Deyonta R. Robinson v. Shirlee A. Harry

NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0272n.06
No. 13-1047
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
DEYONTA R. ROBINSON
Petitioner-Appellant,
v.
SHIRLEE A. HARRY
Respondent-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
BEFORE: COLE, ROGERS, Circuit Judges, and HOOD, District Judge.*
ROGERS, Circuit Judge. A Michigan state court jury found Deyonta Robinson guilty of
armed robbery. Robinson contends that he was deprived of his constitutional rights because of a
“fatal variance” in the proceedings. The information charged, and the prosecutor argued at trial,
that Robinson committed robbery with a gun; but the judge’s original and supplemental jury
instructions allowed Robinson to be convicted of armed robbery with a “dangerous weapon”
more generally. Robinson was ultimately convicted of armed robbery for aiding and abetting his
accomplice, whose “deadly weapon” during the robbery was a broken beer bottle, not a gun.
Robinson requests habeas relief under 28 U.S.C. § 2254 because the judge’s variance was so
serious that it amounted to a “constructive amendment” of the charges against him, constituted
* The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.

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lack of notice, and hindered his ability to present a defense. Robinson has not met the extremely
difficult burden that the law imposes on federal habeas petitioners.
In September 2000, Deyonta Robinson was shooting dice at the home of Eric Reed with
Reed, James Hardy, Henry Salazar, J.D. Rice, and Karl McBride. The evidence at trial
suggested different versions of what happened next. Rice testified that while in a separate room,
he heard a bottle break, and when he came out, McBride was standing over Hardy holding a
broken bottle. Then Robinson pulled out a gun and said, “Everybody drop their money.”
Hardy testified that McBride hit him with a beer bottle, and that Robinson told everyone, “This is
a robbery,” but Hardy was bleeding so profusely he did not see whether Robinson had a gun.
Salazar testified that McBride hit Hardy with a bottle, then Robinson pulled a gun said,
“Everybody drop their money.” Robinson testified that McBride hit Hardy on the head,
Robinson picked up Hardy’s money off the ground (intending only to get back the money he had
lost through Hardy’s alleged cheating), and he and McBride left.
Robinson and McBride were later charged with four counts of armed robbery (with a
gun), and four counts of possessing a firearm during the commission of a felony. McBride was
tried separately and convicted as an aider and abettor to Robinson, who the prosecutor argued
was the principal who committed the robbery with a gun. An information charged Robinson
with robbery “while being armed with a dangerous weapon, or an article used or fashioned in a
manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, to-wit:
GUN….” A Michigan jury found Robinson guilty of one count of armed robbery, three counts
of unarmed robbery, and not guilty of four counts of possessing a firearm during the commission
of a felony. The not guilty verdicts and a jury question make it appear that Robinson was found

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guilty of armed robbery for aiding and abetting McBride, who assaulted the victims with a
broken bottle, not a gun.
Throughout the trial, consistent with the charges in the information, the prosecutor
repeatedly emphasized that the weapon used to commit armed robbery was “a gun, a handgun”
that “Deyonta Robinson did carry or have in his possession.” Appellant’s Appendix, pp. 8, 11.1
The alleged variance occurred when the judge gave a general instruction about the elements of
armed robbery that the prosecutor had to prove beyond a reasonable doubt:
Now, second, at the time of the assault the defendant was armed with a weapon
designed to be dangerous and capable of causing death or serious injury or with
any other object capable of causing death or serious injury that the defendant used
as a weapon or with any other object used or fashioned in a manner to lead the
person who assaulted to reasonably believe that it was a dangerous weapon.
Appellant’s Appendix, p. 25. During deliberations, the jury submitted the following two
questions to the judge: “Can D be charged with armed robbery under the aiding and abetting law
when his partner has in his hand during the robbery a deadly weapon in the form of a broken
beer bottle?” and “What is the difference between larceny and robbery[?]” Appellant’s
Appendix, pp. 30, 31. Robinson contends that the variance in the original instructions was
compounded when the judge responded:
The defendant can be charged and convicted of armed robbery if you find
beyond a reasonable doubt that Karl McBride assaulted either Hardy or Rice or
Salazar or Reed with a dangerous weapon and the other elements of armed
robbery are proven beyond a reasonable doubt and you are satisfied beyond a
reasonable doubt that this defendant aided and abetted Karl McBride in that
process. Of course you have to consider each of those armed robbery charges for
each count separately.
1 Citations are to the Appellant’s Appendix, available electronically as docket entry number 48 in this
appeal. The full trial transcript is not available for review electronically, but it is available for review at the
courthouse for the United States District Court for the Western District of Michigan. See W.D. Mich. LCivR
5.7(d)(ii). It was made part of the district court’s record through a Fed. R. Civ. P. 5 motion, and appears to have
been relied upon by the district court in reaching its conclusions.

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[T]he essential difference between larceny and robbery is this: A robbery
includes all of the elements of larceny plus the additional requirement that there
be an assault. If there’s an assault with a dangerous weapon it would be armed
robbery.
Appellant’s Appendix, pp. 30-31.
Robinson appealed to the Michigan Court of Appeals, claiming that his due process rights
were violated by a fatal variance between the information that specified the use of a gun, and the
jury instructions, which permitted conviction for armed robbery with a bottle. People v.
Robinson, 2004 WL 103148, at *4 (Mich. Ct. App. Jan. 22, 2004). The Michigan Court of
Appeals affirmed Robinson’s conviction because “the trial court gave an instruction for armed
robbery as well as an instruction that defendant could be convicted of aiding and abetting Karl
McBride,” and “the evidence at trial showed either that defendant committed an armed robbery
with a gun as the principal, or that defendant committed the crime as an aider and abettor by
helping McBride collect the money after McBride hit Hardy over the head with a bottle.”
Robinson, 2004 WL 103148, at *3. The relevant portion of the opinion addressing Robinson’s
fair notice claim reads as follows:
Defendant insists that he was convicted of a crime for which he was not
charged because the trial court read the above information to potential jurors, but
then improperly broadened the scope of that information by instructing the jury on
the aiding and abetting theory. We disagree.
A defendant may not be convicted of a crime for which he has not been
charged. People v. Kelley, 78 Mich.App 769, 776; 260 NW2d 923 (1977). But the
distinction between committing a crime as the principal and as an aider and
abettor has been abolished. “Every person concerned in the commission of an
offense, whether he directly commits the act constituting the offense or procures,
counsels, aids, or abets in its commission may hereafter be prosecuted, indicted,
tried and on conviction shall be punished as if he had directly committed such
offense.” MCL 767.39 (Emphasis added). Therefore, aiding and abetting the
armed robbery or unarmed robbery is not a separate charge, but merely a different
theory from which to find defendant's guilt. Accordingly, the information
provided adequate notice. People v. McKeighan, 205 Mich. 367, 370-371; 171
NW 500 (1919); People v. Palmer, 42 Mich.App 549, 553; 292 NW2d 536

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(1972). There was no variance between the information charged and the jury
instructions because aiding and abetting is not a separate charge; it is merely a
separate theory for conviction under the same charge.
Robinson, 2004 WL 103148, at *4. The Michigan Supreme Court denied relief in a standard
order. People v. Robinson, 688 N.W.2d 506 (Mich. 2004). Robinson’s state post-conviction
appeals for relief from judgment were rejected by the trial court, the Michigan Court of Appeals,
and Michigan Supreme Court.
Robinson filed a petition in federal court for habeas relief pursuant to § 2254(d) of the
Antiterrorism and Effective Death Penalty Act (AEDPA), asserting that he “was denied his
constitutional rights pursuant to the 6th and 14th [A]mendments, to due process, and fair notice,
by the fatal variance between the information, which specified robbery with a gun, and the jury
instructions, which permitted conviction for robbery with a bottle.”2 A magistrate judge issued a
detailed report recommending that the petition be denied because Robinson could not show that
the state court’s ruling was contrary to, or involved an unreasonable application of, clearly
established Supreme Court law, as required by § 2254 of AEDPA. In addition, “Petitioner
unquestionably was apprised of the crimes for which he was charged” since “[t]hroughout the
trial and conviction, the charged crimes remained the same, as did the date, location, victims and
overall course of conduct in issue.” Therefore, “[t]he difference between the crime described in
the information and the crime as proved and instructed at trial…at best amounts to a minor
variance.” The magistrate judge then went on to find that the variance (if there was one) did not
prejudice Robinson: “As a result [of the discrepancy only “amount[ing] to a minor variance”],
Petitioner is required to show prejudice. Petitioner cannot demonstrate the necessary prejudice.”
2 Robinson listed nine grounds for relief in his original habeas petition, but on appeal presents only the
question of “[w]hether a fatal variance occurred between the information which charged armed robbery with a gun,
the prosecution’s corresponding theory during trial, and the original and supplemental jury instructions, which
permitted conviction for armed robbery by another means?”

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The magistrate judge reasoned that Robinson “defended the charges on the ground that he lacked
the necessary intent to deprive the victims of their money permanently,” not the weapon that was
or was not used to commit the crime. Robinson admitted that McBride hit Hardy on the head
with a bottle, and that Robinson picked up the money Hardy dropped as a result. Finally,
Robinson “was aware well before the time the jury was instructed that the bottle could be found
to be a dangerous weapon used in the armed robbery,” and his attorney “moved for a directed
verdict arguing, in part, that a bottle is not a dangerous weapon and therefore, as a matter of law,
no armed robbery with regard to Hardy took place.” “For all these reasons,” the magistrate judge
found “that Petitioner was provided fair notice of the charges brought against him, in compliance
with the Sixth Amendment and Due Process Clause.”
The district court adopted the magistrate judge’s report over Robinson’s objections. The
court focused on refuting Robinson’s objection that the use of the words “to-wit: GUN” in the
information narrowed the charges against him such that his conviction for armed robbery with a
broken bottle instead of a gun was an “ambush” that deprived him of his constitutional rights.
The court acknowledged that the alleged variance question was “difficult, but ultimately
conclude[d] the Magistrate Judge reached the correct disposition of the issue.” The court relied
on United States v. D’Amelio, 683 F.3d 412, 418 (2d Cir. 2012), which relied on a Sixth Circuit
case, Martin v. Kassulke, 970 F.2d 1539, 1543 (6th Cir. 1992), for the proposition that the “‘core
of criminality’ of an offense involves the essence of a crime, in general terms; the particulars of
how a defendant effected the crime falls outside the purview.” The district court also reasoned
that the alleged variance was not prejudicial because “Robinson’s claim that he focused his
defense on the lack of a gun ignores the fact that this defense was necessary to create doubt for
the felony-firearm charges;” “[t]he use of the beer bottle to strike a victim was revealed as early

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as the preliminary examination” and was not a surprise to Robinson; and “[t]he essential element
of the armed robbery charge, the possession of a dangerous weapon during the commission of a
robbery, was not altered when the evidence showed the possession of a broken bottle, rather than
the possession of a gun.”
The district court granted Robinson a certificate of appealability as to “whether the
alleged variance was prejudicial” because “[a]lthough this Court concluded otherwise, the fact
that the dangerous weapon was not of the same type of weapon as was specified in the
indictment, may cause disagreement over the issue of prejudice.”
Robinson is not entitled to relief under 28 U.S.C. § 2254 because he has not demonstrated
that the Michigan Court of Appeals’ decision affirming the jury verdict against him was contrary
to, or involved an unreasonable application of, clearly established federal law as determined by
the Supreme Court of the United States. Robinson cannot rely on the Supreme Court’s decisions
in Kotteakos v. United States, 328 U.S. 750 (1946), and Berger v. United States, 295 U.S. 78
(1935), as a basis for granting him habeas relief because neither Kotteakos nor Berger is clearly
established Supreme Court law for the purposes of AEDPA. Neither case involved an
interpretation of the Constitution. Instead, both are direct appeal cases in which the Supreme
Court was exercising its supervisory power over the federal courts. See Fry v. Pliler, 551 U.S.
112, 116 (2007) (suggesting that Kotteakos was decided on “nonconstitutional errors on direct
appeal from [a] federal conviction[]”); United States v. Baugham, 449 F.3d 167, 221 (D.C. Cir.
2006) (explaining that the error in Berger and Kotteakos “is perhaps best understood as derived
from common law,” because “it is not linked to any specific constitutional requirement”).
Supreme Court decisions that are not based on constitutional grounds (e.g., those based on the

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Court’s supervisory powers) are “off the table as far as § 2254(d) is concerned.” Early v.
Packer, 537 U.S. 3, 10 (2002).
Robinson’s claim that a fatal variance occurred between the charges against him in the
initial information and the crime for which he was ultimately convicted based on the jury
instructions sounds in fair notice. The Supreme Court’s jurisprudence in this area establishes
general parameters for lower courts to follow. Certainly, Robinson cannot be convicted of a
crime for which he was not charged. Cole v. Arkansas, 333 U.S. 196, 201 (1948). Indeed, “[n]o
principle of procedural due process is more clearly established than that notice of the specific
charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are
among the constitutional rights of every accused criminal proceeding in all courts, state or
federal.” Id. Robinson argues that he was ambushed by the conviction because the information
specified the use of a gun, not a bottle, to commit armed robbery. But the information against
Robinson did apprise him of the crime he needed to defend against: assault with a dangerous
weapon while stealing money or property from the identified victims.
Robinson was adequately apprised of the crime against which he needed to defend. The
fact that the prosecution specified the use of a gun in the information for armed robbery did not
alter the nature of the charges against him, and did not deprive Robinson of his constitutional
right to fair notice. Robinson argues that his defense was prejudiced because he “testified
without knowing he could be convicted based upon what Karl did with the bottle.” Robinson
was offered “a nine year cap in his sentence for a guilty plea. If Petitioner had known that he
could be convicted of armed robbery for what his brother did with the bottle, it is highly likely he
would have agreed to this plea bargain.” Michigan law, however, has abolished the distinction
between committing a crime as the principal or as an aider and abettor, and Robinson should

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have known that he could be found liable for McBride’s use of a bottle to threaten and assault the
victims. Robinson cites Seventh Circuit and New York state court law to support his claim that
the use of “to-wit: GUN” in the information narrows the scope of the charge, such that it was
improper for him to be convicted of armed robbery with a bottle. His reliance is misplaced.
Because these decisions are not Supreme Court precedent, nor do they interpret Michigan state
law, the Michigan Court of Appeals did not unreasonably apply federal law in disregarding them.
The crime with which Robinson was charged and the crime for which he was convicted
remained the same. While the information specified the use of a firearm as the means of
committing armed robbery, it also included the broader definition of robbery “while being armed
with a dangerous weapon, or an article used or fashioned in a manner to lead the person so
assaulted to reasonably believe it to be a dangerous weapon.” According to the magistrate judge,
one victim, Rice, testified at the preliminary hearing that McBride used a bottle to hit Hardy over
the head just as Robinson announced it was a “stick-up.” All of the witnesses testified that
McBride hit a victim over the head with a bottle before Robinson took the money, and at the
close of the prosecution’s case, defense counsel moved for a directed verdict arguing, in part,
that a bottle is not a dangerous weapon, and therefore, as a matter of law, no armed robbery with
regard to one particular victim took place. The trial court denied the motion. Robinson,
therefore, was aware well before the time the jury was instructed that the bottle could be found to
be a dangerous weapon used in the armed robbery.
The Supreme Court has made clear that under § 2254(d), a circuit court first must find
that a decision was contrary to clearly established federal law; only then may it address the
question “whether [the Court of Appeals’] decision constituted error and if so whether the error
had a substantial or injurious effect on the verdict.” Early, 537 U.S. at 10. Robinson points to

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no Supreme Court precedent establishing that the Michigan Court of Appeals’ decision affirming
his conviction was an objectively unreasonable application of federal law. Williams v. Taylor,
529 U.S. 362, 411 (2000). As the Supreme Court noted in Renico v. Lett, 559 U.S. 766, 779
(2010), “AEDPA prevents defendants—and federal courts—from using federal habeas corpus
review as a vehicle to second-guess the reasonable decisions of state courts. Whether or not the
Michigan Supreme Court’s opinion reinstating Lett’s conviction in this case was correct, it was
clearly not unreasonable.” It is not enough for Robinson to point to circuit precedent in his favor
because “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). Because AEDPA authorizes a federal court to
grant relief only when a state court’s application of federal law was unreasonable, it follows that
“[t]he more general the rule” at issue—and thus the greater the potential for reasoned
disagreement among fair-minded judges—“the more leeway [state] courts have in reaching
outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Robinson has not demonstrated the existence of Supreme Court case law clearly holding
that changing the weapon used to commit armed robbery (under an expansive armed robbery
statute) altered the charges against him, such that he lacked fair notice. In Lockyer v. Andrade,
538 U.S. 63, 72 (2003), the Supreme Court denied relief under § 2254 because the Supreme
Court’s decisions on cruel and unusual punishment “have not been a model of clarity” and “have
not established a clear or consistent path for courts to follow.” Instead, “the only relevant clearly
established law amenable to the ‘contrary to’ or ‘unreasonable application of’ framework is the
gross disproportionality principle, the precise contours of which are unclear, applicable only in
the ‘exceedingly rare’ and ‘extreme’ case.” Id. at 72-73 (quoting Harmelin v. Michigan, 111 S.

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Ct. 2680 (1993) (Kennedy, J., concurring in part and concurring in judgment)). In the context of
fair notice, the Supreme Court requires only that an indictment contain the elements of the
offense to be charged, that it sufficiently apprise the defendant of the crime he must defend
against, and that it protect the defendant against double jeopardy. The “precise contours” of the
doctrine are “unclear.” Therefore, so long as the Michigan Court of Appeals’ decision affirming
Robinson’s conviction was not objectively unreasonable, it does not contradict established
Supreme Court precedent. As the district court correctly noted, “[t]he difference between the
crime described in the information and the crime as proved and instructed at trial, therefore, at
best amounts to a minor variance.”
The judgment of the district court is AFFIRMED.

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