United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING THE PETITION FOR A WRIT
OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
COHN UNITED STATES DISTRICT JUDGE.
a habeas case under 28 U.S.C. § 2254. Petitioner Damien
Banks (Petitioner) is a state inmate serving a sentence of
6-20 years for assault with intent to do great bodily harm
less than murder, M.C.L. § 750.84, 6-20 years for
conspiracy to commit assault with intent to do great bodily
harm less than murder, M.C.L. § 750.157a and M.C.L.
§ 750.84, 15-40 years for armed robbery, M.C.L. §
750.529, and 15-40 years for conspiracy to commit armed
robbery, M.C.L. § 750.157a and M.C.L. § 750.529.
Petitioner filed a pro se petition for a writ of
habeas corpus claiming that he is incarcerated in violation
of his constitutional rights. Respondent, through the
Attorney General’s Office, filed a response, arguing
that Petitioner’s claims are meritless or procedurally
defaulted. For the reasons which follow, the petition will be
was convicted following a jury trial. Petitioner filed an
appeal of right. The Michigan Court of Appeals affirmed his
conviction. People v. Banks, No. 319889, 2015 WL
6438128 (Mich. Ct. App. Oct. 22, 2015). Petitioner then filed
a pro se application for leave to appeal with the
Michigan Supreme Court, which was denied. People v.
Banks, 499 Mich. 884 (2016).
seeks habeas relief on the following grounds:
I. There was insufficient evidence to convict petitioner in
state court of conspiracy to commit assault with intent to
commit great bodily harm, armed robbery, and conspiracy to
commit armed robbery, in violation of his federal
constitutional right to due process.
II. Petitioner was denied his Sixth Amendment right to a fair
trial and Fourteenth Amendment right to the presumption of
innocence when the state trial judge introduced jury
instructions which diluted the prosecution’s burden of
proof and shifted the burden to the defense.
III. Petitioner was denied his Sixth Amendment constitutional
right to the effective assistance of counsel at his trial,
specifically when counsel: (A) failed to effectively impeach
the complaining witness; (B) failed to investigate and
introduce surveillance video which would have corroborated
his actual innocence; and (C) failed to object to the
prosecution’s use of false testimony and evidence, in
violation of due process.
material facts leading to Petitioner’s conviction are
recited verbatim from the Michigan Court of Appeals’
opinion, which are presumed correct on habeas review.
See 28 U.S.C. § 2254(e)(1); Wagner v.
Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Brad Bohen lived down the street from Tiffany Greathouse.
After meeting in the neighborhood, Bohen became friends with
Greathouse’s brother, Maliki Greathouse, and her
boyfriend, defendant Banks. On the day in question, Bohen
testified that Banks and Maliki were visiting his home when
he took a phone call from his attorney. Bohen told his
attorney that he had gathered sufficient money to pay a $650
retainer plus additional fees and that he wished to procure
his services. When Banks and Maliki heard this conversation,
they allegedly looked at each other and left.
Later that day, Bohen left his home with approximately $2,
500 in cash in his pocket. He travelled (sic) with his friend
Renee Nomer and her two children to Costco and then to T.G.I.
Friday’s for dinner. While inside the restaurant, Bohen
fielded two phone calls from Banks. Bohen alleged that Banks
wanted him to purchase some Xanax and Adderall from him.
Bohen told Banks that he could meet him at the restaurant.
Banks called once and claimed to be outside the restaurant.
Bohen could not find him in the parking lot and returned to
his table. Bohen testified that Banks called again and
claimed to be waiting outside. When Bohen exited the
restaurant, he saw Greathouse sitting inside a vehicle in the
parking lot. Bohen asserted that Greathouse pointed toward
the back of the restaurant.
Bohen walked toward the back parking lot and saw Banks and
Lyons standing near the dumpster. Lyons is the boyfriend of
Greathouse’s mother and Bohen had not met him before
the attack. As Bohen approached the men, someone struck him
from behind in the head and he fell to the ground. Banks and
Lyons ran toward him, and Bohen initially believed they were
coming to assist him. However, Banks and Lyons joined the
fray, keeping him on the ground, and hitting and kicking him.
A young female employee of the restaurant came out at the end
of her shift and saw two tall, thin black men wearing hooded
jackets beating a white man who was curled on the ground in
fetal position. One man was using a “small, blunt
object” that “looked like a hammer” to beat
the victim in the head. She saw a third man standing watch.
She yelled and the men ran away, with one man dropping
something out of his pocket along the way. At the end of this
encounter, Bohen had only $661 remaining in his pockets.
Bohen was hospitalized for five days and required surgery to
remove a shard of his skull from his brain. Investigating
officers brought photographic lineups to the hospital for
Bohen’s review. The first included black and white
photographs and Bohen was unable to identify his attackers.
In the second lineup, Bohen identified Banks. In a third,
Bohen selected Lyons from the array.
Following a joint trial before a single jury and several days
of jury deliberations, the jury acquitted the defendants of
the greatest charged offenses and convicted them of assault
with intent to commit great bodily harm, armed robbery, and
conspiracy to commit those offenses. These consolidated
People v. Banks, 2015 WL 6438128, at *1-2.
Standard of Review
U.S.C. § 2254(d) imposes the following standard of
review for habeas cases:
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.
court’s decision 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, 405-06 (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 409.
A federal habeas court shall 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.
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)(citing Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme
Court emphasized “that even a strong case for relief
does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 102 (citing Lockyer
v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore,
pursuant to § 2254(d), “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 the Supreme
Court. Id. To obtain habeas relief in federal court,
a state prisoner is required to show that the state
court’s rejection of his claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.