United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS
J. MICHELSON UNITED STATES DISTRICT JUDGE.
Tietz shot and killed his friend. He maintained that he did
not know that there was a bullet in the gun's chamber and
that the shooting was an accident. A jury found that Tietz at
least “knowingly created a very high risk of death or
great bodily harm” when he shot his friend and so it
convicted Tietz of second-degree murder instead of
involuntary manslaughter. After pursuing appeals and
post-conviction relief in the state courts, Tietz filed a
petition for a writ of habeas corpus under 28 U.S.C. §
2254. Among other claims, Tietz asserts that his trial and
appellate attorneys were both ineffective, that the
prosecutor committed misconduct by introducing prohibited
evidence, and that his due process rights were violated.
reasons that follow, the Court will deny Tietz's
Michigan Court of Appeals summarized the facts surrounding
Tietz's offenses as follows:
On April 17, 2010, Tietz shot James Miller in the chest in
Miller's home. Jade Okoneski, Alisha Harris, and Brenton
Dow were at the home at that time. Okoneski and Dow both
testified that Miller and Tietz started to talk about $10
that Miller's father owed Tietz. Harris testified that
Miller and Tietz were speaking “in a playful manner,
” and Okoneski testified that Miller appeared relaxed
and not angry. Harris testified that Tietz asked Miller if he
was going to pay him, and that Miller smiled and asked Tietz
what would happen if he did not pay him. Okoneski testified
that she saw Tietz reach into his waist, remove a gun, and
Okoneski, Harris, and Dow each testified that Tietz pointed
the gun at Miller and fired it. Okoneski testified that both
Miller and Tietz appeared “shocked” when the gun
discharged. Okoneski testified that everyone ran out of the
house. Dow testified as Tietz ran to his truck, he told Dow
to “cover him.” Dow testified that he returned to
call the police and attempt to stop Miller's bleeding.
Detective Terry Coon arrested Tietz. According to Detective
Coon, Tietz stated that he found the gun in a car that he had
recently purchased, and did not look in the chamber. Tietz
claimed that he was sitting at the dining room table and
passing the gun around when a dog ran through the room and
bumped into him. At that point, the gun went off.
Detective Coon testified that when he informed Tietz that his
story was inconsistent with the other witnesses'
accounts, Tietz told him that Miller was teasing him about
$10, that they were joking, and that he wanted to
“dry-fire” the gun without any bullets in the
chamber to scare Okoneski and Harris. Tietz told Detective
Coon that he obtained the gun the day before because he was
concerned for his safety, and he did not think that any
bullets were in the chamber.
Tietz's testimony was consistent with that of the other
witnesses. He testified that he and Miller were being
playful, and that he thought the gun would dry-fire and scare
the girls. Tietz insisted that the shooting was an accident.
Detective-Sergeant Ryan Larrison of the Michigan State Police
testified that . . . a person would have to cock the weapon
and then pull the trigger for it to fire.
Officer Kenneth Shingleton of the Michigan State Police
testified that on November 3, 2009, he searched Tietz and
removed a different nine millimeter semi-automatic gun from
his waistband. The prosecution argued that this evidence
showed that the shooting was not an accident or a mistake.
People v. Tietz, No. 309767, 2013 WL 3107325, at *1
(Mich. Ct. App. June 20, 2013) (paragraphing altered).
a trial in Michigan's 7th Judicial Circuit Court (the
circuit court for Genesee County), the jury found Tietz
guilty of second-degree murder, carrying a concealed weapon,
and possession of a firearm during the commission of a
direct appeal raised two issues. The first was that the trial
court erroneously failed to instruct the jury on reckless
discharge of a firearm. The Michigan Court of Appeals found
that reckless discharge was a “cognate” lesser
offense (an offense that has at least one element not found
in the greater offense) and applied a state-law rule
prohibiting trial courts from instructing on cognate lesser
offenses. See Id. at *2. Tietz also argued that the
trial court erred in its judgment of sentence. The court of
appeals agreed and remanded for the judgment to be corrected
to reflect that Tietz's prison terms for carrying a
concealed weapon and for felony-firearm were concurrent.
Michigan Supreme Court denied leave to appeal. People v.
Tietz, 839 N.W.2d 457 (Mich. 2013).
returned to the state trial court with a motion for relief
from judgment, raising a number of issues. The court denied
Tietz's motion for relief on all issues. (ECF No. 9-11,
Michigan Court of Appeals and Supreme Court denied Tietz
leave to appeal in standard form orders. See People v.
Tietz, No. 326812 (Mich. Ct. App. Aug. 26, 2015);
People v. Tietz, 881 N.W.2d 478 (Mich. 2016).
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 on the basis of that claim “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).
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).
However, “‘[w]hen a federal claim has been
presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.'”
Johnson v. Williams, 568 U.S. 289, 298 (2013)
(quoting Harrington, 562 U.S. at 99).
warden argues that Tietz procedurally defaulted several of
his theories of ineffective assistance of counsel by not
arguing them on direct appeal or collateral review. Tietz
replied that the state waived affirmative defenses by failing
to respond to his motion for relief from judgment in the
reviewed the pleadings and the record, the Court finds that,
given the complexity of the procedural-default issues, the
interests of judicial economy are best served by addressing
the merits of Tietz's claims. See Thomas v.
Meko, 915 F.3d 1071, 1074 (6th Cir. 2019).
Court begins with Tietz's assertion that his trial
counsel, Michael Ewing, was constitutionally ineffective.
ineffective assistance claim has two components: A petitioner
must show that counsel's performance was deficient, and
that the deficiency prejudiced the defense.”
Wiggins v. Smith,539 U.S. 510, 521 (2003) (citing
Strickland v. Washington,466 U.S. 668, 687 (1984)).
To succeed on the performance prong, Tietz must identify acts
that were “outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. To
satisfy the prejudice prong, he must show that “there
is a reasonable ...