Gameliel Ware v. PAUL RENICO, Warden

*The Honorable Robert Holmes Bell, Chief United States District
Judge for the Western District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0174P (6th Cir.)
File Name: 04a0174p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GAMELIEL WARE,
Petitioner-Appellant,
v.
PAUL RENICO, Warden,
Respondent-Appellee.
X
-
-
-
->
,
-
-
N
No. 02-2300
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-74252—Avern Cohn, Senior District Judge.
Argued: April 27, 2004
Decided and Filed: June 10, 2004
Before: MARTIN and ROGERS, Circuit Judges; BELL,
Chief District Judge.*
_________________
COUNSEL
ARGUED: Elizabeth L. Jacobs, Detroit, Michigan, for
Appellant. Janet A. Van Cleve, OFFICE OF THE
2 Ware v. Renico No. 02-2300
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
ON BRIEF: Elizabeth L. Jacobs, Detroit, Michigan, for
Appellant. Janet A. Van Cleve, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Gameliel Ware
appeals the district court’s denial of his petition for a writ of
habeas corpus, which alleged various errors related to his
state court jury trial and conviction on counts of murder,
assault with intent to murder and possession of a firearm
during the commission of a felony. We AFFIRM.
I
Ware and his co-defendant, Lamont Card, were tried and
convicted before separate juries in the Circuit Court of Wayne
County, Michigan. The events giving rise to Ware’s
prosecution and conviction occurred during the early morning
hours of February 17, 1994, as Ware and Card were leaving
a party in Detroit. They asked two individuals, Carlos Graves
and Marcus Williams, for a ride home. Graves and Williams
agreed to drive them home, and the four men got into
Graves’s car; Graves was driving, Williams was in the front
passenger seat, Ware was in the back seat behind Williams,
and Card was in the back seat behind Graves. Williams, the
key prosecution witness at Ware’s trial, testified that he saw
Card shoot Graves in the head. Then, according to Williams,
Card turned the gun on him and shot him in the ear, causing
him to slump over to the side. As Williams slumped over, he
was shot a second time – this time in the right shoulder – but
he did not know who fired this second shot. Williams did
testify, however, that after the shots were fired, he saw Ware
reach forward and put the car into park. He also testified that
Ware and Card then proceeded to pull Graves and him out of

-- 1 of 3 --

No. 02-2300 Ware v. Renico 3
the car, dump them in the street, and drive off in Graves’s car.
While Williams survived this attack, Graves unfortunately
died from his injuries. The police located Graves’s car later
that day, parked on a street near Card’s home.
Officer Fred Moore arrested Ware in Ware’s home that
same day. There is some dispute regarding the circumstances
of Officer Moore’s entry into Ware’s home. Apparently Ware
was not at home when Officer Moore arrived, but Ware’s
brother, Chappell Ware, answered the door. According to
Officer Moore, Chappell Ware let him into the home and
allowed him to wait there until Ware’s arrival. According to
Chappell Ware, on the other hand, Officer Moore entered the
home without consent and without a warrant, and ordered that
its occupants stay in a certain area. Ware later returned home
with his mother, at which point he was arrested and taken into
custody.
Ware made two statements to the police in which he
admitted his role in the incident; the first was an oral
statement to Officer Moore and the second was a written
statement secured by Officer Dale Collins. In each statement,
Ware admitted that he shot Williams, that he and Card
dragged the victims out of Graves’s car, and that they drove
away in the car. At trial, Ware moved to suppress the written
statement, arguing that it was involuntary because he could
not read or understand the waiver of rights form. After
holding a hearing, the trial court denied the motion. Ware
never attempted to suppress his oral statement in the trial
proceedings.
After Ware’s motion for a directed verdict was denied, the
jury convicted him of first-degree murder, felony murder,
assault with intent to murder, and possession of a firearm
during the commission of a felony. He was sentenced to life
imprisonment without parole.
Instead of filing a direct appeal, Ware filed a motion for a
new trial. The trial court granted the motion, citing
4 Ware v. Renico No. 02-2300
ineffective assistance of trial counsel, but the Michigan Court
of Appeals reversed and reinstated Ware’s convictions. The
Michigan Supreme Court declined to review that decision.
Ware then filed a petition for a writ of habeas corpus in the
district court. In a comprehensive opinion, the district court
addressed each of Ware’s claims but ultimately concluded
that they lacked merit. Accordingly, the district court denied
the petition, but granted a certificate of appealability with
respect to the following issues:
[1] Where trial counsel failed to offer evidence
concerning the circumstances of the arrest on the
issue of voluntariness, failed to challenge the
admissibility of the oral statement, and failed to
challenge the statements as the fruit of a Fourth
Amendment violation, Petitioner was denied his
Sixth Amendment right to the effective assistance of
counsel.
[2] Petitioner was also denied effective assistance of
counsel in the following ways:
A. Trial counsel failed to request that Officer
Collins’ comment be stricken as non-
responsive.
B. Trial counsel failed to ask for an instruction on
self defense.
C. Trial counsel failed to object to prosecutorial
misconduct and to the instructions.
[3] Prosecutorial misconduct deprived Petitioner of due
process in the following ways:
A. The failure to comply with a request for
discovery within seven days denied Mr. Ware
the right to present a defense and a fair trial.

-- 2 of 3 --

No. 02-2300 Ware v. Renico 5
1This statement of the issues was quoted by the district court from
W are’s request for a certificate of appe alability.
B. The prosecutor appealed to the jurors’ fears and
emotions in order to obtain a conviction.
C. The prosecutor argued facts not in evidence.
[4] The standard jury instruction on aiding and abetting
denied Petitioner the right to a properly charged jury
and to due process of law.
[5] Petitioner’s conviction for felony murder should be
reversed because the evidence is insufficient to
support the verdict.[1]
II
We review de novo the district court’s denial of a petition
for a writ of habeas corpus. Maples v. Stegall, 340 F.3d 433,
436 (6th Cir. 2003) (“This court applies de novo review to the
decision of the district court in a habeas corpus proceeding.”)
(citing Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000)).
The Antiterrorism and Effective Death Penalty Act provides,
in pertinent part, as follows:
(d) 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
6 Ware v. Renico No. 02-2300
(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). A decision 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,
413 (2000). A state court decision involves “an unreasonable
application” of clearly established federal law if “the state
court identifies the correct governing legal principle from
[the] Court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Id. A writ of habeas
corpus may not be issued simply because the state court
issued a decision that erroneously or incorrectly applies
clearly established law; rather, the state court’s application of
law must have been objectively unreasonable. Id. at 410-11.
Our thorough review of the facts and arguments in this case
leads us to the firm conclusion that Ware’s petition was
properly denied. Because we are in accord with the district
court’s persuasive and thorough reasoning with respect to
each of the claims at issue in this appeal, we adopt that
reasoning and find it unnecessary to offer any further
analysis. Therefore, the district court’s judgment is
AFFIRMED.

-- 3 of 3 --