Brown v. Wolfenbarger, CASE NO. 5:09-CV-12937

• Decision Date: 15 July 2011
• Docket Number: CASE NO. 5:09-CV-12937
• Parties: GREGORY BROWN, Petitioner, v. HUGH WOLFENBARGER, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

GREGORY BROWN, Petitioner,
v.
HUGH WOLFENBARGER, Respondent.

CASE NO. 5:09-CV-12937

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Date: July 15, 2011

HONORABLE JOHN CORBETT O'MEARA
UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Gregory Brown, a state inmate, filed this habeas case under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Wayne Circuit Court of second-degree murder, MICH. COMP. Law 750.317, felon in possession of a firearm, MICH. COMP. LAW 750.224f, and possession of a firearm during the commission of a felony. MICH. COMP. LAW 750.227b. For the reasons which follow, the petition will be denied.

I. Background

This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which 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):

Defendant's convictions arise from the shooting death of Carl Harris. Defendant was originally tried for these offenses in October 2002, but the trial ended in a mistrial.
Defendant gave a statement to the police in which he admitted that he shot Harris while Harris was buying drugs from him, but claimed that he did so in self-defense. Defendant also told the police that his cousin, Dion Monette, was selling drugs with him, but that Monette was asleep during the altercation. Defendant

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testified at his 2002 trial that he shot Harris in self-defense after Harris pulled a gun on him during a drug sale. When defendant was retried for the offenses in 2003, the prosecutor read his testimony from the 2002 trial into evidence. Defendant testified at his second trial, giving substantially the same testimony as that given at the first trial.

People v. Wordlaw-Brown, 2005 Mich. App. LEXIS 1089, *1-2 (Mich. Ct. App. May 5, 2005).

Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals, raising the following claims:

I. The prosecutor and the trial court denied Petitioner a fair trial when the prosecutor was allowed to present Petitioner's testimony from the prior trial without advising defense counsel until mid-trial that it was his intent to use the testimony and where the prosecutor failed to establish good cause for the late endorsement.
II. The trial court reversibly erred and Petitioner was denied the right to have a properly instructed jury consider all of the evidence where the court incorrectly failed to read the jury instruction on voluntary manslaughter and counsel was ineffective in failing to object.
Petitioner also filed a pro se supplemental brief, raising the following claim:
III. The trial court reversibly erred by admitting [Petitioner's] statement into evidence after it was obtained from a warrantless, illegal arrest, making it the fruit of the poisonous tree.

The Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. Id. Petitioner subsequently filed an application for leave to appeal to the Michigan Supreme Court which raised the same claims. The Michigan Supreme Court denied the application in a standard order. People v. Warlaw-Brown, 474 Mich. 908; 705 N.W.2d 133 (2005).

Petitioner returned to the trial court and filed a motion for relief from judgment, raising the following claims:

I. Petitioner was denied the effective assistance of trial counsel under the Sixth Amendment where counsel:

1. Failed to investigate and challenge the validity of Petitioner's arrest

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and move to suppress his confession made to police while in unlawful custody;
2. Failed to investigate whether the circuit court properly acquired jurisdiction before proceeding with the case;
3. Failed to protect Petitioner's rights to due process of law and to a fair trial under the 14th Amendment.

II. The circuit court did not at any time acquire jurisdiction over Petitioner on the charges of first-degree murder . . . felony firearm . . . felon in possession of a firearm . . . where no return was filed by the examining magistrate, therefore, Petitioner's rights under the Due Process Clause of the 14th Amendment and under Article 1, Section 17 of the Michigan and federal constitutions were violated.
III. Petitioner was denied the effective assistance of appellate counsel on direct appeal for counsel's failure to raise the issues in his motion for relief from judgment, after he had urged counsel to raise those claims on direct appeal.
IV. Petitioner demonstrates both good cause and actual prejudice stemming from the irregularities that support his claim for relief in this post appeal proceeding.

The trial court denied the motion, stating that, "defendant has failed to demonstrate prejudice from the errors he alleges. Defendant has also failed to demonstrate that his trial and appellate counsel were ineffective or that he had good cause for failing to previously raise these issues in propria persona." Trial Court Opinion, at 8-9.

Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. The application was denied "because defendant has failed to meet the burden of establishing entitlement to relief under Michigan Court Rule 6.508(D)." People v. Warlaw-Brown, No. 283276 (Mich. Ct. App. August 22, 2008)). Petitioner applied for leave to appeal this decision in the Michigan Supreme Court, but it was also denied under Rule 6.508(D). People v. Warlaw-Brown, 483 Mich. 1016, 765 N.W.2d 324 (2009).

Petitioner's application for a writ of habeas corpus raises all the claims he presented to the

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state courts in his appeal by right and collateral attack, and he raises an additional claim that the trial court violated state law by failing to date its order denying his motion for relief from judgment.

II. Analysis
A. Standard of Review

Petitioner's claims are reviewed against the standards established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA provides:

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 proceedings.

28 U.S.C. § 2254(d).

"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 [this] 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 the statute permits a federal habeas court to 'grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S.

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at 413). However, "[i]n order for a federal court find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been 'objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. "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, U.S. , 131 S. Ct. 770, 789, 178 L. Ed. 2d 624 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). "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." Id. at 786-87 (internal quotation omitted).

Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. See Williams, 529 U.S. at 412. Section 2254(d) "does not require citation of [Supreme Court] cases — indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). "[W]hile the principles of "clearly established law" are to be determined solely by resort to Supreme Court rulings, the decisions of lower federal courts may be...