Boyce v. Burt

Filing 8

OPINION and ORDER (1) Denying 1 Petition for Writ of Habeas Corpus; (2) Denying Certificate of Appealability; and (3) Denying Leave to Appeal In Forma Pauperis. Signed by District Judge Robert H. Cleland. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________ ________________________________________
DESHON MAURICE BOYCE,
Petitioner,
v.

Case No. 16-14187

S.L. BURT,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS;
(2) DENYING CERTIFICATE OF APPEALABILITY; AND (3) DENYING LEAVE TO
APPEAL IN FORMA PAUPERIS
This is a habeas case filed by a state prisoner under 28 U.S.C. § 2254. After a jury
trial in the Wayne Circuit Court, Petitioner Deshon Boyce was convicted of second-degree
murder, MICH. COMP. LAWS § 750.317, felon in possession of a firearm, MICH. COMP. LAWS
§ 750.224f, and possession of a firearm during the commission of a felony - second
offense, MICH. COMP. LAWS § 750.227b. Defendant was sentenced as a third-time habitual
felony offender to 50-to-75 years for the second-degree murder conviction, 3-to-5 years for
the felon in possession conviction, and a consecutive 5 years for the felony-firearm
conviction.
The petition raises four claims: (1) the prosecutor committed misconduct by her use
of the prior testimony of a witness and defense counsel was ineffective for failing to object,
(2) the trial court lacked jurisdiction because of defects in the charging document, (3) the
trial court lacked jurisdiction because the state magistrate failed to file the necessary form
to transfer the case to the state circuit court, and (4) the trial court lacked jurisdiction

because the criminal information was not filed in the state circuit court. The court will deny
the petition because Petitioner’s claims are without merit. The court will also deny a
certificate of appealability and deny leave to appeal in forma pauperis.
I. Background
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):
This case arises from the murder of Deonte Bing in Highland Park, Michigan.
Bing had a history of problems, including numerous physical altercations,
with William “Johnny” Adams, defendant’s cousin and neighbor. On the day
of the murder, Bing was upset and cursing at an unidentified person on the
telephone, and he told family members that he was going over to Adams’s
house.
Gunshots rang out shortly thereafter, and Bing’s family members rushed to
the nearby scene, where they saw Bing lying on the ground. The current
Highland Park Police Chief, Kevin Coney, was in the area, and he drew his
weapon and attempted to intervene in the shooting. He saw Bing on the
ground and a man in a “long green coat” standing over him, firing shots into
him with a long gun. A witness testified that at the time of the incident
defendant was wearing a robe that was “either green or blue or a dark color.”
Prior testimony of Byron Davis was introduced in which he identified
defendant as the man who shot Bing. A second man, who matched Adams’s
description, shot at Chief Coney and wounded him. Witnesses saw defendant
and the second shooter get into a blue Suburban and drive away.
People v. Boyce, No. 318859, 2016 W L 97896, at *1 (Mich. Ct. App. Jan. 7, 2016).
Following his conviction and sentence, Petitioner filed a claim of appeal in the
Michigan Court of Appeals. His appellate counsel filed a brief on appeal, raising what now
forms Petitioner’s first habeas claim. Petitioner also filed a supplemental pro se brief,
raising what now form his second, third, and fourth habeas claims. The Michigan Court of
Appeals affirmed in an unpublished opinion. Id.
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Petitioner then filed an application for leave to appeal in the Michigan Supreme
Court, raising the same claims he raised in the Michigan Court of Appeals. The Michigan
Supreme Court denied the application because it was “not persuaded that the questions
presented should be reviewed by th[e] Court.” People v. Boyce, 882 N.W.2d 524 (Mich.
2016) (Table).
II. Standard of Review
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
(2000)).
“[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.”
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Harrington v. Richter, 562 U.S.86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)); see also Woods v. Etherton, No. 15-723, 2016 WL 1278478, at *3 (U.S.
Apr. 4, 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.
III. Analysis
A. Introduction of Prior Testimony
Petitioner’s first claim concerns the admission of Byron Davis’s prior testimony. At
the time of Petitioner’s trial, Davis had already testified at Adams’s trial and at Petitioner’s
preliminary examination. The prior testimony was inconsistent with Davis’s testimony at
Petitioner’s trial. Petitioner asserts that the prosecutor committed misconduct by using the
prior inconsistent testimony in a manner that exceeded the bounds of Michigan Rule of
Evidence 801(d)(1)(C), which concerns the admissibility of the prior identification testimony.
Petitioner also asserts that his counsel was ineffective for failing to object to the
prosecutor’s use of the prior testimony.
After reciting the standard governing prosecutorial misconduct claims, the Michigan
Court of Appeals rejected Petitioner’s claim by finding that the prior testimony was
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admissible as substantive evidence under Rule 801(d)(1)(A) and (C), and therefore the
prosecutor did not commit misconduct by the introduction of the evidence or by her
argument regarding it. Boyce, 2016 WL 97896 at *2-5.
First, with respect to any claim that the state trial court or the Michigan Court of
Appeals misapplied its own evidentiary rules, such an argument would not present a
cognizable question on federal habeas review. The extraordinary remedy of habeas corpus
lies only for a violation of the Constitution. See 28 U.S.C. § 2254(a). As the Supreme Court
explained in Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was
properly admitted or improperly excluded under state law “is no part of the federal court’s
habeas review of a state conviction [for] it is not the province of a federal habeas court to
re-examine state-court determinations on state-law questions.” Id. at 67-68. Rather, “[i]n
conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Id. at 68.
The “clearly established Federal law” relevant to a habeas court’s review of a
prosecutorial misconduct claim is the Supreme Court’s decision in Darden v. Wainwright,
477 U.S. 168, 181 (1986). Parker v. Matthews, 567 U.S. 37 (2012). In Darden, the
Supreme Court held that a “prosecutor’s improper comments will be held to violate the
Constitution only if they ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974)). Where admission of the evidence was proper under state law, however, a
habeas Petitioner cannot show that the prosecutor engaged in misconduct by presenting
the disputed evidence. Webb v. Mitchell, 586 F.3d 383, 397 (6th Cir. 1999) (“‘A prosecutor
may rely in good faith on evidentiary rulings made by the state trial judge and make
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arguments in reliance on those rulings.’”) (quoting Cristini v. McKee, 526 F.3d 888, 900 (6th
Cir. 2008)); see also Bales v. Bell, 788 F.3d 568, 577 (6th Cir. 2015).
Here, Byron Davis testified at Petitioner’s trial that on the date of the shooting he
was in a nearby house. (Dkt. #7-15, Pg. ID 981.) When he heard gunshots, he went out
onto the porch and saw a person firing a gun at a boy lying on the ground about fifteen feet
in front of his position. (Id., Pg. ID 982-83.) He testified that he could not see what the
shooter was wearing. (Id., Pg. ID 983.) He testified that at the time of the shooting he
thought he recognized Petitioner as the shooter, but at the time of trial he believed it was
another man he had never seen before. (Id., Pg. ID at 983-86.) He had known Petitioner
for a few years, and he was sure that Petitioner was not the shooter. (Id., Pg. ID 985-86.)
He also knew Adams, and they remained friends at the time of trial. (Id., Pg. ID 986-87.)
The prosecutor then directed Davis to his prior inconsistent testimony. Davis
acknowledged that he testified at Adams’s trial regarding the shooting. (Id., Pg. ID 987.) He
acknowledged that at Adams’s trial he testified that the shooter was “Shon,” that he knew
him from the neighborhood, that he was 6'1', fair skined, with a goatee, and that he was
wearing a green robe. (Id., Pg. ID 987-89.) This description was consistent with Petitioner
being the shooter.
Davis was then questioned whether at Petitioner’s preliminary examination he
believed that he had misidentified Petitioner as the shooter. (Id., Pg. ID 999.) Davis
responded that he did believe he had made a mistaken identification, but he did not want
to testify as to the mistake at that proceeding. (Id., Pg. ID 999-1000.) The prosecutor then
read the portions of Davis’s prior testimony at Petitioner’s preliminary examination where
he answered questions suggesting that he identified Petitioner as the shooter. (Id., Pg. ID
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999-1001.) The prosecutor also read the portions of Davis’ prior testimony at Adams’s trial
tending to indicate that Petitioner was the shooter. (Id., Pg. ID 1003-1005.)
On cross-examination, Davis testified that at the time he witnessed the shooting, he
was convinced that Petitioner was the shooter. (Id., Pg. ID 1023.) He testified that the
testimony that he gave at Adams’s trial was truthful because he believed at the time that
it was true.(Id., Pg. ID 1031.) Adams testified that he felt guilty about not coming forward
earlier to say that Petitioner was not the shooter. (Id., Pg. ID 1037.) He was coming forward
now with this information because he did not want to see the wrong person locked up for
something he did not do. (Id.)
The Michigan Court of Appeals found that some of the prior testimony was
admissible non-hearsay under Michigan Rule of Evidence 801(d)(1)(C) (prior identification
testimony), but that in any event, all of the prior testimony was admissible as non-hearsay
under Rule 801(d)(1)(A) (prior inconsistent statement). Boyce, 2016 WL 97896, at *3.
Neither of these rules limit the use of the prior testimony by the prosecutor. Under both
federal and Michigan law, a prior inconsistent statement that is made under oath is not
considered hearsay and can be used as substantive evidence. See United States v.
Ricketts, 317 F.3d 540, 544 (6th Cir. 2003) (citing Fed. R. Evid. 801(d)(1)(A)); People v.
Chavies, 234 Mich. App. 274, 281-84 (1999) (citing Fed. R. Evid. 801(d)(1)(A)). Because
the Michigan Court of Appeals concluded that the prior testimony was properly admitted
pursuant to Rule 801(d)(1)(A) and (C), the prosecutor did not commit misconduct. See
Thomas v. Perry, 2013 U.S. Dist. LEXIS 57599, *39 (E.D. Mich. Apr. 23, 2013).
It follows that Petitioner was not denied the effective assistance of counsel due to
his trial attorney’s failure to object to the alleged misconduct of the prosecutor or the
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introduction of Adams’s prior testimony. Counsel cannot be deemed ineffective for failing
to raise a meritless objection. See Bradley v. Birkett, 192 Fed. App’x. 468, 475 (6th Cir.
2006).
B. Jurisdiction of State Trial Court
Petitioner’s second, third, and fourth claims all challenge the jurisdiction of the state
trial court. His second claim asserts that the state magistrate did not place sufficient
information in the criminal complaint to justify the issuance of an arrest warrant, thus
divesting the state courts of jurisdiction to proceed against him. His third claim asserts that
the state magistrate failed to make a “return and certification” following the preliminary
examination, a required step before the state circuit court can acquire jurisdiction. And
Petitioner’s fourth claim asserts that the criminal information was not filed with the court
clerk. All of these claims concern matters of state law that do not form a cognizable basis
for federal habeas relief.
The Michigan Court of Appeals considered each of Petitioner’s jurisdictional claims
and found that they were without merit. Boyce, 2016 WL 97896, at *6-10. The
determination whether a state court is vested with jurisdiction under state law is a “function
of the state courts, not the federal judiciary.” Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir.
1976); see also Hamby-Bey v. Bergh, 2008 WL 3286227, at *2 (E.D. Mich. Aug. 7, 2008);
Chandler v. Curtis, No. 05-cv-72608, 2005 WL 1640083, at *2 (E.D. Mich. July 13, 2005);
accord Wright v. Angelone, 151 F.3d 151, 157-58 (4th Cir. 1998). A perceived violation of
state law does not provide a basis for federal habeas relief. Estelle, 502 U.S. at 67-68. And
a state court’s interpretation of state jurisdictional issues conclusively establishes
jurisdiction for purposes of federal habeas review. Strunk v. Martin, 27 F. App’x 473, 475
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(6th Cir. 2001). Accordingly, Petitioner’s second, third, and fourth claims do not present
cognizable claims, and they are therefore without merit.
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. 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).
V. Conclusion
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
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Dated: August 9, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record on
this date, August 9, 2017, by electronic and/or ordinary mail.
s/Julie Owens
Acting in the absence of Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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