Marks v. Winn
OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Devaughn A. Marks., DENYING a Certificate of Appealability and DENYING Leave to Appeal in Forma Pauperis Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DEVAUGHN A. MARKS,
Case No. 16-11927
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
This is a petition for a writ of habeas corpus filed by a state prisoner under 28 U.S.C.
§ 2254. After a jury trial in the Washtenaw Circuit Court, Petitioner Devaughn Marks was
convicted of armed robbery, MICH. COMP. LAWS § 750.529, conspiracy to commit armed
robbery, MICH. COMP. LAWS § 750.157a, and resisting and obstructing a police officer. MICH.
COMP. LAWS § 750.81d(1). Petitioner was sentenced as a fourth-time habitual felony
offender to 15 to 30 years for the armed robbery and conspiracy convictions and 16 to 24
months for the resisting or obstructing conviction.
The petition raises four claims: (1) Petitioner’s trial counsel was ineffective for failing
to object to the victim identifying him at trial, (2) the prosecutor committed misconduct by
distorting the burden of proof during closing argument, (3) Petitioner was denied the
effective assistance of trial and appellate counsel when his attorneys failed to challenge the
jurisdiction of the trial court, and (4) Petitioner’s Sixth Amendment right to a jury trial was
violated by the trial court scoring the sentencing guidelines based on facts not found
beyond a reasonable doubt by the jury. The court will deny the petition because review of
all of Petitioner’s claims is barred by his procedural default, having failed to raise them in
the state courts during his appeal of right. The court will also deny a certificate of
appealability, and deny leave to appeal in forma pauperis.
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):
On November 9, 2009, Brahim Brucetta was working for New York Pizza
Depot. At approximately 10:00 p.m., he was sent to deliver a pizza to an
apartment. He knocked on the door to the apartment, which appeared to be
unoccupied, and was attempting to call his employer when defendant came
up behind him and put a gun to his head. Defendant forced him into another
apartment, where his co-defendant was waiting, armed with a knife. The two
men robbed Brucetta of his wallet, money, and phone and left him in the
apartment. Brucetta left the apartment, located a security officer and asked
him to call the police. The police arrived almost immediately and shortly
thereafter located and arrested defendant and his co-defendant. Though
Brucetta’s wallet was found, neither defendant nor his co-defendant
was found to have a weapon at the time of their arrest.
People v. Marks, No. 301118, 2011 WL 6268227, at *1 (Mich. Ct. App. Dec. 15, 2011).
Following his conviction and sentence, Petitioner filed a claim of appeal in the
Michigan Court of Appeals. His appellate brief raised the following claims:
I. Petitioner’s trial was rendered fundamentally unfair when jury saw his
co-defendant in shackles.
II. Insufficient evidence was presented at trial to sustain Petitioner’s
convictions for armed robbery and conspiracy to commit armed robbery.
III. The trial court incorrectly scored the sentencing guidelines.
Petitioner also filed a supplemental pro se brief raising the following additional
I. The trial court erred in denying Petitioner’s motion for a directed verdict
because insufficient evidence was presented to sustain the charged
II. The trial court erred in scoring the sentencing guideline offense variables.
III. Insufficient evidence was presented at trial to support the armed robbery
IV. Insufficient evidence was presented at trial to support the conspiracy to
commit armed robbery charge.
V. The cumulative effect of trial errors rendered Petitioner’s trial
The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished
Petitioner subsequently filed an application for leave to appeal in the Michigan
Supreme Court raising an entirely different set of claims:
I. Petitioner was denied the effective assistance of counsel where his
attorney failed to file a motion for separate trials on the resisting and
obstruction charge and the armed robbery charges.
II. The trial court failed to instruct the jury on the defense of alibi and that
venue was a required element of the offenses, and Petitioner’s counsel was
ineffective for failing to request these jury instructions.
III. Petitioner’s right to a public trial, to be present during critical stages of
trial, and to the effective assistance of counsel was denied during the jury
selection process and during the mid-trial voir dire of four jurors conducted
IV. Petitioner was denied the effective assistance of counsel by his trial
attorney’s failure to properly prepare for trial, resulting in the constructive
denial of counsel.
V. Insufficient evidence was presented at trial to prove Petitioner’s identity
and the venue of the offenses.
VI. Petitioner was denied the effective assistance of appellate counsel for
failing to raise the above issues in the Michigan Court of Appeals during his
appeal of right.
The application was denied by the Michigan Supreme Court by standard order.
People v. Marks, 819 N.W.2d 896 (Mich. 2012) (Table).
Petitioner then returned to the trial court and filed a motion for relief from judgment,
raising the following claims:
I. Petitioner was denied the effective assistance of counsel for his trial
attorney’s failing to object to Brahim Bucetta’s in-court identification
II. The prosecutor committed misconduct by distorting the concept of
reasonable doubt during closing argument.
III. Petitioner was denied the effective assistance of appellate counsel where
his attorney failed to raise a challenge to the trial court’s jurisdiction to try him
on direct appeal.
Petitioner also filed a supplement brief asserting that the in-court identification
testimony of the victim should have been suppressed. The trial court denied the motion for
relief from judgment, finding “defendant has not established good cause for failing to
previously raise these issues.” (Dkt. #10-10.)
Petitioner filed an application for leave to appeal in the Michigan Court of Appeals.
The application was denied because Petitioner “alleges grounds for relief that could have
been raised previously and he has failed to establish both good cause for failing to
previously raise these issues and actual prejudice from the irregularities alleged, and has
not established that good cause should be waived. Mich. Ct. R. 6.508(D)(3)(a) and (b).”
People v. Marks, No. 325846 (Mich. Ct. App. April 15, 2015). Petitioner applied for leave
to appeal this decision in the Michigan Supreme Court, but it was denied under Michigan
Court Rule 6.508(D). People v. Marks, 874 N.W.2d 700 (Mich. 2016) (Table).
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims
raised by a state prisoner in a habeas action if the claims were adjudicated on the merits
by the state courts. Relief is barred under this section unless the state court adjudication
was “contrary to” or resulted in an “unreasonable application of” clearly established
Supreme Court law.
“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] precedent.’” Mitchell v. Esparza, 540
U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06
“[T]he ‘unreasonable application’ prong of the statute 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)); see also Woods v. Etherton, 136 S. Ct. 1149, 1152, (2016) (habeas relief
precluded if state court decision is “not beyond the realm of possibility [from what] a
fairminded jurist could conclude”).
“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.” Richter,
562 U.S. at 103.
All of Petitioner’s habeas claims were presented to the state courts in his motion for
relief from judgment and the appeal that followed its denial. The trial court specifically found
that review of the claims was barred by Petitioner’s failure to raise the claims on direct
review, and the Michigan Court of Appeals likewise deemed the claims barred from review
under Michigan Court Rule 6.508(D)(3), the state court rule that requires a defendant to
establish “good cause” and “actual prejudice” in order to raise claims on post-conviction
review that were not raised on direct review. Respondent asserts that the state courts’
reliance on this procedural basis for denying Petitioner relief also bars review of Petitioner’s
claims in this action.
When a claim is denied in state court “due to a state procedural rule that prevents
the state courts from reaching the merits of the petitioner’s claim, that claim is procedurally
defaulted and may not be considered by the federal court on habeas review.” Seymour v.
Walker, 224 F.3d 542, 550 (6th Cir. 2000) (citing Wainwright v. Sykes, 433 U.S. 72, 80,
84-87 (1977)). The Michigan Court of Appeals clearly denied Petitioner post-conviction
relief based on the procedural grounds stated in M.C.R. 6.508(D)(3), thus, Petitioner’s
claims are procedurally defaulted. See Ivory v. Jackson, 509 F.3d 284, 292-93 (6th Cir.
2007). Petitioner may obtain habeas review of his claims only by showing “cause for the
default and prejudice resulting from the default, or that a miscarriage of justice will result
from enforcing the procedural default in the petitioner's case.” Sykes, 433 U.S. at 87, 90-91.
The only apparent “cause” argument is that Petitioner’s appellate counsel was
ineffective for failing to raise his post-conviction claims during his appeal of right. It is well
established, however, that a criminal defendant does not have a constitutional right to have
his appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes, 463
U.S. 745, 751 (1983). The Supreme Court explained:
For judges to second-guess reasonable professional judgments and impose
on appointed counsel a duty to raise every 'colorable' claim suggested by a
client would disserve the . . . goal of vigorous and effective advocacy. . . .
Nothing in the Constitution or our interpretation of that document requires
such a standard.
Id. at 754.
Strategic and tactical choices regarding which issues to pursue on appeal are
“properly left to the sound professional judgment of counsel.” United States v. Perry, 908
F.2d 56, 59 (6th Cir. 1990). “The hallmark of effective appellate advocacy” is the “process
of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to
prevail.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-752).
“Generally, only when ignored issues are clearly stronger than those presented will the
presumption of effective assistance of appellate counsel be overcome.” Monzo v. Edwards,
281 F.3d 568, 579 (6th Cir. 2002). Appellate counsel may deliver deficient performance and
prejudice a defendant by omitting a “dead-bang winner,” which is defined as an issue which
was obvious from the trial record and would have resulted in a reversal on appeal. Meade
v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).
In omitting claims that Petitioner would later raise for the first time in his
post-conviction review proceeding, appellate counsel’s performance did not fall outside the
wide range of professionally competent assistance because all such claims are completely
devoid of merit.
First, Petitioner claims that his counsel should have challenged the in-court
identification of the victim. Petitioner states that there was no pretrial identification line-up
procedure performed by police, and therefore having the victim identify him for the first time
at the preliminary examination when he was the only person seated at the defense table
constituted an impermissibly suggestive identification procedure tainting his subsequent
identification at trial.
Due process requires suppression of eyewitness identification evidence “when law
enforcement officers use an identification procedure that is both suggestive and
unnecessary.” Perry v. New Hampshire, 565 U.S. 228, 132 S. Ct. 716, 718 (2012). A
pretrial identification violates due process where: (1) the identification procedure is
impermissibly suggestive; and (2) the suggestive procedure gives rise to a very substantial
likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 197-98 (1972); Manson v.
Brathwaite, 432 U.S. 98 (1977). “[R]eliability is the linchpin in determining the admissibility
of identification testimony. Brathwaite, 432 U.S. at 114. A court must undertake a two-step
analysis to determine the validity of a pretrial identification. First, the court must determine
whether the procedure was unduly suggestive. If the court finds that the procedure was
unduly suggestive, the court must then “evaluate the totality of the circumstances to
determine whether the identification was nevertheless reliable.” Ledbetter v. Edwards, 35
F.3d 1062, 1070 (6th Cir. 1994).
Here, though the identification of Petitioner at the preliminary examination was to
some extent suggestive, taking into account the totality of the circumstances, the
identification was nevertheless reliable. The evidence presented at trial indicated that
Petitioner was arrested mere moments after the crime was committed. He was wearing the
disguise described by the victim, and he had the victim’s wallet in his possession. Under
the circumstances of this case there was no “substantial likelihood of misidentification”
because the evidence presented at trial demonstrated that Petitioner’s identification as the
assailant was reliable notwithstanding the victim being asked to identify the assailant in
court rather than in a lineup. The claim is without merit, and Petitioner’s counsel was not
ineffective for failing to raise it on appeal.
Second, Petitioner asserts that his appellate counsel should have asserted that the
prosecutor committed misconduct during closing argument. A fair reading of the
complained-of passage belies Petitioner’s claim that the prosecutor misstated the burden
“And you’re going to hear an instruction about reasonable doubt that you’ve already
heard before. When you think about that standard keep something in mind[:]
reasonable doubt is a high standard. We embrace that standard and we believe the
evidence is way beyond that standard in this case. We suggest to you it’s way
beyond that standard in this case. . . . [but] just keep in mind that there’s a difference
between what’s possible and what is reasonable. And in this case the evidence
overwhelmingly proves the defendant’s guilt beyond a reasonable doubt.”
(Dkt. #10-5, Pg. ID 354-56.)
When a defendant makes a claim of prosecutorial misconduct, “the touchstone of
due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor.”
Cockream v. Jones, 382 Fed. Appx. 479, 484 (6th Cir., June 29, 2010) (quoting Smith v.
Phillips, 455 U.S. 209, 219 (1982)). Petitioner must do more than show that the
prosecutor’s conduct was “undesirable or even universally condemned.” Darden, 477 U.S.
at 181. Instead, Petitioner must demonstrate that the prosecutor's conduct “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” Id.
There was nothing “undesirable”—or even incorrect—about the prosecutor’s
statement regarding the beyond-a-reasonable-doubt standard. The statement certainly did
not constitute the type of flagrant and unfairly prejudicial comment requiring Petitioner’s
appellate counsel to raise the issue on appeal.
Third, Petitioner asserts that his counsel should have challenged the jurisdiction of
the trial court to try him. The various arguments in support of this claim are all frivolous.
Under Michigan law, the state circuit courts are courts of general jurisdiction and
“unquestionably have jurisdiction over felony cases.” People v. Lown, 488 Mich. 242, 268
To the extent Petitioner challenges the personal jurisdiction of the trial court,
Petitioner was personally present in the state at the time he was arrested. See MICH. COMP.
LAWS § 600.701. Petitioner contends that his conviction is void because Michigan’s penal
code is not listed in the Federal Register, which applies only to federal laws. The
suggestion is absurd. Petitioner’s challenge to the enactment of Michigan’s criminal laws
as violating Michigan’s constitution is likewise frivolous. Contrary to his construction of the
2004 amendment to the armed robbery statute, the amendment was “ordered to take
immediate effect.” Mich. Public Act 128 of 2004.
Finally, Petitioner asserts that his appellate counsel should have raised a claim that
his Sixth Amendment right to a jury trial was violated when the trial court sentenced him
based on facts not found beyond a reasonable doubt by the jury or admitted by Petitioner.
Claims such as these arise from the United States Supreme Court’s decisions in Apprendi
v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); and
Alleyne v. United States, 133 S. Ct. 2151 (2013). In Apprendi, the Supreme Court held that,
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” Apprendi, 530 U .S. at 490. In Blakely, the Supreme Court clarified
“that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” Blakely, 542 U.S. at 303. In Alleyne, the Supreme Court extended Apprendi to
mandatory minimum sentences, ruling that any fact that increases a mandatory minimum
sentence is an “element” of the offense that must be submitted to the jury and proven
beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2158.
None of these cases support Petitioner’s claim, however. Petitioner was sentenced
to indeterminate sentences within the statutory limits for his conspiracy and armed robbery
convictions and those sentences do not include a mandatory minimum. The Supreme
Court’s holding in Alleyne dealt with judge-found facts which raised the mandatory
minimum sentence under a statute, not judge-found facts that trigger an increased
guidelines range, see United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014), which
is what occurred in Petitioner's case. Unlike the laws at issue in Apprendi and Alleyne, the
Michigan Sentencing Guidelines neither require nor allow a judge to impose a more severe
sentence than was previously available. See United States v. James, 575 F. App’x 588,
595 (6th Cir. 2014) (collecting cases and noting that at least four post-Alleyne unanimous
panels of the Sixth Circuit have “taken for granted that the rule of Alleyne applies only to
mandatory minimum sentences”). The Sixth Circuit, in fact, has ruled that Alleyne did not
decide whether judicial fact-finding under Michigan’s indeterminate sentencing scheme
violates the Sixth Amendment. See Kittka v. Franks, 539 F. App’x 668, 673 (6th Cir. 2013).
The court is aware that the Michigan Supreme Court relied on the Alleyne decision
in holding that Michigan’s Sentencing Guidelines scheme violates the Sixth Amendment
right to a jury trial in People v. Lockridge, 498 Mich. 358 (2015). That case was decided in
2015, however, years after Petitioner’s conviction became final, and Michigan court’s have
determined that the rule in Lockridge does not apply retroactively. People v. Richards, 315
Mich. App. 564 (2016). In any event, Petitioner’s appellate counsel cannot be deemed to
have been ineffective for failing to predict that the Michigan Supreme Court would extend
Apprendi to the Michigan Sentencing Guidelines. See, e.g., Dunham v. United States, 486
F.3d 931, 934 (6th Cir. 2007) (counsel not ineffective for failing to argue for and anticipate
ruling in Booker after Apprendi was decided).
The “failure to raise an issue on appeal amounts to ineffective assistance only if a
reasonable probability exists that inclusion of the issue would have changed the result of
the appeal.” Henness v. Bagley, 644 F.3d 308, 317 (6th Cir. 2011). As none of the claims
Petitioner raises in his petition have any merit, Petitioner has not shown that he was denied
the effective assistance of appellate counsel. Accordingly, Petitioner has failed to
demonstrate cause for his procedural default, and review of his claims is therefore barred.
The petition will therefore be denied.
IV. CERTIFICATE OF APPEALABILITY
In order to appeal the court’s decision, Petitioner must obtain a certificate of
appealability. 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 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). A federal district court may grant or deny a certificate of appealability when
the court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900, 901
(6th Cir. 2002).
Here, jurists of reason would not debate the court’s analysis with respect to any of
Petitioner’s claims because they are devoid of merit and barred by his procedural default.
The court will therefore deny a certificate of appealability. Furthermore, the court will deny
Petitioner permission to appeal in forma pauperis because any appeal would not be taken
in good faith. 28 U.S.C. § 1915(a)(3).
IT IS ORDERED that the Petition for Writ of Habeas Corpus (Dkt. #1) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that permission to appeal in forma pauperis is DENIED.
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: May 8, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record on
this date, May 8, 2017, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
S:\Cleland\JUDGE'S DESK\C2 ORDERS\16-11927.MARKS.DENYIFP.bhb.bss.RHC.wpd
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