Price v. Burt et al

Filing 10

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus ; Denying Certificate of Appealability; Denying Leave to Proceed IFP. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM LARRY PRICE,
Petitioner,
CIVIL NO. 2:16-CV-11486
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT COURT

v.
TONY TRIERWEILER,1
Respondent.
________________________________/

OPINION AND ORDER (1) DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, (2) DENYING A CERTIFICATE OF
APPEALABILITY, AND (3) DENYING LEAVE TO APPEAL IN FORMA
PAUPERIS
William Larry Price, (“Petitioner”), confined at the Bellamy Creek
Correctional Facility in Ionia, Michigan, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges
his conviction and sentence, in LC No. 12–005923–FC, for armed robbery, Mich.
Comp. Laws § 750.529, carrying a concealed weapon (CCW), Mich. Comp. Laws
§ 750.227, felonious assault, Mich. Comp. Laws § 750.82, and possession of a
firearm during the commission of a felony (felony-firearm), Mich. Comp. Laws §

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The Court amends the caption to reflect the current warden of petitioner’s
incarceration.
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750.227b. Petitioner also challenges his conviction and sentence in LC No.
13–000023–FC for two counts of armed robbery, Mich. Comp. Laws § 750.529.
For the reasons stated below, the petition for a writ of habeas corpus is DENIED
WITH PREJUDICE.
I. BACKGROUND
Petitioner was convicted following a bench trial in the Wayne County
Circuit Court.
A. No. 12–005923–FC, April 19, 2011, Armed Robbery.
Dequain Brazzle used Mocospace, an online site, to sell iPhones. (Tr.
5/13/2013, pp. 10-11.). He found a potential buyer, exchanged text messages and
phone calls, and arranged a meeting to take place on April 19, 2011, to facilitate a
sale. (Id. at 11-13). The meeting was to take place in Highland Park at 5:30, when
Dequain got off of work, but then the person he was to meet said that he could not
get a ride and changed the location to Eight and Southfield, on Fenmore Street,
with a meeting time of 10:00 p.m. (Id. at 12-13, 48-49). Dequain and his nephew,
Deagerald Brazzle, drove to the intersection of Fenmore and Trojan. (Id. at 13-14).
The potential buyer was petitioner (as Dequain and Deagerald both identified him
in court). (Id. at 19-20, 86). Dequain also recognized petitioner from the picture on
the Mocospace website. (Id. at 20).
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When petitioner asked if he could see the phone, to determine if it worked,
Dequain took the phone out of the box and handed it to petitioner. (Id. at 22).
Upon taking the phone, petitioner said “thank you,” which confused Dequain, until
he saw petitioner pull a black revolver partially out of his pocket, which he showed
to Dequain. (Id. at 22-24).
Dequain backed away from petitioner, went around to the other side of the
car and attempted to get in, as petitioner pulled the gun all the way out of his
pocket and then aimed it down, but toward Dequain. (Id. at 23-24, 30). As
Dequain got into the car, he heard shots fired from behind him. (Id. at 25-27).
Dequain heard “three max” shots; none hit him, but one pierced the back
driver’s-side tire. (Id. at 27-28, 30).
Dequain and his nephew then drove to a nearby gas station where they called
the police. (Id. at 35). About a week later, on April 26, 2011, Dequain spoke with
Officer Roland Brown, giving him a description of the perpetrator and immediately
picking petitioner out from a photographic array. (Id. at 36-40). On April 29,
2011, Deagerald Brazzle picked petitioner from a photographic array and testified
at trial that he “instantly knew who it was.” (Id. at 94).
B. No. 13–000023–FC, May 28, 2011, Two Counts Armed Robbery.
Martell Jones bought phones which he would sell to Arthur Shamayev to be
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refurbished and resold. (Id. at 119-120). Arthur Shamayev and Alexander
Dembitsky were friends. (Id. at 119). Jones called Shamayev on May 28, 2011,
and told him he knew someone who was selling iPhones. So, Shamayev went with
Dembitsky to pick up Jones and go and meet with the person selling the phones.
(Id. at 120-121). They met three men on a street in Detroit. (Id. at 123-125). One
of the three individuals asked Shamayev and Jones to pull their shirts up. (Id. at
125). They pulled their shirts up and walked up to the three men. (Id.).
When Shamayev and Jones walked up to the men, petitioner pulled up his
waistband, showed the handle of a gun and asked “where is the money at?” (Id. at
127). Shamayev told petitioner that the money was “in the car.” He and Jones
walked to the car, while petitioner and the two others followed. (Id. at 128).
Shamayev opened the car door and told petitioner that the money was on the door
pocket. Petitioner took money totaling $1,700 out of the door. (Id. at 128-130).
Petitioner and his cohorts also took Shamayev’s and Jones’s phones. (Id. at 131).
Petitioner tried to take Dembitsky’s phone, but he refused to give up his phone
when he determined that the gun he saw in petitioner’s waistband was fake. (Id. at
138, 177). Petitioner then said, “Let’s pop him” before they all ran across the
street and through the backyards. (Id. at 177, 179). Shamayev and his companions
got in the car and called the police from Dembitsky’s phone. (Id. at 179).
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Detroit Police Officer Roland Brown investigated both robberies. (Tr.
5/14/2013, p. 75). He found that the cell phone number used by the perpetrator in
both robberies was the same number that belonged to a woman. Brown then
obtained a list of names associated with her address and found one individual
whose physical characteristics matched the robber’s appearance in both cases. He
then got that man’s picture and used it for the photographic arrays. (Id. at 75-79).
Shamayev identified petitioner in a photographic array as the person who
robbed him, saying petitioner “looks like the guy who robbed me.” (Tr. 5/13/2011
pp. 135-136, 153). Dembitsky also identified petitioner in that lineup, saying
“Number two kind of looks like him.” (Id. at 174-175). Jones also identified
petitioner in a photographic lineup. (Tr. 5/15/2011, pp. 34-35).
Shamayev also identified petitioner in court by saying “I think so” when
asked if petitioner was the one who robbed him. Shamayev later testified
“Honestly, that’s the guy who took my money right there,” referring to petitioner.
(Tr. 5/13/2013, pp. 125, 162). Dembitsky testified that petitioner “kind of looks”
like the man who reached into the car, but that the person at the time had a
reddish-looking beard, and “now he doesn’t, so it’s kind of hard for me to judge.”
(Id. at 170). Dembitsky further testified that on May 31, 2011, he was shown a
photographic lineup and identified petitioner as the man who took money from the
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car door. (Id. at 174-176).
Petitioner’s conviction was affirmed on appeal. People v. Price, Nos.
12–005923–FC, 13–000023–FC 3197444, 2014 WL 6068393 (Mich. Ct. App.
Nov. 13, 2014); lv. den. 497 Mich. 1014, 862 N.W.2d 204 (2015).
Petitioner filed a petition for a writ of habeas corpus, raising the following
claims:
I.

Mr. Price was denied his constitutional due process rights
by the admission of prior bad acts evidence which rendered
his entire trial fundamentally unfair.

II.

Mr. Price was denied his state and federal due process
rights in case # 13-0023-01, where his conviction was not
supported by sufficient evidence to establish beyond a
reasonable doubt that he was the person who committed the
crime.

III.

Mr. Price’s rights to due process under the United States
Constitution were violated, where the state court incorrectly
scored 15 points for Offense Variable 10 of the sentence
guidelines.

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
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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 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)).
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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.” (Id. 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).
III. DISCUSSION
A. Claim # 1. The prior bad acts evidence claim.
Petitioner alleges that the trial court erred in permitting the prosecution to
introduce evidence that petitioner had been involved in multiple robberies and by
consolidating the two pending robbery cases to be heard together at his bench
trial. It is petitioner’s contention that the other acts evidence was more prejudicial
than probative and the consolidation of the two cases made it more likely that he
would be convicted in both cases.
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). A federal court is limited in federal habeas review to deciding whether a
state court conviction violates the Constitution, laws, or treaties of the United
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States. Id. Thus, errors in the application of state law, especially rulings regarding
the admissibility of evidence, are usually not questioned by a federal habeas court.
Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000); see also Stephenson v.
Renico, 280 F. Supp. 2d 661, 666 (E.D. Mich. 2003).
Petitioner’s claim that the state court violated M.R.E. 404(b) by admitting
this evidence is non-cognizable on habeas review. Bey v. Bagley, 500 F.3d 514,
519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme Court’s habeas powers did
not permit Court to reverse state court conviction based on their belief that the
state trial judge erred in ruling that prior injury evidence was admissible as bad
acts evidence under California law); Dowling v. U.S., 493 U.S. 342, 352-53
(1990)(admission at defendant’s bank robbery trial of “similar acts” evidence that
he had subsequently been involved in a house burglary for which he had been
acquitted did not violate due process). The admission of this “prior bad acts” or
“other acts” evidence against petitioner at his state trial does not entitle him to
habeas relief, because there is no clearly established Supreme Court law which
holds that a state violates a habeas petitioner’s due process rights by admitting
propensity evidence in the form of “prior bad acts” evidence. See Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).

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Moreover, it is not clear that the evidence that petitioner complains about
would be excluded under 404(b). Background evidence, often referred to as res
gestae, does not implicate the provisions of 404(b). United States v. Hardy, 228
F.3d 745, 748 (6th Cir. 2000). Background evidence consists of other acts which
are “inextricably intertwined” with the charged offenses or those acts, “the telling
of which is necessary to complete the story of the charged offense.” Id. The Sixth
Circuit explained that:
“Proper background evidence has a causal, temporal or spatial
connection with the charged offense. Typically, such evidence is a
prelude to the charged offense, is directly probative of the charged
offense, arises from the same events as the charged offense, forms an
integral part of a witness’s testimony, or completes the story of the
charged offense.”
United States v. Hardy, 228 F.3d at 748.
As the Michigan Court of Appeals indicated in rejecting petitioner’s claim,
“Here, the prior bad acts evidence was offered to show a scheme or system in
doing an act, which constitutes a proper purpose.” People v. Price, 2014 WL
6068393, at *1. The Court explained:
Here, the similarities between the two cases are striking. In both
cases, the victims were prompted by ads on the Mocospace social
networking site to buy or sell cell phones. In both instances, Price
changed the location of the transaction at the last minute and was
accompanied by at least one other individual. And in both cases,
Price secured control over the victims before producing a firearm and
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completing the robbery. In the first case, Price did this by taking
physical possession of the phone. In the second case, Price requested
that the victims “lift their shirts” to show they were not carrying
firearms. Price then proceeded to pull a gun in the first case, and
simply display a gun in the second case. These factors go beyond a
general similarity and evidence common features of a consistently
employed plan. Moreover, we find that the probative value of such
evidence, was not “substantially outweighed by unfair prejudice.”
Accordingly, the testimony was properly admitted.
People v. Price, 2014 WL 6068393, at *2. (footnote omitted).
Because the first robbery was “inextricably intertwined” with the
subsequent robberies, the admission of this evidence did not deprive petitioner of
a fair trial.
Furthermore, appraisals of the probative and prejudicial value of evidence
are entrusted to the sound discretion of a state trial court judge. A federal court
considering a habeas petition must not disturb that appraisal absent an error of
constitutional dimensions. See Dell v. Straub, 194 F. Supp. 2d 629, 645 (E.D.
Mich. 2002). Petitioner is not entitled to habeas relief on his first claim.
B. Claim # 2. The sufficiency of the evidence claim.
Petitioner alleges that the testimony given by Shemayev and Dembitsky did
not prove beyond a reasonable doubt the identity of the perpetrator. Therefore,
petitioner contends that his conviction was not supported by sufficient evidence to
establish beyond a reasonable doubt that he was the person who committed the
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crime.
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
reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 318 (1979). A court need not “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). 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).
A federal habeas court may not overturn a state court decision that rejects a
sufficiency of the evidence claim merely because the federal court disagrees with
the state court’s resolution of that claim. Instead, a federal court may grant habeas
relief only if the state court decision was an objectively unreasonable application
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of the Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (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. Indeed, for a federal habeas
court reviewing 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, 566 U.S. 650, 656 (2012). A state court’s
determination that the evidence does not fall below that threshold is entitled to
“considerable deference under [the] AEDPA.” Id.
Finally, on habeas review, a federal court does not reweigh the evidence or
redetermine the credibility of the witnesses whose demeanor was observed at trial.
Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the
factfinder to weigh the probative value of the evidence and resolve any conflicts
in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). A habeas court
therefore must defer to the fact finder for its assessment of the credibility of
witnesses. Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003); see also
Butzman v. U.S., 205 F.2d 343, 349 (6th Cir. 1953)(in a bench trial, credibility of
witnesses is a question for trial judge).

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The Michigan Court of Appeals reasonably found that there was sufficient
evidence to sustain petitioner’s conviction, as follows:
At trial, the court noted that the case turns on identity. Establishing
the identity of the perpetrator is an essential element in a criminal
prosecution. The trial court emphasized that all of the witnesses
identified Price. Witness identification of a defendant “may be
sufficient to support a conviction of a crime.” Regarding the May 28,
2011 robbery specifically, the court indicated that Alexander
Dembitsky and Arthur Shamayev’s identifications had the mark of
reliability. The court indicated that Dembitsky “was very careful not
to overstate his memory or his testimony,” which increased his
credibility and the reliability of his testimony. Additionally, the court
noted that Martell Jones’s focus during the crime was on Price, that
Jones also did not embellish his testimony, and reasoned that Jones’s
identification provided a strong affirmation of Dembitsky and
Shamayev’s less than certain identifications of Price. Thus, the court
found the identification testimony of all three witnesses to be
credible. Deferring to the credibility judgments of the trial court as
trier of fact, we conclude that sufficient evidence was adduced to
prove beyond a reasonable doubt that Price committed the May 28,
2011 robbery.
People v. Price, 2014 WL 6068393, at *2. (footnotes omitted).
The trial court judge found the testimony given by the victims to be
credible. Although petitioner challenges the certainty of the identification given
by the victims, which indicated that he was the perpetrator, it is up to the trier of
fact to gauge the accuracy of the identification. See Foxworth v. St. Amand, 570
F.3d 414, 426-28 (1st Cir. 2009)(Massachusetts state court did not “unreasonably
apply” clearly established Federal law, in finding that sufficient evidence
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supported habeas petitioner’s state-court conviction for second-degree murder,
even though one eyewitness identification was the only evidence that directly
implicated petitioner, and eyewitness admitted he was only “80 percent sure” of
his identification; it was up to jury to gauge the accuracy of the identification, and
there was no principled way to label jury’s choice to find the identification
accurate as irrational, as eyewitness selected petitioner’s picture from each of two
separate, constitutionally adequate photo arrays in close proximity to the time of
the murder, and petitioner’s subsequent expression of less than complete certitude
came nearly a year later). Petitioner is not entitled to relief on his sufficiency of
the evidence claim.
C. Claim # 3. The sentencing claim.
In his third claim, petitioner alleges that his due process rights were violated
when the state court scored 15 points for Offense Variable 10 of the Michigan
Sentencing Guidelines.
Petitioner’s claim that the state trial court incorrectly scored his sentencing
guidelines range under the Michigan Sentencing Guidelines is non-cognizable on
habeas review, because it is a state law claim. See Tironi v. Birkett, 252 F. App’x
724, 725 (6th Cir. 2007); Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003);
Robinson v. Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich. 2001). Errors in the
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application of state sentencing guidelines cannot independently support habeas
relief. See Kissner v. Palmer, 826 F.3d 898, 904 (6th Cir. 2016). Petitioner’s
claim that the state trial court improperly scored 15 points for Offense Variable 10
of the sentencing guidelines would thus not entitle him to habeas relief, because
such scoring does not violate any of the petitioner’s federal due process rights.
Austin v. Jackson, 213 F.3d 298, 301 (6th Cir. 2000). Petitioner is not entitled to
relief on his third claim.
The Court denies the petition for a writ of habeas corpus. The Court also
denies a certificate of appealability. 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). 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. “The district court
must issue or deny a certificate of appealability when it enters a final order
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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 denies petitioner a
certificate of appealability because reasonable jurists would not find this Court’s
assessment of petitioner’s claims to be debatable or wrong. Johnson v. Smith, 219
F. Supp. 2d 871, 885 (E.D. Mich. 2002). The Court also denies petitioner leave to
appeal in forma pauperis, because the appeal would be frivolous. Allen v. Stovall,
156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
IV. CONCLUSION
Accordingly, the Court DENIES WITH PREJUDICE the petition for a
writ of habeas corpus. The Court further DENIES a certificate of appealability
and leave to appeal in forma pauperis.
SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: May 29, 2018

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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on
May 29, 2018.

s/Deborah Tofil
Case Manager

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