United States District Court, E.D. Michigan, Southern Division
TERRY R. STINEBACK, Petitioner,
SHERMAN CAMPBELL, Respondent.
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY,
AND (3) DENYING PERMISSION TO APPEAL IN FORMA
Nancy G. Edmunds, United States District Judge
Stineback, (âPetitionerâ), a Michigan prisoner, filed this
action under 28 U.S.C. Â§ 2254. Petitioner was convicted after
a jury trial in the Cass Circuit Court of second degree
murder, Mich. Comp. Laws Â§ 750.317, assault with intent to
commit murder, Mich. Comp. Laws Â§ 750.383, and commission of
a felony with a firearm. Mich. Comp. Laws Â§ 750.227b.
Petitioner was sentenced to an effective controlling term of
22 to 42 years' imprisonment.
petition raises six claims: (1) Petitioner's rights under
the Confrontation Clause were violated when his minor
daughter testified against him via closed-circuit television;
(2) insufficient evidence was presented at trial to disprove
Petitioner's self-defense claim; (3) insufficient
evidence was presented to prove that Petitioner committed
assault with intent to commit murder; and (4) the prosecutor
committed misconduct by commenting on Petitioner's
post-arrest silence. The Court will deny the petition because
Petitioner's claims are without merit. The Court will
also deny Petitioner a certificate of appealability and deny
permission to appeal in forma pauperis.
was originally charged with first-degree murder, assault with
intent to commit murder, and commission of a felony with a
firearm in connection with the shooting death of his wife.
admitted at trial indicated that Petitioner was fed-up his
wife continually calling and texting him since she had been
off work on medical leave. He expressed his exasperation to
coworkers on the date of the shooting. On the night of the
shooting, Petitioner drank at a bar after work and then
returned home. Testimony from one of the bar patrons
indicated that Petitioner was upset at the victim, and he
showed him his cell phone which showed that she tried to call
Petitioner over twenty times while he was at the bar.
arriving home, Petitioner and the victim exchanged loud words
in the kitchen. This prompted their nine-year-old daughter,
JL, to come downstairs. JL testified via closed-circuit
television that when she went into the kitchen she saw
Petitioner on top of her mother choking her. After repeated
attempts, she was finally able to push Petitioner off her
mother. JL and her mother ran upstairs. JL guided her mother
into the master bedroom where JL hoped she would call 9-1-1.
Instead, Petitioner followed the victim inside the bedroom
and locked the door behind him. JL then heard loud arguing
for a few minutes as she paced back and forth in front of the
heard several loud bangs, and the house suddenly fell silent.
She then heard Petitioner on the phone with 9-1-1. Petitioner
admitted to the 9-1-1 operator that he shot the victim.
Eventually, Petitioner emerged from the bedroom and told JL
to go outside, where she was met be emergency responders.
forensic evidence indicated that the victim had been shot
three times. One shot, which entered her left arm pit and
traveled diagonally through her body, was likely fired while
the victim had her left arm extended from a position lower
than Petitioner. The other two gunshots entered the
victims' back. The victim was found lying in a fetal
position next to her bed. The angle of the shots to the back
suggested that those two shots were also filed while she was
positioned lower than Petitioner. No. weapon was found near
the victim. Petitioner's handgun, with which he admitted
to shooting the victim, was found lying on the bed. Other
firearms were found in the house.
testified in his own defense that he shot the victim because
he thought she was reaching for her handgun when they were
arguing in the bedroom. Petitioner explained that because the
room was only lit by a television it was difficult to see
whether the victim was armed, but he thought she was.
Petitioner testified that after he fired the first shot, he
thought the victim continued to move towards him, so he fired
jury rejected the defense and found Petitioner guilty of
second-degree murder, assault with intent to commit murder
(for the conduct in the kitchen), and felony-firearm.
Following sentencing, Petitioner was appointed appellate
counsel who filed a claim of appeal. Appellate counsel filed
a brief on appeal raising four claims:
I. Must Mr. Stineback's convictions be vacated because
his rights under the Confrontation Clause were violated when
a witness (not a complainant), who did not see the actual
shooting, was allowed to testify outside the courtroom and
outside the presence of Mr. Stineback, which also violated
II. Can Mr. Stineback be guilty of second-degree murder when
there is insufficient evidence to support such a conviction
when Mr. Stineback was acting in lawful self-defense?
III. Can Mr. Stineback be guilty of assault with intent to
murder when there is insufficient evidence to support such a
IV. Did prosecutorial misconduct deny Mr. Stineback a fair
trial and shifted the burden as the prosecution commented on
Mr. Stineback's “13 months of not talking or
telling anybody what happened”?
Michigan Court of Appeals affirmed Petitioner's
convictions in an unpublished opinion. People v.
Stineback, 2017 WL 5616125 (Mich. Ct. App. Nov. 21,
2017). Petitioner subsequently filed an application for leave
to appeal in the Michigan Supreme Court, raising the same
claims. The Michigan Supreme Court denied the application by
standard form order. People v. Stineback, 910 N.W.2d
273 (Mich. 2018) (Table).
Standard of Review
U.S.C. § 2254(d)(1) curtails a federal court's
review of constitutional claims raised by a state prisoner in
a habeas action if the claims were adjudicated on the merits
by the state courts. Relief is barred under this section
unless the state court adjudication was “contrary
to” or resulted in an “unreasonable application
of” clearly established Supreme Court law.
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
[this] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003), quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000).
‘unreasonable application' prong of the statute
permits a federal habeas court to ‘grant the writ if
the state court identifies the correct governing legal
principle from [the Supreme] Court but unreasonably applies
that principle to the facts' of petitioner's