Williams v. Rivard

Filing 17

OPINION and ORDER (1) Denying 1 Petition for Writ of Habeas Corpus, (2) Declining to Issue a Certificate of Appealability, and (3) Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEONDRA TERRELL WILLIAMS,
Petitioner,

Case No. 14-cv-10753
Hon. Matthew F. Leitman

v.
CATHERINE S. BAUMAN,
Respondent.
__________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR A WRIT OF
HABEAS CORPUS (ECF #1), (2) DECLINING TO ISSUE CERTIFICATE
OF APPEALABILITY, AND (3) GRANTING LEAVE TO APPEAL IN
FORMA PAUPERIS
Petitioner Deondra Terrell Williams (“Williams”) is a state prisoner confined
at the Chippewa Correctional Facility in Kincheloe, Michigan. On February 18,
2014, Williams filed a petition in this Court seeking a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (the “Petition”). (See ECF #1.) In the Petition, Williams
challenges his state-court convictions for first-degree felony murder, armed robbery,
conspiracy to commit armed robbery, and possession of a firearm during the
commission of a felony (felony-firearm). For the reasons stated below, the Petition
is DENIED.

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I
On December 16, 2010, following a bench trial in the Genesee County Circuit
Court, Judge Richard B. Yuille found Petitioner guilty of first-degree felony murder,
M.C.L. § 750.316(1)(b), armed robbery, M.C.L. § 750.529, conspiracy to commit
armed robbery, M.C.L. §§ 750.157a and 750.529, and possession of a firearm during
the commission of a felony (felony-firearm), M.C.L. § 750.227b. (See 12/16/2010
Trial Tr., ECF #10-14.) The Michigan Court of Appeals recited the relevant facts of
the charged offenses as follows:
On September 21, 2008, Saba’s Mini Mart was robbed and
the clerk, Monir Alyatim, was shot and killed. The
surveillance footage presented to the jury shows three men
entering the store shortly after 11:00 p.m. The first subject
to appear is wearing dark pants and a dark hooded
sweatshirt with the hood up. Shortly thereafter, a second
subject is seen running up to the front counter. The second
subject jumps on the counter, puts his arm over the
bulletproof glass, and points a handgun in the direction of
the clerk. While the second subject is on the counter, a
third subject is seen inside the store holding a pistol grip
shotgun. The clerk is seen emptying the registers and
handing the money to the second subject. After taking the
money, the second subject shoots the clerk and flees the
scene with the other subjects. [Petitioner], [co-defendant
Geoffrey] Lawson, and [co-defendant Cortez] Bailey were
eventually identified as being involved in the robbery and
murder. Lawson was identified as the person who shot the
clerk, while [Petitioner] was identified as the suspect
holding the pistol grip shotgun.
People v. Williams, 2012 WL 2402027, at *1 (Mich. Ct. App. June 26, 2012). The
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Michigan Court of Appeals affirmed Petitioner’s conviction, and the Michigan
Supreme Court denied Petitioner leave to appeal. See id.; lv. den., 822 N.W.2d 779
(Mich. 2012).
Petitioner now seeks habeas relief on three grounds: he insists that the
Michigan Court of Appeals unreasonably rejected his arguments that (1) there was
insufficient evidence to convict him of felony murder, (2) he was denied a fair trial
based on alleged misconduct of the state-court prosecutor, and (3) he was denied the
effective assistance of counsel. (See Petition at 3, ECF #1 at Pg. ID 3.)
II
28 U.S.C. § 2254(d)(1), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), limits a federal court’s review of constitutional
claims raised by a state prisoner in a habeas action where the claims were adjudicated
on the merits by the state courts. Pursuant to Section 2254(d)(1), relief is barred
unless the state court adjudication was “contrary to” or resulted in an “unreasonable
application of” clearly established federal law. 28 U.S.C.

§ 2254(d)(1).

“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]
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precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
“[T]he ‘unreasonable application’ prong of [Section 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). “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)).
“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.” Harrington, 562 U.S. at 103.

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III
A
Petitioner’s first claim is that the evidence introduced at trial was insufficient
to sustain his conviction for felony murder under an aiding and abetting theory. The
Michigan Court of Appeals considered this argument and rejected it:
[Petitioner’s] specific contention is that there is no
evidence that he possessed the requisite intent to murder.
That is, there is no evidence that he aided in the armed
robbery with the intent to kill, to do great bodily harm, or
to create a high risk of death or great bodily harm with
knowledge that death or great bodily harm was the
probable result. However, malice can be inferred when the
defendant sets into a motion a series of events likely to
cause death or great bodily harm, and by the use of a
dangerous weapon. Both [Petitioner] and [co-defendant]
Lawson were armed during the robbery. [Petitioner] paced
around the store with a shotgun while Lawson pointed a
handgun at the clerk. Although there is no evidence that
defendant knew Lawson would kill the clerk, the evidence
did show that by being armed during a robbery [Petitioner]
intended to do an act in obvious disregard of life
endangering consequences, thus evidencing his malicious
intent. Therefore, there was sufficient evidence presented
to convict [Petitioner] of felony murder.
Williams, 2012 WL 2402027, at *1 (internal citations and punctuation omitted).
The state appellate court’s holding was not an unreasonable application of
clearly established federal law. Under controlling Supreme Court precedent, when
this Court reviews the sufficiency of the evidence to support a criminal conviction,
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it asks itself “whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). This
inquiry does not require a court to “ask itself whether it believes that the evidence at
the trial established guilt beyond a reasonable doubt.” Id. at 318-19 (emphasis in
original). Instead, the relevant question is whether, “after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis
in original). The Jackson standard applies to bench trials, as well as to jury trials.
See, e.g., U.S. v. Bronzino, 598 F.3d 276, 278 (6th Cir. 2010).
Here, the Michigan Court of Appeals did not unreasonably apply Jackson
when it rejected Petitioner’s sufficiency-of-the-evidence claim. Petitioner insists
that there was insufficient evidence to establish that he acted with the required intent
to support his felony murder conviction. To convict a defendant of felony murder
under Michigan law, the prosecution must prove, among other things, that the
defendant acted “with the intent to kill, to do great bodily harm, or to create a very
high risk of death or great bodily harm with knowledge that death or great bodily
harm was the probable result [i.e., malice].” Matthews v. Abramajtys, 319 F.3d 780,
789 (6th Cir. 2003) (citing People v. Carines, 597 N.W.2d 130, 136 (Mich. 1999)).
A fact-finder “can properly infer malice from evidence that a defendant set in motion
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a force likely to cause death or great bodily harm.” People v. Aaron, 299 N.W.2d
304, 327 (Mich. 1980). “Malice may also be inferred from the use of a deadly
weapon.” Carines, 597 N.W.2d at 136. As the Michigan Court of Appeals noted,
the evidence here established that the Petitioner actively participated in an armed
robbery with two other men, while at least one of his co-defendants was armed with
a handgun. In addition, Petitioner himself was armed with a pistol-grip shotgun, and
he was seen “patrolling the aisles with [that] long gun.” (12/16/10 Trial Tr. at 7, ECF
#10-14 at Pg. ID 802.) Based on these and other facts introduced at trial, it was not
unreasonable for the Michigan Court of Appeals to conclude that Petitioner acted
with the required intent. Thus, Petitioner is not entitled to habeas relief on his first
claim.
B
Petitioner’s second claim is that the prosecutor engaged in misconduct that
denied him a fair trial in two respects. First, Petitioner argues that the prosecutor
wrongly failed to locate and produce witness Tonya Powell (“Powell”) for live
testimony at trial. (See Petition at 12-17, ECF #1 at Pg. ID 20-25.) Second,
Petitioner argues that the prosecutor unlawfully waited until the start of trial to turn
over the statement of witness Geneva Ingram (“Ingram”). (See id. at 18-23, ECF #1
at 26-31.) The Court will address each in turn.
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1
It is not clear from the record whether Petitioner has exhausted his argument
that the state-court prosecutor deprived him of a fair trial by failing to produce
Powell for live testimony at trial. On direct appeal, Petitioner argued that the trial
court erred when it allowed the prosecutor to introduce Powell’s preliminary
examination testimony after it was determined that she was an unavailable witness.
(See ECF #10-16 at Pg. ID 902-906.) The Michigan Court of Appeals rejected that
argument on the basis that it was waived after Powell’s trial counsel failed to object.
See Powell, 2012 WL 2402027, at *2. However, the argument Powell makes here
appears slightly different. In the Petition, Powell insists prosecutor “failed” in his
duty to “assist the Petitioner in locating Ms. Powell” so that Petitioner could elicit
“additional” presumably favorable “testimony” from her at trial. (Petition at 12-13,
ECF #1 at Pg. ID 20-21.) It does not appear that the Michigan Court of Appeals
understood Petitioner to be making this argument, and that court did not address this
argument.
However, even if the Court were to give Petitioner the benefit of the doubt on
these procedural matters – i.e., if the Court were to analyze this claim as if Petitioner
raised it and the state court failed to address it1, thus permitting this Court to review

1

Respondent contends that all of Petitioner’s prosecutorial misconduct claims are
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the claim de novo – the Court would still not grant relief on this claim. Simply put,
even if the prosecutor was under some duty to aid Petitioner in locating and
producing Powell for live testimony at trial (and, to be clear, the Court is not making
such a holding here) Petitioner has failed to show any prejudice from the
prosecutor’s inaction.

Indeed, Petitioner has not identified what “additional

testimony” he sought to introduce from Powell or even attempted to explain how
Powell’s testimony would have changed either his defense or the end result of his
trial in any way. Petitioner’s wholly conclusory insistence that “her testimony would
raise reasonable doubt about [his] guilt or innocence” (id. at 13, ECF #1 at Pg. ID
21) is insufficient to establish that any alleged failure on the part of the prosecutor
deprived him of his right to a fair trial under the Due Process Clause. The Court
therefore denies Petitioner habeas relief with respect to the prosecutor’s conduct
related to Powell.

procedurally defaulted and/or waived because Petitioner either failed to object or
preserve the issues for habeas review. A habeas petitioner’s failure to exhaust his
state court remedies is not a bar to federal habeas review of the claim “when the
claim is plainly meritless and it would be a waste of time and judicial resources to
require additional court proceedings.” Friday v. Pitcher, 200 F.Supp.2d 725, 744
(E.D. Mich. 2002); see also 28 U.S.C. § 2254(b)(1)(A)(c). Because these claims are
without merit, the Court need not address the exhaustion issue.
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2
Petitioner next argues that the prosecutor deprived him of a fair trial when the
prosecutor waited until the day of trial to turn over Ingram’s witness statement. (See
Petition at 18-23, ECF #1 at 26-31.) Petitioner attempted to raise this claim on direct
appeal, but the Michigan Court Appeals held that he had “abandoned” it after he
failed to identify Ingram as the witness whose statement was not disclosed in his
appellate papers. Williams, 2012 WL 2402027, at *3 (“As for the witness statement
cited, [Petitioner] fails to identify the witness. Therefore, we are unable to conclude
whether any error occurred. The argument has been abandoned”). Petitioner now
argues that the prosecutor’s decision to wait until the day of trial to produce Ingram’s
statement “interfered with defense counsel’s ability to defend Petitioner” and
prevented the defense from “investigating additional bases for moving to suppress
the statement.” (Petition at 23, ECF #1 at Pg. ID 31.) Once again, if the Court were
to give Petitioner every benefit of the doubt on the procedural issues related to this
claim and were to apply de novo review, the Court would still deny relief.
Much of this claim appears to rest on Petitioner’s repeated insistence that the
prosecutor’s late disclosure of Ingram’s statement violated state-law discovery rules
(see Petition at 18, ECF #1 at Pg. ID 26, quoting Michigan Court Rule 6.201(B)),
but a violation of such rules is not cognizable on federal habeas review unless it
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violates the Due Process Clause. See Lorraine v. Coyle, 291 F.3d 416, 441 (6th Cir.
2002); see also Friday v. Straub, 175 F. Supp. 2d 933, 940 (E.D. Mich. 2001).
Petitioner has failed to show such a violation here. Indeed, Petitioner has not shown
how he was prejudiced by the delayed disclosure of Ingram’s witness statement.
Petitioner has not asserted, for example, that there was any new or surprising
information in Ingram’s statement. Nor does he explain how, if given more time, he
may have been able to move for the exclusion of the statement at trial. Instead,
Petitioner does no more than make conclusory assertions – devoid of any details or
specifics – that the delayed production of the statement deprived him of a fair trial.
Such unsupported claims are insufficient to establish that the late disclosure
amounted to a violation of the Due Process Clause. Petitioner is not entitled to
habeas relief on this claim.
C
Petitioner’s final claim is that his trial counsel was ineffective. In Strickland
v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a
two-part test to determine whether a criminal defendant petitioner has received the
ineffective assistance of counsel. First, a defendant must show that his counsel’s
performance was deficient. See id. at 687. “This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
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defendant by the Sixth Amendment.” Id. Second, the defendant must show “that the
deficient performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id.
To satisfy the performance prong of Strickland, a defendant “must identify the
acts or omissions of counsel that are alleged not to have been the result of reasonable
professional judgment.” Id. at 690. A court’s scrutiny of counsel’s performance is
highly deferential. See id. at 689. “[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. at 690. The burden is on the defendant to overcome the
presumption that the challenged action was sound trial strategy. See id. at 689.
To satisfy the prejudice prong of the Strickland test, a defendant must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. To be a reasonable
probability, it must be sufficient to undermine confidence in the outcome. See id.
“This does not require a showing that counsel’s actions ‘more likely than not altered
the outcome,’” but “[t]he likelihood of a different result must be substantial, not just
conceivable.” Harrington, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 693).

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“The standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. at 105
(internal and end citations omitted). “When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
Here, Petitioner has failed to establish that he is entitled to habeas relief on his
ineffective assistance claims.
1
Petitioner first claims that his trial counsel was ineffective when counsel
“failed to show due-diligence in producing an out-of-state witness, Tonya Powell,
and reading her preliminary examination transcripts at trial.” (Petition at 26, ECF #1
at Pg. ID 34.) The Michigan Court of Appeals reviewed and rejected the portion of
this claim relating to counsel’s failure to object to the reading of Ms. Powell’s
preliminary examination testimony. The state court held that Petitioner failed to
show both that counsel’s performance was deficient and that there was a reasonable
probability that the result of his trial would have been different if the testimony was
excluded:
Assuming without deciding that counsel could have raised
a legitimate objection [to the admission of the preliminary
examination testimony], his failure to do so was not
objectively unreasonable. [Petitioner] was identified as
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being involved in the armed robbery and murder by two
witnesses appearing at trial. One testified that he saw the
surveillance video and that the suspect with the shotgun
was wearing the same ball cap that [Petitioner] was
wearing just minutes before the robbery. The other
testified that she saw [Petitioner] outside her house shortly
before the robbery, and that he was holding a shotgun. The
witness also testified that [Petitioner] asked her if she was
“keeping her mouth shut” the day after the robbery. In
light of this evidence, defense counsel made the strategic
decision to focus on whether [Petitioner] had the requisite
intent to be convicted of felony murder. We will not
second-guess counsel regarding matters of trial strategy.
Moreover, even if we set aside the challenged preliminary
examination testimony, [Petitioner] cannot show a
reasonable probability that the outcome would have been
different had counsel objected.
Williams, 2012 WL 2402027, at *2-*3 (internal citation omitted).
Petitioner has not shown that this holding was unreasonable. In particular,
Petitioner has failed to demonstrate any error in the state court’s conclusion that
Petitioner did not establish prejudice from this allegedly-ineffective assistance. The
state appellate court reasonably noted that there was significant other evidence of
Petitioner’s guilt beyond Powell’s preliminary exam testimony.
Finally, to the extent that Petitioner claims his counsel was ineffective for
failing to either secure Powell’s appearance at trial or for failing to force the
prosecutor to produce Powell, that claim fails as well. As noted above, aside from
unsupported, conclusory assertions, Petitioner has not made any showing of
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prejudice from Powell’s absence from trial. Petitioner is therefore not entitled to
habeas relief on the basis of ineffective assistance related to (1) counsel’s alleged
failure to secure Powell’s attendance at trial or (2) counsel’s failure to object to the
admission of her preliminary examination testimony at his trial.
2
Petitioner further claims that his trial counsel was ineffective for failing to
object to the delayed disclosure of Ingram’s witness statement. Petitioner is not
entitled to relief on this claim because, for the reasons set forth above, he has not
shown that he suffered any prejudice from his counsel’s failure to object to the late
disclosure of Ingram’s statement. Simply put, he has not offered the Court any basis
on which to conclude that the late disclosure actually made any difference at trial.
Petitioner offers no specifics at all as to how the late disclosure prejudiced him.
Because Petitioner has not satisfied his burden to show prejudice from any alleged
errors by his counsel related to this evidence, he is not entitled to habeas relief.2

2

In the Petition, Petitioner makes one final argument with respect to his trial counsel:
that counsel was “hostile” towards him, “expressly agreed with the prosecutor’s
theory of the case and the trial court’s finding of guilt,” and failed to work diligently
on Petitioner’s behalf because Petitioner did not pay him for his legal services. (See
Petition at 27-28, ECF #1 at Pg. ID 35-36.) It does not appear that Petitioner ever
presented or exhausted this claim in state court. In any event, Petitioner presents no
evidence to support his claim that his trial counsel had divided loyalties and he has
not established that he is entitled to habeas relief on this basis. Indeed, while
Petitioner insists that the case against him “was far from unassailable,” as noted
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IV
For all of the reasons stated above, the Court DENIES the Petition.
The Court further DECLINES to issue Petitioner a certificate of
appealability. In order to obtain a certificate of appealability, a habeas petitioner
must make a substantial showing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2). To demonstrate this denial, the applicant is required to show that
reasonable jurists could debate whether, or agree that, the petition should have been
resolved in a different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 483-84
(2000). When a district court rejects a habeas petitioner’s constitutional claims on
the merits, as the Court has done here, the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims to be debatable or wrong. See id. at 484. “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.
Petitioner is not entitled to habeas relief on any of the claims in his Petition.
The claims are largely of a conclusory nature and plainly do not warrant relief. The

above, the Michigan Court of Appeals’ conclusion that there was sufficient evidence
to convict of him of the charged offense was not unreasonable.
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Court concludes that reasonable jurists could not debate whether the petition should
have been resolved in a different manner. Therefore, the Court will not grant a
certificate of appealability.
Although this Court has denied Petitioner a certificate of appealability, the
standard for granting an application for leave to proceed in forma pauperis (an
“IFP”) is lower than the standard for certificates of appealability. See Foster v.
Ludwick, 208 F.Supp.2d 750, 764 (E.D. Mich. 2002) (citing United States v.
Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)). While a certificate of
appealability may only be granted if a petitioner makes a substantial showing of the
denial of a constitutional right, a court may grant IFP status if it finds that an appeal
is being taken in good faith. See Foster at 764-65; see also 28 U.S.C. § 1915(a)(3);
Fed. Rule App. Proc. 24(a). Although jurists of reason could not debate this Court’s
resolution of Petitioner’s claims, the issues Petitioner raises are not frivolous.
Therefore, Petitioner could appeal this Court’s decision in good faith. The Court
therefore GRANTS Petitioner leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: February 27, 2017
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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on February 27, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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