Williams v. Stewart
Filing
9
OPINION AND ORDER (1) Denying Petition for Writ of Habeas Corpus, (2) Denying Certificate of Appealability, and (3) Denying Permission to Appeal In Forma Pauperis. Signed by District Judge Paul D. Borman. (Sandusky, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CRYSTAL WILLIAMS,
Petitioner,
Case No. 2:17-cv-11426
Hon. Paul D. Borman
v.
ANTHONY STEWART,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY,
AND (3) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254.
Petitioner Crystal Williams was convicted after a bench trial held in the Wayne
Circuit Court of assault with intent to do great bodily harm less than murder, MICH.
COMP. LAWS § 750.84(1)(a), and felonious assault, MICH. COMP. LAWS § 750.82.
The court sentenced Petitioner to 71 months to 10 years for the assault with intent
to commit greatly bodily harm conviction, and 2 to 4 years for the felonious assault
conviction. The petition raises two claims: (1) insufficient evidence was presented
at trial to sustain Petitioner’s convictions, and (2) Petitioner’s trial counsel was
ineffective for failing to investigate and present additional evidence to show that
Petitioner acted in self-defense. The Court will deny the petition because the
claims are without merit. The Court will also deny Petitioner a certificate of
appealability and deny her permission to proceed on 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, Treesh v. Bagley, 612 F.3d 424, 430 n.1 (6th Cir. 2010).
While celebrating their anniversary, defendant and her boyfriend,
Albert Merrill, became intoxicated and belligerent with each other. This
was not unusual as defendant and Merrill had a history of domestic
violence. On the night in question, defendant’s grown son, stepson, and
nephew were visiting. Defendant’s son tried to remove Merrill from the
home, but departed in frustration when defendant declared that she
wanted Merrill to stay. The other young men left as well. Alone in the
home, defendant and Merrill began to argue violently. Defendant beat
Merrill on the head and face with a metal clothes iron, and bit and tried
to strangle him. Merrill required stitches for his severe lacerations and
had to wear a neck brace. Merrill shot defendant twice, once in the arm
and once in the chest. The couple provided divergent accounts of the
events leading to their injuries.
Merrill claimed that he tried to telephone for a taxi and gather his
belongings, but defendant prevented his exit. When Merrill, who was
disabled from bone cancer, sat down in a chair, defendant allegedly
knocked him to the ground and sat on his legs to prevent him from
moving. Merrill testified that defendant bit his hand, tried to strangle
him, and grabbed a nearby iron and beat him savagely on the head and
face. During the assault, defendant threatened to kill Merrill and hide his
body in the basement. Merrill noticed his jacket lying on the floor and
reached out for the handgun that he kept in the garment’s pocket. Merrill
asserted that he first shot defendant in the arm. Defendant continued her
attack and Merrill shot a second time, hitting defendant in the chest.
Defendant then climbed off of Merrill and called 911. Merrill escaped to
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the bathroom and hid the gun in the toilet tank, ostensibly to prevent
defendant from gaining access to the weapon.
Defendant accused Merrill of starting the fight. She contended that
she felt threatened by Merrill and attempted to call 911. Merrill hit her
with an object to prevent her call. Defendant contended that she pushed
Merrill into a chair in response to this attack. Merrill fell out of the chair
and grabbed defendant’s nightgown, pulling her down on top of him, she
claimed. Defendant testified that Merrill continued to hit her and she
grabbed the iron and struck Merrill in self-defense. She bit Merrill when
he tried to punch her in the face and again when he tried to grab the iron.
Defendant further indicated that Merrill first shot her in the chest as she
tried to rise from the floor and did not shoot her in the arm until she
headed downstairs to open the door for the police.
An officer who responded to the scene testified that he heard
yelling as he approached the house. Defendant advised the officer when
he entered that Merrill was upstairs and still armed. The officer ordered
Merrill to descend with his hands raised. Merrill delayed and the officer
heard him maneuvering the lid to the toilet tank. When Merrill came to
the top of the stairs, the officer saw that the skin on his scalp was peeled
back and he was covered in blood.
People v. Williams, No. 322606, 2015 WL 5920244, at *1-2 (Mich. Ct. App. Oct.
8, 2015).
Following her conviction and sentence, Petitioner filed a claim of appeal.
Petitioner was appointed appellate counsel who filed a brief on appeal in the
Michigan Court of Appeals, raising two claims:
I. Insufficient evidence was presented at trial for the trial court to
convict Williams.
II. Williams’s sixth amendment right to counsel was violated due to
ineffective assistance of counsel.
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The Michigan Court of Appeals affirmed Petitioner’s convictions in an
unpublished opinion. Id. Petitioner subsequently filed an application for leave to
appeal in the Michigan Supreme Court that raised the same claims, but her appeal
was denied by standard order. People v. Williams, 499 Mich. 916 (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
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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). “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 (internal quotation omitted).
III. Analysis
A. Sufficiency of the Evidence
Petitioner’s first claim asserts that insufficient evidence was presented at
trial to sustain her convictions. Specifically, Petitioner asserts that the prosecutor
failed to prove beyond a reasonable doubt that she did not act in self-defense. She
also claims that the prosecutor did not present sufficient evidence to establish the
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elements of her two offenses.
First, to the extent Petitioner claims that the prosecutor failed to disprove her
self-defense claim or that the wrong elements of self-defense were employed by
the trial court, the claim is not cognizable in this action. Under Michigan law, the
prosecution bears the burden of proving the absence of self-defense beyond a
reasonable doubt when the defense is raised by a defendant. Paprocki v. Foltz, 869
F.2d 281, 282 (6th Cir. 1989) (citing Berrier v. Egeler, 583 F.2d 515, 521 (6th Cir.
1978)). Nevertheless, self-defense is an affirmative defense under state law. See
Christian v. Romanowski, No. 17-1279, 2017 WL 4083632, at *3 (6th Cir. Aug.
25, 2017). “‘[P]roof of the nonexistence of all affirmative defenses has never been
constitutionally required[.]’” Smith v. United States, 568 U.S. 106, 110 (2013)
(quoting Patterson v. New York, 432 U.S. 197, 210 (1977)). “[T]he due process
‘sufficient evidence’ guarantee does not implicate affirmative defenses, because
proof supportive of an affirmative defense cannot detract from proof beyond a
reasonable doubt that the accused had committed the requisite elements of the
crime.” Caldwell v. Russell, 181 F.3d 731, 740 (6th Cir. 1999), abrogated on other
grounds by Wogenstahl v. Mitchell, 668 F.3d 307 (6th Cir. 2012); see also Gilmore
v. Taylor, 508 U.S. 333, 359 (1993) (Blackmun, J., dissenting) (citing Martin v.
Ohio, 480 U.S. 228, 233-36 (1987)) (“In those States in which self-defense is an
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affirmative defense to murder, the Constitution does not require that the
prosecution disprove self-defense beyond a reasonable doubt”). Accordingly,
Petitioner did not have a federal constitutional right to have the prosecutor present
sufficient evidence negating self-defense, and this portion of her claim does not
present a cognizable issue in this action.
With respect to the claim that insufficient evidence was presented as to the
elements of the offenses, “the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In Re Winship, 397 U.S. 358, 364
(1970). Nevertheless, the critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction is, “whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 318 (1979). “[T]his inquiry does not require a court to ‘ask
itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. at 318-19 (emphasis in original) (quoting Woodby v. INS,
385 U.S. 276, 282 (2010)). “Instead, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Id. at 318-19 (emphasis in original) (citation omitted).
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“[A] federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal court disagrees
with the state court.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). Instead, the federal
court may grant habeas relief “only if the state court decision was ‘objectively
unreasonable.’” Id. (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)). “Because
rational people can sometimes disagree, the inevitable consequence of this settled
law is that judges will sometimes encounter convictions that they believe to be
mistaken, but that they must nonetheless uphold.” Id. Therefore, for a federal
habeas court reviewing a state court’s sufficiency of the evidence evaluation, “the
only question under Jackson is whether that finding was so insupportable as to fall
below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 656
(2012).
The Michigan Court of Appeals rejected this part of Petitioner’s sufficiency
of the evidence claim on the merits, finding:
Moreover, the evidence sufficiently supported the elements of the
two offenses for which defendant was convicted. The elements of assault
with intent to do great bodily harm less than murder are: “‘(1) an attempt
or threat with force or violence to do corporal harm to another (an
assault), and (2) an intent to do great bodily harm less than murder.’”
People v. Stevens, 306 Mich. App. 620, 628 (2014), quoting People v.
Parcha, 227 Mich. App. 236, 239 (1997). The “intent to do great bodily
harm less than murder” necessary to satisfy the second element has been
defined as “ ‘an intent to do serious injury of an aggravated nature.’” Id.,
quoting People v. Brown, 267 Mich. App. 141, 147 (2005). The fact
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finder may infer the necessary intent “from the defendant’s actions,
including the use of a dangerous weapon or the making of threats,” as
well as the nature of the victim’s injuries. Id. at 629. In relation to
felonious assault, the prosecutor must prove: “‘(1) an assault, (2) with a
dangerous weapon, and (3) with the intent to injure or place the victim
in reasonable apprehension of an immediate battery.’” People v. Nix, 301
Mich. App. 195, 205 (2013), quoting People v. Avant, 235 Mich. App.
499, 505 (1999). An object not designed to be a weapon may be
considered a dangerous weapon when used as such. People v. Barkley,
151 Mich. App. 234, 238 (1986).
*
* *
Defendant conceded the facts necessary to establish the underlying
assault element of both charges. She readily admitted that she bit Merrill
and beat him on the head and face with an iron. Defendant’s testimony
also established that her use of the iron turned this otherwise benign
appliance into a weapon.
And the prosecution presented sufficient evidence from which the
court could infer defendant’s intent in contradiction of her self-defense
claim. Merrill testified that defendant was the initial aggressor. He
described how defendant incapacitated him and beat him on the head and
face with an iron. During the assault, defendant threatened to kill Merrill
and hide his body. Even after Merrill armed himself, he alleged that
defendant continued to attack him. The nature of Merrill’s injuries
supported that defendant intended to commit great bodily harm. The
beating pulled the skin from Merrill’s scalp and he required numerous
stitches to close his multiple lacerations. The force of the blows left
blood splatter on the walls. Further, as noted by the court, defendant had
the opportunity to walk away. The court found it unlikely that the sick
and frail Merrill could pull the much larger defendant onto the floor by
tugging her nightgown. Therefore, defendant could have left the room
and called 911 rather than engaging in this attack. We have no grounds
to interfere with that conclusion.
Williams, 2015 WL 5920244, at *3-4.
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This decision did not constitute an unreasonable application of the
established Supreme Court standard. The evidence viewed most favorably to the
prosecution allowed the jury to find beyond a reasonable doubt that Petitioner
committed the offenses. After giving background testimony regarding his
relationship with Petitioner, the victim testified to his version of events. The victim
testified that during the argument he attempted to call a cab to leave Petitioner’s
home, but Petitioner pulled him out of his chair, sat on his legs, and started to
severely beat him around his head and face with a metal clothes iron. Dkt. 8-3, at
24-27. According to the victim, Petitioner also tried to choke him and dig his eyes
out. Id. at 34. Petitioner told the victim that she was going to kill him and put his
body in the basement. Id. at 27. After the victim managed to retrieve his handgun
and shoot Petitioner, Petitioner got off of him, and called 9-1-1. Id. at 32-33. The
victim sustained multiple stitches to his head and face, and he lost a tooth. Id. at
33-36, 41. Ten photographs depicting the victim’s injuries were admitted into
evidence. Id. at 37. Petitioner testified that it was the victim who attacked and then
shot her, and that her actions and the injuries sustained by the victim were the
result of her efforts at self-defense. Id. at 102-114.
The trial therefore presented a case of word-against-word, requiring the
court sitting as the finder of fact to make a credibility determination. The trial court
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chose to believe the victim’s testimony beyond a reasonable doubt. That decision
cannot be second-guessed when reviewing the constitutional sufficiency of the
evidence. It is the responsibility of the fact-finder and not a court reviewing a
sufficiency of the evidence claim to decide what conclusions should be drawn from
the evidence admitted at trial. Cavazos v. Smith, 565 U.S. 1, 2 (2011). A reviewing
court does not re-weigh the evidence or re-determine the credibility of the
witnesses whose demeanor was observed by the trial court. Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459
U.S. 422, 434 (1983)).
In light of the testimony provided by the victim, which clearly satisfied the
elements of both assault with intent to commit great bodily harm and felonious
assault, the decision of the Michigan Court of Appeals rejecting Petitioner’s claim
“was [not] so insupportable as to fall below the threshold of bare rationality.” See
Coleman, 566 U.S. at 656. Petitioner’s first claim is without merit.
B. Ineffective Assistance of Counsel
Petitioner’s second claim asserts that her defense counsel was ineffective in
the manner he presented her self-defense claim. She presents a laundry-list of
actions counsel failed to perform to effectively present her defense: 1) counsel
failed to present medical records to show Petitioner’s serious mental illnesses and
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to show that the victim had broken her nose, 2) counsel failed to present medical
records to show the severity of her gunshot wounds and to show that she took
anxiety medications before making her statement to police, 3) counsel failed to
obtain Petitioner’s clothing to show the angle and distance of the gunshots, 4)
counsel failed to obtain EMS records to demonstrate the timing of the events in
relation to when the other individuals present left her house, 5) counsel failed to
obtain Petitioner’s cell phone records to show when she called 9-1-1, 6) counsel
failed to interview the people present at the house prior to the incident to establish
that the victim was the initial aggressor, 7) counsel failed to obtain the cell phone
records of the victim to determine when he attempted to call for a cab, 8) counsel
failed to interview the victim’s doctor regarding his bone cancer and ability to
fight, 9) counsel failed to interview the police officers to determine the number of
bullet casings found at the scene, and 10) counsel failed to investigate the victim’s
bloody jacket.
The Sixth Amendment guarantees a criminal defendant the right to the
effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984),
the Supreme Court set forth a two-prong test for determining whether a habeas
petitioner has received ineffective assistance of counsel. First, a petitioner must
prove that counsel’s performance was deficient. This requires a showing that
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counsel made errors so serious that he was not functioning as counsel as
guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the
petitioner must establish that counsel’s deficient performance prejudiced the
defense. Counsel’s errors must have been so serious that they deprived the
petitioner of a fair trial or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts that were
“outside the wide range of professionally competent assistance.” Id. at 690. A
reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at
689. There is a strong presumption that trial counsel rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment. Id. at 690.
To satisfy the prejudice element, “[t]he 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.” Id. at 694. On habeas review, a federal
court must apply a doubly deferential standard of review: “[T]he question [under §
2254(d)] is not whether counsel's actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011).
After reciting the controlling constitutional standard, the Michigan Court of
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Appeals rejected Petitioner’s claim after considering and discussing each of her
allegations:
Defendant first contends that counsel failed to adequately
investigate her case because counsel did not obtain defendant’s medical
records. These records, defendant contends, would have revealed her
history of anxiety to explain why her trial testimony was different from
her early statements to the police. The records also would have supported
that Merrill had previously broken defendant’s nose, thereby supporting
her claim of fear. Defense counsel has a duty to undertake reasonable
investigations or to make a reasonable decision that renders particular
investigations unnecessary. People v. Trakhtenberg, 493 Mich. 38, 52
(2012). Any choice to limit an investigation “is reasonable precisely to
the extent that reasonable professional judgments support the limitations
on investigation.” Id. (quotation marks and citation omitted). The failure
to conduct an adequate investigation comprises ineffective assistance of
counsel if it undermines confidence in the outcome of the trial. People
v. Russell, 297 Mich. App. 707, 716 (2012).
The subject medical records were unnecessary to mount
defendant’s defense. Merrill admitted on the stand that he had assaulted
defendant in the past. Even if the medical records showed that defendant
suffered from clinical anxiety, this would likely not remediate her
credibility. The court found defendant’s version of events illogical and
contrary to common sense. Explaining away defendant’s confusion over
the type of object with which defendant [sic - the victim] allegedly hit
her would not remove the incredulity.
Defendant contends that counsel should have secured her medical
records from the night in question, as these records were necessary to
establish the seriousness of her injuries and the time she was shot. It was
not disputed that Merrill shot defendant, however. While the seriousness
of the injuries caused by one acting in self-defense can be relevant to
show the actor’s intent, that is not the case here. Gunshot wounds are
always serious injuries, and the severity of defendant’s injuries sheds no
light on whether Merrill acted maliciously rather than in self-defense.
Although the timing of the gunshots was at issue, defendant’s medical
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records could not have resolved the issue. The gap in the parties’
testimonies suggested a difference of only a few minutes, too close in
proximity for a medical doctor to resolve the dispute. Defendant further
contends that the records would have shown that the staff gave her
anxiety medication in the emergency room, potentially affecting her
memory of events when she spoke to the police. As noted above, this
explanation for defendant’s inconsistency would not have saved her
defense.
Defendant challenges her attorneys’ decision not to present her
nightgown into evidence. Defendant contends that the nightgown could
have been used to show the distance from which she was shot and the
angles. Defendant further asserts that counsel should have inspected her
home for any bullet holes in the walls caused by the bullet traveling out
of her body and questioned the officers about the number of shell casings
they found in the home and the number of bullets the subject gun could
hold. The decision not to present certain evidence only amounts to
ineffective assistance of counsel if it deprives the defendant of a
substantial defense. People v. Dunigan, 299 Mich. App. 579, 589-590
(2013). According to both parties’ testimony, Merrill first shot defendant
while she was on top of him, although defendant claims she was
attempting to move at the time. The trajectory for the first shot would be
very similar regardless of whose version of events was accurate. In
relation to the second shot, counsel had no reason to investigate further.
Defendant claimed that she was on the stairwell, heading to open the
door for the police, when Merrill fired the second shot. The responding
officer made no mention of hearing a gunshot. Accordingly, further
investigation would not have supported defendant’s claim. And the
parties agreed that Merrill fired only two shots. Counsel had no grounds
to investigate further in that regard.
Defendant asserts that counsel should have questioned the
ambulance driver and hospital staff to determine when her relatives left
her home on the night in question. Defendant further contends that
counsel should have questioned the other individuals in the home at the
time of assault, i.e., her sons. The evidence clearly established that
defendant’s relatives were gone by the time the ambulance arrived. The
responding officer testified that defendant and Merrill were alone in the
15
house when emergency services came on the scene. And Merrill and one
of defendant’s sons testified that defendant’s relatives had left the home
before the physical altercation began. These witnesses could not have
resolved “who the aggressor was and how drunk each of them was,”
contrary to defendant’s position.
Defendant suggests that counsel should have sought discovery of
her cellular telephone records to determine the timing of her 911 call and
obtained a copy of the 911 recording. There is no dispute about the
timing of defendant’s 911 call. Defendant claims she tried to call 911
before the assault but that Merrill prevented her from hitting “send.”
Defendant and Merrill therefore agreed at trial that defendant did not call
911 until after the fight. And the content of the call would not assist
defendant’s defense in any appreciable way. Defendant had just been
shot and therefore would have sounded in distress whether or not she had
initiated the attack.
Defendant challenges counsel’s failure to discover Merrill’s cell
phone number and the name of the taxi company he allegedly called.
Merrill testified that defendant “knocked” the phone from his hand
before he could summon a taxi. Accordingly, this evidence would not
have been of assistance. Defendant further suggests that counsel should
have questioned Merrill’s doctor to gauge the accuracy of information
about his frailty. However, the court was able to visibly assess Merrill’s
physical condition at trial and found him to be frail and much smaller
than defendant.
Finally, defendant contends that counsel should have requested the
inspection of Merrill’s jacket to determine the amount and cause of any
blood on that garment. Yet such inspection would not have uncovered
useful evidence, however. The parties agree that blood was in the room
from defendant beating Merrill with an iron and Merrill shooting
defendant.
Williams, 2015 WL 5920244, at *5-7.
This decision did not involve an unreasonable application of the
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Strickland standard. As the Michigan Court of Appeals found, none of the proposed
actions Petitioner claims her counsel should have performed would have provided any
substantial benefit to her defense. It was reasonable to find that records of Petitioner’s
prior injury and mental illness would not have supported her defense. The victim
admitted at trial that he previously attacked Petitioner, and even if Petitioner’s anxiety
disorder explained the differences between her statement at the hospital and her
testimony, those differences were not a significant factor leading the trial court to
accept the victim’s version of events.
Similarly, the severity of Petitioner’s gunshot wounds were not relevant to her
self-defense claim. There was no dispute that the victim shot Petitioner twice, and the
medical records would not have indicated the timing of the shots in relation to the
beating of the victim. The same thing holds true with respect to the condition of
Petitioner’s clothing, the condition of the victim’s clothing, the timing of the phone
calls, the timing of when Petitioner’s relatives left the house, and the bullet casings.
None of these items would have substantially assisted the court in determining which
version of events was correct. Finally, even if medical records regarding the victim’s
bone cancer might have indicated he had years to live, the trial court observed firsthand his frailty and the disparity in size and strength between Petitioner and the
victim.
17
Broadly stated, the failure to call witnesses or present other defense evidence
constitutes ineffective assistance of counsel only when it deprives a defendant of a
substantial defense. Chegwidden v. Kapture, 92 F. App’x 309, 311 (6th Cir. 2004);
Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002). For the reasons stated by the
Michigan Court of Appeals, none of the omitted items listed by Petitioner deprived
her of a substantial defense. Despite her protestations, it was reasonable for the state
court to find that none of the items would have substantially aided in the presentation
of her defense. Because the claim was reasonably rejected by the state courts,
Petitioner’s second claim does not provide a basis for granting habeas relief.
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not
proceed unless a certificate of appealability issues. 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). Courts must either issue a certificate of
appealability indicating which issues satisfy the required showing or provide reasons
why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b);
In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
To receive a certificate of appealability, “a petitioner must show that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have
18
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotes and citations omitted). Here, jurists of reason would not debate
the Court’s conclusion that Petitioner has not met the standard for a certificate of
appealability because her claims are devoid of merit. Therefore, the Court denies a
certificate of appealability.
The Court will also deny permission to appeal in forma pauperis because an
appeal of this decision could not be taken in good faith. 28 U.S.C. § 1915(a)(3).
V. Conclusion
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a writ
of habeas corpus, 2) DENIES a certificate of appealability, and 3) DENIES
permission to appeal in forma pauperis.
SO ORDERED.
s/ Paul D. Borman
Honorable Paul D. Borman
United States District Judge
Dated: October 12, 2018
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of
record and any unrepresented parties via the Court's ECF System to their respective
email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing
on October 12, 2018.
s/Karri Sandusky on behalf of
Deborah Tofil, Case Manager
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