Cummings v. Rivard

Filing 11

OPINION AND ORDER DENYING THE PETITION FOR AWRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DONALD CUMMINGS,
Case No. 15-cv-12466

Petitioner,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
STEVEN RIVARD,

UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND

Respondent.
/

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
I. INTRODUCTION
Donald Wayne Cummings, (“Petitioner”), confined at the Gus Harrison
Correctional Facility in Adrian, 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
conviction for conspiracy to commit first-degree murder, tampering with evidence,
Mich. Comp. Laws § 750.483a, and disinterment or mutilation of a dead body,
Mich. Comp. Laws § 750.160. The court sentenced Cummings to life imprisonment
for the conspiracy conviction, and concurrent prison terms of 1 to 10 years each for
the tampering with evidence and disinterment convictions. For the reasons that

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follow, the petition for a writ of habeas corpus is DENIED.
II. BACKGROUND
Petitioner was convicted following a jury trial in the Wayne County Circuit
Court. 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):
Defendants’ convictions arise from the death of Brandon Buck, whose
unrecognizable body was discovered inside a burning minivan during
the early morning hours of April 18, 2011. In September 2011, a
witness, Ayesha White, came forward and reported observing the
events that led to Buck’s death. White was the only witness to the
events, and was the only reason authorities were able to determine
whose body was found in the van. White stated that she was present
when Warner, at Sampson’s direction, shot Buck. Afterward,
Cummings obtained a minivan and Buck’s body was placed inside, and
then Cummings poured gasoline inside the minivan and set it on fire.
An autopsy determined that Buck was already dead before the fire,
having died from multiple gunshot wounds.
People v. Warner, No. 311034, 2014 WL 2553303, at *1 (Mich. Ct. App. June 3,
2014).
Petitioner’s conviction was affirmed on appeal. People v. Warner, 497 Mich.
890, 854 N.W.2d 890 (2014).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Defendant is entitled to dismissal of conviction and sentence for
conspiracy where there was insufficient evidence to find for this
offense. As such, the motion for directed verdict as to this offense
should have been granted.
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II. Defendant is entitled to correction of his judgment of sentence to
reflect his eligibility for parole.
III. 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—
(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 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

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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. “[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).
IV. DISCUSSION
A. Claim # 1. The Sufficiency of the Evidence Claim.
Petitioner claims that there was insufficient evidence to support his
conviction for conspiracy to commit murder. Petitioner claims that the evidence

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was insufficient to establish that he was one of the participants in the crime and
further pleads in the alternative that if the evidence was sufficient to establish
identity, the evidence was insufficient to establish that he conspired to commit the
crime.
The Michigan Court of Appeals rejected Petitioner’s claim as follows:
The evidence indicated that Cummings acted in concert with Warner
and Sampson, before, during, and after the offense. Evidence was
presented that Cummings joined Warner in chasing Buck after
Warner shot Buck, after having heard Sampson direct Warner to
retrieve a gun from Buck and to kill him. This evidence supported an
inference that Cummings intended to combine with Simpson and
Warner to kill Buck. Although Cummings's actions in orchestrating
the disposal of Buck's body by setting the van on fire to cover up the
murder involved conduct after the murder was committed, that
conduct—in conjunction with the other evidence—was still probative
of Cummings's intent to act in unison and combine with Warner and
Sampson to kill the victim. Viewed in a light most favorable to the
prosecution, the evidence was sufficient to enable the jury to find
beyond a reasonable doubt that Cummings conspired with Warner
and Sampson to murder Buck.
People v. Warner, 2014 WL 2553303, at *4.
It is beyond question that “the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.” In Re Winship, 397
U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction is, “whether the record evidence could

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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.” 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 318–19 (internal citation and footnote omitted) (emphasis in the original).
A federal habeas court may not overturn a state court decision that rejects a
sufficiency of the evidence claim simply because the federal court disagrees with
the state court’s resolution of that claim. A federal court may grant habeas relief
only if the state court decision was an objectively unreasonable application of the
Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “Because rational
people can sometimes disagree, the inevitable consequence of this settled law is that
judges will sometimes encounter convictions that they believe to be mistaken, but
that they must nonetheless uphold.” Id. Therefore, for a federal habeas court
reviewing the sufficiency of evidence for a state court conviction, “the only
question under Jackson is whether that finding was so insupportable as to fall below
the threshold of bare rationality.” Coleman v. Johnson, 132 S. Ct. 2060, 2065
(2012).

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Under Michigan law, a conspiracy is defined as “a mutual agreement or
understanding, express or implied, between two or more persons to a commit a
criminal act.” Cameron v. Birkett, 348 F. Supp. 2d 825, 839 (E.D. Mich. 2004)
(quoting People v. Carter, 415 Mich. 558, 567; 330 N.W.2d 314 (1982)). “[A]
two-fold specific intent is required for conviction: intent to combine with others,
and intent to accomplish the illegal objective.” Carter, 415 Mich. at 568. Direct
proof of an agreement is not required, nor is proof of a formal agreement necessary.
Rather, it is sufficient that the circumstances, acts, and conduct of the parties
establish an agreement. People v. Cotton, 191 Mich. App. 377, 393; 478 N.W.2d
681 (1991). A conspiracy may be proven by circumstantial evidence or may be
based on inference. Id.
Under Michigan law, “[t]o prove conspiracy to commit murder, it must be
demonstrated that each conspirator had the requisite intent to commit the murder.”
Cameron, 348 F. Supp. 2d at 839 (quoting People v. Buck, 197 Mich. App. 404,
412; 496 N.W.2d 321, 327 (1992), rev’d in part on other grounds sub nom. People
v. Holcomb, 444 Mich. 853, 508 N.W.2d 502 (1993)). “The prosecution must
demonstrate that the conspirators deliberated and planned the crime with the intent
to kill the victim.” Id.
In the present case, there was ample evidence for a rational trier of fact to

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conclude that Petitioner conspired with the other defendants to kill the victim. The
evidence established that Petitioner participated before, during, and after in
committing the murder. The record indicates that Warner shot Buck, who took off
running. Petitioner then directed Sampson to follow him to the gas station, as he
took off in a minivan. At the gas station, Petitioner sprayed the inside cabin of the
minivan with gasoline and then set the van on fire. Dkt. No. 7-9, pp. 53–58 (Pg. ID
No. 535–40). Buck’s charred remains were later found in the minivan. Dkt. No. 7-8,
p. 184 (Pg. ID No. 380). A few months later, Petitioner and Warner went to White’s
house looking for her. Dkt. No. 7-9, pp. 45–46 (Pg. ID No. 527–28); Dkt. No. 7-10,
pp. 175–183 (Pg. ID No. 954–62).
Petitioner’s actions indicate that he was acting in unison with Warner and
Sampson to kill Buck. From Petitioner’s active involvement throughout the entire
episode of the chasing and the shooting of Buck, a rational trier of fact could
conclude that Petitioner participated in the victim’s murder, so as to support his
conviction for conspiracy to commit murder. Cameron, 348 F. Supp. 2d at 840.
Moreover, Petitioner’s acts of setting Buck’s van on fire to conceal the murder and
later seeking out the sole witness to the murder, presumably to silence her,
established a “continuing attempt to hide the conspiracy.” This evidence of
Petitioner’s consciousness of guilt also supported an inference that Petitioner

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conspired with the others to kill the victim. Id. Petitioner is not entitled to relief on
his first claim.
B. Claim # 2. Petitioner’s Sentencing Claim.
Petitioner next contends that he is entitled to correction of his judgment of
sentence to reflect that his life sentence is eligible for parole.
The Michigan Court of Appeals reviewed Petitioner’s claim of error and
found it meritless as follows:
The judgment of sentence for each defendant accurately identifies the
conviction offense as “Conspiracy to commit 1st degree murder.” In
the column of the judgment of sentence marked “MCL citation/PACC
Code,” Cummings’s judgment specifies “750.316A[C]” and
Sampson’s judgment specifies “750.316[C].” According to the Bench
Guide: Criminal Records Reporting, MCL/PACC Charge Codes
(11th ed, 2003), “[a] conspiracy charge is listed as the PACC charge
code followed by a bracketed ‘C,’ (i.e. Conspiracy to Commit
Homicide Murder-First Degree is 750.316[C]).” Here, the judgment
of sentence for each defendant properly lists the PACC charge code
for first-degree murder, followed by a bracketed “C,” thereby
designating the conviction as one for conspiracy to commit
first-degree murder, as clearly stated on the face of the judgment of
sentence. In addition, there is nothing in the description of either
defendant’s life sentence for conspiracy to suggest that it is not
subject to parole consideration. Accordingly, remand for correction
of the judgments of sentence is not necessary.
People v. Warner, 2014 WL 2553303, at *5.
State courts are the final arbiters of state law. See Bradshaw v. Richey, 546
U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Therefore,

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claims which arise out of a state trial court’s sentencing decision are not normally
cognizable on federal habeas review, unless the habeas petitioner can show that the
sentence imposed exceeded the statutory limits or is wholly unauthorized by law.
See Vliet v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D. Mich. 2002). A sentence
imposed within the statutory limits is not generally subject to habeas review.
Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788,
797 (E.D. Mich. 1999).
The United States Supreme Court has “repeatedly held that a state court’s
interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v.
Richey, 546 U.S. 74, 76 (2005). The Michigan Court of Appeals concluded that
Petitioner’s judgment of sentence clearly states that he was given a parolable life
sentence. Petitioner=s second claim is without merit.
V. CONCLUSION
The Court will deny the petition for a writ of habeas corpus. 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

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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). When a district court rejects a habeas
petitioner’s constitutional claims on the merits, the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims to be debatable or wrong. Id. at 484. Likewise, when a district court denies a
habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claims, a certificate of appealability should issue, and an appeal of
the district court’s order may be taken, if the petitioner shows that jurists of reason
would find it debatable whether the petitioner states a valid claim of the denial of a
constitutional right, and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. 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.
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 also Millender v. Adams, 187 F.
Supp. 2d 852, 880 (E.D. Mich. 2002). The Court will also deny Petitioner leave to
appeal in forma pauperis, because the appeal would be frivolous. See Allen v.

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Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
VI. ORDER
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 leave to appeal in forma pauperis is
DENIED.

IT IS SO ORDERED.
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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