Honorable Lawrence P. Zatkoff
OPINION & ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYINGA CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED ON
This matter is before the Court on Petitioner's pro se request for habeas relief pursuant to 28 U.S.C. § 2254. Petitioner was convicted after a jury trial in the Wayne Circuit Court of first-degree murder, MICH. COMP. LAWS § 750.316, assault with intent to murder, MICH. COMP. LAWS § 750.83, felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MICH. COMP. LAWS § 750.227b. As a result of these convictions, Petitioner is serving a sentence of concurrent terms of life imprisonment for the first-degree murder conviction, 20-to-40 years imprisonment for the assault with intent to commit murder conviction, and 2-to-5 years imprisonment for the felon in possession of a firearm conviction, to run consecutive with a 2-year term of imprisonment for the felony-firearm conviction. The petition raises two claims: (1) the trial court erred in instructing the jury on Petitioner's flight being evidence of consciousness of guilt; and (2) the prosecutor committed multiple acts of misconduct. The Court will deny the petition because Petitioner's claims do not merit habeas relief. The Court will also deny Petitioner a certificate of appealability and deny permission to proceed informa pauperis on appeal.
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):
This case arises out of a shooting that occurred at a party on Ferris Street in Highland Park on April 19, 2008, shortly before 1:00 a.m. When police arrived at the scene, they found Kory Gault dead, having sustained approximately 30 gunshot wounds. Leon Cottrell, who had driven Gault and two females to the party, was found by police in a nearby house severely injured in the shooting.
On the night of the incident, Cottrell had driven Gault, Donyell Fuller and Jocelyn White, to the party on Ferris Street in his Bonneville. After they arrived, Cottrell entered a house party taking place at that location, which later moved outside. Eventually, the four returned to Cottrell's vehicle; Cottrell sat in the driver's seat, Gault sat in the front passenger's seat, and Fuller and White sat in the back seat. Cottrell testified at trial that just as he was about to drive off, he saw defendant, wearing all black, come out from the side of the house. A guy named "Tone" was on the other side of the house, serving what Cottrell described as defendant's lookout. According to Cottrell, after approaching the vehicle, defendant took off his hood, turned his hat backwards so that Cottrell could see him, and slung an AK47 from around his back.
Cottrell testified that after defendant shot the streetlight, defendant then began shooting at the passenger's side of Cottrell's vehicle, striking Cottrell's shoulder. The car started to move in slow motion as Cottrell heard Fuller and White screaming in the back seat. Cottrell climbed out of the window as defendant continued to fire shots, and in the process of hitting the ground he broke his arm. Fuller and White got down on the floor until the shooting stopped, at which point they exited the vehicle and ran away. Cottrell pulled himself to the other side of the street using his unwounded arm. People helped Cottrell into the house where the party had taken place, and where he was eventually found by police and EMS personnel.
Highland Park Police Officer Michael Kumeisha and his partner, Officer Ryan Kalis, were the first to arrive at the scene of the shooting. The officers observed a Pontiac Bonneville slightly off the roadway with a man lying inside, partially hanging out into the street, and a large crowd in panic. The officers could tell that the man inside the vehicle, Gault, was deceased, having incurred multiple bullet wounds. Gault's feet were in the passenger compartment, his body was sprawled over the centerconsole and driver's seat, and his upper body fell out onto the street. The second EMS unit applied a heart monitor to Gault's body to verify that all heart activity had ceased.
Highland Park Police Officer Herbert Alan Fluker, the officer in charge of this case, discovered a purple Plymouth Voyager in an alley near the crime scene while canvassing the area. The vehicle's transmission fluid was leaking and its engine had been punched, indicating that it had been stolen. Officer Fluker also met with Cottrell at Henry Ford Hospital. During this meeting, Cottrell identified defendant, whom he testified he had seen "a bunch of times," as the shooter. Cottrell also stated that, after defendant was done shooting, he dropped the AK47 and someone in the crowd picked it up, however, the police never recovered a gun in this case. Cottrell also told Officer Fluker that Patrick Mason was trying to find him, and that the reason defendant did the shooting was in retaliation for an alleged attempt by Cottrell to shoot Charles Chuckie Mason. Cottrell later refuted this statement at trial. Officer Fluker took a second statement from Cottrell at his home on June 5, 2008, after which Fluker then attempted to locate defendant. Eventually police brought defendant into custody from Seattle on April 22, 2009.
At trial, Dominique Yharbrough, defendant's sister, testified that she saw defendant the morning following the shooting at approximately 10:00 a.m. at her house. They went to Pizza Hut and Cold Stone for their little sister's birthday. In Dominique's opinion, defendant was not acting nervous or unusual that day. She testified that defendant spent the night at her place that evening. She saw him leave the next day by foot toward the bus stop. Dominique testified that she had no knowledge of where her brother was when the shooting occurred. She further testified that she knew that her brother went to Seattle sometime in June, but she did not know any further details about where he was living. After moving to Seattle, defendant stopped calling Dominique regularly or letting the family know his whereabouts.
Dr. Lokman Sung, who performed Gault's autopsy, testified that his cause of death was approximately 30 gunshot wounds and that the manner of death was homicide. Dr. Sung did not find any evidence of close range firing on Gault's skin. Michael Herriotte, a Forensic Technician with the Detroit Police Department, processed the stolen Plymouth Voyager found at the scene. Herriotte and his partner were unable to successfully lift any prints from the vehicle's interior, but did lift one set of prints from the outside passenger side window. Amanda Crooker, who works in the State Police Department's Forensic Science Division as a Latent Print Specialist, received authorization to pull the fingerprint cards of defendant and others for purposes of comparison with the latent lift. She identified the prints as belonging to defendant.
Following closing arguments, the trial court instructed the jury, over the objections of defendant, that the jury could consider defendant's flight from the jurisdiction as evidence of consciousness of guilt. Following his convictions and sentences asstated, supra, this appeal ensued.
People v. Yharbrough, No. 295433 (Mich. Ct. App. Feb. 22, 2011).
Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals, which raised the same claims Petitioner presents in his habeas application. The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. Id.
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court which raised the same claims as in the Michigan Court of Appeals with an additional issue alleging ineffective assistance of counsel. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be reviewed by the Court. People v. Yharbrough, 490 Mich. 859 (2011) (table).
STANDARD OF REVIEW
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only if he can show that the state court's adjudication of his claims on the merits-
(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.
28 U.S.C. § 2254(d).
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 "unreasonableapplication" 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.
The Supreme Court has explained that "[a] federal court's collateral review of a state court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, ...
