Burks v. Haas

Filing 8

OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus and Denying Petitioner a Certificate of Appealability. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Yumar A. Burks,
Petitioner,
v.

Case No. 16-cv-13051
Judith E. Levy
United States District Judge

Randall Haas,
Mag. Judge Mona K. Majzoub
Respondent.
________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT
OF HABEAS CORPUS [1] AND DENYING PETITIONER A
CERTIFICATE OF APPEALABILITY
Prisoner Yumar A. Burks filed this habeas corpus petition under 28
U.S.C. § 2254, proceeding pro se. He was convicted of felony murder,
Mich. Comp. Laws § 750.316, and first-degree child abuse, Mich. Comp.
Laws § 750.136(b)(2), and now seeks habeas relief on the grounds that (1)
insufficient evidence supported his conviction for first-degree child abuse
and, therefore, felony murder, (2) the trial court improperly denied his
request for a second-degree child abuse instruction, and, alternatively,
(3) counsel was ineffective for failing to request the instruction.

For the reasons set forth below, the Court denies the petition for a
writ of habeas corpus. Because an appeal would be frivolous, the Court
also denies Petitioner a certificate of appealability.
I.

Background
Petitioner’s convictions arise from the death of his son, Antonio.

The Michigan Court of Appeals summarized the evidence admitted at
trial as follows:
The evidence at trial demonstrated that defendant had been
feeling stress and frustration because he could not find a job
that would provide for his family. Sheretta Lee, who is
defendant’s ex-wife and Antonio’s mother, testified that
several weeks before Antonio’s death, when defendant drove
her to work with two of their children, he threatened to drop
her and the children off and then drive off a cliff. Lee was
frightened because of defendant’s statements and his erratic
driving, and when she got to work, defendant drove away with
the children at such a high rate of speed that the tires on the
car left skid marks. Lee called the police, who later confirmed
the children were not harmed. While Lee never saw defendant
slap or punch Antonio, when Antonio was three months old,
defendant began giving the baby hickeys on his cheeks. Lee
also testified that Antonio cried a lot and that defendant
would get frustrated trying to calm the baby down.
Lee further testified that, on the morning of March 24, 2011,
defendant expressed frustration with his temporary
employment agency, punched several holes in the walls, and
told her “that could have been you.” When Lee thought that
defendant had calmed down, she left to take the couple’s two
older children to daycare and to go to work, leaving Antonio
in defendant’s sole care and custody.
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Travis Parris, defendant’s friend and neighbor, testified that
defendant came over to play video games at around 5:00 p.m.
A few hours later, Parris told defendant to go home and check
on Antonio. Parris called defendant several times after he left,
but defendant did not answer. When Lee returned home with
the older children around midnight, defendant put one of the
children to bed while the child was still fully clothed with his
coat and shoes. Defendant also instructed Lee not to wake
Antonio.
Lee testified that she went to bed, while Parris testified that
defendant again visited his house. However, Parris said that
on this visit, instead of playing video games, defendant just
sat on the couch, which was not normal for him. Lee testified
that she woke up at around 3:00 a.m., when she heard
defendant pacing the room, and again, at around 10:00 a.m.,
when she got up for the day. When she touched Antonio, she
discovered that he was very cold, and that he had bruising all
over his body that had not been there the previous day. Lee
called 911, and relayed instructions to defendant on how to
perform cardiopulmonary resuscitation (CPR) on a baby by
using only two fingers.[ ]
Upon arriving on the scene, the police found defendant
performing adult CPR on the infant. A responding officer
pulled defendant off the baby so that he could perform infant
CPR, but the baby was cold and lifeless. Officer Scott Sexton
observed injuries on the baby’s body, but significantly, there
was no bruising in the area where defendant was performing
CPR. A firefighter who had responded to the scene testified
that, when he removed the baby’s diaper, he noticed that the
diaper was dry and the baby had been freshly powdered. He
found this unusual because the bowels and bladder release
upon death. In the aftermath of the police arrival at the scene,
defendant was observed punching holes in the drywall.

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The baby was then taken to the hospital by paramedics. The
treating emergency physician, Dr. Martin Romero, declared
the baby dead and opined that he had been dead for between
4 and 24 hours. Dr. Romero observed multiple bruises and
abrasions on the baby's face, abdomen, and legs, healing
bruises on his arms, a torn frenulum,[ ] and “Cullen’s sign,” a
purple discoloration of the abdomen that indicates internal
bleeding. Dr. Romero also observed that Antonio’s diaper was
clean and testified that stool and urine are expelled at the
time of death.
The forensic pathologist, Dr. John Bechinski, who performed
the autopsy on the baby, testified that Antonio had died as a
result of multiple blunt force trauma. The doctor’s internal
examination revealed two areas of bleeding under the scalp, a
full thickness tear of the superior vena cava, bleeding in the
cavity next to the heart, bruises to the surface of the lungs,
bleeding within the lungs, four liver lacerations, two spleen
lacerations, bleeding in the abdominal cavity, a thick
hemorrhage around the left testicle, bruising on the
diaphragm, thymus, colon, and duodenum, bleeding around
the right adrenal gland, and pulpification of that same
adrenal gland. Dr. Bechinski opined that the number,
location, and severity of the internal injuries were
inconsistent with improperly performed CPR and were
possibly caused by squeezing, punching, shaking, or being
struck against a wall. Dr. Bechinski equated the force
required to cause the injuries to Antonio’s vena cava and the
cavity next to his heart to the force involved with a high-speed
vehicle collision. Dr. Bechinski testified that the photos of
Antonio’s injuries resembled those in forensic pathology
textbooks of battered children.
Defendant made several conflicting statements to the police.
When first interviewed, defendant only admitted giving
Antonio hickeys on the cheek and occasionally pinching and
slapping Antonio when he was fussy. In a second interview,
defendant stated that he did not slap Antonio and that he was
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always gentle with him. Defendant further stated that
Antonio had fallen off of the bed five different times in the
past and that was how he had become so bruised. In a third
interview, defendant stated that Antonio must have been
injured by his three-year-old sibling who had pulled him off
the bed and punched him. Defendant later changed his story
again and said that he had fallen asleep next to Antonio and
had accidently rolled on top of him. When he awoke, Antonio
was gasping for air. Defendant said he shook Antonio and
punched his sides in an effort to revive him. Defendant also
said he put Antonio in the bath to revive him and that he
dropped Antonio onto the side of the tub when he attempted
to lift him out. Defendant further stated that he cleaned the
baby and put him to bed, intending to take him to an urgent
care facility in the morning.
At trial, defendant admitted that he had not been completely
truthful in his interviews with the police, but asserted that
his third statement to the police had been the most truthful.
Defendant testified that around 10:00 p.m., he lay down on
the bed with Antonio to take a nap and that he rolled over
onto Antonio for roughly a minute. When he awoke, Antonio
was having difficulty breathing. Defendant testified that he
performed CPR on Antonio, who appeared to be all right
afterward. Defendant further testified that he then gave
Antonio a bath, and that he stepped out of the bathroom
momentarily, at which time Antonio became partially
submerged in the bathtub. Defendant claimed he pulled
Antonio out of the water and again successfully performed
CPR. But defendant also admitted that he had struck Antonio
while performing CPR to get the baby to breathe. Defendant
testified that Antonio appeared to be breathing fine and went
to sleep. Defendant further testified that he went to bed
around 3:00 a.m. When he woke up in the morning, he learned
that his son had died. Defendant denied that he had intended
to hurt or to harm Antonio, or that he knew his actions would
harm Antonio.
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After the close of the proofs, defense counsel requested that
the jury be instructed on the offense of second-degree child
abuse, arguing that the jury could find defendant’s actions
had only been reckless. The trial court denied the request,
finding that, according to the pathologist’s testimony, blunt
force trauma caused Antonio’s death, that defendant admitted
intentionally striking the baby, and that therefore,
defendant’s act resulting in death was intentional. The trial
court further concluded that, given these findings, there was
no evidence that any reckless act by defendant resulted in
serious injury to Antonio, and that, therefore, the jury should
not be instructed on second-degree child abuse. The jury
subsequently convicted defendant of felony murder and firstdegree child abuse.
People v. Burks, 308 Mich. App. 256, 259–63 (2014). Petitioner filed
an application for leave to appeal in the Michigan Court of Appeals,
arguing only that insufficient evidence supported his convictions
and that the trial court erred in declining to give a second-degree
child abuse instruction. The Michigan Court of Appeals held that
second-degree child abuse is a necessarily included lesser offense of
first-degree child abuse but otherwise affirmed, id., and Petitioner
then filed an application for leave to appeal in the Michigan
Supreme Court. In lieu of granting leave, the Michigan Supreme
Court vacated that part of the Court of Appeals opinion holding that
second-degree child abuse is a necessarily included lesser offense of
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first-degree child abuse. This was because “[t]he Court of Appeals
did not need to reach this issue because that instruction was never
requested in the trial court.” In all other respects, however, leave to
appeal was denied. People v. Burks, 498 Mich. 966 (2016). This
petition followed.
II.

Legal Standard
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214, 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 state court 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
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differently

than

the

Supreme

Court

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.
Section 2254(d), as amended by the AEDPA, “imposes a highly
deferential standard for evaluating state-court rulings, and demands
that state-court decisions be given the benefit of the doubt.” Renico v.
Lett, 559 U.S. 766, 773 (2010). 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.” Williams, 529 U.S. at 411. 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). As a
result, “a habeas court must determine what arguments or theories
supported or ... could have supported, the state court's decision; and then
it must ask whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in a prior
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decision” of the Supreme Court. Id. Habeas relief is not appropriate
unless each ground that supported the state-court's decision is examined
and found to be unreasonable. See Wetzel v. Lambert, 565 U.S. 520, 525
(2012).
A state court’s factual determinations are presumed correct on
federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner
may rebut this presumption of correctness only with clear and convincing
evidence. Warren v. Smith, 161 F.3d 358, 360–61 (6th Cir. 1998).
III. Discussion
A. Sufficiency of the Evidence
First, Petitioner argues that the prosecutor presented insufficient
evidence to support his first-degree child abuse conviction. Specifically,
he claims that the prosecutor failed to satisfy the intent element beyond
a reasonable doubt. And since his felony murder conviction was
predicated on the first-degree child abuse conviction, Petitioner
concludes that habeas relief is warranted. (Dkt. 1 at 5.)
Under Michigan law, “[a] person is guilty of child abuse in the first
degree if the person knowingly or intentionally causes serious physical
or serious mental harm to a child.” Mich. Comp. Laws § 750.316b.
9

Relatedly, “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). But “[t]wo layers of deference apply to
habeas claims challenging evidentiary sufficiency.” McGuire v. Ohio, 619
F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191, 204–
05 (6th Cir. 2009)). First, the Court “must determine whether, viewing
the trial testimony and exhibits 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.” Brown, 567 F.3d at
205 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
omitted)). And second, even if the Court “conclude[s] that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable doubt
. . . [it] must still defer to the state appellate court’s sufficiency
determination as long as it is not unreasonable.” Id.
Here, the state appellate court’s sufficiency determination was far
from unreasonable. When reviewing the trial record, the Michigan Court
of Appeals found ample evidence from which it believed a rational trier
of fact could have found the element of intent beyond a reasonable doubt.
10

This included that Petitioner was obviously experiencing significant
stress which manifested itself in erratic and aggressive ways; that he
expressed frustration when Antonio would not stop crying; and that
Petitioner expressed his frustration by punching holes in the walls of his
home and by threatening his family. This was all in the days leading up
to the baby’s death. Burks, 308 Mich. App. at 264–65. The Court also
noted Petitioner’s irregular behavior in the hours that followed Antonio’s
death and the conflicting accounts of the incident that Petitioner gave to
police during the subsequent investigation. Id. As the Michigan Court of
Appeals concluded: “[f]rom this plethora of evidence, the jury could
properly infer that defendant knowingly or intentionally caused serious
harm to Antonio when he was in defendant's sole care and custody . . . .”
Id. at 265.
Petitioner claims that the testimony of Dr. John Bechinski,, who
performed the autopsy of Antonio, supports his position. At trial, Dr.
Bechinski testified that there was no way to rule out the possibility that
the improper administration of CPR was a cause of one or two of
Antonio’s injuries. (Dkt. 7-9.) Yet even if that is true, the Court cannot
“rely simply upon [its] own personal conceptions of what evidentiary
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showings would be sufficient to convince [the Court] of the petitioner’s
guilt.” Brown, 567 F.3d at 205. Instead, it must ask whether the Michigan
Court of Appeals “was unreasonable in its conclusion that a rational trier
of fact could find [Petitioner] guilty beyond a reasonable doubt based
upon the evidence presented at trial.” Id. (citing Knowles v. Mirzayance,
556 U.S. 111, 123 (2009)). The state court’s disposition of Petitioner’s
appeal was reasonable for the reasons set forth above. Therefore, the
Court denies Petitioner relief on this claim.
B. Second-Degree Child Abuse Instruction
Petitioner next argues that he is entitled to habeas relief because
the trial court erred by declining to instruct the jury on second-degree
child abuse. (Dkt. 1 at 7.)
Federal courts may grant habeas relief only on the basis of federal
law that has been clearly established by the United States Supreme
Court. 28 U.S.C. § 2254(d). The Eighth Amendment and the Due Process
Clause require that a trial court instruct the jury on lesser included
offenses in the context of a capital case. Beck v. Alabama, 447 U.S. 625,
637–38 (1980) (holding that a trial court is required to instruct on lesser
included offenses where the failure to do so would result in the jury being
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given an “all or nothing” choice of convicting on the capital charge or
acquitting the defendant). However, “[t]he Supreme Court ... has never
held that the Due Process Clause requires instructing the jury on a lesser
included offense in a non-capital case.” McMullan v. Booker, 761 F.3d
662, 667 (6th Cir. 2014); see also Campbell v. Coyle, 260 F.3d 531, 541
(6th Cir. 2001) (“[T]he Constitution does not require a lesser-included
offense instruction in non-capital cases.”). Because the Supreme Court
has never held that due process requires lesser-included offense
instructions in a non-capital case, Petitioner’s claim cannot form a basis
for granting habeas relief. Therefore, the Court denies Petitioner relief
on this second claim.
C. Ineffective Assistance of Counsel
Finally, Petitioner argues that his trial attorney was ineffective in
failing to properly request a second-degree child abuse instruction. (Dkt.
1 at 8–9.) Although Petitioner failed to exhausted his remedies by not
raising this claim during his state court proceedings, the Court will
nevertheless addresses its merits. See Granberry v. Greer, 481 U.S. 129,
131 (1987).

13

An ineffective assistance of counsel claim has two components. A
petitioner must (1) show that counsel’s performance was deficient and
that (2) the deficiency prejudiced his or her defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). When evaluating an ineffective
assistance of counsel claim, courts “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might
be considered sound trial strategy.” Strickland, 466 U.S. at 689.
Here, Petitioner cannot show that his counsel’s performance was
deficient. During Petitioner’s state court proceedings, the Michigan
Supreme Court ruled that a second-degree child abuse instruction was
never requested during his trial. Burks, 498 Mich. 966 (2016). However,
this determination is clearly contradicted by the record. The trial
transcript unambiguously shows that Petitioner’s counsel requested a
second-degree child abuse instruction and that the trial court rejected it.
(Dkt. 7-11.) As a result, defense counsel was not ineffective for failing to
request a second-degree child abuse instruction because he did in fact ask
for it.
14

To the extent Petitioner is claiming ineffectiveness because defense
counsel requested the instruction under a theory that led the trial court
to reject it, here too, Petitioner’s claim is unpersuasive. Under Michigan
law, a person is guilty of second-degree child abuse when, in relevant
part, either of the following apply:
(a)

(b)

The person’s omission causes serious physical harm or
serious mental harm to a child or if the person’s reckless
act causes serious physical harm or serious mental harm
to a child.
The person knowingly or intentionally commits an act
likely to cause serious physical or mental harm to a child
regardless of whether harm results . . .

Mich. Comp. Laws § 750.136b(3). On direct appeal, the Michigan Court
of Appeals held that the testimony received at trial supported an
instruction under either theory. Burks, 308 Mich. App. at 270. But when
requesting the second-degree child abuse instruction, defense counsel
solely argued that Petitioner committed a reckless act which resulted in
harm to Antonio. This reckless act theory was consistent with Petitioner’s
testimony that, on the night of Antonio’s death, Petitioner accidentally
rolled over on Antonio when they were both sleeping, and that when
Petitioner left Antonio alone in the bathtub for several minutes the baby
became submerged under water. It was therefore reasonable for defense
15

counsel to pursue this tact as it was consistent with Petitioner’s own
testimony. As such, absent evidence to the contrary, counsel’s decision to
focus on the reckless act theory is presumed to be the result of sound trial
strategy. Strickland, 466 U.S. at 689.
Even if that were not the case, Petitioner has not shown that he
was prejudiced by counsel’s failure to request an instruction under the
alternative theory. The Michigan Court of Appeals concluded that had
the jury been so instructed, the jury’s verdict would have been the same.
Burks, 308 Mich. App. at 271–72. In coming to that decision, the state
court again looked at the weight of evidence. This included Petitioner’s
inconsistent explanations of what transpired on the day of Antonio’s
death, his history of violence, his behavior on the morning before
Antonio’s death (becoming so angry that he punched holes in the wall),
and evidence that he often grew frustrated when Antonio cried. Burks,
308 Mich. App. at 271. In other words, the error was harmless. And for
the same reason, the Court also finds no reasonable probability that the
result of the proceeding would have been different had defense counsel
requested the instruction based on a different theory. Therefore, relief is
additionally denied on Petitioner’s third and final claim.
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IV.

Conclusion
For the reasons set forth above, the Court will deny the petition for

a writ of habeas corpus. Federal Rule of Appellate Procedure 22 provides
that an appeal may not proceed unless a certificate of appealability (COA)
is issued under 28 U.S.C. § 2253. Rule 11 of the rules governing § 2254
proceedings requires that the Court “must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” A
COA may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” §2253(c)(2). 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In this case, jurists of reason would not debate the conclusion that
the petition fails to state a claim upon which habeas corpus relief should
be granted, and denies a certificate of appealability. Petitioner will not
be granted leave to proceed on appeal in forma pauperis because any
appeal would be frivolous. See Fed. R. App. P. 24(a).

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Accordingly, the Court DENIES WITH PREJUDICE the petition
for a writ of habeas corpus. (Dkt. 1.) The Court further DENIES a
certificate of appealability and leave to appeal in forma pauperis.
IT IS SO ORDERED.
Dated: December 20, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on December 20, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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