Seeley v. Rewerts

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

          AVERN COHN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This is a habeas case under 28 U.S.C. § 2254. Petitioner, proceeding pro se and without prepayment of the filing fee, challenges his state court convictions for assault with intent to do great bodily harm less than murder, M.C.L. § 750.84, felon in possession of a firearm, M.C.L. § 750.224f, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. Petitioner was sentenced as a fourth-time habitual felony offender to 8 to 25 years for the assault conviction, 4 to 15 years for the possession conviction, and a consecutive 2 years for the felony-firearm conviction. Petitioner raises several claims, including sufficiency of the evidence, evidentiary errors, and ineffective assistance of counsel. For the reasons which follow, the petition will be denied because Petitioner's claims either lack merit or are barred by procedural default which Petitioner cannot overcome.^[1]

         II. Background

         The 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. 2009):

According to the evidence introduced at trial, at approximately 7:00 p.m. on September 29, 2013, the victim, Gavaughny Mims, and his friend, Tylor Simpson, both of whom were fourteen years old, were walking down Arizona Avenue in Flint, Michigan. As they walked, they saw two individuals on the front porch of 1514 Arizona. Gavaughny Mims and Tylor Simpson later identified defendant as one of the individuals on the porch, and the other individual was Victor Shaw, the 14-year-old son of defendant's girlfriend. As Gavaughny Mims and Tylor Simpson continued to walk, defendant's girlfriend came out of the house onto the porch. Defendant's girlfriend began to stare at the boys and, in response, Gavaughny Mims yelled at her, “what are you lookin' at, bitch?”

Following Gavaughny Mims's remark, the boys continued to walk, at which time Gavaughny Mims saw defendant raise his arm out straight in front of him. Gavaughny Mims then saw a flash, heard a loud bang, and immediately felt his leg lock up. After he was shot, Gavaughny Mims attempted to run with Tylor Simpson away from the home. Tylor Simpson then called 911. At trial, neighbors confirmed that defendant lived at 1514 Arizona, and one neighbor in particular, Judith Howe, testified that she saw defendant on the porch at 1514 Arizona on the day in question after she heard gunfire.

Later that day, police arrested defendant at 1527 Arizona, down the street from where the shooting occurred. A search warrant was executed at 1514 Arizona. Inside of the home, officers recovered a shotgun, rifle, and a pistol. In addition, the officers discovered a box of .22 caliber bullets, the same caliber as the bullet found lodged near Gavaughny Mims's hip after he had been shot. The police later conducted tests of the firearms to see if they matched the bullet found in Gavaughny Mims, but the results of the tests were inconclusive.

At trial, Shaw testified for the defense. He claimed that defendant did not live at 1514 and that, on the day in question, defendant was not on the porch. Shaw heard gunfire, but he claimed that no one on the porch fired a gun at Gavaughny Mims or Tylor Simpson. A jury convicted defendant of assault with intent to do great bodily harm less than murder, felon in possession of a firearm, and felony-firearm.

People v. Seeley, No. 323557, 2016 WL 299748, at *1 (Mich. Ct. App. Jan. 21, 2016).

         Following sentencing, Petitioner filed a notice of appeal. His appointed appellate counsel filed a brief on appeal that raised two claims:

I. The evidence that defendant was the shooter, or that he intended to cause great bodily harm, fails the sufficiency of the evidence test. Therefore, the convictions on all three counts should be reversed.

II. Offense Variable (“OV') 4, OV9 and OV 19 were scored in error. The scoring altered the guidelines range and resentencing is required.

         The Michigan Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished opinion. Id. Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims as well as two new additional claims as in the Michigan Court of Appeals, and two new claims that now form the basis for his second and third habeas claims. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed. People v. Seeley, 884 N.W.2d 270 (Mich. 2016) (Table).

         Petitioner then returned to the trial court and filed a motion for relief from judgment that raised what now form his second through fifth habeas claims:

I. Testimony regarding defendant's exercise of his right to remain silent was improper, infringed upon his privilege against self-incrimination and his right to due process, and did affect the outcome of the trial. Therefore, ...