Evans v. Tanner

1

THYRONE DESHAWN EVANS, Petitioner, v. JEFF TANNER,^[1] Respondent.

No. 2:19-cv-11660

United States District Court, E.D. Michigan, Southern Division

February 14, 2023

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

LINDA V. PARKER, U.S. DISTRICT JUDGE

Petitioner Thyrone Deshawn Evans, a Michigan Department of Corrections prisoner, filed a pro se application for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in the Wayne County Circuit Court, Petitioner was convicted of second-degree murder in violation of Michigan Compiled Laws § 750.317; felon in possession of a firearm in violation of Michigan Compiled Laws § 750.224f; and possession of a firearm during the commission of a felony in violation of Michigan Compiled Laws § 750.227b Petitioner was sentenced as a fourth-offense habitual offender to concurrent prison terms of forty to sixty years for the murder conviction, sixteen to twenty years for the felon-in-possession conviction, and to a consecutive term of two years for the felony-firearm conviction.

In his habeas petition, Petitioner claims insufficient evidence supports his murder conviction, that the verdict fails against the great weight of the evidence, that his jury was improperly instructed, and that he was denied the opportunity to present a defense. For the reasons that follow, the Court denies the habeas petition.

I. Facts and Procedural History

On September 30, 2013, Cleveland Dunklin, IV, was shot and killed on Braile Street in Detroit, after he had exchanged words with Petitioner earlier that day over Petitioner speeding through the neighborhood. (Trial Tr., 9/3/14, ECF No. 9-6, Pg ID 883, 894, 1050); (Trial Tr., 9/7/14, ECF No 9-7, Pg ID 1079-80, 1084). A Wayne County Circuit Court jury convicted Petitioner on charges of second-degree murder, Michigan Compiled Laws § 750.317; felon in possession of a firearm, Michigan Compiled Laws § 750.224f; and possession of a firearm during the commission of a felony, Michigan Compiled Laws § 750.227b. People v. Evans, No. 324460, 2016 WL 5405217, at *1 (Mich. Ct. App. Sept. 27, 2016). Petitioner was sentenced as a fourth-offense habitual offender, Michigan Compiled Laws § 769.12, to concurrent prison terms of forty to sixty years for the murder conviction and sixteen to twenty years for the felon-in-possession conviction; and a determinate two-year term for the felony-firearm conviction, to be served consecutively to the other sentences. Id.

The Michigan Court of Appeals summarized the trial testimony as follows:

The evidence indicated that the victim died as a result of a gunshot wound to his chest. Hershel Felder testified that he saw defendant shoot the victim as the victim walked away from defendant's car. Although Felder testified at trial that he did not see a gun, he previously testified that he saw a handgun come out of the window. Defendant also admitted firing a gun. Defendant's intent to kill can be inferred from his use of a deadly weapon. Although several witnesses either saw or heard another shooter, Felder testified that he saw defendant shoot the victim first. Additionally, Maurice Westley, Jamon Hawkins, and Dontanya Battle all heard a single shot before hearing a second set of shots. Battle saw the victim walk up to the driver's side of the red Charger before the shooting. Two types of shell casings were found at the scene, including some from defendant's weapon. The medical examiner could not say what type of bullet hit the victim. However, Westley saw the other shooter go behind the Charger and Hawkins saw the shooter on the passenger's side of the Charger, while Battle saw the victim on the driver's side of the Charger before the shooting. The damage observed on the Charger was on the back and passenger's side. Moreover, Hawkins saw the other shooter aiming downward at defendant's car, and the medical examiner testified that the path of the projectile that entered the victim was slightly upward.

Although Felder was a heroin user, he testified that he did not have heroin in his system on September 30, 2013, the night of the shooting. Also, while Felder gave inconsistent testimony and statements regarding what he saw and his location during the shooting, the jury was free to determine his credibility and the weight of his testimony. . ..

Defendant did not deny firing a weapon, but claimed that he acted in self-defense.

* * *

Defendant testified that he fired his weapon after several shots were fired at his vehicle and that he did not aim at anyone. As previously discussed, however, there was ample evidence that defendant fired the first shot at the victim and, thus, that he did not fire his weapon in selfdefense. There was also evidence of an earlier confrontation between defendant and the victim about defendant speeding, and that defendant came to Braile Street, the location of the shooting, with a gun. Moreover, defendant fled the scene after the shooting, there was no evidence that he went to the police, and he later lied to the police about the shooting.

Id. at *1-2. State courts' factual findings are presumed correct on habeas review. 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009). Additional facts will be reviewed below where they are pertinent to Petitioner's claims.

Following his conviction, Petitioner appealed by right, claiming insufficient evidence supported his second-degree murder conviction, that the verdict was against the great weight of the evidence, that the jury instructions as given deprived him of a fair trial, and that he was denied his right to present a defense under several theories, including the trial court's refusal to appoint a firearms and ballistics expert at public expense. In a divided opinion, the Michigan Court of Appeals affirmed Petitioner's convictions. Evans, 2016 WL 5405217, at *11. The dissenting judge would have “remand[ed] this case to the trial court to allow defendant to obtain funds for retaining such an expert and, if he chooses, to move for a new trial based upon the testimony or affidavit from such an expert.” Id. at *11 (Shapiro, J., dissenting).

The Michigan Supreme Court placed Petitioner's application for leave to appeal in abeyance, pending the decision in People v. Kennedy, 502 Mich. 206 (2018), which addressed Michigan law governing the appointment of experts for indigent criminal defendants. People v. Evans, 894 N.W.2d 544, 545 (Mich. 2017). After Kennedy was decided, the court “again considered” Petitioner's application but denied leave to appeal in a standard form order. People v. Evans, 503 Mich. 884 (2018).

This timely habeas petition followed. Petitioner raises the same grounds for relief he raised in the state appellate courts:

I. Petitioner is entitled to entry of judgment for acquittal on the charge of second-degree murder as there was insufficient evidence.

II. Petitioner is entitled to a new trial as the verdict is against the great weight of the evidence.

III. Petitioner is entitled to a new trial as his jury was improperly instructed.

IV. Petitioner is entitled to a new trial as he was denied his right to present a defense.

II. Legal Standard

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) codified at 28 U.S.C. § 2241, et seq., sets forth the standard of review federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part:

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 State court proceeding.

28 U.S.C. § 2254(d).

“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 [the Supreme] 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 principle from [the Supreme] 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, “[i]n order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been ‘objectively unreasonable.'” Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. The “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,' and ‘demands that state-court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997); Woodford v....