OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Kainte Deshawn Hickey ("Petitioner") was convicted of first-degree premeditated murder, MICH. COMP. LAWS § 750.316, conspiracy to commit murder, MICH. COMP. LAWS § 750.157a, assault with intent to commit murder, MICH. COMP. LAWS § 750.83, felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, and possession of firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, following a joint jury trial with co-defendants Quonshay Douglas-Ricardo Mason and Andre Lamont Jackson in the Wayne County Circuit Court. He was sentenced to concurrent terms of life imprisonment without the possibility of parole on the murder and conspiracy convictions, a concurrent term of 23 years 9 months to 50 years imprisonment on the assault conviction, a concurrent term of 3 years 4 months to 5 years imprisonment on the felon in possession conviction, and a consecutive term of 2 years imprisonment on the felony firearm conviction in 2008.
In his pleadings, Petitioner raises claims concerning the effectiveness of counsel, the sufficiency of the evidence, the conduct of the prosecutor, the conduct of the trial judge, and the denial of a motion for new trial based upon newly-discovered evidence. For the reasons set forth herein, the Court finds that those claims lack merit and denies the habeas petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.
II. Facts and Procedural History Petitioner's convictions arise from a shooting incident that occurred in Detroit, Michigan in 2007. The Michigan Court of Appeals described the relevant facts, which are presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:
Defendants' convictions arise from the fatal shooting of Bennie Peterson and the nonfatal shooting of Donteau Dennis during the early morning hours of September 28, 2007, in the city of Detroit. Defendants were tried jointly with codefendant Andre Lamont Jackson, who was also convicted of first-degree premeditated murder, conspiracy to commit murder, assault with intent to commit murder, and felony-firearm.
Dennis was the primary prosecution witness at trial. Dennis testified that he was at the home of Bennie Peterson when defendant Mason came to the house and invited them to participate in a planned robbery of a drug purchaser at the Cabana Hotel. Mason told them that the purchaser would be carrying a large sum of money. Peterson and Dennis agreed to go, and they left with Mason in Peterson's van, with Mason driving. Codefendant Jackson followed them in a Jeep. According to Dennis, Jackson positioned himself in the Jeep to prevent Dennis from seeing another occupant in the Jeep.
Instead of driving to the hotel, Mason drove to Malcolm Street, where he instructed Dennis to purchase drugs from a drug house; informing him that the drugs would be used as bait in the planned robbery. As Dennis began walking toward the drug house, he noticed that Mason and Jackson had positioned their vehicles so that Peterson's van was trapped between the Jeep and another parked car. Hickey then approached Dennis, apparently having come from Jackson's Jeep. Dennis owed a $50 drug debt to Hickey, who shot Dennis. During this same time, Dennis saw Mason and Jackson exit their vehicles carrying guns, and one or both of them fired into the van. Peterson died from multiple gunshot wounds. Dennis was shot several times, but fled to the backyard of a home nearby and survived.
Detroit Police Officer Frank Senter found Dennis lying in the backyard of that home. Dennis told Senter that Hickey had shot him over a drug debt, but did not say anything about Peterson, Mason, or Jackson. Over the next few days, Sergeant William Anderson interviewed Dennis at the hospital. Dennis reiterated that he was shot by Hickey, and also reported that Mason and Jackson had killed Peterson.
After Hickey and Mason were convicted, they both filed motions for a new trial. Mason submitted an affidavit in which he averred that he and another man, Hosiea "Man-Man" Turner, waited outside the Cabana Hotel while Peterson robbed a drug addict and Dennis stole a gun from the robbery victim's car. Mason claimed that when the group reconvened on Malcolm Street, Dennis and Peterson began arguing over the division of the robbery proceeds and struggled over the stolen gun. According to Mason, Dennis shot Peterson, jumped out of the van, and began to shoot at Mason andTurner, prompting Mason to shoot back in self-defense. Mason said that Jackson and Hickey were not present at the time of the shooting. Turner also submitted an affidavit that roughly corroborated Mason's version of events. Mason sought a new trial on the ground that defense counsel was ineffective for not calling Mason to testify to this version of events at trial. Hickey argued that Mason's affidavit and proposed new testimony was newly discovered evidence entitling him to a new trial. The trial court denied Mason's motion for a new trial, noting that Mason's trial counsel credibly testified that Mason's version of events was entirely different from the version that he related to counsel before trial. The court also denied Hickey's motion, concluding that Mason's proposed testimony was not newly discovered, but rather newly available evidence which Hickey did not attempt to secure before trial.
People v. Hickey, No. 285253, 2011 WL 801034, *1-2 (Mich. Ct. App. March 8, 2011) (footnote omitted) (unpublished).
Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals, raising claims of insufficient evidence, prosecutorial misconduct, trial court partiality relative to the evidentiary rulings and the jury instructions, ineffective assistance of trial counsel for failing to object to prosecutorial misconduct and hearsay and failing to obtain the investigative subpoena transcript, and trial court error in denying his new trial motion based upon newly-discovered evidence. The Michigan Court of Appeals denied relief on those claims and affirmed his convictions. Id. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the same claims, as well as claims that trial counsel was ineffective for failing to call two alibi witnesses and appellate counsel was ineffective forfailing to raise that issue on appeal. The court denied leave to appeal in a standard order. People v. Hickey, 489 Mich. 993, 800 N.W.2d 88 (2011).
Petitioner, through counsel, thereafter filed his federal habeas petition. He raises the following claims:
I. He was denied the effective assistance of counsel.
II. The evidence was insufficient to prove beyond a reasonable doubt that he knowingly aided or abetted others in the murder of Bennie Peterson or that he knew or had any role in any conspiracy to commit murder.
III. He was denied his Sixth and Fourteenth Amendment rights to a fair trial and due process of law through improper argument by the prosecutor.
IV. The trial court's improper conduct denied him a fair trial.
V. The trial court erred by denying him a new trial based on newly-discovered evidence.
Respondent filed an answer to the habeas petition contending that it should be dismissed as a mixed petition and/or that it should be denied for lack of merit. Petitioner filed a reply brief essentially re-asserting his claims for relief.
Federal law 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 toany 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 [that] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).
"[T]he 'unreasonable application' prong of § 2254(d)(1) 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. at 413); see also Bell, 535 U.S. at 694. However, "[i]n order for a federal court find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court'sdecision 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. "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,' and 'demands that state-c...
