Stewart v. Wolfenbarger, Civil No. 05-10196.

Citation567 F.Supp.2d 959
Decision Date18 July 2008
Docket NumberCivil No. 05-10196.
PartiesArtemia STEWART, Petitioner, v. Hugh WOLFENBARGER, Respondent.
CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)

Artemia Stewart, New Haven, MI, pro se.

Brenda E. Turner, B. Eric Restuccia, Debra M. Gagliardi, Janet Van Cleve, Michigan Department of Attorney General, Lansing, MI, for Respondent.


DAVID M. LAWSON, District Judge.

The petitioner, Artemia Stewart, presently confined at the Macomb Correctional Facility in New Haven, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted of second-degree murder, Mich. Comp. Law § 750.317, armed robbery, Mich. Comp. Law § 750.529, and possession of a firearm during the commission of a felony ("felony firearm"), Mich. Comp. Law § 750.227b, following a jury trial in the Wayne County, Michigan circuit court in December 2001. He was sentenced on January 11, 2002 to concurrent prison terms of thirty-nine to sixty years for the murder and armed robbery convictions and a consecutive two-year prison term for the felony firearm conviction. The petitioner challenges his convictions on the grounds that: (1) prior bad acts evidence was improperly admitted; (2) a police officer improperly testified that co-perpetrators were arrested; (3) insufficient evidence was presented; (4) the court gave an incomplete instruction regarding aiding and abetting; and (5) improper jury selection procedures were used. The respondent has filed a response to the petition asserting that the claims are unexhausted, procedurally defaulted, or without merit. The Court finds that three of the petitioner's claims lack merit and a fourth claim is procedurally defaulted. But the remaining claim—the lack of sufficient evidence to support the second-degree murder conviction—requires issuance of the writ as to that count of conviction only. The petition therefore will be granted in part and denied in part.


The petitioner's convictions arise from the shooting death of Robert Pippins on November 19, 1999 in Detroit, Michigan during the course of a robbery. There was no evidence that the petitioner was present during the incident, but he admitted giving his firearm to one of the perpetrators. The Michigan Court of Appeals summarized the facts related to the murder as adduced at the petitioner's trial as follows:

In the early morning hours of November 19, 2001 [sic—should read "November 19, 1999"], Detroit police officer David Archambeau was dispatched to a residence on St. Mary's Street regarding a domestic situation. While standing on the porch of that residence, he heard gunshots from the direction of nearby Mansfield Street. He turned and observed four black males running toward his location. One of the men was dressed in a long coat and appeared to be clutching a rifle or gun under his coat. The men entered a maroon Plymouth Sundance and Archambeau and his partner pursued them. The Sundance pulled into an alley, and three of the men exited the vehicle and ran in a northwest direction. The driver of the vehicle ran in a southerly direction. None of the four men were apprehended at that time.

An inventory search of the vehicle revealed a loaded .22 rifle with the stock cut off, thirty-six zip lock baggies of suspected crack cocaine, twenty-six zip lock baggies of suspected marijuana, money, and a photograph that appeared to be of the driver of the vehicle with his family. Keys in the ignition of the car in the photograph matched the keys that were in the ignition of the Sundance. Officer Archambeau identified the man in the photograph as Michael Hadley.

The following day, Deangelo Whitley and Deleon Tate were arrested for the murder of Robert Pippins, who resided at 12145 Mansfield Street. Pippins was discovered shortly before midnight on November 18 by his girlfriend, Crystal Robinson, and her friends. He was discovered on the lawn in the backyard of his house, alive but laboring to breathe. Robinson and her friends took Pippins to a hospital, where he later died.

Robinson testified that Pippins sold drugs out of his house on Mansfield. On a prior occasion, she observed a .22 rifle at the house. She identified the rifle produced at trial as the same rifle she had seen at Pippins' house.

Dr. Leigh Hlavaty performed the autopsy on Pippins. She testified that Pippins was shot five times. Four shots were from a large caliber weapon and one shot was from a small caliber weapon.

Officer David Pauch examined the semiautomatic rifle and .22 long rifle bullets. He testified that a cartridge case retrieved from the scene was fired from the weapon retrieved. Three bullets that he examined were fired from the same 9 mm or .38, but the weapon from which the bullets were fired was not available for his examination.

Investigator Gregory Edwards testified that his investigation suggested that defendant might be a suspect in this crime, but that defendant was in Alabama. Defendant was brought back to Michigan after being arrested on another criminal matter. In a statement, defendant indicated that he did not know anything about a killing until after his cousin (Tate) and Whitley told him after they "hit a lick" (committed a robbery). Tate and Whitley had asked for the use of his gun, stating that they were going to commit a robbery. Defendant gave Whitley his .38. He indicated .that "Little Mike" (Hadley) was with Tate and Whitley when they committed the robbery. The next day, Whitley told defendant that they had to throw the gun away after they had "busted this nigger because the hooks (police) were chasing them." Whitley told defendant that he went into a gas station and while inside someone stole his car. He asked defendant to lie and say that defendant was with them. Defendant did not want to be involved and went to Alabama. Defendant said it was Tate, Whitley, and Hadley who were involved in the crime. During the interview, defendant identified a picture of Hadley and indicated that it was Whitley or Hadley who "smoked" Pippins.

People v. Stewart, 2003 WL 22359378, *2 (Mich.Ct.App. Oct. 16, 2003).

The petitioner was charged with first-degree felony murder, along with armed robbery and felony firearm, and the state proceeded under an aiding and abetting theory. The jury found the petitioner guilty of the lesser included offense of second-degree murder, plus armed robbery and felony firearm. Following sentencing, the petitioner filed an appeal of right in the Michigan Court of Appeals in which he presented the following claims: (1) "Defendant was deprived of his Ams. V and XIV rights of due process when the prosecutor permitted a police officer to expose Defendant's prior criminal history"; (2) "Defendant was deprived of his Ams. V and XIV rights of due process when a police officer testified that alleged co-perpetrators Tate and Bradley were arrested"; (3) "Defendant was deprived of his Ams. V and XIV rights of due process when the evidence before the trial court failed to show guilt beyond a reasonable doubt"; and (4) "Defendant was deprived of his Ams. V and XIV rights of due process when the court failed to charge CJI 8.3." Brf. on App. at 2. The Michigan Court of Appeals affirmed the petitioner's convictions on October 16, 2003. People v. Stewart, 2003 WL 22359378 (Mich.Ct.App. Oct. 16, 2003).

The petitioner filed an application for leave to appeal in the Michigan Supreme Court presenting the same claims presented to the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal because it was not persuaded that the questions presented should be reviewed. People v. Stewart, 470 Mich. 859, 679 N.W.2d 700 (Apr. 30, 2004) (Table).

The petitioner now seeks habeas corpus relief on the following grounds:

I. Petitioner was deprived of his Ams. V and XIV rights of due process when fidelity to court rule was not observed in the selection of jurors.

II. Petitioner was deprived of his Ams. V and XIV rights of due process when the prosecutor permitted a police officer to expose Petitioner's prior criminal history.

III. Petitioner was deprived of his Ams. V and XIV rights of due process when a police officer testified that alleged co-perpetrators Tate and Hadley were arrested.

IV. Petitioner was deprived of his Ams. V and XIV rights of due process when the trial court failed to charge CJI 8.3.

V. Petitioner was deprived of his Ams. V and XIV rights of due process when the evidence before the trial court failed to show guilt beyond a reasonable doubt.

The respondent has filed an answer to the petition arguing that none of the petitioner's claims warrant habeas relief because they are unexhausted, procedurally defaulted, and otherwise lack merit.


The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, "circumscribe[d]" the standard of review federal courts must apply when considering applications for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

As amended, 28 U.S.C. § 2254(d) 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 of the evidence presented in the...

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