgun. Three of the individuals
involved, Epps, Thad Brisboy, and Jennifer Baugher, testified
against defendant as required by their plea agreements.
Defendant was subsequently convicted and sentenced as
ECF 9-16, PgID 1175.
his conviction Welch filed a claim of appeal. His brief on
appeal filed in the Michigan Court of Appeals raised the
claims raised in the present petition, as well as an
additional claim of prosecutorial misconduct not raised here.
The Michigan Court of Appeals affirmed Petitioner's
convictions in an unpublished opinion. See generally
then filed an application for leave to appeal in the Michigan
Supreme Court, but it was denied by standard order.
People v. Welch, 500 Mich. 946 (2017) (Table).
Court may not grant habeas relief to a state prisoner unless
his claims were adjudicated on the merits and the state court
adjudication was "contrary to" or resulted in an
"unreasonable application of" clearly established
Supreme Court law. 28 U.S.C. § 2254(d)(1). "Section
2254(d) reflects the view that habeas corpus is a 'guard
against extreme malfunctions in the state criminal justice
systems," not a substitute for ordinary error correction
through appeal." Harrington v. Richter, 562
U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia,
443 U.S. 307, 332 n.5 (1979)).
state court's decision is 'contrary to' . . .
clearly established law if it 'applies a rule that
contradicts the governing law set forth in [Supreme Court
cases]' or if it 'confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[this] precedent." Mitchell v. Esparza, 540
U.S. 12, 15-16 (2003) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000)).
state court unreasonably applies Supreme Court precedent not
when its application of precedent is merely "incorrect
or erroneous" but when its application of precedent is
"objectively unreasonable." Wiggins v.
Smith, 539 U.S. 510, 520-21 (2003) (internal citations
omitted). "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, 562 U.S. at 101 (quoting Yarborough
v. Alvarado, 541 U.S. 652, 654 (2004)).
federal court reviews only whether a state court's
decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court
renders its decision. Greene v. Fisher, 565 U.S. 34,
38 (2011). A state court need not cite to or be aware of
Supreme Court cases, "so long as neither the reasoning
nor the result of the state-court decision contradicts
them." Early v. Packer, 537 U.S. 3, 8 (2002).
Decisions by lower federal courts "may be instructive in
assessing the reasonableness of a state court's