McMullan v. Booker

Decision Date05 August 2014
Docket NumberNo. 12–1305.,12–1305.
PartiesAngelo McMULLAN, Petitioner–Appellant, v. Raymond BOOKER, Respondent–Appellee.
CourtU.S. Court of Appeals — Sixth Circuit


ARGUED:Thomas R. Chiavetta, Jr., Jones Day, Washington, D.C., for Appellant. Bruce H. Edwards, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF:Thomas R. Chiavetta, Jr., Eric Dreiband, Sherron N. Thomas McClain, Jones Day, Washington, D.C., for Appellant. Bruce H. Edwards, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.

Before: BOGGS, CLAY, and GILMAN, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which GILMAN, J., joined and CLAY, J., joined in the result. CLAY, J. (pp. 677–78), delivered a separate opinion concurring in the judgment.


BOGGS, Circuit Judge.

Angelo McMullan appeals the district court's denial of his petition for a writ of habeas corpus. A Michigan jury convicted McMullan, inter alia, of second-degree murder. McMullan presents three grounds for habeas relief: (1) the state trial court unreasonably declined to give the jury an involuntary-manslaughter instruction; (2) trial counsel rendered ineffective assistance; and (3) the state unlawfully withheld exculpatory evidence. The district court denied McMullan's petition. For the reasons set out below, we affirm the district-court judgment.


McMullan and Jimmy “Butch” Smith were friends of thirty years and were related by marriage. The two men were drug addicts and regularly used and shared drugs.

On July 6, 2001, McMullan and his wife were attending a party at the apartment of Willie Henry Russell, Jr., a friend of McMullan's. Smith, who was not at the party, was angry because he believed that McMullan had sold him Vicodin pills that were fake. Smith sought a refund from McMullan. Smith, accompanied by his friend Gregory McDowell, drove to Russell's apartment to find McMullan. Smith retrieved McMullan from the party, and both men returned to Smith's car in the parking lot.

Inside the car, McMullan smoked some of his crack cocaine with Smith. McMullan also handed Smith some additional crack cocaine. In response to McMullan's request for payment for the crack, Smith threw McMullan the bottle of purportedly fake Vicodin pills that McMullan had sold him and refused to pay for the crack.

A fistfight ensued in the parking lot. During the fight, McMullan snatched a revolver from his wife, who was standing nearby. McMullan pointed the gun one foot from Smith's chest. The gun fired, and Smith was shot. Smith later died from the gunshot wound to the chest.

The State of Michigan charged McMullan with first-degree murder. Both McMullan and McDowell testified at trial, and their testimony differed in several respects. McMullan testified that at the time he grabbed the revolver from his wife, she was three-to-four feet from him; McDowell testified that she was fifteen-to-thirty feet away from McMullan. McDowell also testified that, immediately before McMullan shot Smith, McMullan pushed Smith down into the driver's seat of Smith's car; McMullan testified that he did not push Smith. McMullan also testified that he did not recall aiming the gun, cocking the gun, and shooting Smith; McMullan testified that he only intended to scare Smith with the gun and did not intend to shoot him. McDowell testified that immediately after Smith was shot, McMullan grabbed cash from Smith's pockets; McMullan denied this.

At the time McDowell testified, he had a pending cocaine-possession charge. Because McDowell had denied ever using crack cocaine at a preliminary hearing, McMullan's counsel sought to cross-examine him about the charge in order to impeach McDowell's credibility. The trial court denied this request.

At the close of all evidence, the trial court instructed the jury not only on first-degree murder but also on second-degree murder and voluntary manslaughter. McMullan's counsel requested an involuntary-manslaughter instruction, which the trial court considered and denied.

On January 25, 2002, the jury convicted McMullan of second-degree murder, under Mich. Comp. Laws. § 750.317; possession of a firearm during the commission of a felony, under § 750.227b; and being a felon in possession of a firearm, under § 750.224f. The court found McMullan to be a fourth-felony habitual offender, under § 769.12.

That same day, the trial court in McDowell's case granted the government's motion to downgrade McDowell's cocaine charge from a felony to a misdemeanor. As part of this plea bargain, McDowell agreed to testify as needed against McMullan.

On February 21, 2002, at McMullan's sentencing, McMullan's counsel sought permission to file a motion for a new trial because of McDowell's plea deal. The prosecutor, Kennan M. DeWitt, told the court that “there was absolutely no connection between Mr. McDowell's case [and McMullan's case] either in facts or procedure.... There was no consideration given to McDowell connected to this case.... [McDowell's plea] had nothing to do with this case.”


On appeal to the Michigan Court of Appeals, McMullan argued that the trial court erred in declining to provide the involuntary-manslaughter instruction; that his trial counsel was ineffective for failing to cross-examine McDowell about the plea bargain; and that the government engaged in misconduct by failing to disclose the plea agreement. The Court of Appeals affirmed, with one judge dissenting from the panel's conclusion that the trial court did not err in declining to give the involuntary-manslaughter instruction. See People v. McMullan, 284 Mich.App. 149, 771 N.W.2d 810, 813 (2009).

The Michigan Supreme Court granted leave to appeal on the sole issue of whether the involuntary-manslaughter instruction was warranted, People v. McMullan, 485 Mich. 1050, 777 N.W.2d 139, 140 (2010), and that court affirmed, People v. McMullan, 488 Mich. 922, 789 N.W.2d 857, 857 (2010). The Supreme Court held that, under Michigan law, a trial court should instruct a jury on involuntary manslaughter when a “rational view of the evidence” supports the instruction. Id. at 858. The court ruled 5–2 that a rational view of the evidence, “even absent [disputed] questions of fact,” did not support an involuntary-manslaughter instruction. Ibid. Specifically, the Supreme Court noted that McMullan did not “dispute that the gun was in his hand when it was cocked and fired” and that “the firearm had to be specifically cocked in order to fire.” Ibid.

Proceeding pro se, McMullan petitioned the district court for a writ of habeas corpus, seeking relief on the same three grounds as in his direct appeal. The district court denied the petition. See McMullan v. Booker, 2012 WL 603990, at *10 (E.D.Mich. Feb. 24, 2012). Because two Michigan Supreme Court justices would have reversed McMullan's conviction for failure to provide the involuntary-manslaughter instruction, the district court granted McMullan a certificate of appealability for that claim. Id. at *9. McMullan timely appealed, and we subsequently expanded the certificate of appealability to include all McMullan's claims and appointed McMullan counsel on appeal. We now affirm.


Habeas relief is available to McMullan “only on the ground that [a prisoner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A court may not grant a habeas petition for “any claim that was adjudicated on the merits in State court proceedings” unless the state proceedings:

(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.

§ 2254(d). The “unreasonable application” clause authorizes federal courts to grant the writ when a “state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). For a federal court to grant habeas relief, the state-court application of federal law must be “objectively unreasonable.” Ibid.

On habeas review, we examine a district court's legal conclusions de novo. Davis v. Lafler, 658 F.3d 525, 530 (6th Cir.2011) (en banc).

A. Involuntary–Manslaughter Instruction

McMullan contends that the state trial court erred in refusing to instruct the jury on involuntary manslaughter, and he argues that he is entitled to habeas relief under both § 2254(d)(1) and § 2254(d)(2).

1. § 2254(d)(1)

First, McMullan claims that the state court's refusal to instruct the jury on involuntary manslaughter violated the Due Process Clause of the Fourteenth Amendment. This claim fails because McMullan cannot point to any “clearly established [f]ederal law” requiring a trial court to instruct the jury on a lesser included offense in a non-capital case. § 2254(d)(1).

Instructing a jury on a lesser offense benefits the prosecution because it can afford the state a conviction when the evidence cannot establish the crime charged or when the jury is reluctant to convict on the harshest charge; this practice also benefits the defendant in that “it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal.” Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). A lesser-included-offense instruction provides the jury with a valuable “third option.” Id. at 634, 100 S.Ct. 2382. For this reason, Michigan, like a number of other states, requires a trial judge to instruct on a lesser included offense if a rational view of the evidence supports the instruction. People v. Cornell, 466 Mich. 335, 646 N.W.2d 127, 139 (2002); see Beck, 447 U.S. at 636 n. 12, 100 S.Ct. 2382 ...

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