UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DWAYNN EPPERSON,

Petitioner,

Case No. 2:15-cv-10097

v.

HONORABLE STEPHEN J. MURPHY, III

S.L. BURT,

Respondent.

__________________________________/

ORDER DENYING THE PETITION FOR A WRIT OF 

HABEAS CORPUS (document no. 1), DENYING A CERTIFICATE OF 

APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Michigan prisoner Dwaynn Epperson filed a habeas corpus petition pursuant to 28

U.S.C. § 2254. He was convicted of assault with intent to do great bodily harm less than

murder, Mich. Comp. Laws § 750.84, and felonious assault, Mich. Comp. Laws § 750.82,

following a jury trial in the Wayne County Circuit Court. He was sentenced to concurrent

terms of 6 to 25 years imprisonment and 6 to 15 years imprisonment on those convictions

in 2012. In his pro se pleadings, Epperson raises claims concerning the sufficiency of the

evidence, the charging decision of the prosecutor, and double jeopardy. For the reasons

below, the Court will deny the petition, deny a certificate of appealability and deny leave to

proceed in forma pauperis on appeal.

BACKGROUND

Epperson's convictions arose from an altercation with Jeremiah Fish in Detroit,

Michigan on January 16, 2012. The Court adopts the statement of facts set forth by defense

counsel on direct appeal to the extent that it is consistent with the record: 

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Jeremiah Fish is the complaining witness in this case. At the time of the

offense, he was 17 years of age. (TT 5/1/2012 p 91). On January 16, 2012,

he went to visit his friend, Vanessa Wheatley, at her house, located at 4810

Cabot Street in the City of Detroit. (TT 5/1/2012 p 92). Mr. Fish testified that

he arrived about noon and went into Ms. Wheatley's bedroom where they

watched TV and smoked marijuana. He has known Ms. Wheatley for

approximately 3 years. (TT 5/1/2012 p 94). After approximately 2 hours, Mr.

Epperson walked into Vanessa's room and told Mr. Fish that he had to leave

because it was getting late. (TT 5/1/2012 p 97). It should be pointed out at this

point that Mr. Fish's testimony about arriving at noon was inconsistent with the

testimony of Vanessa Wheatley, who indicated he arrived at approximately

10:00 p.m. and departed around midnight. (TT 5/1/2012 p 160).

Mr. Fish continued his testimony by indicating he was shocked that Mr.

Epperson was asking him to leave because this was not Mr. Epperson's

house. Mr. Epperson left the room, but returned to ask Mr. Fish to leave once

again. Mr. Fish responded "I'm not your kid and not going to listen to you". Mr.

Epperson started yelling and told him to get out of the room. Eventually, Mr.

Epperson put his hands on Mr. Fish to grab him by the collar with both hands.

(TT 5/1/2012 p 101). A fight ensued. Mr. Fish indicated that he hit him and

knocked him down falling into the closet. (TT 5/1/2012 p 102). As Mr.

Epperson was trying to get up, Mr. Fish struck him again. (TT 5/1/2012 p 103).

At this point, Mr. Fish began to leave the house with Mr. Epperson following.

(TT 5/1/2012 p 104). Mr. Fish was standing in front of the house when Mr.

Epperson came at him, striking him with something in his right hand. Mr. Fish

did not see a weapon and prior to being struck he heard Vanessa Wheatley

say "Jeremiah watch out." (TT 5/1/2012 p 105). Although Mr. Fish did not feel

as though he had been stabbed, he saw blood on his abdomen. He soon

discovered he was stabbed in the lower abdomen. (TT 5/1/2012 p 107). Mr.

Fish testified that Mr. Epperson tried to come at him again 3 or 4 times. (TT

5/1/2012 p 108). Eventually Mr. Epperson and Vanessa Wheatley walked

down the street, borrowed a telephone and called the police. Ultimately, Mr.

Fish was transported to the hospital by EMS where he underwent surgery and

stayed for several days. (TT 5/1/2012 p 114).

Vanessa Wheatley was the next witness to testify. (TT 5/1/2012 p 159). Ms.

Wheatley testified that on January 16, 2012, Jeremiah Fish came over to her

home at approximately 9 or 10:00 at night. They sat in her bedroom watching

TV. (TT 5/1/2012 p 160). She testified that Dwaynn Epperson is her

step-father, he is her sister Melissa's (age 7) father and they share the same

mother. (TT 5/1/2012 p 163). It was approximately 11 or 12:00 at night when

Mr. Epperson asked Mr. Fish to leave. (TT 5/1/2012 p 164). Ms. Wheatley

stated that Mr. Epperson came in and said "Jeremiah are you going to leave,

it's getting late." Jeremiah Fish said "No, I'm not leaving, it's not your house."

(TT 5/1/2012 p 165). Mr. Epperson pushed Jeremiah and they started fighting.

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Ms. Wheatley stated she only saw about 10 seconds of the fight because she

went to ask her mother if Jeremiah could stay. Eventually, Mr. Fish left the

house and she followed him. (TT 5/1/2012 p 168). She never saw Mr.

Epperson run from the house with a weapon. Also, she never heard Mr.

Epperson say anything to Mr. Fish once they were outside the house. Ms.

Wheatley stated she did not notice any injury to Jeremiah Fish until they had

walked up to Michigan Avenue. Mr. Fish showed her a wound the size of a

quarter. At that point, she saw her uncle on the street and asked if they could

use his telephone. (TT 5/1/2012 p 170). She never saw Mr. Epperson with a

weapon. (TT 5/1/2012 p 171). She admitted that she and Mr. Fish had been

smoking marijuana in her bedroom before this happened. (TT 5/1/2012 p

172). She further testified that she didn't see any altercation outside between

Mr. Fish and Mr. Epperson because she wasn't paying attention.

On cross-examination Ms. Wheatley testified that upon his arrival, Mr. Fish

looked high. (TT 5/1/2012 p 175). They both smoked marijuana. She stated

that during the portion of the fight she witnessed between Mr. Fish and Mr.

Epperson, Mr. Fish was basically throwing all of the punches. (TT 5/1/2012 p

178). Ms. Wheatley testified that located in her room was a TV stand with

sharp edges, a big screen TV with sharp edges and a heater with sharp

edges. (TT 5/1/2012 p 179). Ms. Wheatley testified she never saw a weapon

in Mr. Epperson's hand and never saw him threaten Mr. Fish with a weapon.

(TT 5/1/2012 p 180).

Police Officer Donald Hyatt testified that on January 16, 2012, he was working

patrol in a marked scout car. He was the officer who responded to the call

regarding Jeremiah Fish. Upon his arrival, he saw the victim and a white

female. He observed a puncture wound mark about 2 inches on Mr. Fish's

abdomen. (TT 5/1/2012 p 190). There was also some blood on his stomach.

Officer Hyatt described Mr. Fish's demeanor as "calm, upset." (TT 5/1/2012

p 192). After speaking with Mr. Fish, the officer went to 4810 Cabot and

observed the suspect peeking through the window. (TT 5/1/2012 p 193). A

white female came to the door and the officer asked for Mr. Epperson. Mr.

Epperson came outside and was arrested. (TT 5/1/2012 p 194). A pat down

of Mr. Epperson produced a State of Michigan Identification card with the

address of 4810 Cabot. (TT 5/1/2012 p 196). On cross-examination, the

officer testified that no knife or other weapon was found. (TT 5/1/2012 p 199).

Police Officer Mark Williams testified that he interviewed Mr. Epperson after

his arrest. (TT 5/1/2012 p 205). He testified to providing Mr. Epperson with his

constitutional rights and Mr. Epperson agreed to make a statement. Mr.

Epperson denied stabbing anyone and could not remember having a knife or

stabbing Mr. Fish.

The next witness to testify was Dr. James Tibursky, M.D. Dr. Tibursky treated

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Mr. Fish at Detroit Receiving Hospital. (TT 5/2/2012 p 5). Dr. Tibursky testified

that there was a very small wound to the outside, less than an inch long, it

penetrated the skin and muscle and there was little bleeding. The wound was

approximately 5 or 6 inches deep. (TT 5/2/2012 p 9). Dr. Tibursky did

exploratory surgery and repaired a hole in Mr. Fish's colon.

On cross-examination, Dr. Tibursky testified that it is possible that the wound

could have been made by another sharp object besides a knife. The object

would have had to be narrow and long. (TT 5/2/2012 p 13).

Following the testimony of Dr. Tibursky, the people moved to amend the

criminal information to include "a metal cutting instrument." There was no

objection by the defense. (TT 5/2/2012 p 28).

Def. App. Brf. 5–8, ECF No. 9-9.

At the close of trial, the jury convicted Epperson of assault with intent to do great

bodily harm less than murder, and felonious assault. The trial court subsequently sentenced

him to concurrent terms of 6 to 25 years imprisonment and 6 to 15 years imprisonment.

Following sentencing, Epperson filed an appeal of right with the Michigan Court of

Appeals raising the same claims presented on habeas review. The Michigan Court of

Appeals denied relief on those claims and affirmed Epperson's convictions. People v.

Epperson, No. 311933, 2014 WL 265520 (Mich. Ct. App. Jan. 23, 2014) (unpublished).

Epperson then filed an application for leave to appeal with the Michigan Supreme Court,

which was denied in a standard order. People v. Epperson, 495 Mich. 1008 (2014).

Epperson filed a federal habeas petition in 2015. Pet., ECF No. 1. He raises claims

concerning the sufficiency of the evidence, the charging decision of the prosecutor, and

double jeopardy. Id. Respondent contends that the petition should be denied because the

double jeopardy claim is barred by procedural default and all of the claims lack merit. Resp.,

ECF No. 8.

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STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified 28

U.S.C. § 2241 et seq., provides the standard of review for federal habeas cases brought by

state prisoners. The AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) 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) (1996).

"A state court’s decision is 'contrary to' . . . clearly established law if it 'applies a rule

that contradicts the governing law set forth in [Supreme Court] cases' or if it 'confronts a set

of facts that are materially indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [that] precedent.'" Mitchell v. Esparza, 540

U.S. 12, 15–16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405–06

(2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

"[T]he 'unreasonable application' prong of § 2254(d)(1) permits a federal habeas

court to 'grant the writ if the state court identifies the correct governing legal principle from

[the Supreme] Court but unreasonably applies that principle to the facts of petitioner's

case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see

also Bell, 535 U.S. at 694. But "for a federal court to find a state court’s application of

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[Supreme Court] precedent 'unreasonable,' the state court's decision must have been more

than incorrect or erroneous. The state court's application must have been 'objectively

unreasonable.'" Wiggins, 539 U.S. at 520–21(citations omitted); see also Williams, 529 U.S.

at 409. "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) (quoting Lindh, 521 U.S. at 333, n. 7 and Woodford v.

Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The United States Supreme Court has held that "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)). The Supreme

Court has emphasized "that even a strong case for relief does not mean the state court's

contrary conclusion was unreasonable." Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63,

75 (2003)). A habeas court "must determine what arguments or theories supported or . .

. could have supported, the state court's decision; and then it must ask whether it is

possible fairminded jurists could disagree that those arguments or theories are inconsistent

with the holding in a prior decision" of the Supreme Court. Id. Thus, in order to obtain

federal habeas relief, a state prisoner must show that the state court's rejection of a 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; see also

White v. Woodall, 134 S. Ct. 1697, 1702 (2014). Federal judges "are required to afford

state courts due respect by overturning their decisions only when there could be no

reasonable dispute that they were wrong." Woods v. Donald, 135 S. Ct. 1372, 1376 (2015).

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A habeas petitioner cannot prevail as long as it is within the "realm of possibility" that

fairminded jurists could find the state court decision to be reasonable. Woods v. Etherton

136 S. Ct. 1149, 1152 (2016).

Section 2254(d)(1) limits a federal court's review to a determination of whether the

state court's decision comports with clearly established federal law as determined by the

Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; 

see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court

"has held on numerous occasions that it is not 'an unreasonable application of clearly

established Federal law' for a state court to decline to apply a specific legal rule that has

not been squarely established by this Court") (quoting Wright v. Van Patten, 552 U.S. 120,

125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71–72. Section 2254(d) "does not require

a state court to give reasons before its decision can be deemed to have been 'adjudicated

on the merits.'" Harrington, 562 U.S. at 100. Furthermore, it "does not require citation of

[Supreme Court] cases–indeed, it does not even require awareness of [Supreme Court]

cases, so long as neither the reasoning nor the result of the state-court decision contradicts

them." Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16.

The requirements of "clearly established law" are to be determined solely by

Supreme Court precedent. Thus, "circuit precedent does not constitute 'clearly established

Federal law, as determined by the Supreme Court,'" and "[i]t therefore cannot form the

basis for habeas relief under AEDPA." Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012)

(per curiam); see also Lopez v. Smith, 135 S. Ct. 1, 2 (2014) (per curiam). The decisions

of lower federal courts may be useful in assessing the reasonableness of the state court's

decision. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007); Dickens v. Jones, 203 F.

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Supp. 2d 354, 359 (E.D. Mich. 2002).

Finally, a state court's factual determinations are presumed correct on federal

habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear

and convincing evidence. Warren v. Smith, 161 F.3d 358, 360–61 (6th Cir. 1998).

Moreover, habeas review is "limited to the record that was before the state court." Cullen

v. Pinholster, 563 U.S. 170, 181 (2011).

DISCUSSION

I. Procedural Default

As an initial matter, Respondent contends that one of Epperson’s claims is barred

by procedural default. It is well-settled, however, that federal courts on habeas review "are

not required to address a procedural-default issue before deciding against the petitioner

on the merits." Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v.

Singletary, 520 U.S. 518, 525 (1997)). The Supreme Court has explained the rationale

behind such a policy: "Judicial economy might counsel giving the [other] question priority,

for example, if it were easily resolvable against the habeas petitioner, whereas the

procedural-bar issue involved complicated issues of state law." Lambrix, 520 U.S. at 525.

Here, the substantive issues are easier to resolve such that the interests of judicial

economy are best served by addressing the merits of the habeas claims.

II. Merits

A. Sufficiency of the Evidence

Epperson first asserts that he is entitled to habeas relief because the prosecution

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failed to present sufficient evidence to support his felonious assault conviction, particularly

that he possessed a dangerous weapon. 

The federal due process clause "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). The question on a

sufficiency of the evidence claim 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). The Jackson standard must be applied "with explicit reference to the substantive

elements of the criminal offense as defined by state law." Brown v. Palmer, 441 F.3d 347,

351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n. 16).

A federal habeas court views this standard through the framework of 28 U.S.C.

§ 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus, under the AEDPA,

challenges to the sufficiency of the evidence must survive "two layers of deference to

groups who might view facts differently" than a reviewing court on habeas review — the

factfinder at trial and the state court on appellate review — as long as those determinations

are reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). "[I]t is the

responsibility of the jury — not the court — to decide what conclusions should be drawn

from the evidence admitted at trial." Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam).

"A reviewing court does not re-weigh the evidence or re-determine the credibility of the

witnesses whose demeanor has been observed by the trial court." Matthews v. Abramajtys,

319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).

Accordingly, the "mere existence of sufficient evidence to convict . . . defeats a petitioner's

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claim." Id. at 788–89.

Under Michigan law, the elements of felonious assault are: (1) an assault, (2) with

a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable

apprehension of an immediate battery. People v. Avant, 235 Mich. App. 499, 505 (1999);

Mich. Comp. Laws § 750.82. Direct or circumstantial evidence and reasonable inferences

arising from that evidence may constitute satisfactory proof of the elements of an offense.

Applying the foregoing standards, the Michigan Court of Appeals ruled that the

prosecution presented sufficient evidence to support Epperson's conviction for felonious

assault. The court explained in relevant part:

Viewed in a light most favorable to the prosecution, the evidence was

sufficient to permit the jury to reasonably infer that defendant possessed a

dangerous weapon, i.e., a knife or a sharp cutting-type instrument, when he

assaulted Jeremiah Fish. Fish testified that he walked out of the house after

arguing and fighting with defendant. He then heard Vanessa Wheatley yell,

"[W]atch out." Fish immediately turned around and saw defendant quickly

approaching him. According to Fish, defendant thrust his right hand toward

Fish's abdomen, stabbing him. Fish testified that he felt a "piercing." He

looked down at his abdomen and saw blood. Fish did not see a knife or other

weapon in defendant's hands because defendant's hands were covered by

his coat sleeves. In addition, Fish asserted that he first saw blood on himself

after defendant thrust his right hand toward his abdomen. After the assault,

Fish was taken to Detroit Receiving Hospital and examined by Dr. James

Tibursky. Tibursky observed a small, smooth, five to six inch deep wound

consistent with a sharp object going in. Based on Tibursky's observations

and experience, he concluded that Fish's wound was caused by a long,

narrow, “cutting-type instrument” with sharp edges, "consistent with a knife."

A reasonable inference the jury could draw from the evidence is that

defendant possessed a dangerous weapon when he assaulted Fish. A jury

could reasonably infer that defendant concealed a knife or sharp cutting

instrument under his coat sleeves and stabbed Fish. This inference is

consistent with Fish's testimony regarding his observations and defendant's

hand movements. It is also consistent with Tibursky's testimony, i.e., that

Fish's wound was caused by a long, narrow, cutting-type instrument with

sharp edges, similar to a knife. Accordingly, the evidence, when viewed in the

light most favorable to the prosecution, is sufficient to establish that

defendant possessed a dangerous weapon when he assaulted Fish.

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Epperson, 2014 WL 265520 at *1.

The state court's decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law or the facts. The testimony of the victim, Jeremiah

Fish, and the medical evidence, considered in a light favorable to the prosecution,

established that Epperson stabbed Fish in the abdomen with a knife or knife-like object

during an argument, and that Epperson required surgery to correct the damage. A victim's

testimony alone can be constitutionally sufficient to sustain a conviction. See Tucker v.

Palmer, 541 F.3d 652, 658–59 (6th Cir. 2008) (citing cases). The victim's testimony and the

medical evidence, along with reasonable inferences therefrom, was sufficient to support

a finding that Epperson was armed with a dangerous weapon and that he used it to commit

the crime.

Epperson challenges the credibility of the victim and the inferences the jury drew

from the testimony presented at trial. However, it is the job of the fact-finder at trial, not a

federal habeas court, to resolve evidentiary conflicts. Jackson, 443 U.S. at 326; Martin v.

Mitchell, 280 F.3d 594, 618 (6th Cir. 2002); Walker v. Engle, 703 F.2d 959, 969–70 (6th Cir.

1983) ("A federal habeas corpus court faced with a record of historical facts that supports

conflicting inferences must presume — even if it does not affirmatively appear in the record

— that the trier of fact resolved any such conflicts in favor of the prosecution, and must

defer to that resolution."). The jury's verdict, and the Michigan Court of Appeals' decision

affirming that verdict, were reasonable. The evidence presented at trial, viewed in a light

favorable to the prosecution, established beyond a reasonable doubt that Epperson

committed felonious assault. Habeas relief is not warranted on this claim.

B. Charging Decision of the Prosecutor

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Epperson also asserts that he is entitled to habeas relief because the prosecutor

abused her discretion by charging him with assault with intent to do great bodily harm less

than murder, as well as felonious assault, arising from a single incident.

It is well-settled that a prosecutor has significant discretion in determining what

charge to file against an accused provided that probable cause exists to believe that an

offense was committed by the accused under the charging statute. See Bordenkircher v.

Hayes, 434 U.S. 357, 364 (1978); United States v. Davis, 15 F.3d 526, 529 (6th Cir. 1994).

A prosecutor, however, may not undertake a prosecution based upon a vindictive motive,

Bordenkircher, 434 U.S. at 363, or based upon race, religion, or some other arbitrary

classification. See Oyler v. Boles, 368 US. 448, 456 (1962).

In this case, the Michigan Court of Appeals denied relief on this claim concluding

that the prosecutor did not abuse her discretion in charging Epperson with two different

assault crimes arising from the same incident because both of the charges were supported

by the evidence and did not violate double jeopardy principles. Epperson, 2014 WL 265520

at *2.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law or the facts. The prosecutor had probable cause

to believe that Epperson was guilty of assault with intent to commit great bodily harm less

than murder and felonious assault based upon the victim's description of the incident and

the medical testimony documenting the type and severity of his injury. Moreover, there is

no evidence that the prosecutor’s charging decision was vindictive or based upon any

impermissible factor. Epperson fails to establish that the prosecutor abused her discretion

or otherwise violated his constitutional rights. Habeas relief is not warranted on this claim.

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C. Double Jeopardy

Lastly, Epperson asserts that he is entitled to habeas relief because his convictions

and sentences for assault with intent to commit great bodily harm less than murder and

felonious assault violate double jeopardy principles.

The Fifth Amendment to the United States Constitution commands that no "person

be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const.

Amend. V. The Double Jeopardy Clause provides three basic protections: "[It] protects

against a second prosecution for the same offense after acquittal. It protects against a

second prosecution for the same offense after conviction. And it protects against multiple

punishments for the same offense." Shiro v. Farley, 510 U.S. 222, 229 (1994) (quotations

omitted). "These protections stem from the underlying premise that a defendant should not

be twice tried or punished for the same offense." Id.

In the context of multiple punishments, however, the Double Jeopardy Clause does

not prohibit a state from defining one act of conduct to constitute two separate criminal

offenses. As the Supreme Court has explained, "[b]ecause the substantive power to

prescribe crimes and determine punishments is vested with the legislature . . . the question

under the Double Jeopardy Clause whether punishments are 'multiple' is essentially one

of legislative intent." Ohio v. Johnson, 467 U.S. 493, 499 (1984). Thus, "even if the two

statutes proscribe the same conduct, the Double Jeopardy Clause does not prevent the

imposition of cumulative punishments if the state legislature clearly intends to impose

them." Brimmage v. Sumner, 793 F.2d 1014, 1015 (9th Cir. 1986). When "a legislature

specifically authorizes cumulative punishments under two statutes, . . . a court's task of

statutory construction is at an end and the prosecutor may seek and the trial court or jury

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may impose cumulative punishment under such statutes in a single trial." Missouri v.

Hunter, 459 U.S. 359, 368–69 (1983). In determining whether a state legislature intended

to authorize separate, cumulative punishments under the circumstances presented, a

federal court must accept the state court's interpretation of the legislative intent for the

imposition of multiple punishments. Id. at 368; Banner v. Davis, 886 F.2d 777, 779–80 (6th

Cir. 1989).

The Michigan Court of Appeals denied relief on this claim finding that there was no

double jeopardy violation because the two crimes have different elements and the Michigan

Supreme Court has determined that convictions for both assault with intent to do great

bodily harm less than murder and felonious assault do not violate constitutional double

jeopardy protections. Epperson, 2014 WL 265520 at *2.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application thereof. The Michigan courts have ruled that the state legislature

has authorized separate punishments for assault with intent to commit great bodily harm

less than murder and felonious assault and that those offenses each contain an element

that the other does not such that convictions for both offenses arising from the same

incident do not violate double jeopardy. See, e.g, People v. Strickland, 293 Mich. App. 393,

401–02 (2011). This Court is bound by that determination. Thus, Epperson fails to establish

a double jeopardy violation; habeas relief is not warranted on this claim.

CONCLUSION

For the reasons stated, the Court concludes that Epperson is not entitled to federal

habeas relief on his claims and that his habeas petition must be denied.

Before Epperson may appeal the Court's decision, a certificate of appealability must

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issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A federal district court must issue

or deny a certificate of appealability when denying relief. Rule 11(a) of the Rules Governing

Section 2254 Cases in the United States District Courts. A certificate of appealability may

issue "only if the applicant has made a substantial showing of the denial of a constitutional

right." 28 U.S.C. § 2253(c)(2). 

When a court denies a habeas claim on the merits, the substantial showing

threshold is met if the petitioner demonstrates that reasonable jurists would find the court's

assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S.

473, 484–85 (2000). A petitioner satisfies this standard by demonstrating "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). Having conducted the requisite

review, the Court concludes that Epperson fails to make a substantial showing of the denial

of a constitutional right as to his habeas claims. A certificate of appealability is not

warranted. The Court also will deny Epperson leave to proceed in forma pauperis on

appeal as an appeal cannot be taken in good faith. See Fed. R. App. P. 24(a).

ORDER

WHEREFORE, it is hereby ORDERED that Petitioner's Writ of Habeas Corpus

(document no. 1) is DENIED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that Petitioner is DENIED leave to proceed in forma

pauperis.

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SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: October 28, 2016

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on October 28, 2016, by electronic and/or ordinary mail.

s/David P. Parker 

Case Manager

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