Toran Peterson v. Willie Smith

Filing

OPINION filed : The district court s judgment is AFFIRMED and the petition for habeas relief is DENIED, decision not for publication. Ralph B. Guy , Jr., AUTHORING Circuit Judge; Eugene E. Siler , Jr., Circuit Judge and Deborah L. Cook, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0011n.06
No. 10-1750

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DEBORAH S. HUNT, Clerk

Jan 03, 2013

TORAN V. PETERSON,
Petitioner-Appellant,

On Appeal from the United
States District Court for the
Western District of Michigan

v.
WILLIE O. SMITH, Warden,
Respondent-Appellee.
/
Before:

GUY, SILER, and COOK, Circuit Judges.

RALPH B. GUY, JR., Circuit Judge.

Petitioner Toran Peterson, a M ichigan

prisoner, appeals from the denial of his pro se petition for writ of habeas corpus in which he
sought to overturn his convictions for first-degree murder and possession of a firearm during
the commission of a felony. Through appointed counsel, petitioner raised four ineffectiveassistance-of-counsel claims based on the failure of trial counsel to: (1) impeach the
eyewitness with certain prior inconsistent statements; (2) challenge the in-court identification
by the eyewitness; (3) move to suppress evidence seized from a house owned by Peterson’s
mother; and (4) secure the attendance of a witness whom the prosecution had been unable
to find. Peterson was allowed to file a supplemental brief after the withdrawal of counsel to
argue claims that he did not wish to abandon on appeal. After careful review of the record,

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we affirm the denial of the petition for habeas relief.1
I.
Shortly before 10:00 p.m., on December 1, 1999, Tarek Al-Rifai was shot and killed
as he was leaving work at the Citgo gas station and convenience store located at the
intersection of Warren and Cadillac in Detroit, Michigan. Al-Rifai suffered four shotgun
wounds at close range: two to an arm, one to the abdomen, and one to the back of the head
close to the neck. Al-Rifai’s coworker Hefer Obed witnessed the shooting from behind
bullet-proof glass approximately ten feet away. Obed, testifying through an interpreter,
identified Peterson as the shooter during the preliminary examination and the two-day jury
trial.
Obed testified at trial that he was a citizen of Yemen, had lived in the United States
for four years, and did not have a good command of the English language. On the day of the
shooting, Obed and Al-Rifai, whom he knew only as “Tarek,” were working together at the
Citgo station. At approximately 8:00 p.m., Obed was stocking the walk-in coolers when he
heard an argument. Obed came out of the cooler and stood watching for five or six minutes
while Al-Rifai and petitioner argued and cursed at each other. Obed testified that he did not
know why they were cursing or what the argument was about. Obed spoke to petitioner to

1

Peterson’s supplemental brief reasserted a number of claims, although he concedes that the claims
asserted in Arguments IV(a), IV(f), and VI were not made in his habeas petition. We will not review these
claims. Moreover, to the extent that Argument VI may be read to assert that an evidentiary hearing was
necessary in the habeas proceeding, it was not error for the district court to review claims under § 2254(d)(1)
based on the record before the state court. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). Nor was
any showing made that would support a request for an evidentiary hearing under § 2254(e)(2).

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apologize and try to calm things down. Petitioner did not say anything, but pushed a shelf
of candy onto the floor and left. Obed returned to work in the cooler.
Approximately 25 minutes later, at about 8:30 p.m., Obed saw that Peterson had
returned in an old car he often drove that was probably a Caprice, a Lincoln, or a Cadillac.
He stayed in the car for two or three minutes, but drove away when Obed went to the door
to go out to talk to him. Petitioner returned a second time at 9:00 or 9:20 p.m., but again
drove away when Obed moved to go out to him. Finally, at about 9:50 p.m., after Obed had
taken over at the cash register and Al-Rifai was leaving work, petitioner approached on foot
carrying a “long gun.”2 Peterson had covered his head and part of his face.
As Al-Rifai pushed the door to go out, he was confronted by petitioner and backed up
trying to pull the door closed to lock it. Petitioner grabbed the door and, keeping it open with
a foot, started firing and shouted “Motherf**r I told you.” Obed heard Al-Rifai say “he came
back” and also heard a total of four or five shots. Al-Rifai died inside the doorway, Peterson
fled, and Obed called the police. As is outlined in more detail below, Obed testified that he
was certain of the shooter’s identity because, although he did not know Peterson’s name at
the time, Peterson was a regular customer for more than a year with whom he had spoken on
many occasions.
The evidence at trial established that Al-Rifai was mortally wounded and that,
although the order of his injuries could not be determined, his head wound would have been

2

The interpreter explained that one word in Obed’s native tongue means both rifle and shotgun.

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almost immediately fatal. Police collected one live and four spent Remington shotgun shells
from the scene and observed two pools of blood near the front door. The investigation led
police to a nearby home on Pennsylvania Street where Peterson resided. With the written
consent of his mother, who owned the premises, police conducted a search that resulted in
the seizure of a box of Remington shotgun shells bearing the same mark as the shotgun shells
found at the scene. No clothing or papers belonging to petitioner were found, and the
ammunition was found in plain view in a box on the kitchen floor. On December 12, 1999,
having received information concerning Peterson’s whereabouts, police apprehended him as
he fled wearing a wig and lipstick.
At the conclusion of trial, the jury found Peterson guilty on both counts. The trial
judge sentenced him to consecutive terms of life without parole for first-degree murder and
two years for the felony-firearm conviction. The Michigan Court of Appeals affirmed
defendant’s convictions, and the Michigan Supreme Court denied leave to appeal. Peterson
filed a motion for relief from judgment, which the trial court denied for failure to
demonstrate good cause to excuse the failure to raise the claims on direct appeal as required
by MCR 6.508(D)(3). Leave to appeal was denied by both the Michigan Court of Appeals
and the Michigan Supreme Court for failure to meet the burden of establishing entitlement
to relief under MCR 6.508(D).
In January 2007, Peterson filed a timely pro se habeas petition asserting thirteen
claims of error. The last four claims were dismissed at petitioner’s request so he could

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exhaust his state remedies (Claims 10-13). Adopting the magistrate judge’s report and
recommendation, the district court concluded that the first four claims of ineffective
assistance of trial counsel not only were procedurally defaulted but also were without merit
(Claims 1-4); that petitioner had not established the fifth claim that appellate counsel was
ineffective for failing to raise the first four claims on direct appeal (Claim 5); and that the
state court’s rejection of the last four claims on the merits—including several claims of
ineffective assistance of counsel, the denial of substitute counsel, and error in finding due
diligence had been used in attempting to locate the missing witness—was neither contrary
to, nor an unreasonable application of Supreme Court precedent (Claims 6-9). The district
court denied the petition for habeas relief and entered judgment in favor of respondent. With
the grant of a certificate of appealability, this appeal followed.
II.
We review a district court’s decision to grant or deny a petition for writ of habeas
corpus de novo.

Burton v. Renico, 391 F.3d 764, 770 (6th Cir. 2004).

Under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which governs this case,
the writ of habeas corpus may not be granted with respect to any claim that was adjudicated
on the merits unless the state court’s adjudication “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 “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §

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2254(d)(1) and (2). AEDPA deference applies to claims adjudicated on the merits, even
when the state court’s decision is unaccompanied by any reasoning. Harrington v. Richter,
131 S. Ct. 770, 784 (2011).
A.

Impeachment of Eyewitness
Peterson, through counsel and in his supplemental brief, claims that trial counsel

rendered ineffective assistance of counsel by failing to impeach the eyewitness with certain
purported inconsistencies. To establish ineffective assistance of counsel, Strickland requires
a showing of both deficient performance and resulting prejudice. Strickland v. Washington,
466 U.S. 668, 688-89 (1984).

The first prong requires a showing that “‘counsel’s

representation fell below an objective standard of reasonableness’ . . . [and] a ‘strong
presumption’ that counsel’s representation was within the ‘wide range’ of reasonable
professional assistance.” Harrington, 131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 688
and 689). For claims adjudicated on the merits in state court, however, the “question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id. at 788. “The standards created by Strickland and § 2254(d) are both ‘highly
deferential’ . . . and when the two apply in tandem, review is ‘doubly’ so.” Id. (quoting
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
Although petitioner presented his various failure-to-impeach claims to the state courts
either on direct appeal or on collateral review, only one ground was raised on direct appeal
and adjudicated on the merits by the state courts. The other grounds asserted in the motion

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for relief from judgment were rejected by the trial court, along with the claim of ineffective
assistance of appellate counsel for failing to raise them earlier. Because the Michigan
Supreme Court and Michigan Court of Appeals cited only to MCR 6.508(D) in denying leave
to appeal from that decision, they are unexplained orders that did not necessarily invoke
procedural default. See Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc).
Looking through to the last reasoned decision, however, the trial court relied on MCR
6.508(D)(3), which is recognized as an independent and adequate state ground for purposes
of procedural default. Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005).
Without contesting the first three prongs of the test for procedural default, petitioner
argued that the fourth prong was not met because he could show cause and prejudice
excusing the default. Since evaluation of the cause—the alleged ineffective assistance of
appellate counsel—would require consideration of the strength of the defaulted failure-toimpeach claims, we will address the merits first and consider the cause and prejudice
standard only if necessary. See Arias v. Hudson, 589 F.3d 315, 316 (6th Cir. 2009).
Eyewitness Testimony. Obed testified that Peterson was the man he saw arguing with
Al-Rifai a few hours before the shooting and that he was 100% sure Peterson was the
shooter. By way of foundation, Obed was asked if he had ever seen petitioner before the
shooting and Obed said “yes” and “[s]everal times.” Upon further questioning, Obed
explained that he knew petitioner “a long time” and, when asked how long, answered: “I
believe more than a year.” As for how frequently he saw petitioner, Obed answered: “Not

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every day. Every other day every week sometimes every third day sometimes.” Obed agreed
that he was “fairly familiar with the sight of Mr. Peterson,” and said he had spoken to him
as a customer but not in friendly conversation. Later, Obed described petitioner as an
“ordinary regular customer.”
Obed acknowledged that he could only see the shooter’s face from the bridge of the
nose to the forehead, but added that, except for black gloves and a mask, Peterson wore the
same clothes as he had when arguing with Al-Rifai earlier. He said he recognized the
shooter’s voice as Peterson, and knew that the shooter was Peterson even though he wore a
cap, pulled the jacket hood over his head, and had a mask covering half of his face. Obed
explained that he heard Peterson curse during the earlier argument, saying “you Arab
Motherf**r,” and that he had heard Peterson say “Arab Motherf**r” many times. Petitioner
claims that although defense counsel cross-examined Obed, his performance fell below an
objective standard of reasonableness because he did not attempt to impeach Obed by asking
about the following purported inconsistencies.
Shooter’s Appearance. Obed’s witness statement indicated that the shooter wore a
“dark jacket with a hood,” had a thin mustache, and wore a scarf on his face. Differences
between that description and Obed’s trial testimony—that the shooter wore a green leather
jacket with a hood, a black T-shirt, and a mask (not a cloth) on his face—were minor and not
necessarily inconsistent as a jacket can be both “dark” and “green.” His witness statement
did not mention that there were patches or designer names on the pockets, but Obed testified

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that he believed he told the officer about it. Obed explained: “Yes I talk to [an officer] but
he was not really understanding me I was not really understanding him.” Obed also said he
signed the witness statement without reading it. Further inquiry into the minor discrepancies
in the description of the shooter’s appearance would have been met with rehabilitation,
including Obed’s witness statement indicating that he knew the shooter even though he was
wearing a hood and scarf because the shooter was a “regular customer” and had been in the
store earlier that evening.
Number of Visits and Make of Car. Obed testified that Peterson came back not once
but twice between the argument and the shooting, but the witness statement did not mention
that Peterson came back twice. Omission of this information from the brief statement, which
Obed said he did not read before signing, did not present strong evidence of impeachment
or undermine Obed’s identification of Peterson as the shooter. Peterson argues that defense
counsel should have challenged Obed on how he could have recognized the car as Peterson’s
while describing it as an old Lincoln or Cadillac. Defense counsel did in fact ask him about
the car and prompted Obed to repeat that he thought the car was probably a Caprice, a
Lincoln, or a Cadillac.
Statements During the Shooting. Petitioner faults counsel for not attempting to
impeach Obed with discrepancies in his accounts of precisely what the shooter said as he shot
Al-Rifai. Obed’s preliminary examination testimony was that the shooter shouted, “I tell
you, Motherf**r,” while his witness statement indicated only that the shooter said

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“Motherf**r.” At trial, he said Peterson shouted, “Motherf**r I told you,” which petitioner
argues implied that the shooter had argued with him earlier. These differences were minor,
were more consistent than inconsistent, and this impeachment would not undermine Obed’s
express testimony that the shooter was, in fact, the same man who had argued with Al-Rifai
a few hours earlier.
Focusing on the victim’s statement, Peterson attacks Obed’s recollection of what AlRifai said during the shooting. At trial, Obed testified (through an interpreter): “First shot
he shot Tyrek. Tyrek implied to him [sic], this guy came back.” The prosecutor clarified that
the victim did not say the shooter’s name, but “just said he came back.” Petitioner argues
that this was inconsistent with Obed’s testimony at the preliminary examination that the
victim “didn’t say anything, only told me help me.” Inquiry on this point could reasonably
be expected to have invited Obed to explain more clearly what, if anything, the victim had
said as he was being shot and reinforce Obed’s own testimony that Peterson had come back
to shoot Al-Rifai.
Account of the Shooting. Finally, and relatedly, petitioner maintains that defense
counsel should have impeached Obed with two details from his account of the shooting
during the preliminary examination. First, although Obed seemed to have said that the victim
was both shot and struck with the rifle, he clarified later during the preliminary examination
that the victim was shot but not hit with the rifle. This confusion does not represent an
inconsistency or provide a basis to undermine Obed’s credibility. Second, Obed testified at

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the preliminary examination that the victim tried to catch the shooter and “do something with
him,” but was not able to, came back inside, and died. Petitioner insisted on direct appeal
that this account was inconsistent with the medical evidence. However, as the state court
explained, the medical evidence established only that one of the wounds would have been
almost immediately fatal but could not determine the order in which the wounds were
inflicted. The state court rejected this claim on the merits, emphasizing that the central issue
was not how long the victim survived but whether petitioner was the person who committed
this crime.
Under Strickland, trial counsel’s performance must be judged on the facts of the case,
viewed from counsel’s perspective at the time, and recognizing that “counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. This is not a
case like Higgins in which defense counsel’s complete refusal to cross-examine the
prosecution’s key witness fell below an objective standard of reasonableness. See Higgins
v. Renico, 470 F.3d 624, 632-33 (6th Cir. 2006). Here, petitioner has not demonstrated that
the failure of trial counsel to attempt to impeach the eyewitness with minor inconsistencies,
immaterial discrepancies, or details omitted from the initial statement to police fell outside
the wide range of reasonable professional assistance. Nor has petitioner demonstrated that
this impeachment could have sufficiently undermined Obed’s credibility so as to create “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different.” Strickland, 466 U.S. at 694. Moreover, petitioner
cannot overcome the further deference applicable to the one impeachment claim that was
adjudicated on the merits.
B.

In-Court Identification
Peterson claims that trial counsel rendered ineffective assistance by failing to move

to suppress the in-court visual and voice identification of him as the shooter. The Michigan
Court of Appeals rejected this claim, explaining that defense counsel was not required to
make futile or useless motions and that petitioner failed to identify any basis on which the
eyewitness identification testimony could have been suppressed. This determination is
entitled to AEDPA deference.3
Petitioner argues that the eyewitness visual and voice identification testimony should
be approached with caution, relying on arguments presented in an amicus brief filed with the
Supreme Court in the now-decided case of Perry v. New Hampshire, 132 S. Ct. 716 (2012),
and research such as Perrachione & Wong, Learning to Recognize Speakers of a Non-Native
Language, 45 Neuropsychologia 1899, 1906-07 (2007). However, the Court in Perry
rejected the contention that due process requires pretrial inquiry into the reliability of all
suggestive eyewitness identifications and declined to extend such pretrial screening to cases

3

To the extent that petitioner suggests that the failure to make a motion to exclude the identification
evidence could not be objectively reasonable because counsel had “nothing to lose” by making the motion,
the Supreme Court has specifically repudiated a “nothing to lose” standard for evaluating Strickland claims.
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“This Court has never established anything akin to the
Court of Appeals’ ‘nothing to lose’ standard for evaluating Strickland claims.”).

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in which the suggestive circumstances were not arranged by law enforcement officers. See
132 S. Ct. at 723 n.4 (abrogating Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986)).
The Supreme Court has adopted a two-step approach for determining whether to
exclude eyewitness identification testimony as a violation of due process in Neil v. Biggers,
409 U.S. 188 (1972), and Manson v. Brathwaite, 432 U.S. 98 (1977). The court must first
assess whether the identification was unnecessarily suggestive and then assess whether
“under all the circumstances, that suggestive procedure gave rise to a substantial likelihood
of irreparable misidentification.” Manson, 432 U.S. at 107; see Howard v. Bouchard, 405
F.3d 459, 469 (6th Cir. 2005).
Further, unless there is “a very substantial likelihood of irreparable misidentification,”
identification evidence “is for the jury to weigh.” Manson, 432 U.S. at 116. The Court in
Manson identified five factors to consider in determining whether a suggestive identification
was nonetheless reliable: (1) the opportunity to view the suspect at the time of the crime; (2)
the degree of attention at the time of observation; (3) the accuracy of the prior description of
the suspect; (4) the level of certainty demonstrated by the witness at the time of the
identification; and (5) the length of time between the crime and the identification. Id. at 114;
see also Haliym v. Mitchell, 492 F.3d 680, 704 (6th Cir. 2007); United States v. Hill, 967
F.2d 226, 230 (6th Cir. 1992).
Here, as outlined previously, Obed had the opportunity to view the shooter from a
distance of about ten feet, while protected behind bullet-proof glass, for as long as it took to

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struggle over the door and discharge four shotgun rounds. Obed observed the shooter with
a “heightened degree of attention, as compared with ‘disinterested bystanders or casual
observers.’” United States v. Crozier, 259 F.3d 503, 511 (6th Cir. 2001). Yet, he was not
the victim or in danger himself. Obed’s description was consistent with Peterson, and he did
not waver or indicate uncertainty about the identity of the shooter.

Rather, Obed

affirmatively stated and consistently testified that he knew the shooter because he was a
regular customer and had been in the store arguing with the victim earlier that evening.
Petitioner cannot establish that failure to make a motion to exclude the eyewitness
identification constituted ineffective assistance of counsel, much less than that the state
court’s rejection of this claim was objectively unreasonable.4
C.

Missing Witness
One witness was not produced at trial—Kenneth Taylor, who gave a statement on the

night of the shooting in which he said he saw two men flee from the area after the shooting.5
Taylor’s statement was not offered into evidence, and the prosecution moved to remove him

4

Citation to Reamer v. United States, 229 F.2d 884 (6th Cir. 1956), does not provide support for this
claim because it did not involve the admissibility of the voice identification testimony. Rather, this court
reversed on sufficiency of the evidence grounds where an uncorroborated voice identification was the only
evidence identifying the defendant as one of the bank robbers.
5

Taylor’s statement reported that he had heard gunshots from a nearby porch north of Warren
Avenue, walked to Warren, and saw two men on the other side of Warren running east from the area of the
Citgo station and then south away from him on Hurlburt. Taylor said he “didn’t get a good look at the men”
and gave the following descriptions: (1) the man with the “long gun” was a black male, 30-35, 6’1,” 160
lbs., and was wearing a black hooded sweatshirt, dark blue 3/4 coat, and blue jeans; and (2) the other man
was a black male 25, 5’ 10” heavy set, was wearing a dark 3/4 coat and dark baseball cap, and was walking
with a limp like he had hurt his right leg.

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from its witness list. Defense counsel requested a favorable missing-witness instruction, and
the prosecution made a proffer outside the presence of the jury outlining the unsuccessful
efforts that had been made to locate Taylor both for the preliminary examination and for trial.
Finding that reasonable efforts and due diligence had been undertaken to find Taylor, the trial
judge denied the request for the instruction. Peterson argued on direct appeal not only that
the trial court erred, but also that defense counsel was ineffective because he had failed to
investigate Taylor’s whereabouts himself. Both claims were rejected on the merits.
Petitioner claims counsel rendered ineffective assistance by failing to attempt to locate
Taylor and ask him to testify. The proffer made by Sgt. Williams established the many
attempts that were made to contact Taylor—including checking jails, hospitals, utility and
phone companies, and the post office—and that Taylor had reportedly moved and left no
forwarding address. Although Sgt. Williams conceded that he had not tried to call the car
wash that was listed as Taylor’s place of employment on his witness statement, there was no
evidence that Taylor, who had reportedly moved and left no forwarding address, was still
working at the car wash at the time of trial. Nor does the evidence show that Taylor was a
promising witness whose whereabouts should have been investigated. See Workman v. Tate,
957 F.2d 1339, 1345 (6th Cir. 1992). Further, a decision not to search for Taylor was
reasonable since his description from a distance of the fleeing man with the “long gun” was
consistent with petitioner and did not suggest that it could lead to exculpatory evidence.

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A separate claim asserted that the trial court erred in finding that due diligence had
been exercised and rejecting the requested instruction. We agree with the district court that
petitioner has not demonstrated a denial of due process because he cannot show that the
instructions, as a whole, were so infirm that they rendered the entire trial fundamentally
unfair. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). The state court also explained that
“the prosecutor no longer has a duty to produce res gestae witnesses and may add or delete
a witness at any time by leave of the court for good cause shown.” Not only does the record
support the state court’s due-diligence determination, but the Sixth Amendment does not
compel the government to produce all witnesses competent to testify. United States v.
Moore, 954 F.2d 379, 381 (6th Cir. 1992). When viewed through the lens of AEDPA
deference, these claims do not warrant habeas relief.
D.

Motion to Suppress Evidence
The state courts rejected on the merits the claim that trial counsel was ineffective

because he did not make a motion to suppress the ammunition seized during the search of a
house where Peterson resided. The search was conducted without a warrant, but with the
undisputed written consent of Peterson’s mother, Janie Peterson, who owned that house and
the house next door. The Michigan Court of Appeals reasoned that the record permitted a
reasonable inference that petitioner’s mother was authorized to give the uncontested written
consent to search.

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Consent is a well-recognized exception to the Fourth Amendment’s warrant
requirement. See Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990). Police may obtain
consent from one who has actual or apparent authority over the premises. Id. at 186.
Peterson argues that his mother did not have actual authority to consent to the search because
she had agreed that he could be the sole occupant and told Sgt. Williams as much.6 As the
district court recognized, however, actual authority may be established where consent is
obtained from one with common access or control of the premises for most purposes. United
States v. Matlock, 415 U.S. 164, 171 n.7 (1974); see also United States v. Ayoub, 498 F.3d
532, 537 (6th Cir. 2007). Moreover, apparent authority exists when “the facts available to
the officer at the moment . . . warrant a man of reasonable caution in the belief that the
consenting party had authority over the premises.” Rodriguez, 497 U.S. at 188 (internal
quotation marks and citation omitted); see also United States v. Burcham, 388 F. App’x 478,
482 (6th Cir. 2010).
The record evidence available to trial counsel supported a reasonable inference that
Janie Peterson, the homeowner, had authority to consent to the search of the home. Though
the initial police report stated that she resided in the home next door, it did not contest the
officer’s testimony that he met her at the home searched and that she described her son as an
infrequent resident there. Nor did it contradict the officer’s testimony that he found the
ammunition in plain sight on the kitchen floor. Presented with this evidence, trial counsel
6

A later affidavit by Janie Peterson stated that she owned the house and that she had a verbal
agreement allowing petitioner to live at and be the only occupant of 5139 Pennsylvania.

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reasonably attempted to disassociate Toran Peterson from his mother’s home. And, thus, the
state court did not unreasonably apply Strickland in rejecting this claim.
E.

Additional Claims
After Obed’s testimony was complete and during the testimony of the police evidence

technician, Peterson interrupted the proceedings to voice complaints about his attorney and
the jury was removed. Peterson complained that his attorney was not doing what he wanted
him to and said he did not want counsel to represent him. Court was adjourned for the day
to allow Peterson to consult with his attorney. The following morning, the trial judge heard
Peterson’s complaints, declined to order a mistrial, and advised him of the pitfalls of selfrepresentation. Peterson said he wanted to represent himself until he learned that Obed could
not be reached and had been told the day before that he had been excused. Peterson agreed
to have counsel represent him, and counsel’s motion to withdraw was denied.
1.

Recall of Obed

Peterson argues that he was denied his right to a fair trial and due process by trial
counsel’s failure to object when the trial court (incorrectly) determined that Obed had been
excused. This ineffective-assistance-of-counsel claim was raised in the motion for relief
from judgment and denied for failure to comply with MCR 6.508(D)(3). The district court
found this claim was both procedurally defaulted and without merit.
Notwithstanding Peterson’s insistence to the contrary, the record supports the trial
judge’s statement that Obed had been excused the day before Peterson asked to recall him

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and that an unsuccessful attempt was made to contact him. As such, Peterson cannot show
that counsel’s failure to challenge the trial judge on that point fell below an objectively
reasonable standard of conduct.

Further, having already evaluated the avenues of

impeachment Peterson wanted to pursue in the context of the failure-to-impeach claims, we
conclude that Peterson has not demonstrated prejudice from the inability to further crossexamine Obed. Because this claim does not warrant habeas relief, we need not decide the
question of procedural default.
Petitioner attempts to reframe this issue as a violation of his right to confrontation, but
the legal basis for this distinct claim was not fairly presented to the state courts. See Hicks
v. Straub, 377 F.3d 538, 552 (6th Cir. 2004). Even if that were not the case, Peterson’s
inability to recross-examine Obed in an attempt to impeach him with the purported
inconsistencies would not establish a denial of the right to confrontation. See Delaware v.
Van Arsdall, 475 U.S. 673, 678-79 (1986) (trial courts have wide discretion to limit crossexamination); Dorsey v. Parke, 872 F.2d 163, 167 (6th Cir. 1989) (explaining that when the
extent of cross-examination is limited, we ask whether the jury nonetheless had enough
information to assess the defense theory).
2.

Substitute Counsel

Peterson renews his clam that the trial court’s failure to grant the motion for substitute
counsel based on a complete breakdown of the attorney-client relationship denied him
effective assistance of counsel. In particular, Peterson complained that counsel belittled him

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and called him stupid, failed to make pretrial motions (including the suppression motions
discussed earlier), and refused to make the objections he wanted or to ask the questions he
wanted asked (including the impeachment of Obed). The state court rejected Peterson’s
claim that the trial court erred in refusing to grant a mistrial or allow appointed counsel to
withdraw mid-trial.
The Sixth Amendment right to counsel does not guarantee “a ‘meaningful
relationship’ between an accused and his counsel.” Morris v. Slappy, 461 U.S. 1, 14 (1983).
Although Peterson relies on a Ninth Circuit decision finding that being forced to proceed
with appointed counsel despite the complete breakdown of the attorney-client relationship
violated the right to counsel, the en banc court vacated that decision precisely because the
state court decision denying new counsel was not contrary to or an unreasonable application
of clearly established Supreme Court precedent. See Plumlee v. Masto, 512 F.3d 1204 (9th
Cir. 2008) (en banc), rev’g Plumlee v. Sue del Papa, 426 F.3d 1095 (9th Cir. 2005).
Peterson further argues that the trial court failed to make the inquiry this court would
require of a district court considering a defendant’s request for substitute counsel. See
United States v. Mooneyham, 473 F.3d 280, 291 (6th Cir. 2007). Not only does it appear that
the trial court made sufficient inquiry, the failure to do so could not be the basis for relief
under AEDPA because such inquiry is not required by clearly established Supreme Court
precedent. See Brooks v. Lafler, 454 F. App’x 449, 452 (6th Cir. 2012) (per curiam) (finding
requirement that court inquire into good cause was not clearly established Federal law);

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James v. Brigano, 470 F.3d 636, 643 (6th Cir. 2006) (reversing a grant of relief because the
inquiry requirement was not clearly established Federal law). Of course, that would not
preclude petitioner from seeking relief on the grounds that the refusal to appoint new counsel
resulted in a denial of effective assistance of counsel at trial. Brooks, 454 F. App’x at 452
(relying on Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989) (“those
who do not have the means to hire their own lawyers have no cognizable complaint so long
as they are adequately represented by attorneys appointed by the courts”)). However, as the
state court also concluded, Peterson has not shown that trial counsel rendered ineffective
assistance of counsel. This claim does not warrant habeas relief.
III.
The district court’s judgment is AFFIRMED and the petition for habeas relief is
DENIED.