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Wyrick v. Lindsey

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

November 14, 2019

DEVON LEE WYRICK, Petitioner,
v.
KEVIN LINDSEY, Respondent.

          Hon. Paul L. Maloney Judge

          ORDER TO STAY PROCEEDINGS

          Ray Kent U.S. Magistrate Judge

         Devon Lee Wyrick (sometimes referred to as “petitioner”) is a prisoner currently incarcerated at a Michigan correctional facility. The Michigan Appellate Defender's Office represents Wyrick and has filed a second or successive petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, this matter will be stayed.

         I. Background

         The Michigan Court of Appeals summarized the underlying facts as follows:

This case arises out of an incident in which defendant and Charles Cooper, each holding guns, entered an apartment and shot three men. Both defendant and Cooper shot their guns and one man in the apartment died. Much of the evidence at trial indicated that the man who died was shot by Cooper. After the shootings, defendant and Cooper took money from the men and left the apartment. On the following day, the police arrested defendant and Cooper, who were riding in a stolen car. Defendant's theory of defense at trial was that he participated in the robbery and shootings under duress, fearing that Cooper would kill him if he refused to cooperate

People v. Wyrick, No. 199667, 1998 WL 1991134 at *1 (Mich. App. June 9, 1998).

         Wyrick was convicted of first degree felony murder and other crimes committed in Kalamazoo County, Michigan on or about October 4, 1996. See “People's Motion for resentencing pursuant to MCL 769.25a and Request for stay of proceedings” (ECF No. 12-1, PageID.2723). Specifically, a jury convicted Wyrick of one count of felony murder, M.C.L. § 750.316; two counts of assault with intent to murder, M.C.L. § 750.83; two counts of armed robbery, M.C.L. § 750.529; and three counts of possession of a firearm during the commission of a felony, M.C.L. § 750.227b. Wyrick, 1998 WL 1991134 at *1. On November 12, 1996, the trial court sentenced defendant to life in prison for the felony murder conviction, twenty to forty years imprisonment for each of the assault with intent to murder convictions, fifteen to thirty years imprisonment for each of the armed robbery convictions, and three concurrent terms of two-years imprisonment for each of his felony-firearm convictions, to run prior to his other sentences. Id.; People's Motion at PageID.2724.

         The Sixth Circuit summarized later proceedings in its order authorizing the district court to consider a second or successive habeas corpus petition:

In 1996, Wyrick, then seventeen years old, was convicted of one count of first-degree felony murder, two counts of assault with intent to murder, two counts of armed robbery, and three counts of possessing a firearm in the commission of a felony. Wyrick was given a mandatory sentence of life without the possibility of parole (“LWOP”) for the first-degree murder conviction. His direct appeal was unsuccessful. People v. Wyrick, No. 199667, 1998 WL 1991134, at *1 (Mich. Ct. App. June 9, 1998), leave denied, 590 N.W.2d 63 (Mich. 1999). In 2000, Wyrick filed his first petition for habeas relief. See Wyrick v. Gundy, No. 4:00-cv- 00077 (W.D. Mich. Sept. 18, 2003). That petition was denied, id., and this court declined to issue a certificate of appealability. Wyrick v. Gundy, No. 03-2401 (6th Cir. June 10, 2004). Wyrick also made an unsuccessful attempt at post-conviction relief in state court through a motion under Michigan Court Rule 6.500. See People v. Wyrick, 854 N.W.2d 732 (Mich. 2014). Now, nearly twenty years into his mandatory life sentence, Wyrick seeks permission to file another habeas petition, arguing that the Supreme Court's decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), which holds that “mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment, ” renders his sentence unconstitutional. See Montgomery v. Louisiana, 136 S.Ct. 718, 726 (2016) (citation omitted).
Before a petitioner can file a second habeas action, he must obtain permission from this court pursuant to 28 U.S.C. § 2244(b). Permission is granted only when the petitioner makes a prima facie showing that (1) the claim relies on a previously unavailable and newly created rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, or (2) he has discovered new evidence that could not have been found previously through the exercise of due diligence and that, if proven and viewed in light of the evidence as a whole, would establish by clear and convincing evidence that no reasonable factfinder would have found him guilty. 28 U.S.C. § 2244(b)(2), (b)(3)(C). Wyrick advances along the first path.
There is no dispute that Miller created a new rule of constitutional law that was unavailable in 2000 when Wyrick filed his first habeas petition. In Montgomery, 136 S.Ct. at 33-34, the Supreme Court made that rule retroactively applicable to cases on collateral review. See In re Clemmons, 259 F.3d 489, 492-93 (6th Cir. 2001) (citing Tyler v. Cain, 533 U.S. 656, 663 (2001)).

In re: Devon Lee Wyrick, No. 14-2443 (Order) (6th Cir. March 24, 2016) (ECF No. 68).

         Finally, because respondent has raised an exhaustion issue, the Court will address Wyrick's most recent post-conviction motion for relief from the state judgment. On June 12, 2013, Wyrick, through counsel, moved for relief from judgment pursuant to MCR 6.500. Motion for relief (ECF No. 8-27). Wyrick's requested relief included holding all proceedings in abeyance until the United States Supreme Court or the Michigan Supreme Court addressed the retroactive application of Miller, vacating his mandatory life sentence without possibility of parole, and taking steps to issue a new and discretionary sentence. Id. On June 21, 2013, Wyrick's counsel filed a motion to stay proceedings for similar reasons. Motion to stay (ECF No. 8-28). The state trial court denied the motion on July 31, 2013 “for the reasons stated on the record on July 22, 2013”. Order (ECF No. 8-30). Those reasons included the following:

The issue, as counsel recognizes, is ultimately whether the Miller decision will be retroactive or it's conceivable the Michigan Legislature might take action that would impact the ultimate potential for parole of the defendant.
But, based on the current existing state of the law, and in particular People v Carp, 294 Michigan Appeals, 472, 2012, the Michigan Court of Appeals has found Miller not to be retroactive. That means, the court cannot grant a relief at this point.
I question whether it's appropriate to keep a matter pending in the hope that the law may change when the law itself, meaning the procedural rules, permits the defendant to request relief, if there is a change in the law.
Based on that analysis, I am going to deny the request for a stay. Based on my initial consideration, I'm denying the ...

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