OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS (Dkt. 1), DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Edward Griffes has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), challenging his conviction for first-degree felony murder, Mich. Comp. Laws § 750.316(b); felony firearm, Mich. Comp. Laws § 750.227b; and receiving and concealing stolen property (firearms), Mich. Comp. Laws § 750.535(2)(b). For the reasons stated below, the Court denies the petition for a writ of habeas corpus, declines to issue a certificate of appealability, and grants leave to appeal in forma pauperis.
Petitioner was convicted of the above charges following a jury trial in the Montcalm County Circuit Court, in which he was tried jointly with his co-defendants Heath McGowan and Clint McGowan. 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):
This appeal concerns the murder of 88-year old Henry Marrott within his home. Marrott was widely referred to as "Walking Sam" in the local area and in the town of Trufant, Michigan where he resided. Marrott's body was discovered by his lawn care service, having noticed an odor emanating from the home and a massive amount of flies at a window. Upon entering the home, a member of the lawn crew observed the victim's legs hanging out of a bed. On investigation, police observed the basement door area to be ajar and that the locking mechanism to the basement "appeared to have been broken or jimmied somehow."
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[I]t was not until a one-man grand jury was convened in the fall of 2005 that information was obtained and "this case burst wide open." Following a five-day hearing, in early 2006 the grand jury authorized indictments for Heath McGowan, Clint McGowan, Eddie Griffes, Michael Hansen and Melissa Mudgett1 on 14 separate counts, including open murder and felony murder. In addition, indictments were also authorized for Tara Waldorf and Brian Hansen for one count each of accessory after the fact.
Ultimately, co-defendant Michael Hansen pleaded guilty to second-degree murder, receiving a sentence of 222 to 50 years imprisonment. In return, Hansen testified regarding the events leading up to and occurring after the murder. According to Hansen, while at the home of Tiffany Taylor, he and Heath were informed that Marrott had both Oxycontin and money in his home. Later, when at Jody Smith's apartment, Smith and the co-defendants discussed going to the victim's house when he would not be there to steal the money and drugs. Heath and Clint McGowan, along with Griffes, Hansen and two women, Tara Waldorf and Melissa Mudgett drove to the victim's home in the evening. Waldorf and Mudgett remained in the vehicle. The McGowans, Hansen and Griffes entered the victim's home. Hansen remained at the front door as a lookout. Contrary to their expectations, Marrott was at home and argued with Heath. Hansen indicated that Heath struck Marrott in the head "with his hand or something." While in the home, the McGowans and Griffes searched for drugs and money and left with an "old black powder pistol," an unknown quantity of Oxycontin pills and a "lock box" containing money. The four men and two women then drove to a state recreational facility for the visually disabled located near the home of McGowans' parents, later referred to as"the blind camp." At that location, the pills and money were divided.
People v. McGowan, Nos. 274829, 275197, 276385, 2009 WL 4827442, at *1 (Mich. Ct. App. Dec. 15, 2009) (per curiam). Petitioner's conviction was affirmed on appeal. Id., leave denied 783 N.W.2d 342 (Mich. 2010).
Petitioner filed a post-conviction motion for relief from judgment pursuant to Mich. Ct. R. 6.500 et. seq., which was denied. People v. Griffes, No. 06-M-7355-FH, Order (Montcalm County Circuit Court Nov. 2, 2012) (Dkt. 17-29). The Michigan appellate courts then denied Petitioner leave to appeal. People v. Griffes, No. 316007 (Mich. Ct. App. Dec. 27, 2013) (Dkt. 17-32), leave denied 849 N.W.2d 382 (Mich. 2014).
Petitioner seeks a writ of habeas corpus on the following grounds:
i. "It was an abuse of discretion for the court to deny change of venue, or to sever, and failure to order a separate jury for Defendant Griffes where the court was aware that Griffes' defenses were inconsistent and a separate jury could focus on such evidence related solely to Griffes['] culpability in the allegation of his presence at the crime scene, thereby reducing the likelihood of a conviction by association with defendant Heath McGowan."
ii. "It was an abuse of discretion for the court to deny indigent Defendant Griffes expert witness fees related to the scientific effects of methamphetamine where the prosecution intended to call methamphetamine addicts groomed by the police to change their testimony that Griffes was not present at the crime scene and to buttress this with police 'expert meth addict memory testimony' at trial."
iii. "It was error for prosecution to present and the court to allow a police officer to testify as an expert witness in the psychology of memory of drug addicts, where the police officer was not qualified as an expert and there is no recognized science in the recovery of memory."
iv. "There was insufficient evidence at trial to prove beyond a reasonable doubt that Defendant Griffes was present at the break in and murder of Henry Marrott on July 19, 2002, where there was nophysical evidence of his presence, his identification was by drug addicts who benefitted by implicating him with changed stories influenced by police tactics and where he was physically incapable of participating, Griffes having suffered a fracture of his left hip socket and third degree burns on his foot, hospitalized from June 23, 2002 until July 26, 2002, and being confined to a wheelchair until July 26, 2002, when he was allowed to use crutches alleging to have been a passenger in a cramped small car containing five other individuals, exiting the vehicle and running from the victim's home, without the benefit of a wheelchair or crutches, on the night of July 19, 2002."
v. "The trial court committed reversible error during the jury selection process, especially when it permitted the prosecution to exercise seven consecutive peremptory challenges and also because it denied each defendant the 20 statutory challenges to which they were entitled."
vi. "The prosecutor prejudiced defendant with improper arguments in violation of his United States Constitution Amendments V, VI, XIV[.]"
vii. "Unduly suggestive witness identification violated defendant's due process[.]"
viii. "Defendant was denied effective assistance of trial counsel violating his VI Amendment[.]"
ix. "Defendant was prejudiced by ineffective assistance of appellate counsel violating his VI Amendment[.]"
x. "Defendant was denied his right to counsel violating his VI Amendment when Judge Miel denied G.R. Frie's motion to appear as co-counsel[.]"
Pet'r Mem. at 11-12 (cm/ecf pages) (Dkt. 13); see also Pet. at 14-18 (cm/ecf pages) (Dkt. 1).
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, 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, 405-406 (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 411.
The Supreme Court has explained that a "federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Thus, the AEDPA "imposes a highly deferential standard for evaluating 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). 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, 131 S. Ct. 770, 786 (2011). The Supreme Court has emphasized "that even a strong case for relief does not mean the state court'scontrary conclusion was unreasonable." Id. Furthermore, pursuant to section 2254(d), "a habeas court must determine what arguments or theories supported...
