United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, GRANTING A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON
J. TARNOW UNITED STATES DISTRICT JUDGE
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Kerrick Farquharson
(“Petitioner”) was convicted of second-degree
murder, Mich. Comp. Laws § 750.317, assault with intent
to commit murder, Mich. Comp. Laws § 750.83, and
possession of a firearm during the commission of a felony
(“felony firearm”), Mich. Comp. Laws §
750.227b, following a jury trial in the Genesee County
Circuit Court. He was sentenced to 37 years 6 months to 75
years imprisonment on the murder conviction, a concurrent
term of 23 years 9 months to 50 years imprisonment on the
assault conviction, and a consecutive term of 2 years
imprisonment on the felony firearm conviction in 2009. In his
petition, he raises claims concerning the effectiveness of
trial and appellate counsel, the admission of certain
evidence, the jury instructions and verdict form, and his
right to a speedy trial. For the reasons set forth, the Court
denies the petition for a writ of habeas corpus. The Court
also denies a certificate of appealability and denies leave
to proceed in forma pauperis on appeal.
Facts and Procedural History
convictions arise from a shooting outside of a Flint
nightclub in 2005 that resulted in the death of one man and
an injury to his sister. The Michigan Court of Appeals
described the underlying facts, which are presumed correct on
habeas review, see 28 U.S.C. § 2254(e)(1);
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009),
Defendant's convictions arise from a shooting outside a
nightclub in Flint during the early morning hours of January
30, 2005. David Colen was fatally shot and his sister, Denise
Colen, was shot in the face, leaving her permanently blind.
The evidence showed that defendant went to the nightclub with
Otis Dickerson and George Smith, but waited in a car outside
the club because he was not old enough to enter. Dickerson
and David Colen became involved in a fight inside the club,
and several other persons joined the fight and began
attacking Colen. After the fight broke up, David and Denise
Colen left the nightclub, and Dickerson and Smith also left.
The Colens passed Dickerson's car while walking to their
own car. According to Dickerson, Smith, and another witness,
Delon Savage, defendant jumped out of Dickerson's car and
shot both David and Denise Colen as they attempted to get
into their car.
Two witnesses, Andre Mathis and Tyrone Savage, died before
trial. Mathis was fatally shot on December 29, 2005, and
Savage was shot on January 2, 2007. In May 2006, the trial
court granted defendant's pretrial motion to admit
Mathis's prior testimony, given pursuant to an
investigative subpoena, in which Mathis had identified
Dickerson as the shooter. The prosecution appealed that
decision. This Court held that Mathis's prior testimony
was admissible under MRE 804(b)(10), provided the prosecution
had a similar motive to develop Mathis's testimony at the
investigative-subpoena hearing. People v.
Farquharson, 274 Mich.App. 268, 278-279, 731 N.W.2d 797
(2007), lv den 478 Mich. 931, 732 N.W.2d 901 (2007).
This Court declined to address defendant's argument that
his constitutional right to present a defense would be
violated if he were precluded from presenting Mathis's
prior testimony because the prosecution had not raised that
issue and defendant had not filed a cross appeal.
Id. at 279, 731 N.W.2d 797. This Court remanded the
case for further proceedings consistent with its opinion.
On remand, in January 2008, the trial court determined that
the prosecution did not have the same motive to develop
Mathis's testimony during the investigative-subpoena
hearing, but ruled that the prior testimony was admissible to
protect defendant's constitutional right to present a
defense. The prosecution filed another application for leave
to appeal, this time arguing that the trial court improperly
exceeded the scope of this Court's prior remand order by
admitting Mathis's prior testimony on the basis of
defendant's constitutional argument. After this Court
denied the application, People v. Farquharson,
unpublished order of the Court of Appeals, entered January
30, 2008 (Docket No. 283300), the prosecution moved to
adjourn the trial to enable it to pursue an application for
leave to appeal with the Supreme Court. The trial court
denied the motion to adjourn, following which the prosecution
dismissed all charges and filed an application for leave to
appeal with the Supreme Court. On March 24, 2008, the Supreme
Court dismissed the application “[b]ecause the
application sought to appeal a ruling made in connection with
charges that have since been dismissed by the
prosecutor.” People v. Farquharson,
unpublished order of the Michigan Supreme Court, entered
March 24, 2008 (Docket No. 135744).
Defendant was re-arraigned on October 13, 2008. Two weeks
later, the prosecution filed a complaint for superintending
control in this Court, seeking to reverse the trial
court's January 2008, order admitting Mathis's prior
investigative subpoena testimony. This Court denied the
complaint on November 14, 2008, “due to the fact that
plaintiff has other adequate legal remedies available.”
In re Farquharson, unpublished order of the Court of
appeals, entered November 14, 2008 (Docket No. 288558),
lv den 483 Mich. 901, 761 N.W.2d 97 (2009). Trial
thereafter began in December 2008. Mathis's prior
investigative-subpoena testimony was introduced at
defendant's trial. The jury found defendant guilty of
second-degree murder, assault with intent to commit murder,
People v. Farquharson, No. 290765, 2010 WL 4628648,
*1-2 (Mich. Ct. App. Nov. 16, 2010) (unpublished) (footnote
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals raising claims
concerning the admission of drug activity evidence, the
admission of Otis Dickerson's testimony about being shot
at 10 times due to the case, Delone Savage's testimony
that his brother Tyrone was killed by Raymond McClure, and
George Smith's testimony that Petitioner has assaulted
someone, the trial court's refusal to suppress a letter
seized from Petitioner's jail cell, his right to a speedy
trial, the effectiveness of trial counsel, and the scoring of
the sentencing guidelines. The court denied relief on those
claims and affirmed his convictions and sentences.
Id. at pp. 2-8. Petitioner then filed an application
for leave to appeal with the Michigan Supreme Court, which
was denied in a standard order. People v.
Farquharson, 490 Mich. 896, 804 N.W.2d 556 (2011).
subsequently filed a motion for relief from judgment and a
motion for an evidentiary hearing with the trial court
raising claims concerning the effectiveness of appellate
counsel relative to his speedy trial claim, the effectiveness
of trial counsel in refusing his demands to accept a plea
offer and the effectiveness of appellate counsel in failing
to move for an evidentiary hearing on this issue, the
effectiveness of appellate counsel for failing to pursue a
juror coercion claim, the jury instructions were coercive and
deviated from the standard verdict form, and the
effectiveness of trial counsel in presenting a defense. The
court granted an evidentiary (“Ginther”)
hearing on the plea offer issue, but denied relief on the
other claims pursuant to Michigan Court Rule 6.508(D)(3), and
further ruled that Petitioner failed to show that defense
counsel was ineffective. People v. Farquharson, No.
08-23682-FC (Genesee Co. Cir. Ct. March 9, 2015 Opin.). The
trial court then conducted the evidentiary hearing on the
plea offer issue, found that the defense attorneys'
version of events as to the plea offer were more credible
than Petitioner's version, and denied relief on the
merits of the claim. Id. (June 24, 2015 Opin.). The
court also denied reconsideration. Id. (July 20,
2015 Opin.). Petitioner filed a delayed application for leave
to appeal with the Michigan Court of Appeals, which was
denied because he “failed to establish that the trial
court erred in denying his motion for relief from
judgment.” People v. Farquharson, No. 330646
(Mich. Ct. App. April 28, 2016). Petitioner filed an
application for leave to appeal with the Michigan Supreme
Court, which was denied because he “failed to meet the
burden of establishing entitlement to relief under MCR
6.508(D).” People v. Farquharson, 500 Mich.
933, 889 N.W.2d 499 (2017).
thereafter filed his federal habeas petition, raising the
I. He was denied his right to effective assistance of counsel
when counsel failed to object to inflammatory drug evidence
that was prejudicial and irrelevant to the charges, which
deprived him of his right to a fair trial.
II. He was denied his right to a fair trial based on
inflammatory evidence that was seized.
III. He was denied his right to effective assistance of
counsel when counsel failed to inform him on the deadline to
accept a guilty plea.
IV. He was denied his right to a fair trial when the trial
court's verbal instructions to the jury were improper
because they directed the jury to find him guilty of at least
second-degree murder and those instructions were reinforced
by a constitutionally defective verdict form.
V. He was denied effective assistance of appellate counsel on
direct appeal when counsel failed to raise improper jury
instructions and flawed verdict form.
VI. He was deprived of his right to a speedy trial.
VII. He was denied his right to effective assistance of
counsel when counsel failed to request a speedy trial.
has filed an answer to the petition contending that it should
be denied because certain claims are barred by procedural
default and all of the claims lack merit. Petitioner has
filed replies to that answer.
Standard of Review
law imposes the following standard of review for habeas
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceedings.
28 U.S.C. § 2254(d).
state court's decision is ‘contrary to' . . .
clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court
cases]' or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[that] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams
v. Taylor, 529 U.S. 362, 405-06 (2000)); see also
Bell v. Cone, 535 U.S. 685, 694 (2002).
‘unreasonable application' prong of §
2254(d)(1) permits a federal habeas court to ‘grant the
writ if the state court identifies the correct governing
legal principle from [the Supreme] Court but unreasonably
applies that principle to the facts of petitioner's
case.” Wiggins v. Smith, 539 U.S. 510, 520
(2003) (quoting Williams, 529 U.S. at 413); see
also Bell, 535 U.S. at 694. However, “[i]n order
for a federal court find a state court's application of
[Supreme Court] precedent ‘unreasonable,' the state
court's decision must have been more than incorrect or
erroneous. The state court's application must have been
Wiggins, 539 U.S. at 520-21 (citations omitted);
see also Williams, 529 U.S. at 409. “AEDPA
thus imposes a ‘highly deferential standard for
evaluating state-court rulings,' and ‘demands that
state-court decisions be given the benefit of the
doubt.'” Renico v. Lett, 559 U.S. 766, 773
(2010) (quoting Lindh, 521 U.S. at 333, n. 7;
Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
United States Supreme Court has held that “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) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
emphasized “that even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Id. (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (2003)). A habeas court
“must determine what arguments or theories supported or
. . . could have supported, the state court's decision;
and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of
the Supreme Court. Id. Thus, in order to obtain
federal habeas relief, a state prisoner must show that the
state court's rejection of a 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.; see also
White v. Woodall, 572 U.S. 415, 419-20 (2014). Federal
judges “are required to afford state courts due respect
by overturning their decisions only when there could be no
reasonable dispute that they were wrong.” Woods v.
Donald, __U.S.__, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015). A habeas
petitioner cannot prevail as long as it is within the
“realm of possibility” that fairminded jurists
could find the state court decision to be reasonable.
Woods v. Etherton, __ U.S.__, 136 S.Ct. 1149, 1152
2254(d)(1) limits a federal court's review to deciding
whether the state court's decision comports with clearly
established federal law as determined by the Supreme Court at
the time the state court renders its decision.
Williams, 529 U.S. at 412; see also Knowles v.
Mirzayance, 556 U.S. 111, 122 (2009) (noting that the
Supreme Court “has held on numerous occasions that it
is not ‘an unreasonable application of clearly
established Federal law' for a state court to decline to
apply a specific legal rule that has not been squarely
established by this Court”) (quoting Wright v. Van
Patten, 552 U.S. 120, 125-26 (2008) (per curiam));
Lockyer, 538 U.S. at 71-72. Section 2254(d)
“does not require a state court to give reasons before
its decision can be deemed to have been ‘adjudicated on
the merits.'” Harrington, 562 U.S. at 100.
It also “does not require citation of [Supreme Court]
cases-indeed, it does not even require awareness of
[Supreme Court] cases, so long as neither the reasoning nor
the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002);
see also Mitchell, 540 U.S. at 16.
requirements of “clearly established law” are to
be determined solely by Supreme Court precedent. Thus,
“circuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme Court,
'” and “[i]t therefore cannot form the basis
for habeas relief under AEDPA.” Parker v.
Matthews, 567 U.S.__, 132 S.Ct. 2148, 2155 (2012) (per
curiam); see also Lopez v. Smith, 574 U.S. 1, __,
135 S.Ct. 1, 2 (2014) (per curiam). The decisions of lower
federal courts may be useful in assessing the reasonableness
of the state court's decision. Stewart v. Erwin,
503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v.
Bowersox, 340 F.3d 667, 671 (8th Cir. 2003));
Dickens v. Jones, 203 F.Supp.2d 354, 359 (E.D. Mich.
a state court's factual determinations are presumed
correct on federal habeas review. See 28 U.S.C.
§ 2254(e)(1). A petitioner may rebut this presumption
with clear and convincing evidence. Warren v. Smith,
161 F.3d 358, 360-61 (6th Cir. 1998). Moreover, habeas review
is “limited to the record that was before the state
court.” Cullen v. Pinholster, 563 U.S. 170,
initial matter, Respondent argues that several of
Petitioner's habeas claims are barred by procedural
default because he did not properly raise the issues in the
state courts and/or first raised them on state collateral
review and the state courts denied relief based upon Michigan
Court Rule 6.508(D). On habeas review, however, 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)). The Supreme Court
has explained the rationale behind such a policy:
“Judicial economy might counsel giving the [other]
question priority, for example, if it were easily resolvable
against the habeas petitioner, whereas the procedural-bar
issue involved complicated issues of state law.”
Lambrix, 520 U.S. at 525. Such is the case here. The
procedural issues are somewhat complex and intertwined with
the substantive claims, and the substantive claims are more
readily decided on the merits. Accordingly, the Court need
not address the procedural default issue and shall proceed to
the merits of Petitioner's claims.