Abu-Jebreel v. Palmer
OPINION and ORDER (1) Denying Petition for Writ of Habeas Corpus, (2) Denying Motion for Appointment of Counsel, (3) Denying Certificate of Appealability, and (4) Denying Permission to Appeal In Forma Pauperis. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 4:17-cv-10555
Honorable Linda V. Parker
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING MOTION FOR APPOINTMENT OF
COUNSEL, (3) DENYING CERTIFICATE OF APPEALABILITY, AND (4)
DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
Michigan prisoner Abdurrahmaan Abu-Jebreel (“Petitioner”) filed this
habeas case under 28 U.S.C. § 2254. Petitioner is challenging his convictions
following a bench trial in the Circuit Court for Wayne County, Michigan, for
armed robbery, assault with intent to cause great bodily harm, possession of a
firearm by a felon, and possession of a firearm during the commission of a felony.
The state trial court sentenced Petitioner as a second habitual offender to periods of
incarceration of 16 to 40 years for the armed robbery conviction, 6 to 15 years for
the assault conviction, 3 to 7½ years for the felon in possession conviction, and a
consecutive 2-year term for the felony-firearm conviction.
Petitioner raises four claims in his application for habeas relief: (1) the
sentencing guidelines were erroneously scored; (2) the trial court did not consider
Petitioner’s trial testimony when it made its findings following the bench trial; (3)
the trial court failed to consider the law on “imminent threat of death”; and, (4)
Petitioner was deprived of the effective assistance of trial counsel. The Court finds
that Petitioner’s claims are without merit. Therefore, it is denying his petition. The
Court also is denying Petitioner’s motion for appointment of counsel, a certificate
of appealability, and leave to appeal in forma pauperis.
This Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals in its decision affirming Petitioner’s sentence and convictions:
This case arises out the shooting and robbery of complainant
Evan McCarver in the home of Kennesha McKenney. McKenney did
not testify at any of the proceedings below. According to McCarver’s
testimony, McKenney invited him to the apartment. McCarver stated
that he had an occasional sexual relationship with McKenney and was
unaware that defendant was allegedly living with her. Per McCarver’s
account, he was talking on the telephone with his brother when
defendant came into the apartment. McCarver stated that he saw
defendant pull a handgun and point it at his head, and McCarver
walked into the bedroom and hid behind the door. He heard a clicking
noise twice and thought it was a gun jamming and that he was going
to be shot. McCarver was dialing 911 when defendant walked into the
bedroom and demanded that McCarver give him the cell phone, and
defendant shot him after the phone was handed over.
Defendant raised defenses of insanity and that he acted in selfdefense or defense of others. Defendant testified that the apartment
was his residence part time, there was animosity between himself and
McCarver, McCarver was known to carry a firearm, and defendant
acted in self-defense and out of concern of harm to McKenney and
children present in the home. Defendant stated that McCarver was
attacking him, but was unarmed when he was shot. Defendant testified
that McCarver did not have a gun at the time of the shooting and fled
to the bedroom before defendant shot him.
People v. Abu-Jebreel, No. 319059, 2015 WL 1396528, at *1 (Mich. Ct. App.
March 26, 2015). These facts 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).
Following his conviction and sentence as indicated above, Petitioner filed a
claim of appeal in the Michigan Court of Appeals. His appellate brief filed by
counsel raised one claim, and Petitioner added two additional claims in a
supplemental pro se brief:
Defendant is entitled to resentencing where offense variable 19
was erroneously scored, resulting in an improperly inflated guidelines
range. Defendant’s state and federal due process rights to be
sentenced on accurate information were denied.
As a result of the judge not remembering the judge erred in
failing to properly instruct on imminent death threat instruction and/or
on great bodily harm instruction thus violating defendant’s due
III. Defendant asserts that he was denied effective assistance of trial
The Michigan Court of Appeals affirmed Petitioner’s convictions and
sentence in an unpublished opinion. Abu-Jebreel, 2015 WL 1396528, at *3.
Petitioner subsequently filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims he raised in the Michigan Court of
Appeals. The Michigan Supreme Court denied the application because it was not
persuaded that it should review the questions presented. People v. Abu-Jebreel,
871 N.W.2d 186 (Mich. 2015) (table), cert. denied, 136 S. Ct. 1682 (2016).
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 state court adjudicated the
claims on the merits. Relief is barred under this section unless the state court’s
adjudication was “contrary to” or resulted in an “unreasonable application of”
clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1).
“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
[Supreme Court] 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 § 2254(d)(1) permits a federal
habeas court to ‘grant the writ if the state court identifies the correct governing
legal principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts’ of [the] petitioner’s case.” Wiggins v. Smith, 539 U.S. 510,
520 (2003) (quoting Williams, 529 U.S. at 413). “A state court’s determination that
a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)); see also Woods v. Etherton, 136 S. Ct. 1149, 1152-53 (2016) (habeas
relief precluded if state court decision is “not beyond the realm of possibility [from
what] a fairminded jurist could conclude ….”)
“Section 2254(d) reflects the view that habeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal. . . . As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Richter, 562 U.S. at 102-03 (internal
citations and quotation marks omitted).
A. Sentencing Guidelines
Petitioner first claims that the state trial court incorrectly scored the
sentencing guidelines by assessing points for the offense variable dealing with
“interfering with the administration of justice.” Petitioner argues that points
cannot be assessed under this variable for conduct occurring before criminal
charges are filed. The Michigan Court of Appeals rejected the claim, finding that
such conduct warranted points under this guideline variable. Abu-Jebreel, 2015
WL 1396528, at *2.
State courts are the final arbiters of state law. See Bradshaw v. Richey, 546
U.S. 74, 76 (2005); White v. Steele, 629 F. App’x 690, 695 (6th Cir. 2015) (quoting
Israfil v. Russell, 276 F.3d 768, 771 (6th Cir. 2001)) (“Our Court has previously
stated, ‘principles of comity require federal courts to defer to a state’s judgment on
issues of state law.’”) (additional citation and brackets omitted). Petitioner’s claim
that the state trial court incorrectly scored or calculated his sentencing guidelines
range under the Michigan Sentencing Guidelines therefore is not a cognizable
claim for federal habeas review. See Tironi v. Birkett, 252 F. App’x 724, 725 (6th
Cir. 2007); Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003). Claimed errors in
the application of state sentencing guidelines will not independently support
Petitioner’s request for habeas relief because they assert that the state courts
misapplied their own laws. See Kissner v. Palmer, 826 F.3d 898, 904 (6th Cir.
In any event, Petitioner had “no state-created interest in having the Michigan
Sentencing Guidelines applied rigidly in determining his sentence.” See Mitchell v.
Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009). Therefore, even accepting
Petitioner’s contention that the state courts misapplied their own laws, such an
error nevertheless would not provide a basis for granting federal habeas relief
because such a state-law error does not violate any of Petitioner’s federal due
process rights. Austin v. Jackson, 213 F.3d 298, 301 (6th Cir. 2000).
B. Trial Court’s Findings of Fact
In his second claim, Petitioner asserts that the trial judge, when reciting his
findings of fact and conclusions of law at the end of Petitioner’s bench trial, failed
to mention or discuss parts of Petitioner’s testimony indicating that he felt he was
in imminent threat of harm, and thus that he acted in lawful self-defense.
Petitioner’s third claim essentially makes the same allegation, asserting that the
trial court failed to consider the law on “imminent threat” when he made his
First, the trial court judge’s failure to make specific factual findings with
respect to all of the evidence presented at trial did not violate Petitioner’s due
process rights because there is no clearly established Supreme Court law requiring
a trial court to make specific findings for each element of the crime to satisfy
constitutional concerns. See Wofford v. Straub, 27 F. App’x. 517, 520 (6th Cir.
The cognizable aspect of Petitioner’s second claim is the argument that
insufficient evidence was presented at trial to show that he did not act in selfdefense. 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)
(emphasis in original). The reviewing court may not “reweigh the evidence, reevaluate the credibility of witnesses, or substitute [its] judgment for that 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. (emphasis in original); see 28 U.S.C. § 2254(d)(2).
Here, after reciting the applicable constitutional standard, the Michigan
Court of Appeals found sufficient evidence presented to prove beyond a reasonable
doubt that Petitioner did not act in self-defense:
In this case, the facts expressly relied on by the trial court
establish that the prosecution proved beyond a reasonable doubt that
defendant was not acting in self-defense when he shot McCarver.
Contrary to defendant’s argument that McCarver was the aggressor,
the evidence showed that: (1) upon defendant’s initial entry into the
apartment, McCarver moved to a window to avoid confrontation; (2)
following a break in hostilities McCarver fled to the bedroom and
defendant followed him to that location; and (3) McCarver was
unarmed at the time of the shooting. Thus, there was evidence offered
that defendant was the aggressor. Defendant merely asserts that he
believed McCarver could have been armed based on his past
possession of a firearm. Prior animosity between defendant and
McCarver are not dispositive nor are vague references to the
McCarver’s brother coming over to assault defendant. This was not
imminent threat, as the trial court noted. Defendant was never placed
at risk of death or serious injury in this case based on any testimony,
nor did defendant have a reasonable belief he was at risk when he was
relying principally on past altercations to support his contention.
Further, the evidence established that defendant fled the scene after
the shooting. Defendant also had changed his story, having previously
stated that the gun went off accidentally. Based on these findings, the
trial court did not err in concluding that defendant had not acted in
self-defense and that his use of force was unreasonable.
Abu-Jebreel, 2015 WL 1396528, at *3. As the state appellate court aptly
summarized, the evidence presented at Petitioner’s trial indicated that the victim
was not the aggressor, and that Petitioner had no reasonable belief he was in
The only evidence indicating that Petitioner acted in self-defense was his
own testimony. In reviewing the sufficiency of the evidence, however, “the
Supreme Court has given little weight to a defendant’s innocent explanation of the
evidence.” United States v. Nevils, 598 F.3d 1158, 1164 n.2 (9th Cir. 2010).
Moreover, “it is well settled that when a defendant ‘offers an innocent explanation
for the incriminating facts proved by the government, the jury is free to disbelieve
it.’” United States v. Hughes, 505 F.3d 578, 594 (6th Cir. 2007) (brackets omitted)
(quoting United States v. Schreane, 331 F.3d 548, 562 (6th Cir. 2003)). Petitioner’s
second and third claims therefore are without merit.
C. Ineffective Assistance of Counsel
In his fourth claim, Petitioner asserts that he was denied the effective
assistance of counsel at trial. Petitioner argues that his counsel failed to call his
wife, Kennesha McKenney, as a defense witness. Petitioner notes that McKenney
was the only eyewitness to the crime who did not testify at trial. In her affidavit,
which Petitioner filed with the Michigan Court of Appeals, McKenney states that
the victim came over to her apartment uninvited, threatened her, and when
Petitioner returned, Petitioner only pulled the gun after the victim refused to leave.
(ECF No. 8-15 at Pg ID 625.) McKenney further states that Petitioner’s gun
discharged when the victim moved towards Petitioner. (Id.) She also claims that
her contradictory statement to police was false, and it was the product of
intimidation made by the victim’s family and friends, many of whom were gang
members. (Id.) Petitioner asserts that, at minimum, he was entitled to an
evidentiary hearing on this claim.
After reciting the constitutional standard, the Michigan Court of Appeals
rejected the claim as follows:
Defendant contends that the affidavit by McKenney, as set forth
in the dissenting opinion, requires a reversal or remand. However,
defendant himself admits that “trial counsel interviewed [McKenney]
before trial and could not determine with certainty what testimony
[she] would put forth.” From the affidavit, it can be deduced that
McKenney had made an incriminating statement about defendant to
the police. Under the circumstances, trial counsel acted well within
the bounds of reasonableness in declining to call McKenney as a
witness. Even if McKenney had changed her story and testified
favorably for defendant at trial, she would have been subject to
impeachment by the prior incriminating statement. We will not second
guess trial counsel on the decision to keep her off the witness stand.
People v. Rockey, 237 Mich. App. 74, 76-77 (1999). Reversal or
remand is not warranted.
Abu-Jebreel, 2015 WL 1396528, at *4.
Ineffective assistance claims are reviewed under the two-part test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a defendant to
show that counsel’s performance was deficient and that the deficient performance
prejudiced the defense such that the defendant was denied a fair trial. Id. at 687.
“[C]ounsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Id. at
690. The test for prejudice is whether “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. In habeas review, the question becomes “not whether
counsel’s actions were reasonable,” but “whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter, 562
U.S. 86, 105 (2011).
First, the state court’s failure to hold an evidentiary hearing with respect to
Petitioner’s ineffective assistance of counsel claim is a matter of state law, which is
not cognizable on federal habeas review. See Litteral v. Palmer, No. 08-cv-11172,
2010 WL 2633595 at *14 (E.D. Mich. 2010) (citing Lewis v. Jeffers, 497 U.S. 764,
780 (1990)) (“Ginther does not confer an absolute right to an evidentiary hearing
in all cases where a defendant alleges ineffective assistance of counsel, and the
denial of a Ginther hearing is a matter of state law not cognizable on federal
habeas corpus review.”). Petitioner’s claim that the state courts improperly refused
his request for a Ginther hearing is not cognizable.
Next, the state court’s determination that Petitioner failed to demonstrate
that his counsel was ineffective for failing to call McKenney as a defense witness
did not involve an unreasonable application of the Strickland standard. Even under
de novo review, defense counsel’s decision whether to call witnesses is a strategic
one entitled to deference. Strickland, 466 U.S. at 689. Moreover, the Supreme
Court emphasized in Harrington the double deference a federal habeas court owes
to state-court determinations that counsel acted reasonably. 562 U.S. at 89-90.
Here, as noted by the state appellate court, a reasonable interpretation of
McKenney’s affidavit is that she made an inculpatory statement to police. Had she
testified favorably to Petitioner, she would have been subject to cross-examination
with her statement. Moreover, Petitioner himself asserted in his pro se brief filed in
the Michigan Court of Appeals that defense counsel was unable to determine how
McKenney would testify at trial after speaking with her. (See ECF No. 8-15 at Pg
ID 618.) Under these circumstances—and granting the double-deference
Harrington instructs federal habeas courts to afford a state court’s Strickland
analysis—Petitioner fails to demonstrate entitlement to habeas relief for his claim
of ineffective assistance of counsel.
For the reasons set forth above, the Court holds that Petitioner’s claims in
support of his request for habeas relief are without merit. The Court, therefore, is
denying his request for habeas relief. Because the Court finds that Petitioner’s
claims lack merit, it also is denying his motion for the appointment of counsel
(ECF No. 10.) In order to appeal this decision, Petitioner must obtain a certificate
A prisoner must make a substantial showing of the denial of a constitutional
right to obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2). To make this
showing, the applicant must show that reasonable jurists could debate whether 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). A federal district court is required to
grant or deny a certificate of appealability when it issues a ruling on the habeas
petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002).
Here, jurists of reason would not debate the Court’s conclusion that
Petitioner’s habeas claims lack merit. Therefore, the Court is denying him a
certificate of appealability. The Court also is denying Petitioner leave to appeal in
forma pauperis because any appeal would be frivolous. 28 U.S.C. § 1915(a)(3).
IT IS ORDERED that Petitioner’s application for the writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED WITH PREJUDICE;
IT IS FURTHER ORDERED that Petitioner’s motion for appointment of
counsel is DENIED;
IT IS FURTHER ORDERED that Petitioner is DENIED a certificate of
appealability and leave to appeal in forma pauperis.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 16, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, November 16, 2017, by electronic and/or
U.S. First Class mail.
s/ R. Loury
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