Smith v. Vashaw

• Decision Date: 27 January 2021
• Docket Number: Case No. 2:20-CV-10344
• Parties: BRUCE EDWARD SMITH, JR., Petitioner, v. ROBERT VASHAW, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

BRUCE EDWARD SMITH, JR., Petitioner, v. ROBERT VASHAW, Respondent.

Case No. 2:20-CV-10344

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 27, 2021

Paul D. Borman United States District Judge

OPINION AND ORDER (1) DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS (ECF No. 1), (2) DENYING AS MOOT THE MOTION FOR DOCUMENTS (ECF No. 7), (3) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (4) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Bruce Edward Smith, Jr., ("Petitioner"), confined at the St. Louis Correctional Facility in St. Louis, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for first-degree premeditated murder, Mich. Comp. Laws § 750.316, second-degree arson, Mich. Comp. Laws § 750.73(1), felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b. (ECF No. 1, Petition.) For the reasons that follow, the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.

I. BACKGROUND

Petitioner was convicted following a bench trial in the Wayne County Circuit Court. 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):

Defendant's convictions arise from the shooting of Anthony Michael and subsequent acts of arson designed to cover up the crime. That evening, defendant and his housemate, Marcia Powell, drank alcohol and smoked marijuana with Michael and an unidentified woman. At some point, Powell retired to her first-floor bedroom and the unidentified woman went upstairs to defendant's bedroom. Shortly thereafter, Powell heard Michael talking loudly, followed by four gunshots coming from the dining room. After hearing "a bunch of runnin' around, stumbling," Powell heard three more gunshots. When Powell came out, she observed Michael lying on the dining room floor with multiple gunshot wounds to his head and neck. Michael was still breathing. Defendant was also in the dining room, gathering drugs that he and Anthony "were selling" and placing them into a bag. Powell asserted that no one else could have entered the home before the shooting as the front door was blocked with a two-by-four and she would have heard it being removed to allow someone entry.

Powell and the unidentified woman left together through the house's front door. As the women left, Powell saw defendant reenter the home with a bottle of charcoal lighter fluid. The fire investigator testified that the fire originated near Michael's body in the dining room and was started with charcoal lighter fluid. Michael's cause of death, however, was four gunshot wounds. Approximately a week after Michael's murder, his girlfriend, Keisha Mays, received a call from a man who did not identify himself, but whose voice she recognized as defendant's. The caller apologized but indicated that he would not turn himself in. Three days later, someone placed Michael's cell phone in Mays's mailbox. Mays noticed a truck driven by defendant on the night of themurder parked four houses away, and defendant's brother was in the driver's seat.

People v. Smith, No. 342889, 2019 WL 1644990, at*1 (Mich. Ct. App. Apr. 16, 2019), lv. den., 504 Mich. 997, 934 N.W.2d 241 (2019).

Petitioner seeks a writ of habeas corpus on the following ground:

The Michigan Court of Appeals unreasonably applied clearly established federal law as determined by the Supreme Court of the United States in Virginia v. Jackson, 443 U.S. 307; 99 S. Ct. 2781; 61 L. Ed. 2nd 560 (1979), where the evidence was insufficient to convict the petitioner, consisting of speculation, conjecture, suspicion, and not to [sic] sufficient evidence as required by Jackson v. Virginia, in violation of the due process clause of the Fourteenth (14th) Amendment to the United States Constitution.

(ECF No. 1, Petition, PageID.7.)

II. STANDARD OF REVIEW

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 an unreasonable determination of the facts in light ofthe 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)).

III. DISCUSSION

A. The insufficiency of evidence claim.

Petitioner contends that there was insufficient evidence to convict him of the crimes. He argues that insufficient evidence was presented at trial to establish his identity as the murderer, so as to support his convictions. Petitioner also appears toargue that there was insufficient evidence of premeditation and deliberation to sustain his first-degree murder conviction.

As an initial matter, Respondent in the heading of their answer states that Petitioner has not exhausted his new theory of the insufficiency of evidence, precluding relief.

A claim may be considered "fairly presented" only if the petitioner asserted both the factual and legal basis for his claim in the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The doctrine of exhaustion mandates that the same claim under the same theory be presented to the state courts before it can be raised in a federal habeas petition. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). "Even the same claim, if raised on different grounds, is not exhausted for the purpose of federal habeas review." Rayner v. Mills, 685 F.3d 631, 643 (6th Cir. 2012). "[I]nsufficiency of the evidence is too broad and malleable an objection" to hold that challenging the sufficiency of the evidence on one theory in the state courts is enough to preserve for federal habeas review a challenge to the sufficiency of evidence on a factually and legally distinct theory never fairly presented to the state courts. See Johnson v. Alabama, 256 F.3d 1156, 1170 (11th Cir. 2001).

Contrary to Respondent's blanket assertion, Petitioner did raise all of his sufficiency of evidence claims in the state courts. Petitioner's appellate counselchallenged the sufficiency of evidence of premeditation and deliberation to support the first-degree murder conviction in the appeal brief that counsel filed with the Michigan Court of Appeals. (ECF No. 10-14, PageID.507-30). Petitioner raised a challenge to the sufficiency of evidence to support his identity as the perpetrator and a claim that the judge ignored inconsistencies between Ms. Powell's trial testimony and her earlier police statements in a pro per supplemental brief on appeal that he filed with the Michigan Court of Appeals. (Id., PageID.536-59).¹ More importantly, the Michigan Court of Appeals addressed and denied all of Petitioner's claims. It appears that Petitioner's claims have been properly exhausted.

It is beyond question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364 (1970). But the crucial question on review of the sufficiency of the evidence to support a criminal conviction is, "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979). A court need not "ask itself whether itbelieves that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 318-19 (internal citation and footnote omitted) (emphasis in the original). The Jackson standard applies to bench trials, as well as to jury trials. See e.g. U.S. v. Bronzino, 598 F.3d 276, 278 (6th Cir. 2010).

When considering a challenge to the sufficiency of the evidence to convict, the reviewing court must give circumstantial evidence the same weight as direct evidence. See United States v. Farley, 2 F.3d 645, 650 (6th Cir. 1993). "Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt." United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006) (internal quotation omitted); see also Saxton v. Sheets, 547 F.3d 597, 606 (6th Cir. 2008) ("A conviction may be sustained based on...