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MCCONER v. BURT (2019)

United States Court of Appeals, Sixth Circuit.

Kevin June MCCONER, Petitioner-Appellant, v. Sherry L. BURT, Warden, Respondent-Appellee.

No. 19-1574

Decided: October 24, 2019

Kevin June McConer, Pro Se Raina I. Korbakis, Assistant Attorney General, Michigan Department of Attorney General, Lansing, MI, for Respondent-Appellee

ORDER

Kevin June McConer, a Michigan state prisoner, applies pro se for a certificate of appealability to appeal a district court judgment denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. (McConer filed only a cover letter without a motion in this court, but he refers to his motion for a certificate of appealability filed in the district court).

In 2012, a jury convicted McConer of second-degree murder, and he was sentenced to twenty to forty years of imprisonment. An eyewitness testified that McConer was having a party at his house when the victim walked by. A co-defendant hit the victim over the head with a bottle and proceeded to kick him in the head repeatedly when he fell to the sidewalk. McConer joined in the kicking of the victim, and the two men then carried the victim across the street to a vacant lot. The perpetrators discussed the victim’s having stolen something from them earlier. McConer’s next-door neighbor saw the body being carried across the street by the two defendants and called the police. The victim’s nephew testified that he found the victim in the vacant lot. The victim was taken to a hospital, where he died from blunt force trauma to his head.

The conviction was upheld on direct appeal in the state court. This petition for federal habeas corpus relief raised the same claims that were addressed on the merits by the state court: 1) the prosecutor told the jury that the witnesses did not want to testify, implying that the defendants had threatened them; 2) the trial judge conducted voir dire erroneously; and 3) counsel was ineffective in failing to present two witnesses. A magistrate judge recommended that the petition be denied on the merits. The district court adopted this recommendation over McConer’s objections.

To receive a certificate of appealability, McConer must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). And, because the state court addressed the claims on the merits, the district court could not grant relief unless its decision was contrary to or an unreasonable application of clearly established federal law. See White v. Wheeler, ––– U.S. ––––, 136 S. Ct. 456, 460, 193 L.Ed.2d 384 (2015).

Reasonable jurists would not find the district court’s assessment of the prosecutorial misconduct claim debatable or wrong, because the state court could reasonably conclude that McConer was not denied due process. See Parker v. Matthews, 567 U.S. 37, 45, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012). The state court found that McConer was not deprived of due process because defense counsel cross-examined the neighbor, who clarified that she did not want to be involved in any homicide case, not just this specific case. The state court also found that the witnesses’ reluctance to testify was not presented to show McConer’s guilt, but to address the credibility of the testimony. Also, although the prosecutor stated in closing argument without any factual support that the victim’s nephew faced repercussions for his testimony, the nephew’s testimony was not relevant to McConer’s guilt, and the jury was instructed that counsel’s statements were not evidence. The state court’s findings were supported by the record, and its conclusion was not contrary to or an unreasonable application of clearly established federal law.

Reasonable jurists would not find the district court’s assessment of McConer’s challenge to the trial court’s voir dire of the jury debatable or wrong. The state court noted that McConer failed to identify any question that should have been asked and used ten peremptory challenges. McConer did not identify any unreasonable application of clearly established federal law. Moreover, McConer abandoned this claim in the motion for a certificate of appealability that he filed in the district court.

Finally, reasonable jurists would not find the district court’s assessment of McConer’s claim of ineffective assistance of counsel debatable or wrong. The state court found that counsel’s failure to call the two witnesses, whose affidavits stated that they contacted counsel and offered to testify that McConer was not outside the house at the time of the murder, did not amount to deficient performance that prejudiced the result of the trial, but was a strategic decision based on an assessment of the witnesses’ credibility. This finding was not an unreasonable application of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

For all the above reasons, the application for a certificate of appealability is DENIED.

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MCCONER v. BURT (2019)

Docket No: No. 19-1574

Decided: October 24, 2019

Court: United States Court of Appeals, Sixth Circuit.

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