Weaver v. Chapman
Filing
22
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by District Judge George Caram Steeh. (LHos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRUCE ALAN WEAVER,
Petitioner,
v.
Case Number 2:17-CV-13094
Honorable George Caram Steeh
CHANDLER CHEEKS,
Respondent.
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OPINION AND ORDER DENYING THE PETITION
FOR A WRIT OF HABEAS CORPUS, DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Bruce Alan Weaver, (“Petitioner”), filed a pro se habeas corpus
petition challenging his state conviction for armed robbery, Mich. Comp.
Laws § 750.529.
Petitioner alleges the ineffective assistance of trial and appellate
counsel. The State argues in an answer to the petition that the state
courts reasonably rejected petitioner’s claims. For the reasons stated
below, the petition for a writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted following a jury trial in the Eaton County
Circuit Court. This Court recites verbatim the relevant facts relied upon by
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the Michigan Court of Appeals, which are presumed correct on habeas
review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009):
Defendant was accused of robbing a Pizza Hut with a toy gun.
He admitted to the robbery, but asserted that he was under
duress due to threats of harm to himself and his family from
drug dealers.
************************************************************************
Defendant asserted that he was compelled to commit the
robbery in order to avoid being harmed by his drug suppliers.
Defendant explained that he owed $1,050 to his drug suppliers
that he was supposed to pay at the beginning of May 2014, that
his drug suppliers demanded payment on April 16, 2014, and
that he was able to avoid them until April 19, 2014, the day
before the robbery. Defendant said that the drug suppliers
arrived at his home on April 19 and displayed a gun while
threatening to kill him and his family for non-payment.
Defendant described being afraid because he thought the drug
dealers were going to kill him or his family or friends, and
explained that he therefore attempted to rob the restaurant.
People v. Weaver, No. 326468, 2016 WL 2943239, at *1, 2 (Mich. Ct.
App. May 19, 2016).
Petitioner’s conviction was affirmed. Id., lv. den. 500 Mich. 924, 888
N.W.2d 112 (2017).
Petitioner filed a petition for a writ of habeas corpus, which has held
in abeyance so that petitioner could exhaust his ineffective assistance of
appellate counsel claim. Weaver v. Chapman, No. 2:17-CV-13094, 2019
WL 2024496 (E.D. Mich. May 8, 2019).
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Petitioner filed a post-conviction motion for relief from judgment,
which was denied. People v. Weaver, No. 14-020156-FC (Eaton County
Circuit Court, July 16, 2019)(ECF No. 20-3). The Michigan appellate courts
denied petitioner’s post-conviction appeal. People v. Weaver, No. 350342
(Mich. Ct. App. Jan. 2, 2020); lv. den. 506 Mich. 853, 946 N.W.2d 274
(2020).
This Court reopened the case and permitted petitioner to file an
amended petition. Petitioner seeks habeas relief on the following grounds:
I.
Petitioner was deprived of his Sixth Amendment rights to
both the effective assistance of counsel and compulsory
process by his first appointed trial attorney when:
(A) counsel failed to investigate the only plausible line of
defense by refusing to contact and interview two
witnesses who were crucial to petitioner’s defense in
spite of petitioner’s repeated requests for assistance and
when
(B) counsel made no attempt to obtain expert investigative
assistance he admittedly knew could be appointed upon
request in order to compel the attendance of witnesses
when fear precluded him from contacting them himself[.]
II.
Petitioner was deprived of his Sixth Amendment right to
the effective assistance of appellate counsel when
counsel relied on the existing record alone to raise a
claim of ineffective assistance of trial counsel and
neglected to file a separate motion to remand for an
evidentiary hearing with an affidavit in support as required
by Michigan Court Rule 7.211(c)(1)(a)&(ii)[.]
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II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of
review for habeas cases:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of
the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
A decision of a state court is “contrary to” clearly established federal
law if the state court arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ
simply because that court concludes in its independent judgment that the
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relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11. “[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)(citing Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)).
III. Discussion
Petitioner argues he was denied the effective assistance of trial and
appellate counsel.
To prevail on his ineffective assistance of counsel claims, petitioner
must show that the state court’s conclusion regarding these claims was
contrary to, or an unreasonable application of, Strickland v. Washington,
466 U.S. 668 (1984). See Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). Strickland established a two-prong test for claims of ineffective
assistance of counsel: the petitioner must show (1) that counsel’s
performance was deficient, and (2) that the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687. The Strickland
standard applies as well to claims of ineffective assistance of appellate
counsel. See Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).
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Petitioner in his first claim argues that his first trial counsel, whom
was later replaced, was ineffective for failing to interview Maria Coulson
and Wanda Cartwright as possible defense witnesses to support
petitioner’s duress defense. It is unclear whether petitioner is also arguing
that his subsequently retained trial counsel should have also attempted to
locate and call Coulson and Cartwright as witnesses in support of the
duress defense. Petitioner also claims that trial counsel should have
obtained investigative assistance to help locate these two women, who fled
Eaton County after allegedly being threatened by the same drug dealers
who threatened to kill petitioner and his family.
Petitioner is not entitled to relief on his claim because he failed to
provide to the Michigan courts on either direct or collateral review or to this
Court an affidavit from Maria Coulson and Wanda Cartwright concerning
their proposed testimony and willingness to testify on petitioner’s behalf.
Conclusory allegations of ineffective assistance of counsel, without any
evidentiary support, do not provide a basis for habeas relief. See Workman
v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). By failing to present any
evidence to the state courts in support of his ineffective assistance of
counsel claim, petitioner is not entitled to an evidentiary hearing on his
ineffective assistance of counsel claim with this Court. See Cooey v. Coyle,
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289 F.3d 882, 893 (6th Cir. 2002)(citing 28 U.S.C. § 2254(e)(2)(A)(ii)).
Petitioner offered, neither to the Michigan courts nor to this Court, any
evidence beyond his own assertions as to whether Ms. Coulson or Ms.
Cartwright would have been able to testify and what the content of their
testimony would have been. In the absence of such proof, petitioner is
unable to establish that he was prejudiced by counsel’s failure to interview
Ms. Coulson or Ms. Cartwright or call them to testify at trial, so as to
support the second prong of an ineffective assistance of counsel claim. See
Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007).
Petitioner is also not entitled to relief on the claim because any
testimony from Coulson and Cartwright concerning threats by the drug
dealers would have been cumulative of petitioner’s own testimony that
these drug dealers had threatened to kill petitioner and his family because
he owed them money for the drugs that petitioner had purchased.
Petitioner in his reply brief acknowledges that in addition to his own
testimony, prosecution witness Roy Smith had testified at trial that
petitioner told him and his brother the night before petitioner was arrested
that he was scared that “Dred” was going to come up from Detroit and kill
him. (ECF No. 9, PageID.1626). A review of the trial record shows that Mr.
Smith, in fact, had testified that petitioner had told him he was afraid that
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“Dred” was going to come up from Detroit and kill him. (ECF No. 8-7,
PageID.1135).
Petitioner was not prejudiced by counsel’s failure to call Ms. Coulson
or Ms. Cartwright because their testimony was cumulative of other
evidence in support of petitioner’s claim that a drug dealer had threatened
to kill him and his family because he owed the drug dealer money for
drugs. Wong v. Belmontes, 558 U.S. 15, 22-23 (2009); see also United
States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995); Johnson v. Hofbauer,
159 F. Supp. 2d 582, 607 (E.D. Mich. 2001). The jury had significant
evidence presented to it that petitioner had committed the armed robbery
out of duress in order to pay back a drug debt. Because the jury was “well
acquainted” with evidence that would have supported petitioner’s duress
defense, additional evidence in support of petitioner’s defense “would have
offered an insignificant benefit, if any at all.” Wong, 558 U.S. at 23.
Finally, petitioner is unable to establish that he was prejudiced by trial
counsel’s failure to investigate and present these two witnesses because
he did not have a viable duress defense under Michigan law.
In Michigan, duress is a common-law affirmative defense that arises
in situations where the defendant commits a crime to avoid a greater harm.
Dando v. Yukins, 461 F.3d 791, 803 (6th Cir.2006)(citing People v.
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Lemons, 454 Mich. 234, 562 N.W.2d 447, 453 (1997)). The defendant
bears the burden to produce some evidence from which the jury could
conclude that each of the following elements are present:
(A) The threatening conduct was sufficient to create in the mind
of a reasonable person the fear of death or serious bodily
harm;
(B) The conduct in fact caused such fear of death or serious
bodily harm in the mind of the defendant;
(C) The fear or duress was operating upon the mind of the
defendant at the time of the alleged act; and
(D) The defendant committed the act to avoid the threatened
harm.
Lemons, 562 N.W.2d at 453 (internal quotation omitted).
In addition, the threatening conduct must be “‘present, imminent, and
impending’”; “‘threat of future injury is not enough’”; and “‘the threat must
have arisen without the negligence or fault of the person who insists upon it
as a defense.’” Id. at 454 (quoting People v. Merhige, 212 Mich. 601, 180
N.W. 418, 422 (1920)). A defendant may forfeit a duress defense when he
fails to use a reasonable opportunity to escape if it would not unduly
expose him to death or serious bodily injury. Id. at n. 18.
The Michigan Court of Appeals, in rejecting petitioner’s related
sufficiency of evidence claim, concluded that the evidence was sufficient to
show that he did not act under duress:
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Here, while defendant may have believed that he and his family
were vulnerable and that the threat was likely to be carried out
on the night of the robbery if he did not pay the debt, there was
no testimony regarding the whereabouts of the drug suppliers
at that time, defendant stated that he thought he had to have
the money the day following the threat and yet spent the day
and evening celebrating Easter with his family before the nearly
10 p.m. robbery, and defendant remained in the community
attempting to secure money to pay the debt for nine days after
the robbery, until his arrest. The jury could reasonably have
inferred from this evidence that defendant faced a future threat
and did not, in accordance with the trial court’s instructions,
face fear at the time he acted.
Further, the threat to defendant and his family must have
materialized “without the negligence or fault of the person who
insists upon it as a defense.” Defendant explained that he was
threatened due to a debt he incurred as a result of his use of
drugs supplied by those who threatened him. Additionally,
defendant did not accept a $500 loan that was offered to him
from a cash advance business, and considered but did not
pursue loans from other businesses, family, or friends before
searching for a business from which to steal. Further, defendant
did not attempt to flee, as he reported two of his friends did
when they were threatened. Finally, defendant did not ask the
police to protect him or his family after he was threatened. This
evidence was sufficient for the jury to have concluded that
defendant was at fault for the debt that was incurred and not
addressed, which produced the pressure of the threat that was
directed at him and his family, and that he was therefore not
absolved of responsibility for the robbery owing to the defense
of duress.
People v. Weaver, 2016 WL 2943239, at *2 (internal citation omitted).
The Michigan Court of Appeals subsequently employed the same
rationale to reject petitioner’s ineffective assistance of trial counsel claim:
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Even if defendant could show that counsel’s performance was
deficient, he has not established prejudice. Defendant
acknowledged that he committed the crime, and he explained
his reasons for the decision. Cumulative testimony that his drug
dealers were also threatening others with violence due to their
debts would likely not have changed the jury’s determination
that defendant was not excused from committing the crime
under the circumstances. Presuming that the testimony would
have reinforced the evidence that defendant was also
threatened, it would not have established that the situation
arose from something other than defendant’s illegal conduct.
People v. Weaver, 2016 WL 2943239, at *5.
Petitioner did not have a viable duress defense largely because it
was his own negligence or fault in incurring a debt from the purchase of
illegal drugs that lead to the threats against him and his family. See e.g.
Lindbloom v. Bell, No. 2:07-cv-11147, 2008 WL 4858436, at *4 (E.D. Mich.
Nov. 10, 2008)(“Petitioner could not establish that the threat arose without
his negligence or fault given that he incurred a debt for the purchase of
illegal drugs, which he was unable to pay.”); People v. Humber, 2000 WL
33389723, *1 (Mich. Ct. App. Dec.26, 2000)(rejecting duress defense
where defendant chose to smoke crack cocaine, knowing that she was
unable to pay for it); People v. Robinson, 2000 WL 33405363, *3 (Mich. Ct.
App. Oct. 24, 2000)(rejecting duress defense where duress resulted from
defendant’s own conduct in purchasing illegal drugs). Moreover, petitioner
did not attempt to seek the protection of law enforcement or undertaken
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other affirmative steps to avoid the harm. Because petitioner did not have
a viable duress defense under Michigan law, he failed to show that he was
prejudiced by counsel’s failure to call additional cumulative witnesses in
support of his duress defense. See e.g. Bennett v. Brewer, 940 F.3d 279,
289-90 (6th Cir. 2019).
Petitioner next claims that trial counsel was ineffective for failing to
hire a private investigator or have one appointed for him by the court.
Petitioner, however, has failed to show that counsel would have obtained
beneficial information had he hired an investigator, thus, he failed to
establish that he was prejudiced by counsel’s failure to hire an investigator.
See Welsh v. Lafler, 444 F. App’x 844, 851 (6th Cir. 2011)(Defense
counsel’s failure to hire private investigator during prosecution for criminal
sexual conduct did not prejudice defendant, and thus was not ineffective
assistance; defendant failed to present sufficiently detailed and convincing
account of what additional facts investigator could have discovered in
support of defendant’s innocence). Petitioner is not entitled to relief on his
first claim.
Petitioner in his second claim alleges that appellate counsel was
ineffective for failing to seek an evidentiary hearing on petitioner’s
ineffective assistance of trial counsel claim pursuant to People v. Ginther,
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390 Mich. 436, 212 N.W.2d 922 (1973) or to otherwise develop a factual
record for petitioner’s duress defense on petitioner’s appeal of right.
Petitioner is not entitled to habeas relief on this claim for several
reasons.
First, appellate counsel’s decision to raise the ineffective assistance
of trial counsel claim without conducting an evidentiary hearing was a
“reasonable recognition that the allegations of ineffective assistance could
be determined from the trial transcript alone. No additional evidence was
really necessary for the [appellate] court to make a fair determination of the
[S]ixth [A]mendment issue.” Young v. Miller, 883 F.2d 1276, 1280 (6th Cir.
1989).
Moreover, assuming that appellate counsel was ineffective for failing
to proceed with a Ginther hearing, petitioner was not prejudiced by
appellate counsel’s failure to do so because petitioner failed to show that
the underlying ineffective assistance of trial counsel claim had merit. In
light of the fact that petitioner’s ineffective assistance of trial counsel claim
is without merit, petitioner is unable to establish that he was prejudiced by
appellate counsel’s failure to conduct a Ginther hearing. See e.g. Davis v.
Booker, 594 F. Supp. 2d 802, 831 (E.D. Mich. 2009); rev’d on other grds,
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589 F.3d 302 (6th Cir. 2009). Petitioner is not entitled to relief on his
second claim.
IV. Conclusion
The Court will deny the petition for a writ of habeas corpus. The
Court will also deny a certificate of appealability to petitioner. In order to
obtain a certificate of appealability, a prisoner must make a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To
demonstrate this denial, the applicant is required to show that reasonable
jurists could debate whether, or agree that, the petition should have been
resolved in a different manner, or that the issues presented were adequate
to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). When a district court rejects a habeas petitioner’s
constitutional claims on the merits, the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims to be debatable or wrong. Id. at 484. “The district
court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because he failed to make a substantial showing
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of the denial of a federal constitutional right. Myers v. Straub, 159 F. Supp.
2d 621, 629 (E.D. Mich. 2001). The Court will also deny petitioner leave to
appeal in forma pauperis, because the appeal would be frivolous. Id.
V. Order
Based upon the foregoing, IT IS ORDERED that the Petition for a
Writ of Habeas Corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a Certificate of Appealability is
DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to
appeal in forma pauperis.
Dated: June 14, 2021
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 14, 2021, by electronic and/or ordinary mail and also on
Bruce Alan Weaver #166127, Thumb Correctional Facility
3225 John Conley Drive, Lapeer, MI 48446.
s/Leanne Hosking
Deputy Clerk
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