Smith v. Brewer

Filing 18

OPINION and ORDER (1) Denying the Petition for Writ of Habeas Corpus; (2) Declining to Issue a Certificate of Appealability; But (3) Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ASHTON ARNIZE SMITH,
Petitioner,
Case No. 16-14513
Honorable Linda V. Parker

v.
SHAWN BREWER,
Respondent.
__________________________________/

OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS; (2) DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY; BUT (3) GRANTING LEAVE TO APPEAL IN FORMA
PAUPERIS
Petitioner Ashton Arnize Smith (“Petitioner”), confined at the Cotton
Correctional Facility in Jackson, Michigan, has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his
Michigan convictions for second degree murder in violation of Michigan Compiled
Laws § 750.317, assault with intent to do great bodily harm less than murder in
violation of Michigan Compiled Laws § 750.84, and felony-firearm in violation of
Michigan Compiled Laws § 750.227b. For the reasons that follow, the Court is
denying Petitioner habeas relief and a certificate of appealability, but granting him
leave to proceed in forma pauperis on appeal.

I.

Background

Petitioner’s convictions arose from a shooting that occurred in the early
morning hours of August 30, 2008, at a townhouse in Detroit, Michigan. Tremaine
Johnson and Ashley Wilson lived at the townhouse, which was two stories with a
kitchen and living and dining areas on the first floor and two bedrooms and a
bathroom on the second floor. (3/1/10 Trial Tr. at 58, 61, 62, ECF No. 15-4 at Pg
ID 510, 514, 515.) Johnson and Wilson had been friends since middle school. (Id.
at 6, Pg ID 459.) They, along with another school friend, Keith Cooper, sold
marijuana from the residence. (Id. at 10-11, Pg ID 464-65.)
Johnson, Wilson, and Cooper were at the townhouse the evening of August
29, 2008. Johnson went to sleep upstairs at around 10:00 p.m. (3/1/10 Trial Tr. at
65-66, ECF No. 15-4 at Pg ID 518-19.) Melvin Almond, Darryll Duckett, and
Anthony Harris also came to the townhouse later that evening or in the early
morning hours of August 30. They too were school friends with Johnson, Wilson,
and Cooper.
At Petitioner’s bench trial, Almond testified that he lived in the same
complex as Johnson and went to Johnson’s house at about 3:00 a.m. to finish
washing clothes he had started earlier that day. (2/25/10 Trial Tr. at 51-53, ECF
No. 15-3 at Pg ID 323-25.) Almond explained that he did not have a washer or
dryer in the apartment he lived in with his mother, but Johnson allowed Almond to
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use his machines. (Id.) Almond testified that he went directly into the basement,
where the machines were located, when he arrived at Johnson’s house. (Id. at 54,
Pg ID 326.)
About seven to eight minutes later, Almond returned to the first floor and
walked toward the living room and adjacent dining room area. (Id. at 55, 64, Pg
ID 327, 336.) On his way, Almond passed Petitioner in the hallway walking
toward the kitchen and the stairs. (Id. at 64-66, Pg ID 336-38.) Almond testified
that he did not know Petitioner. (Id. at 66, pg ID 338.) According to Almond,
Petitioner had a wet towel draped over his head and was saying he was “high as
hell.” (Id. at 64, Pg ID 336.)
Almond entered the dining room area, sat down in a chair, plugged his cell
phone into the wall, and began texting. (Id. at 67-68, Pg ID 339-40.) He testified
that Wilson was sitting in a chair next to the dining room table playing a video
game on the television in the adjacent living room. (Id. at 58-59, Pg ID 330-31.)
That same chair was overturned when the police arrived after the shooting. (Id.)
Cooper and Duckett were sitting on the sectional couch in the living room. (Id. 5960, Pg ID 331-32.) Harris was asleep on the couch. (Id. at 63, Pg ID 335.)
Within minutes of Almond sitting down, he heard gunshots, looked up, and
saw Petitioner coming towards him from the hallway with a gun in his extended
hand. (Id. at 69-70, Pg ID 341-42.) Standing approximately ten to fifteen feet
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away, Petitioner shot Almond in the upper right part of his chest. (Id. at 71-73, Pg
ID 343-45.) From the ground where he fell, Almond saw Petitioner continue
shooting in the direction of Wilson, Duckett, Cooper, and Harris. (Id. at 74-75, Pg
ID 346-47.)
Almond described Wilson as trying to escape the gunfire, twisting his body
left to move behind the entertainment system when he was shot by Petitioner. (Id.
at 76, 80-81, Pg ID 348, 352-53.) Duckett was trying to open the patio sliding
door and, realizing the glass had shattered, ran through the frame and away from
the townhouse. (Id. at 83-84, Pg ID 355-56.) Almond saw Petitioner chase after
Duckett. (Id.)
Almond then exited the townhouse through the front door, as did Wilson.
(Id. at 85-86, Pg ID 357-58.) Almond saw Johnson jump off the townhouse roof
and run across the street to seek help from a neighbor. (Id.) Almond ran down the
street to his own apartment, and alerted his mother and his aunt that he had been
shot. Almond’s aunt then drove Almond, Wilson, and Johnson to the hospital.
Wilson died that day of a single gunshot wound to the right buttock, which
exited the right abdomen area. (2/25/10 Trial Tr. at 49, Pg ID 321.) According to
the medical examiner’s report, there was no evidence of close range firing. (Id.)
Wilson was twenty-years old. (Id.)

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Almond testified that he did not see anyone but Petitioner with a gun inside
the townhouse. (Id. at 91, Pg ID 363.) He further testified that he was unaware of
the shotgun later found by police behind the couch in the living room and never
saw anyone with it that evening. (Id. at 92, Pg ID 364.) According to Almond, his
friends neither attacked nor made any aggressive movements toward Petitioner.
(Id. at 93, Pg ID 365.)
Duckett’s and Cooper’s recitations of the incident at Petitioner’s trial were
similar to Almond’s. Duckett provided that he and Harris went to Johnson’s
townhouse at around midnight or 1:00 a.m. and that Wilson and Almond also were
there when the incident occurred. (Id. at 131, Pg ID 403.) According to Duckett,
Petitioner (whom he had never met before) and “an acquaintance” came to the
house. (Id. at 136, Pg ID 408.) Petitioner left the residence for ten to twenty
minutes; and, when he returned, asked Wilson if he could use the bathroom. (Id. at
138, Pg ID 410.) Wilson told Petitioner it was upstairs and Petitioner left for about
five minutes. (Id. at 138-39, Pg ID 410-11.)
Duckett testified that Petitioner then returned to the living and dining room
area, pulled a pistol, and shot at Wilson and Almond. (Id. at 139, Pg ID 411.)
Duckett explained that he did not actually see Petitioner take a second shot,
because Duckett already had started running for the door. (Id. at 143-44, Pg ID
415-16.) Duckett ran out the back patio door and away from the townhouse. (Id.
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at 143-47, Pg ID 415-419.) Duckett testified that as he fled the premises, he saw
Petitioner follow him and play with the gun like it was jammed. (Id. at 147-48, Pg
ID 419-20.) Duckett then heard two more gunshots. (Id.)
Duckett testified that no one argued with Petitioner before the shooting and
none of his friends struggled with Petitioner for the gun or grabbed the shotgun
during the entire episode. (Id. at 152-54, Pg ID 424-26.) Duckett indicated,
however, that Wilson showed Petitioner the shotgun sometime after he first arrived
at the townhouse, and allowed Petitioner to hold it. (Id. at 161-62, Pg Id 433-34.)
Wilson told Petitioner he had just bought the shotgun and that it did not have any
bullets. (Id.) Petitioner then returned the shotgun to Wilson, who put it back
behind the sectional couch. (Id. at 162, Pg ID 434.) Duckett testified that Almond
was in the basement when this occurred. (Id.) According to Duckett, Petitioner
also bought a marijuana cigarette from Wilson and smoked it, sharing it with
Cooper. (Id. at 164, Pg ID 436.)
At trial, Cooper did not recall when Petitioner arrived at the townhouse, but
he remembered Wilson letting him in. (3/1/10 Trial Tr. at 20, ECF No. 15-4 at Pg
ID 473.) According to Cooper, Petitioner asked if they wanted to smoke and he,
Wilson, and Petitioner did. (Id. at 21, Pg ID 474.)
Cooper, who testified that he was drunk during the incident, only
remembered getting up and heading towards the kitchen when he saw Petitioner
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coming out of the kitchen shooting a gun. (Id. at 23-24, Pg ID 476-77.) Cooper
ran out the front door after hearing one gunshot. (Id. at 29-30, Pg ID 482-83.)
Petitioner testified that he went to Johnson’s house at around 2:00 a.m. on
August 30, in order to sell him some Cartier glasses to get money for a hotel room
after his “lady friend” kicked him out of her house. (3/4/10 Trial Tr. at 68-69, Pg
ID 611-62.) According to Petitioner, Johnson had offered to buy the glasses a
week or so earlier. (Id.) Petitioner knew Johnson from the neighborhood and had
purchased drugs from him before. (Id. at 67, Pg ID 610.)
When Petitioner arrived at the townhouse, Wilson let him in the front door.
(Id. at 69, Pg ID 612.) Petitioner testified that he knew Wilson because Wilson
sold marijuana with Johnson. (Id.) According to Petitioner, Cooper, Duckett, and
Almond were at the house when he arrived, as well as a guy asleep on the couch.
(Id. at 69, Pg ID 612.) Petitioner described the individuals as occupying the same
positions in the two rooms as Almond provided during his testimony. (Id. at 7374, Pg ID 616-17.) According to Petitioner, the shotgun was standing up behind
the sectional couch when he arrived. (Id. at 75, Pg ID 619.)
Petitioner told Wilson why he was there and asked for Johnson, but Wilson
said he was asleep. (Id. at 69-70, Pg ID 612-13.) Petitioner testified that Wilson
asked to see the glasses and Petitioner handed them to him. (Id. at 70, Pg ID 613.)
Petitioner told Wilson the glasses were worth $1,700, but he bought them on the
7

street for $300 and that was all he wanted for them. (Id. at 71, Pg ID 614.) Wilson
offered Petitioner drugs in lieu of cash, but Petitioner declined saying he needed
money to pay for a place to stay for the night. (Id.)
Petitioner testified that Wilson then asked if he wanted to smoke a marijuana
blunt with him, and Petitioner said yes. (Id. at 76, Pg ID 619.) After they and
Almond took hits from the blunt, Petitioner asked Wilson again if he was
interested in buying the glasses. (Id.) Wilson said he only could give Petitioner
marijuana and cocaine for them. (Id.) Petitioner then asked Wilson to use the
bathroom. (Id. at 78, Pg ID 621.)
Petitioner testified that when he returned from using the bathroom, Duckett
was in the hallway near the basement door and Almond was standing near a table
in the dining room. (Id.) According to Petitioner, Wilson then walked up to him
with a pistol in his hand and told him “to check them glasses in.” (Id.) Wilson
then put the gun about an inch from Petitioner’s chest and took the glasses off his
face and passed them to Duckett or Cooper. (Id. at 78, 82, Pg ID 621, 625.)
Petitioner “attacked” Wilson for the gun and they began to struggle for it, with
Petitioner eventually disarming Wilson. (Id. at 82, Pg ID 625.)
Petitioner testified that he then was going to run out the front door but
worried that someone would grab the shotgun and shoot him. (Id. at 82-83, Pg ID
625-26.) He claimed that he then saw Wilson run toward the shotgun and so he
8

shot Wilson. (Id. at 83-84, Pg ID 626-27.) Petitioner testified that Almond then
went for the shotgun, so he shot him too. (Id. at 84, Pg ID 627.)
Petitioner testified that he then was going to run out the front door, but
thought that Johnson’s friends in the neighborhood might have heard the gunshots,
would be looking outside, and would come after him if they saw him running
away. (Id. at 85, Pg ID 628.) Petitioner therefore decided to run out through the
back patio door. (Id. at 86, Pg ID 629.) He first grabbed his glasses from Cooper’s
hands and shot twice at the glass of the door. (Id. at 86, Pg ID 629.) Petitioner
testified that he then threw the gun down inside the house and fled. (Id. at 86-87,
Pg ID 629-30.)
Petitioner went to his girlfriend’s house (different from his lady friend) and
stayed there for the night. (Id. at 87-88, Pg ID 630-31.)
Almond, Duckett, and Cooper testified that they did not see Petitioner
wearing glasses at the time of the incident. (2/25/10 Trial Tr. at 92, 153, ECF No.
15-3 at Pg ID 364, 425; 3/1/10 Trial Tr. at 38, ECF No. 15-4 at Pg ID 491.) When
asked, Almond testified that he also did not hear anyone talking to Petitioner
regarding glasses. (2/25/10 Trial Tr. at 92, ECF No. 15-3 at Pg ID 364.)
When the police searched the townhouse shortly after the shooting, they
found several casings from a 9 mm gun in the living and dining room area.
(2/25/10 Trial Tr. at 19-20, ECF No. 15-3 at Pg ID 290-93.) The only firearm
9

found in the residence was a shotgun next to the sectional. (Id. at 23-24, Pg ID
295-96.) The shotgun was not loaded and no ammunition was found in the
townhouse. (Id.)
After the shooting, Petitioner did not go to the police claiming that he was
assaulted or robbed at Johnson’s house. (3/4/10 Trial Tr. at 108, ECF No. 15-5 at
Pg ID 651.) Detroit Police Officers showed Almond, Cooper, and Duckett photo
arrays from which they identified Petitioner as the shooter. (2/25/10 Trial Tr. at
88-89, 151-52, ECF No. 15-3 at Pg ID 360-61, 423-24; 3/4/10 Trial Tr. at 49-50,
58-60, ECF No. 15-5 at Pg ID 592-93, 602.) Officers issued an arrest warrant for
Petitioner and he was arrested several months later. (3/4/10 Trial Tr. at ECF No.
15-5 at 60, 62, Pg ID 603, 605.) He subsequently was charged with first-degree
murder, two counts of assault with intent to commit murder, and felony-firearm.
A bench trial ensued before Judge Vonda R. Evans in the Wayne County
Circuit Court on February 25 and March 1-5, 2010. On March 5, 2010, Judge
Evans pronounced Petitioner guilty of the lesser offenses of second-degree murder
and assault with intent to do great bodily harm less than murder and felonyfirearm. In her oral ruling, Judge Evans rejected Petitioner’s self-defense claim,
but found a lack of evidence of specific intent to kill, stating:
First of all, the Court has to look at whether or not the
defendant acted in reasonable self-defense. The People have to show
that the defendant—the defendant does not have to prove that he acted
in self-defense, the prosecutor must prove, beyond a reasonable doubt,
10

that the defendant did not act in self-defense. Clearly, the defendant
did not act in self-defense.
The Court believes that at the time the evidence shows that, and
I’m going to find, that Ashley Wilson did have gun; that when he took
that gun from Ashley, he disarmed him—and I do believe that there
was a gun that was there and that he took it—that he no longer had an
honest and reasonable belief that in fact he was in danger of losing his
life. The fact of the matter is that you’ve got one person on the couch
that’s asleep, all during this situation, to the point that the police had
to wake him up. We’ve got Mr. Cooper that admits that he was
drunk.
Then we have the testimony of Mr. Almond and Mr. Duckett.
But, at the same time, the Court has to look at the fact that these were
Ashley’s friends.
Do I believe that—and so, once he disarms him, there is no
danger. There is no danger. However, I believe, at that point in time,
the defendant was angry that in fact this weapon had been pulled out.
He took the weapon. And I believe, based on the location of the
injury of Mr. Wilson, that there was not an intent to kill. He was
struck in the buttocks, not several times, but one time. Unfortunately,
that was a fatal shot.
Mr. Duckett indicated—I’m sorry—Mr. Almond indicated that
he was about ten to fifteen feet away, and he shot him, and he fell to
the ground.
We know, by the testimony, I mean by the evidence, that it
corroborates the area in which this did occur, from looking at the
diagram and sketches. The Court does not believe that even though
he was shot in the chest, the Court does not believe that he had the
specific intent to kill him, to murder him. The Court does in fact find,
beyond a reasonable doubt, that he had the specific—that he had the
intent to cause great bodily harm.
As to Mr. Duckett, the Court is going to indicate, based on Mr.
Duckett’s testimony—he said that the gun jammed; that the defendant
then tried to shoot at him; that he was able to get out of the location;
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and that the gun jammed, and that he was about five to ten yards
away, which is considerable.
I’m going to find the defendant—I don’t believe that the People
have proved that element. So, as to count three, the Court is going to
find the defendant not guilty.
(3/5/100 Trial Tr. at 30-32, ECF No. 15-6 at Pg ID 686-88.) The trial court
subsequently sentenced Petitioner to terms of imprisonment of 230 months to 30
years for the second-degree murder convictions, 2 to 10 years for the assault
convictions, and a consecutive 2-year term for the felony-firearm conviction.
Petitioner’s convictions were affirmed on direct appeal. People v. Smith,
No. 298157, 2012 WL 164098 (Mich. Ct. App. Jan. 19, 2012); lv. den. 815 N.W.
2d 431 (Mich. 2012). Petitioner filed his pending application for federal habeas
relief on December 27, 2016.1
Petitioner raises the following grounds in support of his request for habeas
relief:

Although the petition was untimely under the limitations period set forth in the
Antiterrorism and Effective Death Penalty Act of 1996, Petitioner filed a motion
for equitable tolling with his application for habeas relief. (See ECF No. 27,
2016.) The Court denied the motion without prejudice on April 4, 2017, finding
the motion premature as Respondent had not yet answered the petition and raised
the statute of limitations as a defense. (ECF No. 10.) Respondent thereafter filed a
motion to dismiss based on statute of limitations grounds. (ECF No. 11.) The
Court denied the motion on December 4, 2017, finding genuine issues of material
fact with respect to whether Petitioner was entitled to equitable tolling and
concluding that it would be more efficient to adjudicate the merits of his claims.
(ECF No. 13.)
12

1

I.

Was the ruling by the trial court that there was no basis for a
claim of self-defense against the great weight of the evidence?

II.

Should the trial court have granted a verdict of manslaughter on
the grounds that the killing occurred in the heat of passion
before adequate time to cool had occurred?

III.

Mr. Smith is entitled to a new trial where trial counsel rendered
ineffective assistance in the violation of state and federal
constitutions.

IV.

Mr. Smith’s state and federal constitutional rights were violated
when trial counsel failed to raise a likely meritorious defense.

V.

Offense variable 13 was improperly scored resulting in an
inappropriately inflated sentencing guidelines range. Mr.
Smith’s state and federal constitutional due process rights to be
sentenced on accurate information were thus denied. Further,
trial counsel rendered ineffective assistance at sentencing.

(Pet. at 3, ECF No. 1 at Pg ID 3.)
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

13

(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 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)). 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
14

it is within the “realm of possibility” that fairminded jurists could find the state
court decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152
(2016).
III.
A.

Discussion

Petitioner’s great weight/insufficiency of the evidence claims

In his first claim, Petitioner argues that the verdict was against the great
weight of the evidence. He also contends that there was insufficient evidence to
disprove his self-defense claim. In his second claim, Petitioner argues that he
should have been found guilty only of voluntary manslaughter because the
prosecution failed to prove beyond a reasonable doubt that he was not acting under
an adequate provocation that would mitigate the murder charge to manslaughter.
A federal habeas court cannot grant habeas relief on a claim that a state
conviction is against the great weight of the evidence. Riley v. Warden, Noble
Corr. Inst., No. 2017 WL 3597424, at *3 (6th Cir. Feb. 24, 2017) (citing Nash v.
Eberlin, 258 F. App’x 761, 764 n.4 (6th Cir. 2007) (“A manifest-weight claim is a
matter of state law and not cognizable on habeas review.”). Courts, however,
generally interpret such a claim as raising an insufficiency-of-the-evidence
argument when construing pro se habeas petitioners’ applications liberally, as they
must. See, e.g., Nash, 258 F. App’x at 764 n.4. An insufficiency-of-the-evidence
claim does not warrant habeas relief if “‘after viewing the evidence in the light
15

most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the criminal offense beyond a reasonable doubt,’ with
‘explicit reference to the substantive elements of the criminal offense as defined by
state law.’” Riley, 2017 WL 3597424, at *3 (quoting Jackson v. Virginia, 443 U.S.
307, 319, 324 n.16 (1979)).
The Court first turns to Petitioner’s claim that the prosecutor failed to
disprove his self-defense claim. Under Michigan law, “one acts lawfully in selfdefense if he honestly and reasonably believes that he is in danger of serious bodily
harm or death, People v. Heflin, 434 Mich. 482, 456 N. W.2d 10 (1990), as ‘judged
by the circumstances as they appeared to the defendant at the time of the act.’”
Blanton v. Elo, 186 F.3d 712, 713 n.1 (6th Cir. 1999) (quoting Mich. Std. Crim.
Jury Instr. 2d 7.15(3)). “A defendant is not entitled to use any more force than is
necessary to defend himself.” People v. Kemp, 508 N.W.2d 184,187 (Mich. Ct.
App. 1993), abrogated on other grounds in People v. Reese, 815 N.W.2d 85 (Mich.
2012). In Michigan the prosecution bears the burden of proving the absence of
self-defense when 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, Petitioner’s claim that the prosecution failed to disprove his
self-defense claim is not cognizable on habeas review. Under Michigan law, selfdefense is an affirmative defense. See Christian v. Romanowski, No. 17-1279,
16

2017 WL 4083632, at *3 (6th Cir. Aug. 25, 2017); see also People v. Dupree, 788
N.W.2d 399, 404 (Mich. 2010). “‘[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 affirmative defense to murder, the Constitution does not
require that the prosecution disprove self-defense beyond a reasonable doubt”);
Allen v. Redman, 858 F.2d 1194, 1197 (6th Cir. 1988) (explaining that habeas
review of sufficiency-of-the-evidence claims is limited to elements of the crimes as
defined by state law).
Even if Petitioner’s claim that the prosecutor failed to disprove his
affirmative defense of self-defense was cognizable on habeas review, it does not
entitle him to relief. This is because the Michigan Court of Appeals’ rejection of
Petitioner’s claim was neither contrary to nor an unreasonable application of
17

clearly established federal law, nor was it based on an unreasonable determination
of the facts in light of the evidence presented.
“[T]he 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, 443 U.S. at 318.
“[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). This standard applies to jury trials, as
well as bench trials. See, e.g., United States v. Bronzino, 598 F. 3d 276, 278 (6th
Cir. 2010).
“[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
18

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 Petitioner’s sufficiency-of-theevidence claim regarding self-defense, reasoning:
Here, defendant testified that Wilson threatened to shoot him,
but that defendant quickly disarmed Wilson. The trial court accepted
defendant’s testimony, but did not believe that either Wilson or
Almond then reached for a shotgun. The prosecution’s witnesses
testified that no one in the house made any threats to defendant and
that no one rushed toward the shotgun. Almond further testified that
he never threatened defendant and that he did not have a gun. The
trial court ruled that, after he disarmed Wilson, defendant was no
longer in imminent danger and that he did not act in self-defense . It is
well established that the trier of fact is in the best position to evaluate
the credibility of witnesses before it. Further, it is for the trier of fact
to determine what inferences can be fairly drawn from the evidence
and to determine the weight to be accorded to the inferences. In light
of the great deference given to the trial court’s credibility assessments,
and in light of other supporting testimony, the trial court did not
clearly err in rejecting defendant’s testimony that Wilson and Almond
reached for a shotgun and that defendant shot them in self-defense.
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Smith, 2012 WL 164098, at *1 (internal citations omitted). In light of the evidence
presented at Petitioner’s trial, this “finding was [not] so insupportable as to fall
below the threshold of bare rationality.” See Coleman, 566 U.S. at 656.
The Court next turns to Petitioner’s claim that there was insufficient
evidence presented to sustain his conviction for second-degree murder. Petitioner
argues that there was insufficient evidence because the prosecution failed to prove
beyond a reasonable doubt that he did not kill the victim in the heat of passion that
was caused by an adequate provocation.
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. See Stewart v. Wolfenbarger, 595 F.3d 647, 654 (6th Cir. 2010) (citing
People v. Goecke, 579 N.W.2d 868, 878 (Mich. 1998)). “Malice is defined as the
intent to kill, the intent to cause great bodily harm, or the intent to do an act in
wanton and wilful disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm.” Id. (citing People v. Aaron, 728,
299 N.W.2d 304, 326 (Mich. 1980)). Provocation is not an element of seconddegree murder. As set forth above, habeas review of a sufficiency-of-the-evidence
claim is limited to reviewing the elements of the crime as defined by state law. See
supra.

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Moreover, the state court’s conclusion that Petitioner was not acting under
the heat of passion when he shot Wilson was not an unreasonable determination of
the facts presented at trial.
For these reasons, the Court concludes that Petitioner is not entitled to
habeas relief based on the first and second grounds asserted in his application.
B.

Petitioner’s ineffective assistance of counsel claims

In his third and fourth grounds for relief, Petitioner asserts that his trial
counsel was ineffective. Specifically, Petitioner argues that his trial counsel was
ineffective for failing to object to inadmissible hearsay or opinion testimony from
prosecution witnesses. He further argues that counsel was ineffective by failing to
secure and review a copy of his presentence investigation report prior to the day of
sentencing and review and discuss the report with Petitioner prior to sentencing.
To establish an ineffective-assistance claim, a habeas petitioner must
demonstrate that counsel’s representation “fell below an objective standard of
reasonableness” and that he suffered prejudice as a result. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). There is “a strong presumption that
counsel’s conduct [fell] within the wide range of reasonable professional
assistance.” Id. at 689. Habeas review also mandates the application of a second
layer of deference: a habeas court analyzes only whether the state court was
reasonable in its determination that counsel’s performance was adequate. See Burt
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v. Titlow, 571 U.S. 12, 15, 24 (2013); Abby v. Howe, 742 F.3d 221, 226 (6th Cir.
2014).
The Michigan Court of Appeals rejected Petitioner’s ineffective assistance
claim premised on counsel’s failure to object to evidence, finding that the
complained of evidence was not hearsay and was admissible because it was based
on the personal observations of the witnesses. Smith, 2012 WL 164098, at * 4.
Federal habeas courts “‘must defer to a state court’s interpretation of its own
rules of evidence and procedure’ when assessing a habeas petition.” Miskel v.
Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting Allen v. Morris, 845 F.2d 610,
614 (6th Cir. 1988)). As such, this Court must defer to the Michigan Court of
Appeals’ determination regarding the admissibility of the testimony Petitioner
claims his attorney should have objected to. If the testimony was admissible, as
the state court held, this Court cannot find that Petitioner’s counsel was ineffective
for failing to object to it. See Davis v. Straub, 430 F.3d 281, 291 (6th Cir. 2005)
(“Because we cannot logically grant the writ based on ineffective assistance of
counsel without determining that the state court erred in its interpretation of its
own law, we are constrained to uphold the district court’s denial of the writ.”).
In his fourth claim, Petitioner argues that his trial counsel was ineffective for
failing to present an insanity defense and a duress defense. The Michigan Court of
Appeals rejected Petitioner’s first argument, finding “no evidence show[ing] that
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defendant was legally insane when he committed the charged offense, and nothing
in the record support[ing] his claim that he had a meritorious insanity defense.”
Smith, 2012 WL 164098, at *5. The state court indicated that Petitioner provided
no affidavits or documentation to show that “he had any medical or psychological
condition at the time of the offenses to support his assertion that an investigation of
an insanity defense might have been objectively reasonable.” Id. Petitioner has
not presented any evidence in these habeas proceedings, either. He therefore fails
to show that his counsel was ineffective for failing to assert an insanity defense.
See Sneed v. Johnson, 600 F.3d 607, 611 (6th Cir. 2010); Abdur’Rahman v. Bell,
226 F.3d 696, 715 (6th Cir. 2000). Under Strickland, it is Petitioner’s burden to
“show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694.
With respect to counsel’s failure to raise a duress defense, the claim lacks
merit because the Michigan courts repeatedly have held that duress is not a defense
to homicide. See Gimotty v. Elo, 40 App’x 29, 32-33 (6th Cir. 2002) (citing cases).
Petitioner’s trial counsel therefore was not ineffective for failing to raise this
defense. Moreover, as the Michigan Court of Appeals held in rejecting Petitioner’s
argument, a duress defense is similar to a self-defense claim in that both “require
that the actor honestly and reasonably believe that he is in imminent danger of
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death or great bodily harm.” Smith, 2012 WL 164098, at *5. The Michigan Court
of Appeals concluded that counsel’s failure to pursue a duress defense did not
prejudice Petitioner because the trial judge’s reasoning for rejecting his selfdefense claim demonstrates that she also would have rejected a claim that he acted
under duress. Id.
Petitioner additionally argues that his trial counsel was ineffective for failing
to raise a necessity defense. The Michigan Court of Appeals rejected this claim,
reasoning that the defense applies only to situations involving natural physical
forces and the record was “void of any evidence that defendant’s conduct was the
result of or influenced by a natural physical force.” Smith, 2012 WL 164098, at
*5. Because Petitioner did not have a viable necessity defense, as defined under
Michigan law, his trial counsel was not ineffective in failing to raise this defense.
See Hawkins v. Rivard, No. 16-1406, 2016 WL 6775952, at *5 (6th Cir. Nov. 10,
2016).
C.

Petitioner’s sentencing claim

In his fifth ground for relief, Petitioner contends that the trial court erred in
scoring 25 points under Offense Variable 13 of the Michigan Sentencing
Guidelines. Petitioner also argues that his trial counsel was ineffective for failing
to object to the scoring of the guidelines and for failing to review the pre-sentence
investigation report.
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Petitioner’s claim concerning the scoring or calculation of the State’s
sentencing guidelines is not cognizable on federal habeas review as it is a matter of
state concern only. See Marin v. Brewer, No. 16-2420, 2017 WL 4677506, at *3
(6th Cir. Apr. 28, 2017) (citing Howard v. White, 76 F. App’x. 52, 53 (6th Cir.
2003); Bradhshaw v. Richey, 546 U.S. 74, 76 (2005)); see also Kissner v. Palmer,
826 F.3d 898, 904 (6th Cir. 2016) (providing that “errors in the application of state
sentencing guidelines … cannot independently support habeas relief[.]”).
With respect to counsel’s alleged errors at sentencing, the Michigan Court of
Appeals rejected Petitioner’s claim, finding a factual basis for the scoring under
Michigan law:
[D]efendant asserts that defense counsel was ineffective for failing to
object to the trial court’s score of 25 points for offense variable (OV)
13. Under MCL 777.43(1)(c), OV 13 is scored at 25 points when
“[t]he offense was part of a pattern of felonious criminal activity
involving 3 or more crimes against a person.” Further, “[f]or
determining the appropriate points under this variable, all crimes
within a 5-year period, including the sentencing offense, shall be
counted regardless of whether the offense resulted in a conviction.”
MCL 777.43(2)(a). Defendant was charged with first-degree murder,
two counts of assault with intent to murder, and felony-firearm, and
thus, the trial court's assignment of 25 points was correct. In the
absence of an error by the trial court in scoring OV 13, defense
counsel was not ineffective because he was not required to make a
futile objection. People v. Thomas, 260 Mich. App[.] 450, 457; 678
NW2d 631 (2004).
Smith, 2012 WL 164098, at *6. Because there was a factual basis for scoring the
offense variable, Petitioner cannot established that counsel’s failure to challenge
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the scoring of his sentencing guidelines caused him prejudice. See e.g. Coleman v.
Curtin, 425 F. App’x. 483, 485 (6th Cir. 2011).
As to Petitioner’s claim based on counsel’s alleged failure to review the presentence investigation report or discuss it with Petitioner prior to sentencing,
Petitioner is not entitled to relief because the claim is conclusory and unsupported.
A review of the sentencing transcript reflects counsel’s representation that he
reviewed the pre-sentence investigation report both before sentencing and again at
sentencing after the prosecutor indicated the sentencing guidelines should be lower
than listed in the report. (4/5/10 Tr. at 2, 4, ECF No. 15-8 at Pg ID 701, 703.)
Moreover, even if the Court assumed that trial counsel did not review the presentence report, Petitioner fails to allege—much less show—prejudice resulting
from counsel’s alleged error. Accordingly, Petitioner is not entitled to habeas
relief based on this ineffective assistance claim.
IV.

Conclusion

For the reasons stated, the Court concludes that Petitioner fails to establish
entitlement to habeas relief under 28 U.S.C. § 2254. In order to appeal this
decision, Petitioner must obtain a certificate of appealability. Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may issue “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by
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demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El,
537 U.S. at 327.
Reasonable jurists could not debate the Court’s assessment of Petitioner’s
claims, nor conclude that the issues deserve encouragement to proceed further.
The Court therefore declines to issue a certificate of appealability. Nevertheless,
because Petitioner was granted leave to proceed in forma pauperis in this Court, he
may proceed in forma pauperis on appeal without further authorization. Fed. R.
App. P. 24(a)(3)(A).
Accordingly,
IT IS ORDERED that the petition for writ of habeas corpus is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that Petitioner may proceed in forma
pauperis on appeal.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 16, 2018

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I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, July 16, 2018, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager

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