Crummie v. Bauman

• Decision Date: 30 July 2019
• Docket Number: Civil No. 2:15-CV-12723
• Parties: ROBERT QUINTONE CRUMMIE, Petitioner, v. CATHERINE BAUMAN, Respondent
• Court: U.S. District Court — Eastern District of Michigan

ROBERT QUINTONE CRUMMIE, Petitioner,
v.
CATHERINE BAUMAN, Respondent

Civil No. 2:15-CV-12723

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

July 30, 2019

HONORABLE VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE

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

Robert Quintone Crummie, ("Petitioner"), confined at the Alger Correctional Facility in Munising, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for first-degree felony murder, M.C.L.A. 750.316(1)(b), armed robbery, M.C.L.A. 75.529, two counts of assault with intent to rob while armed, M.C.L.A. 750.89, and possession of a firearm in the commission of a felony. M.C.L.A. 750.227b.

For the reasons that follow, the petition for writ of habeas corpus is DENIED.

I. Background

A jury convicted Petitioner in Wayne County Circuit Court. 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):

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Defendant's convictions arise from an illegal gun transaction. The victim, Marcus Norris, had contacted his cousin Michael Johnson seeking to purchase a weapon. An acquaintance of Johnson, Robert Doss, who was with Johnson at the time, telephoned a man known as "Cease" about purchasing a gun. Doss and Cease arranged the transaction. Johnson, Doss and Norris drove to the planned location and met with the defendant, who Cease had sent to sell Norris a gun. After Norris had paid defendant for the gun, defendant turned the loaded gun toward Norris, Johnson and Doss, and demanded all their money. Johnson and Doss were able to escape from the car and left Norris behind. Norris and defendant wrestled for the gun and Norris was shot in the process.

People v. Crummie, No. 311047, 2013 WL 5663228, at * 1 (Mich. Ct. App. Oct. 17, 2013).

Petitioner's conviction was affirmed. Id.; lv. den. 495 Mich. 993; 845 N.W. 2d 117 (2014).

Petitioner filed this habeas application, which was held in abeyance so that he could exhaust additional claims in the state courts. (ECF 8).

Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Crummie, No. 2011-004659-FC (Third Cir.Ct., Crim. Div., Sept. 20, 2016). The Michigan appellate courts denied leave to appeal. People v. Crummie, No. 335982 (Mich.Ct.App. Apr. 11, 2017); lv. den. 501 Mich. 1035, 908 N.W.2d 888 (2018).

This Court reopened the case and permitted Petitioner to amend his habeas petition. (ECF 15). Petitioner seeks relief on the following grounds: (1) The evidence was insufficient to convict Petitioner of first-degree felony murder; the judge erred in denying the motion for a judgment notwithstanding the verdict, (2) the judge erred in allowing an unavailable witness' testimony from the preliminary examination to be admitted at trial when the prosecutor and police failed to exercise due diligence in finding the witness, (3)

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the jury was not instructed on lesser included offenses; Petitioner's Fourteenth Amendment right to due process was violated, (4) ineffective assistance of appellate counsel, (5) the admission of the unavailable witness' preliminary examination testimony violated the Sixth Amendment right to confrontation, (6) the jury was not instructed on lesser included offenses; Petitioner's Fourteenth Amendment right to due process was violated (a duplicate claim to claim # 3), (7) prosecutorial misconduct, (8) ineffective assistance of trial counsel, and (9) cumulative error.

Respondent filed an answer to the petition on December 12, 2018. (ECF 16). Petitioner filed a reply brief on May 14, 2019 (ECF 23), which was beyond the May 7, 2019 due date for the reply to be filed. (ECF 19). Although the reply was filed out of time, in the interests of fairness, this Court accepted and reviewed Petitioner's reply brief. See e.g. McGee v. Scism, 463 F. App'x. 61, 64 (3rd Cir. 2012).

Petitioner in his reply brief agreed to withdraw his second and third claims. (ECF 23, Pg ID 1631). A habeas petitioner can withdraw a claim from a habeas petition as long as he or she does so knowingly, voluntarily, and intelligently. See Daniel v. Palmer, 719 F. Supp. 2d 817, 828 (E.D. Mich. 2010); rev'd on other grds sub nom Daniel v. Curtin, 499 F. App'x. 400 (6th Cir. 2012). Petitioner's second claim is intertwined with his fifth claim; Petitioner's third claim is virtually identical to his sixth claim. Although Petitioner wishes to withdraw these two claims, it is necessary to address them when adjudicating Petitioner's related claims.

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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)). To obtain habeas relief

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in federal court, a state prisoner is required to show that the state court's rejection of his or her claim "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 103. Habeas relief should be denied as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).

Petitioner's fourth through ninth claims were raised in his post-conviction motion for relief from judgment. In reviewing a claim under the AEDPA's deferential standard of review, this Court must review "the last state court to issue a reasoned opinion on the issue." Hoffner v. Bradshaw, 622 F. 3d 487, 505 (6th Cir. 2010)(quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005). The Michigan Court of Appeals and the Michigan Supreme Court both denied Petitioner's post-conviction application for leave to appeal in unexplained one-sentence orders. Accordingly, this Court must "look through" these decisions to the Wayne County Circuit Court opinion denying the motion for relief from judgment, which was the last state court to issue a reasoned opinion. Then, the Court can decide whether that court's adjudication of Petitioner's claims was "contrary to," or "an unreasonable application of" clearly established federal law as determined by the United States Supreme Court. See Hamilton v. Jackson, 416 F. App'x. 501, 505 (6th Cir. 2011). Although the state judge court judge procedurally defaulted the claims pursuant to M.C.R. 6.508(D)(3) because Petitioner failed to show cause and prejudice for failing to raise these claims on his appeal of right, she also denied Petitioner's post-conviction claims on the

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merits, thus, the AEDPA's deferential standard of review applies to her opinion. See Moritz v. Lafler, 525 F. App'x. 277, 284 (6th Cir. 2013).¹

III. Discussion

A. Claim # 1. The sufficiency of evidence claim.

Petitioner argues that the trial court erred in denying his renewed motion for a directed verdict. Petitioner claims that the prosecution presented insufficient evidence that he acted with malice, so as to support his first-degree felony murder conviction.² Petitioner claims that the evidence showed that the gun discharged accidentally during a struggle between him and Mr. Norris; Petitioner argues that the judge should have directed a verdict of acquittal on the first-degree felony murder charge.

It is beyond question that "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).

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But the crucial question on review of the sufficiency of the evidence to support a criminal conviction is, "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979). A court need not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, a...