NOT RECOMMENDED FOR PUBLICATION File Name: 20a0272n.06
Case No. 19-1437
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT May 14, 2020 DEBORAH S. HUNT, Clerk
JOHN OLIVER WOOTEN, ) ) ON APPEAL FROM THE Petitioner-Appellant, ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN v. ) DISTRICT OF MICHIGAN ) PATRICK WARREN, Warden, ) ) OPINION Respondent-Appellee. )
BEFORE: GIBBONS, McKEAGUE, and WHITE, Circuit Judges.
McKEAGUE, Circuit Judge. On August 5, 2011, John Wooten shot two people outside
a gentlemen’s club in Detroit, killing one of them. He claims he shot them in self-defense. Wooten
was charged with murder and assault with intent to commit murder. He was tried twice on those
charges. His first trial ended in a mistrial after the prosecution asked a police officer a question
that the court deemed improper. But the court did not bar reprosecution. Wooten was then
convicted at the second trial.
After the state appellate courts affirmed his convictions, Wooten petitioned for a writ of
habeas corpus. He argued that (a) having a second trial violated his Double Jeopardy rights, and
(b) there was constitutionally insufficient evidence at his second trial. The district court denied
Wooten’s petition. We AFFIRM. Case No. 19-1437, Wooten v. Warren
I. BACKGROUND
On August 5, 2011, a little before 2:00 AM, John Wooten shot and killed Alfonso Thomas
outside the Pretty Woman Lounge in Detroit, Michigan. He also shot Omar Madison in the back,
although Madison lived to tell about it. Wooten fled the scene and threw his weapon—a .357
revolver—into the bushes. Although a warrant for his arrest was issued in August, Wooten was
not arrested until December 2011, four months after the shooting. The prosecution and Wooten
offered different versions of what exactly happened on August 5. According to the prosecution,
Wooten was making threatening statements in the bar that night and tried to bring a gun inside;
after the bar manager threw him out, Wooten turned around and shot two people. According to
Wooten, he was acting in self-defense—returning fire after Thomas shot at him. Wooten was tried
twice. The first trial ended with a mistrial, the second with a conviction.
A. First Trial
Wooten was originally charged with first- and second-degree murder, assault with intent
to commit murder, and two firearms charges. His first trial was in July 2012. It ended in a mistrial
before the prosecution could rest its case. Before the mistrial motion, the prosecution had relied in
large part on two eyewitnesses. The first was Omar Madison, the Pretty Woman bar manager
Wooten had shot in the back. The second was Anthony Gary, the bar promoter whose gun the other
victim, Alfonso Thomas, had grabbed shortly before the shooting. Both testified that Wooten was
the one who shot Thomas. Both also testified that nobody else fired a shot that night.
The prosecution’s case suffered two major blows. First, the prosecution was prohibited
from asking Madison about a prior incident involving Wooten that could have helped prove
premeditation or intent.
-2- Case No. 19-1437, Wooten v. Warren
Second, the prosecution was prohibited from going into a different line of questioning on
Fifth Amendment grounds. The prosecution had called the homicide investigator in charge of the
case. By this point, Wooten’s lawyer had been asking questions about the gun that Thomas was
holding when the shooting occurred—presumably to help build Wooten’s self-defense argument.
So the prosecutor asked the investigator whether Wooten had ever come forward to explain to the
police that he had acted in self-defense. Wooten’s lawyer objected, on grounds that the question
violated his client’s Fifth Amendment rights, and the court sustained the objection. The parties
then convened for a sidebar discussion, which does not appear in the trial record.
Later, a similar question from the prosecutor led to a mistrial. On redirect examination of
the homicide investigator, after extensive discussion of the second gun, the prosecutor asked the
following question: “In this case would you have enjoyed talking to the defendant?” Wooten’s
lawyer objected, the court sustained, and the parties held a sidebar conference.
The judge scolded the prosecutor for discussing Wooten’s failure to come forward to the
police. The judge had told the prosecutor at the earlier sidebar conference that he could not go into
this line of inquiry. The prosecution claimed that the question was in response to the questions
about the second gun.
Wooten moved for a mistrial. Defense counsel argued that the case should be dismissed
with prejudice, which would bar a retrial. He contended that the prosecutor’s question was an
intentional act of prosecutorial misconduct, citing Oregon v. Kennedy, 456 U.S. 667 (1982). The
prosecutor argued in opposition.
The judge granted the mistrial. In doing so, the judge talked at length on several topics.
First, the judge flatly rejected the prosecution’s substantive arguments that the question was
proper. Next, the judge went on to discuss the state of the prosecution’s case. The case against
-3- Case No. 19-1437, Wooten v. Warren
Wooten was going poorly, in his opinion, particularly on the first-degree murder charge. In fact,
the judge said, if Wooten had moved for a directed verdict on the first-degree murder charge, that
motion would have been granted.
However, the judge did not find that the prosecutor intended to provoke a mistrial. The
judge stated:
Sometimes when we wind up getting involved in the give and take of a trial, the heat of combat overwhelms our rational decision making processes, and I think that may very well have been the situation today.
The judge acknowledged that his ruling benefited the prosecution. But he “hope[d] and
pray[ed] that that’s not what the reasoning was of the prosecution to have done what it did. I’m
giving him the benefit of the doubt.” The parties then scheduled the new trial.
B. Second Trial
The second trial was held in November 2012. At the beginning of the trial, Wooten’s
lawyer moved to reconsider the issue of whether the retrial should be barred, specifically
mentioning that he was seeking to preserve his rights for appeal. But the court denied the motion
and continued with the trial.
The prosecution’s key witness was Omar Madison, the bar manager and shooting victim.
He testified to two incidents: the shooting and an earlier incident involving Wooten at the Pretty
Woman. In the earlier incident, according to Madison, a few weeks before the shooting, Wooten
threw something in the bar. It hit Madison, although Madison acknowledged that Wooten said he
had not intended to hit him. Still, Madison told Wooten he had to go, and he had the bouncer escort
Wooten out. As soon as Wooten got outside the door, he started shooting up in the air. (Madison
was inside when this happened and the door was closed, so he didn’t actually see Wooten shoot.)
-4- Case No. 19-1437, Wooten v. Warren
Later that night, Wooten pulled up in front of Madison in the parking lot. He confronted
Madison and asked if they had a problem. According to Madison, he could see that Wooten was
holding a revolver. The two talked their issues over and then went their separate ways. Madison
did not report the incident to the police.
On August 5, 2011, the night of the shooting, Madison testified that he had heard Wooten
and his friend “C” inside the bar making what Madison perceived as threatening comments—
things like “We run this bar. I stick this bar up.”
Madison said that Wooten and C left the bar for a little while, and when they came back,
they refused to be searched, even though it was bar policy to search everyone for weapons before
entry. Madison approached them, reached for Wooten, and felt Wooten’s gun in his front
waistband (a revolver). Madison told Wooten that he could not bring the gun into the bar, at which
point Wooten became obnoxious. Wooten then seemed to reach for his gun, so Madison grabbed
him and held the gun. C then grabbed Madison to try to pull him off Wooten, and Anthony Gary
(the promoter) in turn grabbed C.
Madison testified that the four of them eventually made their way outside the bar. After a
little while, Madison said to Alfonso Thomas: “Boo [Thomas’s nickname], you got him. I’ll be
letting him go. I’m about to let him go.” Thomas had with him a .380 semiautomatic handgun,
which Madison later learned was Anthony Gary’s gun. Madison wanted to make sure that Thomas
could deter Wooten from firing the revolver and hurting somebody.
According to Madison, he let Wooten go, and Wooten started to take a couple of steps
away. Madison turned to go back in the bar. Then Wooten started shooting, and he hit Madison
from behind. Madison was able to turn and see Wooten shoot Thomas. He never saw Thomas
shoot at Wooten.
-5- Case No. 19-1437, Wooten v. Warren
The prosecution offered several other eyewitnesses, who testified to Wooten’s shooting at
Madison and Thomas. The prosecution also offered evidence to rebut the claim that a second gun
was fired that night—that is, that Thomas fired at Wooten, prompting him to return fire in self-
defense. Investigating officers testified that they found no evidence that a second gun was fired.
Anthony Gary, who owned the gun in question, testified that he examined the gun later that night
and found that it was still fully loaded.
Wooten also testified in his own defense. He started with the incident a few weeks before
the shooting. Apparently, he had thrown his hands up in the air and a drink had slipped out,
accidentally hitting Madison. Madison approached him, and Wooten explained that he had not
meant to hit him. Not wanting an altercation, Wooten claimed he left of his own accord. Once he
walked outside the bar, Wooten heard gunshots go off—but they weren’t fired by him, because at
that time he didn’t have his gun.
Next, the night of the shooting. Wooten testified that he had his gun with him that night—
a .357 revolver—because it was a rough neighborhood. But when he first entered the bar, the
bouncer let him in with his gun. Later in the night, Wooten left the bar to go smoke weed and
returned after about half an hour. When he went to go back in the bar, the bouncer gestured at
Madison, who was right behind them counting the proceeds from that night. Wooten took this
gesture to mean that the bouncer could not let him into the bar with the gun while the boss was
watching, so the two made some small talk to wait until Madison was not paying attention.
Wooten said he was already heading out the door when Madison grabbed him from behind,
lifting him up. Wooten heard Madison say “Pull your gun. Pull your gun. Get ready. Are you
ready?” Wooten testified that he heard the safety of a gun click and, after Madison released him,
saw Thomas with a gun pointed at him. And then, according to Wooten, Thomas fired at him. So
-6- Case No. 19-1437, Wooten v. Warren
Wooten pulled out his gun and returned fire. He realized he hit Thomas, so he got scared and took
off running. Wooten hid in an alley and threw his gun in the bushes. He did not talk to the police,
because he had contacted some lawyers who had told him not to say anything to the police until
he had retained a lawyer.
C. Verdict, Direct Appeal, and Proceedings in the District Court
The jury convicted Wooten of second-degree murder, assault with intent to commit murder,
and two firearms offenses. On direct appeal, Wooten argued that (1) the court should have barred
the second trial on Double Jeopardy grounds, (2) there was insufficient evidence at the second
trial, and (3) the prosecutor committed misconduct at closing argument. The Michigan Court of
Appeals affirmed on all grounds. The Michigan Supreme Court denied leave to appeal, after
hearing oral argument.
In January 2017, Wooten filed a pro se petition for a writ of habeas corpus in the Eastern
District of Michigan. He raised the same three issues as he did in his direct appeal. The district
court then appointed counsel, and counsel filed a supplemental brief addressing the claims. The
district court denied the petition and issued a certificate of appealability only on the Double
Jeopardy claim. This court then expanded the COA to include Wooten’s sufficiency argument.
II. ANALYSIS
A. Standard of Review
This court reviews the district court’s legal conclusions de novo and its factual findings for
clear error. Davis v. Lafler, 658 F.3d 525, 530 (6th Cir. 2011) (en banc). The district court applies
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, a district
court can grant a petition for a writ of habeas corpus only if the state-court adjudication resulted
in a decision that was “contrary to, or involved an unreasonable application of, clearly established
-7- Case No. 19-1437, Wooten v. Warren
Federal law, as determined by the Supreme Court of the United States” or if the decision “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). Before analyzing the merits, we first address Wooten’s
arguments that AEDPA deference does not apply in his case.
B. Does AEDPA Deference Apply?
1. Plain-Error Review and AEDPA Deference
Wooten first argues that the state court should not receive AEDPA deference because it
erroneously analyzed the Double Jeopardy issue under a plain-error standard of review. AEDPA
deference applies only when the state court decided the issue “on the merits.” 28 U.S.C. § 2254(d).
Under Sixth Circuit precedent, AEDPA deference “applies to a state court’s plain-error analysis if
it ‘conducts any reasoned elaboration of an issue under federal law.’” Stewart v. Trierweiler, 867
F.3d 633, 638 (6th Cir. 2017) (quoting Fleming v. Metrish, 556 F.3d 520, 531 (6th Cir. 2009)).
But Wooten argues that this rule applies only to cases where the state court properly applied plain-
error review. And here, Wooten claims, the court applied plain-error review only because it
incorrectly held that Wooten had failed to preserve the Double Jeopardy issue in the trial court.
We conclude that AEDPA deference applies. Under Fleming, we apply deference to the
state court’s plain-error merits analysis even if the court’s underlying procedural reasoning is
incorrect. 556 F.3d at 532. In Fleming, the state court applied plain-error review because it found
that the claim had been procedurally defaulted. See id. We disagreed with the state court’s
procedural-default reasoning, but we applied AEDPA deference anyway. Id. Citing principles of
comity, finality, and federalism, we explained that “[t]he state court’s substantive reasoning does
not simply vanish along with its erroneous procedural-default determination. Nor does AEDPA.”
Id.
-8- Case No. 19-1437, Wooten v. Warren
Here, the state court held that Wooten had not preserved his Double Jeopardy argument.
The district court concluded that this preservation ruling was incorrect, and on appeal the state is
no longer arguing that Wooten failed to preserve his claim. But the state appellate court examined
the merits anyway, and it even determined that there was no constitutional error—“[t]his is not a
case where the state court simply assumed, without deciding, that there was a constitutional error
and then proceeded to determine that the error was not plain.” Id. Under Fleming, AEDPA
deference applies to this adjudication.
2. Did the State Court Adjudicate the Double-Jeopardy Issue “On the Merits”?
Second, Wooten contends that the state court’s adjudication of the Double Jeopardy issue
was unreasonable because it did not mention every basis for finding that the prosecutor intended
to provoke a mistrial. Here, the Michigan Court of Appeals dismissed Wooten’s Double Jeopardy
argument based on its conclusion that the prosecutor’s question was constitutionally permissible.
But it did not address the secondary argument that, even if the question was proper in isolation, it
still showed the prosecutor’s intent to provoke a mistrial because the question violated a clear order
from the trial court. However, we find that it did not need to do so in order to receive AEDPA
deference.
Again, for AEDPA deference to apply, the state court must have adjudicated the federal
claim “on the merits.” 28 U.S.C. § 2254(d). When a federal claim has been presented to a state
court, there is a rebuttable presumption that the state court adjudicated the claim on the merits.
Johnson v. Williams, 568 U.S. 289, 292–93 (2013); Harrington v. Richter, 562 U.S. 86, 99 (2011).
The presumption applies “when a state-court opinion addresses some but not all of a defendant’s
claims.” Williams, 568 U.S. at 298. The presumption can be rebutted only “when there is reason
-9- Case No. 19-1437, Wooten v. Warren
to think some other explanation for the state court’s decision is more likely.” Richter, 562 U.S. at
99–100.
The Richter/Williams presumption applies to a state court’s opinion that decides a federal
claim but does not explicitly address every relevant fact or argument. See Lee v. Comm’r, Ala.
Dep’t of Corr., 726 F.3d 1172, 1210–12 (11th Cir. 2013). “It makes no sense to say that a state
court decision is entitled to AEDPA deference if the opinion fails to contain discussion at all of a
claim but is entitled to no deference if it contains some but less than complete discussion.” Id. at
1212.
Here, AEDPA deference applies. Under Williams and Richter, we presume that the state
court adjudicated the federal claim on the merits. And here, the state court explicitly resolved
Wooten’s Double Jeopardy argument. The Kennedy goaded-mistrial rule involves examining all
the relevant circumstances, but that doesn’t mean the court must explicitly mention every relevant
circumstance in its opinion. See id. And Wooten has not pointed us to anything to rebut the
Richter/Williams presumption. Accordingly, AEDPA deference applies to the state court’s
decision here.
C. Was the State Court’s Determination Contrary to or an Unreasonable Application of
Oregon v. Kennedy?
Under AEDPA, the court cannot grant habeas relief unless the state court’s decision was
“contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). That means
Wooten must point to the holdings—not dicta—of Supreme Court precedents in making his claim
for relief. See Ross v. Petro, 515 F.3d 653, 660 (6th Cir. 2008).
- 10 - Case No. 19-1437, Wooten v. Warren
Wooten argues that the facts of his case establish that the prosecutor intended to provoke a
mistrial. Therefore, according to Wooten, the Michigan Court of Appeals issued a decision that
was an unreasonable application of Oregon v. Kennedy, 456 U.S. 667 (1982).1 Under Kennedy,
when a mistrial is granted on the defendant’s motion, reprosecution will be barred if the prosecutor
“intended to ‘goad’ the defendant into moving for a mistrial.” Id. at 676. The intent standard “calls
for the [trial] court to make a finding of fact.” Id. at 675. The prosecutor’s intent is inferred “from
objective facts and circumstances” of the trial. Id.
Here, Wooten’s Kennedy-based argument turns on one question from the prosecutor to the
officer in charge of the investigation: “Would you have enjoyed talking to the defendant?” Two
issues follow from that: (1) Was the substance of the question constitutionally improper? (2) Did
the context in which the question was asked demonstrate that the prosecutor intended to provoke
a mistrial?
With regard to the substance of the question, a key issue on direct appeal was whether
using Wooten’s prearrest silence violated his constitutional right against self-incrimination. In this
appeal, Wooten does not make any argument that, under current law, asking about Wooten’s
prearrest silence was unconstitutional. See Salinas v. Texas, 570 U.S. 178, 181 (2013) (plurality);
Abby v. Howe, 742 F.3d 221, 228 (6th Cir. 2014). Instead, he argues that the question probed
further than prearrest silence, implicating both his postarrest silence and his failure to testify at the
first trial.
1 Wooten also argues that the “manifest necessity” standard should apply, rather than Kennedy, because he did not consent to the mistrial. See Tinsley v. Million, 399 F.3d 796, 812 (6th Cir. 2005). But he framed his argument to the Michigan Court of Appeals solely in terms of the standard set forth in Kennedy, arguing only that the trial court erred in finding that the prosecutor did not intend to provoke a mistrial. Indeed, he appeared to concede that trial counsel should have done more if he wanted to withdraw his motion for mistrial and continue with the trial: “The Defendant should have retracted his motion for a mistrial upon hearing that [the court would have granted a motion for directed verdict], but in good faith did not.” At oral argument, Wooten also pointed us to United States v. Dinitz, 424 U.S. 600 (1976). But that pre-Kennedy case did not even involve prosecutorial misconduct, see id. at 601–05, which is the entire basis for Wooten’s Double Jeopardy argument here.
- 11 - Case No. 19-1437, Wooten v. Warren
But the Michigan Court of Appeals reasonably found that the context reveals that the
prosecutor’s question dealt only with prearrest silence. Regarding postarrest silence, the first time
the prosecutor brought up Wooten’s failure to come forward to claim self-defense, he explicitly
said, “I’m not concerned with anything after he was arrested[.]” And later, when the prosecutor
asked, “Would you have enjoyed talking to the defendant?” it was in the context of the
investigation of whether a second gun had been fired—nobody had ever mentioned anything about
what happened to Wooten after he was arrested. Regarding Wooten’s failure to testify, asking a
police officer whether she would have “enjoyed talking to the defendant” does not necessarily
implicate the defendant’s failure to testify in his defense. If Wooten were to testify in the first trial,
then the attorneys would have been the ones asking him questions—so he would not have been
“talking to” the police officer at all.
We also consider the context of the question. Wooten argues that the prosecutor’s question
demonstrated his intent to provoke a mistrial based on the context in which it was asked—
particularly (a) the poor state of the prosecution’s case and (b) the trial court order not to go into
that line of inquiry.
Whether a prosecutor intended to provoke a mistrial motion is a question of fact. Kennedy,
456 U.S. at 675. Even on direct appeal, these factual findings are reviewed for clear error. United
States v. Foster, 945 F.3d 470, 474 (6th Cir. 2019). The standard is even higher in the habeas
context. State court findings of fact are “presumed to be correct.” 28 U.S.C. § 2254(e)(1); see also
Wei v. Burt, No. 18-2438, 2019 WL 1531516, at *2 (6th Cir. Mar. 26, 2019) (applying Section
2254(e) presumption to a state court finding that the prosecutor did not intend to provoke a
mistrial). The petitioner can rebut that presumption, but only upon a showing of error by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). And a habeas court will not overturn a state-court
- 12 - Case No. 19-1437, Wooten v. Warren
adjudication unless it “resulted in a decision that 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)(2).
“[A] state-court factual determination is not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
(2010). And special deference is given to the trial court’s credibility determinations, particularly
when made on the basis of oral (as opposed to documentary) evidence. See Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 500 (1984).
Here, the state trial court credited the prosecutor and believed that he did not intend to
provoke a mistrial. The court made that ruling based on its observation of a live court proceeding,
and the ruling was made very shortly after the events themselves happened. There are other factors
supporting the state court’s finding. The prosecutor argued against Wooten’s mistrial motion. See
United States v. White, 914 F.2d 747, 752 (6th Cir. 1990) (noting that the prosecutor “resisted and
apparently was surprised by the granting of the motion for a mistrial”). The mistrial motion was
based on a single improper question. See Foster, 945 F.3d at 474–75 (affirming a finding that the
prosecutor lacked intent to provoke a mistrial despite a “litany” of constitutional violations). And
the improper question came well after the original Fifth Amendment ruling. See State v. Yetman,
516 S.W.3d 33, 43 (Tex. Ct. App. 2016) (in a case where the court affirmed a finding of
prosecutorial intent to provoke a mistrial, the improper question came immediately after the court
ruled that the prosecutor’s line of argument was off-limits).
The trial judge was the one who observed the demeanor of the lawyers and was in a much
better position to determine what the prosecutor intended in that moment. The Kennedy standard
is an “exacting” one in general. Phillips v. Court of Common Pleas, 668 F.3d 804, 811 (6th Cir.
2012). Combine that with AEDPA deference and you have an incredibly high hurdle, especially
- 13 - Case No. 19-1437, Wooten v. Warren
when it comes to credibility determinations. Wooten has not cleared that hurdle. We find that
Wooten has not established that the state court’s ruling in his case was contrary to or an
unreasonable application of Oregon v. Kennedy.
D. Sufficiency of the Evidence
Wooten also argues that there was constitutionally insufficient evidence to convict him.
This claim can be analyzed in two parts. First, Wooten argues that the prosecution did not meet its
burden in disproving his self-defense theory. Second, he argues that there was insufficient evidence
of his mental state to convict him of second-degree murder and assault with intent to commit
murder.
It is difficult to prevail on sufficiency claims on habeas review. This is because there are
two layers of deference. First, there is the deferential standard articulated in Jackson v. Virginia,
443 U.S. 307 (1979). Under Jackson, we defer to the trier-of-fact’s verdict by reviewing the
evidence in the light most favorable to the prosecution and asking whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319. Next,
“deference should be given to the Michigan Court of Appeals’ consideration of the trier-of-fact’s
verdict, as dictated by AEDPA.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008). In other
words, “a federal habeas court must ask whether the state court decision reflected an unreasonable
application of the Jackson standard to the facts of the case.” Brian R. Means, Postconviction
Remedies § 31.2 (July 2019).
Wooten’s sufficiency argument goes to his convictions for second-degree murder and
assault with intent to commit murder. Under Michigan law, the elements of second-degree murder
are: “(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification
or excuse.” People v. Roper, 777 N.W.2d 483, 490 (Mich. Ct. App. 2009) (per curiam) (internal
- 14 - Case No. 19-1437, Wooten v. Warren
quotation marks and citation omitted). “The elements of assault with intent to commit 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 quotation marks,
citations, and footnote omitted). As a defense to those crimes, a defendant can claim self-defense—
that is, that he “honestly and reasonably believe[d] that the use of deadly force [was] necessary to
prevent the imminent death of or imminent great bodily harm to himself or herself[.]” Mich. Comp.
Laws § 780.972(1)(a). Once a defendant presents a prima facie case of self-defense, then the
burden of proof shifts to the prosecution to disprove the self-defense claim beyond a reasonable
doubt. See People v. Denson, 902 N.W.2d 306, 315 (Mich. 2017).
The government argues (and the district court found) that Wooten’s self-defense argument
was not cognizable in habeas because it was based on an affirmative defense, not a substantive
element of Michigan criminal law. See People v. Reese, 815 N.W.2d 85, 101 n.76 (Mich. 2012)
(“An affirmative defense, like self-defense, ‘admits the crime but seeks to excuse or justify its
commission. It does not negate specific elements of the crime.’” (quoting People v. Dupree, 788
N.W.2d 399, 405 n.11 (Mich. 2010))). Wooten counters that, because of Michigan’s burden-
shifting framework, the prosecution must disprove self-defense as part of proving the elements of
the substantive offense. But in any event, we need not decide whether the claim is cognizable,
because we conclude that there was constitutionally sufficient evidence to find that (a) Wooten did
not act in self-defense, and (b) Wooten acted with a mental state sufficient to satisfy the elements
of both second-degree murder and assault with intent to commit murder.
1. Self-Defense
Wooten claims there was not enough evidence to conclude that he did not act in self-
defense. He points to evidence that the Michigan Court of Appeals allegedly “ignored.” He
- 15 - Case No. 19-1437, Wooten v. Warren
contends that the court ignored the witness admissions that Thomas had grabbed Gary’s gun off
Gary’s hip. And he contends that the court ignored evidence that Madison told Thomas to grab a
gun. Wooten also points us to evidence indicating that Gary “surreptitiously” took his gun away
from the crime scene and then didn’t tell the police about it. Finally, Wooten points us to the
bouncer’s testimony that Wooten wasn’t making any threatening gestures and that, during the
tussle, other bar patrons were yelling “We got him. We got him. We got him.” All this shows,
according to Wooten, that he fired at Thomas and Madison only because he feared for his life.
But this was not the only possible interpretation of the events. The jury could have given
more credit to the account offered by one of the victims, Omar Madison. See O’Hara v. Brigano,
499 F.3d 492, 499–500 (6th Cir. 2007). According to Madison, Wooten and his friend were making
threatening comments while Wooten was inside the bar. Further, Madison testified that Wooten
was refusing to be searched and became obnoxious once Madison called him out for trying to bring
a gun into the bar. According to Madison, Wooten seemed to be reaching for his gun—that’s when
Madison grabbed him. And Madison said he yelled for Thomas simply so he could make sure
Wooten didn’t hurt anybody. Finally, there was testimony that Thomas was not pointing the gun
at Wooten, and Wooten took a few steps away from everyone at the bar before turning around and
shooting. Drawing on this, the jury could well have concluded that Madison was simply doing his
job as bar manager in securing an unruly customer and that Wooten did not have a reasonable fear
of imminent death or great bodily harm. Thus, there was enough evidence for a rational trier of
fact to infer that Wooten did not act in self-defense.
2. Mental State
Wooten also argues that he did not have a sufficient mental state to be convicted of murder
or assault with intent to commit murder. For mental state, Michigan second-degree murder requires
- 16 - Case No. 19-1437, Wooten v. Warren
a finding of malice. Roper, 777 N.W.2d at 490. “Malice is defined as the intent to kill, the intent
to cause great bodily harm, or the intent to do an act in wanton and wilful [sic] disregard of the
likelihood that the natural tendency of such behavior is to cause death or great bodily harm.” Id.
(internal quotation marks and citation omitted). In contrast, assault with intent to commit murder
requires an “actual intent to kill.” Brown, 703 N.W.2d at 236–37. On the question of actual intent
to kill, the jury
may, and should take into consideration the nature of the defendant’s acts constituting the assault; the temper or disposition of mind with which they were apparently performed, whether the instrument and means used were naturally adapted to produce death, his conduct and declarations prior to, at the time, and after the assault, and all other circumstances calculated to throw light upon the intention with which the assault was made.
People v. Taylor, 375 N.W.2d 1, 8 (Mich. 1985) (per curiam) (internal quotation mark and citation
omitted).
Here, there is enough evidence to infer both malice and an actual intent to kill. On the
malice question, Michigan juries can infer malice from the defendant’s use of a deadly weapon.
See Stewart v. Wolfenbarger, 595 F.3d 647, 658 (6th Cir. 2010) (collecting cases). Wooten
admitted he fired the gun, and he does not claim it discharged accidentally.
On the actual intent to kill question, the jury could find that Wooten was the aggressor and
that he bore a grudge against Madison. There is testimony supporting each of the following facts:
(1) Wooten reacted angrily to being thrown out of the bar after the drink-throwing incident and
even threatened Madison with a gun; (2) Wooten and his friend were making threatening
comments on the night of the shooting even before the altercation; (3) Wooten initiated the conflict
by refusing to be searched and then reaching for his weapon; and (4) Wooten did not shoot
immediately, but instead took a few steps away from the building and then turned to shoot. In light
- 17 - Case No. 19-1437, Wooten v. Warren
of this evidence, we conclude that Wooten has not met his heavy burden in establishing his right
to habeas relief on the grounds of insufficiency of the evidence.
III. CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.
- 18 -