DUANE SAIN v. SHERRY BURT

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United States Court of Appeals, Sixth Circuit.

DUANE SAIN, Petitioner-Appellant, v. SHERRY BURT, Respondent-Appellee.

No. 16-2576

Decided: April 17, 2017

ORDER

Duane Sain, a Michigan prisoner proceeding pro se, appeals the district court's judgment denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Sain has moved for a certificate of appealability, to remand the case to the district court, and for leave to proceed in forma pauperis.

A jury found Sain guilty of first-degree murder for his participation in a drive-by shooting, and the trial court sentenced him to life in prison. The Michigan Court of Appeals affirmed the trial court's judgment, People v. Sain, No. 297268, 2011 WL 3518212 (Mich. Ct. App. Aug. 11, 2011), and the Michigan Supreme Court denied leave to appeal, People v. Sain, 806 N.W.2d 327 (Mich. 2011) (Mem.). The Michigan courts denied Sain's subsequent motion for relief from judgment.

Sain sought federal habeas relief based on numerous claims, including that (1) the verdict form was flawed because it did not include a general verdict of not guilty or an option of finding him not guilty of the lesser-included offense of second-degree murder and (2) his trial counsel rendered ineffective assistance by failing to present exculpatory evidence. The district court denied the petition on the merits and declined to issue a certificate of appealability.

Sain has moved for a certificate of appealability as to the two issues identified above, and he moves this court to remand the case to the district court so that he may pursue additional claims. To obtain a certificate of appealability, a habeas corpus petitioner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Where a district court has rejected a constitutional claim on the merits, a petitioner must demonstrate that jurists of reason would find it debatable whether the district court correctly resolved the claim. Miller-El, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Sain first argues that the verdict form was flawed because it did not include a general verdict of not guilty or an option of finding him not guilty of the lesser-included offense of second-degree murder. To obtain habeas relief based on an allegedly improper jury instruction, a petitioner must show that the instructions, taken as a whole, were “so infirm that they rendered the entire trial fundamentally unfair.” Doan v. Carter, 548 F.3d 449, 455 (6th Cir. 2008) (quoting Austin v. Bell, 126 F.3d 843, 846-47 (6th Cir. 1997)).

Reasonable jurists would not debate the district court's determination that the state courts reasonably rejected this claim. The trial court orally instructed the jury that it could find Sain not guilty as to both first-degree murder and second-degree murder. In addition, the verdict form provided the option of finding Sain guilty or not guilty of first-degree murder, and the jury found Sain guilty of that offense. Given that specific finding and the trial court's oral instructions, Sain's trial was not rendered fundamentally unfair by the errors in the verdict form.

Sain also argues that his trial counsel rendered ineffective assistance by failing to present exculpatory evidence contained in the affidavits of Shanay Rogers-Watkins and his sister, Devonne Sain. In her affidavit, Rogers-Watkins stated that she witnessed the drive-by shooting and that Sain was not the driver or the shooter. Devonne Sain stated that, another individual told her that he knew the identity of the driver and shooter and that Sain was not involved. To prevail on a claim of ineffective assistance, a petitioner must demonstrate “deficient performance by counsel resulting in prejudice.” United States v. Wynn, 663 F.3d 847, 851 (6th Cir. 2011) (quoting Rompilla v. Beard, 545 U.S. 374, 380 (2005)).

Reasonable jurists would not debate the district court's determination that the state courts reasonably rejected this claim. Sain has not established that counsel performed deficiently by failing to present the evidence at issue because he has not shown that counsel could have reasonably discovered the evidence during his trial in early 2010.

Accordingly, Sain's motion for a certificate of appealability and motion to remand are DENIED and his motion for leave to proceed in forma pauperis is DENIED as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk