Perry v. Horton

Filing 9

ORDER Denying 1 PETITION for Writ of Habeas Corpus, Denying Certificate of Appealability, and Denying Leave to Appeal In Forma Pauperis. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JESSIE PERRY,

Petitioner,

Case No. 2:17-cv-12636
Hon. Sean F. Cox

v.
CONNIE HORTON,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,
(2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING LEAVE TO
APPEAL IN FORMA PAUPERIS
This is a habeas case filed by a state prisoner under 28 U.S.C. § 2254. Petitioner
Jessie Perry was convicted after a jury trial in the Wayne Circuit Court of second-degree
murder, MICH. COMP. LAWS § 750.317, and possession of a firearm during the
commission of a felony. MICH. COMP. LAWS § 750.227b. He was sentenced to 12 to 30
years for the murder conviction and a consecutive two years for the firearm conviction.
The petition raises three claims: (1) insufficient evidence was presented at trial to
sustain Petitioner’s convictions, (2) the prosecutor impermissibly struck jurors on the
basis of race, and (3) the trial court scored the sentencing guidelines based on facts not
proven beyond a reasonable doubt. The Court will deny the petition because the claims
are without merit. The Court will also deny a certificate of appealability and deny
permission to appeal in forma pauperis.

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I. Background
This Court recites verbatim the relevant facts relied upon by the Michigan Court
of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case arises out of the shooting death of Raymond Cantu.
According to Stephen Lemley, he, defendant, Jon Hodges, Steven Tolley,
and Jose Ruiz were at David Earls’ house when they became aware that
Cantu was outside. Lemley testified that Cantu “had beef” with him, that
Cantu wanted to kill him, and that the group went outside. Lemley
continued, testifying that when Cantu pointed what he eventually learned
was a staple gun at him, he fired a shotgun at Cantu twice. According to
Hodges, defendant then racked a .45-caliber handgun, Ruiz took the
handgun, and Ruiz fired “[a]bout six” shots at Cantu before returning the
handgun to defendant. Hodges testified that defendant then [drew] a
second firearm and fired two more shots at Cantu. Cantu eventually died
from multiple gunshot wounds. After the shooting, the five men drove to a
bar and, according to Hodges, defendant and Lemley hid two of the
firearms inside.
People v. Perry, 2016 WL 6127819, at *1 (Mich. Ct. App. Oct. 18, 2016).
Following his conviction and sentence, Petitioner filed a claim of appeal in the
Michigan Court of Appeals, raising the following claims:
I. The jury verdict was based on insufficient evidence and/or against the
great weight of the evidence to convict defendant of second-degree
murder and felony firearm when defendant did nothing to knowingly aid
and abet Jose Ruiz in his perpetration of the crime.
II. Defendant was denied the right to equal protection and his right to an
impartial jury where the prosecutor struck members of his ethnic group
solely on the basis of race.
III. Defendant is entitled to resentencing because the scoring of the
offense variable can only occur through improper judicial fact-finding and
the 12-year minimum sentence imposed is not reasonable considering
defendant’s alleged role in the offense as an aider and abettor.

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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 raising the same claims. The Michigan Supreme Court
denied the application because it was not persuaded that the questions presented
should be reviewed by the Court. People v. Perry, 895 N.W.2d 525 (Mich. 2017)
(Table).
II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims
raised by a state prisoner in a habeas action if the claims were adjudicated on the
merits by the state courts. Relief is barred under this section unless the state court
adjudication was “contrary to” or resulted in an “unreasonable application of” clearly
established Supreme Court law.
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000).
“[T]he ‘unreasonable application’ prong of the statute permits a federal habeas
court to ‘grant the writ if the state court identifies the correct governing legal principle
from [the Supreme] Court but unreasonably applies that principle to the facts’ of
petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529
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U.S. at 413. “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S.86, 101 (2011), quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); see also Woods v. Etherton, No. 15723, 2016 WL 1278478, at *3 (U.S. Apr. 4, 2016) (habeas relief precluded if state court
decision is “not beyond the realm of possibility [from what] a fairminded jurist could
conclude.”)
III. Analysis
A. Sufficiency of the Evidence
Petitioner first asserts that insufficient evidence was presented at his trial to
sustain his convictions. He asserts that there was no reliable evidence at trial proving
that he knowingly aided Jose Ruiz in committing the crimes. He asserts that Hodges’
testimony implicating him was inconsistent with his statement to police and was
otherwise not credible considering Hodge’s favorable plea deal.
This claim was rejected on the merits by the Michigan Court of Appeals during
Petitioner’s appeal of right. After reciting the constitutional standard governing
sufficiency of the evidence claims, the state court rejected Petitioner’s claims as follows:
Defendant’s position on appeal is clear—he argues that there was
insufficient evidence to convict him under an aiding-and-abetting theory.
This argument is meritless. As indicated by the trial court’s jury
instructions, the information, and the complaint, defendant was charged
with murder or aiding and abetting murder. Hodges testified that, after
Ruiz fired the handgun that defendant racked, defendant withdrew a
second firearm and fired two additional shots at Cantu. This testimony, if
believed by the jury, was sufficient to support the jury’s verdict without
resorting to an aiding and abetting theory. Avant, 235 Mich. App. at 506.
For the sake of thoroughness, however, we will address defendant’s
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arguments on appeal despite the fact that they rely on the assumption that
the jury convicted under an aiding-and-abetting theory only.
Aiding and abetting is not a separate substantive offense; it is a
theory of prosecution that permits imposition of vicarious liability on an
accomplice. Robinson, 475 Mich. at 6. Conviction under a theory of aiding
requires proving beyond a reasonable doubt (1) that the crime charged
was committed by the defendant or some other person, (2) that the
defendant performed acts or gave encouragement that assisted the
commission of the crime, and (3) that the defendant intended to aid the
charged offense, knew the principal intended to commit the charged
offense, or, alternatively, that the charged offense was a natural and
probable consequence of the commission of the intended offense. Id.
Here, the second and third requirements are at issue. Specifically,
defendant claims that the evidence presented by the prosecution proved
that he was merely present with his gun when Cantu was killed, not that
he performed acts or gave encouragement that assisted Ruiz, nor that he
intended to kill or knew Ruiz intended to kill Cantu.
We agree with the prosecution’s position that, by racking the
firearm before Ruiz took it, defendant performed acts or gave
encouragement that assisted Ruiz as well as intended to kill or knew that
Ruiz intended to kill Cantu. The jury was free to believe or disbelieve
Hodges’ testimony in this regard, and we defer to the jury’s superior ability
to assess witness credibility. Avant, 235 Mich. App. at 506. Had defendant
merely been present as he contends, our conclusion may well have been
different, but those are not the facts presented here. Rather, the testimony
indicated defendant racked the handgun, thus preparing it to be used in
shooting Cantu. Accordingly, the prosecution presented sufficient
evidence to support the jury’s verdicts.
Perry, 2016 WL 6127819, at *2.
In reviewing the sufficiency of the evidence, “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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court may not “reweigh
the evidence, reevaluate the credibility of witnesses, or substitute [its] judgment for that
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of the jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). “[E]ven were [the court]
to conclude that a rational trier of fact could not have found a petitioner guilty beyond a
reasonable doubt, on habeas review, [the court] must still defer to the state appellate
court’s sufficiency determination as long as it is not unreasonable.” Id.; see 28 U.S.C. §
2254(d)(2).
The evidence presented at Petitioner’s trial was sufficient to allow the jury to find
beyond a reasonable doubt that he either was guilty as a principal or aided Ruiz in the
murder. Jon Hodges testified that he was initially charged with murder but accepted a
plea deal to accessory after the fact. Dkt. 8-9, at 76-77. He testified that on the date of
the murder he went to a residence in Detroit with Stephen Lemley, Steven Tolley,
Petitioner, and Jose Ruiz. Id. at 78. Tolley said that he saw somebody standing outside.
Id. at 79. The five men went outside and found the victim cussing into a cellphone. Id. at
79-80.
Hodges saw Lemley fire a shotgun at the victim. Id. at 81. Hodges then saw
Petitioner produce and rack a silver .45 handgun. Id. at 81. Ruiz took the handgun from
Petitioner, and then he fired about six shots at the victim. Id. at 82. Petitioner took the
gun back from Ruiz. Id. at 82. Hodges saw Petitioner pull out a different handgun, and
he then saw Petitioner shoot it in the direction of the victim a couple of times. Id. at 8283.
The five men went to a bar and hid the guns there. Id. They subsequently drove
to a location in Melvindale where Petitioner told Hodges that if he ever said anything
about the incident, Petitioner would kill him. Id. at 84. The next morning Hodges was
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arrested, and he gave a statement to the police that Petitioner had the .45 handgun and
that Lemley was the one who fired the shotgun. Id. at 85.
The fact that Petitioner attempted to impeach Hodge’s credibility based on the
favorable plea bargain and based on perceived inconsistencies between his statement
and testimony does not speak to the constitutional sufficiency of the evidence. 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)). The jury obviously chose to accept Hodge’s testimony as true, and that
credibility determination allowed them to find Petitioner guilty of murder beyond a
reasonable doubt either as an aider (for handing the firearm to Ruiz) or as a principal
(for shooting the victim a few times with the other handgun). “[T]he testimony of a
single, uncorroborated prosecuting witness or other eyewitness is generally sufficient to
support a conviction.” Brown v. Davis, 752 F.2d 1142, 1144 (6th Cir. 1985) (internal
citations omitted). This claim is without merit.
B. Jury Selection
Petitioner next asserts that the prosecutor improperly struck four AfricanAmerican jurors from the jury panel. The Michigan Court of Appeals rejected this claim
on the merits. After reciting the controlling constitutional standard, the court of appeals
found that Petitioner failed to demonstrate entitlement to relief:
[I]t is undisputed that the prosecutor articulated racially neutral
reasons to support her peremptory challenges of the four jurors at issue.
Specifically, the prosecutor dismissed the first juror because she admitted
that she has had multiple negative experiences with police, including
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situations where she believed that she or others were racially profiled; the
prosecutor dismissed the second juror because she admitted that she has
had negative experiences with police, including a situation where her son
was unfairly charged with and convicted of armed robbery; the prosecutor
dismissed the third juror because she admitted that she would be
uncomfortable in rendering a guilty verdict; and the prosecutor dismissed
the fourth juror because she admitted that her father was convicted of firstdegree murder. For the sake of thoroughness, it should be noted that the
prosecutor also exercised peremptory challenges with respect to jurors
who were not African American. With respect to the third requirement,
defendant argues that the racially neutral reasons articulated by the
prosecutor were merely a pretext, pointing to the fact that the jurors
indicated that their negative experiences with the criminal justice system
would not impact their ability to be fair. The fact that the jurors indicated
that they could be fair, or, with respect to one of the jurors, that they were
at least willing to “hear the testimony,” is not dispositive of defendant’s
arguments. It was reasonable for the prosecutor to strike jurors who
believed law enforcement racially profiled, who had negative experiences
with police, who would not be comfortable rendering a guilty verdict, and
who had a father who was convicted of first-degree murder. The
prosecutor could very well have believed that these negative experiences
trumped the jurors’ agreements to be fair, and the trial court was in a
much better position to determine the prosecutor’s credibility in that
regard. Accordingly, we conclude that the trial court properly denied
defendant’s Batson challenge.
Perry, 2016 WL 6127819, at *3-4.
The Equal Protection Clause of the Fourteenth Amendment prohibits a
prosecutor from using a peremptory challenge to exclude members of the jury venire
because of their race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). In Batson, the
Supreme Court articulated a three-step process for evaluating claims when a prosecutor
has used peremptory challenges in a manner violating the Equal Protection Clause. Id.
at 96-98. First, the court must determine whether the defendant made a prima facie
showing that the prosecutor exercised a peremptory challenge on the basis of race. Id.
at 96-97. Second, if the showing is made, the burden shifts to the prosecutor to present
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a race-neutral explanation for striking the juror. Id. at 97-98. “Although the prosecutor
must present a comprehensible reason, ‘[t]he second step of this process does not
demand an explanation that is persuasive, or even plausible’; so long as the reason is
not inherently discriminatory, it suffices.” Rice v. Collins, 546 U.S. 333, 338 (2006),
quoting Purkett v. Elem, 514 U.S. 765, 767-68 (1995). Third, if a race-neutral
explanation is offered, the court must then determine whether the defendant carried the
burden to prove purposeful discrimination. Batson, 476 U.S. at 98.
The state court adjudication of this claim did not contravene the Batson standard.
After finding that a prima facie showing was made, the prosecutor offered a race-neutral
explanation for the four challenged strikes:
Prosecutor: Judge, Juror Number 1, Miss Wood, indicated that she
had negative experience with the police. She felt that the police racially
profiled, and that she herself specifically with Detroit police had, had
negative experiences with the police.
Juror Number 2, Miss Thompkins, her son was convicted of
homicide. I’m sorry. Was convicted of armed robbery. And she indicated
specifically that she felt that the Detroit Police treated her son unfairly.
Juror Number 10, Miss Jackson, when I asked her if she could
render a guilty verdict she said that she would be uncomfortable doing so.
And Juror Number 14, Miss Pack, father was convicted of First
Degree Murder.
Dkt. 8-7, at 116.
The trial court then conducted the final step of the Batson challenge, and it
determined that the strikes were not the result of purposeful discrimination:
The Court: I’m finding that three of the jurors excused by the prosecution
were not African-Americans, and the four that were, there each was an
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independent reason that I think is legitimate without having anything to do
with race.
Id. at 118.
The trial court found that the prosecutor’s race-neutral explanation for the strikes
was credible. “‘The credibility of the prosecutor’s explanation goes to the heart of the
equal protection analysis, and once that has been settled, there seems nothing left to
review.’” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (quoting Hernandez v. New
York, 500 U.S. 352, 367 (1991)). This is because “a state court’s finding of the absence
of discriminatory intent is ‘a pure issue of fact’ accorded significant deference[.]” Id. at
339. On habeas review, findings of fact made by the state court are presumptively
correct and must be rebutted by the petitioner by clear and convincing evidence. 28
U.S.C § 2254(e)(1). Petitioner has not rebutted with clear and convincing evidence the
factual finding by the trial court that the prosecutor’s race-neutral explanations for the
strikes were credible. Therefore, this Court must defer to the state court’s ruling on the
issue of purposeful discrimination, and to the state appellate court’s conclusion that no
Batson error occurred. Habeas relief is not warranted on this claim.
C. Sentencing Guidelines
Petitioner’s final claim asserts that the trial court violated his Sixth Amendment
jury trial rights by considering facts not proven beyond a reasonable doubt in scoring the
sentencing guidelines. The Michigan Court of Appeals rejected this claim on the merits
as follow:
In People v. Lockridge, 498 Mich. 359, 364 (2015), our Supreme
Court held that a defendant’s Sixth Amendment rights are violated when
judicially found facts are used to increase his or her minimum sentence.
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Thus, “[t]o remedy the constitutional violation,” the Supreme Court
“sever[ed] MICH. COMP. LAWS § 769.34(2) to the extent that it makes the
sentencing guidelines range as scored on the basis of facts beyond those
admitted by the defendant or found by the jury beyond a reasonable doubt
mandatory.” Id. If, however, the facts admitted by the defendant or found
by the jury are sufficient to score the offense variables, relief is not
required. Id. at 395.
Here, the trial court’s 25-point score for OV 1, which is appropriate
where “[a] firearm was discharged at or toward a human being[,]” MICH.
COMP. LAWS § 777.31(1)(a), was supported by facts found by the jury.
Specifically, in order to find defendant guilty of second-degree murder, the
jury was required to find that a firearm was discharged at the victim, which
is all that is required to support a 25-point OV 1 score. Similarly, the trial
court’s 25-point score for OV 6, which is appropriate where “[t]he offender
had unpremeditated intent to kill, the intent to do great bodily harm, or
created a very high risk of death or great bodily harm knowing that death
or great bodily harm was the probable result[,]” MICH. COMP. LAWS §
777.36(1)(b), was also supported by facts found by the jury. Specifically, in
order to find defendant guilty of second-degree murder, the jury was
required to find that defendant acted with malice, which “is defined as the
intent to kill, the intent to cause great bodily harm, or the intent to do an
act in wanton and willful disregard of the likelihood that the natural
tendency of such behavior is to cause death or great bodily harm.” People
v. Goecke, 457 Mich. 442, 464 (1998). Accordingly, we conclude that
resentencing is not required based on the trial court’s scoring of OVs 1
and 6.
Perry, 2016 WL 6127819, at *4-5.
Under clearly established Supreme Court law, any fact that increases the
mandatory minimum sentence for a crime is an element of the criminal offense and
must be proved beyond a reasonable doubt. See Alleyne v. United States, 570 U.S. 99,
103 (2013). Alleyne expanded the Supreme Court's holdings in Apprendi v. New Jersey,
530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v.
Booker, 543 U.S. 220 (2005), in which the Court held that any fact that increases or
enhances a penalty for a crime beyond the prescribed statutory maximum for the
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offense must be submitted to the jury. The Michigan Supreme Court relied on Alleyne to
hold that Michigan’s mandatory sentencing guidelines scheme violated the Sixth
Amendment right to a jury trial. See People v. Lockridge, 498 Mich. 358 (2015).
Moreover, the Sixth Circuit recently granted habeas relief on a challenge to Michigan’s
sentencing guidelines on the basis that the Supreme Court’s decision in Alleyne clearly
established

that

Michigan’s

mandatory

minimum

sentencing

scheme

was

unconstitutional. Robinson v. Woods, No. 16-2067, 2018 WL 4039848, at * 5-6 (6th. Cir.
Aug. 24, 2018).
Here, the Michigan Court of Appeals found that no Judge-found facts were used
to score the sentencing guidelines. The only Offense Variables challenged by Petitioner
concerned the use of a firearm during the offense and the offender’s intent to kill or
injure. By finding Petitioner guilty of second degree murder under the facts of this case,
the jury necessarily found that a gun was used to kill the victim and that Petitioner knew
of or shared Ruiz’s intent to kill or do great bodily harm. The former finding is based on
the uncontroverted evidence at trial indicated that the victim died as the result of
gunshot wounds. And the second finding is based on the jury instruction that required
the jury to find Petitioner guilty of murder only upon a finding beyond a reasonable
doubt that he acted with malice or knew that Ruiz acted with malice. Dkt. 8-10, at 20506, 208. Therefore, none of the challenged sentencing guideline factors were scored
based on facts not proven beyond a reasonable doubt.
As none of Petitioner’s claim merit relief, the petition will be denied.
IV. Certificate of Appealability
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The Court will deny a certificate of appealability because jurists of reason would
not debate the Court’s analysis with respect to any of Petitioner’s claims. 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). The Court will also deny
Petitioner permission to appeal in forma pauperis because any appeal could be taken in
good faith. 28 U.S.C. § 1915(a)(3).
V. Conclusion
Accordingly, the Court 1) DENIES 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.

Dated: October 24, 2018

s/Sean F. Cox
Sean F. Cox
U. S. District Judge

I hereby certify that on October 24, 2018, the foregoing document was served on
counsel of record via electronic means and upon Jessie Perry via First Class mail at the
address below:
Jessie Perry
959541
CHIPPEWA CORRECTIONAL FACILITY
4269 W. M-80
KINCHELOE, MI 49784
s/J. McCoy
Case Manager

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