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Welch v. Burt

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

June 28, 2019

BILLY W. WELCH, JR., Plaintiff,
v.
SHERRY BURT, Defendant.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [1] AND DENYING CERTIFICATE OF APPEALABILITY

          STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.

         On June 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 conviction.

         Welch 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 appealability.

         BACKGROUND

         The 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 described above.

ECF 9-16, PgID 1175.

         Following 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 The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion.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 ECF 9-16.

         Welch 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).

         STANDARD OF REVIEW

         The 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)).

         "A 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)).

         The 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)).

         A 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 ...


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