Sheer v. Stephenson
Filing
16
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability or Leave to Appeal In Forma Pauperis Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID SHEER,
Petitioner,
CASE NO. 2:16-CV-14261
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
v.
PAT WARREN,1
Respondent.
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OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
David Sheer, (“petitioner”), confined at the Macomb Correctional
Facility in Lenox Township, Michigan, seeks the issuance of a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application,
petitioner challenges his conviction for armed robbery, M.C.L.A. 750.529.
The trial court sentenced Sheer as an habitual offender, fourth offense,
M.C.L.A. 769.12, to 18 to 40 years’ imprisonment, to be served
consecutive to a parole sentence. For the reasons stated below, the
petition for a writ of habeas corpus is DENIED.
1
The Court amends the caption to reflect the current warden of petitioner’s
incarceration.
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I. Background
Petitioner was convicted of the above offenses following a jury trial in
the Oakland County Circuit Court. This Court recites verbatim the relevant
facts relied upon by the Michigan Court of Appeals, which are presumed
correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner
v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
At about 11:00 p.m. on November 10, 2009, a man entered and
robbed an adult novelty store with a utility knife, taking $588
and a number of DVDs. Sheer’s former girlfriend, Misty
Michelle Justice, testified at trial. Before Justice’s testimony
commenced, juror questions distracted the trial court, and the
trial court inadvertently neglected to swear in Justice. Neither
the prosecution nor Sheer objected to Justice’s subsequent
unsworn testimony. Justice testified that at about 10:00 p.m. on
November 10, 2009, Sheer left the couple’s trailer in Justice’s
vehicle, and then returned to the trailer at about 4:00 a.m.
According to Justice, when Sheer returned, he had money and
DVDs. On November 19, 2009, Justice gave the police her
account of Sheer’s behavior surrounding the time of the
robbery. Thereafter, the police searched the trailer and found
38 DVDs that were stolen during the robbery. The police also
searched Justice’s vehicle and found a utility knife. Sheer now
appeals.
People v. Sheer, No. 302109, 2012 WL 470194, at *1 (Mich. Ct. App. Feb.
14, 2012).
Petitioner’s conviction was affirmed on appeal. Id.; lv. den. 492 Mich.
855, 817 N.W.2d 85 (2012).
Petitioner filed a post-conviction motion for relief from judgment
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pursuant to M.C.R. 6.500, et. seq., which the trial court denied. People v.
Sheer, No. 10-230574-FC (Oakland County Cir. Ct. Feb. 6, 2015). The
Michigan appellate courts denied petitioner leave to appeal. People v.
Sheer, No. 328623 (Mich. Ct. App. Nov. 4, 2015); lv. den. 500 Mich. 853,
883 N.W.2d 752 (2016).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Mr. Sheer was denied his right to a fair trial, a properly
instructed jury, and his full right to confrontation, under the U.S.
Const Am VI, and Const 1963, Art 1, § 20, where the trial court
failed to have a – perhaps the key – prosecution witness sworn
under oath or affirming the truth of her proposed testimony, as
is required by statute and court rule, and the witness provided
highly prejudicial and incriminating evidence; and, his Sixth
Amendment right to the effective assistance of counsel through
counsel’s failure to object.2
II. The prosecutor violated appellant[’]s due process rights by
providing false testimony that Misty Justice and defendant lived
together at the time of the armed robber[y] at Intimate Idea
store; alternatively[,] due process entitled appellant to a new
trial based on newly discovered evidence.
III. Defendant was unlawfully deprived of the effective
assistance of trial counsel when trial counsel failed to object to
the State’s violation of the court’s discover[y] order, and to
object to the voice identification testimony and further because
he failed to adequately challenge misidentification of the
defendant and where he failed to adequately investigate
2
Respondent addresses the second half of Issue I as a separate issue, entitling it
as Issue II. Respondent does not list petitioner’s Issue II, but addresses it on page 46
of Respondent’s Answer.
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possible methods to impeach Mistie Justice as part of his trial
strategy. Because of these cumulative errors of trial counsel
deprived defendant from receiving a fair trial.3
IV. Decision [that] counsel was not ineffective in not objecting
to voice identification was objectively unreasonable as state
court decision arrived at a conclusion opposite to that reached
by [the supreme] court.
V. Decision [that] counsel was not ineffective in not challenging
the in court identification was objectively unreasonable as [the]
state court’s decision arrived at a conclusion opposite to that
reached by [the supreme] court.
VI. Decision [that] counsel was not ineffective in not properly
investigating his trial strategy to impeach the perjury testimony
of the prosecutor’s witness was objectively unreasonable as
[the] state court’s decision arrived at a conclusion opposite to
that reached by [the supreme] court.4
VII. The prosecutor unlawfully deprived the defendant of his
due process right to a fair trial when the prosecutor [admitted]
into evidence Exhibits PX1, PX4, PX5 and PX6 based on
hearsay testimony of Officer Dennis Servis which was not
authenticated by the sworn testimony of Mistie Justice and
further trial counsel’s failure to object to this highly prejudicial
hearsay testimony evidence amounted to ineffective assistance
of counsel at trial.5
VIII. Decision [that] counsel was not ineffective in not objecting
to the highly prejudicial uncorroborated testimony of the officer
was objectively unreasonable as [the] state court’s decision
3
Petitioner references his girlfriend as “Misty” and “Mistie.”
4
Petitioner’s arguments do not list a number VI. Respondent references
petitioner’s argument VII as number VI. The Court will address VII as number VI.
5
This is petitioner’s VIII claim in his habeas petition. See page 49.
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arrived at a conclusion opposite to that reached by [the
supreme] court.6
IX. Defendant Sheer is entitled to relief from judgment because
the trial court[’]s ruling [that] Sheer had not shown cause under
MCR 6.508(D)(3) for not raising the issues he now raises on
appeal was clearly erroneous and [an] abuse of discretion as
appellate counsel[’s] failure to raise them unlawfully deprived
him of his Sixth Amendment right to effective assistance of
counsel on appeal.7
Respondent has filed an answer in opposition to the petition for a writ
of habeas corpus, which is construed in part as a motion to dismiss on the
basis that petitioner’s claims are barred by procedural default. See Alvarez
v. Straub, 64 F. Supp. 2d 686, 689 (E.D. Mich. 1999).
III. Discussion
The Court will discuss petitioner’s claims together for judicial
economy and clarity. Respondent claims that petitioner’s first and second
through ninth claims are procedurally defaulted for various reasons. The
Court will also discuss the part of petitioner’s first claim alleging the
ineffective assistance of trial counsel, and his tenth claim alleging the
ineffective assistance of appellate counsel, because petitioner attempts to
use these claims to excuse the default of his claims.
6
Petitioner’s argument IX. See page 56.
7
Petitioner’s argument X. See page 59.
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When the state courts clearly and expressly rely on a valid state
procedural bar, federal habeas review is also barred unless petitioner can
demonstrate “cause” for the default and actual prejudice as a result of the
alleged constitutional violation, or can demonstrate that failure to consider
the claim will result in a “fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750-51 (1991). If a habeas petitioner fails to
show cause for his procedural default, it is unnecessary for the court to
reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986).
However, in an extraordinary case, where a constitutional error has
probably resulted in the conviction of one who is actually innocent, a
federal court may consider the constitutional claims presented even in the
absence of a showing of cause for procedural default. Murray v. Carrier,
477 U.S. 478, 479-80 (1986). To be credible, such a claim of innocence
requires a petitioner to support the allegations of constitutional error with
new reliable evidence that was not presented at trial. Schlup v. Delo, 513
U.S. 298, 324 (1995). “‘[A]ctual innocence’ means factual innocence, not
mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624
(1998).
Petitioner in his first claim alleges that the trial court denied him his
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constitutional right to confront an adverse witness by allowing Ms. Justice’s
unsworn testimony. Respondent argues that this claim is waived and
procedurally defaulted because petitioner failed to object to the unsworn
testimony.
The Michigan Court of Appeals concluded that petitioner’s
confrontation claim was waived because he failed to object to the unsworn
testimony. People v. Sheer, 2012 WL 470194, at *1. A state court
conclusion that an issue was waived is considered a procedural default.
See e.g. Shahideh v. McKee, 488 F. App’x 963, 965 (6th Cir. 2012).
Petitioner alleges that trial counsel was ineffective by not objecting to
the unsworn testimony of the prosecution’s witness.
To show that he was denied the effective assistance of counsel
under federal constitutional standards, a defendant must satisfy a two
prong test. First, the defendant must demonstrate that, considering all of
the circumstances, counsel’s performance was so deficient that the
attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so
doing, the defendant must overcome a strong presumption that counsel’s
behavior lies within the wide range of reasonable professional assistance.
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Id. In other words, petitioner must overcome the presumption that, under
the circumstances, the challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689. Second, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the
defendant must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “Strickland’s test for prejudice
is a demanding one. ‘The likelihood of a different result must be
substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379
(6th Cir. 2011)(quoting Harrington, 562 U.S. at 112). The Supreme Court’s
holding in Strickland places the burden on the defendant who raises a
claim of ineffective assistance of counsel, and not the state, to show a
reasonable probability that the result of the proceeding would have been
different, but for counsel’s allegedly deficient performance. See Wong v.
Belmontes, 558 U.S. 15, 27 (2009). The Strickland standard applies as
well to claims of ineffective assistance of appellate counsel. See Whiting v.
Burt, 395 F.3d 602, 617 (6th Cir. 2005).
The Michigan Court of Appeals denied relief on petitioner’s
ineffective assistance of trial counsel claim, finding:
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[D]efense counsel’s performance fell below an objective
standard of reasonableness where counsel failed to object to
Justice’s unsworn testimony. However, to establish his claim of
ineffective assistance of counsel, Sheer must also demonstrate
that, but for counsel’s error, the outcome of trial would have
been different and that the error rendered the proceedings
“fundamentally unfair or unreliable.” As discussed above, the
trial proceeded as if Justice’s testimony was sworn, and the
record does not indicate that Justice testified differently
because she was not under oath. Moreover, the prosecution
presented ample evidence of Sheer’s guilt other than Justice’s
unsworn testimony. Thus, Sheer fails to establish that defense
counsel’s failure to object to Justice’s unsworn testimony
prejudiced Sheer by affecting the outcome of his trial.
Sheer, 2012 WL 470194, at *2. (Internal citation omitted).
The Michigan Court of Appeals’ conclusion that petitioner was not
prejudiced by trial counsel’s failure to object to the unsworn testimony was
a reasonable one, precluding a finding of ineffective assistance of counsel,
either to establish cause to excuse the default of the Confrontation Clause
claim, or as an independent ground for relief. Compare Griffin v.
Harrington, 727 F.3d 940, 948-949 (9th Cir. 2013)(Murder defendant was
prejudiced by defense counsel’s failure to raise timely objection to
witness’s unsworn testimony, as required to establish ineffective
assistance of counsel, where no evidence supported finding that timely
objection would have resulted in witness swearing oath, lack of timely
objection resulted in admission of witness’s disclaimed prior inconsistent
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statement identifying defendant as shooter, and evidence was insufficient,
without that statement, to support conviction).
Petitioner first claim is procedurally defaulted by failing to object at
trial. Furthermore, petitioner has failed to show that he was denied the
effective assistance of trial counsel by counsel’s failure to object to
establish cause.
Respondent contends that the remainder of petitioner’s claims are
procedurally defaulted because they were raised for the first time in
petitioner’s post-conviction motion for relief from judgment and petitioner
failed to show cause for failing to raise these issues in his appeal of right,
as well as prejudice, as required by M.C.R. 6.508(D)(3).
M.C.R. 6.508(D)(3) provides that a court may not grant relief to a
defendant if the motion for relief from judgment alleges grounds for relief
which could have been raised on direct appeal, absent a showing of good
cause for the failure to raise such grounds previously and actual prejudice
resulting therefrom.
The Supreme Court noted that “a procedural default does not bar
consideration of a federal claim on either direct or habeas review unless
the last state court rendering a judgment in the case ‘clearly and expressly’
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states that its judgment rests on the procedural bar.” Harris v. Reed, 489
U.S. 255, 263 (1989). If the last state court judgment contains no
reasoning, but simply affirms the conviction in a standard order, the federal
habeas court must look to the last reasoned state court judgment rejecting
the federal claim and apply a presumption that later unexplained orders
upholding the judgment or rejecting the same claim rested upon the same
ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
The Michigan Court of Appeals and the Michigan Supreme Court
rejected petitioner’s post-conviction appeal on the ground that the
defendant failed “to meet the burden of establishing entitlement to relief
under MCR 6.508(D).” These orders, however, did not refer to subsection
(D)(3) nor did they mention the petitioner’s failure to raise these claims on
his direct appeal as their rationale for rejecting his post-conviction claims.
Because the form orders in this case citing Rule 6.508(D) are ambiguous
as to whether they refer to procedural default or a denial of post-conviction
relief on the merits, the orders are unexplained. See Guilmette v. Howes,
624 F.3d 286, 291 (6th Cir. 2010). This Court must “therefore look to the
last reasoned state court opinion to determine the basis for the state
court’s rejection” of petitioner’s claims. Id.
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The trial court judge, in denying petitioner’s post-conviction motion,
cited to M.C.R. 6.508(D)(3)(a) and ruled that petitioner failed to establish
good cause for not raising his claims on direct appeal. People v. Sheer,
No. 10-230574-FC, *2. The judge further noted that petitioner failed to “set
forth any reason for his failure to raise on appeal the issues he now raises
in his motion for relief from judgment.” Id. The Court further concluded that
petitioner was unable to show actual prejudice, as required under M.C.R.
6.508(D)(3)(b) to support his post-conviction motion. Id., *3. Because the
trial court judge clearly denied petitioner post-conviction relief based on the
procedural grounds stated in Mich. Ct. R. 6.508(D)(3), petitioner’s
remaining claims are procedurally defaulted pursuant to Mich. Ct. R.
6.508(D)(3). See Ivory v. Jackson, 509 F.3d 284, 292-93 (6th Cir. 2007).8
Petitioner alleges the ineffective assistance of appellate counsel as
cause to excuse his procedural default. Petitioner, however, has not
shown that appellate counsel was ineffective.
It is well-established that a criminal defendant does not have a
constitutional right to have appellate counsel raise every non-frivolous
8
Petitioner could not have procedurally defaulted any ineffective assistance of
appellate counsel claim, because state post-conviction review was the first opportunity
that he had to raise this claim. See Guilmette, 624 F.3d at 291. However, for the
reasons stated below, petitioner is not entitled to habeas relief on this claim.
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issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983). The
United States Supreme Court has 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 463 U.S. at 754.
Moreover, “[a] brief that raises every colorable issue runs the risk of
burying good arguments-those that, in the words of the great advocate
John W. Davis, ‘go for the jugular,’-in a verbal mound made up of strong
and weak contentions.” Id. at 753. (citations omitted).
The Supreme Court has subsequently noted that:
Notwithstanding Barnes, it is still possible to bring an
[ineffective assistance of counsel] claim based on [appellate]
counsel’s failure to raise a particular claim [on appeal], but it is
difficult to demonstrate that counsel was incompetent.”
Smith v. Robbins, 528 U.S. 259, 288 (2000).
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). In fact, “the
hallmark of effective appellate advocacy” is the “process of ‘winnowing out
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weaker arguments on appeal and focusing on’ those more likely to prevail.”
Smith v. Murray, 477 U.S. at 536 (quoting Barnes, 463 U.S. at 751-52).
“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. See Meade v. Lavigne, 265 F. Supp. 2d at 870.
Petitioner fails to show that appellate counsel’s performance fell
outside the wide range of professionally competent assistance by omitting
his second through ninth claims.
Appellate counsel filed an appellate brief containing two issues.9
Petitioner has not shown that appellate counsel’s strategy in presenting
these claims and not raising other claims was deficient or unreasonable.
Moreover, for the reasons stated by the Michigan Attorney General in the
answer to the petition for a writ of habeas corpus, none of the claims raised
by petitioner in his post-conviction motion were “dead bang winners.”
9
See Defendant-Appellant’s Brief on Appeal. [This Court’s Dkt. # 11-7]. The two
issues have been consolidated into petitioner’s habeas Issue I.
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Because the defaulted claims are not “dead bang winners,” petitioner has
failed to establish cause for his procedural default of failing to raise these
claims on direct review. See McMeans v. Brigano, 228 F.3d 674, 682-83
(6th Cir. 2000).
Because these post-conviction claims lack merit, this Court must
reject any independent ineffective assistance of appellate counsel claim
raised by petitioner. “[A]ppellate counsel cannot be found to be ineffective
for ‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones, 615
F.3d 448, 452 (6th Cir. 2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676
(6th Cir. 2001)).
Petitioner has not alleged or demonstrated any cause for his
procedural defaults. It is unnecessary to reach the prejudice issue
regarding his defaulted claims. Smith, 477 U.S. at 533; See also Harris v.
Stegall, 157 F. Supp. 2d 743, 750 (E.D. Mich. 2001). Additionally,
petitioner has not presented any new reliable evidence to support any
assertion of innocence which would allow this Court to consider petitioner’s
defaulted claims as grounds for a writ of habeas corpus in spite of the
procedural default. Because petitioner has not presented any new reliable
evidence that he is innocent of these crimes, a miscarriage of justice will
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not occur if the Court declined to review petitioner’s procedurally defaulted
claims on the merits. Harris v. Stegall, 157 F. Supp. 2d at 751.
IV. Conclusion
The Court will deny the petition for a writ of habeas corpus. The
Court will also deny a certificate of appealability to petitioner. In order to
obtain a certificate of appealability, a prisoner must make a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To
demonstrate this denial, the applicant is required to show that reasonable
jurists could debate whether, or agree that, the petition should have been
resolved in a different manner, or that the issues presented were adequate
to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). When a district court rejects a habeas petitioner’s
constitutional claims on the merits, the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims to be debatable or wrong. Id. at 484. Likewise, when
a district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claims, a certificate of
appealability should issue, and an appeal of the district court’s order may
be taken, if petitioner shows that jurists of reason would find it debatable
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whether petitioner states a valid claim of the denial of a constitutional right,
and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling. Id. at 484. “The district court must
issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28
U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because he has failed to make a substantial
showing of the denial of a federal constitutional right. Myers v. Straub, 159
F. Supp. 2d 621, 629 (E.D. Mich. 2001). The Court will also deny
petitioner leave to appeal in forma pauperis, because the appeal would be
frivolous. Id.
V. ORDER
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ
of Habeas Corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED That a Certificate of Appealability is
DENIED.
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IT IS FURTHER ORDERED that Petitioner will be DENIED leave to
appeal in forma pauperis.
Dated: May 8, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 8, 2019, by electronic and/or ordinary mail and also on
David Sheer #224240, Macomb Correctional Facility,
34625 26 Mile Road, New Haven, MI 48048.
s/Barbara Radke
Deputy Clerk
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