Dunning v. Napoleon

Filing 14

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Nancy G. Edmunds. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

YUL DARRIUS DUNNING, #158432,
Case Number: 2:11-CV-10543
HONORABLE NANCY G. EDMUNDS

Petitioner,
v.
BENNY NAPOLEON,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Yul Darrius Dunning has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner is in the custody of the Michigan Department of
Corrections. He challenges his 2008 convictions for felon in possession of a firearm and
possession of a firearm during the commission of a felony. He seeks habeas relief on the
grounds that the he was denied the right to testify in his own defense and he received
ineffective assistance of trial counsel. Respondent argues that the claims are meritless.
The Court finds Petitioner’s claims meritless and denies habeas relief.
I. Facts
Petitioner’s convictions arise from his encounter with police on August 8, 2007 in
the city of Detroit. City of Detroit police officer Andrew Berry testified that, on that date,
at approximately 9:05 p.m., he and his partner Calvin Lewis responded to a call regarding
a man with a weapon walking down the street. Officer Berry testified that he saw

Petitioner walking down the sidewalk wearing a black coat, which appeared odd to him
given it was a hot August night. Officer Berry exited his police vehicle and approached
Petitioner. Petitioner removed a shotgun from his coat and threw it down on the ground
as he saw Officer Berry and his partner approach. Officer Berry arrested Petitioner and
took him to the police station.
City of Detroit Police Officer Calvin Lewis’ description of the circumstances
leading to Petitioner’s arrest was essentially the same as his partner’s. In addition,
Officer Berry testified that, once at the police station, Petitioner stated that he was
carrying the shotgun because he wanted “to get the drop on the police.” Officer Lewis
testified that that phrase was street lingo for surprise the police by hurting them or
shooting them.
Petitioner’s custodial statement was read into the record. In the statement,
Petitioner admitted to being in possession of an unloaded shotgun and stated that he did
not intend to use the gun on anyone.
After the State rested, Petitioner’s counsel moved for a directed verdict on the
ground that the shotgun was not a firearm as defined in the two relevant criminal statutes.
The trial court denied the motion. Petitioner then took the stand. The record shows that
Petitioner carried some papers to the witness stand with him. The Court directed
Petitioner to set the papers aside while he testified. Petitioner’s attorney asked him to
state his name for the record. He did. Defense counsel stated he had no further questions.
The prosecutor asked no questions and the Court directed Petitioner to step down. The
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Defense rested without calling any further witnesses.
II. Procedural History
Petitioner was convicted by a jury in Wayne County Circuit Court of felon in
possession of a firearm and possession of a firearm during the commission of a felony.
On April 3, 2008, he was sentenced to four years’ probation for the felon-in-possession
conviction and two years in prison for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising these
claims:
I.

Mr. Dunning’s constitutionally protected right to testify was denied where
the court allowed trial counsel to put his client on the stand only to state his
name and where Mr. Dunning repeatedly stated on the record a desire to
testify and defense himself but the court refused to allow his testimony.

II.

The judge erred by (1) refusing to allow Mr. Dunning his constitutional
right to testify when Mr. Dunning requested to testify multiple times on the
record and (2) failing to take any corrective action to protect Mr. Dunning’s
rights in the face of counsel’s refusal to do so.

III.

Defendant counsel was constitutionally ineffective when he made no
opening argument, failed to cross-examine witnesses, called his client as a
witness and only asked his name, failed to allow his client to testify, and
made a closing argument that failed to assist his client. The prejudice
caused by Mr. Dunning’s ineffective trial counsel should be presumed
under United States v. Cronic, and Mr. Dunning is entitled to a new trial.

The Michigan Court of Appeals affirmed Petitioner’s convictions. People v.
Dunning, No. 285027, 2009 WL 2974725 (Mich. Sept. 17, 2009).
Petitioner then filed an application for leave to appeal in the Michigan Supreme
Court. He raised the first three claims raised in the Michigan Court of Appeals. The

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Michigan Supreme Court denied leave to appeal. People v. Dunning, 485 Mich. 1134
(Mich. March 31, 2010).
Petitioner then filed this habeas petition. He raises the claims raised in the
Michigan Supreme Court.
III. Standard
The petitioner’s claims are reviewed against the standards established by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA). The AEDPA provides:
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; or
(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).
“A 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 [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,

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529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute
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). 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 ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations
omitted); see also Williams, 529 U.S. at 409. “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, __ U.S. __, 131
S. Ct. 770, 789 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“Section 2254(d) reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal. . . . As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling on the claim being presented
in federal court 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 786-87 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
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determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412. Section 2254(d) “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). “[W]hile the principles of “clearly established
law” are to be determined solely by resort to Supreme Court rulings, the decisions of
lower federal courts may be instructive in assessing the reasonableness of a state court’s
resolution of an issue.” 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. 2002).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998).
IV. Discussion
A. Violation of Right to Testify Claim
Petitioner’s first and second claims involve the alleged denial of his right to testify
in his own defense at trial. It is well-established that a criminal defendant has a
constitutional right to testify in his own behalf. See Rock v. Arkansas, 483 U.S. 44, 52-53
& n. 10 (1987). The right to testify on one’s own behalf may be limited “to accommodate
other legitimate interests in the criminal trial process” that are not “arbitrary or
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disproportionate to the purpose they are designed to serve.” Neuman v. Rivers, 125 F.3d
315, 318 (6th Cir. 1997).
The Michigan Court of Appeals held that Petitioner’s right to testify was not
violated because a defendant does not have the right to testify to conclusions of law. The
Michigan court of Appeals reasoned:
An alleged violation of a defendant’s right to testify is a question of law
subject to de novo review on appeal. People v. Sierb, 456 Mich. 519, 522,
581 N.W.2d 219 (1998). “A defendant’s right to testify in his own defense
stems from the Fifth, Sixth, and Fourteenth Amendments of the United
States Constitution.” People v. Boyd, 470 Mich. 363, 373, 682 N.W.2d 459
(2004). The right to testify is also entrenched in the Michigan Constitution,
Const 1963, art 1, §§ 17, 20. People v. Simmons, 140 Mich.App. 681, 683,
364 N.W.2d 783 (1985). However, this right is not without limitation and
may bow to accommodate other legitimate interests in the criminal trial
process. People v. Solomon (Amended Opinion ), 220 Mich.App. 527, 534,
560 N.W.2d 651 (1996).
Defendant, who was the only witness called by defense counsel, testified as
follows:
Defense Counsel: Would you please give your name for the record.
Defendant: Yul Darrius Dunning.
Defense Counsel: I have no further questions of this witness,
your Honor.
Prosecutor: I don’t either.
Trial Court: All right. You may step down, sir.
Defendant argues under People v. Forbush, 170 Mich.App. 294, 299, 427
N.W.2d 622 (1988), that although a defendant cannot commit perjury, a
defendant can testify concerning “ultimate facts” that concern legal
definitions and the “legal elements of the crime.” Specifically, defendant
contends that his testimony would have supported an attack on the legal
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elements of felon in possession of a firearm because defendant believed that
his right to possess a firearm had been restored and that the weapon he was
carrying was not a firearm. However, this Court does not allow any type of
witness to testify about conclusions of law “because it is the exclusive
responsibility of the trial judge to find and interpret the applicable law.”
People v. Lyons, 93 Mich.App. 35, 45–46, 285 N.W.2d 788 (1979).
Defendant cites Forbush, which addressed how perjury prosecutions could
not be based on a defendant’s statements regarding ultimate facts, which are
“the legal definitions and effects ascribed to the basic facts, such as
statements regarding the noncommission of a crime charged or a legal
element of the crime.” Forbush, supra at 299, 427 N.W.2d 622. However,
the substance of defendant’s proposed testimony was not to address any
facts, but to argue legal conclusions based on his view of the applicable
statutes. Defendant did not want to address ultimate facts. Rather, he
wanted to testify regarding a reinterpretation of the applicable statutes to
support his view that his right to carry a firearm had been restored and the
weapon he was carrying was not a firearm. Further, on appeal, defendant
does not argue or provide any basis that his views regarding the applicable
statutes have any merit. Additionally, defendant provides no basis for his
view that the weapon he was carrying did not constitute a firearm.
Although there is a constitutional right to testify, defendant provides no
authority that this right entails inadmissible testimony. The only testimony
that defendant indicates he wished to give relates to his conclusions of law
through his own view of the applicable statutes. Therefore, because the
basis of defendant’s proposed testimony was his own conclusions of law, he
was not denied the right to testify.
Dunning, 2009 WL 2974725 at *1.
The morning after Petitioner was called to testify, the trial court conducted an
extensive colloquy with Petitioner and defense counsel regarding the limitations on
Petitioner’s testimony. That colloquy makes clear that Petitioner wished to testify as to
the correct interpretation of the relevant statutes and whether his conduct fell within the
prohibited conduct. The exchange on the day of trial and the colloquy the following day
support the Michigan Court of Appeals’ finding that Petitioner wished to testify as to his
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own interpretations of the relevant statutes. Petitioner points to no Supreme Court
precedent requiring a court to allow a criminal defendant to testify as to his own legal
conclusions and the Court is aware of none. The limitations placed by the trial court on
Petitioner’s testimony were not arbitrary or disproportionate to the purposes served.
Therefore, the Court finds that the state court’s decision was not contrary to or an
unreasonable application of Federal law.
B. Ineffective Assistance of Counsel Claim
In his third claim, Petitioner argues that his trial attorney was ineffective in failing
to make an opening argument or cross-examine witnesses, calling his client as a witness
and only asking his name, and in making a closing argument that failed to assist his client.
Petitioner argues that counsel’s performance was so deficient prejudice should be
presumed under United States v. Cronic, 466 U.S. 648 (1984).
To establish that he received ineffective assistance of counsel, a petitioner must
show, first, that counsel’s performance was deficient and, second, that counsel’s deficient
performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2053, 2064 (1984). A petitioner may show that counsel’s performance was
deficient by establishing that counsel’s performance was “outside the wide range of
professionally competent assistance.” Id. at 689, 104 S. Ct. at 2066. This “requires a
showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687, 104 S. Ct. 2064.
To satisfy the prejudice prong, a petitioner must show that “there is a reasonable
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probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. However, a petitioner need not
demonstrate prejudice in instances where the circumstances arising in the case “are so
likely to prejudice the accused that the cost of litigating their effect in a particular case is
unjustified.” U.S. v. Cronic, 466 U.S. 648, 658 (1984). Prejudice will be presumed
where a defendant is denied the assistance of counsel at a critical stage in the proceedings.
Id. at 659. A critical stage of a criminal proceeding is “a step of a criminal proceeding . .
. that h[olds] significant consequences for the accused.” Bell v. Cone, 535 U.S. 685,
695-96 (2002). Where counsel is absent or denied in such instances, “the likelihood that
the verdict is unreliable is so high that a case-by-case inquiry [of prejudice to the
defendant] is unnecessary.” Mickens v. Taylor, 535 U.S. 162, 166 (2002) (citing Cronic,
466 U.S. at 658-59 & 659 n. 26). The “individual inquiry into whether counsel's
inadequate performance undermined the reliability of the verdict” is forgone only in such
cases. Id.
A court’s review of counsel’s performance must be “highly deferential.” Id. at
689, 104 S. Ct. 2065. Habeas relief may be granted only if the state-court decision
unreasonably applied the standard for evaluating ineffective-assistance-of-counsel claims
established by Strickland. Knowles v. Mirzayance, 556 U.S. 111, 122-23, 129 S. Ct.
1411, 1419-20 (2009). “The question is not whether a federal court believes the state
court’s determination under the Strickland standard was incorrect but whether that
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determination was unreasonable – a substantially higher threshold.” Id. at 123, 129 S. Ct.
at 1420 (internal quotation omitted).
The Michigan Court of Appeals recognized that prejudice may be presumed when
“defense counsel ‘entirely fails to subject the prosecution’s case to meaningful adversarial
testing.’” Dunning, 2009 WL 2974725 at *3, quoting Bell v. Cone, 535 U.S. 685, 696
(2002). The Michigan Court of Appeals held that defense counsel, though faced with
“insurmountable facts,” subjected the prosecution’s case to meaningful adversarial testing
so that prejudice would not be presumed. Id. Cronic’s presumption of prejudice is
applied only where “‘the constructive denial of counsel and the associated collapse of the
adversarial system is imminently clear.’” Ivory v. Jackson, 509 F.3d 284, 295 (6th Cir.
2007), quoting, Moss v. Hofbauer, 286 F.3d 851, 860 (6th Cir. 2002). Nothing in the
record makes imminently clear a collapse of the adversarial system. Defense counsel was
obviously alert, present and prepared for trial. Counsel effectively cross-examined
witnesses and presented a defense within the parameters of the evidence presented at trial.
Thus, the Court finds that the Michigan Court of Appeals correctly declined to presume
prejudice.
Petitioner argues counsel was ineffective in failing to give an opening statement.
An attorney’s failure to give an opening statement is presumed to be a matter of
professional judgment. Moss, 286 F.3d at 863. An opening statement is unnecessary
where, as here, defense counsel does not expect to introduce any evidence to substantiate
the opening statement. Id. Moreover, Petitioner has not shown how he was prejudiced by
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counsel’s decision not to make an opening statement.
Second, Petitioner argues that counsel was ineffective in failing to cross-examine
two witnesses, police officers William Robinson and Kevin Payton. The Michigan Court
of Appeals held that, while counsel declined to cross-examine two witnesses, counsel
thoroughly cross-examined one of the arresting officers, elicited helpful testimony from
another police witness regarding the type of weapon recovered, and extensively voir dired
William Robinson, the officer who took Petitioner’s statement, to determine whether
Petitioner’s constitutional rights were violated during police questioning. The state court
concluded that counsel’s decision not to cross-examine two witnesses was reasonable.
This Court agrees. Once it was determined that Petitioner’s constitutional rights were
protected when his statement was obtained, no potentially advantageous avenue of crossexamination remained. Officer Payton’s testimony concerned only whether the shotgun
was tested for fingerprints. Officer Payton testified that he did not test the shotgun
because the arresting officers saw Petitioner with the firearm and Petitioner admitted to
Officer Robinson that he was holding the firearm. Petitioner fails to identify any
potentially useful line of cross-examination of Officer Payton that defense counsel should
have pursued nor does the Court discern any. Counsel’s decision not to cross-examine
these witnesses was reasonable.
Next, Petitioner argues that counsel was ineffective in calling him as a witness but
asking him only his name. Petitioner claims that counsel therefore denied him his right to
testify. As discussed above, the trial court clearly ruled that Petitioner would not be
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permitted to testify regarding his interpretations of the relevant statutes. Petitioner offers
no other testimony he wished to give. Petitioner cannot show that counsel was ineffective
in failing to ask questions that violated the limitations placed on his testimony by the trial
court.
Finally, Petitioner argues that defense counsel’s closing argument did nothing to
assist his defense. Counsel’s closing argument, in its entirety, was:
Ladies and gentlemen of the jury, you heard the evidence in this case. You
got a decision to make. Real simple. Thank you very much.
Tr., 3/17/08 at 131.
The brevity of a closing argument, by itself, is not evidence of constitutionally
deficient performance. Moss, 286 F.3d at 869. Petitioner was seen carrying a shotgun by
two police officers, he had a prior felony conviction, and he admitted in a custodial
statement that he was carrying the shotgun. No evidence was presented at trial that
defense counsel could have highlighted in an attempt to raise a reasonable doubt as to
Petitioner’s guilt. “[C]ounsel has wide latitude in deciding how best to represent a client,
and deference to counsel’s tactical decisions in his closing presentation is particularly
important because of the broad range of legitimate defense strategy at that stage.”
Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003). Trial counsel’s closing argument met an
objectively reasonable level of representation. Petitioner has not shown a reasonable
probability that, if defense counsel had given a comprehensive closing argument, the
result of the proceeding would have been different. Habeas relief is denied on this claim.

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V. Certificate of Appealability
“The district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28
U.S.C. foll. § 2254. Title 28 U.S.C. § 2253 governs appeals in § 2254 proceedings and
provides, in pertinent part: “A certificate of appealability may issue ... only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). The Supreme Court has explained that when a district court denies a
habeas petition on the merits of the claims presented, a certificate may issue if the
petitioner demonstrates that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484,
120 S. Ct. 1595, 1604 (2000). If a petitioner makes the requisite showing and a district
court grants a certificate of appealability, the court must indicate the specific issue or
issues for which the applicant made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(3).
For the reasons stated in this Opinion and Order, the Court finds that Petitioner has
failed to make a substantial showing of the denial of a constitutional right. Therefore, a
certificate of appealability shall not issue in this case.
VI. Conclusion
Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is
DENIED and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
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s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: February 5, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record on
February 5, 2014, by electronic and/or ordinary mail.
s/Johnetta M. Curry-Williams
Case Manager
Acting in the Absence of Carol Hemeyer

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