Petition for Writ of Certiorari — Emerson L. Beverly, Petitioner v. Sherry L. Burt, Warden

No. 19-1464

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EMERSON L. BEVERLY,

Petitioner-Appellant,

v.

SHERRY L. BURT,

Respondent-Appel lee.

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FILED

Jul 23, 2019

DEBORAH S. HUNT, Clerk

ORDER

Emerson L. Beverly, a Michigan prisoner proceeding pro se, appeals the district court’s

judgment denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. He has applied for a

certificate of appealability (“COA”). See Fed. R. App. P. 22(b)(1).

A jury convicted Beverly of first-degree home invasion and assault with intent to commit

murder. The trial court sentenced Beverly as a fourth habitual offender to consecutive prison terms

of 20 to 40 years and 30 to 45 years, respectively. The Michigan Court of Appeals affirmed

Beverly’s convictions but remanded for a sentencing hearing under People v. Lockridge, 870

N.W.2d 502 (Mich. 2015). People v. Beverly, No. 322419, 2015 WL 8538686 (Mich. Ct. App.

Dec. 10, 2015) (per curiam). The Michigan Supreme Court denied leave to appeal.

Beverly then filed this federal habeas petition, arguing that: (1) the prosecutor engaged in

misconduct during his closing and rebuttal arguments by denigrating defense counsel and

commenting on Beverly’s failure to testify; (2) the evidence was insufficient to support his

convictions; and (3 & 4) the trial court erred in scoring the sentencing variables and imposing

consecutive sentences. After the warden filed a response, the district court denied Beverly’s

petition on the merits and declined to issue a COA. In his COA application, Beverly reasserts the

merits of his four grounds for relief.

No. 19-1464

-2A COA may issue only if a petitioner makes “a substantial showing of the denial of a

constitutional right.”

28 U.S.C. § 2253(c)(2).

“A petitioner satisfies this standard by

demonstrating 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).

Ground 1.

Beverly argues that the prosecutor engaged in misconduct by denigrating

defense counsel. In his closing argument, the prosecutor characterized the defense as being “like

a magician” and “wanting] to get [the jury’s] attention over here when something is really going

on, which is the truth over here. Hello, I’m over here, and your attention is here, but what’s over

there? Common sense.” The prosecutor also cautioned the jury “to be careful of red herrings, and

. . . smoke and mirrors, hello, I’m over here.” The prosecutor later reiterated, “This is where the

red herring comes in. Look at me over here, when the truth is over there.” The prosecutor then

told the jury, “Don’t chase the rabbit” and, during his rebuttal argument, again stated, “Hello, I’m

over here, but the truth is over here.”

Reasonable jurists could not conclude that the prosecutor’s remarks were improper. In

context, the statements show that the prosecutor characterized certain evidence as misleading and

asked the jury to believe its theory of the case, rather than the defense’s theory. The prosecutor

did not attack the defense attorney, his credibility, or his integrity. Compare Wogenstahl v.

Mitchell, 668 F.3d 307, 330 (6th Cir. 2012), with, e.g., United States v. Holmes, 413 F.3d 770,

774.76 (8th Cir. 2005). And, given the strength of the State’s case, discussed below in response

to Beverly’s second ground, reasonable jurists could not debate the district court’s conclusion that,

even if the comments were improper, any error was harmless. See Pritchett v. Pitcher, 117 F.3d

959, 964 (6th Cir. 1997).

Beverly also argues that the prosecutor engaged in misconduct by commenting on

Beverly’s failure to testify. In his closing argument, the prosecutor stated that the evidence was

“uncontroverted” that the victim was assaulted, the victim’s injuries were caused by blunt force

trauma, the victim’s blood was found at the scene of the crime, and the victim was lawfully present

No. 19-1464

-3in her home. And, in his rebuttal argument, the prosecutor repeatedly characterized the victim’s

testimony as uncontroverted. Reasonable jurists could conclude that the latter characterizations,

at least, were improper. See, e.g., Desmond v. United States, 345 F.2d 225, 227 (1st Cir. 1965).

Again, however, given the strength of the State’s case, discussed below in response to Beverly’s

second ground, and the trial court’s multiple admonitions to the jury that Beverly had a right not

to testify and that his silence could not be used against him, reasonable jurists could not debate the

district court’s conclusion that any error was harmless. See Pritchett, 117 F.3d at 964.

Ground 2. Beverly argues that the evidence was insufficient to support his convictions. In

reviewing the sufficiency of the evidence, “the relevant question is whether, after 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.” Jackson v. Virginia, 443 U.S.

307, 319 (1979). “[Ujnder Jackson, the assessment of the credibility of witnesses is generally

beyond the scope of review.” Schlup v. Delo, 513 U.S. 298, 330 (1995).

The Michigan Court of Appeals set forth the following elements for the offense of firstdegree home invasion:

(1) the defendant either broke and entered a dwelling or entered a dwelling without

permission; (2) the defendant either intended when entering to commit a felony,

larceny, or assault in the dwelling or at any time while entering, present in, or

exiting the dwelling committed a felony, larceny, or assault; and (3) while the

defendant was entering, present in, or exiting the dwelling, he was either armed

with a dangerous weapon or another person was lawfully present in the dwelling.

Beverly, 2015 WL 8538686, at *2. Beverly challenges only the first element, arguing that he had

permission to enter or be within the victim’s home. In rejecting this claim, the state appellate court

reasoned as follows:

Defendant stayed at the victim’s home periodically, even after he and the victim

broke up. However, the victim testified that she was the sole lessee of the home,

had never given defendant the right to enter or leave freely, and had never given

defendant the alarm code. We conclude that sufficient evidence supported

defendant’s home invasion conviction because the jury could reasonably conclude

from this evidence that defendant entered the victim’s home without permission.

No. 19-1464

-4Id. A state court’s interpretation of state law is binding on federal habeas review, Bradshaw v.

Richey, 546 U.S. 74, 76 (2005) (per curiam). Under these circumstances, reasonable jurists could

not debate the district court’s conclusion that “[t]he evidence was sufficient to support the jury’s

verdict, and the state appellate court’s conclusion that sufficient evidence existed was not contrary

to, or an unreasonable application of[,] federal law.”

Next, the Michigan Court of Appeals set forth the following elements for the offense of

assault with intent to commit murder: “(1) an assault, (2) with an actual intent to kill, (3) which,

if successful, would make the killing murder.” Beverly, 2015 WL 8538686, at *2 (quoting People

v. Plummer, 581 N.W.2d 753, 759 (Mich. Ct. App. 1998)). Beverly challenges only the second

element, “questioning] whether the injuries reflect intent to murder” and noting that he possessed,

but did not use, a knife or knives. In rejecting this claim, the state appellate court reasoned as

follows:

[T]he victim testified that defendant struck her repeatedly in the head with various

blunt objects. He did so with enough force to break the handle of a frying pan.

Witnesses testified that the victim was covered in blood and there were puddles of

blood on the kitchen floor. Defendant struck the victim so forcefully that the

victim’s mother found blood spatter on the ceiling when she was cleaning the

victim’s home. Additionally, the victim testified that defendant threatened to kill

her before, during, and after the incident. Viewing the evidence in the light most

favorable to the prosecution, we conclude that a reasonable jury could find that

defendant assaulted the victim with the intent to kill her.

Id. at *3. Again, a state court’s interpretation of state law is binding on federal habeas review,

Richey, 546 U.S. at 76. Under these circumstances, reasonable jurists could not debate the district

court’s conclusion that “the evidence was sufficient to sustain Petitioner’s assault conviction, and

the state appellate court’s decision upholding the jury’s verdict was not contrary to, or an

unreasonable application of[,] federal law.”

Grounds 3 & 4. Beverly argues that the trial court erred in scoring the sentencing variables

and imposing consecutive sentences. In doing so, Beverly argues that the trial court sentenced him

in violation of state law. As indicated above, however, alleged violations of state law are not

cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). And,

No. 19-1464

-5although a sentence may violate due process if it is “imposed on the basis of ‘misinformation of

constitutional magnitude,”’ Roberts v. United States, 445 U.S. 552, 556 (1980) (quoting United

States v. Tucker, 404 U.S. 443, 447 (1972)), Beverly has failed to rebut the presumption of

correctness afforded to the trial court’s factual findings, see 28 U.S.C. § 2254(e)(1).

Accordingly, the COA application is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

APPENDIX B

United States District Court Eastern District of Michigan Opinion

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EMERSON LAMONT BEVERLY,

Petitioner,

v.

Case No. 16-13783

SHERRY BURT,

Respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner Emerson Lamont Beverly has filed a pro se petition for the writ of

habeas corpus under 28 U.S.C. § 2254. The petition challenges Petitioner’s convictions

and sentences for assault with intent to commit murder, Mich. Comp. Laws § 750.83,

and first-degree home invasion, Mich. Comp. Laws § 750.110a(2). Petitioner argues

that the prosecutor committed misconduct during closing arguments, the evidence at

trial was insufficient, the sentencing guidelines were mis-scored, and the trial court

abused its discretion by ordering his sentences to run consecutively. The Government

responds that the state appellate court’s decision on Petitioner’s first two claims was not

contrary to federal law, an unreasonable application of federal law, or an unreasonable

determination of the facts. The Government also contends that Petitioner’s sentencing

scoring claims are not cognizable on federal habeas review and that Petitioner

procedurally defaulted his claim related to consecutive sentencing. The court finds that

Petitioner’s claims do not warrant habeas relief. Accordingly, the court will deny the

petition.

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I. BACKGROUND

Petitioner was tried before a jury in Saginaw County Circuit Court. The Michigan

Court of Appeals summarized the facts of the case:

According to the victim, she and defendant dated from September

2012 until March 2013. Defendant spent five or six nights a week at her

home, but he did not store any belongings there. The victim’s home was

equipped with an alarm system. On the days defendant left the home after

the victim did, she gave defendant a key so that he could lock up and she

would retrieve the key from him later. She did not give him the code to the

alarm system.

The relationship began to deteriorate in March 2013. On March 12,

2013, they had a verbal altercation. Defendant told the victim that he would

kill her rather than allow her to be with someone else. On March 19, the

victim told defendant that she “wanted to take a step back” in their

relationship. As she was getting ready for work, defendant grabbed her

around the neck and threw her to the floor. She injured her nose and called

911. After March 19, the victim no longer considered herself in a dating

relationship with defendant and no longer gave him a key to her home, but

she allowed him to spend the night on a less frequent basis.

The victim testified that in the evening of April 11,2013, she woke up

to the sound of her alarm beeping and saw defendant standing over her

bed. Defendant stated “I told you I was going to kill you” and began striking

the victim with a hard object. Defendant dragged her out of her bed and

struck her with something that broke. He then dragged the victim into the

kitchen, over broken glass, and repeatedly struck her on the head with a

frying pan. When she lifted her head, the victim saw defendant with two

knives in his hands. The alarm siren stopped, defendant dropped the

knives, said he was not done with her yet, and left.

According to Saginaw Police Department Officer Anthony

Teneyuque, when he made contact with the victim, she was covered in

blood. Officer Teneyuque later entered the victim's home, where he found

large blood spatters, puddles of blood on the kitchen floor, a broken frying

pan with blood on it, and a knife with a bloody handle. Sergeant Mark Scott

testified that the victim appeared severely injured. According to paramedic

Whitney Gavord, the victim had multiple lacerations to her head, hands,

feet, legs, eye, and cheek, but the bleeding was not life-threatening. Dr.

Andrew Bazaki prepared a medical report that stated that, among other

medical issues, the victim had significant trauma to her left eye, a fractured

wrist, and crush injuries to the tips of her fingers. The victim testified that

she suffered permanent damage to her eye and now requires eyeglasses.

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People v. Beverly, No. 322419, 2015 WL 8538686, at *1 (Mich. Ct. App., Dec. 10

2015).

Petitioner did not testify or present any witnesses. His theory of the case was

that, even though his conduct was inexcusable and unlawful, the charges did not fit the

facts. He maintained that he was guilty of less serious offenses because he lacked the

intent to kill the victim and had permission to be in the victim’s home. (Trial Tr. vol. 2,

110-11, ECF No. 8-8, PagelD 269; Trial Tr. vol. 7, 182-84, 186, 188-89, ECF no. 8-13,

PagelD 581-83.)

On the home-invasion count, the trial court instructed the jury on first-degree

home invasion and the lesser offense of third-degree home invasion. On the assault

charge, the trial court instructed the jury on assault with intent to commit murder and the

lesser offenses of assault with intent to do great bodily harm less than murder and

aggravated assault. The jury found Petitioner guilty, as charged, of assault with intent to

commit murder and first-degree home invasion. On May 21, 2014, the trial court

sentenced Petitioner as a habitual offender to consecutive terms of 30 to 45 years in

prison for the assault and 20 to 40 years in prison for the home invasion.

Petitioner moved for a new trial on the basis of insufficient evidence, evidentiary

errors, judicial misconduct related to witness questioning, and prosecutorial misconduct.

The trial court heard oral arguments on these issues and subsequently denied the

motion. (See Mot. Hr’g Tr., ECF No. 8-16.)

Petitioner raised then raised these claims on direct appeal. The Michigan Court

of Appeals affirmed his convictions and sentences in an unpublished, per curiam

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opinion. See Beverly, 2015 WL 8538686.1 On May 24, 2016, the Michigan Supreme

Court denied leave to appeal. See People v. Beverly, 878 N.W.2d 853 (Mich. 2016). On

October 19, 2016, Petitioner filed his habeas corpus petition.

II. STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires

federal habeas petitioners who challenge

a matter “adjudicated on the merits in State court” to show that the relevant

state court “decision” (1) “was contrary to, or involved an unreasonable

application of, clearly established Federal law,” or (2) “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). Deciding whether a

state court’s decision “involved” an unreasonable application of federal law

or “was based on" an unreasonable determination of fact requires the

federal habeas court to “train its attention on the particular reasons—both

legal and factual—why state courts rejected a state prisoner’s federal

claims,” Hittson v. Chatman, 135 S.Ct. 2126, 2126 (2015) (Ginsburg, J.,

concurring in denial of certiorari), and to give appropriate deference to that

decision, Harrington v. Richter, 562 U.S. 86, 101-102 (2011).

Wilson v. Sellers, 138 S. Ct. 1188, 1191-92 (2018). When, as in this case, the last state

court to decide a prisoner’s federal claim explains its decision on the merits in a

reasoned opinion, “a federal habeas court simply reviews the specific reasons given by

the state court and defers to those reasons if they are reasonable.” Id. at 1192.

1

The Court of Appeals, nevertheless, remanded the case to the trial court for a

determination of whether the trial court would have imposed a materially different

sentence if the sentencing guidelines had been advisory, rather than mandatory, at the

time of Petitioner’s sentencing. Beverly, 2015 WL 8538686, at *7-*8 (citing People v.

Lockridge, 870 N.W.2d 502 (Mich. 2015)). It is unclear from the record whether the

court altered the sentence on remand.

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“[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. Rather, that application must

also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “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) (internal quotations and citations omitted). In fact, “[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) (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state

prisoner must show that the state court’s ruling on his or her 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.

III. ANALYSIS

A. The Prosecutor’s Closing Arguments

Petitioner alleges that the prosecutor denigrated the defense during closing

arguments by suggesting that defense counsel intentionally tried to mislead them.

Petitioner also alleges that the prosecutor encouraged the jurors to use Petitioner’s

failure to testify as evidence of guilt. The Michigan Court of Appeals rejected both of

Petitioner’s prosecutorial-misconduct claims on the merits.

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“On habeas review, ‘the Supreme Court has clearly indicated that the state

courts have substantial breathing room when considering prosecutorial misconduct

claims because constitutional line drawing [in prosecutorial misconduct cases] is

necessarily imprecise.’” Trimble v. Bobby, 804 F.3d 767, 783 (6th Cir. 2015) (alteration

in original) (quoting Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006)). Consequently

even though prosecutors must “refrain from improper methods calculated to produce a

wrongful conviction,” Viereckv. United States, 318 U.S. 236, 248 (1943), prosecutorialmisconduct claims are reviewed deferentially in a federal habeas case. Millender v.

Adams, 376 F.3d 520, 528 (6th Cir. 2004).

The clearly established federal law related to claims for prosecutorial misconduct

is the Supreme Court’s decision in Darden v. Wainwright, 477 U.S. 168 (1986). See

Parkerv. Matthews, 567 U.S. 37, 45 (2012) {per curiam) (describing Parker as the

clearly established law on this issue). In Darden, the Supreme Court stated that

it “is not enough that the prosecutors’ remarks were undesirable or even

universally condemned.” Darden v. Wainwright, 699 F.2d [1031, 1036 (11th

Cir. 1983)]. The relevant question is whether the prosecutors’ comments

“so infected the trial with unfairness as to make the resulting conviction a

denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637 (1974).

Moreover, the appropriate standard of review for such a claim on writ of

habeas corpus is “the narrow one of due process, and not the broad

exercise of supervisory power.” Id., at 642.

Darden, 477 U.S. at 181.

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1. Denigrating the Defense

Petitioner contends that the prosecutor denigrated the defense during closing

arguments by referring to the defense arguments as “distractions,” “red herrings,”2 and

“smoke and mirrors.” The Michigan Court of Appeals disagreed with Petitioner and

concluded that the prosecutor’s use of those words did not denigrate defense counsel,

nor accuse defense counsel of attempting to mislead the jury.

The Supreme Court has made clear that both defense attorneys and prosecutors

may not “make unfounded and inflammatory attacks on the opposing advocate.” United

States v. Young, 470 U.S. 1, 9 (1985). Personal attacks on opposing counsel are

unprofessional, United States v. Collins 78 F.3d 1021, 1040 (6th Cir. 1996), and “[i]t is

improper to . . . argue that [defense] counsel is attempting to mislead the jury.” West v.

Bell, 550 F.3d 542, 565 (6th Cir. 2008) (citing Broom v. Mitchell, AM F.3d 392, 412-13

(6th Cir. 2006)). Nevertheless, a prosecutor has wide latitude in responding to the

defense’s case. See Wogenstahl v. Mitchell, 668 F.3d 307, 330 (6th Cir. 2012). “A

prosecutor commenting that the defense is attempting to trick the jury is a permissible

means of arguing so long as those comments are not overly excessive or do not impair

the search for the truth.” United States v. August, 984 F.2d 705, 715 (6th Cir. 1992).

At issue here are the following remarks made by the prosecutor:

What this case calls for is a common sense analysis, but if we’re not careful,

there are things that can cloud our vision. I call these distractions, and

sometimes, you know, people over here, it’s like a magician. Think about a

magician. Sometimes it’s not necessarily magic, but they want to get your

2 The Sixth Circuit has used the phrase “‘red herring’ to describe a fallacious argument

that distracts from the truth.” United States v. Vassar, 346 F. App’x 17, 25 (6th Cir.

2009).

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attention over here when something is really going on, which is the truth

over here. Hello, I’m over here, and your attention is here, but what’s over

there? Common sense.

(Trial Tr. vol. 7, 135, ECF No. 8-13, PagelD 569.)

Later, when discussing the crimes, the prosecutor stated, “I want you to be

careful of red herrings, and we talked about red herrings, smoke and mirrors, hello, I’m

over here.” (Id. at PagelD 571.) Still later, when addressing the issue of whether

Petitioner had permission to enter the victim’s house and whether he knew the code to

the alarm system, the prosecutor said, “[t]his is where the red herring comes in. Look at

me over here, when the truth is over there. . . . Smoke and mirrors.” (Id. at PagelD 573.)

Defense counsel objected to the prosecutor’s remarks on grounds that “red herring”

arguments were impermissible and that the prosecutor was denigrating the defense. But

the trial overruled the objections because the remarks were a comment on the

evidence. (Id.)

Finally, during his rebuttal argument, the prosecutor commented on the victim’s

injuries and whether, according to the defense’s theory, the injuries could have been

caused by Petitioner’s fist and the crime was actually the lesser offense of aggravated

assault. The prosecutor then repeated, “Hello, I’m over here, but the truth is over here.”

(Trial Tr. vol. 7, 194, ECF No. 8-13, PagelD 584.)

According to Petitioner, the quoted remarks suggested that defense counsel was

intentionally attempting to mislead the jury and that defense counsel did not believe his

own client. Petitioner maintains that the remarks also undermined the presumption of

innocence and impermissibly shifted the focus from the evidence to defense counsel.

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The prosecutor, however, did not say that defense counsel was trying to mislead

the jury. Although he implied that defense counsel was trying to distract the jury and

steer them away from the truth, a prosecutor’s comment on a “smoke and mirrors

defense” is within acceptable bounds. United States v. Wilson, 199 F. App’x 495, 498

n.1 (6th Cir. 2006).

A prosecutor’s reference to “red herrings” also does not denigrate or improperly

disparage defense counsel when, as in this case, the prosecutor’s arguments highlight

the evidence against the defendant and are designed to persuade the jury to believe the

prosecutor’s theory of the case. United States v. Burroughs, 465 F. App’x 530, 535 (6th

Cir. 2012). The disputed remarks, moreover, “were not so much a personal attack on

counsel as a commentary on the strength of the merits of [Petitioner’s] defense.” United

States v. Graham, 125 F. App’x 624, 634 (6th Cir. 2005). As such, they were not

improper. Id. at 633-35. These comments did not impair the search for truth or infect

the trial with such unfairness as to deprive Petitioner of due process.

Furthermore, the trial court instructed the jury at the beginning and at the close of

the case that the jurors should consider only the evidence that was properly admitted in

evidence and that the attorneys’ arguments were not evidence. The court explained that

the attorneys’ arguments were only meant to help the jurors understand the evidence

and each side’s legal theory of the case. (Trial Tr. vol. 2, 87-89, ECF No. 8-8, PagelD

263; Trial Tr. vol. 7, 204, ECF No. 8-13, PagelD 586.) Jurors are presumed to follow a

trial court’s instructions to them. Richardson v. Marsh, 481 U.S. 200, 211 (1987).

Moreover, the evidence against Petitioner was overwhelming. Therefore, even if the

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prosecutor’s remarks were improper and rose to the level of a constitutional error, they

could not have had a “substantial and injurious effect or influence” on the jury’s verdict

and were ultimately harmless. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

2. The Comments on Uncontroverted Evidence

During closing arguments, the prosecutor referred to certain evidence as

“uncontroverted.” According to Petitioner, use of the word “uncontroverted” infringed on

his right to remain silent and encouraged the jury to use his failure to testify as

substantive evidence. The Michigan Court of Appeals concluded on review of this claim

that the prosecutor’s argument was within the bounds or propriety and was not

improper.

Prosecutors may not comment on an accused’s silence, Griffin v. California, 380

U.S. 609, 615 (1965), or use a defendant’s silence as substantive evidence of guilt. Hall

v. Vasbinder, 563 F.3d 222, 232 (6th Cir. 2009). This rule “applies to indirect as well as

direct comments on the failure to testify.” United States v. Moore, 917 F.2d 215, 224-25

(6th Cir. 1990). In addressing indirect references to an accused’s right to stay silent, the

Sixth Circuit has,

refused to adopt a per se rule that comments as to the uncontradicted

nature of evidence violated Griffin even where the evidence in question

could only have been contradicted by the defendant.... Rather, the court

must conduct a “probing analysis of the context of the comments," in order

to determine “[wjhether the language used was manifestly intended to be or

was of such a character that the jury would naturally and necessarily take it

to be a comment on the failure of the accused to testify.”

Spalla v. Foltz, 788 F.2d 400, 403-04 (6th Cir. 1986) (internal citations omitted).

A probing analysis of indirect comments requires consideration of the following

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four factors:

1) Were the comments “manifestly intended” to reflect the accused’s

silence or of such a character that the jury would “naturally and

necessarily” take them as such;

2) Were the remarks isolated or extensive;

3) Was the evidence of guilt otherwise overwhelming;

4) What curative instructions were given, and when.

Spalla, 788 F.2d at 404-05 (quoting Hearn v. Mintzes, 708 F.2d 1072, 1077 (6th Cir.

1983)).

The prosecutor in Petitioner’s case said it was uncontroverted that there was an

assault, that the injuries were most likely caused by blunt force trauma, and that it was

the victim’s blood at the crime scene. (Trial Tr. vol. 7, 141-43, ECF No. 8-13, PagelD

571.) These comments were not direct comments on Petitioner’s failure to testify or

even indirect comments on the failure to testify. They simply acknowledged that defense

counsel had conceded most of the facts in the case.

During his rebuttal argument, however, the prosecutor said: “Uncontroverted, she

tells you, he’s standing over [her and saying] bitch, I’m gonna kill you, I told you I was

gonna kill you .’’(Id. at 195, PagelD 584.) Subsequently, the prosecutor stated:

You beat this woman up, and you take her phone, and you leave her there

with this bloody mess. She’s bloodied beaten and bruised, and then you

run out and you don’t even call the police to try to help her. Because he

knows that he’s done wrong. But we challenged that and we submit that the

victim’s testimony is what’s the truth here, and her testimony is

uncontroverted. It's uncontroverted.

(Id. at 199, PagelD 585) (emphasis added).) At that point defense counsel objected, but

the trial court overruled the objection. (Id. at 199-200, PagelD 585-86.) The prosecutor

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then stated two more times that the victim’s testimony was uncontroverted. (Id. at 200,

PagelD 585.)

The jury could have interpreted the prosecutor’s remarks as comments on

Petitioner’s failure to testify or to present any evidence contradicting the victim’s version

of the facts. The remarks were not isolated, but the evidence of Petitioner’s guilt was

overwhelming, and when defense counsel objected, the trial court pointed out that

Petitioner had a right not to testify. (Id.) The trial court also informed the jurors at other

times during the trial that Petitioner was not required to prove his innocence, to produce

any evidence, or to do anything, and that the jurors could find him not guilty if the

prosecution did not prove its case beyond a reasonable doubt. (Trial Tr. vol. 1, 33-34,

ECF No. 8-7, PagelD 200; Trial Tr. vol. 2, 87, ECF No. 8-8, PagelD 263; Trial Tr. vol. 7,

131-32, ECF No. 8-13, PagelD 568.) During the trial court’s charge to the jury, the court

was even more specific, stating that, “[ejvery defendant has the absolute right not to

testify [and] when you decide this case, you must not consider the fact that he did not

testify. It must not affect your verdict in any way.” (Trial Tr. vol. 7, 203-04, ECF No. 813, PagelD 586.)

The court concludes that, even assuming the prosecutor’s remarks about the

victim’s uncontroverted testimony were unconstitutional, the error was harmless, given

the strength of the evidence against Petitioner and the trial court’s instructions to the

jurors. Habeas relief is not warranted on Petitioner’s claim.

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B. The Sufficiency of the Evidence

The second habeas claim alleges that the prosecution failed to prove the

charged crimes beyond a reasonable doubt. The Michigan Court of Appeals disagreed

with Petitioner and rejected his claim on the merits.

The Due Process Clause of the United States Constitution “protects the accused

against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S.

358, 364 (1970). Following Winship, the critical inquiry on review of a challenge to the

sufficiency of the evidence supporting a criminal conviction is “whether, after 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.” Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979). This standard permits the trier of fact to “resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Id. Additionally, circumstantial evidence may be

considered and “such evidence need not remove every reasonable hypothesis except

that of guilt.” Apanovitch v. Houk, 466 F.3d 460, 488 (6th Cir. 2006). Moreover, under

the AEDPA, the Court’s “review of a state-court conviction for sufficiency of the

evidence is very limited.” Thomas v. Stephenson, 898 F.3d 693, 698 (6th Cir. 2018).

The Supreme Court has made clear that sufficiency claims “face a high bar in federal

habeas proceedings because they are subject to two layers of judicial deference.”

Coleman v. Johnson, 566 U.S. 650, 651 (2012) {per curiam).

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First, “it is the responsibility of the jury ... to decide what conclusions should be

drawn from the evidence admitted at trial.” Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2

(2011) (per curiam)). “And second, on habeas review, ‘a federal court may not overturn

a state court decision rejecting a sufficiency of the evidence challenge simply because

the federal court disagrees with the state court. The federal court instead may do so

only if the state court decision was ‘objectively unreasonable.’” Id. (quoting Cavazos v.

Smith, 565 U.S. at 2). This is a difficult standard to meet on a habeas challenge. See

Thomas, 898 F.3d at 698.

1. Assault with Intent to Commit Murder

The Jackson “standard must be applied with explicit reference to the substantive

elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324

n.16. In Michigan, “[tjhe elements of assault with intent to murder are: (1) an assault,

(2) with an actual intent to kill, (3) which, if successful, would make the killing murder.”

People v. Brown, 703 N.W.2d 230, 236 (Mich. Ct. App. 2005) (internal citations

omitted).

Petitioner does not dispute assaulting the victim or the fact that the crime would

have been murder if the assault had been successful. The only element in dispute is

whether there was insufficient evidence of an intent to kill. In determining a defendant’s

intent, the jury may consider the nature of the acts, the defendant’s temper or

disposition, “whether the instrument and means used were naturally adapted to produce

death, [the defendant’s] conduct and declarations prior to, at the time, and after the

assault, and all other circumstances calculated to throw light upon the intention with

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which the assault was made.” People v. Taylor, 375 N.W.2d 1,8 (1985) (quoting

Roberts v. People, 19 Mich. 401, 415-416 (Mich. 1870)).

To support his argument that he lacked the necessary intent to commit murder,

Petitioner relies on testimony that the victim was not in physiological shock (Trial Tr. vol.

7, 69, ECF No. 8-13, PagelD 553), the CAT scan was negative for bleeding around the

brain (id. at 49-50, PagelD 548), the victim was lucid (id. at 16, PagelD 539), there was

not enough blood loss to cause her blood pressure to drop or to require a transfusion

(id. at 30, PagelD 543), and that the victim’s responses to questions were appropriate.

(Trial Tr. vol. 5, 113, ECF No. 8-11, PagelD 411.) The victim, however,

testified that defendant struck her repeatedly in the head with various blunt

objects. He did so with enough force to break the handle of a frying pan.

Witnesses testified that the victim was covered in blood and there were

puddles of blood on the kitchen floor. Defendant struck the victim so

forcefully that the victim’s mother found blood spatter on the ceiling when

she was cleaning the victim’s home. Additionally, the victim testified that

defendant threatened to kill her before, during, and after the incident.

Beverly, 2015 WL 8538686, at *3.

There was other evidence that, about 30 days before the incident for which

Petitioner was on trial, the victim informed Petitioner that she no longer wanted to be

with him. In response, Petitioner said that he would kill her before letting her be with

anybody else. (Trial Tr. vol. 4, 28-29, ECF No. 8-10, PagelD 343.) On the night in

question, Petitioner said, “I told you I was going to kill you,” and then he started to hit

her on the head. He pulled her out of bed, dragged her to the kitchen, and continued to

beat her. He had a knife in each hand, and he left the house only after the security

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alarm sounded. As he was leaving, he said that he was not done yet and would be

back. (Id. at 43-51, 63-64, 86, PagelD 347, 352, 357.)

The victim had lacerations on her face and the back of her head. (Trial Tr. vol. 4,

67, ECF No. 8-10, PagelD 353.) She broke her hand and required surgery to

reconstruct her knuckles (id. at 72, PagelD 354), and she sustained permanent damage

to her retina (id. at 75, PagelD 355.) She thought that Petitioner had hit her with a frying

pan. (Id. at 90, PagelD 358; Trial Tr. vol. 5, 46, ECF No. 8-11, PagelD 394.) She was in

the hospital for approximately three days. (Trial Tr. vol. 4, 74, ECF No. 8-10, PagelD

354; Trial Tr. vol. 5, 32, 40—41,47, ECF No. 8-11, PagelD 390, 392—94.) Two weeks

after the incident, Petitioner called her and threatened to put a bullet in her head if he

saw her on the grounds of the store where she worked. (Trial Tr. vol. 4, at 87-88, ECF

No. 8-10, PagelD 358.)

A rational trier of fact could have concluded from the extent and severity of the

victim’s injuries and Petitioner’s comments before, during, and after the incident that

Petitioner intended to kill the victim. Therefore, the evidence was sufficient to sustain

Petitioner’s assault conviction, and the state appellate court’s decision upholding the

jury’s verdict was not contrary to, or an unreasonable application of federal law.

Petitioner is not entitled to relief on the basis of his challenge to the sufficiency of the

evidence on the assault charge.

2. First-Degree Home Invasion

The elements of first-degree home invasion, as charged in this case, were:

(1) the defendant either broke and entered a dwelling or entered a dwelling

without permission; (2) the defendant either intended when entering to

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commit a felony, larceny, or assault in the dwelling or at any time while

entering, present in, or exiting the dwelling committed a felony, larceny, or

assault; and (3) while the defendant was entering, present in, or exiting the

dwelling, he was either armed with a dangerous weapon or another person

was lawfully present in the dwelling.

Beverly, 2015 WL 8538686, at *2.

Petitioner takes issue with the first element and argues that he had permission to

be in the victim’s home on the night in question. He points out that he and the victim

rented furniture together a month before the crimes (Trial Tr. vol. 4, 105-06, ECF No. 810, PagelD 362; 4/8/15 Trial Tr. at 25-26), remained a couple after she told him that

their relationship was over (Trial Tr. vol. 4, 29, ECF No. 8-10, PagelD 343), and

continued to be intimate after he threw her to the floor during a previous occasion. (Trial

Tr. vol. 5, 70, ECF No. 8-11, PagelD 400.) There was additional evidence that the two

of them had slept together as recently as a few days before the crimes (Trial Tr. vol. 4,

105, ECF No. 8-10, PagelD 362; Trial Tr vol. 5, 30, ECF 8-11, PagelD 390), and that

the victim informed a police officer she had broken up with Petitioner earlier on the day

of the crimes. (Trial Tr. vol. 6, 47, 82, ECF No. 8-12, PagelD 471,480.)

The Michigan Court of Appeals, however, pointed out that the victim had testified

“she was the sole lessee of the home, had never given defendant the right to enter or

leave freely, and had never given defendant the alarm code.” Beverly, 2015 WL

8538686, at *2. The Court of Appeals concluded that sufficient evidence supported

Petitioner’s conviction for home invasion because the jury could reasonably conclude

from the evidence that Petitioner entered the victim’s home without permission. Id.

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The record supports the state court’s conclusions. The victim testified that she

rented her residence, that no one else was listed on the lease, and the only other

person who lived with her was her daughter. (Trial Tr. vol. 3, 15-16, ECF No. 8-9,

PagelD 295.) The victim also testified that, in the past, she had given Petitioner a key to

her residence, but not on the day in question. (Id. at 30, PagelD 299.) She never made

a duplicate key for him and even though she sometimes gave him her house key before

leaving for work in the mornings, she did that so he could lock the house door when he

left; she would retrieve the key from him at the end her work day. (Id. 34-37, PagelD

300; Trial Tr. vol. 5, 24, 27, ECF No. 8-11, PagelD 388-89.) Petitioner did not have

permission to come and go out of her house, unless it was for a specific purpose, such

as allowing a workman to enter the home while she was at work. (Trial Tr. vol. 5, 24

27-28, PagelD 388-89.)

The victim’s relationship with Petitioner changed a month before the crimes. At

that point, she no longer gave him a key to her place as she had in the past. At no point

in their relationship was he permitted to enter her home without her permission, and he

did not keep his personal items in her home. On April 12, 2013, the date of the crimes,

she did not give him permission to enter her home, and he did not have a key to the

house. (Trial Tr. vol. 4, 36-39, ECF No. 8-10, PagelD 345-46; Trial Tr. vol. 5, 28-29,

56-57, ECF No. 8-11, PagelD 389-90, 396-97.) She terminated the relationship earlier

in the week of the crimes. (Trial Tr. vol. 4, 84-85, ECF No. 8-10, PagelD 357.)

A rational trier of fact could conclude from this evidence that Petitioner did not

have permission to enter the victim’s home on the night in question. The evidence was

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sufficient to support the jury’s verdict, and the state appellate court’s conclusion that

sufficient evidence existed was not contrary to, or an unreasonable application of

federal law.

C. The Sentence

Petitioner’s final two claims challenge his sentence.

1. The Offense Variables

Petitioner contends first that the trial court mis-scored offense variables one,

three, and seven of the Michigan sentencing guidelines. A state court’s alleged

misinterpretation and misapplication of state sentencing laws and guidelines is a matter

of state concern only. Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003). “It does not

implicate any federal rights,” Garcia-Dorantes v. Warren, 769 F. Supp. 2d 1092, 1112

(E.D. Mich. 2011), and “federal habeas corpus relief does not lie for errors of state law.”

Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Pulley v. Harris, 465 U.S. 37, 41

(1984) (“A federal court may not issue the writ [of habeas corpus] on the basis of a

perceived error of state law.”).

“In conducting habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.

McGuire, 502 U.S. 62, 68 (1991). Consequently, the alleged violations of state

sentencing law fail to state a claim for which habeas relief may be granted and are not

cognizable on habeas review. See Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir.

2007); Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000). Even if Petitioner’s claims

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were cognizable on habeas corpus review, they do not warrant habeas relief for the

following reasons.

a. Offense Variable One

Petitioner received 25 points for offense variable one (aggravated use of a

weapon) on the basis that “a victim was cut or stabbed with a knife or other cutting or

stabbing weapon.” Mich. Comp. Laws § 777.31 (1)(a). Petitioner claims that there was

no evidence the victim was cut with a knife and that the cuts on her body could have

resulted from being dragged over shattered glass, which is not a weapon.

Although the prosecution conceded on direct appeal that the trial court erred by

assessing points for offense variable one, the Michigan Court of Appeals noted that,

even if Petitioner’s total offense variable score were reduced by 25 points, the reduction

in points would not change the recommended minimum sentence. Beverly, 2015 WL

8538686, at *6. Thus, the alleged error in scoring 25 points for offense variable one

was harmless. See Williams v. United States, 503 U.S. 193, 203 (1992) (noting that a

misapplication of sentencing guidelines is harmless if the error did not affect the trial

court’s selection of the sentence imposed); United States v. Cramer, 111 F.3d 597, 603

(2d Cir. 2015) (stating that an error in calculating sentencing guidelines is harmless if

correcting the error would result in no change to the guidelines offense level and

sentencing range).

b. Offense Variable Three

Petitioner received 25 points for offense variable three (physical injury to a victim)

on the basis that “[Ijife-threatening or permanent incapacitating injury occurred to a

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victim.” Mich. Comp. Laws § 777.33(1)(c). Petitioner asserts that the victim’s injuries

merely required medical treatment and, therefore, he should have received only 10

points under Mich. Comp. Laws § 777.33(1 )(d).

The victim testified at trial that, as a result of the injury to her hand, a doctor had

to reconstruct her knuckles. (Trial Tr. vol. 4, 72, ECF No. 8-10, PagelD 354.) She also

had permanent damage to her retina. (Id. at 75, PagelD 355.)

At Petitioner’s sentencing, the victim said that, as a result of the assault, she

could no longer use her right hand, and she had partial eyesight. She stated that this

prevented her from doing the work she loved, and although she had healed physically,

she was a changed person and lived with post-traumatic stress disorder. Her extreme

anxiety made it difficult on some days to do the simplest of tasks, such as getting out of

bed. (Sentencing Tr. 10-11, ECF No. 8-15, PagelD 648^19.) The victim’s comments

support the conclusion that she suffered from a “permanent incapacitating injury,”

justifying a score of 25 points.

c. Offense Variable Seven

Petitioner received 50 points for offense variable seven (aggravated physical

abuse). He claims that this score was unjustified because the incident lasted only a few

minutes, and he did not treat the victim “with sadism, torture, excessive brutality, or

similarly egregious conduct designed to substantially increase the fear and anxiety a

victim suffered during the offense.” Mich. Comp. Laws § 777.37(1 )(a).

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The trial court stated that the assault was one of the most violent it had seen

(Sentencing Tr. 9, 15, ECF No. 8-15, PagelD 647, 653), and the Michigan Court of

Appeals noted that, according to the victim,

defendant threatened to kill her before repeatedly striking her in the head

with a heavy object, a lamp, and a frying pan. Defendant dragged the victim

through broken glass, causing lacerations along her legs. The victim’s hand

was broken and her fingertips crushed from trying to defend herself. There

were puddles of blood in the kitchen and blood spatter on the ceiling.

Beverly, 2015 WL 8538686, at *6.

The Court of Appeals concluded that the evidence “supported the trial court’s

finding that defendant treated the victim with excessive brutality.” Id. at *6. This court

agrees and also finds that, because the trial court did not rely on “extensively and

materially false” information, the score for offense variable seven did not violate

Petitioner’s constitutional right to due process. Townsend v. Burke, 334 U.S. 736, 741

(1948).

To conclude, Petitioner’s challenge to the scoring of the sentencing guidelines is

not cognizable on habeas review. Even if it were a cognizable claim, the error in scoring

offense variable one was harmless, and the other claims lack substantive merit.

2. The Consecutive Sentences

Petitioner asserts that the trial court abused its discretion by ordering the

sentence for home invasion to run consecutively to the sentence for the assault. He

contends that consecutive sentences were not justified because the victim’s injuries

were not life-threatening. Petitioner also points out that, because he was 41 years old at

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the time of sentencing, his minimum sentence of 50 years—30 years for the assault and

20 years for the home invasion—he will be 91 years old before he is eligible for parole.

The Michigan Court of Appeals reviewed this claim for “plain error” because

Petitioner did not object on the same basis in the trial court. The State, therefore,

argues that Petitioner’s claim is procedurally defaulted. The court cuts to the merits of

Petitioner’s claim because a procedural default analysis “would only complicate this

case.” Thomas v. Meko, 915 F.3d 1071, 1074 (6th Cir. 2019).

The claim lacks merit because, under state law, trial courts may impose

consecutive sentences when a defendant was convicted of first-degree home invasion

and another crime arising from the same transaction. See Mich. Comp. Laws §

750.110a(8) (“The court may order a term of imprisonment imposed for home invasion

in the first degree to be served consecutively to any term of imprisonment imposed for

any other criminal offense arising from the same transaction.”). Because it was a matter

of state law whether Petitioner’s sentences ran concurrently or consecutively,

Petitioner’s challenge to his consecutive sentences is not cognizable in this federal

habeas corpus proceeding. See, e.g., Harrison v. Parke, 917 F.2d 1304, 1990 WL

170428, at *2 (6th Cir. 1990).

IV. CERTIFICATES OF APPEALABILITY

A certificate of appealability 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

obtain a certificate of appealability, a habeas petitioner must “sho[w] that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have

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f

been resolved in a different manner or that the issues presented were 'adequate to

deserve encouragement to proceed further.”’ Slack v. McDaniel, 529 U.S. 473, 483-84

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

The court concludes that reasonable jurists would not find the court’s

V

assessment of Petitioner’s claims debatable or wrong, and the issues do not deserve

encouragement to proceed further. The court, therefore, declines to grant a certificate of

appealability.

V. CONCLUSION

The state court’s adjudication of Petitioner’s claims on the merits was objectively

reasonable. Petitioner has not articulated any cognizable basis for habeas relief.

Accordingly,

IT IS ORDERED that the petition for a writ of habeas corpus (ECF No. 1) is

DENIED.

IT IS FURTHER ORDERED that the court DECLINES to issue a certificate of

appealability.

s/Robert H. Cleland

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: April 5, 2019

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, April 5, 2019, by electronic and/or ordinary mail.

s/Lisa Wagner

Case Manager and Deputy Clerk

(810) 292-6522

S:\Cleland\Cleland\HEK\Staff AttomeyM 6-13783. BEVERLY.2254.HEK.docx

24

Case: 19-1464

Document: 8-1

Filed: 09/10/2019

Page: 1

(1 of 2)

No. 19-1464

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EMERSON L. BEVERLY,

)

)

)

)

)

)

)

)

)

Petitioner-Appellant,

v.

SHERRY L. BURT,

Respondent-Appellee.

FILED

Sep 10, 2019

DEBORAH S. HUNT, Clerk

ORDER

Before: MOORE, McKEAGUE, and READLER, Circuit Judges.

Emerson L. Beverly petitions for rehearing en banc of this court’s order entered on July

23, 2019, denying his application for a certificate of appealability. The petition was initially referred

to this panel, on which the original deciding judge does not sit. After review of the petition, this

panel issued an order announcing its conclusion that the original application was properly denied.

The petition was then circulated to all active members of the court,* none of whom requested a

vote on the suggestion for an en banc rehearing. Pursuant to established court procedures, the

panel now denies the petition for rehearing en banc.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

’Judge Larsen recused herself from participation in this ruling.

Case: 19-1464

Document: 8-2

Filed: 09/10/2019

Page: 1

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Deborah S. Hunt

Clerk

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Tel. (513)564-7000

www.ca6.uscourts.gov

Filed: September 10, 2019

Mr. Emerson L. Beverly

Muskegon Correctional Facility

2400 S. Sheridan Drive

Muskegon, MI 49442

Re: Case No. 19-1464, Emerson Beverly v. Sherry Burt

Originating Case No.: 2:16-cv-13783

Dear Mr. Beverly,

The Court issued the enclosed Order today in this case.

Sincerely yours,

s/Beverly L. Harris

En Banc Coordinator

Direct Dial No. 513-564-7077

cc: Mr. David H. Goodkin

Ms. Laura Graves Moody

Mr. John S. Pallas

Enclosure

(2 of 2)