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McCrary v. Burt

United States District Court, E.D. Michigan, Southern Division

November 6, 2019

S.L. BURT, Respondent.

          David R. Grand, Judge



         Darrius McCrary has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. McCrary challenges his state-court convictions for first-degree murder, first-degree home invasion, and possession of a firearm during a felony. The claims lack merit and for the reasons set forth below, the Court denies the petition and denies a certificate of appealability.


         McCrary's convictions stem from the November 25, 2010, murder of Fredricka Dixon. The Michigan Court of Appeals described the underlying facts, which are presumed to be correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

On November 25, 2010, Thanksgiving Day, around 8:00 p.m., Dixon and her son were home alone. Her son went upstairs and played video games. At some point he went to the kitchen to warm some food. While in the kitchen, Dixon's son heard a “jingle” on the door, like someone was trying to open it. He looked through the peephole and saw McCrary on the porch; he was talking on his phone. Dixon's son checked to see if the door was locked and it was. He yelled downstairs to his mother and told her that McCrary was outside. He said his mother told him to lock the door. He continued to warm up his food and went back upstairs. A few minutes later, he went downstairs to retrieve his food and saw McCrary pacing out front while apparently trying to call someone. Dixon's son said his mother came up from downstairs at that point with a phone in her hand and walked into the living room. He then heard a bang, a loud noise like someone kicked in the door. He was very startled. When he left the kitchen he saw his mother running. McCrary was standing with a gun near the front door and shot Dixon three times.

People v. McCrary, No. 308237, 2013 WL 2662752, at *2 (Mich. Ct. App. June 13, 2013).

         The jury convicted McCrary of first-degree murder under two theories, premeditated murder and felony murder, as well as first-degree home invasion and three counts of possession of a firearm during a felony (“felony-firearm”). (ECF No. 13-10, PageID.631.) He was sentenced to life in prison without the possibility of parole for the murder conviction, concurrent to seven to twenty years for the home invasion conviction, and a consecutive two years for each felony-firearm conviction. (ECF No. 13-11, PageID.647.)

         McCrary then filed an appeal of right in the Michigan Court of Appeals, raising three claims: (1) the trial court abused its discretion by denying his request for a jury instruction on voluntary manslaughter; (2) the prosecutor's comments on McCrary's failure to present a defense violated his Fifth and Fourteenth Amendment rights; and (3) the trial court's judgment violated double jeopardy by including convictions and sentences on three counts of felony-firearm. (ECF No. 13-14, PageID.705-708.) The Court issued an opinion vacating the second felony-firearm conviction and affirming all other convictions. McCrary, 2013 WL 2662752, at *4. The Michigan Supreme Court denied McCrary's application for leave. People v. McCrary, 839 N.W.2d 470 (Mich. 2013) (mem.).

         McCrary then filed a habeas petition with this Court, which was held in abeyance to permit him to return to the state courts to exhaust additional claims. McCrary v. Rivard, No. 14-CV-14485, 2015 WL 357154, at *1 (E.D. Mich. Jan. 27, 2015).

         Thereafter, McCrary filed a motion for relief from judgment in state court, raising a claim that he was denied due process because of the presentation of colored autopsy photographs. The trial court denied the motion because McCrary could not establish good cause for failing to raise the issue on appeal pursuant to Michigan Court Rule 6.508(D)(3)(a). (ECF No. 13-13.) McCrary then filed a motion for leave to appeal, which the Michigan Court of Appeals denied. (ECF No. 13-16, PageID.833.) The Michigan Supreme Court likewise denied leave. People v. McCrary, 883 N.W.2d 753 (Mich. 2016) (mem.).

         This Court then granted McCrary's motion to amend and reopen the instant case. (ECF No. 7.) McCrary filed his amended petition on April 24, 2017. (ECF No. 9.) It includes the three claims in the original petition and the due process claim raised in his motion for relief from judgment. (Id. at PageID.66.)


         The Antiterrorism and Effective Death Penalty Act (AEDPA) (and 28 U.S.C. § 2254 in particular) “confirm[s] that state courts are the principal forum for asserting constitutional challenges to state convictions.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also Cullen v. Pinholster, 563 U.S. 170, 182 (2011). If a claim was “adjudicated on the merits in State court proceedings, ” this Court cannot grant habeas corpus relief “unless the adjudication of the claim . . . resulted in a decision” (1) “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) “that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d). But if the state courts did not adjudicate a claim “on the merits, ” this “‘AEDPA deference' does not apply and [this Court] will review the claim de novo.Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014).



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