Durr v. Burt

• Decision Date: 21 December 2018
• Docket Number: Case No. 1:16-CV-10628
• Citation: Durr v. Burt, Case No. 1:16-CV-10628 (E.D. Mich. Dec 21, 2018)
• Parties: KEITH LARON DURR, Petitioner, v. SHERRY BURT, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

KEITH LARON DURR, Petitioner, v. SHERRY BURT, Respondent.

Case No. 1:16-CV-10628

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

December 21, 2018

Honorable Thomas L. Ludington 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 APPEALIN FORMA PAUPERIS

Petitioner, Keith Laron Durr, presently incarcerated at the Muskegon Correctional Facility in Muskegon, Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.Petitioner was jointly tried with his codefendant before a jury in the Wayne County Circuit Court.He was found guilty of one count of first-degree felony murder, Mich. Comp Laws § 750.316(1)(b), and arson of a dwelling house, Mich. Comp Laws § 750.72.Petitioner was sentenced to concurrent terms of life imprisonment for the felony-murder conviction and 7 ½ to 25 years imprisonment for the arson conviction.Respondent has filed an answer to the petition, asserting that the claims lack merit and/or are procedurally defaulted.Petitioner's claims are without merit.The petition will be denied.

I.

The 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), are as follows.SeeWagner v. Smith, 581 F.3d 410, 413(6th Cir.2009).

Defendants' convictions arise from a dispute between Durr and his ex-girlfriend, Loretta Smith(Smith).The couple ended their relationship in 2009, but encountered each other at a block party on July 10, 2010.The testimony by witnesses at the party varied regarding the number and timing of encounters between the two.However, following one physical encounter, Durr threatened to kill Smith; one witness heard Durr threaten to burn Smith's home down.Durr left the party with Moore.Shortly after the defendants' departure, Smith left the party and returned to her home to find it on fire.A two-year-old child in the home died from smoke inhalation.Detroit fire investigators labeled the cause of the fire as "undetermined."

A witness, Heather Warddell(Warddell), who was then the girlfriend of Durr's friend, Michael Branden Ayers-Ellis(Branden), testified that after Moore and Durr left the party, she and Branden followed them in her own car, with Branden driving.Defendants proceeded to a gas station, exited carrying a metal can of lighter fluid, and drove to the side street near Smith's home.They entered the alley near Smith's home with the lighter fluid, but she could not recall which defendant carried the fluid out of the gas station or into the alley.She fought with Branden to prevent him from proceeding into the alley with defendants.Three neighbors corroborated Warddell's testimony regarding the presence of men in the alley, and one of those neighbors identified Durr as one of the men in the alley.Shortly after defendants left the alley, witnesses saw smoke coming from Smith's home.Smith's daughter, Jessica Smith(Jessica), who was at the home babysitting the two-year-old victim and a four-year-old child, NT, testified that she was unable to rescue the victim from the smoke and fire.Other witnesses testified that Jessica was outside with NT, walking and talking on her phone, before the fire started.After learning of the death of the victim, Warddell spoke with Durr, who made statements to her to the effect that she should keep her mouth shut and that he had "a crazy family."She interpreted these statements as threats.The following day, after learning that a child had been killed in the fire, Warddell and Branden left the area for several months, because Branden felt that "his name was probably in the streets" as being involved with the fire.Despite alleging that they were falsely accused and challenging the credibility of Warddell's testimony, defendants were convicted as charged.

People v. Moore, No. 313565, 2014 WL 4087921, at *1(Mich. Ct. App.Aug. 19, 2014).

Petitioner's convictions were affirmed on appeal.Id., lv. den.497 Mich. 982, 861 N.W.2d 35(2015).

Petitioner seeks a writ of habeas corpus on the following grounds:

I.Mr. Durr's constitutional due process rights to a fair trial and to an impartial jury was violated when the trial court failed to determine through voir dire whether potential jurors could resist the natural but legally-forbidden human tendency to view Mr. Durr's failure to testify as a sign of guilt; the court further failed to elicit sufficientinformation from potential jurors to facilitate the intelligent exercise of peremptory and for-cause challenges.

II.The trial court violated Mr. Durr's Fifth and Sixth amendment rights to present a defense by excluding the statements of [NT].

III.Where the trial court failed to give an accomplice jury instruction with regard to Heather Warddell, trial counsel rendered ineffective assistance in failing to object or propose an accomplice cautionary instruction.

IV.Mr. Durr was denied his constitutional rights to a fair trial, properly instructed jury, and to present a defense, by the trial court's refusal to give a flight instruction with regard to Heather Warddell and Brandon Michael Ellis.

V.Reversal of the felony murder conviction is required where the prosecution failed to prove malice, an essential element (of) felony murder.

VI.Mr. Durr's conviction should be vacated because there was insufficient evidence to establish the elements of arson.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,110 Stat. 1214(Apr. 24, 1996), which govern this case, "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims.SeeWiggins v. Smith, 539 U.S. 510, 520(2003).

As amended, 28 U.S.C. § 2254(d) permits a federal court to issue the writ only if the state court decision on a federal issue "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or it amounted to "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."28 U.S.C. § 2254(d)(1) & (2);Franklin v. Francis, 144 F.3d 429, 433(6th Cir.1998).Mere error by the state court will not justify the writ; rather, the state court's application of federal law "must have been objectively unreasonable."Wiggins, 539 U.S. at 520-21(quotingWilliams v. Taylor, 529 U.S. 362, 409(2000)(internal quotes omitted)).Additionally, this Court must presume the correctness of state court factual determinations.28 U.S.C. § 2254(e)(1)("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.");see alsoWest v. Seabold, 73 F.3d 81, 84(6th Cir.1996)(stating that "[t]he court gives complete deference to state court findings of historical fact unless they are clearly erroneous").

The Supreme Court has explained the proper application of the "contrary to" clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases....

A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.

Williams, 529 U.S. at 405-06.

The Supreme Court has held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause of § 2254(d)(1)"when a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case."Id. at 409.The Court has "explained that an unreasonable application of federal law is different from an incorrect application of federal law.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.Rather, that application must be objectively unreasonable.This distinction creates a substantially higher threshold for obtaining relief than de novo review.AEDPA thus imposes a highly deferential standard forevaluating 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)(finding that the state court's rapid declaration of a mistrial on grounds of jury deadlock was not unreasonable even where "the jury only deliberated for four hours, its notes were arguably ambiguous, the trial judge's initial question to the foreperson was imprecise, and the judge neither asked for elaboration of the foreperson's answers nor took any other measures to confirm the foreperson's prediction that a unanimous verdict would not be reached")(internal quotation marks and citations omitted);see alsoKnowles v. Mirzayance, 556 U.S. 111, 122(2009)(noting that the Supreme "Courthas held on numerous occasions that it is not""an unreasonable application of clearly established Federal law""for a state court to decline to apply a specific legal rule that has not been squarely established by this Court").

III.

A.

Petitioner contends that his due process rights were violated when the trial court failed, during voir dire, to ascertain whether the jurors could resist their natural inclination to view him as guilty when he chose not to testify.Petitioner also submits additional challenges to how the trial court judge conducted voir dire.

"[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors."...