Rembish v. Hoffner
Filing
10
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus; Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis - Signed by District Judge Nancy G. Edmunds. (LBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEVEN JOSEPH REMBISH,
Petitioner,
CASE NO. 2:17-cv-10600
v.
HONORABLE NANCY G. EDMUNDS
BONITA HOFFNER,
Respondent.
_____________________________/
OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Steven Joseph Rembish has filed a pro se petition for the writ of
habeas corpus under 28 U.S.C. § 2254. The pleading challenges Petitioner’s
convictions for first-degree murder, conspiracy to commit first-degree murder, and
several weapon charges. Petitioner alleges as grounds for relief that (1) there was
insufficient evidence at trial to support his convictions, (2) he was denied his right
to effective assistance of counsel on appeal, (3) his right not to be placed in double
jeopardy was violated by multiple counts rising from the same episode, and (4) he
was deprived of the presumption of innocence by being shackled during trial.
Respondent Bonita Hoffner argues through counsel that: the state court’s ruling on
Petitioner’s first claim was not an extreme malfunction; there was no violation of
double jeopardy jurisprudence; the shackling claim lacks merit; and the claim about
appellate counsel fails because the two claims not raised on direct appeal lack merit.
The Court agrees that Petitioner’s claims do not warrant habeas relief. Accordingly,
the petition will be denied.
I. Background
Petitioner was charged with the following crimes in Saginaw County,
Michigan: first-degree (premeditated) murder, Mich. Comp. Laws § 750.316(1)(a);
conspiracy to commit first-degree murder, Mich. Comp. Laws §§ 750.157a and
750.316(1); discharge of a firearm at a dwelling or occupied structure, Mich. Comp.
Laws § 750.234b; discharge of a firearm from a vehicle, Mich. Comp. Laws §
750.234a; carrying a weapon with unlawful intent, Mich. Comp. Laws § 750.226;
felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and six counts of
possession of a firearm during the commission of a felony, Mich. Comp. Laws §
750.224b. The charges arose from the fatal shooting of Dawn Ricklefs at the Corner
Lounge in Saginaw, Michigan on February 19, 2011.
Petitioner was tried jointly with his co-defendant, Roberto Rodea, in Saginaw
County Circuit Court. The Michigan Court of Appeals accurately summarized the
evidence at trial as follows:
[A] number of witnesses testified that defendants Rembish and Rodea
were involved in a fight at the Corner Lounge after they and others went
to the location to celebrate a birthday. After the fight, the two were
ejected from the bar. Witnesses heard Rodea stating that he had lost
2
some cocaine, and the witnesses testified that both he and Rembish
threatened to return and “shoot up” or “spray” the bar. The two drove
away in Rembish’s car—a light blue 1986 Oldsmobile Calais—that
Sean Rembish had purchased a week before. Witnesses then testified
that, between 15 and 40 minutes after the fight ended, the Corner
Lounge was struck by multiple bullets. Between 8 and 14 individuals
were inside at the time, including Dawn Ricklefs. She was struck by
two of the bullets, in the chest and in the shoulder, and died as a result
of her injuries. Another patron was grazed in the head. A witness stated
that, after the shooting, he went outside where he saw a car drive away
from the bar with its headlights turned off. The car’s taillights matched
that of the photographs of Rembish’s car. Still other witnesses testified
that other shots were fired at approximately 1:15 a.m. at the Maple
Gardens Bar, which was located near the Corner Lounge.
Sean Berg testified that he had a conversation with Rembish on
Saturday, February 19, 2011. Rembish told Berg that he had just taken
his car to “the farm” because he knew the police were looking for it.
Rembish also told Berg that he had taken his gun out to the swamp and
disposed of it.1 Rembish told him that he planned to wait for the police
to arrive and asked Berg to take care of Rembish’s family. At
approximately the same time, Berg received a call from Rodea, who
told him that Rodea had “messed up,” asked Berg to take care of
Rodea’s children, and stated that he was probably going away for the
rest of his life. Rodea told Berg about the fight, that he had lost some
cocaine at the bar, and that Rodea was “mad” and wanted to go back
and get into a fight.
Rembish’s girlfriend (Danielle Kuebler) testified that, prior to the
shooting, Rembish had hidden a handgun, later matched to the type
used in the shooting, in the fireplace of their home. Kuebler stated that
at approximately 12:00 a.m., Rembish woke her up when he returned
to the home. He came to the bedroom but, because she was mad at him
for staying out late, she told him to leave. She then heard the fireplace
open. She thought that Rembish remained out in the living room, but
admitted that she did not know where Rembish was for approximately
an hour to an hour and a half, when he eventually returned to the
bedroom. Danielle Kuebler also testified that, after the police had
1
Rembish’s
car was later located at the farm by police.
3
begun questioning others, she witnessed Rembish smash his cell phone
in the driveway. He later wrote her a letter apologizing for putting her
through stress, which she took to mean the stress of having her home
searched. She was also questioned concerning whether Rembish had
admitted that he had been involved in the shootings, and she stated that
Rembish’s story kept changing, but that he admitted involvement in the
fight.
Detective Fink testified that he had analyzed the phone records of Berg,
Rodea, and Rembish. Among the evidence presented was the finding
that calls were made from Rembish and Rodea’s phones in the vicinity
of the Maple Gardens bar shortly after the 911 call reporting the
shooting was placed. In addition to the phone evidence, witness
testimony tied Rembish to a handgun model previously in his
possession that had a very high probability of being the same model
used in the shooting. Testimony placed the same car model as
Rembish’s at the scene of the Corner Lounge shooting.
Motive for the crime . . . was shown in the loss, or theft, of Rodea’s
cocaine and in being ejected from the bar. And testimony that Rembish
told Rodea after the fight, “if you don’t get your stuff back everybody
in this bar is going down, I mean everybody,” provides evidence of a
specific intent to return and harm people, and also provides evidence of
the agreement necessary to support the conspiracy conviction.
Similarly, witnesses heard Rodea directly exclaim that he planned to
come back and spray the bar with bullets. Witnesses further stated that
they believed he intended to make good on his threat. Contrary to
Rodea’s claim that he had no idea that the Maple Gardens bar even
existed, phone records placed both his and Rembish’s phones at the bar
very shortly after the 911 call from the Maple Gardens shooting was
made at 1:22 a.m.
People v. Rembish, No. 308916, 2015 WL 122703, at *9 –*10 (Mich. Ct. App. Jan.
8, 2015) (unpublished) (footnote in original as note 4).
The prosecutor’s theory was that Petitioner probably was driving the car used
in the shooting and that he either fired the gun or aided and abetted Rodeo in shooting
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and killing the victim. Petitioner did not testify or present any witnesses. His
defense was that there was no physical evidence, such as a weapon, DNA,
fingerprints, or gunshot residue, linking him to the shooting, and that nobody had
alleged he was the shooter. 1/11/12 Trial Tr. at 130-31, ECF No. 8-8, PageID. 57172.
He also maintained that Sean Berg was not credible and that there was
insufficient evidence to convict him of aiding and abetting a homicide. Id. at 14144, 150-51, Page ID. 574-577.
Rodea testified in his own defense. He admitted to being present at the Corner
Lounge during the fight, but he claimed that he, Petitioner, Josh Kollman, and David
Nietzelt left the bar after the fight and that he was at Petitioner’s home, recovering
from his intoxication, at the time of the shooting.
Rodea acknowledged the
witnesses’ testimony about the threat he supposedly made at the Corner Lounge. He
nevertheless claimed that he was drunk and angry at the time and that people say
things they do not mean when they are drunk and angry. He also testified that, when
he, Petitioner, Kollman, and Nietzelt left the Corner Lounge, Kollman was driving
because Kollman was the only one who had a license. Id. at 39-56, 61-62, 69-71,
77-78, PageID. 549-554, 556-58.
On January 12, 2012, the jury found Petitioner guilty, as charged, of all twelve
counts against him. On February 16, 2012, the trial court sentenced Petitioner to
concurrent terms of: life imprisonment for the murder and conspiracy; four to eight
5
years in prison for the two counts of discharging a firearm; fifty-seven months to ten
years for carrying a weapon with unlawful intent; and five to ten years for being a
felon in possession of a firearm. The court also sentenced Petitioner to two years in
prison for each of the six counts of possessing a firearm during the commission of a
felony, with credit for 350 days. The trial court ordered the felony-firearm sentences
to run concurrently with each other, but before the other sentences. 2/16/12 Sentence
Tr. at 3-5, ECF No. 8-10, PageID. 636-638.
Petitioner appealed as of right, claiming that there was insufficient that he
participated in the shooting and that, if the Court of Appeals disagreed, the evidence
established second-degree murder, not first-degree, premeditated murder.
The
Michigan Court of Appeals rejected Petitioner’s claim and affirmed his convictions
in a per curiam opinion. See Rembish, 2015 WL 122703, at *9 - *10. Petitioner
raised the same issue in the Michigan Supreme Court, which denied leave to appeal
on March 3, 2015, because it was not persuaded to review the issue. See People v.
Rembish, 497 Mich. 972; 859 N.W.2d 696 (2015).
In a subsequent motion for relief from judgment, Petitioner raised claims
about his appellate counsel, the Double Jeopardy Clause, the admission of gruesome
post-autopsy photographs, his shackling at trial, and the felony complaint. The state
trial court denied the motion on the merits. See Op. and Order of the Court, People
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v. Remblish (sic), No. 11-035679 FC 4 (Saginaw Cty. Cir. Ct. July 10, 2015), ECF
No. 8-14, PageID. 872-874.
Petitioner appealed the trial court’s decision without success. The Michigan
Court of Appeals denied leave to appeal because Petitioner “failed to establish that
the trial court erred in denying his motion for relief from judgment.” People v.
Rembish, No. 329957 (Mich. Ct. App. Feb. 24, 2016) (unpublished). The Michigan
Supreme Court denied leave to appeal because Petitioner failed to establish
entitlement to relief under Michigan Court Rule 6.508(D). See People v. Rembish,
500 Mich. 896; 887 N.W.2d 191 (2016).
Finally, on February 23, 2017, Petitioner filed his habeas corpus petition.
Included in the petition are a request for appointment of counsel and an evidentiary
hearing. Pet., ECF No. 1, PageID. 10.
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
requires federal habeas petitioners who challenge “a matter ‘adjudicated on the
merits in State court’ to show that the relevant state court ‘decision’ (1) ‘was contrary
to, or involved an unreasonable application of, clearly established Federal law,’ or
(2) ‘was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’ ” Wilson v. Sellers, 138 S. Ct. 1188, 1191
(2018) (quoting 28 U.S.C. § 2254(d)). “[A] federal habeas court may not issue the
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writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor,
529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential standard for
evaluating state-court rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S. Ct.
2059, 138 L.Ed.2d 481 (1997), and ‘demands that state-court decisions be given the
benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 154
L.Ed. 2d 279 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).
“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)). To obtain a writ of habeas
corpus from a federal court, a state prisoner must show that the state court’s ruling
on his or her 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. Thus, “[o]nly an ‘objectively unreasonable’ mistake, one
‘so lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement,’ slips through
the needle’s eye of § 2254.” Saulsberry v. Lee, 937 F.3d 644, 648 (6th Cir. 2019)
(internal and end citations omitted), cert. denied, __S. Ct.__, No. 19-419, 2019 WL
8
5301304 (U.S. Oct. 21, 2019). A state-court’s determination of factual issues,
moreover, is presumed to be correct on federal habeas review, 28 U.S.C. §
2254(e)(1), and “review under § 2254(d)(1) is limited to the record that was before
the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011).
III. Analysis
A. Sufficiency of the Evidence
Petitioner alleges that there was no evidence supporting the prosecution’s
theory that he participated in the shooting. He points out that no one identified him
as the shooter or as a participant in the shooting. He also alleges that, even if he did
participate in the shooting, the facts supported a verdict of second-degree murder,
not first-degree, premeditated murder, because the prosecution failed to prove the
specific intent to kill the victim.
The Michigan Court of Appeals adjudicated Petitioner’s claim on direct
appeal and found no merit in it. The Court of Appeals stated that the evidence was
sufficient to prove the elements of first-degree murder, either as a principal or as an
aider and abettor, and to show the agreement necessary for the conspiracy
conviction. The Court of Appeals also stated that there was enough circumstantial
evidence to show that Petitioner had at least joint control of the gun to support his
felony-firearm convictions. Rembish, 2015 WL 122703, at *10.
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1. Clearly Established Federal Law
The Supreme Court has held “that the Due Process Clause [of the Fourteenth
Amendment] 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). Following Winship, the critical
inquiry on review of a challenge to the sufficiency of the evidence supporting a
criminal conviction is
whether the record evidence could reasonably support a finding
of guilt beyond a reasonable doubt. But this inquiry does not
require a court to “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. This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote
omitted) (emphases in original).
“Circumstantial evidence may support a
conviction, and such evidence need not remove every reasonable hypothesis except
that of guilt.” Apanovitch v. Houk, 466 F.3d 460, 488 (6th Cir. 2006) (internal and
end citations omitted).
Under AEDPA, moreover, a habeas court’s “review of a state-court
conviction for sufficiency of the evidence is very limited,” Thomas v. Stephenson,
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898 F.3d 693, 698 (6th Cir. 2018), because Jackson claims are “subject to two layers
of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam).
First, it is the jury’s responsibility to decide what conclusions should be drawn from
the evidence admitted at trial. Johnson, 566 U.S. at 651. And second, a federal
habeas court may overturn a state court decision rejecting a sufficiency of the
evidence challenge only if the state court decision was objectively unreasonable. Id.;
see also Tanner v. Yukins, 867 F.3d 661, 672 (6th Cir. 2017) (stating that “two layers
of deference apply [to a sufficiency-of-the-evidence claim], one to the jury verdict,
and one to the state appellate court”), cert. denied, 138 S. Ct. 1283 (2018).
2. Application
a. Identity
Petitioner asserts that there was insufficient evidence pointing to him as the
shooter. “The identity of a defendant as the perpetrator of the crimes charged is an
element of the offense and must be proved beyond a reasonable doubt.” Byrd v.
Tessmer, 82 F. App’x 147, 150 (6th Cir. 2003) (citing People v. Turrell, 25 Mich.
App. 646; 181 N.W.2d 655, 656 (1970)). Nevertheless, “[i]f the evidence at trial
was sufficient to permit jurors to find beyond a reasonable doubt that the man seated
at the defense table was the same person referred to in the account of the offense,
then there is no reason to overturn the jury’s conviction based on the government’s
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alleged failure to prove identity.” United States v. Thomas, 763 F.3d 689, 694 (7th
Cir. 2014).
Here, there was sufficient evidence for the jury to find that Petitioner was the
shooter or that he aided and abetted Rodea in shooting the victim. There was
evidence that Rodea lost some cocaine during the fight at the Corner Lounge and
that both he and Rodea threatened to return to the bar and spray it with bullets. See,
e.g., 1/5/12 Trial Tr. at 41-44, 48-49, 52, ECF No. 8-5, PageID. 295-98 (Lee
Harvkey, Sr.’s testimony that, as he and others were trying to break up the fight,
Rodea said that they were going to shoot the bar up if they did not get their drugs
back); id. at 86-94, PageID. 306-08 (Craig Peterson’s testimony that, after the fight,
Petitioner asked Rodea whether he got his stuff back, and when Rodea said, “No,
not yet,” Petitioner said, “If you don’t get your stuff back, everybody in this bar is
going down, I mean everybody.”).
Mr. Harvkey also testified that he saw a car leaving the Corner Lounge after
the fight, and the tail-lights of the car were like the tail-lights on a photograph of
Petitioner’s car.
Id. at 46-47, PageID. 296-97).
Another witness identified
Petitioner as the driver of the car. See 1/6/12 Trial Tr. at 12-29, ECF No. 8-6,
PageID. 369-73.
Petitioner informed Sean Berg that he took his car to his uncle’s farm because
he knew the police were looking for it, and he took his gun to the swamp. Id. at 5912
60, 79, PageID. 380-81, 385. Petitioner also stated to Berg that he (Petitioner) was
planning to sit back, drink a couple beers, and wait for the police to kick in his door.
Id. at 60, PageID. 381. He asked Berg to take care of his (Petitioner’s) family. Id.
at 60, 79-80, PageID. 381, 385-86.
Petitioner’s girlfriend, Danielle Kuebler, testified that, sometime between
12:00 a.m. and 1:00 a.m. on the night of the crime, Petitioner returned to their home
and spoke with her in her bedroom. Because she was angry with him, she told him
to leave. She thought that he subsequently went into the couple’s living room
because she heard the squeaky fireplace doors open, and that was where Petitioner
had previously placed a gun which looked like the one used in the shooting. She
claimed that she did not know whether Petitioner then left the house because she did
not get out of bed, but she admitted that she did try to reach him by telephone after
their argument. Id. at 170-87, 210-12, Page. ID 408-12, 418-19.
Detective Timothy Fink testified that Kuebler’s phone call to Petitioner at
12:19 a.m. and 12:37 a.m. on February 19, 2011, went unanswered. The 911 call
from the Corner Lodge was made at 12:52 a.m. that morning. See 1/10/12 Trial Tr.
at 148-49, ECF No. 8-7, PageID. 487. An expert on firearms identification testified
that all the casings and bullets in evidence appeared to have come from a Smith and
Wesson nine-millimeter luger handgun, like the one that Sean Berg supposedly saw
at Petitioner’s home sometime before the shooting. Id. at 51-57, 61, PageID. 46313
65; see also 1/6/12 Trial Tr. at 60-63, ECF No. 8-6, PageID. 381(Berg’s testimony
about the gun).
The circumstantial evidence was sufficient to establish that Petitioner
participated in the shooting. For the jury to have concluded otherwise, they would
have had to believe that, by some random coincidence, someone else drove by the
Corner Lounge after the fight and shot up the exterior of the building for no apparent
reason. In the state prosecutor’s words during closing arguments:
What are the odds that these two men who made the threats to shoot up
the bar, to commit murder, didn’t follow through with it, and that some
random person unassociated with whatever happened inside of that bar
happened to have the same gun or type of gun that Steven Rembish had
hidden inside of his fireplace and chose to use that firearm to shoot up
the Corner Lounge?
(1/11/12 Trial Tr. at 104, ECF No. 8-8, PageID. 565.
A rational trier of fact could have concluded from the evidence taken in the
light most favorable to the prosecution that Petitioner participated in the shooting.
At a minimum, the jury could have concluded that Petitioner drove past the Corner
Lounge and thereby enabled Rodeo to shoot and kill the victim.
b. Intent
Petitioner maintains that, even if his identity was established, there was no
evidence of a specific intent to kill. To establish that Petitioner was guilty of firstdegree, premeditated murder, the prosecutor had to prove that Petitioner
“intentionally killed the victim and the act of killing was deliberate and
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premeditated.” People v. Haywood, 209 Mich. App. 217, 229; 530 N.W.2d 497, 503
(1995).
The Michigan Court of Appeals reasonably concluded that there was
sufficient evidence to prove that Petitioner intentionally killed the victim. In
reaching this conclusion, the Court of Appeals stated:
Evidence that Rembish or Rodea fired several shots into the bar at a
time when people were almost certain to be present was evidence of an
intent to kill. Evidence that Rembish and Rodea had threatened the bar
patrons with exactly what later occurred because Rodea could not find
his cocaine, that Rembish went back to his home and retrieved the
weapon, and that the pair then drove back to the bar, was evidence that
defendants acted with premeditation and deliberation.
Rembish, 2015 WL 122703, at *10. This Court agrees and concludes that there was
sufficient evidence of an intent to kill.
3. Conclusion on Petitioner’s Sufficiency-of-the-Evidence Claim
The evidence at trial, taken in the light most favorable to the prosecution,
established that Petitioner was involved in the fatal shooting at the Corner Lounge
and that he had an intent to kill. Therefore, the evidence was sufficient to support
his first-degree murder conviction, and the state court’s adjudication of his claim
was not contrary to, or an unreasonable application of, Jackson. Petitioner is not
entitled to relief on his claim.
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B. Double Jeopardy
Petitioner alleges next that he is entitled to a new trial because he was
convicted of, and punished for, multiple crimes arising from the same episode. He
asserts that the multiple convictions and punishments violated his Fifth Amendment
right not to be placed in double jeopardy.
The state trial court addressed Petitioner’s claim during post-conviction
proceedings and found no merit in it. The court noted that, under state law “a
conviction for both the principal offense and felony-firearm is permissible,” and
“where multiple felonies are committed during a single transaction a defendant may
be convicted of multiple counts of felony-firearm.” See Op. and Order of the Court,
at 2, People v. Remblish (sic), No. 11-035679-FC 4 (Saginaw Cty. Cir. Ct. July 10,
2015), ECF No. 8-14, PageID. 873. The court also pointed out that, under state law,
convictions for felony-firearm and intentionally discharging a firearm, felon in
possession of a firearm, and carrying a dangerous weapon with unlawful intent have
all been held proper. Id.
Respondent argues that the portion of Petitioner’s double jeopardy claim
relating to murder and conspiracy to commit murder is procedurally defaulted
because he did not raise that sub-claim in his motion for relief from judgment, and
he no longer has a remedy to exhaust. In the habeas context, a procedural default is
“a critical failure to comply with state procedural law.” Trest v. Cain, 522 U.S. 87,
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89 (1997). Ordinarily, a procedural default is not a jurisdictional matter, Johnson v.
Lee, 136 S. Ct. 1802, 1806 (2016) (quoting Trest, 522 U.S. at 89), and a court may
bypass a procedural-default question if the claim is easily resolvable against the
habeas petitioner. Lambrix v. Singletary, 520 U.S. 518, 525 (1997).
Petitioner’s double jeopardy claim lacks merit.
Accordingly, the Court
excuses the alleged procedural error and “cut[s] to the merits,” as a proceduraldefault analysis would only complicate this case. Thomas v. Meko, 915 F.3d 1071,
1074 (6th Cir.) (citing Storey v. Vasbinder, 657 F.3d 372, 380 (6th Cir. 2011)), cert.
denied, 139 S. Ct. 2726 (2019).
1. Clearly Established Federal Law
The Double Jeopardy Clause of the Fifth Amendment states that “[n]o person
shall be . . . subject for the same offence to be twice put in jeopardy of life or limb .
. . .” U.S. CONST. amend. V. The Clause is “applicable to the States through the
Fourteenth Amendment,” Lockhart v. Nelson, 488 U.S. 33, 38 (1988), “[a]nd it
protects against multiple punishments for the same offense.” North Carolina v.
Pearce, 395 U.S. 711, 717 (1969), overruled in part on other grounds by Alabama
v. Smith, 490 U.S. 794 (1989).
However, “[w]hat determines whether the
constitutional prohibition against multiple punishments has been violated is the state
legislature’s intent concerning punishment.” Jackson v. Smith, 745 F.3d 206, 211
17
(6th Cir. 2014). In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme
Court
created a test for determining whether two federal statutory provisions
really proscribe the “same offense” and thus whether Congress
presumptively intended just one punishment: “where the same act or
transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact which the
other does not.” 284 U.S. at 304, 52 S. Ct. 180. But this test, the Court
has clarified, is merely a “rule of statutory construction,” designed to
assist courts in discerning Congress’s intent; the Fifth (and Fourteenth)
Amendments do not require the States to use it, and they are free to
create their own tests, whether by statute or through judicial
decisionmaking. Legislative intent is the touchstone; it, and not the
Blockburger test, determines whether two offenses are the same and, if
so, whether multiple punishments are nevertheless intended.
Id.
2. Application
In Michigan, first-degree murder and conspiracy to commit murder do not
violate double jeopardy principles because the intent of the Michigan Legislature
was to punish murder and conspiracy to commit murder as separate crimes. People
v. Burgess, 153 Mich. App. 715, 731; 396 N.W.2d 814, 823 (1986). Thus, charging
and punishing Petitioner with both first-degree murder and conspiracy to commit
first-degree murder did not violate double-jeopardy principles.
State-court decisions indicate that the Michigan Legislature also intended to
permit a defendant to be charged with both felony firearm and discharge of a firearm
at a dwelling or occupied structure. See People v. Guiles, 199 Mich. App. 54, 5918
60; 500 N.W.2d 757, 760 (1993). The Michigan Court of Appeals implied in Guiles
that the Michigan Legislature also intended to permit convictions for both felonyfirearm and discharge of a firearm from a vehicle. See id.
Convictions for both felony firearm and carrying a dangerous weapon with
unlawful intent have been upheld as well. See People v. MacMillan, 95 Mich. App.
292, 294-96; 290 N.W.2d 125, 126-27 (1980). And the Michigan Legislature
“intended to permit a defendant charged with felon in possession to be properly
charged with an additional felony-firearm count.” People v. Dillard, 246 Mich. App.
163, 167–68; 631 N.W.2d 755, 758 (2001).
Furthermore, although Petitioner was convicted of, and punished for, six
counts of felony-firearm, one for each of the other six felonies, the Michigan
Supreme Court recognized in People v. Morton, 423 Mich. 650, 656; 377 N.W.2d
798, 801 (1985), that
“the Legislature intended, with only a few narrow exceptions, that
every felony committed by a person possessing a firearm result in a
felony-firearm conviction.” Indeed, the language of the statute leaves
no doubt that the intent of the Legislature was to impose multiple
convictions and cumulative punishment where a person possessing a
firearm commits a felony by an act which is separate and apart from the
act which gives rise to an excepted felony under the statute.
People v. Sturgis, 427 Mich. 392, 406-07; 397 N.W.2d 783, 789 (1986).
In conclusion, because the Michigan Legislature intended multiple
punishments for Petitioner’s crimes, the state trial court’s rejection of Petitioner’s
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double jeopardy claim did not violate clearly established federal law. Habeas relief
is not warranted on Petitioner’s claim.
C. Shackles
Petitioner alleges next that he is entitled to a new trial because he was visibly
shackled in front of the jury during trial. According to him, the shackling created
the impression that he was a bad person and, more likely than not, guilty. Petitioner
also contends that the shackling deprived him of the presumption of innocence in
violation of his constitutional rights to due process and a fair trial. Finally, he claims
that the shackles diminished his right to secure a meaningful defense because
shackles can interfere with a defendant’s ability to communicate with his attorney.
The state trial court adjudicated and rejected Petitioner’s claim during postconviction proceedings.
The clearly established federal law on shackling is Deck v. Missouri, 544 U.S.
622 (2005), where the Supreme Court held
that the Constitution forbids the use of visible shackles during the
penalty phase, as it forbids their use during the guilt phase, unless that
use is “justified by an essential state interest”—such as the interest in
courtroom security—specific to the defendant on trial.
Id. at 624 (citing Holbrook v. Flynn, 475 U.S. 560, 568–569 (1986), and Illinois v.
Allen, 397 U.S. 337, 343–344 (1970)).
The record in this case, however, contains no reference to Petitioner being
shackled at trial. The facts, as alleged in the habeas petition, relate to Petitioner’s
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trial in a different case with similar convictions, but a different victim and a different
incident (the fatal shooting of Sean Stennett on December 2, 2010). See Pet.,
Rembish v. Hoffner, No. 2:17-cv-11120 (E.D. Mich. Apr. 10, 2017), ECF No. 1,
PageID. 10, 31-33; see also People v. Rembish, No. 308738, 2015 WL 122703, at
*1 - *2 (Mich. Ct. App. Jan. 8, 2015).
Although Petitioner alleged in the murder case involving Sean Stennett that
he was also shackled at his trial for the fatal shooting of Dawn Ricklefs, the trial
court stated on review of Petitioner’s claim in the case involving Ms. Ricklefs that
it was “well aware of its duty to take efforts to minimize the jurors’ view of shackles
or restraints.” Op. and Order of the Court, at 3, People v. Remblish (sic), No. 11035679 FC 4 (Saginaw Cty. Cir. Ct. July 10, 2015), ECF No. 8-14, PageID.874. The
court had “no memory of [Petitioner] being shackled (other than the taking of the
verdict) during the trial or of any order or request that he be shackled.” Id.
Petitioner’s conclusory allegations about being visibly shackled do not
provide a basis for habeas relief, absent any evidentiary support. Prince v. Straub,
78 F. App’x 440, 442 (6th Cir. 2003). Accordingly, the Court declines to grant relief
on Petitioner’s claim about shackles.
D. Appellate Counsel
Petitioner alleges that he was denied his constitutional right to effective
assistance of counsel on direct appeal because his appellate attorney failed to raise
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his double jeopardy and shackling claims on direct appeal. Petitioner maintains that
the result of the appeal would have been different if appellate counsel had presented
all his claims on direct appeal. Petitioner also contends that appellate counsel
presented a “watered down” version of his first claim regarding the allegedly
insufficient evidence at trial by not “federalizing” the claim.
The state trial court concluded during the post-conviction proceedings that
there was no sound basis to support Petitioner’s claim of ineffective assistance of
appellate counsel. To prevail on his claim here, Petitioner must demonstrate (1) that
his appellate attorney acted unreasonably in failing to discover and raise nonfrivolous issues on appeal and (2) there is a reasonable probability he would have
prevailed on appeal if his attorney had raised the issues. Smith v. Robbins, 528 U.S.
259, 285 (2000) (citing Strickland v. Washington, 466 U.S. 668, 687-91, 694
(1984)).
Petitioner’s double jeopardy and shackling claims lack merit for the reasons
given above in the discussion of those claims. Therefore, appellate counsel did not
act unreasonably in failing to discover and raise those claims, and there is no
reasonable probability that Petitioner would have prevailed on direct appeal if
counsel had raised the issues.
“[B]y definition, appellate counsel cannot be
ineffective for a failure to raise an issue that lacks merit.” Greer v. Mitchell, 264
F.3d 663, 676 (6th Cir. 2001).
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Petitioner’s contention that appellate counsel “watered down” his sufficiencyof-the-evidence claim and failed to “federalize” the claim also lacks merit. Counsel
cited the Fourteenth Amendment and In re Winship, 397 U.S. at 358, in his appellate
brief. See Defendant-Appellant’s Brief on Appeal, People v. Rembish, No. 308916
(Mich. Ct. App. Oct. 15, 2012), ECF No. 8-11, PageID. 677-79, 681, 689-90.
Appellate counsel also correctly framed the constitutional issue as whether a rational
trier of fact could find the essential elements of a crime were proved beyond a
reasonable doubt. See id., PageID. 689-90.
Appellate counsel’s performance was not deficient. In addition, the alleged
deficiency did not prejudice Petitioner’s appeal because the Michigan Court of
Appeals applied the correct legal standard and concluded after a thorough discussion
of the issue that the evidence was sufficient to support Petitioner’s convictions.
IV. Conclusion
The state-court decisions in Petitioner’s case were not contrary to, or
unreasonable applications of, Supreme Court precedent. Their decisions also were
not so lacking in justification that there was an error beyond any possibility for
fairminded disagreement. The Court, therefore, denies the petition for writ of habeas
corpus and Petitioner’s request for appointment of counsel and an evidentiary
hearing.
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V. Denial of a Certificate of Appealability
The Supreme Court has said that “a prisoner seeking postconviction relief
under 28 U.S.C. § 2254 has no automatic right to appeal a district court’s denial or
dismissal of the petition. Instead, [the] petitioner must first seek and obtain a
[certificate of appealability.]” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A
certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 327.
Reasonable jurists could not debate the Court’s assessment of Petitioner’s
claims, nor conclude that the issues deserve encouragement to proceed further.
Accordingly, the Court denies a certificate of appealability. The Court nevertheless
grants Petitioner permission to proceed in forma pauperis on appeal, because an
appeal from the Court’s decision could be taken in good faith. 28 U.S.C. §
1915(a)(3).
Dated: January 6, 2020
s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
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