United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING (1) THE PETITION FOR A WRIT
OF HABEAS CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3)
LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE PAUL D. BORMAN UNITED STATES DISTRICT JUDGE
Vernor Dickens, (“petitioner”), presently
incarcerated at the Thumb Correctional Facility in Lapeer,
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 of armed
robbery, Mich. Comp. Laws § 750.529, three counts of
possession of a firearm during the commission of a felony
(felony-firearm), Mich. Comp. Laws § 750.227b,
carjacking, Mich. Comp. Laws § 750.529a, felon in
possession of a firearm, Mich. Comp. Laws § 750.224f,
third-degree fleeing and eluding a police officer, Mich.
Comp. Laws § 257.602a(3), and carrying a concealed
weapon (CCW), Mich. Comp. Laws § 750.227. He was
sentenced, as a second habitual offender, Mich. Comp. Laws
§ 769. 10, to 20 to 80 years' imprisonment for the
armed robbery and carjacking convictions, two years'
imprisonment for each felony-firearm conviction, three to
seven and one-half years' imprisonment for the felon in
possession of a firearm conviction, and two to seven and
one-half years' imprisonment for the third-degree fleeing
and eluding a police officer and CCW convictions. For the
reasons stated below, the application for a writ of habeas
corpus is DENIED WITH PREJUDICE.
was convicted of the above offenses following a jury trial in
the Oakland County Circuit Court. This Court recites verbatim
the relevant facts relied upon by the Michigan Court of
Appeals, which are presumed correct on habeas review pursuant
to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith,
581 F.3d 410, 413 (6th Cir. 2009).
Defendant's convictions arise from the armed robbery of
an elderly man at a gas station during the lunch hour. The
victim was near his Cadillac when he was approached by
defendant. Defendant pointed a gun at the victim and demanded
money. The victim handed over money. Defendant took the
victim's keys and entered his Cadillac. The victim
screamed out for help, and a store clerk came to the
victim's aid and called 911.
Two police officers were returning from lunch in an unmarked
police car. One of the officers saw defendant approach the
victim in a deliberate manner, saw the victim back away with
his hands raised, and saw defendant enter the victim's
vehicle. The officer driving the unmarked vehicle attempted
to block the Cadillac from leaving the gas station, but
defendant struck the officers' vehicle and fled. Because
the unmarked vehicle did not have appropriate lights and
sirens, the officers followed defendant until marked vehicles
could pursue him. Once the marked vehicles arrived on the
scene, the officers that observed the carjacking returned to
the gas station where it was learned that defendant
brandished a weapon at the victim. Multiple officers in
vehicles gave chase and performed a maneuver that caused
defendant to crash the Cadillac. Defendant ignored
officers' requests to raise his hands, and when he tried
to flee, he was shot and fell in a grassy area. There,
officers arrested him and found a loaded gun on him. Although
the victim could not identify defendant at the preliminary
examination, multiple officers identified defendant as the
perpetrator of the offenses.
People v. Dickens, No. 314267, 2014 WL 2753708, p. 1
(Mich. Ct. App. June 17, 2014), rev'd in part, appeal
denied in part, 498 Mich. 915, 871 N.W.2d 159 (2015).
January 5, 2016, petitioner filed with the trial court a
Complaint for Writ of Habeas Corpus, which the trial court
construed as a motion for relief from judgment. In his
motion, he challenged the following alleged irregularities:
(1) the Complaint (i.e., General Information dated June 11,
2012) was never “authorized” by a judge or
magistrate rendering Defendant's conviction
‘void'; (2) the General Information dated June 11,
2012, failed to identify the specific Assistant Prosecuting
Attorney charging Defendant with the offenses set forth in
the General Information; and (3) the Assistant Prosecuting
Attorney wrongfully sought an enhanced sentence against
Defendant in this matter.
trial court judge denied petitioner's motion on February
16, 2016, finding that petitioner “failed to set forth
any reason for his failure to raise these issues on
appeal.” (Emphasis Original). The Court further found
that petitioner had not shown “actual prejudice”
pursuant to M.C.R. 6.508(D)(3)(b)(I), further found
petitioner not entitled to relief citing M.C.R. 6.508(D)(3),
and then denied his motion pursuant to M.C.R. 6.504(8)(2).
People v. Dickens, No. 2012-241989-FC (Oakland Cty.
Cir. Ct. Feb. 16, 2016).
seeks a writ of habeas corpus on the following grounds:
I. Confrontation Clause violation.
II. Failure to disclose exculpatory evidence.
III. Authentication of evidence.
IV. Ineffective assistance of trial counsel.
V. The filing of a habitual-offender notice.
VI. The mandatory guidelines/judge-found facts claim.
VII. Prosecutorial Misconduct.
STANDARD OF REVIEW
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;
(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.
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.
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)). Therefore, 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).
Claim # 1. The Confrontation Clause.
alleges that his right to confrontation was violated by 1)
the trial court's admission of the victim's
preliminary examination testimony and 2) the prosecutor's
failure to show the exercise of due diligence in making the
victim available for trial.
Michigan Court of Appeals rejected the claim:
In the present case, defendant contends that the prosecutor
failed to make a due diligence showing regarding
unavailability. Here, the prosecutor advised the trial court
that the victim was hospitalized for a period of days before
trial after being taken to the hospital by ambulance.
Although at the time of trial the victim had returned home,
the prosecutor stated to the court that the victim remained
in ill health and that his health would be compromised if he
were to leave his home to testify in court. The trial court
recognized that the prosecutor is an officer of the court and
that it had no reason to disbelieve him. Defense counsel
cross-examined the victim at the preliminary examination and
conceded that the preliminary examination testimony was
admissible if he was unavailable. Moreover, the victim's
son testified at trial regarding his father's ...