OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, (3) AND DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254. Petitioner Derrick Berete Lister was convicted after a jury trial in the Saginaw Circuit Court of first-degree home invasion, MICH. COMP. LAWS § 750.110a(2); conspiracy to commit first-degree home invasion, MICH. COMP. LAWS § 750.110a(2); assault with intent to do great bodily harm less than murder, MICH. COMP. LAWS § 750.84; conspiracy to commit assault with intent to do great bodily harm less than murder, MICH. COMP. LAWS § 750.84; carrying a firearm with unlawful intent, MICH. COMP. LAWS § 750.226; felon in possession of a firearm, MICH. COMP. LAWS § 750.224f; and three counts of possession of a firearm during the commission of a felony (felony-firearm), MICH. COMP. LAWS § 750.227b. Petitioner was sentenced to two terms of 26 years and 8 months to 50 years' imprisonment for the home invasion and conspiracy to commit home invasion convictions. These two sentences run concurrently with each other but consecutively to his other sentences. He was further sentenced to two concurrent terms of 12 years and 8 months to 20 years for the assault and conspiracy to commit assault convictions, a concurrent term of 6 to 10 years for the felon in possession conviction, a concurrent term of 4 to 8 years for the carrying a firearm with unlawful intent conviction, and three terms of 2 years for his felony-firearm convictions to be served concurrently with each other but consecutively to his other terms. Adding the consecutive terms together, Petitioner was sentenced to a composite term of 41 years and 8 months to 72 years imprisonment.
The petition raises ten claims: (1) the prosecutor impermissibly exercised a peremptory challenge to strike the only African-American male member from his jury; (2) insufficient evidence was presented to sustain Petitioner's assault and conspiracy to assault convictions; (3) the trial court erred in imposing consecutive sentences; (4) Petitioner's trial counsel was ineffective for failing to fully investigate an alibi defense; (5) Petitioner's trial counsel was ineffective for additional reasons; (6) the prosecutor committedmisconduct at trial, (7) the prosecutor improperly withheld an amended witness list from the defense; (8) appellate counsel was ineffective for failing to raise meritorious issues on direct appeal; (9) the prosecutor withheld exculpatory evidence from the defense; and (10) appellate counsel failed to raise issues of ineffective assistance of trial counsel on direct appeal.
The Court finds that Petitioner's claims are without merit or barred by his state court procedural defaults. Therefore, the petition will be denied. The Court will also deny a certificate of appealability and deny permission to appeal in forma pauperis.
The Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
The charges against defendant resulted from an incident in which defendant and another man entered a home, which was occupied by several women and children, and fired gunshots. Before trial, the trial court granted defendant's motion for the appointment of an investigator because of difficulties in contacting several individuals, in accessing police records, and in gathering information regarding alibi evidence.
At trial, Catherine Williams, Ashley Williams, and Chanquiece Moton testified that on the evening of November 24, 2011, they were at Ashley Williams's home when defendant knocked on the door. Ashley Williams answered the door, anddefendant entered the home, pointed a gun at Ashley Williams, and stated that he was going to kill her.2 Ashley Williams ran into the kitchen; defendant pursued her and fired shots in her direction. The witnesses stated that a second man, Willie Youngblood, also entered the home and began shooting. Moton stated that defendant also threatened to kill her and Ashley Williams's children. Catherine Williams and Ashley Williams showed the police a photograph of defendant they found on Facebook.
Mary Jones, defendant's girlfriend of three years, testified that she and defendant lived in Columbus, Ohio, and were visiting Saginaw, Michigan at the time the incident occurred. Jones testified that she and defendant argued about defendant's sexual encounter with Ashley Williams. Jones testified that on the day of the incident, she dropped defendant off at Youngblood's home at 11:00 a.m. and she went to her aunt's home. She and defendant left for Ohio that evening, and a few hours later, at 1:29 a.m., their car was stopped by police in Ohio for missing taillights.
The jury convicted defendant of felon in possession of a firearm, conspiracy to commit first-degree home invasion, first-degree home invasion, conspiracy to commit assault with intent to do great bodily harm less than murder, assault with intent to do great bodily harm less than murder, carrying a firearm with unlawful intent, and three counts of felony-firearm.
1Ashley Williams stated that she knew defendant because they had a sexual encounter shortly before the incident occurred.
People v. Lister, 2014 WL 4495234, at *1-2 (Mich. Ct. App. Sept. 11, 2014).
Following his conviction and sentence, Petitioner filed an appeal of right. His appellate counsel filed a brief on appeal, raising what now form his first three habeas claims:
I. The prosecutor's exercise of a peremptory strike to exclude the only African-American male member of the jury violated Defendant's constitutional right to equal protection of the law.
II. Defendant's assault with intent to cause great bodily harm and conspiracy to commit an assault with intent to commit great bodily harm convictions are not supported by sufficient evidence. US Const Am XIV.
III. The trial court erred when it imposed consecutive terms on Counts V and VI because it disagreed with the jury's acquittal of Defendant on the original counts VII and VIII. This is constitutional error under the 6th Amendment. Defendant is entitled to a re-sentencing.
Petitioner also filed a supplemental pro se brief raising an additional two claims:
I. Defendant was denied his Sixth Amendment right to effective assistance of counsel, where counsel failed to fully investigate alibi defense evidence, within motioning the court for production of 'critical' and appointed investigator, in whom was appointed by the court to conduct an investigation into said alibi.
II. Appointed appellate counsel was ineffective contrary to both the federal and state constitutions, where appellate counsel failed to raise on appeal as a matter of right, the 'cumulative errors' of trial counsel.
The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion, but the court ordered that the judgment of sentence was to be amended to indicate that Petitioner's felony-firearm sentences were to run concurrently with his conspiracy convictions. Id.
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court. The application raised the same five claims raised in the Michigan Court of Appeals, and it also presented two additional claims:
I. The prosecution failed to provide sufficient evidence for the jury to find Defendant-Appellant guilty of assault with intent to commit great bodily harm and conspiracy to commit assault with intent to commit great bodily harm beyond a reasonable doubt, where there was irrefutable evidence that would substantiate a reliable alibi.
II. Defendant-Appellant was deprived of his federal and state constitutional rights to the effective assistance of counsel, where appointed appellate counsel refused to brief and/or provide assistance within perfecting Defendant-Appellant's in propria persona issues on appeal.
The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed. People v. Lister, 859 N.W.2d 522 (Mich. 2015)(Table).
Petitioner then filed a motion for relief in the trial court, raising six claims:
I. Was the Defendant deprived of his federal and state constitutional rights to effective assistance of counsel, where counsel's performance fell below an objective standard of reasonableness, based on the following cumulative errors of counsel during trial.
II. Was the Defendant denied a fair trial contrary to his 14th Amendment rights, where the prosecution engaged in improper comments and offered contradictory evidence to support and change the theory with regards to the weapon used before the jury?
III. Did the prosecution deprive Defendant of his right to right to cross examine, where then the prosecutor failed to comply with MCL § 767.40a, within withholding the amended res gestae witness list?
IV. Was the Defendant deprived of his Sixth and Fourteenth Amendment rights, when the prosecution withheld "exculpatory information" from the Defendant during his trial?
V. Was the Defendant deprived of his federal and state constitutional rights, where the appointed appellate counsel failed to raise the issues incorporated herein?
VI. Did trial court err in allowing conviction of Defendant of three separate counts of violating the felony-firearm statute, MCL 750.227b, in a single criminal transaction?
The trial court denied the motion for relief from judgment in an opinion dated July 25, 2015. Dkt. 18-13. After discussing the merits of the claims, the trial court found that "Defendant has not demonstrated that any of the alleged errors outlined in his motion resulted in actual prejudice as required...
