Friday v. Pitcher

99 F. App'x 568
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 4, 2004
DocketNo. 02-1564
StatusPublished
Cited by9 cases

This text of 99 F. App'x 568 (Friday v. Pitcher) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friday v. Pitcher, 99 F. App'x 568 (6th Cir. 2004).

Opinion

I.

PER CURIAM.

Petitioner-Appellant, Mario Darnell Friday, was convicted in Michigan state court of second-degree murder and possession of a firearm during the commission of a felony. After pursuing state court remedies, he sought federal habeas relief. See 28 U.S.C. § 2254. The district court denied his petition for a writ of habeas corpus, but granted a partial certificate of appealability as to four issues, which are presently before us.1 For the following reasons, we [570]*570hold that Petitioner is not entitled to habeas relief.

A.

Because the facts are not in dispute at this juncture, we take them directly from the district court’s opinion:

Petitioner was convicted of murdering Frank Marzett on December 22, 1993. “The trial court found as fact at the conclusion of trial that defendant, without the slightest justification or legitimate concern for his own safety, shot the victim in the back five times with a semi-automatic pistol.” People v. Friday, Michigan Court of Appeals Docket No. 182604 (July 29, 1997). The evidence established that petitioner and Mr. Marzett were members of a group which stole cars. The evidence also showed that petitioner and Mr. Marzett had a dispute over one of the cars members of the group may have stolen. Tony Ingram testified that petitioner had accused Mr. Marzett of taking one of his friend’s cars and threatened to catch him.
Petitioner testified on his own behalf that, immediately before he shot the victim, the victim “turned around and went in his pocket on me.” Trial Transcript (“Tr.”) November 10, 1994 at 82. Petitioner admitted never seeing a gun on Mr. Marzett. Petitioner further testified that, although he did not know if the victim was pulling something out of his pocket or what the victim was doing, he (petitioner) “was in fear for my life.” Id. at 83. Petitioner denied having intended to shoot Mr. Marzett. However, petitioner also testified that he shot Mr. Marzett in the back from a distance of about three to five feet. Mr. Marzett ran away when petitioner began shooting at him. but petitioner kept firing anyway.
Petitioner acknowledged that he fired several shots at Mr. Marzett. He was not sure how many. Five shell casings fired from the murder weapon were found at the scene. Petitioner also testified that he pulled the trigger only once, but the gun kept firing. Tr. November 10, 1994 at 86-88, 107-110. However, it was stipulated that the murder weapon was recovered and “test fired and found to be normally operable. And that it is a semiautomatic and not fully automatic.” Id. at 61-62. In other words, it was stipulated that the trigger had to be pressed separately for every shot the gun fired. Pressing the trigger once and holding it down would only fire one shot. To fire five shots, the trigger had to be pressed five times after being released following each shot fired.
Forensic evidence showed that two .22 caliber bullets struck Mr. Marzett in the back of his upper right arm. A third .22 caliber bullet struck him in the left shoulder blade. This bullet passed through the shoulder area, passed through the left lung, aorta, trachea, and right lung, and then exited the body through the right upper chest area. It was this bullet which caused Mr. Marzett’s death.

Friday v. Pitcher, 200 F.Supp.2d 725, 728-29 (E.D.Mich.2002) (footnote omitted).

B.

Following a bench trial, petitioner was convicted of second-degree murder and felony firearm on November 14, 1994, and sentenced him to twenty-five to sixty-five [571]*571years and two years imprisonment, respectively.

Petitioner appealed as a matter of right to the Michigan Court of Appeals, presenting a single issue:

The sentence imposed is disproportionate to this eighteen year old high school student with no prior criminal record, especially because the sentencing court focused on the defendant’s lifestyle and association rather than on the instant offense.

The Michigan Court of Appeals affirmed the conviction. The Michigan Court of Appeals ruled that:

The trial court found as fact at the conclusion of trial that defendant, without the slightest justification or legitimate concern for his safety, shot the victim in the back five times with a semiautomatic pistol. The animosity between the defendant and the victim was related to a dispute over their activities. The sentence imposed is within the guideline range and defendant has failed to overcome the presumption, on this record, that such a sentence is proportionate to the offense and the offender. People v. Eberhardt, 205 Mich.App. 587, 518 N.W.2d 511 (1994).

People v. Friday, No. 182604, 1997 Mich. App. Lexis 884 (Mich. Ct.App. July 29, 1997) (unpublished). The Michigan Supreme Court denied Petitioner’s application for leave to appeal.

Petitioner returned to the trial court and filed a motion for relief from judgment. He raised the following issues:

I. Petitioner’s second degree murder conviction is supported by insufficient evidence.
II. Petitioner’s arrest was illegal as was the failure to provide him counsel or a parent at the time of arrest.
III. The arrest warrant was invalid.
IV. Petitioner received ineffective assistance of appellate counsel in his appeal of right.
V. Petitioner received ineffective assistance of trial counsel.

On March 18, 1999, the trial court entered a brief order denying Petitioner’s motion. The order states simply as follows:

IT IS HEREBY ORDERED THAT defendant’s motion is denied for the reason stated below:
An evidentiary hearing was held wherein defendant admitted that he freely gave a statement to the police concerning the murder. The evidence at that hearing established that the defendant was brought to the police station by his mother. Further, the defendant made the statement within 45 minutes of arriving at the station. Therefore, no unlawful detention occurred. Evidence of malice was shown by multiple gun shots. One being to the back of the deceased [sic].
It would have been a waste of time for appellate counsel to raise these issues. Appellate counsel raised the only meritorious issues.
The defendant has failed to show good cause for failure to raise these issues in prior appeals. Nor has defendant established that he is entitled to relief request [sic].

People v. Friday, No. 94000918 (Wayne County Circuit Court. Mar. 18, 1999) (order).

Petitioner sought leave to appeal the trial court’s order. The Michigan Court of Appeals denied Petitioner’s delayed application for leave to appeal “for failure to meet the burden of establishing entitlement to relief under M.C.R. 6.508(D).” People v. Friday, No. 219419 (Mich.Ct. App., March 22, 2000) (order) (unpub[572]*572lished).

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Bluebook (online)
99 F. App'x 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friday-v-pitcher-ca6-2004.