AMONTE REID v. SHERMAN CAMPBELL

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United States Court of Appeals, Sixth Circuit.

AMONTE REID, Petitioner-Appellant, v. SHERMAN CAMPBELL, Warden, Respondent-Appellee.

No. 17-1825

    Decided: December 07, 2017

ORDER

Amonte Reid, a pro se Michigan prisoner, appeals the district court's judgment denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The court construes Reid's notice of appeal as an application for a certificate of appealability (COA). See Fed. R. App. P. 22(b)(2). Reid also moves the court to proceed in forma pauperis on appeal.

In August 2012, Reid was convicted of armed robbery, two counts of possession of a firearm during the commission of a felony, and being a felon in possession of a firearm. The trial court sentenced Reid to an aggregate term of 25 to 80 years of imprisonment, plus a consecutive two-year prison term for the felony-firearm convictions. The Michigan Court of Appeals affirmed Reid's convictions, People v. Reid, No. 312792, 2014 WL 688643 (Mich. Ct. App. Feb. 20, 2014), and the Michigan Supreme Court denied leave to appeal, People v. Reid, 852 N.W.2d 620 (Mich. 2014) (mem.).

In November 2015, Reid filed a § 2254 habeas petition in the district court, raising two claims: (1) he received ineffective assistance of counsel because his attorney did not raise the defense of temporary innocent possession of a firearm and failed to request a jury instruction on unarmed robbery; and (2) the evidence was insufficient to convict him of armed robbery. The district court denied Reid's petition and declined to issue a COA.

A COA may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, the applicant must demonstrate that “jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court shall not grant a habeas petition with respect to any claim that was adjudicated on the merits in the state courts unless the adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d).

Reid claims that his trial attorney was ineffective for not raising the defense of temporary innocent possession of a firearm and for not requesting a jury instruction on unarmed robbery. According to the Michigan Court of Appeals, whose findings are presumed to be correct, 28 U.S.C. § 2254(e)(1), the victim in this case arranged to purchase some Vicodin pills from Reid. Reid, 2014 WL 688643, at *2. Instead of selling pills to the victim, however, Reid pulled a gun and demanded that the victim give him all of his money. Id. The victim grabbed the gun with both hands, and, as he and Reid were struggling for control of the gun, Reid shot the victim. Id. Reid then took the victim's wallet and cell phone and fled. Id. The court held that the innocent-possession defense was not available to Reid because his possession of the firearm occurred because he placed himself in a position to engage in criminal conduct. Id. at *1-2. The court held further that the evidence at trial did not support giving the jury an instruction on unarmed robbery. Id. at *2. The court concluded therefore that Reid's attorney was not ineffective. Id. The district court concluded that the state court's decision was not contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).

To establish ineffective assistance of counsel, the petitioner must establish both (1) that his “counsel's representation fell below an objective standard of reasonableness” and (2) that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 688, 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. In reviewing ineffective-assistance claims, AEDPA requires this court to “take a highly deferential look at counsel's performance through the deferential lens of § 2254(d).” See Kelly v. Lazaroff, 846 F.3d 819, 832 (6th Cir. 2017) (quoting Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).

In Michigan, temporary innocent possession is a defense to a charge of being a felon in possession of a firearm only if the defendant's possession of the firearm was immediately necessary to protect the defendant or another from death or serious physical harm. See Reid, 2014 WL 688643, at *1 (citing People v. Dupree, 771 N.W.2d 470, 480 (Mich. Ct. App. 2009)). The defense is unavailable, however, if the defendant recklessly or negligently placed himself in a situation where he would be forced to engage in criminal conduct. See id. (citing Dupree, 771 N.W.2d at 481). The state court determined that Reid could not raise this defense because he placed himself in a position to engage in criminal conduct by pointing the gun at the victim and demanding his money, and therefore that his attorney was not ineffective for not raising the defense. Id. at *2. The state court's determination that the innocent-possession defense was not available to Reid as a matter of state law is not reviewable by this court. See Davis v. Straub, 430 F.3d 281, 291 (6th Cir. 2005)). Based on the state court's ruling, it would have been futile for Reid's attorney to raise innocent possession as a defense, and counsel is not ineffective for failing to raise meritless claims. See Williams v. Bagley, 380 F.3d 932, 971 (6th Cir. 2004). Accordingly, reasonable jurists would not debate the district court's resolution of Reid's first ineffective-assistance claim.

Reid also claims that his attorney should have requested an instruction on unarmed robbery. Unarmed robbery of course requires that the defendant not be armed, see Reid, 2014 WL 688643, at *2 (citing Mich. Comp. Laws § 750.530; People v. Harverson, 804 N.W.2d 751, 761 (Mich. Ct. App. 2010)), and Reid has not pointed to any evidence in the record that shows that he was unarmed at the time of the robbery. Indeed, the Michigan court concluded that the most rational view of the evidence in the record was that Reid was armed with a pistol. Id. Reid's attorney was not ineffective for failing to request a jury instruction that was not supported by the evidence at trial. See Williams, 380 F.3d at 971. Accordingly, reasonable jurists would not debate the district court's resolution of Reid's second ineffective-assistance claim.

Finally, Reid claims that the evidence was insufficient to convict him of armed robbery. In particular, Reid claims that the prosecution failed to prove that he either assaulted the victim or put the victim in fear. The Michigan Court of Appeals rejected this claim because, viewed in the light most favorable to the prosecution, the evidence at trial established all of the elements to prove armed robbery. See Reid, 2014 WL 688643, at *3-4. The district court concluded that the state court's resolution of Reid's sufficiency claim was not contrary to or an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979).

In reviewing sufficiency of the evidence claims under AEDPA, the court gives the state court's judgment a double layer of deference. See Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009). First, the court must determine whether, viewing the evidence “in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 205 (citing Jackson, 443 U.S. at 319). Second, even if the court concludes that a rational trier of fact could not have found the petitioner guilty beyond a reasonable doubt, it must defer to the state court's sufficiency determination “as long as it is not unreasonable.” Id. (citing 28 U.S.C. § 2254(d)(2)).

In Michigan, the elements of armed robbery are:

(1) the defendant was engaged in the course of committing a larceny of any money or other property, (2) the defendant used force or violence against a person who was present, or assaulted or put the person in fear, and (3) the defendant, in the course of committing the larceny, possessed a real or feigned dangerous weapon, or represented that he possessed a dangerous weapon.

See Reid, 2014 WL 688643, at *2 (citing Mich. Comp. Laws § 750.529; People v. Chambers, 742 N.W.2d 610, 614 (Mich. Ct. App. 2007)). Reid argues that the second element was not satisfied. However, the victim of the robbery testified that when he first saw the gun, he thought, “wow, I'm about to die.” Viewed in the light most favorable to the prosecution, the evidence presented at trial easily established the second element—and, indeed, all three elements—beyond a reasonable doubt. Reasonable jurists therefore would not debate the district court's resolution of Reid's sufficiency claim.

Accordingly, the court DENIES Reid's COA application and DENIES as moot his motion to proceed in forma pauperis.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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