Timmer v. Campbell
| Docket Number | Civil 2:20-CV-13261 |
| Decision Date | 02 August 2022 |
| Parties | BRENT LEE TIMMER, Petitioner, v. SHERMAN CAMPBELL, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Brent Lee Timmer, (“Petitioner”), confined at the Gus Harrison Correctional Facility in Adrian, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for felonious assault, Mich. Comp. Laws § 750.82, reckless use of a firearm, Mich. Comp. Laws § 750.863a, possession of a firearm in the commission of a felony (felony-firearm), Mich. Comp. Laws § 750.227b and being a second felony habitual offender, Mich. Comp. Laws § 769.10.
For the reasons that follow, the petition for writ of habeas corpus is DENIED.
A jury convicted Petitioner in the Kent 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):
This case involves an altercation between defendant and his wife (“the victim”), where after a night of drinking, defendant pointed a gun at her, threatened her, and ended up shooting the gun over the roof of a neighbor's house.
[T]here was other physical evidence to support [the victim's] testimony. In addition to recovering a nine-millimeter gun from the house, the police also recovered a spent shell casing right where the victim said defendant had been standing when he fired the gun in the direction of the neighbor's house. And there was evidence that the shell casing was “consistent” with the cartridges that were recovered from the firearm. Finally, there was testimony that the gun had a capacity to hold a total of 17 rounds, but only 16 rounds were in the firearm right after the incident. Therefore, a jury could reasonably conclude that not only did defendant possess a gun that night, but that he also fired one shot.
People v. Timmer, No. 340846, 2018 WL 5305142, at *1, 2 (Mich. Ct. App. Oct. 25, 2018).
Petitioner's conviction was affirmed. Id., lv. den. 503 Mich. 1003, 924 N.W.2d 553 (2019).
Petitioner filed a post-conviction motion for relief from judgment, which the trial court denied. People v. Timmer, No. 17-002931-FH (Kent County Circuit Court, July 2, 2020)(ECF No. 14-8, PageID.849-855). The Michigan appellate courts denied Petitioner leave to appeal. People v. Timmer, No. 354338 (Mich. Ct. App. Oct. 29, 2020); lv. den. 966 N.W.2d 387 (2021).
Petitioner seeks a writ of habeas corpus on the following grounds: (1) Petitioner was denied a fair trial due to prosecutorial misconduct, (2) Petitioner was denied the effective assistance of trial counsel, (3) appellate counsel Dana Carron was ineffective in failing to present issues one, two, and five before the Michigan Court of Appeals on Petitioner's appeal of right, (4) appellate counsel Renee Wagenaar was ineffective for failing to present issues one, two, and five in Petitioner's application for leave to appeal before the Michigan Supreme Court, (5) Petitioner was denied his right to present a defense when the judge precluded him from calling a witness as a sanction for violating the discovery order, and (6) the evidence was insufficient to convict.
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:
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)). To obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id., at 103.
A. Claims # 1, # 2, and # 5. The procedurally defaulted claims. Claims # 3 and # 4. The ineffective assistance of appellate counsel claims.
Respondent argues that Petitioner's first, second, and fifth claims are procedurally defaulted, in that Petitioner raised these claims for the first time in his post-conviction motion and failed to show cause and prejudice for failing to raise these claims on his appeal of right, as required by M.C.R. 6.508(D)(3). The Court discusses these claims with Petitioner's third and fourth claims alleging the ineffectiveness of appellate counsel both as substantive claims and to establish cause to excuse the default.
When the state courts clearly and expressly rely on a valid state procedural bar, federal habeas review is also barred unless petitioner can demonstrate “cause” for the default and actual prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to consider the claim will result in a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). If a petitioner fails to show cause for his procedural default, it is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an extraordinary case, where a constitutional error probably resulted in the conviction of one who is actually innocent, a federal court may consider the constitutional claims presented even in the absence of a showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986). However, to be credible, such a claim of innocence requires a petitioner to support the allegations of constitutional error with new reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Actual innocence, which would permit collateral review of a procedurally defaulted claim, means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998).
The Michigan Supreme Court rejected Petitioner's post-conviction appeal on the ground that “the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Timmer, 966 N.W.2d 387 (2021). The Michigan Court of Appeals denied Petitioner's post-conviction appeal in a form order “because the defendant failed to establish that the trial court erred in denying the motion for relief from judgment.” People v. Timmer, No. 354338 (Mich. Ct. App. Oct. 29, 2020)(ECF No. 14-8, PageID.757). These orders, however, did not refer to subsection (D)(3) nor did they mention Petitioner's failure to raise his claims on his direct appeal as their rationale for rejecting his post-conviction appeals. The orders in this case are ambiguous as to whether they refer to procedural default or a denial of post-conviction relief on the merits; the orders are unexplained. See Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010). This Court must “therefore look to the last reasoned state court opinion to determine the basis for the state court's rejection” of Petitioner's claims. Id.
The Kent County Circuit Court judge, in rejecting Petitioner's post-conviction claims, first cited M.C.R. 6.508(D)(3) and its requirement that a defendant show cause and prejudice for failing to raise an issue on direct appeal. (ECF No. 14-8, PageID.850-51). The judge indicated that Petitioner was alleging ineffective assistance of appellate counsel as cause. The judge stated he would review Petitioner's issues to determine whether he had established good cause for failing to raise the claims on Petitioner's appeal of right. (Id., PageID.851). The judge reviewed each claim and found them to be without merit. The judge concluded that appellate counsel was not ineffective for failing to raise each issue on the appeal of right; thus, Petitioner failed to show good cause to excuse the default. (Id., PageID.851-55).
The judge's language in his opinion was sufficient to invoke the provisions of M.C.R. 6.508(D)(3) to procedurally default Petitioner's claims. See Reeves v. Campbell, 708 Fed.Appx. 230, 237-38 (...
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