United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE
Avern Burnside filed a pro se habeas corpus petition
under 28 U.S.C. § 2254. He challenges his Genesee County
Circuit Court convictions for assault with intent to murder,
Mich. Comp. Laws § 750.83; carrying a concealed weapon,
Mich. Comp. Laws § 750.227(2); felon in possession of a
firearm, Mich. Comp. Laws § 750.224f; discharging a
weapon from a vehicle, Mich. Comp. Laws § 750.234a; and
possession of a firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b. Respondent argues several
of Petitioner's claims are procedurally defaulted and
that all of his claims are meritless. The Court denies the
convictions arise from a shooting in Flint, Michigan. The
Michigan Court of Appeals provided this summary of the
testimony presented at trial:
The prosecution presented evidence at trial to establish that
at approximately 12:30 p.m. on July 30, 2009, defendant was
driving a black SUV on Court Street in Flint, Michigan while
physically assaulting his girlfriend, Leah Watson, who was
sitting in the front passenger seat. Antwyne Ledesma was
driving on the same road and witnessed defendant's
conduct. When the two cars pulled up to a red light, Ledesma,
whose windows were down, yelled “leave her alone;
you're not f***in' right.” Meanwhile, Watson
was screaming, hollering, and asking for help. When the light
turned green, instead of turning left, as he was in the left
turn lane to do, defendant continued on Court Street and
followed Ledesma. Defendant pulled alongside Ledesma's
car and fired two shots at her. Ledesma's car was struck
by one bullet, but she escaped uninjured.
People v. Burnside, No. 309807, 2014 WL 1515265, *1
(Mich. Ct. App. Apr. 17, 2014).
in Genesee County Circuit Court found Petitioner guilty and
he was sentenced as a fourth habitual offender to 20 to 40
years for the assault with intent to murder conviction, 2
years for the felony-firearm conviction, and 2-1/2 to 15
years each for the carrying a concealed weapon, discharging a
firearm from a vehicle, and being a felon in possession of a
Michigan Court of Appeals affirmed Petitioner's
convictions. People v. Burnside, No. 309807, 2014 WL
1515265, *1 (Mich. Ct. App. Apr. 17, 2014), lv.
denied 497 Mich. 889 (Mich. Oct. 28, 2014). Petitioner
filed a motion for relief from judgment, which the trial
court denied. See 7/14/15 Op. & Ord., ECF No.
11-38. The Michigan Court of Appeals denied leave to appeal,
People v. Burnside, No. 328495 (Mich. Ct. App. Sept.
15, 2015), as did the Michigan Supreme Court, People v.
Burnside, 499 Mich. 967 (Mich. June 28, 2016).
before the Court is Petitioner's habeas corpus petition,
raising the following grounds for relief:
I. Petitioner's due process rights were violated and he
is entitled to a new trial based on newly discovered
evidence, where the prosecutor knowingly used perjured
testimony from Leah Watson, whose testimony was based on
threats and intimidation.
II. The trial court denied Petitioner a fair trial by
admitting some irrelevant and unfairly prejudicial
transcripts of some alleged phone conversations purported to
be between Leah Watson and Petitioner that were not
sufficiently authenticated and were not trustworthy.
III. Petitioner is entitled to a new trial where the verdict
is against the great weight of the evidence, and it would be
a denial of due process and a miscarriage of justice to allow
Petitioner's convictions to stand.
IV. Petitioner was denied both his state and federal
constitutional rights to effective assistance of trial
counsel, where counsel failed to compel the prosecution to
hand over the exculpatory phone calls from the Genesee County
jail, and counsel failed to let Petitioner hear the phone
V. Petitioner was denied his right to effective assistance of
appellate counsel on his only appeal of right when counsel
failed to raise trial counsel issues of error, and failed to
raise the preserved issues.
VI. The trial court abused its discretion when it permitted
police Sergeant Brown to testify over defense objection, that
Leah Watson presented “the classic case of somebody
that was a victim of domestic violence.” The admission
of this improper syndrome testimony invaded the province of
the jury and deprived Petitioner of his due process right to
a fair trial.
VII. The cumulative effect of the prosecutor's misconduct
denied Petitioner a fair trial.
VIII. Trial counsel's ineffectiveness in failing to
object to the prosecutor's repeated instances of
misconduct denied Petitioner a fair trial.
IX. The trial court reversibly erred in overruling the
defense objection to the admission of evidence alleging that
Petitioner assaulted Leah Watson in 2005, as that evidence
had minimal if any relevance to the question of
Petitioner's alleged intent in the case at bar; the
defense had not put into issue the intent question at the
point the prosecution introduced the evidence, contrary to
the court's pretrial ruling, and even if relevant the
evidence was more prejudicial than probative under MRE 403.
X. Petitioner was denied his Sixth Amendment right to a
speedy trial, alternatively, defense counsel was ineffective
by his failure to file a motion to dismiss on those grounds.
XI. Cumulative effect of alleged errors denied Petitioner a
Standard of Review
of this case is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Under the
AEDPA, a state prisoner is entitled to a writ of habeas
corpus only if he can show that the state court's
adjudication of his claims -
(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.
28 U.S.C. § 2254(d).
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 (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 408.
“[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.
thus imposes a ‘highly deferential standard for
evaluating state-court rulings,' and ‘demands that
state-court decisions be given the benefit of the
doubt.'” Renico v. Lett, 559 U.S. 766, 773
(2010) quoting Lindh v. Murphy, 521 U.S. 320, 333 n.
7 (1997); Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam). “[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). “[A] habeas court must determine what
arguments or theories supported or ... could have supported,
the state court's decision; and then it must ask whether
it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of th[e Supreme] Court.” Id.
court's factual determinations are entitled to a
presumption of correctness on federal habeas review. See 28
U.S.C. § 2254(e)(1). The presumption may be rebutted
with clear and convincing evidence. See Warren v.
Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Habeas
review is “limited to the record that was before the
state court.” Cullen v. Pinholster, 563 U.S.
170, 181 (2011).
Prosecutorial Misconduct (Claims I & VII)
alleges several instances of prosecutorial misconduct: (i)
the prosecutor knowingly presented perjured testimony; (ii)
the prosecutor's opening statement was argumentative;
(iii) the prosecutor vouched for the victim's
credibility; and (iv) the prosecutor elicited irrelevant
testimony from Sergeant Brown. He also argues that the
cumulative effect of these errors denied him a fair trial.
Respondent argues that these claims are procedurally
defaulted. Procedural default is not a jurisdictional bar to
review of a habeas petition on the merits. Trest v.
Cain, 522 U.S. 87, 89 (1997). “[F]ederal courts
are not required to address a procedural-default issue before
deciding against the petitioner on the merits.”
Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003)
(citing Lambrix v. Singletary, 520 U.S. 518, 525
(1997)). The Court finds it is more efficient to proceed to
the merits of these claims.
controlling Supreme Court decision governing prosecutorial
misconduct claims is Darden v. Wainwright, 477 U.S.
168 (1986). Under Darden, a prosecutor's
improper comments violate a criminal defendant's
constitutional rights if they “‘so infect the
trial with unfairness as to make the resulting conviction a
denial of due process.'” Id., at 181
(1986) (quoting Donnelly v. DeChristoforo, 416 U.S.
637, 643 (1974)). To constitute a due process violation, the
prosecutor's conduct must have been “so ...