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Theriot v. MacLaren

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

December 20, 2019

DARIUS R. THERIOT, Petitioner,



         Petitioner Darius R. Theriot (“Theriot”) has filed an amended habeas corpus petition that challenges his convictions in a Michigan state court for second-degree murder, several assaults, and one firearm offense. He asserts that he was denied his right to present a defense and that his trial attorney's failure to object to the scoring of the Michigan sentencing guidelines constituted ineffective assistance of counsel. The State argues that Theriot procedurally defaulted two of his claims and that the state appellate court's adjudication of his claims was objectively reasonable.

         The standard for evaluating state-court rulings is highly deferential, and the state appellate court's adjudication of Theriot's claims was not so lacking in justification that there was an error beyond any possibility for fairminded disagreement. Accordingly, the Court is denying Theriot's request for habeas relief.

         I. Background

         Theriot was charged with one count of first-degree murder in violation of Michigan Compiled Laws § 750.316, three counts of assault with intent to commit murder in violation of Michigan Compiled Laws § 750.83, one count of assaulting a pregnant woman causing miscarriage or death to a fetus in violation of Michigan Compiled Laws § 750.90b(a), and one count of possessing a firearm during the commission of a felony in violation of Michigan Compiled Laws § 750.227b. The charges arose from a drive-by shooting during the late evening or early mornings hours between July 9-10, 2011.

         The evidence at trial established that, on the night in question, Theriot and some of his male friends and relatives attended a party at JeNae Hudson's home on Wabash Street in Detroit, Michigan. The young men were drinking and socializing with some girls when two cars arrived at the house. Four young men jumped out of one car in an aggressive manner; one of them had a gun. Theriot and his friends approached the intruders to determine what the problem was. One of the intruders responded that Theriot's friend Devon Matthews had pointed a gun at the intruders on a previous occasion. Theriot and his friends did not have any guns with them at the time. Theriot's cousins Dominque Stewart and Roumelle Merchant diffused the tension between the two groups of young men, and after Stewart shook hands with someone, the intruders left. As they left, however, one of them said, “Y'all be careful. You guys playing with fire.”

         Theriot then told his friends, “Don't worry about it, we'll get them later, ” and because he did not feel safe, he stated that he was going to get his gun. Theriot and his friends left the party, got in Theriot's pick-up truck, and drove to his house, where he retrieved an AK47 assault rifle. Theriot put the gun in the bed of his truck and then drove the group back to the party.

         After spending another twenty or thirty minutes at the party, the group left in Theriot's truck. Theriot drove the group down the street where the people that had interrupted the party lived. At the time, Matthews was seated in the bed of the truck, and the rest of the group, including Roumelle Merchant, Manjaro Benning, Dominque Stewart, and someone named Nicholas, were seated in the truck. Deveius Weathers and Theriot's brother James followed in a white car.

         Theriot slowed down near a house where some people were gathered outside. Shortly afterward, Matthews fired the AK47 multiple times at the people from the bed of Theriot's truck. Two women and one man were injured in the shooting, and a pregnant woman was killed. The four victims were not the people who had argued with Theriot and his friends earlier that night.

         Theriot and his friends subsequently went to Theriot's home where one or more of the young men removed casings from the bed of the truck. From there, the group went to a drug house where Theriot and Matthews wiped the gun to remove fingerprints. The next day, Theriot and the young men who had been with him on the previous night got together and talked about the shooting. Theriot was nonchalant and said that there would be no snitching.

         JeNae Hudson informed the police what she knew about the incident, and Theriot reported to the police a few days after the shooting. In subsequent jailhouse phone conversations with Stewart, Theriot encouraged Stewart to lie and to say that Theriot did not have anything to do with the crime. Theriot also informed Stewart that he (Theriot) was an enforcer.

         Theriot and Matthews were tried jointly in Wayne County Circuit Court.[1]The prosecutor's theory was that Theriot aided and abetted Matthews in committing the crime and that he was guilty even though he intended to harm a different group of people than the ones who were shot.

         Theriot was the only defense witness. His defense was that he did not intend to kill anyone or have Matthews kill anyone and that there was reasonable doubt as to whether he was guilty. He testified that he did not instruct or ask Matthews to kill anyone, he did not know Matthews was going to kill anyone, and he did not tell anyone to lie under oath in court. Theriot also testified that he put the AK47 rifle in his truck for protection because someone in the group that confronted him and his friends earlier that night had a gun. He denied threatening anyone about going to court; he also denied telling his friends to lie and not snitch, explaining that, when he told his friends on the day after the shooting to say that he was not driving during the shooting, he meant that he did not know who was shooting.

         On December 7, 2011, the jury found Theriot guilty of second-degree murder, as a lesser-included offense of first-degree murder, and guilty as charged on the three counts of assault with intent to commit murder, one count of assault of a pregnant woman causing death to a fetus, and one count of felony firearm. The trial court initially sentenced Theriot to four concurrent terms of forty-five to eighty years in prison for the murder and the assaults with intent to commit murder, a concurrent term of ten to fifteen years in prison for the assault on a pregnant woman, and a consecutive term of two years in prison for the firearm conviction.

         In an appeal of right, Theriot argued that: (1) the trial court deprived him of his right to present a defense and his right of confrontation by excluding evidence that he reacted with surprise to the shooting; (2) the trial court deprived him of his right to present a defense by denying his request to admit excerpts of his jailhouse telephone calls; and, (3) the trial court erred by sentencing him as a second habitual offender because (a) the prosecutor never filed a notice of intent to pursue an enhanced sentence and (b) he did not have a prior felony conviction. Theriot also requested the assignment of a different trial court judge if the case was remanded for a new trial or re-sentencing. The Michigan Court of Appeals affirmed Theriot's convictions, but vacated his sentence and remanded his case to the trial court for re-sentencing because Theriot should not have been sentenced as a habitual offender. See People v. Theriot, No. 308640, 2013 WL 6703494, at *1 and *6-*7 (Mich. Ct. App. Dec. 19, 2013) (unpublished). On July 29, 2014, the state supreme court denied leave to appeal. See People v. Theriot, 849 N.W.2d 373 (Mich. 2014).

         On October 31, 2014, the state trial court re-sentenced Theriot to four concurrent terms of thirty-five to forty-five years in prison for the second-degree murder and assault-with-intent-to-murder convictions and a concurrent sentence of ten to fifteen years in prison for the assault-of-a-pregnant-woman conviction. The court also sentenced Theriot to two years in prison for the felony-firearm conviction, but it noted that Theriot had already served that sentence.

         Theriot appealed his new sentence, claiming that he was entitled to re-sentencing because his trial attorney failed to object to the scoring of offense variable five of the sentencing guidelines. The Michigan Court of Appeals affirmed the sentence, concluding that offense variable five was correctly scored and counsel was not ineffective for failing to object to the scoring of the variable. See People v. Theriot, No. 325973 (Mich. Ct. App. June 21, 2016).

         Meanwhile, on October 16, 2015, Theriot commenced this action by filing a pro se habeas corpus petition under 28 U.S.C. § 2254 and a motion for appointment of counsel. In his habeas petition, Theriot argued as grounds for relief that the trial court violated his constitutional rights by (1) excluding evidence of his surprised reaction immediately after the shooting and (2) refusing to allow his attorney to admit in evidence excerpts of recorded phone conversations. After Respondent filed an answer to the petition, the Court granted Theriot's motion for appointment of counsel and, on October 31, 2016, newly-appointed counsel for Theriot moved to hold the habeas petition in abeyance because Theriot's appeal from his new sentence was pending in the Michigan Supreme Court.

         On December 15, 2016, the Court granted the motion for a stay and closed this case for administrative purposes. On January 5, 2017, the Michigan Supreme Court denied leave to appeal Theriot's sentencing claims because it was not persuaded to review the questions presented to it. See People v. Theriot, 888 N.W.2d 103 (Mich. 2017).

         Theriot then filed an amended habeas petition and a motion to re-open this case.[2] The Court granted the motion to re-open this case, and Respondent subsequently filed a supplemental answer which addresses Theriot's sentencing claim.

         II. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires habeas petitioners who challenge “a matter ‘adjudicated on the merits in State court' to show that the relevant state court ‘decision' (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.' ” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (quoting 28 U.S.C. § 2254(d)). “[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. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt,' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).

         “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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103. A state-court's factual determinations are presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. Analysis

         A. The Exclusion of Evidence About Theriot's Reaction to the Shooting

         Theriot alleges first that the trial court deprived him of his right of confrontation and his right to present a defense by excluding his verbal and nonverbal expressions of surprise immediately after the shooting. The trial court ruled that Theriot's surprised demeanor and his remark, “What the hell was that?” were assertions and inadmissible as hearsay.

         Theriot, on the other hand, maintains that his surprised demeanor was non-assertive conduct, which is admissible in evidence, and that his question, “What the hell was that?” was not offered for the truth or was admissible under the “excited utterance” exception to the hearsay rule. He contends that the trial court should have admitted evidence of his reaction to the shooting during his cross-examination of prosecution witnesses because the evidence would have bolstered his defense that he lacked the necessary intent to be convicted of aiding and abetting Devon Matthews.

         The Michigan Court of Appeals agreed with Theriot on the state evidentiary issue and concluded that the trial court abused its discretion by prohibiting Theriot from asking witnesses about his demeanor and question immediately after the shooting. Theriot, 2013 WL 6703494, at *2. The Court of Appeals, nevertheless, concluded that the error was harmless and that Theriot was not entitled to relief. Id. at *2, 4. As for Theriot's claim that his right of confrontation was violated, the Court of Appeals stated that Theriot abandoned the claim by not making an argument on how he was denied the right.

         The Court of Appeals reviewed Theriot's claim regarding the right to present a defense for “plain error” because Theriot did not preserve the issue by objecting on constitutional grounds at trial. Id. at *2. The Court of Appeals cited Supreme Court precedent on the constitutional issue, but then concluded that the evidentiary error did not rise to the level of a constitutional deprivation. Id. at 4. The court found that Theriot was not denied a meaningful opportunity to present a defense “because there was testimony showing that he was scared after the shooting based on how he sped off and jerked the truck[]” and because he was able to ask the witnesses questions about the incident to show that he did not know there would be a shooting. Id.

         1. Procedural Default

         Respondent argues that Theriot procedurally defaulted his claim regarding the right to present a defense because the Michigan Court of Appeals reviewed that claim for “plain error.”[3] Theriot maintains that there was no procedural default because his trial attorney did object at trial and because the Court of Appeals reviewed his claim on the merits.

         In the habeas context, a procedural default is “a critical failure to comply with state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). Under the doctrine of procedural default, “a federal court will not review the merits of [a state prisoner's] claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012).

         A procedural default is not a jurisdictional bar to reviewing the merits of a claim, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). Because Theriot's claim does not warrant habeas relief, the Court bypasses the procedural-default analysis and proceeds directly to the merits of his claim.

         2. The Merits

         Theriot asserts that the trial court erred when it ruled that he could not elicit testimony regarding his verbal and nonverbal reactions to the shooting. He maintains that the proffered testimony was admissible under the Michigan Rules of Evidence and state-court decisions.

         The contention that the trial court violated Michigan's evidentiary rules is not a cognizable claim on federal habeas review, Hall v. Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009), because “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). The only question is whether excluding testimony about Theriot's reaction to the shooting violated his constitutional rights to present a defense and to confront the witnesses against him.

         a. Right ...

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