Shacks v. Tessmer

9 F. App'x 344
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 8, 2001
DocketNo. 00-1062
StatusPublished
Cited by4 cases

This text of 9 F. App'x 344 (Shacks v. Tessmer) 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
Shacks v. Tessmer, 9 F. App'x 344 (6th Cir. 2001).

Opinion

OPINION

GILMAN, Circuit Judge.

Jessie C. Shacks appeals the district court’s denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. A Michigan jury convicted Shacks of second-degree murder and felony-firearm possession. The state trial court subsequently sentenced Shacks to a term of 40 to 60 years of imprisonment for the murder conviction and to a consecutive term of two years for the felony-firearm conviction. In this appeal, Wilson sets forth nine assignments of error. For the reasons set forth below, we AFFIRM the district court’s denial of Shacks’s petition for habeas corpus relief.

I. BACKGROUND

A. Factual background

On the evening of November 20, 1987, Teledo Maria Gibbs and Leata Shirley Jones were walking the streets in Saginaw, Michigan. Shacks approached them that night and asked whether they would accompany him if he paid them $50. Gibbs and Jones thought that Shacks was acting paranoid and scary because he kept his right hand inside the pocket of his jacket. A car approached the scene driven by Michael Harper, the victim- in this case. His three passengers were Louise Farris, Ruth Swift, and Donovan Woods. Jones, who was acquainted with Harper, signaled him to stop. She told Harper that something was wrong with Shacks because his hand was in his jacket pocket. Harper then requested Shacks to approach the' car and asked him what he was doing.

[347]*347Woods, the passenger in the front seat of the car, testified that Shacks and Harper talked for some time. Shacks asked Harper if he remembered him “from the penitentiary.” Harper responded that he did, and indicated that he even remembered Shacks’s name. According to Woods, Shacks then withdrew a gun and fired four shots. Harper was hit in the head by two of the bullets. After Shacks fired the gun, Woods leaned over from the passenger seat to put the car into drive while Shacks fled. The car came to a stop when it hit a nearby telephone pole. .

On December 6, 1987, Shacks was arrested in Flint, Michigan and charged with first-degree murder and felony-firearm possession. Shacks maintains that he was not the man who approached Gibbs and Jones on November 20, 1987, was not at the scene of the crime on the night in question, and therefore was not the person who shot Harper. The prosecution, however, produced the testimony of four of the five eyewitnesses to the incident who positively identified Shacks as the one who shot and killed Harper. Gibbs was the only eyewitness who did not identify Shacks. She corroborated, however, the testimony of Jones about what happened that night. Farris and Swift identified Shacks, though they had never seen him before the incident in question. Jones claimed that she recognized Shacks from when she was in junior high school, approximately 16 years prior to the shooting. Woods was the eyewitness who had the greatest familiarity with Shacks. He testified that they grew up together, even spent time in prison together, and had known each other for 20 years.

Shacks claims that the state pressured Farris and Woods into testifying favorably for the prosecution in order to “cut deals” on criminal charges that were unrelated to this case. Shacks’s sister testified at trial that his facial hair on the date of the shooting was different from that described by the eyewitnesses. But Shacks did not remember where he was on the night of Harper’s death and did not produce any alibi testimony.

B. Procedural background

On September 26, 1986, the state-court jury convicted Shacks of second-degree murder and felony-firearm possession. The Michigan Court of Appeals affirmed his conviction, and the Michigan Supreme Court denied his application for leave to appeal. In 1995, Shacks filed a motion for relief from judgment with the Michigan trial court, which was denied. He further appealed this ruling, but both the Michigan Court of Appeals and the Michigan Supreme Court summarily denied his application for leave to appeal because Shacks had failed to meet the burden of establishing entitlement to relief under Michigan Court Rules 6.508(D). Under that rule, a defendant is not entitled to post-conviction relief on grounds that were already decided against the defendant, see Mich. Ct. R. 6.508(D)(2), or on grounds that could have been raised on direct appeal but were not, see Mich. Ct. R. 6.508(D)(3). The Michigan legislature adopted this rule in October of 1989. See Luberda v. Trippett, 211 F.3d 1004, 1006-08 (6th Cir.2000) (holding that a habeas petitioner’s claims were procedurally barred when his direct appeal was submitted to the Michigan Court of Appeals after the enactment of Michigan Court Rule 6.508(D)).

Shacks filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Michigan in March of 1997, citing nine assignments of error. The district court denied his petition, but issued an order granting Shacks’s motion for a certificate of appealability on all of his claims. Shacks now appeals, arguing that his con[348]*348stitutional rights were violated because: (1) he was denied a fair trial due to prosecutorial misconduct; (2) the trial court gave improper jury instructions; (3) the trial court denied his motion for a directed verdict on the first-degree murder charge; (4) the prosecution failed to disclose dismissed charges against a key prosecution witness; (5) the trial court allowed the prosecution to submit four photographs of the victim to the jury; (6) the trial court permitted the prosecution to impeach him with evidence of a prior conviction; (7) he was denied the effective assistance of trial counsel; (8) he was denied the effective assistance of appellate counsel; and (9) the cumulative effect of the trial court’s errors deprived him of his constitutional rights to a fair trial and to due process of law.

Of these assignments of errors, Shacks raised only the third, fourth, fifth, and sixth ones on direct appeal to the Michigan Court of Appeals. Shacks presented his remaining claims of error to the state courts in his motion for relief from judgment and subsequent appeal. As indicated, the state courts denied relief under Michigan Court Rule 6.508(D). This court has held, however, that “retroactive application of M.C.R. 6.508(D)(3) to defendants convicted prior to its enactment does not qualify as an adequate and independent state procedural bar” for purposes of habeas review. Rogers v. Howes, 144 F.3d 990, 991 (6th Cir.1998). As a result, all of Shacks’s grounds for relief are subject to our habeas review. See id. at 992 (citing the rule that federal courts “will not review a habeas petition where the state prisoner has not first presented his claims to the state courts and exhausted all state court remedies available to him”).

I. ANALYSIS
A. Standard of review

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (AEDPA) applies to Shacks’s case, because he filed his habeas corpus petition pursuant to 28 U.S.C. § 2254 after the effective date of AEDPA. See Lindh v. Murphy,

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9 F. App'x 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shacks-v-tessmer-ca6-2001.