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Burnside v. Campbell

United States District Court, E.D. Michigan, Southern Division

August 28, 2019

AVERN LEE BURNSIDE, Petitioner,
v.
SHERMAN CAMPBELL, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE

         Petitioner 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 petition.

         I. Background

         Petitioner's 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).

         A jury 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 firearm convictions.

         The 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).

         Now 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 recordings.
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 fair trial.

         II. Standard of Review

          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; or
(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).

         A 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. at 411.

         “AEDPA 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.

         A state 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).

         III. Discussion

         A. Prosecutorial Misconduct (Claims I & VII)

         Petitioner 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.[1]

         The 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 ...


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