Burns v. Woods
OPINION and ORDER denying with prejudice 1 Petition for Writ of Habeas Corpus and declining to issue a certificate of appealability or leave to appeal in forma pauperis. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DOUGLAS ROY BURNS,
Civil No. 2:14-CV-13862
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR
LEAVE TO APPEAL IN FORMA PAUPERIS
Douglas Roy Burns, (“petitioner”), confined at the Chippewa Correctional Facility in
Kincheloe, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. In his pro se application, petitioner challenges his convictions for two counts of
assault with intent to commit murder, M.C.L.A. 750.83, and two counts of possession of a
firearm during the commission of a felony, M.C.L.A. 750.227b. For the reasons that follow,
the petition for a writ of habeas corpus is DENIED.
Petitioner was convicted following a jury trial in the Oakland County Circuit Court.
Petitioner’s conviction arose from an encounter between petitioner and the Pontiac Police
Department. This Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant’s convictions arise out his assault of two police officers on May 27,
2010. City of Pontiac Police Sergeant Ryan Terry and Officer Tim Morton
responded to defendant’s home because of a dispute between defendant
and his neighbors. Defendant was irate and yelled at the officers to get off of
his property. Terry and Morton returned to defendant’s home later that day
because of threats that defendant had made to the mayor of Pontiac over the
telephone. As the officers talked to defendant’s wife at the front door, they
could hear defendant yelling in the background. When defendant came to the
front door, he was wearing only a bathrobe with large front pockets, and
Terry saw defendant place a small handgun into one of the pockets. Terry
yelled “gun, gun, gun” to alert Morton that defendant had a gun, and the
officers unsuccessfully attempted to subdue defendant. After a brief struggle,
defendant fired two shots at the officers, prompting Morton to fire one shot
at defendant, which missed and struck a piano. Defendant then fired a third
shot at the officers, who sustained nonlife-threatening injuries. Defendant
was eventually subdued and apprehended after additional police officers
arrived and sprayed tear gas into defendant’s home.
People v. Burns, No. 305037, 2012 WL 4093758, at *1 (Mich. Ct. App. Sept. 18, 2012).
Petitioner’s conviction was affirmed on direct appeal. Id., lv. den. 493 Mich. 941, 826
N.W.2d 719 (2013).
Petitioner filed a petition for a writ of habeas corpus on October 1, 2014, [Doc. # 1],
in which he sought habeas relief on the following grounds:1
I. Denial of right to present a defense.
II. Ineffective assistance of trial counsel.
III. The trial court inappropriately ignored petitioner’s request for substitute counsel.
Respondent filed an answer on May 8, 2015, [Doc. # 11]. As part of their answer,
respondent alleged that petitioner’s second and third claims were defaulted because
petitioner abandoned the claims by not properly raising them in his Standard 4 brief on his
appeal of right.
Under the prison mailbox rule, this Court assumes that petitioner filed his habeas petition on
October 1, 2014, the date that it was signed and dated. See See Towns v. U.S., 190 F.3d 468, 469 (6th
On January 20, 2017, this Court held the petition in abeyance, staying the
proceedings to permit petitioner to return to the state courts to exhaust his second and third
claims. [Doc. # 14].
In a letter request, dated May 31, 2017, [Doc. # 15], petitioner requested that the
petition be reopened and that “this matter be adjudicated on the sole exhausted issue, to
wit, Issue # 1: Denial of right to present a defense.” Petitioner further informed this Court
that he intended to “forfeit and abandon the other two Issues, the non-exhausted ones, to
wit II: Ineffective assistance of trial counsel, and III: The trial court inappropriately ignored
petitioner’s request for substitute counsel.”
On June 9, 2017, this Court reopened the case. The Court amends the petition to
delete Issue 2 and Issue 3.
Petitioner seeks a writ of habeas corpus on the following ground:
The trial judges (sic) ruling prevented the petitioner from presenting evidence
of his mental illness is contrary to the ruling in Rompilla v. Beard, and
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. Bell v. Cone, 535 U.S. 685 (2002); Lockyer v.
Andrade, 538 U.S. ___ (2003).
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:
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–
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
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question
of law or if the state court decides a case differently than the Supreme Court has on a set
of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
“unreasonable application” occurs when “a state court decision unreasonably applies the
law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas
court may not “issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “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 v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537
U.S. 19, 24 (2002)(per curiam)). “[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)). Therefore, in order to
obtain habeas relief in federal court, a state prisoner is required to show that the state
court’s rejection of his claim “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. A habeas petitioner should be denied relief
as long as it is within the “realm of possibility” that fairminded jurists could find the state
court decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
Petitioner claims that he was denied his right to present a defense when the trial
court prevented him from presenting evidence of his mental illness. Petitioner argues that
evidence of his bipolar condition should have been allowed pursuant to M.R.E. 404(a)(1)
as evidence of his character for purposes of proving that his actions were in conformity
with a character trait.
The Michigan Court of Appeals rejected petitioner’s claim, finding that petitioner
was attempting to admit this evidence in a backhanded attempt to raise a diminished
capacity defense by trying to establish that his mental illness negated his specific intent
to commit the crimes. The Michigan Court of Appeals indicated that petitioner was not
entitled to present such evidence, because diminished capacity or any mental illness short
of legal insanity is no longer a defense in Michigan to a crime. People v. Burns, 2012 WL
4093758, at *1–2.
State courts are the “ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S.
684, 691 (1975). What is essential to establish the elements of a crime is a matter of state
law. See Sanford v. Yukins, 288 F.3d 855, 862 (6th Cir. 2002). Likewise, “[D]ue process
does not require that a defendant be permitted to present any defense he chooses.
Rather, states are allowed to define the elements of, and defenses to, state crimes.” See
Lakin v. Stine, 80 F.App’x 368, 373 (6th Cir. 2003)(citing Apprendi v. New Jersey, 530 U.S.
466, 484-87 (2000); McMillan v. Pennsylvania, 477 U.S. 79, 84-86, (1986)).
circumstances under which a criminal defense may be asserted is thus a question of state
law. Id. Under Michigan law, petitioner would not be entitled to invoke the doctrine of
diminished capacity or any other mental illness defense, other than insanity, to negate the
specific intent pertaining to assault with intent to commit murder.
In 1994, the Michigan legislature enacted Mich. Comp. Laws § 768.21a, which set
forth the legal standards for an insanity defense in Michigan. The Michigan Supreme
Court has subsequently held that this statute abolished the diminished capacity defense
in Michigan, and that the insanity defense, as established by the Michigan Legislature in
§ 768.21a, is the sole standard for determining criminal responsibility as it relates to
mental illness or retardation. See People v. Carpenter, 627 N.W.2d 276, 283-85 (Mich.
2001); see also Wallace v. Smith, 58 F.App’x 89, 94, n. 6. (6th Cir. 2003).
In Wong v. Money, 142 F.3d 313, 323-26 (6th Cir. 1998), the Sixth Circuit rejected
the habeas petitioner’s claim that her rights under the Sixth and Fourteenth Amendments
had been violated when the state trial court prevented petitioner from presenting expert
psychiatric testimony on the issue of diminished capacity, in light of the fact that the State
of Ohio did not recognize the defense of diminished capacity.
In the present case, in light of the fact that the defense of diminished capacity is not
a defense in Michigan, and insanity is the only recognized mental illness defense,
petitioner cannot establish that his Sixth or Fourteenth Amendment rights were violated
by the trial court precluding him from raising a defense pertaining to his bipolar condition,
short of insanity. Petitioner is not entitled to relief on his claim that the trial court erred by
preventing him from bringing a defense based on his bi-polar condition.
The Court will deny the petition for a writ of habeas corpus with prejudice. The
Court will also deny a certificate of appealability to petitioner. In order to obtain a
certificate of appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 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. Slack v. McDaniel, 529 U.S. 473,
483-84 (2000). “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; see also Strayhorn v. Booker, 718 F. Supp. 2d at 875.
For the reasons stated in this opinion, the Court will deny petitioner a certificate of
appealability because he has failed to make a substantial showing of the denial of a
federal constitutional right. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich.
2001). The Court will also deny petitioner leave to appeal in forma pauperis, because the
appeal would be frivolous. Id.
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma
s/ Nancy G. Edmunds
HON. NANCY G. EDMUNDS
UNITED STATES DISTRICT COURT
CERTIFICATE OF SERVICE
I hereby certify that a copy of this order was mailed/served upon counsel and/or
parties of record on this 31st day of October, 2017 by regular U.S. Mail and/or
s/ Carol J. Bethel
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