United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE
Anderson, (“Petitioner”), confined at the Carson
City Correctional Facility in Carson City, Michigan, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges his convictions for two
counts of assault with intent to do great bodily harm less
than murder, M.C.L.A. 750.84; three counts of second-degree
child abuse, M.C.L.A. 750.136b; one count of domestic
violence, M.C.L.A. 750.812; and being a fourth felony
habitual offender, M.C.L.A. 769.12. For the reasons that
follow, the petition for writ of habeas corpus is DENIED.
was convicted following a jury trial in the Wayne County
Circuit Court. The jurors acquitted him of four assault with
intent to murder charges.
Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which 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.
Kishwar Smith and defendant were in a dating relationship in
April 2014. Smith testified that on April 19, 2014, she,
defendant, nine-year old Tahara Ahmad (Smith's daughter),
nine-year-old Brenae Rice (Ahmad's friend), and
18-month-old Ethan Monk (Smith and defendant's son) were
all at Smith's friend's house. Smith testified that
later that evening at her friend's house, defendant
called her a “bitch, ” provoking a fight between
defendant and another guest in which defendant got
“beat ... up.” Smith testified that the incident
made defendant angry. Smith testified that she and the
children then left with defendant in his car, and that
defendant became irate and began to punch her in the head and
rip her hair out. According to Smith, defendant then said,
“I might as well just kill us all.” Ahmad and
Rice confirmed that defendant threatened to kill everyone.
Smith said that defendant abruptly turned, accelerated, and
drove over a curb and directly into another car. Smith
testified that defendant then put the car in reverse and
pulled away. Before he did so, Ahmad and Rice managed to get
out of the car. Defendant continued to drive and punch Smith
until he accelerated, jumped some railroad tracks, sending
the car airborne, and crashed into a concrete barrier near
the Detroit River. According to Smith, the airbags deployed
and defendant was knocked unconscious.
People v. Anderson, No. 325852, 2016 WL 1040151, at
*1 (Mich. Ct. App. Mar. 15, 2016).
conviction was affirmed. Id., lv. den. 500 Mich. 867
post-conviction motion for relief from judgment was denied by
the trial court, People v. Anderson, No.
14-003712-01 (Third Jud.Cir.Ct., June 2, 2017), and on
appeal. People v. Anderson, No. 341143 (Mich.Ct.App.
Jan. 4, 2018); lv. den. 502 Mich. 939 (2018).
seeks habeas relief on the following grounds: (1) There was
insufficient evidence to support his assault with intent to
do great bodily harm convictions, (2) the trial court erred
in failing to instruct the jurors on lesser included
offenses; alternatively, trial counsel was ineffective for
failing to request such instructions, (3) trial counsel was
ineffective for failing to move for a mistrial or seek a
cautionary instruction, (4) the prosecutor improperly vouched
for the credibility of witnesses, (5) trial counsel was
ineffective for failing to investigate petitioner's claim
that he never crashed into a concrete barrier, and (6) newly
discovered evidence shows that there was insufficient
evidence to convict.
Standard of Review
U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 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;
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.
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, 405-06 (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 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 410-11. “[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).
Claims # 1 and # 6. The insufficiency of evidence
challenges the sufficiency of evidence to convict.
beyond question that “the Due Process Clause protects
the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In Re
Winship,397 U.S. 358, 364 (1970). But the critical
inquiry on review of the sufficiency of the evidence to
support a criminal conviction is, “whether the record
evidence could reasonably support a finding of guilt beyond a
reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 318 (1979). This inquiry, however, does not require
a court to “ask itself whether it believes
that the evidence at the trial established guilt beyond a
reasonable doubt.” Instead, the relevant question is
whether, after viewing the evidence in the light most