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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DONALD CUMMINGS, 

Petitioner, 

v. 

STEVEN RIVARD,

Respondent. 

 / 

Case No. 15-cv-12466 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

UNITED STATES MAGISTRATE JUDGE

DAVID R. GRAND

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS 

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO 

APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

Donald Wayne Cummings, (“Petitioner”), confined at the Gus Harrison 

Correctional Facility in Adrian, Michigan, filed a petition for a writ of habeas corpus 

pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his 

conviction for conspiracy to commit first-degree murder, tampering with evidence, 

Mich. Comp. Laws § 750.483a, and disinterment or mutilation of a dead body, 

Mich. Comp. Laws § 750.160. The court sentenced Cummings to life imprisonment 

for the conspiracy conviction, and concurrent prison terms of 1 to 10 years each for 

the tampering with evidence and disinterment convictions. For the reasons that 

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follow, the petition for a writ of habeas corpus is DENIED. 

II. BACKGROUND

Petitioner was convicted following a jury trial in the Wayne County Circuit 

Court. This Court recites verbatim the relevant facts relied upon by the Michigan 

Court of Appeals, which are presumed correct on habeas review pursuant to 28 

U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009): 

Defendants’ convictions arise from the death of Brandon Buck, whose 

unrecognizable body was discovered inside a burning minivan during 

the early morning hours of April 18, 2011. In September 2011, a 

witness, Ayesha White, came forward and reported observing the 

events that led to Buck’s death. White was the only witness to the 

events, and was the only reason authorities were able to determine 

whose body was found in the van. White stated that she was present 

when Warner, at Sampson’s direction, shot Buck. Afterward, 

Cummings obtained a minivan and Buck’s body was placed inside, and 

then Cummings poured gasoline inside the minivan and set it on fire. 

An autopsy determined that Buck was already dead before the fire, 

having died from multiple gunshot wounds. 

People v. Warner, No. 311034, 2014 WL 2553303, at *1 (Mich. Ct. App. June 3, 

2014). 

Petitioner’s conviction was affirmed on appeal. People v. Warner, 497 Mich. 

890, 854 N.W.2d 890 (2014). 

Petitioner seeks a writ of habeas corpus on the following grounds: 

I. Defendant is entitled to dismissal of conviction and sentence for 

conspiracy where there was insufficient evidence to find for this 

offense. As such, the motion for directed verdict as to this offense 

should have been granted. 

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II. Defendant is entitled to correction of his judgment of sentence to 

reflect his eligibility for parole. 

III. STANDARD OF REVIEW

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death 

Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas 

cases: 

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. 

A decision of a state court is “contrary to” clearly established federal law if 

the state court arrives at a conclusion opposite to that reached by the Supreme Court 

on a question of law or if the state court decides a case differently than the Supreme 

Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 

362, 405–06 (2000). An “unreasonable application” occurs when “a state court 

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decision unreasonably applies the law of [the Supreme Court] to the facts of a 

prisoner’s case.” Id. at 409. 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.” Id. at 410–11. “[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) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in 

order to obtain habeas relief in federal court, a state prisoner is required to show that 

the state court’s rejection of his claim “was so lacking in justification that there was 

an error well understood and comprehended in existing law beyond any possibility 

for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner 

should be denied relief as long as it is within the “realm of possibility” that 

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

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

IV. DISCUSSION

A. Claim # 1. The Sufficiency of the Evidence Claim. 

Petitioner claims that there was insufficient evidence to support his 

conviction for conspiracy to commit murder. Petitioner claims that the evidence 

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was insufficient to establish that he was one of the participants in the crime and 

further pleads in the alternative that if the evidence was sufficient to establish 

identity, the evidence was insufficient to establish that he conspired to commit the 

crime. 

The Michigan Court of Appeals rejected Petitioner’s claim as follows: 

The evidence indicated that Cummings acted in concert with Warner 

and Sampson, before, during, and after the offense. Evidence was 

presented that Cummings joined Warner in chasing Buck after 

Warner shot Buck, after having heard Sampson direct Warner to 

retrieve a gun from Buck and to kill him. This evidence supported an 

inference that Cummings intended to combine with Simpson and 

Warner to kill Buck. Although Cummings's actions in orchestrating 

the disposal of Buck's body by setting the van on fire to cover up the 

murder involved conduct after the murder was committed, that 

conduct—in conjunction with the other evidence—was still probative 

of Cummings's intent to act in unison and combine with Warner and 

Sampson to kill the victim. Viewed in a light most favorable to the 

prosecution, the evidence was sufficient to enable the jury to find 

beyond a reasonable doubt that Cummings conspired with Warner 

and Sampson to murder Buck. 

People v. Warner, 2014 WL 2553303, at *4. 

It is beyond question that “the 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). But the critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction is, “whether the record evidence could 

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reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. 

Virginia, 443 U.S. 307, 318 (1979). This inquiry does not require a court to “ask 

itself whether it believes that the evidence at the trial established guilt beyond a 

reasonable doubt.” Instead, 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. Id.

at 318–19 (internal citation and footnote omitted) (emphasis in the original). 

A federal habeas court may not overturn a state court decision that rejects a 

sufficiency of the evidence claim simply because the federal court disagrees with 

the state court’s resolution of that claim. A federal court may grant habeas relief 

only if the state court decision was an objectively unreasonable application of the 

Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “Because rational 

people can sometimes disagree, the inevitable consequence of this settled law is that 

judges will sometimes encounter convictions that they believe to be mistaken, but 

that they must nonetheless uphold.” Id. Therefore, for a federal habeas court 

reviewing the sufficiency of evidence for a state court conviction, “the only 

question under Jackson is whether that finding was so insupportable as to fall below 

the threshold of bare rationality.” Coleman v. Johnson, 132 S. Ct. 2060, 2065 

(2012). 

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Under Michigan law, a conspiracy is defined as “a mutual agreement or 

understanding, express or implied, between two or more persons to a commit a 

criminal act.” Cameron v. Birkett, 348 F. Supp. 2d 825, 839 (E.D. Mich. 2004) 

(quoting People v. Carter, 415 Mich. 558, 567; 330 N.W.2d 314 (1982)). “[A] 

two-fold specific intent is required for conviction: intent to combine with others, 

and intent to accomplish the illegal objective.” Carter, 415 Mich. at 568. Direct 

proof of an agreement is not required, nor is proof of a formal agreement necessary. 

Rather, it is sufficient that the circumstances, acts, and conduct of the parties 

establish an agreement. People v. Cotton, 191 Mich. App. 377, 393; 478 N.W.2d 

681 (1991). A conspiracy may be proven by circumstantial evidence or may be 

based on inference. Id.

Under Michigan law, “[t]o prove conspiracy to commit murder, it must be 

demonstrated that each conspirator had the requisite intent to commit the murder.” 

Cameron, 348 F. Supp. 2d at 839 (quoting People v. Buck, 197 Mich. App. 404, 

412; 496 N.W.2d 321, 327 (1992), rev’d in part on other grounds sub nom. People 

v. Holcomb, 444 Mich. 853, 508 N.W.2d 502 (1993)). “The prosecution must 

demonstrate that the conspirators deliberated and planned the crime with the intent 

to kill the victim.” Id.

In the present case, there was ample evidence for a rational trier of fact to 

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conclude that Petitioner conspired with the other defendants to kill the victim. The 

evidence established that Petitioner participated before, during, and after in 

committing the murder. The record indicates that Warner shot Buck, who took off 

running. Petitioner then directed Sampson to follow him to the gas station, as he 

took off in a minivan. At the gas station, Petitioner sprayed the inside cabin of the 

minivan with gasoline and then set the van on fire. Dkt. No. 7-9, pp. 53–58 (Pg. ID 

No. 535–40). Buck’s charred remains were later found in the minivan. Dkt. No. 7-8, 

p. 184 (Pg. ID No. 380). A few months later, Petitioner and Warner went to White’s 

house looking for her. Dkt. No. 7-9, pp. 45–46 (Pg. ID No. 527–28); Dkt. No. 7-10, 

pp. 175–183 (Pg. ID No. 954–62). 

Petitioner’s actions indicate that he was acting in unison with Warner and 

Sampson to kill Buck. From Petitioner’s active involvement throughout the entire 

episode of the chasing and the shooting of Buck, a rational trier of fact could 

conclude that Petitioner participated in the victim’s murder, so as to support his 

conviction for conspiracy to commit murder. Cameron, 348 F. Supp. 2d at 840. 

Moreover, Petitioner’s acts of setting Buck’s van on fire to conceal the murder and 

later seeking out the sole witness to the murder, presumably to silence her, 

established a “continuing attempt to hide the conspiracy.” This evidence of 

Petitioner’s consciousness of guilt also supported an inference that Petitioner 

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conspired with the others to kill the victim. Id. Petitioner is not entitled to relief on 

his first claim. 

B. Claim # 2. Petitioner’s Sentencing Claim. 

Petitioner next contends that he is entitled to correction of his judgment of 

sentence to reflect that his life sentence is eligible for parole.

The Michigan Court of Appeals reviewed Petitioner’s claim of error and 

found it meritless as follows: 

The judgment of sentence for each defendant accurately identifies the 

conviction offense as “Conspiracy to commit 1st degree murder.” In 

the column of the judgment of sentence marked “MCL citation/PACC 

Code,” Cummings’s judgment specifies “750.316A[C]” and 

Sampson’s judgment specifies “750.316[C].” According to the Bench 

Guide: Criminal Records Reporting, MCL/PACC Charge Codes 

(11th ed, 2003), “[a] conspiracy charge is listed as the PACC charge 

code followed by a bracketed ‘C,’ (i.e. Conspiracy to Commit 

Homicide Murder-First Degree is 750.316[C]).” Here, the judgment 

of sentence for each defendant properly lists the PACC charge code 

for first-degree murder, followed by a bracketed “C,” thereby 

designating the conviction as one for conspiracy to commit 

first-degree murder, as clearly stated on the face of the judgment of 

sentence. In addition, there is nothing in the description of either 

defendant’s life sentence for conspiracy to suggest that it is not 

subject to parole consideration. Accordingly, remand for correction 

of the judgments of sentence is not necessary. 

People v. Warner, 2014 WL 2553303, at *5. 

 State courts are the final arbiters of state law. See Bradshaw v. Richey, 546 

U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Therefore, 

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claims which arise out of a state trial court’s sentencing decision are not normally 

cognizable on federal habeas review, unless the habeas petitioner can show that the 

sentence imposed exceeded the statutory limits or is wholly unauthorized by law. 

See Vliet v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D. Mich. 2002). A sentence 

imposed within the statutory limits is not generally subject to habeas review. 

Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 

797 (E.D. Mich. 1999). 

The United States Supreme Court has “repeatedly held that a state court’s 

interpretation of state law, including one announced on direct appeal of the 

challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. 

Richey, 546 U.S. 74, 76 (2005). The Michigan Court of Appeals concluded that 

Petitioner’s judgment of sentence clearly states that he was given a parolable life 

sentence. Petitioner=s second claim is without merit. 

V. CONCLUSION

The Court will deny the petition for a writ of habeas corpus. The Court will 

also deny a certificate of appealability to Petitioner. In order to obtain a certificate 

of appealability, a prisoner must make a substantial showing of the denial of a 

constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the 

applicant is required to show that reasonable jurists could debate whether, or agree 

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that, the petition should have 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). When a district court rejects a habeas 

petitioner’s constitutional claims on the merits, the petitioner must demonstrate that 

reasonable jurists would find the district court’s assessment of the constitutional 

claims to be debatable or wrong. Id. at 484. Likewise, when a district court denies a 

habeas petition on procedural grounds without reaching the prisoner’s underlying 

constitutional claims, a certificate of appealability should issue, and an appeal of 

the district court’s order may be taken, if the petitioner shows that jurists of reason 

would find it debatable whether the petitioner states a valid claim of the denial of a 

constitutional right, and that jurists of reason would find it debatable whether the 

district court was correct in its procedural ruling. Id. at 484. “The district court must 

issue or deny a certificate of appealability when it enters a final order adverse to the 

applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254. 

For the reasons stated in this opinion, the Court will deny Petitioner a 

certificate of appealability because he has failed to make a substantial showing of 

the denial of a federal constitutional right. See also Millender v. Adams, 187 F. 

Supp. 2d 852, 880 (E.D. Mich. 2002). The Court will also deny Petitioner leave to 

appeal in forma pauperis, because the appeal would be frivolous. See Allen v. 

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Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001). 

VI. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of 

habeas corpus is DENIED WITH PREJUDICE. 

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

IT IS FURTHER ORDERED that leave to appeal in forma pauperis is 

DENIED.

IT IS SO ORDERED. 

 /s/Gershwin A Drain 

 HON. GERSHWIN A. DRAIN 

 United States District Court Judge 

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