Brown v. Rewerts

• Decision Date: 20 June 2019
• Docket Number: CASE NO. 2:17-CV-13817
• Parties: HENRY BROWN, Petitioner, v. RANDEE REWERTS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

HENRY BROWN, Petitioner, v. RANDEE REWERTS,¹ Respondent.

CASE NO. 2:17-CV-13817

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

June 20, 2019

HON. GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Henry Brown, ("petitioner"), confined at the Carson City Correctional Facility in Carson City, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for assault with intent to commit murder, M.C.L. § 750.83, felon in possession of a firearm, M.C.L. § 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), M.C.L. § 750.227b. The trial court sentenced petitioner as a habitual offender under M.C.L. § 769.10, to 356 months to 75 years for the assaultwith intent to commit murder conviction, three to seven years and six months for the felon in possession of a firearm conviction, and two years for the felony-firearm conviction. For the reasons stated below, the petition for a writ of habeas corpus is DENIED.

I. Background

Petitioner testified that he knew the complainant's name to be Theresa Renee Smith and not Shirley Ann Smith. (T. 5/5/2011, p. 11). He testified that he also knew Tony George, and the cab driver, Dennis Weldon. (Id.). Petitioner further testified that he had known Weldon for more than one year and would call him when he needed a cab ride. (Id., p. 12).

Dennis Weldon testified that on July 17, 2010, he was employed by the Checker Cab Company when he picked petitioner up at the Travelers Inn. (T. 5/3/2011, p. 144). Weldon testified that he drove petitioner to an address near Maxwell St. where he waited while petitioner went into the house and then came back to the cab. (Id., p. 145).

Tony Brodock George (a/k/a/ Eric) testified that on July 17, 2010, he was in the area of Maxwell St. when he saw petitioner getting into in a yellow cab. (T. 5/4/2011, p. 8). He testified that petitioner told him, "[Y]ou better—she down there dying; you better go save her; you probably couldsave that b—; she probably dead, so." (Id., p. 10). George testified that petitioner told him he was talking about Ree Ree and that he knew Ree Ree. (Id., p. 11). George also testified that petitioner had a gun and that he was holding it in his hand, when petitioner told him that he just shot Ree Ree and she probably was dead. (Id., pp. 12-13). George went to her house where he found Ree Ree laying on a mattress in the living room talking to the 911 operator. One of her friends was applying pressure to her. (Id., pp. 13-15). George testified that he could see Ree Ree was bleeding from her chest and leg, and she was in pain and light headed. (Id., p. 17). George asked Smith what happened and she said, "he shot me in the chest." (Id., p. 20). George testified that he did not ask who shot Smith because he knew, having spoken to petitioner moments earlier. (Id.). George testified that when the police arrived and asked Smith who did it, she said, "Henry Brown, he shot me in the chest." (Id., p. 21).

Officer Tyrone Gray of the Detroit Police Department testified that during the afternoon of July 17, 2010, he was dispatched to 8320 Maxwell St. on a shooting complaint. (Id., pp. 32-33). When Officer Gray entered the front door he observed a woman suffering from multiple gunshot wounds lying on a mattress with gunshot wounds to her chest and lowerleg. The woman identified herself as Shirley Ann Smith and was crying, in great pain, and going in and out of consciousness. (Id., pp. 34-36). Officer Gray testified that the victim said, "I was shot by Henry Brown; please, sir, I don't want to die; Henry shot me." (Id., p. 38). Gray further testified that Eric George informed him that petitioner was riding in a Checker cab. (Id., p. 43). Gray testified that he and other officers followed a Checker cab that was on Maxwell St. as it drove onto Van Dyke Road and then turned left on Harper, where a traffic stop was made and petitioner was arrested. (Id., pp. 44-45). Upon arrest, petitioner told Gray, "F— that b—; she going to get out by eight o'clock; what the Judge going to do, give her some blow? That b— ain't testifying. This s— is a joke." (Id., p. 52).

Sergeant Nathan Duda of the Detroit Police Department testified that on July 17, 2010, he prepared and executed a search warrant for Room No. 118 at the Travelers Inn located at 11560 Harper Ave. Duda obtained a registration card from the manager on which the defendant gave his address as 8777 Woodlawn St. (Id., pp. 75-77). Duda further testified that he then obtained a search warrant for that address. Duda stated that the two women at the residence told him that petitioner lived upstairs. (Id., pp. 80-81). Duda observed Officer Wilson recover a silver .45 caliber semi-automatic loaded handgun in that room. (Id., pp. 83-84). During cross-examination, Sgt. Duda testified that there was one live round in the gun. (Id., p. 85).

Officer Douglas Williams of the Detroit Police Department also testified that on July 17, 2010, he participated in the execution of a search warrant at 8777 Woodlawn St. where he recovered a silver .45 caliber automatic handgun in an upstairs bedroom. Williams stated that the gun was loaded with one live round. (Id., pp. 88-89).

Detective Lieutenant Brian Bergeron of the Michigan State Police Crime Lab (MSP) testified that he examined four fired shell casings, two fired bullets, and a firearm. (Id., p 107). He testified that it was his opinion that the four shell casings and the two fired bullets were fired in the firearm that he examined. (Id., p. 127).

Petitioner's conviction was affirmed on appeal. People v. Brown, No. 310156, 2013 WL 4487506 (Mich. Ct. App. Aug. 22, 2013); lv. den. 495 Mich. 916, 840 N.W.2d 369 (2013).

Petitioner then filed a motion for relief from judgment which was denied. People v.Brown, No. 10-008214-01-FC (Wayne County Circuit Court, May 3, 2016). The Michigan appellate courts denied petitioner leaveto appeal. People v. Brown, No. 335013 (Mich. Ct. App. Dec. 21, 2016); lv. den. 501 Mich. 908, 902 N.W.2d 621 (2017).

Petitioner filed a second motion for relief from judgement based on newly discovered evidence, which was also denied. People v. Brown, No. 10-008214-01-FC (Wayne County Circuit Court, Dec. 14, 2016). The Michigan appellate courts denied petitioner leave to appeal. People v. Brown, No. 337650 (Mich. Ct. App. July 6, 2017); lv. den. 501 Mich. 911, 902 N.W.2d 878 (2017).

Petitioner alleges in his habeas corpus petition that: (1) his sentence is cruel and unusual punishment; (2) the victim's out-of-court statements were inadmissible hearsay; (3) the evidence was insufficient to sustain his convictions; (4) his trial and appellate attorneys were ineffective; and (5) the prosecutor (a) failed to correct perjured testimony and (b) suppressed exculpatory impeachment evidence. The State argues in its answer to the habeas petition that: (1) the state court reasonably applied clearly established federal law when it adjudicated petitioner's sentencing claim; (2) petitioner's evidentiary claim is not cognizable on habeas review, and his claim under the Confrontation Clause is abandoned and meritless; (3) there was sufficient evidence to convict petitioner; (4) petitioner has notproved the factual predicate for his claim about trial counsel, and petitioner's claim about appellate counsel is procedurally defaulted and meritless; and (5) petitioner's prosecutorial-misconduct claim is procedurally defaulted and meritless.

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

(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)). In order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the "realm of possibility" that fairminded jurists...