United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING CERTIFICATE OF
COHN UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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.
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, ...