United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING
PERMISSION TO APPEAL IN FORMA PAUPERIS
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE.
a habeas case brought pursuant to 28 U.S.C. § 2254. The
petitioner, Michigan state prisoner Corey Lamont McClure,
challenges his convictions in the Wayne County Circuit Court
of kidnapping, Mich. Comp. Laws § 750.349(1)(c), two
counts of first-degree criminal sexual conduct, Mich. Comp.
Laws § 750.520b(1)(e), and three counts of armed
robbery, Mich. Comp. Laws § 750.529. Petition at 2, ECF
No. 1, PageID.2. Petitioner is serving a term of fourteen
years, three months, to twenty-five years. Id. The
petition raises one claim of ineffective assistance of trial
counsel under two theories: that counsel was ineffective
during plea negotiations and for failing to file a motion to
suppress evidence. Id. at 3.
reasons stated below, the Petition will be
DENIED. The Court also
DENIES Petitioner a certificate of
appealability and permission to proceed on appeal in
FACTUAL AND PROCEDURAL BACKGROUND
was convicted in Wayne County Circuit Court following a jury
trial of kidnapping, two counts of first-degree criminal
sexual conduct, three counts of armed robbery, and three
counts of felonious assault. The circumstances leading to his
convictions began with Petitioner calling for in-home escort
Wells came to see Petitioner at a house on Portlance Street
in Detroit, after he called in response to her ad in
Backpages.com. 7/15/13 Trial Tr. at 162, 250, ECF No. 5-6,
PageID.374, 462. She was driven to the home by two friends
who stayed in the car outside the house. Id. at 164,
PageID.376. On her arrival, Petitioner brandished a gun at
her and ordered her to the basement. Id. at 169,
PageID.381. He ordered her to strip and took the money she
emptied from her pockets. Id. at 173- 74, 179,
PageID.385-86, 391. Petitioner demanded oral sex and she
complied. Id. at 175-76, PageID.387-88. He pointed a
gun at her head while he penetrated her vaginally with his
penis. Id. at 176, PageID.388.
and Wells then went outside. When they approached her
friends' car, Petitioner pointed the gun at them and
demanded money. Id. at 182, PageID.394. He
threatened to take the car and took the keys out of the
ignition, but then returned the keys and told the women to
leave. Id. at 184, PageID.396. Before they left,
Petitioner took phones from both Wells and one of her
friends. Id. at 183, PageID.395. The women reported
the incident to the police. Id. at 186, PageID.398.
Police Officer Robert Kane was the officer in charge of
Petitioner's case. 7/17/13 Trial Tr. at 65, ECF No. 5-8,
PageID.655. Wells and the other women identified Petitioner
from a photo array. Id. at 81, PageID.671. Kane then
sought the assistance of the “special operations
division” of the Detroit Police Department for their
aid in arresting Petitioner. Id. at 83, 86,
PageID.673, 676. Kane discovered that Petitioner was on
probation. Id. at 87, PageID.677.
assigned probation officer was Marcus Robinson. Robinson
accompanied Kane and special operations officers to a house
on Kenmore Street in Detroit, where they determined
Petitioner was. 7/16/13 Trial Tr. at 23-24, ECF No. 5-7,
PageID.501-02; 7/17/13 Trial Tr. at 87, ECF No. 5-8,
PageID.677. Robinson told the young woman who answered the
door that they were there for a “home
check”-typical for probationers. 7/16/13 Trial Tr. at
25, ECF No. 5-7, PageID.503. The officers walked through the
house but left when they were told Petitioner was not home.
Id. at 26, PageID.504. Five or ten minutes later,
the officers returned to the house and found Petitioner
hiding under a mattress in an upstairs bedroom. Id.
at 27, PageID.505.
their search for Petitioner, but before they located him
under the mattress, Robinson found what he thought was a
firearm on top of the refrigerator in the kitchen.
Id. at 28, PageID.506. He determined it was not a
real gun, but a “facsimile.” Id. at 29,
PageID.507; Trial Tr. 7/17/13 at 91, ECF No. 5-8, PageID.681.
Petitioner was arrested by the Detroit Police Department.
Id. at 36, PageID.514.
was not arrested pursuant to an arrest warrant, nor did the
officers have a search warrant for the residence. Rather,
this was a “home check” performed by probation
officer Robinson pursuant to the rules of probation. Trial
Tr. 7/17/13 at 119, ECF No. 5-8, PageID.709. Although there
were no warrants for the search or the arrest, there was no
need to obtain one. 7/16/13 Trial Tr. at 31, ECF No. 5-7,
PageID.509. He “recovered th[e] firearm under the
purview of a home check” and turned it over to the
Detroit Police Department. Id. at 36, 38,
cross-examination of Robinson, Petitioner's defense
counsel tried to establish that the search of the Kenmore
house was illegal, but the court sustained the
prosecution's objection. 7/16/13 Trial Tr. at 38-39, ECF
No. 5-7, PageID.516-17. Trial counsel did not raise the issue
again. See 7/16/13 Trial Tr., ECF No. 5-7; 7/17/13
Trial Tr. ECF No. 5-8; 7/18/13 Trial Tr., ECF 5-9. During
trial, the court dismissed the felony firearm charge against
Petitioner. Trial Tr. 7/17/13 at 132, ECF No. 5-8,
PageID.722. However, the court also denied trial
counsel's motion for a directed verdict on the three
charges of felonious assault (also known as “assault
with a dangerous weapon”). Trial Tr. 7/17/13 at 123,
128, 135, ECF No. 5-8, PageID.713, 718, 725. Petitioner was
convicted on all counts. 7/18/13 Trial Tr. at 16-17, ECF No.
appealed his convictions to the Michigan Court of Appeals,
raising the following three grounds for relief: (1) His
convictions for assault with a dangerous weapon must be
vacated because the firearm used in the offense was not real,
(2) trial counsel was constitutionally ineffective during
plea negotiations, and (3) the warrantless search of his
residence by the probation officer violated the Fourth
Amendment and the weapon found should have been suppressed.
with his brief on appeal, Petitioner filed two motions to
remand through appellate counsel. The first sought a
Gintherhearing to establish trial counsel's
ineffectiveness for his failure to have the felonious assault
charges dismissed during pre-trial plea negotiations. Mich.
Ct. App. Record at 67, ECF No. 5-11, PageID.922.
Petitioner's second motion sought a remand for an
evidentiary hearing “For Purposes of Fourth Amendment
Analysis, ” to establish the warrantless search and
seizure was unconstitutional. It stated that trial counsel
was ineffective for failing to move to suppress evidence
obtained during that search. Id. at 61, PageID.916.
The Court of Appeals denied both motions. Id. at 71,
PageID.926. Petitioner did not appeal the denials.
Court of Appeals denied Petitioner relief on his ineffective
assistance of counsel and Fourth Amendment claims but vacated
the felonious assault convictions and remanded for
re-sentencing “if necessary.” People v.
McClure, No. 317995, 2015 WL 302683, at *6 (Mich. Ct.
App. Jan. 22, 2015). Petitioner's pro per
application for leave to appeal to the Michigan Supreme Court
raised the same three issues that were before the court
below. See Mich. Sup. Ct. Record, ECF No. 5-12.
Again, the denial of the motions to remand was not included
in Petitioner's application for leave. Id.
Michigan Supreme Court denied leave to appeal in a standard
order, because it was “not persuaded that the questions
presented should be reviewed by this Court.” People
v. McClure, 497 Mich. 1031 (2015). Petitioner's
convictions were final on August 26, 2015. He filed this
petition on August 26, 2016.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
(Apr. 24, 1996), sets forth the standard of review that
federal courts must use when considering habeas petitions
brought by prisoners challenging their state court
convictions. The AEDPA provides in relevant part:
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 ...