United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS , DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
prisoner Aaron Desean Flake ("Petitioner") was
convicted of arson of a dwelling, under Mich. Comp. Laws
§ 750.72, following a 2013 jury trial in the Wayne
County Circuit Court. ECF 8-11, PgID 1421. He was sentenced
to between 10 years, 8 months' and 20 years'
imprisonment. ECF 8-13, PgID 1459. On June 23, 2016,
Petitioner filed a habeas petition, in which he raises claims
concerning the composition of the jury, the impartiality of
the jury and the effectiveness of trial counsel, the
admission of video surveillance evidence, the sufficiency of
the evidence, and the validity of his sentence. ECF 1. For
the following reasons, the Court will deny the habeas
petition. The Court will also deny a certificate of
appealability and leave to proceed in forma pauperis on
Michigan Court of Appeals described the relevant facts, which
are presumed correct on habeas review, 28 U.S.C. §
2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th
Cir. 2009), as follows:
This case arises from an incident that occurred in Detroit on
November 17, 2012. On that evening, there was a fire in a
Detroit home. After the fire was contained, a resident of the
home was found dead inside. It was determined, however, that
the victim died from three gunshots [sic] wounds incurred
before the fire was started. The prosecution alleged that
defendant, who was seen at the home on the night of the fire,
perpetrated the murder and arson. Surveillance footage from a
church across the street from the residence was downloaded
and admitted at trial. The footage showed two individuals
arriving at the home in a two-door vehicle before the fire
and leaving the home after the fire was set. Defendant was
ultimately convicted of arson.
People v. Petitioner, No. 317325, 2014 WL 6602604,
*1 (Mich. Ct. App. Nov. 20, 2014).
close of trial, the jury convicted Petitioner of arson, but
acquitted him of first-degree murder and felony firearm.
Following his conviction and sentencing, Petitioner filed an
appeal as of right with the Michigan Court of Appeals raising
several claims, including the claims presented on habeas
review. The court denied relief on those claims and affirmed
his conviction and sentence. Petitioner, 2014 WL 6602604 at
*1-7. The Michigan Supreme Court denied Petitioner's
application for leave to appeal. People v.
Petitioner, 497 Mich. 1029 (2015).
thereafter filed his federal habeas petition. ECF 1. He
raises the following five claims:
I. The prosecutor's exercise of peremptory challenges to
exclude two members of from a jury pool that was severely
under-represented with African-American jurors violated his
constitutional right to equal protection of the laws.
II. He was denied a fair trial and impartial jury under the
federal constitution where, during the trial, one of the
jurors became concerned that a spectator in the courtroom had
been involved in witness intimidation in an unrelated case
where she was on the jury, and counsel failed to request a
mistrial and the court failed to interview the other jurors
to determine if this information had been disclosed to the
III. The trial court denied him due process of law when the
trial court allowed the admission of inadmissible and highly
prejudicial surveillance video footage.
IV. He was denied due process of law when he was convicted
based on insufficient evidence.
V. The court violated his due process rights in imposing a
sentence that amounted to cruel and unusual punishment.
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
federal law. 28 U.S.C. § 2254(d)(1).
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
[the] precedent." Mitchell v. Esparza, 540 U.S.
12, 15-16 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 405-06 (2000)).
state court unreasonably applies Supreme Court precedent only
when its application of precedent is "objectively
unreasonable." Wiggins v. Smith, 539 U.S. 510,
520-21 (2003) (internal citations omitted). A merely
"incorrect or erroneous" application is
insufficient. Id. "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 v. Richter, 562 U.S. 86,
101 (2011) (quoting Yarborough v. Alvarado, 541 U.S.
652, 654 (2004)).
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
resolution of an issue." Stewart v. Erwin, 503
F.3d 488, 493 (6th Cir. 2007) (citing Williams v.
Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)).
a federal habeas court presumes the correctness of state
court factual determinations. See 28 U.S.C. §
2254(e)(1). A petitioner may successfully rebut the
presumption only by clear and convincing evidence.
first asserts that he is entitled to habeas relief because
the prosecutor used peremptory challenges to improperly
exclude two African-American women from the jury pool.
a criminal defendant has no right to have a member of a
particular race on the jury, he or she does have the right to
be tried by a jury whose members are selected by
non-discriminatory criteria. See Powers v. Ohio, 499
U.S. 400, 404 (1991). The Equal Protection Clause of the
Fourteenth Amendment prohibits a prosecutor from challenging
potential jurors solely on account of their race. See
Batson v. Kentucky, 476 U.S. 79, 89 (1986).
establish a prima facie case of purposeful discrimination in
the selection of a jury based on the prosecutor's
exercise of peremptory challenges, a defendant must show that
he or she is a member of a cognizable racial group and that
the prosecutor used peremptory challenges to remove members
of the defendant's race from the jury. Id. at
94. The defendant must also show that other relevant
circumstances raise an inference that the prosecutor used the
peremptory challenges to exclude jurors on account of their
race. Id. at 96. Relevant circumstances include the
pattern of strikes and the prosecutor's questions and
statements. Id. at 96-97.
the defendant makes a prima facie showing, the burden shifts
to the prosecutor to offer a "race neutral
explanation" for challenging the jurors. Id. at
97. A "race neutral" explanation is one based upon
something other than the juror's race. Id.
"Unless a discriminatory intent is inherent in the
prosecutor's explanation, the reason offered will be
deemed race neutral." Hernandez v. New York,
500 U.S. 352, 360 (1991).
race-neutral explanation is offered, the court must then
determine whether the defendant carried the burden to prove
purposeful discrimination. Batson, 476 U.S. at 98. The
ultimate question of discriminatory intent concerns an
evaluation of the prosecutor's credibility. Such a
decision represents a factual finding accorded great
deference on appeal, which will not be overturned unless
clearly erroneous. See Miller-El v. Cockrell, ...