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Cummings v. Rewerts

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

January 7, 2020

SANQUA CUMMINGS, Petitioner,
v.
RANDEE REWERTS, Respondent.

          OPINION

          PAUL L. MALONEY UNITED STATES DISTRICT JUDGE.

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Discussion

         I. Factual allegations

         Petitioner Sanqua Cummings is incarcerated with the Michigan Department of Corrections at the Carson City Correctional Facility (DRF) in Montcalm County, Michigan. Following an eight-day jury trial in the Kent County Circuit Court, Petitioner was convicted of first-degree premeditated murder, in violation of Mich. Comp. Laws § 750.316; commission of a gang-related felony, in violation of Mich. Comp. Laws § 750.411u; felon in possession of a firearm (felon-in-possession), in violation of Mich. Comp. Laws § 750.224f; and possession of a firearm during the commission of a felony (felony-firearm), in violation of Mich. Comp. Laws § 750.227b. On January 19, 2017, the court sentenced Petitioner as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent prison terms of life without parole for murder, 23 to 75 years for gang-related felony, and 23 to 75 years for felon-in-possession. Those sentences were to be served consecutively to a 5-year term of imprisonment for felony-firearm.

         The Michigan Court of Appeals described the basic facts underlying Petitioner's criminal prosecution as follows:

Just after midnight on August 12, 2015, Marquaan Crosby was shot and killed. The prosecution presented evidence that Cummings and three accomplices ambushed Crosby and three others as they were walking near Adams Street and Marshall Avenue in Grand Rapids, Michigan. There was evidence that Cummings and his friends were members of the Bemis street gang and of a sub-group that Cummings named “Trained To Go” (TTG). It also appears that Cummings's group believed that the individuals they ambushed were members of a rival street gang called “900” or “Adams.” Several witnesses testified that Cummings and his accomplices planned the shooting because two Adams gang members had shot at Cummings following a verbal altercation on August 11, 2015. There was testimony that Cummings was one of the individuals who fired shots at the victim; however, no one directly identified him as the person who killed the victim.

(Mich. Ct. App. Op., ECF No. 2-1, PageID.36.) The fact that Petitioner was not conclusively determined to be the shooter who killed Marquaan Crosby did not preclude a finding of guilt on first-degree murder. As the appellate court pointed out, “‘[a] defendant may be vicariously liable for murder on a theory of aiding and abetting.'” (Id., PageID.37.) The court of appeals described the underlying facts relating to aiding and abetting liability as follows:

The evidence at trial established the existence of gang rivalry: the Bemis gang and TTG members prided themselves in their readiness to shoot and kill opponents. There was evidence that Cummings and the people he was with were associated with the Bemis gang and the TTG sub-group. Further, the individuals firing at the victim-Cummings and at least two other members of TTG-traveled to the area where the shooting took place and searched for someone to shoot as retaliation for members of the Adams gang shooting at Cummings the previous day. . . . The individuals with Cummings at the time of the shooting admitted at trial that they all intended to shoot to kill and injure Adams gang members. . . . Before the shooting, Cummings and another individual hid in one location while the other two individuals with Cummings hid in another spot. The person hiding with Cummings testified that he did not shoot, but that he heard gunshots coming from the area he was in, which allows for an inference that Cummings fired a gun. Multiple witnesses testified that after the shooting Cummings stated that he thought he had hit someone. There was also testimony that the bullets in the victim's body matched the gun that Cummings was known to carry and use to shoot at people. . . . [T]here was evidence that Cummings orchestrated the trip to Adams Street so that TTG could retaliate against the Adams gang for shooting at him the previous day. Further, witnesses testified that Cummings fired at the victim, who he believed he successfully hit. . . . Finally, the record reflects that after the shooting, Cummings and the others fled the area, hid their guns, and lied about their involvement.

(Id., PageID.37-38.)

         Petitioner, with the assistance of counsel, directly appealed his convictions to the Michigan Court of Appeals. He raised two issues, identified by the court of appeals as follows: (1) “the prosecution presented legally insufficient evidence to convict [Petitioner] of first-degree premeditated murder . . .[;]” and (2) Petitioner's “lawyer provided ineffective assistance because he failed to prevent admission of evidence of [Petitioner's] alleged gang membership.” (Id.) By unpublished opinion issued February 13, 2018, the Michigan Court of Appeals denied relief, affirming the trial court.

         Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court, presumably raising the same issues he raised in the court of appeals. See https://courts.michigan.gov/opinions_orders/case_search/pages/default.aspx (search docket number 336940). By order entered July 27, 2018, the Michigan Supreme Court denied leave to appeal “because [the court] was not persuaded that the questions presented should be reviewed . . . .” (Mich. Order, ECF No. 2-1, PageID.42.)

         On October 21, 2019, Petitioner timely filed his habeas corpus petition raising two grounds for relief, as follows:

I. Petitioner was deprived of his Sixth Amendment right to the effective assistance of counsel and his right to due process where trial counsel failed to appeal the alleged gang membership charge.
II. The evidence was insufficient to support Petitioner's conviction of first-degree murder.

(Pet., ECF No. 1, PageID.3.)

         II. ...


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