Fundunburks v. Brewer

Filing 8

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Appeal In Forma Pauperis. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CANDICE FUNDUNBURKS,
#753292,
Petitioner,
vs.

Civil Action No. 18-CV-11399
HON. BERNARD A. FRIEDMAN

SHAWN BREWER,
Respondent,
__________________________/
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner is a Michigan prisoner who has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in Ingham County Circuit Court,
petitioner was convicted of second-degree murder, Mich. Comp. Laws § 750.317. She was
sentenced as a third-offense habitual offender, Mich. Comp. Laws § 769.11, to 300 to 480 months
of imprisonment. Petitioner now challenges the conviction by asserting a sufficiency of the
evidence claim. For the reasons set forth below, the Court shall deny the instant petition. The
Court shall also deny a certificate of appealability and leave 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):
On the evening of June 14, 2015, defendant and her eight-year boyfriend,
Jeremy Marshall, visited a club. While at the club, Marshall apparently
interacted with other women, and these interactions led to an argument
between the two. When the two returned home later that evening, according

to defendant, she and Marshall engaged in a lengthy physical altercation
during which Marshall assaulted and attempted to rape defendant.[FN1] Two
neighbors corroborated defendant’s account of the altercation.[FN2]
Marshall’s brother, who was sleeping on a couch in the home, testified that
the couple argued at the club and in the car but said that, once they returned
home, “[e]verything cooled down.” Consistent with Marshall’s brother’s
recollection of the events that evening, there were also no physical markings
on defendant to support her or the neighbors’ testimony that a physical
altercation occurred.[FN3] At some point during the early morning hours of
June 15, 2015, defendant used a kitchen knife to stab Marshall to death.[FN4]
Marshall’s cellphone was recovered during the investigation, and it
reflected text messages to and from a woman, but not defendant, that were
“flirtatious, probably sexual” in nature, that “described sexual positions
they favor or like,” and that involved plans to meet. Defendant was
originally charged with open murder, MCL 750.316, but, concluding that
the prosecution failed to present sufficient evidence to support that charge,
the trial court instructed the jury only on the elements of second-degree
murder and voluntary manslaughter. The jury found defendant guilty of
second-degree murder, and she was sentenced as described above. . . .
____________________
[FN1]

This is consistent with how defendant described the events that took
place during the early morning hours of June 15, 2015, at trial and how she
describes them on appeal. [H]owever, it is not how she described those
events to police officers that arrived at her home that morning.
[FN2]

It should be noted that defendant admitted asking her 19-year-old
daughter to speak with the neighbors “to get them on [her] side.”
[FN3]

Similarly, defendant did not mention the alleged assault or attempted
rape to police officers who arrived at the home later that morning.

[FN4]

Defendant stabbed Marshall in “his upper left side of his chest,” and he
was pronounced dead at 5:23 a.m. that morning.

People v. Fundunburks, No. 327479, at *1-2 (Mich. Ct. App. July 19, 2016) (unpublished); see
docket entry 6-13.
Petitioner’s conviction was affirmed on appeal, id., and the Michigan Supreme
Court denied the application for leave to appeal. People v. Fundunburks, 889 N.W.2d 260 (Mich.
2017).
Petitioner seeks habeas relief on the following ground:
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Defendant-Appellant is entitled to a new trial or entery [sic] of the lesser
ofense [sic] of voluntary manslaughter, where there was insufficient
evidence to find for a conviction of Second-Degree Murder.
***
Defendant submits the prosecution failed to satisfy the requirements of
malice. There was no evidence submitted that defendant either intended to
kill, or intended to create a very high risk of death with the knowledge that
her act would cause death or great bodily harm. The evidence supports a
finding of voluntary manslaughter. . . . What was in dispute was defendant’s
state of mind when she acted. Defendant’s actions, while intentional, were
. . . committed “under the influence of passion, in the heat of blood,
produced by adequate or reasonable provocation before a reasonable time
had elapsed for the blood and reason to resume.[”]
Pet. at 5 (PageID.5).
II. Standard of Review
Section 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.
28 U.S.C. § 2254(d).
A state court’s decision 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
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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 relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.
“[A] federal court’s collateral review of a state-court decision must be consistent
with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). The 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) (footnote omitted). “[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)). Therefore, in order to obtain habeas
relief in federal court, a state prisoner is required to show that the state court’s rejection of 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. A
habeas petitioner should be denied relief as long as it is within the “realm of possibility” that
fairminded jurists could find the state court decision to be reasonable. Woods v. Etherton, 136 S.
Ct. 1149, 1152 (2016).
III. Discussion
As noted above, petitioner claims that there was insufficient evidence to convict
her of second-degree murder. She argues that the prosecution failed to provide evidence to satisfy

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the element of malice and that the evidence therefore supports a finding of voluntary manslaughter.
She contends that her “state of mind when she acted” is in dispute and that her “actions, while
intentional, were . . . committed ‘under the influence of passion, in the heat of blood, produced by
adequate or reasonable provocation before a reasonable time had elapsed for the blood and reason
to resume.[’]” Pet. at 5 (PageID.5).
The Supreme Court has held that “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). Habeas
review of sufficiency of the evidence claims is limited to reviewing the elements of the crimes as
defined by state law. See Allen v. Redman, 858 F.2d 1194, 1197 (6th Cir. 1988) (citing Engle v.
Isaac, 456 U.S. 107 (1982), and Duffy v. Foltz, 804 F.2d 50 (6th Cir. 1986)). Under Jackson v.
Virginia, 443 U.S. 307 (1979), the crucial question in reviewing 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. 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.” Woodby v. INS, 385 U.S., at 282, 87 S.Ct., at
486 (emphasis added). 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. See Johnson v. Louisiana, 406 U.S., at 362, 92
S.Ct., at 1624–1625.
Jackson, 443 U.S. at 318-19 (emphasis in original; footnotes omitted). In other words, “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). A state court’s determination
that the evidence does not fall below that threshold is entitled to “considerable deference under
[the] AEDPA.” Id.

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A federal habeas court may not overturn a state court decision that rejects a
sufficiency of the evidence claim merely because the federal court disagrees with the state court’s
resolution of that claim. Instead, a federal court may grant habeas relief only if the state court
decision was an objectively unreasonable application of the Jackson standard. See Cavazos v.
Smith, 565 U.S. 1, 2 (2011). “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.
Under Michigan law, the elements of second-degree murder are: (1) a death, (2)
caused by an act of the defendant, (3) with malice, and (4) without justification or excuse. Stewart
v. Wolfenbarger, 595 F.3d 647, 654 (6th Cir. 2010) (citing People v. Goecke, 579 N.W.2d 868,
878 (Mich. 1998)). “[M]alice 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.” Id. (citing People v. Aaron, 299 N.W.2d
304, 326 (Mich. 1980)). Additionally, “[t]he offense of second-degree murder ‘does not require
an actual intent to harm or kill, but only the intent to do an act that is in obvious disregard of lifeendangering consequences.’” Id. at 658 (quoting People v. Aldrich, 631 N.W.2d 67, 80 (Mich. Ct.
App. 2001)).
A defendant is guilty of voluntary manslaughter in Michigan if the evidence
establishes “(1) that the defendant killed in the heat of passion; (2) that the passion was caused by
an adequate provocation; and (3) that there was not a lapse of time during which a reasonable
person could control his passions.” Richardson v. Berghuis, No. 2:07-CV-13405, 2010 WL
3290961, at *7 (E.D. Mich. Aug. 16, 2010) (internal citation omitted). Although the prosecution
must prove its case beyond a reasonable doubt, under Michigan law “the burden of proof to show

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provocation . . . is on the defendant, and it must be shown by a preponderance of the evidence.”
Ruelas v. Wolfenbarger, 580 F.3d 403, 413 (6th Cir. 2009) (citing People v. Darden, 585 N.W.2d
27, 31 (Mich. Ct. App. 1998)).
The Michigan Court of Appeals rejected petitioner’s claim on the merits and held
that there was sufficient evidence, including evidence of malice, to support her conviction for
second-degree murder:
[W]e conclude that the prosecution presented sufficient evidence to support
the jury’s verdict. Defendant’s argument on appeal relies entirely on her
own version of the events that occurred in the early morning hours of June
15, 2015, which, as stated above, is improper. Tennyson, 487 Mich at 735;
Hardiman, 466 Mich at 421. Nevertheless, we think it is important to
briefly describe how her own version of events has evolved since she
stabbed her boyfriend to death that morning. When officers first arrived at
the scene, she informed an officer that Marshall had arrived at home
completely naked with a stab wound in his chest that morning. Later,
however, she stated that Marshall had arrived home clothed but still with a
stab wound in his chest. It does not appear that she ever clarified how his
clothing was removed in this version, and no blood was found on the shirt
that he was wearing earlier that morning. Throughout the entire morning,
defendant denied knowing how Marshall was stabbed. At trial, defendant’s
version was quite a bit different. She testified that defendant was “pushing,”
“chasing,” “throwing,” “punching,” “grabbing,” “beating,” and “choking”
her because she refused to have sex with him. Then, defendant testified,
she stabbed Marshall once in the chest with a kitchen knife in self-defense.
She denied experiencing any jealousy regarding Marshall’s relationships
with other women. Now, for the first time on appeal, she claims that she
stabbed Marshall during a “heat of passion,” not in self-defense. Thus, she
concludes, she is guilty of voluntary manslaughter, not second-degree
murder. We disagree.
The prosecution presented sufficient evidence to support the jury’s verdict
of second-degree murder. Viewing the evidence in a light most favorable
to the prosecution, Tennyson, 487 Mich at 735; Hardiman, 466 Mich at
421, the jury was presented with evidence that defendant killed her
boyfriend out of jealousy over his relationships with other women.
Evidence admitted at trial demonstrated that Marshall’s and defendant’s
fingerprints were on Marshall’s cellphone, and the jury could infer from
this, especially in light of their argument regarding other women several
hours before Marshall was murdered, that defendant was angry with
Marshall and jealous of his relationships with other women. Additionally,
the fact that defendant stabbed Marshall with a five-inch knife in the chest,
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i.e., the area where the heart is located, also supports defendant’s intent at
the time of the stabbing. See Henderson, 306 Mich App at 11; see also
People v Stiller, 242 Mich App 38, 43; 617 NW2d 697 (2000). Finally, the
fact that she asked her grown daughter “to get [the neighbors] on [her] side”
could also be considered by the jury as evidence of defendant’s guilt.
Accordingly, viewing the evidence in a light most favorable to the
prosecution and drawing all reasonable inferences and credibility
determinations in support of the verdict, Gonzalez, 468 Mich at 640-641;
Nowack, 462 Mich at 399-400, we conclude that there was sufficient
evidence to support the jury’s verdict.
Fundunburks, No. 327479, at *3.
The Michigan Court of Appeals disagreed with petitioner “that the evidence as
presented compelled a voluntary-manslaughter conviction.” Id. The court reasoned:
The jury heard defendant’s and several defense witnesses’ testimony, and
all of those witnesses testified that defendant was involved in a severe
altercation with Marshall prior to his death. Defendant specifically testified
that Marshall assaulted and tried to anally, orally, and vaginally rape her
just moments before she stabbed him in self-defense. From this testimony,
the jury was certainly permitted to conclude that defendant acted in a heat
of passion (or in self-defense). But, it did not, and we will not interfere with
the jury’s assessment of the weight and credibility of the witnesses’
testimony or evidence presented at trial. People v Dunigan, 299 Mich App
579, 582; 831 NW2d 243 (2013); People v Wolfe, 440 Mich 508, 514-515;
489 NW2d 748 (1992). It is apparent that the jury did not find defendant’s
version of events at trial credible, and that lack of credibility was supported
by several witnesses’ testimony and other evidence. Specifically,
defendant never mentioned the alleged assault and attempted rape to any
police officer, and all officers testified that defendant did not have any
physical injuries when they arrived at the scene. Accordingly, we conclude
that the jury’s verdict was supported by sufficient evidence.
Id. at *3-4.
In the present case, petitioner has not shown that the Michigan Court of Appeals’
rejection of 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.” Richter, 562
U.S. at 103. That court reasonably determined that viewing the evidence in the light most
favorable to the prosecution, there was sufficient evidence to support the jury’s verdict of second8

degree murder in part because a rational trier of fact could conclude that petitioner acted with
malice when she stabbed the victim. The court noted that “the jury was presented with evidence
that defendant killed her boyfriend out of jealousy over his relationships with other women.”
Fundunburks, No. 327479, at *3. It found that “the fact that defendant stabbed [him] with a fiveinch knife in the chest, i.e., the area where the heart is located, also supports defendant’s intent at
the time of the stabbing.” Id. This determination is entitled to “considerable deference” because
it is a proper application of the Jackson standard and was not “so insupportable as to fall below
the threshold of bare rationality.” Coleman, 566 U.S. at 656. As the court noted, even if evidence
was presented by petitioner that could have supported a voluntary manslaughter verdict, the jury
was not required to accept petitioner’s version of the facts. Fundunburks, No. 327479, at *3-4.
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). 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 been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El, 537 U.S. at 336 (internal quotations and citations omitted). 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). In this case, the Court shall
deny petitioner a certificate of appealability because she has failed to make a substantial showing
of the denial of a federal constitutional right, as discussed above. See Dell v. Straub, 194 F. Supp.

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2d 629, 659 (E.D. Mich. 2002). The Court shall also deny petitioner leave to appeal in forma
pauperis because any appeal would be frivolous. Id.
V. Conclusion
For the reasons stated above,

IT IS ORDERED that the petition for a writ of habeas corpus is denied.

IT IS FURTHER ORDERED that a certificate of appealability is denied. The Court
also denies permission to appeal in forma pauperis

Dated: May 8, 2019
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR U.S. DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of
record herein by electronic means or first-class U.S. mail on May 8, 2019.
Candice Fundunburks #753292
Huron Valley Complex - Womens
3201 Bemis Rd
Ypsilanti, MI 48197-9307

s/Johnetta M. Curry-Williams
Case Manager

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