United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS; GRANTING A CERTIFICATE OF APPEALABILITY; AND
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON
V. PARKER U.S. DISTRICT JUDGE.
Lee Wimberly (“Petitioner”), through attorney S.
Allen Early, has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner challenges his
Michigan state court convictions for two counts of assault
with intent to commit murder in violation of Michigan
Compiled Laws § 750.83. For the following reasons, the
Court is denying the petition.
was convicted following a jury trial in the Circuit Court for
Wayne County, Michigan. The Court recites verbatim the
relevant facts from the Michigan Court of Appeals'
Defendant was convicted of aiding or abetting the shooting
assaults of Brendon Charles and Seylon Dudley during the
early morning hours of January 1, 2013, in an apparent
road-rage incident after Charles and Dudley left the MGM
Grand Casino in Detroit. Charles and Dudley left the casino
in a Range Rover driven by Charles. Defendant, who had also
been at the casino, was driving a Ford Expedition with two
passengers, one of whom was Steven Smith-Rush
(“Rush”). After an altercation between the
drivers of the two vehicles while leaving the casino, the
Expedition followed the Range Rover onto the I-94 freeway,
eventually pulled alongside the vehicle, and then multiple
gunshots were fired from the Expedition into the Range Rover.
Charles and Dudley were both struck by gunfire.
Defendant and Rush were arrested later in January 2013, but
Rush was initially charged only with accessory after the
fact. Charles was murdered the day before a joint preliminary
examination for defendant and Rush was to be held on January
30, 2013. When the preliminary examination ultimately
concluded in April 2013, defendant was bound over for trial
on two counts of assault with intent to commit murder and one
count of felony-firearm. The district court found
insufficient credible evidence to add assault charges against
Rush, but bound Rush over for trial on charges of accessory
after the fact and giving a false statement to the police.
Rush later entered a guilty plea to the latter charge.
Defendant testified at trial and admitted driving the
Expedition when his passengers fired gunshots into the Range
Rover, but argued that he was merely present in the vehicle,
was unaware that his passengers intended to fire gunshots
into the Range Rover, and did nothing to aid or assist the
passengers in the shooting assault of the two victims. The
prosecution presented evidence linking defendant to an
attempt to bribe Charles if he did not testify at the
preliminary examination, and linking him to Charles's
murder the day before the scheduled preliminary examination.
The jury convicted defendant of two counts of assault with
intent to commit murder, but acquitted him of the
People v. Wimberly, No. 321490, 2015 WL 6161545, at
*1 (Mich. Ct. App. Oct. 20, 2015). These facts are presumed
correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413
(6th Cir. 2009)
Michigan Court of Appeals affirmed Petitioner's
conviction and sentence on direct appeal. Wimberly,
2015 WL 6161545. The Michigan Supreme Court denied Petitioner
leave to appeal. People v. Wimberly, 890 N.W.2d 974
asserts the following grounds in support of his request for
federal habeas relief:
I. Petitioner Willie Wimberly was denied a fair trial when
the trial court denied his Sixth Amendment right to retained
counsel of his choice.
II. Petitioner Willie Wimberly is entitled to a new trial as
he was denied effective assistance of counsel.
III. Petitioner Willie Wimberly is entitled to be resentenced
because the facts in support of some of his offense variable
scores and facts in support of departures reasons were not
found by the jury to be proven beyond a reasonable doubt, and
because the trial court improperly departed from the
guidelines and the mistake in scoring the guidelines
invalidates this departure and the departure is unreasonable
because it is based on incorrect guidelines and because the
correct guideline range is in a completely different cell
which does not overlap with the erroneous guideline range and
the Court of Appeals decision is in conflict with the Supreme
Court decision of Gall v. United States and Rita
v. United States and denies petitioner due process.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) govern this case. See Lindh v.
Murphy, 521 U.S. 320, 336 (1997). AEDPA provides:
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 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).
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
[that] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams
v. Taylor, 529 U.S. 362, 405-06 (2000)); see also
Bell v. Cone, 535 U.S. 685, 694 (2002).
‘unreasonable application' prong of §
2254(d)(1) 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 [the] petitioner's
case.” Wiggins v. Smith, 539 U.S. 510, 520
(2003) (quoting Williams, 529 U.S. at 413); see
also Bell, 535 U.S. at 694. However, “[i]n order
for a federal court to find a state court's application
of [Supreme Court] precedent ‘unreasonable,' the
state court's decision must have been more than incorrect
or erroneous. The state court's application must have
been ‘objectively unreasonable.'”
Wiggins, 539 U.S. at 520-21 (citations omitted);
see also Williams, 529 U.S. at 409. “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, 521 U.S. at 333, n.7;
Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
The Concurrent Sentencing Doctrine
urges the Court invoke the “concurrent sentence”
doctrine and not review Petitioner's claims because
Petitioner is serving a sentence of life imprisonment without
parole for the first-degree murder conviction he received in
connection with Mr. Charles' death and for which another
judge in this District already has denied him habeas relief.
See Wimberly v. Warren, No. 2:18-11011, 2018 WL
6178999 (E.D. Mich. Nov. 27, 2018) (Borman, J.).
concurrent sentence doctrine allows a federal court to
“decline to hear a substantive challenge to a
conviction when the sentence on the challenged conviction is
being served concurrently with an equal or longer sentence on
a valid conviction.” Winn v. Renico, 175
Fed.Appx. 728, 731 (6th Cir. 2006) (citing United States
v. Jeter, 775 F.2d 670 (6th Cir. 1985), cert.
denied 475 U.S. 1142 (1979)). The Sixth Circuit
“has been … hesitant to apply this doctrine[,
]” and “has invoked it [only] when there is no
possibility of adverse ‘collateral consequences' if
the convictions stand.” Id. at 732; see
also Groves v. Meko, 516 Fed.Appx. 507, 508 (6th Cir.
2013) (quoting Dale v. Haeberlin, 878 F.2d 930, 935
n. 3 (6th Cir. 1989)) (“The concurrent sentencing
doctrine is a discretionary one, and courts ‘are
admittedly hesitant to apply [it].'”).
fails to show the lack of collateral consequences attaching
to Petitioner's first-degree murder conviction. See
Pillette v. Berghuis, 408 Fed.Appx. 873, 886 n. 8 (6th
Cir. 2010). Notably, although Petitioner's first-degree
murder conviction has been affirmed on direct appeal and he
has been denied habeas relief, he still has the ability to
challenge that conviction in the state courts via a
post-conviction motion for relief from judgment under
Michigan Court Rule 6.500. For that reason, the Court
declines to invoke the concurrent sentence doctrine.