Ursery v. Haas

Filing 10

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANDREW LEE URSERY, #831666,
Case No. 16-cv-11237

Petitioner,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
RANDALL HAAS,

UNITED STATES MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS

Respondent.
/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED ON APPEAL IN FORMA PAUPERIS
I. Introduction
Michigan prisoner Andrew Lee Ursery (“Petitioner”) has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was
convicted of second-degree murder, MICH. COMP. LAWS § 750.317, two counts of
assault with intent to murder, MICH. COMP. LAWS § 750.83, discharging a firearm in
or at a building, MICH. COMP. LAWS § 750.234b, and possession of a firearm during
the commission of a felony (“felony firearm”), MICH. COMP. LAWS § 750.227,
following a jury trial with co-defendant Johnny Lerue Davis Jr. in the Wayne
County Circuit Court. He was sentenced to 43 to 66 years 8 months imprisonment on
the murder conviction, concurrent terms of 15 to 30 years imprisonment on the

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assault convictions, a concurrent term of 2 to 4 years imprisonment on the firearm
discharge conviction, and a consecutive term of 2 years imprisonment on the felony
firearm conviction.
In his pleadings, Petitioner raises claims concerning the sufficiency of the
evidence to support his convictions and the admission of crime scene photographs
which showed a deceased victim memorial. For the reasons that follow, the Court
denies with prejudice the habeas petition. The Court also denies a certificate of
appealability and denies leave to proceed in forma pauperis on appeal.
II. Facts and Procedural History
Petitioner’s convictions arise from a shooting that resulted in the death of one
man and injuries to two other men outside of a club in Ecorse, Michigan on October
7, 2012. The Michigan Court of Appeals described the relevant 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), as follows:
This appeal arises from the death of Chanel Weddington and gunshot
wounds Damond Williams and Billy Parker sustained outside of an
after-hours club known as “The Place,” in the city of Ecorse, during the
early morning hours of October 7, 2012. Diamond Pitts brought
defendants, Patrice Jackson (“Patrice”), and a man identified at trial
only as “Davonte” to The Place, and parked on the grass in a field
across the street from the club. Defendants went to the club because
they had a “beef” with people there. According to the testimony at trial,
defendants had earlier stated that they had guns, and Ursery had shown
a silver gun to the group. Regardless, a security guard and the club
owner’s husband (Patrick Wheeler) both testified that everyone is
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patted down when they enter and turned away if weapons are found.
Later, the security guard and Wheeler observed an altercation on the
dance floor involving both women and men, including defendants. The
security guard testified that defendants were escorted outside for five
minutes, and then allowed to reenter. Wheeler also testified that, when
the same men got into another argument, he closed the club and
escorted patrons outside. At that time, the security guard heard people
saying that the men involved in the fight were about to start shooting.
Shaquetta King saw her cousin, Parker, throw a punch at Davonte, and
she also saw Joseph Elias standing in the street with his shirt off and a
gun in his hand. The security guard testified that he saw defendants
walk across the street toward the field. King testified that Davonte also
walked there.
As two patrons, Raphael Reed and Vick Bullard, were leaving and
walking to their car parked on a street slightly south of the field, Reed
saw Davis and Ursery standing near a white car in the field. Reed
testified that, as he started to put his key in his car door, he dropped it,
bent over to pick it up, and, at the same time, heard gunshots. Reed
recalled that he took cover by a truck, but looked toward the field ten
feet away. Reed testified that he saw Davis and Ursery, who he had
known before, along with another man, shooting toward the front door
of the club. Reed testified that he also saw Ursery fire toward a man
running down Francis Street.
Williams testified that he was talking to Weddington outside on the
sidewalk in front of the club when he was shot in the stomach. Williams
did not see who shot him, but stated that the gunshots came from the
field across the street from the club and he saw the flashes from the
muzzles of two guns. Williams testified that he watched Weddington
suffer the fatal shot to her chest while she was standing right next to
him with her back toward the field.
Parker testified that patrons were exiting the club when he arrived at the
scene and that he had walked to the middle of 12th Street when the
shooting began. Although he ducked behind a car, he was shot in the
stomach and hip. Parker testified that he saw more than one shooter, but
could not identify them.
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Roy Miller, a River Rouge police officer, estimated that 40 gunshots
were fired. Dean Molner, a Detective Sergeant with the Michigan State
Police Department and a firearms and tool marks expert, identified four
different groups of casings found, and concluded that there was a
possible maximum of four guns used to fire the bullets, but it was also
possible that less than four weapons were used. Bullet fragments were
recovered in front of The Place and in a car parked in front of the club,
and bullet holes were observed in three vacant homes down the street.
People v. Ursery, No. 316367, 2014 WL 4495219, *1–2 (Mich. Ct. App. Sept. 11,
2014) (unpublished).
Following his convictions and sentencing, Petitioner filed an appeal of right
with the Michigan Court of Appeals raising the claims presented on habeas review.
The court denied relief on those claims and affirmed his convictions. Id. at *2-5.
Petitioner filed an application for leave to appeal with the Michigan Supreme Court,
which was denied in a standard order. People v. Ursery, 861 N.W.2d 10 (Mich.
2015).
Petitioner thereafter filed his federal habeas petition. He raises the following
claims as grounds for relief:
I.

The prosecution failed to produce legally sufficient
evidence to identify him as the shooter or prove his guilt
beyond a reasonable doubt.

II.

He was denied a fair trial by the introduction of a
photograph of a memorial established at the scene, which
was more prejudicial than probative because it elicited
sympathy to the decedent.

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Respondent has filed an answer to the petition contending that it should be denied.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241 et seq., govern this case because
Petitioner filed his habeas petition after the AEDPA’s effective date. Lindh v.
Murphy, 521 U.S. 320, 336 (1997). 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 proceeding.

28 U.S.C. § 2254(d) (1996).
“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
[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,

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535 U.S. 685, 694 (2002).
“[T]he ‘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 ‘objectively
unreasonable.’ ” 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 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)). The Supreme Court has
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.
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63, 75 (2003)). Pursuant to § 2254(d), “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 habeas relief in federal
court, a state prisoner must 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.” Id.; see also
White v. Woodall, 134 S. Ct. 1697, 1702 (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, 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, 136 S. Ct. 1149, 1152 (2016).
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 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
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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. Furthermore, it “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.
The 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 it cannot
provide the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48–49
(2012) (per curiam); see also Lopez v. Smith, 135 S. Ct. 1, 2 (2014) (per curiam).
The decisions of lower federal courts, however, may be useful in assessing the
reasonableness of the 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. 354, 359 (E.D. Mich. 2002).
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
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clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360–61 (6th Cir.
1998). Lastly, habeas review is “limited to the record that was before the state
court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
IV. Discussion
A. Sufficiency of the Evidence Claims
Petitioner first asserts that he is entitled to habeas relief because the
prosecutor failed to present sufficient evidence that he committed the crimes and
failed to present sufficient evidence to support his discharging a firearm in or at a
building. Respondent contends that these claims lack merit.
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). The
question on a sufficiency of the evidence claim 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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson standard must be
applied “with explicit reference to the substantive elements of the criminal offense
as defined by state law.” Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006)
(quoting Jackson, 443 U.S. at 324 n.16).
A federal habeas court views this standard through the framework of 28
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U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus,
under the AEDPA, challenges to the sufficiency of the evidence “must survive two
layers of deference to groups who might view facts differently” than a reviewing
court on habeas review—the factfinder at trial and the state court on appellate
review—as long as those determinations are reasonable. Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009). “[I]t is the responsibility of the jury—not the court—to
decide what conclusions should be drawn from the evidence admitted at trial.”
Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). “A reviewing court does not
re-weigh the evidence or re-determine the credibility of the witnesses whose
demeanor has been observed by the trial court.” Matthews v. Abramajtys, 319 F.3d
780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).
Accordingly, the “mere existence of sufficient evidence to convict . . . defeats a
petitioner’s claim.” Matthews, 319 F.3d at 788–89.
Under Michigan law, the elements of second-degree murder are: (1) a death,
(2) caused by an act of the defendant, (3) with malice, and (4) without justification
or excuse. People v. Goecke, 579 N.W.2d 868, 878 (Mich. 1998) (citing People v.
Bailey, 549 N.W.2d 325, 331 (Mich. 1996)); MICH. COMP. LAWS § 750.317. Malice
is defined as the intent to kill, the intent to cause great bodily harm, or the intent to
perform an act in wanton and willful disregard of the likelihood that the natural
tendency of such behavior is to cause death or great bodily harm. Id. at 878 (citing
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People v. Aaron, 299 N.W.2d 304, 326 (Mich. 1980)). Malice may be inferred from
evidence that a defendant intentionally set in motion a force likely to cause death or
great bodily harm. People v. Djordjevic, 584 N.W.2d 610, 612 (Mich. App. 1998)
(citing Aaron, 299 N.W.2d at 326). Malice may also be inferred from the use of a
deadly weapon. People v. Carines, 597 N.W.2d 130, 136 (Mich. 1999).
The elements of assault with intent to commit murder are: (1) an assault, (2)
with an actual intent to kill, (3) which if successful, would make the killing murder.
See Warren v. Smith, 161 F.3d 358, 361 (6th Cir. 1998) (listing Michigan cases);
People v. Ericksen, 195, 793 N.W.2d 120, 122 (Mich. App. 2010); MICH. COMP.
LAWS § 750.83. The elements of discharging a firearm in or at a building are that
the defendant: (1) discharged a firearm, (2) at a building, (3) which the defendant
knew or had reason to believe was an occupied structure or a dwelling. People v.
Wilson, 592, 585 N.W.2d 24, 26 (Mich. App. 1998); MICH. COMP. LAWS
§ 750.234b. The elements of felony firearm are: (1) the defendant possessed a
firearm, (2) during the commission of, or an attempt to commit, a felony offense.
People v. Akins, 675 N.W.2d 863, 873 (Mich. App. 2003) (quoting People v. Avant,
597 N.W.2d 864, 869 (Mich. App. 1999)); MICH. COMP. LAWS § 750.227b.
The prosecution must prove every element of a charged offense beyond a
reasonable doubt. This burden includes proving that the defendant is the person
who committed the crime. People v. Oliphant, 250 N.W.2d 443, 449 (Mich. 1976);
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People v. Kern, 149 N.W.2d 216, 218 (Mich. App. 1967). Direct or circumstantial
evidence and reasonable inferences arising from that evidence may constitute
satisfactory proof of the elements of an offense, People v. Nowack, 614 N.W.2d 78,
81 (Mich. 2000); People v. Jolly, 502 N.W.2d 177, 180 (Mich. 1993); see also
People v. Johnson, 381 N.W.2d 740, 742 (Mich. App. 1985), including identity,
Kern, 149 N.W.2d at 218, and intent or state of mind. People v. Dumas, 563
N.W.2d 31, 34–35 (Mich. 1997).
Applying the foregoing standards, the Michigan Court of Appeals denied
relief on these claims concluding that the prosecution presented sufficient evidence
to support Petitioner=s convictions. Ursery, 2014 WL 4495219 at *2–3. The court
explained in relevant part:
Defendants first argue that the evidence was insufficient to prove that
they were the perpetrators of the crimes. However, there was
evidence presented that defendants went to the club because they had
a “beef” with people there, that both defendants had guns earlier that
morning and were involved in an altercation inside the club, and that
right before the shooting, they were seen walking toward the field
where the shots were fired. Moreover, they were identified by an
eyewitness as the shooters. Given that Reed knew defendants before
the shooting and saw them shooting from a close distance, and in
viewing all of the evidence in a light most favorable to the
prosecution, sufficient evidence was presented to prove that
defendants were the perpetrators of the crimes for which they were
convicted. Meshell, 265 Mich App at 619.
Ursery also contends that there was insufficient evidence to support
his conviction of discharging a firearm in or at a building because the
structures that sustained bullet holes were vacant residences. Pursuant
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MCL 750.234b(1) and (5)(b), to be found guilty of discharging a
firearm at an occupied structure, a defendant must intentionally
discharge a firearm at a facility he or she knows or has reason to
believe is a facility in which one or more individuals are present.
Although the term “at” is not defined in the statute, this Court may
consult the dictionary definition. People v. Denio, 454 Mich 691, 699;
564 NW2d 13 (1997). In using the word “at” to indicate a direction,
Random House Webster's College Dictionary (1997) defines the
word “at” as “toward.”
Viewing the evidence in a light most favorable to the prosecution, the
evidence was sufficient to enable a rational trier of fact to find that
Ursery fired a gun multiple times toward a building occupied by
numerous patrons. Evidence was presented that Ursery was inside the
club before the shooting occurred. As most of the patrons exited the
club when it was closing, Reed testified that he saw Ursery fire a
handgun from the field directly across the street from the club in the
direction of the front of the club. Weddington and Williams were both
standing on the sidewalk in front of the club when they were shot. The
fact that bullet holes were found in other vacant homes down the
street from the club does not negate the evidence that Ursery, after
having been inside the club with other patrons, fired gunshots toward
the club while people were exiting the building. Accordingly,
sufficient evidence was presented that Ursery intentionally
discharged a firearm at a structure he knew or had reason to believe
was occupied by more than one person.
Id. at *3 (footnote omitted).
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. First, the prosecution
presented sufficient evidence to establish Petitioner’s identity as one of the
perpetrators of the shooting. The evidence presented at trial showed that Petitioner
and his co-defendant had a dispute with people at the club, that they both had guns

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earlier that day, that they were involved in an altercation inside the club, and that
right before the shooting, they were seen walking toward the field where the shots
were fired. Raphael Reed, an eyewitness who was familiar with Petitioner and his
co-defendant, also identified them as the shooters. Viewed in a light most favorable
to the prosecution, such testimony was sufficient for the jury to find beyond a
reasonable doubt that Petitioner was one of the perpetrators of the shooting and that
he acted with the requisite intent so as to support his second-degree murder, assault
with intent to commit murder, discharge of a firearm in or at a building, and felony
firearm convictions.
Second, the prosecution presented sufficient evidence to support Petitioner’s
discharging a firearm in or at a building conviction specifically. The trial testimony,
particularly that of Raphael Reed, showed that Petitioner and his co-defendant fired
gunshots toward the front door of the club as patrons were exiting the club.
Additionally, two of the victims were standing outside in front of the club when
they were shot. Viewed in a light favorable to the prosecution, such evidence was
sufficient for the jury to find beyond a reasonable doubt that Petitioner intentionally
fired a gun at a building he knew or had reason to believe was occupied so as to
support his discharging a firearm in or at a building conviction.
Petitioner challenges the jury’s credibility determinations and the inferences
that the jury drew from the evidence presented at trial. However, it is the job of the
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fact-finder at trial, not a federal habeas court, to resolve such evidentiary conflicts.
Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002);
Walker v. Engle, 703 F.2d 959, 969–70 (6th Cir. 1983) (“A federal habeas corpus
court faced with a record of historical facts that supports conflicting inferences
must presume—even if it does not affirmatively appear in the record—that the trier
of fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.”). The jury’s verdict, and the Michigan Court of Appeals’ decision
affirming that verdict, were reasonable. The evidence at trial, viewed in a light
favorable to the prosecution, established beyond a reasonable doubt that Petitioner
committed the crimes of which he was convicted. Habeas relief is not warranted on
these claims.
B. Evidentiary Claim
Petitioner also asserts that he is entitled to habeas relief because the trial
court erred in admitting crime scene photographs which depicted a memorial to the
deceased victim of the shooting. Respondent contends that this claim is barred by
procedural default, at least in part, and that it lacks merit.
It is well-settled that federal courts on habeas review “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
15

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. In this case, the procedural default issue is
intertwined with the substantive issues and the substantive issues are easier to
resolve. Consequently, the interests of judicial economy are best served by
addressing the merits of this claim.
Alleged trial court errors in the application of state law are generally not
cognizable as grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S.
62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions”); Serra v. Michigan Dept. of
Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). “Trial court errors in state
procedure and/or evidentiary law do not rise to the level of federal constitutional
claims warranting relief in a habeas action, unless the error renders the proceeding
so fundamentally unfair as to deprive the petitioner of due process under the
Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004)
(quoting Estelle, 502 U.S. at 69–70); see also Wynne v. Renico, 606 F.3d 867, 871
(6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514, 519–20 (6th Cir. 2007)); Bugh
v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
The Michigan Court of Appeals denied relief on this claim finding that the
16

trial court erred in admitting a close-up photograph depicting the memorial, but that
such error was harmless, and that the trial court did not err in admitting other
photographs of the building which were relevant to depict lighting, the physical
structures at the scene, and the vantage points of the witnesses. Ursery, 2014 WL
4495219 at *4–5. The court explained in relevant part:
Ursery argues that the photographs of the memorials were not
relevant and both defendants argue the probative value of the
photographs was substantially outweighed by their prejudicial effect.
Over defendants’ objections, the trial court allowed the admission of a
photograph of a poster tied to the fence in front of the club that
depicted signatures and messages from acquaintances of
Weddington. At trial, the police officer who took the photograph
testified that this specific picture was taken to identify any possible
people that may need to be interviewed for the purpose of identifying
the shooters. Although the poster was relevant to show the
investigative tools the police may have used to find witnesses, and the
prosecution emphasized that the police had a difficult time getting
witnesses to cooperate, relying on Crime Stoppers and anonymous
tips to track down defendants, any probative value of this photograph
was minimal compared to the prejudicial effect of showing a poster
that depicts messages from friends and family of the murder victim.
The admission of this photograph was not substantially necessary or
instructive to show material facts or conditions, such as the lighting
conditions or the location where witnesses or perpetrators were
situated at the time of the incident. Therefore, the trial court erred in
allowing the admission of the close-up photograph of the poster
memorializing Weddington.
Notwithstanding the error in admitting this photograph, its admission
into evidence was not outcome-determinative given the
overwhelming evidence presented that defendants were the shooters.
Defendants’ contentions that they were denied a fair trial by the
admission of this photograph fail.
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The trial court did not err in allowing the admission of separate
photographs of the building, which also contained items
memorializing Weddington. The lighting outside of the building and
the location of the fence and sidewalk in relation to the field across
the street were important issues at trial. These photographs of the
building were relevant to show the vantage points of the witnesses,
who saw gunfire, and Reed, who identified defendants as the
shooters. Again, so long as the probative value outweighs any
prejudicial effect, photographs that are admissible for a proper
purpose, such as to prove where the victims and shooters were located
and the lighting conditions at the time of the shooting, should not be
excluded even if they contain other evidence that may tend to arouse
the passion of the jury. Eddington, 387 Mich at 562–63.
Id. at *5.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts.1 First, to the extent that
Petitioner asserts a violation of the Michigan Rules of Evidence or other state law,
he fails to state a claim upon which relief may be granted. Federal habeas relief is
unavailable for perceived violations of state law. Estelle, 502 U.S. at 72. State
courts are the final arbiters of state law and federal courts will not intervene in such
matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326,
328 (6th Cir. 1987); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A]
state court’s interpretation of state law, including one announced on direct appeal of

1

The Court notes that it would reach the same result under a de novo standard of
review.
18

the challenged conviction, binds a federal court sitting on habeas review”); Sanford
v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002).
Second, Petitioner fails to establish that the admission of the disputed
photographs violated his due process rights and denied him a fair trial. The
photographs were relevant under state law. The close-up photograph of the
memorial was relevant to the police investigation of the crime and the other
photographs of the building were relevant to the lighting, the structures at the crime
scene, and the vantage points of the eyewitnesses. The Supreme Court has not ruled
that the admission of a crime scene photograph which depicts a victim memorial
violates due process. Rather, the Supreme Court has stated that just because a
relevant photograph “is shocking to the sensibilities of those in the courtroom” does
not alone “render its reception a violation of due process.” Lisenba v. People of the
State of California, 314 U.S. 219, 228 (1941).
Moreover, the United States Court of Appeals for the Sixth Circuit has held
that a challenge to the admission of a gruesome photograph does not present a
question of constitutional magnitude. See Cooey v. Coyle, 289 F.3d 882, 893–94
(6th Cir. 2002) (citing Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir. 1997));
see also Franklin v. Bradshaw, 695 F.3d 439, 456–57 (6th Cir. 2012) (finding that
admission of 18 autopsy photographs of victims did not render state criminal trial
fundamentally unfair); Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2005)
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(affirming district court’s denial of habeas relief on claim challenging the
admission of victim photographs which refuted the petitioner’s account of the
victim’s death); Skrzycki v. Lafler, 347 F. Supp. 2d 448, 455 (E.D. Mich. 2004)
(“The admission of relevant photographs of a crime scene or a victim, even if
gruesome, does not deprive a criminal defendant of a fair trial.”).
Moreover, to the extent that the admission of any photographs depicting the
memorial was erroneous and could implicate due process, such error was harmless
beyond a reasonable doubt. For purposes of federal habeas review, a constitutional
error that implicates trial procedures is considered harmless if it did not have a
“substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Fry v. Pliler, 551 U.S.
112, 117–18 (2007) (confirming that Brecht standard applies in “virtually all”
habeas cases); O’Neal v. McAninch, 513 U.S. 432, 445 (1995) (habeas court should
grant petition if it has “grave doubt” about whether trial error had substantial and
injurious effect or influence upon the jury’s verdict); Ruelas v. Wolfenbarger, 580
F.3d 403 (6th Cir. 2009) (ruling that Brecht is “always the test” in this circuit).
In this case, while the depictions of the memorial may have garnered some
sympathy for the victim, they did not have a substantial and injurious effect or
influence on the jury’s verdict given the significant evidence of Petitioner’s guilt
presented at trial. Such evidence included testimony about Petitioner’s dispute with
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people at the club, his actions at the club, and his possession of a firearm near the
time of the shooting, as well as the eyewitness identification of Petitioner and his
co-defendant as the shooters. Petitioner fails to establish that the admission of the
photographs violated due process or otherwise rendered his trial fundamentally
unfair. Habeas relief is not warranted on this claim.
V. Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to
federal habeas relief on the claims contained in his petition. Accordingly, the Court
DENIES WITH PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal this decision, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of
appealability may issue only if the petitioner makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief
on the merits, the substantial showing threshold is met if the petitioner demonstrates
that reasonable jurists would find the court’s assessment of the constitutional claim
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). “A petitioner
satisfies this standard by demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). The Court concludes that Petitioner fails to
make a substantial showing of the denial of a constitutional right as to his habeas
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claims. Accordingly, the Court DENIES a certificate of appealability.
Lastly, the Court DENIES Petitioner leave to proceed in forma pauperis on
appeal as an appeal cannot be taken in good faith. See FED. R. APP. P. 24(a).
IT IS SO ORDERED.
/s/Gershwin A Drain
GERSHWIN A. DRAIN
United States District Judge
Dated: August 2, 2017

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