Ealy v. Berghuis

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE.

         Petitioner Gerald Ealy ran extension cords through his neighbor's yard, leaching power from a nearby unoccupied house. When his neighbor, Marcellus Walker, directed electricians to unplug the lines, Ealy chased Walker across his yard and shot him in the leg. Ealy was charged with assault with intent to commit murder and related firearm offenses for this conduct, and he was convicted of these offenses by a jury in the Wayne County, Michigan circuit court. Ealy raised several claims of error on direct and post-conviction review, which the state courts found unpersuasive. He raises those claims again here, but because the claims were reasonably rejected by the state courts, Ealy has failed to demonstrate entitlement to habeas relief. The petition therefore will be denied.

         I.

         At Ealy's trial, Marcellus Walker testified that he was renovating a house he owned on Trinity Street in Detroit. Walker was in the backyard with two electricians, and the men noticed that there were extension cords running from a vacant house through the backyard and into other occupied homes in the neighborhood. The wires presented a fire-hazard, so the electricians began to disconnect them.

         Ealy came outside and angrily asked the men why they were cutting off his power. Walker and Ealy then began to argue loudly. Ealy pulled a handgun from his pocket, causing Walker and the two electricians to run. Ealy fired two shots in the backyard, but no one was hit. Ealy followed Walker into the front yard, and he fired another shot that hit Walker in the thigh, sending him sprawling to the ground.

         Ealy stood over Walker and said, “I'm a kill you.” Trial Tr. at 160, ECF No. 23-4, PageID.599. As Ealy prepared to shoot Walker again, Walker's girlfriend screamed from inside the electricians' truck. When Ealy looked up, Walker managed to scramble to his feet and run down the street. The truck followed, picked up Walker at the corner, and he was eventually transported to the hospital.

         All of this was confirmed by the testimony of Walker, the two electricians, Walker's girlfriend, and another woman at the scene. Based on this evidence, the jury found Ealy guilty of assault with intent to commit murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony. The trial court sentenced Ealy as a fourth-time habitual felony offender to concurrent prison terms of 45 to 60 years for the assault and felon-in-possession offenses, and a consecutive five-year term for the felony-firearm conviction.

         Ealy filed a direct appeal in the Michigan Court of Appeals raising the following claims:

I. Informing the jury that the defendant is charged with felon in possession of a weapon violates the defendant's right to be tried by his jury without his jury knowing of his prior felony conviction and denies defendant his right to due process and a fair trial pursuant to U.S. Const. Ams. IV, V.

II. The defendant was denied a fair trial where he was required to appear before the jury in jail clothing, despite the defendant's request that he be permitted to wear civilian clothing pursuant to U.S. Const, Ams V, XIV; Mich. Const. 1963, Art. 1 § 17.

III. The great weight of the evidence was insufficient to warrant a conviction and therefore the defendant's conviction for assault with intent to murder was in error and denied the defendant his due process right to a fair trial pursuant to U.S. Const., Ams V, VI, XIV; Const. 1963, Art. 1, §§ 17, 20.

         The Michigan Court of Appeals affirmed the convictions in an unpublished opinion. People v. Ealy, No. 30430, 2012 WL 2335337 (Mich. Ct. App. June 19, 2012). Ealy did not file an application for leave to appeal in the Michigan Supreme Court.

         On June 10, 2013, about a year after the Michigan Court of Appeals denied relief, Ealy filed his habeas petition in this Court. The petition raised six claims:

I. Defense counsel was ineffective by stipulating to the felon-in-possession for a firearm charge.

II. Defendant was denied his right to due process when the trial court forced him to appear before the jury in jail clothing.

III. The prosecutor failed to produce sufficient evidence for a rational jury to convict him of assault with intent to commit murder.

IV. Defense counsel failed to provide Defendant with a meaningful comparison between the difference in the sentencing outcome of a conviction by trial versus a conviction by plea.

V. Defense counsel's proposed defense theory in the present case was not supported by the evidence or law.

VI. Defense counsel provided ineffective assistance when he talked Defendant into testifying.

Pet. at 5-11, ECF No. 1, PageID.5-11.

         Ealy filed a supplemental pleading in December of 2013, adding three more claims to his petition:

VII. Defendant's sentence violates the Eighth Amendment prohibition against cruel and unusual punishment.

VIII. Defense counsel failed to conduct a pretrial investigation in this matter.

IX. Defense counsel failed to call critical defense witnesses.

Pet. at 12-14, ECF No. 8, PageID 35-37.

         In January of 2014, Ealy moved to stay this proceeding so he could return to state court to exhaust his ineffective-assistance-of-counsel claims. The Court granted Ealy's request, stayed the petition, and administratively closed the case. He filed his motion for relief from judgment in the state trial court raising the following claims:

I. Defendant's assignment of errors as presented herein are not subject to the procedural default doctrine under Mich. Ct. R. 6.508(D)(3), because, as shown more fully below, he has satisfied his burden of establishing an entitlement to relief by demonstrating both “good cause” and “actual prejudice.”

II. Defendant is entitled to relief from judgment due to defense counsel's deficient performances resulting in Sixth Amendment constitutional deprivations of Defendant's right to the “effective” assistance of counsel. USCA Const, Am VI; Mich. Const. 1963, Art 1, Sec. 20.

A. Defense counsel performed deficiently by stipulating to admission of prior felon-in-possession conviction.

B. Defense counsel performed deficiently by failing to move to sever felon-in-possession charge.

C. Defense counsel was ineffective for not requesting Uniform Jury Instruction CJI2d 17.4.

D. Defendant's fundamental right to due process, a fair trial, and the presumption of innocence was eviscerated where the trial court forced Defendant to wear prison clothing before the jury.

E. Defense counsel was ineffective when he advised Defendant to reject a favorable plea offer on the grounds that he would not be convicted at trial.

III. Appellate counsel's ineffectiveness in failing to raise the instant assignment of errors during direct appeal proceedings not only constitutes a Sixth Amendment violation, but excuses any application of the procedural default doctrine under Mich. Ct. R. 6.508(D).

         The trial court denied the motion for relief from judgment in an opinion dated September 16, 2014. In its opinion, the court concluded, “Defendant has failed to make meritorious arguments which establish any error in the proceedings. Mich. Ct. R. 6.508(D)(3)(b)(1). He has therefore failed to establish any actual prejudice which requires reversal of ...