Barber v. Rewerts

• Decision Date: 09 June 2021
• Docket Number: 1:19-cv-498
• Parties: Jamell Joshua-Allen Barber, Petitioner, v. Randee Rewerts, Respondent.
• Court: U.S. District Court — Western District of Michigan

Jamell Joshua-Allen Barber, Petitioner, v. Randee Rewerts, Respondent.

No. 1:19-cv-498

United States District Court, W.D. Michigan, Southern Division

June 9, 2021

Honorable Robert J. Jonker Judge.

REPORT AND RECOMMENDATION

SALLY J. BERENS, U.S. MAGISTRATE JUDGE.

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Jamell Joshua-Allen Barber is incarcerated with the Michigan Department of Corrections at the Carson City Correctional Facility (DRF) in Carson City Montcalm County, Michigan. On December 12, 2016, following a four-day trial, an Ingham County Circuit Court jury found Petitioner guilty of armed robbery, first-degree home invasion, and felony firearm. On January 11, 2017, the court imposed concurrent sentences of 12 years, 6 months, to 25 years for armed robbery and 10 to 20 years for first-degree home invasion, consecutive to a sentence of 2 years for felony firearm.^[1]

On June 6, 2019, Petitioner timely filed his habeas corpus petition raising seven grounds for relief, as follows:

I. Petitioner's trial counsel rendered ineffective assistance when he failed to object to the State's “aid and abet” jury instruction, where the instruction did not address the Petitioner's advance knowledge that a co-conspirator made known that his intent was to graduate the criminal scheme from the underlying offense to an armed one.

II. Petitioner's trial counsel rendered ineffective assistance when he failed to move for a directed verdict based on the insufficiency of the evidence to convict Petitioner of armed robbery and felony firearm.

III. Petitioner's trial counsel rendered ineffective assistance when he failed to effectively cross-examine and impeach Neshawn Jackson for his contradictory testimony.

IV. Petitioner's trial counsel rendered ineffective assistance where he failed to prepare for the case and failed to present any evidence or witnesses.

V. The prosecutor committed misconduct where he used Brianna Wilson's testimony at trial which was highly prejudicial and irrelevant.

VI. The prosecutor committed misconduct where he suborned perjury and then did not object to or correct it, amounting to a Brady violation where the state withheld testimony which could prove Petitioner's innocence.

(Pet., ECF No. 1, PageID.15-16.) Respondent has filed an answer to the petition (ECF No. 11) stating that the grounds should be denied because they are procedurally defaulted meritless, or both. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996 Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are meritless. Accordingly, I recommend that the petition be denied.

Discussion

I. Factual allegations

The Michigan Court of Appeals described the facts underlying Petitioner's crimes as follows:

On the morning of November 5, 2015, defendant and a group of young males planned and executed a coordinated attack on an older man in an attempt to rob the man's house. After surveilling the man's house, two members of the group feigned a forced entry at the front door knowing that it would lure the man outside by the side entrance. A three member group, including defendant, lay in wait for the man at the side door and viciously attacked him once he emerged. The man fought back and retreated into his house, dragging the three attackers in with him. The man broke free and dashed to his bed in the living room. As he did so, one of the perpetrators pulled out a gun and shot at the man. The shots missed, and the man was able to retrieve his gun from under his pillow, turn, and return fire. The man's shots struck each of the three intruders. One was shot in the hand, one in his shoulder, and defendant was shot through his right leg. The perpetrators ran off into a nearby wooded area, leaving a trail of blood. Police eventually apprehended the group.

(Mich. Ct. App. Op., ECF No. 12-10, PageID.406).

Petitioner directly appealed his convictions and sentences to the Michigan Court of Appeals. Through the brief filed with the assistance of counsel, a pro per brief, and a motion to remand, Petitioner raised several issues, including the ineffective assistance of trial counsel and prosecutorial misconduct issues he raises in his petition. The Michigan Court of Appeals affirmed the trial court by opinion issued April 17, 2018.

Petitioner then filed an application for leave to appeal in the Michigan Supreme Court raising the same issues he raised in the court of appeals. By order entered October 30, 2018, that court denied leave to appeal. (Mich. Order, ECF No. 12-11, PageID.587.) Petitioner did not file a petition for certiorari in the United States Supreme Court. (Pet., ECF No. 1, PageID.3.) Instead, he timely filed this petition.

II. AEDPA standard

The AEDPA “prevent[s] federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). “Under these rules, [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.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)) (internal quotation marks omitted)). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381-82 (2000); Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘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.'” Woods, 575 U.S. at 316 (quoting Harrington, 562 U.S. at 103).

Determining whether a rule application was unreasonable depends on the rule's specificity. Stermer, 959 F.3d at 721. “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough, 541 U.S. at 664. “[W]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotations omitted).

The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir. 2001). This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546-547 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

Section 2254(d) limits the facts a court may consider on habeas review. The federal court is not free to consider any possible factual source. The reviewing court “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). “If a review of the state court record shows that additional fact-finding was required under clearly established federal law or that the state court's factual determination was unreasonable, the requirements of § 2254(d) are satisfied and the federal court can review the underlying claim on its merits. Stermer, 959 F.3d at 721 (citing, inter alia, Brumfield v. Cain, 576 U.S. 305 (2015), and Panetti v. Quarterman, 551 U.S. 930, 954 (2007)).

If the petitioner “satisfies the heightened requirements of § 2254(d), or if the petitioner's claim was never ‘adjudicated on the merits' by a state court, 28...