United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
M. LAWSON UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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
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
III. The prosecutor failed to produce sufficient evidence for
a rational jury to convict him of assault with intent to
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.
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
Pet. at 12-14, ECF No. 8, PageID 35-37.
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
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).
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 ...