OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING THE MOTION FOR AN EVIDENTIARY HEARING, DENYING THE MOTION FOR RECONSIDERATION, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
David Maurice Lyons-Bey, ("petitioner), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for assault with intent to do great bodily harm less than murder, conspiracy to commit assault with intent to do great bodily harm less than murder, armed robbery, and conspiracy to commit armed robbery. For the reasons that follow, the petition for writ of habeas corpus is DENIED.
Petitioner was convicted of the above offenses following a jury trial in the Macomb County Circuit Court, in which he was jointly tried with co-defendant Damien Banks. Petitioner was acquitted of charges of assault with intent to commit murder and conspiracy to commit first-degree murder. 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):
Brad Bohen lived down the street from Tiffany Greathouse. After meeting in the neighborhood, Bohen became friends with Greathouse's brother, Maliki Greathouse, and her boyfriend, defendant Banks. On the day in question, Bohen testified that Banks and Maliki were visiting his home when he took a phone call from his attorney. Bohen told his attorney that he had gathered sufficient money to pay a $650 retainer plus additional fees and that he wished to procure his services. When Banks and Maliki heard this conversation, they allegedly looked at each other and left.
Later that day, Bohen left his home with approximately $2,500 in cash in his pocket. He travelled with his friend Renee Nomer and her two children to Costco and then to T.G.I. Friday's for dinner. While inside the restaurant, Bohen fielded two phone calls from Banks. Bohen alleged that Banks wanted him to purchase some Xanax and Adderall from him. Bohen told Banks that he could meet him at the restaurant. Banks called once and claimed to be outside the restaurant. Bohen could not find him in the parking lot and returned to his table. Bohen testified that Banks called again and claimed to be waiting outside. When Bohen exited the restaurant, he saw Greathouse sitting inside a vehicle in the parking lot. Bohen asserted that Greathouse pointed toward the back of the restaurant.
Bohen walked toward the back parking lot and saw Banks and Lyons standing near the dumpster. Lyons is the boyfriend of Greathouse's mother and Bohen had not met him before the attack. As Bohen approached the men, someone struck him from behind in the head and he fell to the ground. Banks and Lyons ran toward him, and Bohen initially believed they were coming to assist him. However, Banks and Lyons joined the fray, keeping him on the ground, and hitting and kicking him. A young female employee of the restaurant came out at the end of her shift and saw two tall, thin black men wearing hooded jackets beating a white man who was curled on the ground in fetal position. One man was using a "small, blunt object" that "looked like a hammer" to beat the victim in the head. She saw a third man standing watch. She yelled and the men ran away, with one man dropping something out of his pocket along the way. At the end of this encounter, Bohen had only $661 remaining in his pockets.
Bohen was hospitalized for five days and required surgery to remove a shard of his skull from his brain. Investigating officers brought photographic lineups to the hospital for Bohen's review. The first included black and white photographs and Bohen was unable to identify his attackers. In the second lineup, Bohen identified Banks. In a third, Bohen selected Lyons from the array.
Following a joint trial before a single jury and several days of jury deliberations, the jury acquitted the defendants of the greatest charged offenses and convicted them of assault with intent to commit great bodily harm, armed robbery, and conspiracy to commit those offenses. These consolidated appeals followed.
People v. Lyons, No. 319252, 2015 WL 6438128, at *1-2 (Mich. Ct. App. Oct. 22, 2015).
The Michigan Court of Appeals affirmed petitioner's conviction. Id.
The Michigan Supreme Court denied petitioner leave to appeal because it was "not persuaded that the question presented should be reviewed by" it. People v. Lyons, 499 Mich. 958, 879 N.W.2d 871 (Mich. 2016). The court also remanded to the trial court on a sentencing issue that is not being raised by petitioner in his current petition. Id.
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Petitioner is entitled to a new trial where he was denied effective assistance of trial counsel, where trial counsel failed to file a notice of alibi and trial counsel concurred in the instructions as given, which did not include an instruction on the lack of presence (alibi).
II. Petitioner is entitled to a new trial where the trial court erred in its denial of the admission of evidence of a [sic] videotape of the offense.
III. Petitioner was deprived of his Fifth and Fourteenth Amendment rights of due process when the court denied his motion for a direct verdict of acquittal. His convictions violates both state and federal constitutional rights to be free from conviction on the absence of proof beyond a reasonable doubt.
IV. Where the officer-in-charge testify's [sic] that he possessed no information, knowledge or belief that Petitioner has committed (2) armed robberies against Bradley Bohen; the officer is shown to have filed a false police report and committed fraud upon the court, and the court has not acquired jurisdiction to try the (2) armed robbery charges, absent a showing of probable cause existed to arrest Petitioner at the time the request for a warrant was made.
V. The trial court erred in giving lesser-included jury instructions, where Petitioner's sole defense is alibi; and where the jury instruction has effectively amended the felony information, violating Petitioner's rights to notice of the charge and statutory right to be provided a preliminary examination on the lesser-included charge.
VI. Petitioner was denied a fair trial, where the prosecutor suborned perjured testimony; and where the TGI Friday's security video footage exonerates and confirms Petitioner's non-presence on the scene of these crimes when they occurred; Petitioner is entitled to an evidentiary hearing and bond pending appeal.
VII. Petitioner was denied his constitutional right to directly appeal his state criminal conviction, where his substitute appellate counsel failed to file an appellate's [sic] brief on appeal within (56) days after receiving the last transcripts in Petitioner's case; and Petitioner should be remanded to state court for a new appeal and bond pending appeal.
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 anunreasonable 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)). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief 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).
A. Claim # 1. The ineffective assistance of trial counsel claims.
Petitioner first argues he was denied the effective assistance of trial counsel.
To show that he or she was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that,...
