Kelly v. Romanowski et al

Filing 17

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability and Leave to Proceed in Forma Pauperis on Appeal. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
BERNARD KELLY, #526389,
Petitioner,
v.

Case No. 12-cv-11005
Honorable Thomas L. Ludington

KENNETH ROMANOWSKI,
Respondent.
__________________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
Michigan prisoner Bernard Kelly (“Petitioner”) seeks the issuance of a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of two counts of assault with
intent to commit murder, MICH. COMP. LAWS § 750.83, and one count of possession of a firearm
during the commission of a felony, MICH. COMP. LAWS § 750.227b, following a jury trial in the
Wayne County Circuit Court. He was sentenced to concurrent terms of 18 years and 9 months to
30 years imprisonment on the assault convictions and a consecutive term of two years
imprisonment on the felony firearm conviction in 2006. In his petition, he raises 30 claims
concerning his right to counsel of choice; the bindover decision and the reinstatement of charges;
the admission of other acts evidence; the conduct of the prosecutor; his federal and state speedy
trial rights; pre-arrest delay; his right to be present at trial; the suppression of evidence; the
effectiveness of trial and appellate counsel; the sufficiency of the appellate record; his selfrepresentation rights; the denial of a new trial motion; and cumulative error. Petitioner’s claims

lack merit and his petition will be denied. A certificate of appealability and leave to proceed in
forma pauperis on appeal will also be denied.
I.
Petitioner’s convictions arise from his shooting assault upon his toddler daughter and her
mother at the woman’s home in Detroit, Michigan on February 19, 2002. The Court adopts the
statement of facts set forth by the Michigan Court of Appeals, which is presumed correct on
habeas review. See 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
Those facts are as follows:
The complainant, Charity Smith, met defendant in 1999. Smith and defendant had
a casual sexual relationship, and Smith became pregnant. Defendant repeatedly
expressed his desire to not be a father. He asked Smith to have an abortion, told
her that he hoped the baby would die in utero, and threatened to make her life
miserable if she gave birth to the child. Defendant also threatened to kill both
Smith and their child. Bravely, Smith chose to have the baby. She gave birth to
their daughter, Amorie Smith, on April 14, 2000.
After Amorie’s birth, Smith filed a petition to obtain child support. Genetic
testing established that defendant was Amorie’s father. Defendant signed an
affidavit of parentage and was ordered to pay child support. The payments were
deducted directly from his paychecks.
On February 19, 2002, defendant called Smith and threatened to kill her and
Amorie because he did not want to pay child support. Smith ended the call, but
defendant called back and screamed that he hoped that she and Amorie would die.
Smith immediately called the police to report the incident and was told that an
officer would contact her the following day. Approximately 25 minutes later,
Smith was sitting on the floor of her bedroom, talking on the phone and watching
Amorie play with the window blinds. Smith heard two taps and told Amorie to get
away from the window. As Amorie moved away from the window, a gun was
fired through the window and into the room. Smith, who used her body to shield
Amorie from the gunshots, was hit seven times. Smith could not see who fired the
shots. She managed to call the police and hid in the bathroom with Amorie until
they arrived. The shooter went to the front door and tried to kick it down, but fled
when he heard police sirens. After this incident, Smith had no further contact with
defendant.
Officers investigating the shooting recovered four .25 caliber shell casings outside
Smith's bedroom window. Defendant’s friend, Ivan Stepney, testified that
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defendant possessed a .25 caliber handgun. Stepney also claimed that defendant
had told him on more than one occasion that he did not understand why a woman
would have a child knowing that the father would not be in that child’s life.
People v. Kelly, No. 269918, 2007 WL 2118799, *1-2 (Mich. Ct. App. July 24, 2007)
(unpublished). At the close of trial, the jury found Petitioner guilty of the charged offenses and
the trial court sentenced him to the terms of imprisonment previously set forth.
Following sentencing, Petitioner filed an appeal of right with the Michigan Court of
Appeals raising the following claims:
I.

He was denied his counsel of choice.

II.

He was denied due process when the state circuit court reversed the state
district court’s dismissal of the charges and bound him over for trial.

III.

He was denied due process when the charges against him were reinstated
after the case had been dismissed.

IV.

He was denied due process by the admission into evidence of his prior,
uncharged crimes.

V.

He was denied due process and a fair trial when he was denied the right to
a speedy trial and the right to be tried within 180 days of incarceration.

VI.

He was denied due process when the prosecutor vouched for the victim’s
testimony.

VII.

He was denied due process when the prosecutor poisoned the entire trial
with character assassination when attempting to demonstrate improper
motive.

VIII.

He was denied due process when he was not afforded a second
preliminary examination in order to properly inform him of the nature of
the accusations against him after a prior dismissal of the charges.

IX.

He was denied due process when the court failed to re-arraign him on the
information.

X.

He was denied due process and a fair trial by the 2½ year delay in arrest.

XI.

He was denied due process when the prosecutor improperly vouched for
the credibility of the victim.

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XII.

He was denied due process when the court denied him the right to be
present at trial and by his forced absence at a critical stage of trial.

XIII.

He was denied due process when the prosecutor suppressed evidence
favorable to the defense.

XIV. He was denied his right to the effective assistance of counsel for numerous
reasons.
The Michigan Court of Appeals denied relief on those claims and affirmed his convictions and
sentences. Id. Petitioner filed an application for leave to appeal with the Michigan Supreme
Court, which was denied in a standard order. People v. Kelly, 480 Mich. 991, 742 N.W.2d 123
(2007).
Petitioner subsequently filed a motion for relief from judgment with the state trial court
raising the following claims:
I.

He was denied his right to due process when the state circuit court failed
to provide an adequate pretrial/trial record of occurrences which precluded
the possibility of full and fair appellate review.

II.

He was denied the effective assistance of appellate counsel when appellate
counsel failed to provide the appellate court with sufficient facts to
support his claims, failed to provide him with transcripts, and failed to
raise the issues raised in his motion for relief from judgment.

III.

He was denied his rights to procedural due process and the effectiveness
of trial and appellate counsel when he was brought to trial without being
arraigned on the information in circuit court to properly inform him of the
charges against him.

IV.

He was denied due process and the effective assistance of counsel when
trial counsel failed to move for a directed verdict at trial and appellate
counsel failed to challenge the sufficiency of the evidence on direct
appeal.

V.

He was denied due process when the trial court failed to advise him of the
risks involved in self representation, the minimum/maximum prison
sentence, the charged offense, the opportunity to consult with counsel after
a request for substitute counsel was denied, and the continued right to a
lawyer’s assistance.

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VI.

He was denied due process when the trial court abused its discretion by
failing to follow prescribed procedure in making the determination as to
whether there was a breakdown in the attorney client relationship that
required substitution of defense counsel.

VII.

He was denied his right to counsel and due process when the court
removed him from the courtroom and failed to provide him with access to
the court or defense counsel.

VIII.

The trial court committed constitutional error when the decision was made
to proceed in his absence without providing him with a sufficient
opportunity to reclaim the right to be present and testify.

IX.

He was denied due process when the prosecutor failed to investigate and
present attainable facts and evidence showing the whole transaction at
trial.

X.

He was denied his right to the effective assistance of counsel where
counsel failed to object to improper comments or request curative
instructions, failed to object to a 14-day rule violation, failed to investigate
the circumstances of the dismissal and reinstatement of the charges or to
request an interlocutory appeal, and failed to object to the introduction of
photographic lineup evidence used to support prior bad acts.

XI.

He was denied due process and the effective assistance of counsel when
defense counsel failed to obtain and investigate police reports filed by the
complainant against him prior to the shooting.

XII.

He was denied the effective assistance of trial counsel when counsel failed
to move the court for a continuance to locate/interview a new witness
discovered at trial.

XIII.

He was denied due process and the effective assistance of counsel when
defense counsel failed to investigate the circumstances involving the intent
of the perpetrator.

XIV. He was denied due process and the effective assistance of counsel when
counsel failed to move the court to dismiss the charge against him due to
prosecutorial vindictiveness.
XV.

He was denied due process when the trial court erred by denying his
motion for new trial without a Ginther hearing.

XVI. The cumulative effect of errors committed at trial denied him his
constitutional right to due process.

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The trial court denied the motion pursuant to Michigan Court Rule 6.508(D)(2) and (3). People
v. Kelly, No. 05-012153-01 (Wayne Co. Cir. Ct. Feb. 10, 2009). The trial court also denied
Petitioner’s motions for disqualification and reconsideration. People v. Kelly, No. 04-012153-01
(Wayne Co. Cir. Ct. June 4, 2009). Petitioner filed an application for leave to appeal with the
Michigan Court of Appeals, which was ultimately denied “for failure to establish entitlement to
relief under MCR 6.508(D).” People v. Kelly, No. 298250 (Mich. Ct. App. Jan. 5, 2011).
Petitioner then filed an application for leave to appeal with the Michigan Supreme Court which
was similarly denied. People v. Kelly, 490 Mich. 857, 802 N.W.2d 347 (2011). The court also
denied reconsideration. People v. Kelly, 490 Mich. 975, 806 N.W.2d 309 (2011).
Petitioner thereafter submitted his federal habeas petition, raising the same claims
presented to the state courts on direct appeal and collateral review of his convictions. Respondent
has filed an answer to the petition contending that it should be denied because the claims lack
merit and/or are procedurally defaulted. Petitioner has filed a reply to that answer.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides the
standard of review for federal habeas cases brought by state prisoners. AEDPA provides in
relevant part:
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.
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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)). “[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); Bell, 535 U.S. at 694. In order for a federal
court to find a state court’s application of 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).
“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). 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, 131 S. Ct. 770, 786
(2011) (citing 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. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Under §
2254(d), “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
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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 habeas relief in federal court, a state
prisoner must 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.” Id.
Section 2254(d)(1) limits a federal habeas 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). 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, 131 S. Ct. at 785. It also “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). Additionally, while the requirements of “clearly established law” are
determined solely by Supreme Court precedent, the decisions of lower federal courts may be
useful in assessing the reasonableness of the state court’s resolution of an issue. See Stewart v.
Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th
Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal habeas
review. 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear
and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Habeas review
is “limited to the record that was before the state court.” Cullen v. Pinholster, 131 S. Ct. 1388,
1398 (2011).
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III.
As an initial matter, Respondent contends that several of Petitioner’s claims are barred by
procedural default. Respondent contends that certain claims are defaulted because Petitioner
failed to make proper objections at trial and the Michigan Court of Appeals relied upon that
failure to deny relief on direct appeal and that other claims are defaulted because Petitioner failed
to raise those claims on direct appeal and the Michigan courts denied relief on collateral review
based upon Michigan Court Rule 6.508(D). On habeas review, however, federal courts “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. Such is the case here. The procedural
issues are complex and the substantive claims are more readily decided on the merits.
Accordingly, the Court need not address the procedural default issues and shall proceed to the
merits of Petitioner’s claims.
IV.
A.
Petitioner first asserts that he is entitled to habeas relief because he was denied his right
to counsel of choice and the trial court did not follow proper procedures in denying his request
for substitute counsel (Habeas Claims I, XX). Petitioner raised this claim on direct appeal and
again on collateral review in the state courts. On direct appeal, the Michigan Court of Appeals
ruled that the claim lacked merit and denied relief. The court explained:
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First, defendant argues that he was denied due process and his right to counsel of
his choice when the trial court refused his request for substitute counsel. We
disagree. We review the trial court’s decision regarding defendant’s right to the
counsel of his choice for an abuse of discretion. People v. Akins, 259 Mich App
545, 556; 675 NW2d 863 (2003). We defer to the trial court’s judgment when the
trial court chooses an outcome that falls within the range of reasonable and
principled outcomes. People v. Babcock, 469 Mich 247, 269; 666 NW2d 231
(2003). A strong presumption exists that defendant received effective assistance
of counsel, and defendant bears the burden of proving that his counsel’s actions
did not constitute sound trial strategy. People v. Mitchell, 454 Mich 145, 156; 560
NW2d 600 (1997), citing Strickland v. Washington, 466 US 668, 689; 104 S Ct
2052; 80 L Ed 2d 674 (1984).
Both the United States and Michigan Constitutions guarantee the right to effective
assistance of counsel in order to protect a criminal defendant’s right to a fair trial.
U.S. CONST. amend. VI; Const. 1963, art 1, § 20; Strickland, supra at 684.
However, an indigent defendant is not entitled to choose his appointed counsel,
and the decision to substitute counsel is within the trial court’s discretion. People
v. Russell, 471 Mich 182, 192 n 25; 684 NW2d 745 (2004).
“Appointment of a substitute counsel is warranted only upon a showing of good
cause and where substitution will not unreasonably disrupt the judicial process.
Good cause exists where a legitimate difference of opinion develops between a
defendant and his appointed counsel with regard to a fundamental trial tactic.”
[People v. Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001), quoting
People v. Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991).]
There is no indication that defendant had good cause to justify substitution of
counsel, and there is no showing that counsel did not zealously advocate on his
behalf. On the first day of trial, before the proceedings began, defense counsel
indicated to the judge that although she was prepared for trial, defendant was not
happy with her representation. However, defense counsel noted that she met with
defendant, represented him during the preliminary examination and pretrial
proceedings, interviewed the witness that defendant identified and determined that
this potential witness’s testimony was irrelevant to the case, and subpoenaed
telephone records for the telephone numbers that defendant gave her, only to find
that the records no longer existed. Despite receiving this representation, defendant
argued that he would not receive a fair trial if he continued to be represented by
his present attorney, and that he did not have the opportunity to discuss picking a
jury with his attorney. The trial court, he claimed, should have granted him an
extension. However, matters of professional judgment and trial strategy are
entrusted to the attorney. Traylor, supra at 463. Defendant is not entitled to a new
attorney merely because his trial attorney failed to discuss jury selection with him.
Further, defendant waited until the day of trial to raise this objection. A
substitution of counsel at this point in the proceedings would have required
delaying proceedings and rescheduling the trial, unreasonably disrupting the
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judicial process. Accordingly, the trial court did not abuse its discretion when it
refused to substitute defendant’s counsel on the day of trial.
Kelly, 2007 WL 2118799 at *1-2.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The Sixth Amendment to the United States
Constitution provides for the right to counsel. U.S. CONST. amend. VI. The right to counsel
encompasses the right to counsel of choice, but that right is generally cognizable only to the
extent that a defendant can retain counsel with private funds; an indigent defendant does not
have an absolute right to choose appointed counsel. United States v. Gonzalez-Lopez, 548 U.S.
140, 151 (2006). An indigent defendant who is dissatisfied with appointed counsel must show
“good cause” to warrant the substitution of counsel because an indigent defendant does not have
an absolute right to counsel of choice. United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990).
The decision regarding whether to appoint new counsel at a defendant’s request is committed to
the sound discretion of the trial court. United States v. Trujillo, 376 F.3d 593, 606 (6th Cir.
2004).
The United States Court of Appeals for the Sixth Circuit has cited three factors to
consider when evaluating a trial court’s denial of a request for substitute counsel: (1) the
timeliness of the motion; (2) the adequacy of the court’s inquiry into the defendant’s complaint;
and (3) whether the conflict between the attorney and the defendant is so great that it results in a
total lack of communication preventing an adequate defense. Benitez v. United States, 521 F.3d
625, 632 (6th Cir. 2008) (citing Iles, 906 F.2d at 1131, n.8). These factors are balanced with the
public’s interest in the prompt and efficient administration of justice. Iles, 906 F.2d at 1131, n.8
(citing Wilson, 761 F.2d at 280); see also United States v. Mack, 258 F.3d 548, 556 (6th Cir.
2001).
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Petitioner has not shown good cause for the substitution of appointed counsel under the
multi-factor test employed by the Sixth Circuit. The first factor, the timeliness of the request,
weighs against Petitioner because his request on the first day of trial was untimely. See Trujillo,
376 F.3d at 606 (request for substitute counsel made three days before trial was untimely); see
also United States v. Chambers, 441 F.3d 438, 447 (6th Cir. 2006) (request for substitute counsel
made one and a half months before trial was untimely). The second factor, the adequacy of the
court’s inquiry, weighs in Petitioner’s favor to some degree because the trial court did not allow
him to fully explain his concerns about trial counsel, but against Petitioner to the extent that the
trial court discussed the issue with trial counsel and confirmed that counsel was ready and able to
represent Petitioner at trial. The third factor, whether a conflict between trial counsel and
Petitioner was so great that it resulted in a total lack of communication preventing an adequate
defense, weighs against Petitioner because he fails to show that there was any such conflict.
Rather, the record indicates that counsel investigated matters requested by Petitioner and that
they were able to communicate and work together well enough to present an adequate defense at
trial. While Petitioner asserts that trial counsel did not consult with him about jury selection
and/or was ineffective in certain respects, he has not substantiated those allegations—and neither
the state courts nor this Court have found the underlying ineffective assistance of counsel claims
to be meritorious. See discussion infra. The last factor, the public’s interest in the prompt and
efficient administration of justice, also weighs against Petitioner because the substitution of
counsel would have delayed the trial and resulted in additional costs to the parties and the court.
Petitioner fails to establish that substitute counsel was warranted. More importantly, for purposes
of federal habeas review, he fails to show that the Michigan Court of Appeals’ ruling on this
issue was unreasonable. Habeas relief is not warranted on this claim.
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B.
Petitioner next asserts that he is entitled to habeas relief because he was denied due
process when the state circuit court reversed the state district court’s refusal to bind him over for
trial and reinstated the charges against him without conducting a second arraignment or
preliminary examination (Habeas Claims II, III, VIII, IX). Petitioner raised these claims on direct
appeal and the Michigan Court of Appeals denied relief. As to the bind-over decision, the court
found that Petitioner had failed to preserve the issue and that the claim lacked merit because
there was probable cause to bind him over for trial. Kelly, 2007 WL 2118799 at *2-4. As to the
reinstatement of charges, the court found that Petitioner was not entitled to another preliminary
examination under state law and that he had not shown that the reinstatement of the charges
constituted harassment or violated his due process rights because the prosecutor properly
appealed the state district court’s bind-over ruling to the state circuit court. Id. at *4. The court
further found that Petitioner was appropriately given arraignments on the warrant and the
information and given a preliminary examination on the charges so as to satisfy due process. Id.
at *10.
The state court’s denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The United States Supreme Court has held
that the Federal Constitution does not require that a probable cause hearing be conducted prior to
a criminal trial. Gerstein v. Pugh, 420 U.S. 103, 119, 125 n.26 (1975). Accordingly, the bindover decision constitutes a state law issue which does not implicate a federal constitutional right
and is not subject to review in a federal habeas proceeding. See Schacks v. Tessmer, No. 001062, 2001 WL 523533, *6 (6th Cir. May 8, 2001) (unpublished) (refusing to review state court
determination that second-degree murder conviction rendered bind-over sufficiency of the
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evidence challenge moot); Dorchy v. Jones, 320 F. Supp. 2d 564, 578-79 (E.D. Mich. 2004)
(denying habeas relief on state prisoner’s claim that there was insufficient evidence to bind him
over for trial); see also Estelle v. McGuire, 502 U.S. 62, 67 (1991) (ruling that habeas relief is
not available for perceived violations of state law).1
Petitioner fails to establish a violation of his constitutional rights. There is no evidence
that the bind-over decision and/or the reinstatement of charges was the product of harassment or
other impropriety. Additionally, as explained by the Michigan Court of Appeals, Petitioner was
given sufficient notice of the charges against him and accorded all of the process he was due
during the pre-trial proceedings. Habeas relief is not warranted on these claims.
C.
Petitioner asserts that he is entitled to habeas relief due to the admission of other acts
evidence—his interactions with another woman with whom he had a child and the day care
shooting in which he killed that three-year-old daughter and injured her day care provider
(Habeas Claim IV). The Michigan Court of Appeals denied relief on this claim, finding that the
evidence was properly admitted under state law as evidence of a common plan, scheme, or
system, as evidence of motive, and as evidence of Petitioner’s identity as the shooter. Kelly, 2007
WL 2118799 at *5-6.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. A federal court may only grant habeas relief
to a person who is “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Alleged trial court errors in the application of state procedure or
evidentiary law are generally not cognizable as grounds for federal habeas relief. Estelle v.
1

Even under Michigan law, any error in the preliminary examination proceeding is considered harmless
once a valid conviction has been obtained. See People v. Hall, 435 Mich. 599, 610-12, 460 N.W.2d 520 (1990).

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McGuire, 502 U.S. 62, 67-68 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). “Trial
court errors in state procedure and/or evidentiary law do not rise to the level of federal
constitutional claims warranting relief in a habeas action, unless the error renders the proceeding
so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth
Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (quoting Estelle, 502 U.S. at
69-70); see also Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500
F.3d 514, 519-20 (6th Cir. 2007)); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
Accordingly, to the extent that Petitioner asserts that the trial court erred in admitting the
testimony under Michigan law, he merely alleges a state law violation which does not justify
federal habeas relief. Bey, 500 F.3d at 519. State courts are the final arbiters of state law and the
federal courts will not intervene in such matters. Lewis, 497 U.S. at 780; see also Bradshaw v.
Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002).
Additionally, as to the admission of other acts, the United States Supreme Court has
declined to hold that similar “other acts” evidence is so extremely unfair that its admission
violates fundamental conceptions of justice. Dowling v. United States, 493 U.S. 342, 352-53
(1990). Thus, “[t]here is no clearly established Supreme Court precedent which holds that a state
violates due process by permitting propensity evidence in the form of other bad acts evidence.”
Bugh, 329 F.3d 496, 512 (6th Cir. 2003). Consequently, there is no Supreme Court precedent
that the state court decisions could be deemed “contrary to” under 28 U.S.C. § 2254(d)(1). Id. at
513; Adams v. Smith, 280 F. Supp. 2d 704, 716 (E.D. Mich. 2003). Petitioner thus fails to state a
claim upon which habeas relief may be granted as to this issue.
Furthermore, even if Petitioner states a cognizable claim, he is not entitled to relief. He
has not shown that the admission of the other acts evidence rendered his trial fundamentally
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unfair. The other acts evidence was relevant and admissible on the issue of common plan,
scheme, or system, as well as motive and identity under Michigan Rule of Evidence 404(b). The
prosecution did not make an improper propensity argument at trial and the trial court instructed
the jury on the proper consideration of the evidence. Jurors are presumed to follow the court’s
instructions. See Penry v. Johnson, 532 U.S. 782, 799 (2001) (citing Richardson v. Marsh, 481
U.S. 200, 211 (1987)); United States v. Powell, 469 U.S. 57, 66 (1984) (“Jurors . . . take an oath
to follow the law as charged, and they are expected to follow it.”). Petitioner fails to establish
that the admission of the other acts evidence was erroneous or, more importantly, that it rendered
his trial fundamentally unfair. Habeas relief is not warranted.
D.
Petitioner next asserts that he is entitled to habeas relief due to prosecutorial misconduct.
In particular, he claims that the prosecutor denigrated his character and vouched for the victim
(Habeas Claims VI, VII, XI). Petitioner raised these claims on direct appeal. The Michigan Court
of Appeals found that Petitioner failed to object at trial and ruled that he was not entitled to relief
on plain error review because the claims lacked merit. The court explained:
Defendant argues that the prosecutor committed misconduct by assassinating
defendant’s character and by vouching for Smith’s credibility. We disagree.
“Generally, a claim of prosecutorial misconduct is a constitutional issue reviewed
de novo.” People v. Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003).
However, defendant failed to preserve this issue at trial because he did not
challenge the prosecutor’s remarks, depriving the trial court of the opportunity to
cure the error. People v. Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
We review unpreserved claims of constitutional error for plain error affecting
defendant’s substantial rights. Carines, supra at 763-764.
“Generally, ‘[p]rosecutors are accorded great latitude regarding their arguments
and conduct.’ They are ‘free to argue the evidence and all reasonable inferences
from the evidence as it relates to [their] theory of the case.’” People v. Bahoda,
448 Mich 261, 282; 531 NW2d 659 (1995) (citations omitted). “We review claims
of prosecutorial misconduct case by case, examining the remarks in context, to
determine whether the defendant received a fair and impartial trial.” People v.
- 16 -

Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). A prosecutor may fairly
respond to an issue or argument raised by the defendant. People v. Fields, 450
Mich 94, 110-111; 538 NW2d 356 (1995).
In her opening statement, the prosecutor noted that defendant had two daughters,
did not want to support either daughter financially, and was upset that child
support payments were taken directly from his paychecks. He ranted to the
mother of each daughter regarding the paycheck deductions and threatened to kill
each daughter shortly before each shooting. In her closing argument, the
prosecutor noted the close timing in each case between defendant's conversations
with each mother regarding child support and the respective shootings. The
prosecutor argued that defendant was motivated to commit each crime because he
did not want to pay child support by having deductions taken from his paycheck.
The prosecutor’s arguments were supported by the evidence presented at trial and,
therefore, did not constitute misconduct.
Defendant also challenges the propriety of the prosecutor’s questions concerning
his anger regarding his required child support payments. We review a
prosecutor’s line of questioning to determine whether the prosecutor elicited the
challenged testimony in a good-faith effort to admit evidence. People v. Dobek,
274 Mich App 58, 70; 732 NW2d 546 (2007). Reversal is warranted if improper
questioning resulted in the conviction of an innocent defendant or seriously
affected the fairness, integrity, or public reputation of judicial proceedings.
People v. Ackerman, 257 Mich App 434, 449; 669 NW2d 818 (2003).
The prosecutor’s questions that elicited testimony regarding defendant’s anger
over the child support payments coming directly from his paychecks were
relevant to the case. Again, “relevant evidence is any fact that is of consequence
to the determination of the action.” People v. Fisher, 449 Mich. 441, 452; 537
NW2d 577 (1995). See MRE 401. The elicited testimony indicated that defendant
had a motive for wanting to kill his child, specifically, to eliminate the financial
burden of supporting her. Further, the prosecutor’s argument that this was
defendant’s motive may reasonably be inferred from the evidence presented.
Defendant also contends that the prosecutor impermissibly vouched for Smith’s
credibility. However, defense counsel attacked Smith’s credibility and the
truthfulness of her testimony during defendant’s closing argument. The prosecutor
fairly responded to this attack in her rebuttal argument, stating that if Smith were
a liar, she would have said that she saw defendant shoot at her and Amorie.
Considering the surrounding circumstances, the prosecutor’s remarks were not
improper.
The prosecutor also summarized how the evidence presented at trial supported
Smith’s account of the events surrounding the shooting. A prosecutor may argue
that a witness is or is not worthy of belief based on the facts. People v.
Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). Accordingly, the
- 17 -

prosecutor’s statement that Smith’s testimony was truthful does not constitute
misconduct.
Regardless, the trial court properly instructed the jury that the prosecutor’s
questions and arguments were not evidence, that the jury alone was the finder of
facts, including credibility determinations, and that it must not let sympathy or
prejudice influence its decision. Any possible error was dispelled by the trial
court’s instruction. See Bahoda, supra at 281. Accordingly, the prosecutor’s
questions and remarks did not deprive defendant of a fair trial.
Kelly, 2007 WL 2118799 at *6-7.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The United States Supreme Court has made
clear that prosecutors must “refrain from improper methods calculated to produce a wrongful
conviction.” Berger v. United States, 295 U.S. 78, 88 (1935). To prevail on a claim of
prosecutorial misconduct, however, a habeas petitioner must demonstrate that the prosecutor’s
conduct or remarks “so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see also Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly); Parker v. Matthews, 132 S. Ct. 2148,
2153 (2012) (confirming that Donnelly/Darden is the proper standard).
Petitioner fails to establish that the prosecutor’s conduct was improper and/or that it
rendered his trial fundamentally unfair. Petitioner asserts that the prosecutor “assassinated” his
character. It is inappropriate for a prosecutor to make personal attacks on a defendant or defense
counsel, see, e.g., United States v. Young, 470 U.S. 1, 9 (1985), but a prosecutor may highlight
inconsistencies or inadequacies in the defense, Bates v. Bell, 402 F.3d 635, 646 (6th Cir. 2005),
and argue the facts supporting the prosecution’s theory and the lack of evidence supporting the
defense theory. United States v. Forrest, 402 F.3d 678, 686 (6th Cir. 2005). The prosecutor’s
comments about Petitioner’s conduct with respect to his daughters and their mothers were
- 18 -

relevant to the charged offenses and were supported by the evidence presented at trial. The
prosecutor’s questions about Petitioner’s anger over child support payments were relevant to his
motive for the crime. The prosecutor did not improperly denigrate Petitioner or attack his
character.
Petitioner also asserts that the prosecutor vouched for Charity Smith’s credibility. It is
well-settled that it is improper for a prosecutor to express his or her own personal opinions as to
a witness’s credibility. Young, 470 U.S. at 9-10; Hodge v. Hurley, 426 F.3d 368, 378 (6th Cir.
2005). Such statements are improper because they “can convey the impression that evidence not
presented to the jury, but known to the prosecutor, supports the charges against the defendant”
and because the prosecutor’s opinion “may induce the jury to trust the government’s judgment
rather than its own[.]” Young, 470 U.S. at 18-19; Cristini v. McKee, 526 F.3d 888, 901 (6th Cir.
2008). The prosecutor’s remarks about Charity Smith’s credibility were proper because Smith’s
credibility was attacked by the defense at trial. Moreover, the prosecutor argued that Smith’s
testimony was supported by the other evidence at trial. It is well-established that a prosecutor
may argue reasonable inferences from the evidence, Byrd v. Collins, 209 F.3d 486, 535 (6th Cir.
2000), and may argue from the facts that a witness is or is not worthy of belief. Portuondo v.
Agard, 529 U.S. 61, 69 (2000).
Additionally, to the extent that any of the prosecutor’s remarks or questions were
improper, they were not pervasive or misleading so as to render the trial fundamentally unfair.
Any potential prejudice to Petitioner was mitigated by the fact that the trial court properly
instructed the jurors on the law, explained that the attorneys’ comments were not evidence, and
directed them not to let sympathy or prejudice influence their decision. See Knapp v. White, 296
F. Supp. 2d 766, 776 (E.D. Mich. 2003). Jurors are presumed to follow the court’s instructions.
- 19 -

See Penry v. Johnson, 532 U.S. 782, 799 (2001) (citing Richardson v. Marsh, 481 U.S. 200, 211
(1987)); United States v. Powell, 469 U.S. 57, 66 (1984) (“Jurors . . . take an oath to follow the
law as charged, and they are expected to follow it.”). Petitioner fails to establish that the
prosecutor engaged in misconduct which rendered his trial fundamentally unfair. Habeas relief is
not warranted on such a basis.
E.
Petitioner asserts that he is entitled to habeas relief because he was denied his speedy trial
rights under state and federal law (Habeas Claim V). Petitioner raised these issues on direct
appeal. The Michigan Court of Appeals denied relief, stating as follows:
Next, defendant claims that he was denied due process by the delay between his
arraignment and trial. We disagree. To preserve the issue for appeal, a defendant
must make a formal demand for a speedy trial on the record. People v. Cain, 238
Mich App 95, 111; 605 NW2d 28 (1999). Because defendant failed to make the
necessary formal demand, this issue is unpreserved, and we review it for plain
error affecting defendant’s substantial rights. Carines, supra at 763-764.
Criminal defendants are guaranteed the right to a speedy trial. US Const, Am VI;
Const 1963, art 1, § 20; MCL 768.1; MCR 6.004(A). “In determining whether a
defendant has been denied the right to a speedy trial, we balance the following
four factors: (1) the length of delay, (2) the reason for delay, (3) the defendant’s
assertion of the right, and (4) the prejudice to the defendant.” People v. Cleveland
Williams, 475 Mich 245, 261-262; 716 NW2d 208 (2006). Prejudice is presumed
if the delay is 18 months or more. Id. at 262. This presumption also triggers an
inquiry into the other factors and shifts the burden to the prosecution to show that
no injury resulted from the delay. Id. “The time for judging whether the right to a
speedy trial has been violated runs from the date of the defendant's arrest.” Id. at
261. “A formal charge against, or restraint of, the accused is necessary to call the
right to speedy trial into play.” People v. Rosengren, 159 Mich App 492, 506 n
16; 407 NW2d 391 (1987), citing United States v. Marion, 404 US 307; 92 S Ct
455; 30 L Ed 2d 468 (1971). “[A] defendant’s right to a speedy trial is not
violated after a fixed number of days.” Cleveland Williams, supra at 261.
A defendant may suffer from two types of prejudice: prejudice to his person and
prejudice to the defense. Cleveland Williams, supra at 264. “[T]he most serious
inquiry is whether the delay has impaired defendant’s defense.” Rosengren, supra
at 508. General allegations of prejudice, such as loss of memory, financial burden,
or anxiety, are insufficient to establish that a defendant was denied his right to a
- 20 -

speedy trial. People v. Gilmore, 222 Mich App 442, 462; 564 NW2d 158 (1997).
Delays inherent in the court system, such as docket congestion, although
technically attributable to the prosecution, “are given a neutral tint and are
assigned only minimal weight in determining whether a defendant was denied a
speedy trial.” Id. at 460, quoting People v. Wickham, 200 Mich App 106, 111; 503
NW2d 701 (1993). The delay between a dismissal without prejudice and the
reinstatement of the charge is not attributed to either party because there is no
charge pending against a defendant during that time. Wickham, supra at 111. The
defendant is charged with the time spent to adjudicate defense motions. Gilmore,
supra at 461. A defendant’s failure to timely assert his right weighs against a
finding that he was denied a speedy trial. Wickham, supra at 112.
Defendant was arrested for the present offenses on March 1, 2005. His first
preliminary examination was scheduled for March 14, 2005, but was postponed
until March 17, 2005, at defense counsel’s request so she could meet with
defendant to review discovery. At the conclusion of the preliminary examination,
the district court judge decided that there was insufficient evidence to link
defendant to the February 19, 2002, shooting and refused to bind defendant over
for trial. The case was dismissed without prejudice.
The prosecutor then appealed the district court’s decision before the circuit court.
The circuit court reinstated the charges and, on remand, the prosecutor again
moved to bind defendant over on these charges. On November 29, 2005, pursuant
to the order from the circuit court, the district court bound defendant over for trial
on the present charges and scheduled the arraignment for December 6, 2005. The
trial began on March 13, 2006.
No presumption of prejudice exists in this case because the time between
defendant’s arrest and the start of the trial was just over 12 months, well within
the 18-month presumption period. See Cleveland Williams, supra at 262.
Therefore, defendant must establish prejudice. Cain, supra at 112. Defendant
concedes that he did not suffer personal prejudice from incarceration before trial
because he was already incarcerated for a prior conviction. Defendant also does
not allege that he suffered prejudice in his defense. Defendant merely contends
that he suffered prejudice in the form of anxiety and concern. “[A]nxiety, alone, is
insufficient to establish a violation of defendant’s right to a speedy trial.”
Gilmore, supra at 462. Accordingly, defendant has failed to meet his burden to
show that he was denied his right to a speedy trial.
Defendant also asserts that the delay between his arraignment and trial violated
the 180-day rule. The 180-day rule requires the prosecutor to make a good-faith
effort to bring a prison inmate who has a pending criminal charge to trial within
180 days after the Department of Corrections delivers notice to the prosecutor of
the inmate’s imprisonment and requests disposition of the pending charge. MCL
780.131(1); People v. Bradshaw, 163 Mich App 500, 505; 415 NW2d 259 (1987).
“[T]he statute applies only to those defendants who, at the time of trial, are
currently serving in one of our state penal institutions, and not to individuals
- 21 -

awaiting trial in a county jail.” People v. McLaughlin, 258 Mich App 635, 643;
672 NW2d 860 (2003). The purpose of the statute is to give defendant “an
opportunity to have the sentence run concurrently consistent with the principle of
law disfavoring accumulations of sentences.” Cleveland Williams, supra at 252253.
“This Court has held that time expended by a prosecutor to pursue an
interlocutory appeal from an order of a trial court is not chargeable to the
prosecutor.” Bradshaw, supra at 505. The delay in the reinstatement of charges
and commencement of trial were a result of the prosecutor’s appeal of the district
court’s decision not to bind over defendant, and the time spent pursuing this
appeal cannot be counted toward the 180-day time period. The prosecutor made a
good-faith effort to bring this case to trial and the trial began within the statutory
period. Defendant’s argument lacks merit.
Kelly, 2007 WL 2118799 at *8-9.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.2 First, Petitioner is not entitled to habeas
relief on any claim that the trial court violated Michigan’s 180-day rule. It is well-established
that “federal habeas corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502
U.S. 62, 67 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Thus, to the extent that
Petitioner contends that Michigan’s 180–day rule was violated, he is not entitled to relief. See,
e.g., Burns v. Lafler, 328 F. Supp. 2d 711, 722 (E.D. Mich. 2004) (denying habeas relief on
similar claim).
Second, Petitioner fails to demonstrate a violation of his federal speedy trial rights. The
Sixth Amendment to the United States Constitution provides a criminal defendant with the
constitutional right to a speedy trial. U.S. CONST. amend. VI. To determine whether a speedy
trial violation has occurred, a reviewing court must consider the following four factors: (1) the
length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his speedy trial
right, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). No
2

The same result would be reached under a de novo standard of review.

- 22 -

single factor is determinative; rather a court must weigh the factors and engage in a “difficult and
sensitive balancing process” to determine whether a constitutional violation has occurred. Id. at
533. The right to a speedy trial “is ‘amorphous,’ ‘slippery,’ and ‘necessarily relative.’” Vermont
v. Brillon, 129 S. Ct. 1283, 1290 (2009) (citation omitted). That being said, the length of delay is
a “triggering factor” because “until there is some delay which is presumptively prejudicial, there
is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at
530. Thus, to trigger a speedy trial analysis, a defendant must allege that the interval between
accusation and trial has crossed the line between ordinary delay and presumptively prejudicial
delay. Doggett v. United States, 505 U.S. 647, 651-52 (1992). Courts have generally found
delays of one year or more to be “presumptively prejudicial.” Id. at 652, n.1.
In this case, all four factors weigh against Petitioner. First, the length of the delay was not
presumptively prejudicial. While the time between Petitioner’s arrest and arraignment on March
1, 2005 and the start of his trial on March 13, 2006 was just over one year, the time from when
the district court dismissed the charges, the prosecution appealed, and the circuit court reinstated
the charges does not count toward the speedy trial time period. See United States v. Loud Hawk,
474 U.S. 302, 310-11 (1986). The actual trial delay was thus closer to six months. Second, the
reason for much of the delay was the aforementioned appeal. Third, Petitioner did not assert his
speedy trial rights before the state trial court. Fourth, as explained by the Michigan Court of
Appeals, Petitioner fails to show that he was substantially prejudiced by the delay. His
conclusory allegations about an alibi witness and phone records are insufficient to establish
prejudice. See Cross v. Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007); see also Workman v.
Bell, 178 F.3d 759, 771 (6th Cir. 1998) (conclusory allegations of ineffective assistance of
counsel do not justify habeas relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir.
- 23 -

2006) (bald assertions and conclusory allegations do not provide a basis for an evidentiary
hearing on habeas review). Moreover, Petitioner was already incarcerated for other offenses at
the time of the instant criminal proceedings. Petitioner fails to establish a violation of his federal
speedy trial rights.
F.
Petitioner relatedly asserts that he is entitled to habeas relief due to extended pre-arrest
delay (Habeas Claim X). Petitioner raised this claim on direct appeal. The Michigan Court of
Appeals denied relief finding that Petitioner had failed to establish that he was prejudiced by the
delay. The court explained:
Defendant argues that the delay between the commission of the present offense
and his arrest for these crimes constituted a denial of his right to procedural due
process. We disagree. We review a challenge to prearrest delay de novo. Cain,
supra at 108.
The right to due process provides limited protection to individuals who have not
been arrested. People v. Adams, 232 Mich App 128, 133; 591 NW2d 44 (1998),
quoting People v. Bisard, 114 Mich App 784, 788; 319 NW2d 670 (1982).
Charges against a defendant may be dismissed because of prearrest delay if there
is “actual and substantial prejudice to the defendant’s right to a fair trial and an
intent by the prosecution to gain a tactical advantage.” People v. Crear, 242 Mich
App 158, 166; 618 NW2d 91 (2000). Substantial prejudice occurs when the delay
meaningfully impairs a defendant’s ability to defend against the charges. Id. To
establish actual and substantial prejudice impairing his ability to defend himself, a
defendant must first present evidence of prejudice. Adams, supra at 135, quoting
People v. Loyer, 169 Mich App 105, 120; 425 NW2d 714 (1988). Once evidence
of prejudice has been established, the prosecution has the burden of persuasion of
showing the reasonableness of the delay. Adams, supra at 137. “[T]o prosecute a
defendant following investigative delay does not deprive him of due process, even
if his defense might have been somewhat prejudiced by the lapse of time.” United
States v. Lovasco, 431 US 783, 796; 97 S Ct 2044; 52 L Ed 2d 752 (1977).
Defendant argues that the delay in his arrest prevented him from obtaining phone
records and producing an alibi witness. In particular, defendant also claims that
his alibi witness, Mike McClendon, would have testified regarding Smith’s threats
and defendant’s location at the time of the incident, but he has since died.

- 24 -

However, defendant’s allegations of prejudice resulting from pretrial delay are too
speculative to justify reversing his conviction. Defendant fails to indicate the
nature of these phone records or explain how they would have changed the
outcome of the trial. Defendant also fails to specify what McClendon’s testimony
would have been. “Proof of ‘actual and substantial’ prejudice requires more than
just generalized allegations.” Crear, supra at 166. Defendant has failed to meet
his burden of showing that he suffered actual and substantial prejudice by the
delay in his arrest. His assertions of error lack merit.
Kelly, 2007 WL 2118799 at *10-11.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The Sixth Amendment to the United States
Constitution provides a criminal defendant with the constitutional right to a speedy trial. U.S.
CONST. amend. VI. The Due Process Clause of the Fifth Amendment to the United States
Constitution prohibits unjustified pre-indictment or pre-arrest delay. United States v. Lovasco,
431 U.S. 783, 789 (1977); United States v. Marion, 404 U.S. 307, 324-26 (1971). To prevail on
such a claim, a defendant must show substantial prejudice to his right to a fair trial and intent by
the prosecution to gain a tactical advantage at trial. Marion, 404 U.S. at 324; United States v.
Brown, 959 F.2d 63, 66 (6th Cir. 1992).
In this case, Petitioner fails to show that he was prejudiced by the delay between the
incident and his arrest on the charges. His assertions about an alibi witness and phone records are
speculative and conclusory in nature. Moreover, Petitioner fails to allege any facts or to
otherwise establish that the prosecution delayed the charges in order to gain a tactical advantage
at trial. The Michigan Court of Appeals’ decision in this regard was reasonable. Habeas relief is
not warranted on this claim.
G.
Petitioner next asserts that he is entitled to habeas relief because the trial court violated
his right to be present at trial and to consult with counsel during trial (Habeas Claims XII, XXI,
- 25 -

XXII). Petitioner raised these claims on direct appeal and again on collateral review. The
Michigan Court of Appeals denied relief, stating in relevant part:
Defendant argues that the trial court improperly denied his right to be present at
trial. We disagree. Defendant waived this issue by behaving in a disorderly
fashion before trial, refusing to be quiet after multiple warnings, and affirmatively
responding that he did not want to be present in the courtroom. “‘Waiver is
different from forfeiture. Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the “intentional relinquishment or abandonment of a
known right.’” Carines, supra at 762 n 7, quoting United States v. Olano, 507
U.S. 725, 733; 113 S Ct 1770; 123 L. Ed. 2d 508 (1993). If a defendant waives his
rights, rather than forfeits them, that waiver extinguishes any error, and he may
not seek appellate review of a claimed deprivation of those rights. People v.
Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Because defendant
intentionally relinquished his right to be present at trial, he has waived this claim
of error and we need not consider it further.
Kelly, 2007 WL 2118799 at *11.
The state court’s denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.3 A criminal defendant has a right to be
physically present at every stage of trial. Kentucky v. Stincer, 482 U.S. 730, 745 (1987).
However, a “defendant can lose his right to be present at trial if, after he has been warned by the
judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on
conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his
trial cannot be carried on with him in the courtroom.” Illinois v. Allen, 397 U.S. 337, 343 (1970).
Once lost, the right to be present can “be reclaimed as soon as the defendant is willing to conduct
himself consistently with the decorum and respect inherent in the concept of courts and judicial
proceedings.” Id.
Petitioner’s claims are belied by the record. The trial transcripts indicate that Petitioner
was disruptive during jury selection on the first day of trial and was given multiple warnings to
3

The same result would be reached under a de novo standard of review.

- 26 -

behave before the trial judge removed him from the courtroom. He was placed in another room
with the ability to hear the proceedings. Trial Tr. Vol. I, pp. 4-13. After jury selection, the trial
judge gave Petitioner the opportunity to return to the courtroom with proper behavior, but
Petitioner refused to comply. Id. at pp. 96-98. On the second day of trial, when the trial judge
asked Petitioner if he wanted to behave and return to the courtroom, he responded, “No.” Trial
Tr. Vol. II, p. 3. The record thus reveals that Petitioner was removed from the courtroom due to
his disruptive behavior (but had the ability to hear the proceedings from another room) and that
he was given multiple chances to modify his behavior and return to the courtroom, but he refused
to do so. Given such circumstances, Petitioner fails to establish a violation of his constitutional
rights. Habeas relief is not warranted on these claims.
H.
Petitioner next asserts that he is entitled to habeas relief because the prosecutor
suppressed evidence favorable to the defense (Habeas Claim XIII). Petitioner raised this claim on
direct appeal. The Michigan Court of Appeals reviewed the claim for plain error and denied
relief. The court explained in relevant part:
“[T]he prosecutor has a duty to see that justice is done, not merely to convict.”
People v. Florinchi, 84 Mich App 128, 133; 269 NW2d 500 (1978). Accordingly,
defendant is entitled to have all evidence bearing on his guilt or innocence that is
within the prosecutor’s control produced at trial. Id. at 133. A prosecutor violates
a defendant’s right to due process if he suppresses material evidence favorable to
the defendant, even if she did not do so in bad faith. Brady v. Maryland, 373 US
83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963). To establish that his due process
right to access evidence presented by the prosecution was violated, a defendant
must establish the following:
(1) that the state possessed evidence favorable to the defendant; (2)
that [the defendant] did not possess the evidence nor could he have
obtained it himself with any reasonable diligence; (3) that the
prosecution suppressed the favorable evidence; and (4) that had the
evidence been disclosed to the defense, a reasonable probability
exists that the outcome if the proceedings would have been
- 27 -

different. [People v. Lester, 232 Mich App 262, 281-282; 591
NW2d 267 (1998) (citation omitted).]
The prosecutor also has a duty to disclose any information that would materially
affect the credibility of her witnesses. Id. at 281. “In general, impeachment
evidence has been found to be material where the witness at issue supplied the
only evidence linking the defendant to the crime or where the likely effect on the
witness’ credibility would have undermined a critical element of the prosecutor’s
case.” Id. at 282-283. Defendant alleges that the prosecutor possessed a tape
seized from his home with a recording of Smith calling him after the incident and
yelling at him for shooting her. However, defendant relies on a transcript from a
motion hearing concerning a separate offense, in which the prosecutor, defense
counsel, and judge in that case discussed whether the tape should be admitted.
This transcript is not a part of the trial court record in this case, and defendant
cannot expand the record on appeal. People v. Powell, 235 Mich App 557, 561 n
4; 599 NW2d 499 (1999). Accordingly, defendant fails to establish that the
prosecutor suppressed evidence that would have been favorable to his defense.FN3
FN3

Regardless, defendant has not shown how this tape would have been favorable
to his defense.
Kelly, 2007 WL 2118799 at *11.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. There is no general constitutional right to
discovery in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 559 (1977). A prosecutor’s
failure to disclose evidence favorable to the defense constitutes a denial of due process “where
the evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). To find a Brady violation,
not only must the evidence be suppressed, it must be material and favorable to the defense.
Elmore v. Foltz, 768 F.2d 773, 777 (6th Cir. 1985). Favorable evidence is material “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985); see
also Kyles v. Whitley, 514 U.S. 419, 432–36 (1995). Material evidence is that which is “so
clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to
- 28 -

produce.” United States v. Clark, 988 F.2d 1459, 1467 (6th Cir. 1993). The duty to disclose
favorable evidence includes the duty to disclose impeachment evidence. Bagley, supra; Giglio v.
United States, 405 U.S. 150, 154-55 (1972).
The Brady rule only applies to “the discovery, after trial, of information which had been
known to the prosecution but unknown to the defense.” United States v. Agurs, 427 U.S. 97, 103
(1976). A Brady violation does not occur if previously undisclosed evidence is disclosed during
trial unless the defendant is prejudiced by its prior non-disclosure. United States v. Word, 806
F.2d 658, 665 (6th Cir. 1986). Thus, in order to establish a Brady violation, a petitioner must
show that: (1) evidence was suppressed by the prosecution in that it was not known to the
petitioner and not available from another source; (2) the evidence was favorable or exculpatory;
and (3) the evidence was material to the question of guilt. Carter v. Bell, 218 F.3d 581, 601 (6th
Cir. 2000). The petitioner bears the burden of establishing a Brady violation. Id.
Petitioner has not met his burden. Even assuming that such a recording exists, Petitioner
was aware of the recording given his allegation that it was taken from his home. Nonetheless,
even assuming that the recording was not disclosed to the defense, Petitioner fails to establish
that it was exculpatory. Rather, it would appear to be inculpatory or, at the very least, it could
have bolstered Charity Smith’s version of events. Petitioner fails to establish a Brady violation.
Habeas relief is not warranted on this claim.
I.
Petitioner relatedly asserts that he is entitled to habeas relief because the prosecution
failed to investigate and present facts and evidence showing “the whole transaction” (Habeas
Claim XXIII). Petitioner first raised this specific issue on collateral review. The state trial court

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denied relief under Michigan Court Rule 6.508(D)(2) and (3), and the appellate courts denied
relief under Michigan Court Rule 6.508(D).
The state courts’ denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. A prosecutor does not have an affirmative
duty to take action to discover information which it does not possess or to investigate
information which might be favorable to the defense. Goff v. Bagley, 601 F.3d 445, 476 (6th Cir.
2010). Such actions are the function of defense counsel, not the prosecution. Petitioner thus fails
to state a claim upon which relief may be granted as to this issue. Habeas relief is not warranted.
J.
Petitioner also asserts that he is entitled to habeas relief due to the ineffective assistance
of trial counsel. Specifically, he asserts that trial counsel was ineffective for failing to investigate
and prepare an alibi defense, for only meeting with him once before trial, for failing to advise
him about his right to testify at trial, for failing to contest the bindover/reinstatement procedures
or request an interlocutory appeal, for failing to object to the pre-arrest and trial delays, for
failing to object to prosecutorial misconduct or request curative instructions, for failing to object
to photographic line-up evidence, for failing to contest his removal from the courtroom and
consult with him afterward, for failing to secure his presence or contest pre-trial proceedings, for
failing to move for a directed verdict, for failing to obtain and investigate police reports filed by
the victim prior to the shooting, for failing to request a continuance to locate and interview a new
witness, for failing to investigate circumstances regarding the intent of the perpetrator, and for
failing to seek dismissal of the charges based upon prosecutorial vindictiveness (Habeas Claims
XIV, XVII, XVIII, XXIV, XXV, XXVI, XXVII, XVIII). Petitioner raised these claims on direct

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appeal and collateral review. On direct appeal, the Michigan Court of Appeals ruled that the
claims lacked merit and denied relief. The court explained in relevant part:
There is a strong presumption that defendant received effective assistance of
counsel, and defendant bears the burden of proving that his counsel’s actions did
not constitute sound trial strategy. Strickland, supra at 689; Mitchell, supra at
156. To establish a claim of ineffective assistance of counsel, defendant must
establish that his counsel made errors that were so serious that she was not
functioning as the “counsel” guaranteed for defendant by the Sixth Amendment,
and that these errors deprived defendant of a fair trial. Strickland, supra at 687;
Mitchell, supra at 156. Defendant must also show that, but for trial counsel’s
errors, the outcome of the proceeding would have been different. People v.
Pickens, 446 Mich 298, 314; 521 NW2d 797 (1994).
First, defendant argues that his counsel was ineffective for failing to investigate,
prepare, and present an alibi defense. Defendant alleges that Tracey Poteat, the
mother of his son, could have testified that he was at her home at the time of the
February 19, 2002, shooting. Defense counsel indicated that she had interviewed
the only witness that defendant identified (presumably Poteat) and determined
that her testimony was irrelevant to the case. This decision by defense counsel not
to call Poteat as a witness constitutes trial strategy, and we will not substitute our
judgment for that of counsel in matters of trial strategy. People v. Matuszak, 263
Mich App 42, 58; 687 NW2d 342 (2004). Accordingly, defense counsel’s failure
to investigate, prepare, and present an alibi defense did not constitute ineffective
assistance of counsel.
Next, defendant claims that his counsel was ineffective because she only met with
him once before trial, for approximately five minutes. However, defense counsel
noted on the record that before trial began, she met with defendant, interviewed
the witness that defendant identified, and subpoenaed phone records for the
numbers that defendant gave her, merely to find that the records no longer
existed. Defense counsel has a duty to consult with a defendant regarding
important decisions, such as the overall defense strategy, but this obligation “does
not require counsel to obtain the defendant’s consent to ‘every tactical decision.’”
Florida v. Nixon, 543 US 175, 187; 125 S Ct 551; 160 L Ed 2d 565 (2004),
quoting Taylor v. Illinois, 484 US 400, 417-418; 108 S Ct 646; 98 L Ed 2d 798
(1988). Defendant failed to establish that his counsel did not fulfill her obligation
to consult with him.
Defendant also alleges that his counsel failed to advise him regarding his right to
testify at trial. However, the record shows that defense counsel advised defendant
of this right, and defendant told the court that he did not want to testify.
Defendant’s assertion of error lacks merit.
Finally, defendant alleges numerous errors that have already been addressed,
including his counsel’s failure to challenge the reinstatement of the charges, the
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delay between the commission of the charged offense and his arrest, the 180-day
rule violation, prosecutorial misconduct, and his removal from the courtroom, and
his counsel’s failure to secure defendant’s presence at the arraignment and
subsequent preliminary examination and to communicate with defendant after his
removal from the courtroom. We previously concluded that defendant’s
arguments regarding these issues lack merit. “Trial counsel is not required to
advocate a meritless position.” People v. Snider, 239 Mich App 393, 425; 608
NW2d 502 (2000). Accordingly, defense counsel’s performance did not fall
below an objective standard of reasonableness, and defendant was not deprived of
a fair trial.
Kelly, 2007 WL 2118799 at *12-13. On collateral review, the state trial court denied relief under
Michigan Court Rule 6.508(D)(2) and (3) and the appellate courts denied relief under Michigan
Court Rule 6.508(D).
The state courts’ denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.4 The Sixth Amendment to the United States
Constitution guarantees a criminal defendant the right to the effective assistance of counsel. In
Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a twoprong test for determining whether a habeas petitioner has received ineffective assistance of
counsel. First, a petitioner must prove that counsel’s performance was deficient. This requires a
showing that counsel made errors so serious that he or she was not functioning as counsel as
guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the petitioner must
establish that counsel’s deficient performance prejudiced the defense. Counsel’s errors must have
been so serious that they deprived the petitioner of a fair trial or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts that were “outside the
wide range of professionally competent assistance.” Id. at 690. The reviewing court’s scrutiny of
counsel’s performance is highly deferential. Id. at 689. There is a strong presumption that trial

4

To the extent that it can be argued that the state courts did not address any of Petitioner’s ineffective
assistance of counsel claims, the Court notes that it would reach the same result under a de novo standard of review.

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counsel rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. Id. at 690. The petitioner bears the burden of overcoming the
presumption that the challenged actions were sound trial strategy.
As to the prejudice prong, a petitioner must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. A reasonable probability is one that is sufficient to undermine confidence
in the outcome of the proceeding. Id. “On balance, the benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
The Supreme Court has confirmed that a federal court’s consideration of ineffective
assistance of counsel claims arising from state criminal proceedings is quite limited on habeas
review due to the deference accorded trial attorneys and state appellate courts reviewing their
performance. “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’
and when the two apply in tandem, review is ‘doubly’ so.” Harrington, 131 S. Ct. at 788
(internal and end citations omitted). “When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id.
Petitioner claims that trial counsel was ineffective for failing to investigate and prepare
his defense, for failing to obtain and investigate police reports filed by the victim prior to the
shooting, for failing to request a continuance to locate and interview a new witness, and for
failing to investigate circumstances regarding the intent of the perpetrator. Well-established
federal law requires that defense counsel conduct a reasonable investigation into the facts of a
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defendant’s case, or make a reasonable determination that such investigation is unnecessary.
Wiggins, 539 U.S. at 522-23; Strickland, 466 U.S. at 691; Stewart v Wolfenbarger, 468 F.3d 338,
356 (6th Cir. 2007); Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). The duty to investigate
“includes the obligation to investigate all witnesses who may have information concerning . . .
guilt or innocence.” Towns, 395 F.3d at 258. That being said, decisions as to what evidence to
present and whether to call certain witnesses are presumed to be matters of trial strategy. When
making strategic decisions, counsel’s conduct must be reasonable. Roe v. Flores-Ortega, 528
U.S. 470, 481 (2000); see also Wiggins, 539 U.S. at 522-23. The failure to call witnesses or
present other evidence constitutes ineffective assistance of counsel only when it deprives a
defendant of a substantial defense. Chegwidden v. Kapture, 92 F. App’x 309, 311 (6th Cir.
2004); Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002).
Petitioner fails to show that trial counsel erred in investigating his case and/or that he was
prejudiced by counsel’s conduct in this regard. Rather, the record indicates that trial counsel
interviewed a potential alibi witness identified by Petitioner and decided that her testimony was
not beneficial to the defense, requested phone records (which were unavailable), and took other
actions to investigate the case and prepare a defense. Counsel’s strategy was to argue that
Petitioner did not commit the crime, to cite the lack of physical evidence linking him to the
crime, and to challenge the prosecution’s case and argue reasonable doubt. The fact that
counsel’s strategy was ultimately unsuccessful does not mean that counsel was ineffective. See
Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (an ineffective assistance of counsel claim
“cannot survive so long as the decisions of a defendant’s trial counsel were reasonable, even if
mistaken”).

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While Petitioner asserts that counsel failed to obtain police reports of the shooting, he
offers no evidence to show that such records existed, that counsel did not review them, and/or
that any such records would have benefitted his defense. As to counsel’s alleged failure to seek a
continuance to investigate a new witness (someone who was on a call with Chastity Smith when
Petitioner called and threatened her) and failure to investigate the scene of the shooting,
Petitioner fails to show that counsel erred or that he was prejudiced by counsel’s conduct.
Counsel may have reasonably determined that Smith’s other caller would not provide evidence
relevant to the shooting and/or would be harmful to the defense. Counsel may have also
reasonably decided that an investigation of the scene was unnecessary because the circumstances
of the shooting were sufficient to establish an intent to kill and because Petitioner’s defense was
that he did not commit the shooting, not that he lacked the intent to kill. As the Supreme Court
has stated, “[t]here comes a point where a defense attorney will reasonably decide that another
strategy is in order, thus making particular investigations unnecessary. . . . Those decisions are
due a heavy measure of deference.” Cullen, 131 S. Ct. at 1407 (reversing grant of habeas relief
on ineffective assistance of counsel claim) (citations omitted). Moreover, Petitioner’s claims
regarding what counsel may have discovered with further investigation are purely speculative.
As discussed supra, conclusory allegations are insufficient to justify habeas relief. Petitioner fails
to establish that counsel was ineffective in investigating his case or that he was deprived of a
substantial defense.
Petitioner relatedly claims that trial counsel was ineffective for only meeting with him
once before trial. The record indicates that counsel met with Petitioner before trial and consulted
with him during trial. The record further indicates that counsel reviewed the case, conducted
some pre-trial investigation, questioned witnesses about their version of events, and advocated
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on Petitioner’s behalf. The mere fact that counsel may have spent little time with Petitioner prior
to trial “is not enough under Strickland, without evidence of prejudice or other defects.” Bowling
v. Parker, 344 F.3d 487, 506 (6th Cir. 2003); accord Lenz v. Washington, 444 F.3d 295, 303 (4th
Cir. 2006) (petitioner could not prevail on claim that attorneys were ineffective due to infrequent
pre-trial visits where he failed to show resulting prejudice); Anderson v. Calderon, 232 F.3d
1053, 1086 (9th Cir. 2000) (same). Petitioner has not explained with specificity how additional
meetings with counsel would have benefitted his defense. He thus fails to establish that counsel
was ineffective.
Petitioner also claims that trial counsel was ineffective for failing to advise him about his
right to testify at trial. This claim is belied by the record. See Trial Tr., Vol. II, p. 4. Petitioner
fails to establish that counsel was ineffective in this regard.
Petitioner next claims that trial counsel was ineffective for failing to properly challenge
or object to several matters before and during trial such as the bindover/reinstatement
procedures, the pre-arrest and trial delays, the alleged instances of prosecutorial misconduct, and
his removal from the courtroom and absence from proceedings. Given the state court’s rulings
and this Court’s determination that those underlying claims lack merit, Petitioner cannot
establish that counsel erred or that he was prejudiced by counsel’s conduct. Defense counsel
cannot be deemed ineffective for failing to make a futile or meritless motion or objection. See
Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2014) (“Omitting meritless arguments is neither
professionally unreasonable nor prejudicial.”); United States v. Steverson, 230 F.3d 221, 225 (6th
Cir. 2000).
Petitioner also claims that trial counsel was ineffective for failing to object to
photographic lineup evidence admitted through one of the other acts witnesses. The evidence,
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however, was admissible under state law and Petitioner fails to establish a basis for a successful
objection. As noted, counsel cannot be deemed ineffective for failing to make a meritless
objection. Moreover, even assuming that counsel erred, Petitioner fails to show that he was
prejudiced by counsel’s conduct. Even if the lineup evidence was excluded, the underlying other
acts evidence was admitted at trial. Petitioner fails to establish that counsel was ineffective.
Petitioner further claims that trial counsel was ineffective for failing to move for a
directed verdict. Given the evidence against Petitioner, including the victim’s testimony about
his threats and the circumstances of the shooting, his friend’s testimony about his gun ownership,
and the other acts evidence of his common plan, motive, and intent, there was sufficient
circumstantial evidence to support Petitioner’s convictions, let alone to submit the case to the
jury. Consequently, any directed verdict motion would have been futile. As noted, counsel
cannot be deemed ineffective for failing to make a futile or meritless motion. Petitioner fails to
establish that counsel erred or that he was prejudiced by counsel’s conduct.
Lastly, Petitioner claims that trial counsel was ineffective for failing to seek dismissal of
the charges based upon prosecutorial vindictiveness. Petitioner, however, fails to allege any facts
to show that the prosecutor’s actions in charging him, appealing the district court’s dismissal of
the charges, or pursuing the case following reinstatement of the charges was due to harassment
or vindictiveness. In fact, the Michigan Court of Appeals ruled that prosecutor’s appeal and the
reinstatement of the charges was not harassment. Because the prosecutor acted within the bounds
of professional discretion, Petitioner cannot establish that counsel erred or that he was prejudiced
by counsel’s conduct in this regard. Petitioner thus fails to establish that counsel was ineffective
under the Strickland standard. Habeas relief is not warranted on these claims.

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K.
Petitioner also asserts that he is entitled to habeas relief because the state trial court failed
to provide a full record for appellate review (Habeas Claim XV). Petitioner first raised this claim
on collateral review. The state trial court denied relief finding that the claim lacked merit and the
state appellate courts denied relief under Michigan Court Rule 6.508(D).
The state courts’ denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.5 Petitioner fails to establish that he and/or
appellate counsel were not provided with the transcripts or other materials necessary for
appellate review in the state courts. To the contrary, the state court record indicates that appellate
counsel and Petitioner cited to the trial record and raised numerous claims for relief throughout
the post-conviction proceedings. Habeas relief is not warranted on this claim.
L.
Petitioner next asserts that he is entitled to habeas relief because appellate counsel was
ineffective for failing to provide the Michigan Court of Appeals with sufficient facts on appeal,
for failing to provide him with transcripts, and for failing to raise the claims that he raised on
collateral review on direct appeal in the state courts (Habeas Claim XVI, XVII, XVIII).
Petitioner raised this claim on collateral review. The state trial court denied relief finding that the
claim lacked merit and the state appellate courts denied relief under Michigan Court Rule
6.508(D).
The state courts’ denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.6 As discussed supra, in order to establish

5

The same result would be reached under a de novo standard of review.

6

The same result would be reached under a de novo standard of review.

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ineffective assistance of counsel, a habeas petitioner must show that counsel’s performance was
deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687.
With regard to appellate counsel, it is well-established that a criminal defendant does not have a
constitutional right to have appellate counsel raise every non-frivolous issue on appeal. See Jones
v. Barnes, 463 U.S. 745, 751 (1983). The United States Supreme Court has explained:
For judges to second-guess reasonable professional judgments and impose on
appointed counsel a duty to raise every “colorable” claim suggested by a client
would disserve the . . . goal of vigorous and effective advocacy. . . . Nothing in
the Constitution or our interpretation of that document requires such a standard.
Id. at 754. Strategic and tactical choices regarding which issues to pursue on appeal are “properly
left to the sound professional judgment of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th
Cir. 1990). In fact, “the hallmark of effective appellate advocacy” is the “process of ‘winnowing
out weaker arguments on appeal and focusing on’ those more likely to prevail.” See Smith v.
Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). “Generally, only when
ignored issues are clearly stronger than those presented will the presumption of effective
assistance of appellate counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir.
2002). Appellate counsel may deliver deficient performance and prejudice a defendant by
omitting a “dead-bang winner,” defined as an issue which was obvious from the trial record and
would have resulted in reversal on appeal. Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D.
Mich. 2003).
In this case, Petitioner fails to establish that appellate counsel failed to sufficiently brief
the Michigan Court of Appeals on direct appeal or that he failed to provide Petitioner with
transcripts and/or that either of those alleged deficiencies prejudiced his right to a fair appeal.
Rather, the record indicates that counsel raised several issues on direct appeal and that Petitioner

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raised additional issues on direct appeal and on collateral review in the state courts. Petitioner
fails to establish that appellate counsel was ineffective as to such matters.
Petitioner also fails to show that by omitting the claims presented in his motion for relief
from judgment, appellate counsel’s performance fell outside the wide range of professionally
competent assistance. Appellate counsel raised substantial claims on direct appeal, including
evidentiary claims and ineffective assistance of counsel claims. None of the other claims
subsequently raised by Petitioner are “dead-bang winners.” Moreover, even if appellate counsel
erred in some fashion, Petitioner cannot show that he was prejudiced by counsel’s conduct
because the underlying claims lack merit. See discussion supra. Habeas relief is not warranted.
M.
Petitioner asserts that he is entitled to habeas relief because the trial court failed to advise
him of the risks of self-representation, the minimum/maximum sentence, the charged offense, the
opportunity to consult with counsel after his request for substitute counsel was denied, and the
continued right to counsel’s assistance (Habeas Claim XIX). Petitioner first raised this claim on
collateral review. The state trial court denied relief under Michigan Court Rule 6.508(D)(2) and
(3) and the appellate courts denied relief under Michigan Court Rule 6.508(D).
The state courts’ denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. As discussed supra, the Sixth Amendment
guarantees a criminal defendant the right to the assistance of counsel, Powell, 287 U.S. at 53; and
gives an indigent criminal defendant the right to the assistance of court-appointed counsel.
Gideon, 372 U.S. at 343. A waiver of the right to counsel must be voluntary, knowing and
intelligent. Iowa v. Tovar, 541 U.S. 77, 88 (2004); Faretta v. California, 422 U.S. 806, 835
(1975); Jones v. Jamrog, 414 F.3d 585, 593 (6th Cir. 2005). The Sixth Amendment also grants a
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criminal defendant the right to self-representation, if he voluntarily and intelligently elects to do
so. Martinez v. Court of Appeal of California, 528 U.S. 152, 153 (2000); Faretta, 422 U.S. at
819. A criminal defendant who seeks to proceed pro se must generally be aware of the risks of
self-representation so that “he knows what he is doing and his choice is made with eyes open.”
Faretta, 422 U.S. at 835. The right to counsel and the right to defend oneself are viewed as
correlative rights in that waiver of one necessarily constitutes an assertion of the other. United
States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970); see also United States v. Cromer, 389 F.3d
662, 680 (6th Cir. 2005).
In this case, the record indicates that Petitioner requested substitute counsel at the start of
trial. He never, however, waived his right to counsel or asked to represent himself at trial.
Consequently, the state trial court did not err by not advising him of his right of selfrepresentation or the attendant risks of such self-representation. In fact, the Sixth Circuit has
specifically ruled that there is no constitutional right to be informed of the right of selfrepresentation. United States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994); accord Munkus v.
Furlong, 170 F.3d 980, 984 (10th Cir. 1999). Petitioner fails to establish a violation of his
constitutional rights in this regard.
Additionally, Petitioner does not show that the trial court did not sufficiently inform him
of the minimum and maximum sentences he faced or the charges against him, or that he was
denied the opportunity to consult with counsel or the continued assistance of counsel. Rather, the
record reveals that Petitioner was informed of the charges against him at his preliminary
examinations, see 3/17/05 Prelim Ex. Tr., p. 3; 11/29/95 Prelim. Ex. Tr, p. 3-4, that he was
present at his arraignment on December 9, 2005, Wayne Co. Dkt.; Sent. Tr. p. 6, and that he had
opportunities to consult with counsel (but chose not to do so) during trial and had the assistance
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of counsel before and during trial, see 3/17/05 & 11/29/05 Prelim. Ex.; 2/24/06 Motion Hrg.;
Trial Tr. Vol. I, p. 3, 4-13, 96-98, 99; Vol. II, p. 3-4; see also discussion supra. Petitioner’s
assertions to the contrary are conclusory and belied by the record. Habeas relief is not warranted
on this claim.
N.
Petitioner asserts that he is entitled to habeas relief because the trial court denied his
motion for new trial without conducting a Ginther hearing (Habeas Claim XXIX). Petitioner first
raised this claim on collateral review. The state trial court denied relief under Michigan Court
Rule 6.508(D)(2) and (3) and the appellate courts denied relief under Michigan Court Rule
6.508(D).
The state courts’ denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The United States Supreme Court has held
that states have no constitutional obligation to provide post-conviction remedies. Pennsylvania v.
Finley, 481 U.S. 551, 557 (1987). Consequently, the Sixth Circuit has consistently held that
“errors in post-conviction proceedings are outside the scope of federal habeas corpus review.”
Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007); see also Cornwell v. Bradshaw, 559 F.3d
398, 411 (6th Cir. 2009) (citing Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986), in ruling that
federal habeas proceedings cannot be used to challenge errors or deficiencies in state postconviction proceedings); Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001) (“habeas corpus
cannot be used to mount challenges to a state's scheme of post-conviction relief”). There is also
no clearly-established Supreme Court ruling that recognizes a constitutional right to a state court
evidentiary hearing to develop a claim of ineffective assistance of counsel on direct appeal.
Hayes v. Prelesnik, 193 F. App’x 577, 584-85 (6th Cir. 2006). Petitioner thus fails to state a
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claim upon which habeas relief may be granted as to this issue. Habeas relief is not warranted on
this claim.
O.
Lastly, Petitioner asserts that he is entitled to habeas relief due to the cumulative effect of
the alleged errors at trial (Habeas Claim XXX). Petitioner first raised this claim on collateral
review. The state trial court denied relief finding that the claim lacked merit and the appellate
courts denied relief under Michigan Court Rule 6.508(D).
The state courts’ denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The United States Supreme Court “has not
held that distinct constitutional claims can be cumulated to grant habeas relief.” Lorraine v.
Coyle, 291 F.3d 416, 447 (6th Cir. 2002). Furthermore, the Sixth Circuit has ruled that such a
cumulative error claim is not cognizable on habeas review. See Sheppard v. Bagley, 657 F.3d
338, 348 (6th Cir. 2011) (citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)); see also
Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012) (ruling that trial counsel cumulative
error claim was not cognizable and citing Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir.
2010), and Moore, supra). Petitioner thus fails to state a claim upon which relief may be granted
as to this issue. Moreover, given that none of Petitioner’s habeas claims have merit, he cannot
establish entitlement to relief based upon cumulative error. Habeas relief is not warranted.
V.
Before Petitioner may appeal the Court’s decision, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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 federal district court denies a habeas claim on the merits,
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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). In applying that standard, a
district court may not conduct a full merits review, but must limit its examination to a threshold
inquiry into the underlying merit of Petitioner’s claims. Id. at 336-37. “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.
Petitioner has not demonstrated a substantial showing of the denial of a constitutional
right. Accordingly, a certificate of appealability is not warranted in this case. Leave to proceed in
forma pauperis on appeal will also be denied as an appeal cannot be taken in good faith. See
Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002); 28 U.S.C. § 1915(a)(3); FED. R.
APP. P. 24 (a).
VI.
Accordingly, it is ORDERED that the petition for writ of habeas corpus, ECF No. 1, is
DENIED.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that permission to proceed in forma pauperis on appeal is
DENIED.
Dated: March 25, 2015

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney of record herein by electronic means and upon
Bernard Kelly #526389 at Lakeland Correctional Facility, 141 First
Street, Coldwater, MI 49036 by first class U.S. mail on March 25, 2015.
s/Suzanne M. Gammon
SUZANNE M. GAMMON

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