Smith v. Bergh
Decision Date | 21 November 2017 |
Docket Number | Case No. 2:15-cv-11712 |
Parties | HOWARD SMITH, #416157, Petitioner, v. DAVID BERGH, Respondent. |
Court | U.S. District Court — Eastern District of Michigan |
Petitioner Howard Smith has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a bench trial in the Wayne County Circuit Court, Petitioner was convicted of second-degree murder, Mich. Comp. Laws § 750.317, carrying a concealed weapon, Mich. Comp. Laws § 750.227, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. He was sentenced to 20 to 35 years imprisonment on the murder conviction, concurrent terms of one to five years imprisonment on the concealed weapon and felon in possession convictions, and a consecutive term of two years imprisonment on the felony firearm conviction. In his pleadings, Petitioner raises claims concerning double jeopardy, the sufficiency of the evidence, the conduct of the prosecutor, the application of state self-defense law, and the effectiveness of trial and appellate counsel. For the reasons that follow, the court denies with prejudice 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 firearm death. The relevant facts, as decided by the Michigan Court of Appeals, are presumed correct. See 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
Smith's convictions arise from the shooting death of Farrod Potter during the early morning hours of June 27, 2010, outside a lounge in Detroit. At trial, several witnesses, including Raymond Grant, testified that they had celebrated a family birthday at the lounge. As Grant was entering the lounge, he accidentally stepped on Smith's shoe. Grant apologized to Smith before they continued on their separate ways. Near the lounge's closing time, Smith followed Grant's aunt across the street to talk. Shortly thereafter, Grant and a group of friends, including Potter, came across the street. Grant again apologized to Smith, who declined to acknowledge his acceptance of the apology. Although Grant became irritated by Smith's attitude, the testimony of the several trial witnesses consistently described that Grant and his acquaintances walked away from Smith back toward the lounge or their cars. Smith, who was armed with a .25-caliber handgun, jogged or walked in pursuit of Grant and his acquaintances. Smith declared that he should shoot someone in the back, after which Smith drew his handgun. Grant grabbed Smith around his arms to prevent Smith from shooting, but Smith was able to raise the gun toward Potter and shoot him once in the chest. No evidence suggested that Grant or his acquaintances possessed weapons of any kind that morning, or that any of them ever threatened Smith. Smith raised a self-defense claim at trial.
People v. Smith, No. 301559, 2012 WL 832848, at *1 (Mich. Ct. App. March 13, 2012).
Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising the following claims:
The court denied relief on those claims and affirmed his convictions. Id. at *1-6. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Smith, 492 Mich. 867, 819 N.W.2d 873 (2012).
Petitioner subsequently filed a motion for relief from judgment with the state trial court raising the following claims:
The court denied relief citing Michigan Court Rule 6.508(D)(2) and (D)(3). The court also ruled that Petitioner failed to establish that appellate counsel was ineffective. People v. Smith, No. 10-007618-01-FC (Wayne Co. Cir. Ct. Oct. 25, 2013). Petitioner then filed an application for leave to appeal with the Michigan Court of Appeals, which was denied "for failure to establish entitlement to relief under MCR 6.508(D)." People v. Smith, No. 319896 (Mich. Ct. App. June 27, 2014). Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which was similarly denied. People v. Smith, 497 Mich. 1010, 861 N.W.2d 893 (2015).
Petitioner thereafter filed his federal habeas petition. (Dkt. #1.) He raises the 12claims that he raised on direct appeal and collateral review of his convictions in the state courts. Respondent has filed an answer to the petition (Dkt. #5) contending that it should be denied because the claims lack merit and/or are barred by procedural default.
III. Standard of Review
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed his habeas petition after the AEDPA's effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
28 U.S.C. § 2254(d) (1996).
"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 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 principlefrom 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, Wiggins, 539 U.S....
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