Jones v. Burt

Filing 10

ORDER Denying Petitioner's 1 Petition For Habeas Corpus Pursuant To 28 U.S.C. 2254, Denying Certificate of Appealability, And Denying Leave To Appeal In Forma Pauperis. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
CHARLES E. JONES, #226897,
Petitioner,
v

Case No. 14-cv-14624
Honorable Thomas L. Ludington

SHERRY L. BURT,
Respondent.
__________________________________________/
ORDER DENYING PETITIONER’S PETITION FOR HABEAS CORPUS PURSUANT
TO 28 U.S.C. § 2254, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner, Charles E. Jones, confined at the Muskegon Correctional Facility in
Muskegon, Michigan, filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In the Livingston County Circuit Court, a jury convicted Petitioner (1) of assault with
intent to do great bodily harm less than murder, Mich. Comp Laws § 750.84; (2) aggravated
stalking, Mich. Comp Laws § 750.411i; (3) false threat of terrorism, Mich. Comp Laws §
750.543m; and (4) being a fourth felony habitual offender, Mich. Comp Laws § 769.12.
Petitioner was sentenced to concurrent terms of eighteen to forty years for each conviction.
On December 8, 2014 Petitioner filed a petition seeking Habeas Corpus (ECF No. 1),
contending that (1) his due process rights were violated by the introduction of prejudicial
evidence of prior acts of domestic violence, (2) the trial judge erred in refusing to appoint
substitute counsel for Petitioner, (3) the trial judge erred in failing to suppress Petitioner’s
confession on the ground that the police questioned Petitioner after he invoked his right to
remain silent, (4) the trial judge failed to obtain a valid waiver of counsel before permitting
Petitioner to represent himself at the hearing to suppress his confession, and (5) Petitioner’s trial

counsel was ineffective. On June 15, 2015 Respondent filed an answer to the petition, asserting
that the claims lack merit. The Court agrees that Petitioner’s claims lack merit, and therefore the
petition will be denied.
I.
The relevant facts were summarized by the Michigan Court of Appeals, and are presumed
correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410,
413 (6th Cir. 2009):
Defendant’s convictions stem from his conduct toward his former girlfriend,
hereafter the victim. During trial, the prosecution presented evidence that, after a
series of violent acts and threats against the victim, some of which resulted in two
earlier convictions of domestic violence, defendant sprayed the victim with an
inflammable liquid and set her on fire. An acquaintance testified that, while the
police were searching for defendant in connection with the latter incident,
defendant stated that he was on his way to the victim’s location with three cans of
gas, two propane tanks, and two shotguns, and that defendant spoke of “suicide by
police.” A police detective testified that defendant telephoned him and said he
was going to track the victim down and blow up the bank where she worked. In
an interview with the detective that followed, defendant stated that he never
intended to set the victim on fire, but only wanted to spray her with perfume.
Defendant stated that he suspected that the victim’s cigarette caused what he
sprayed on her to ignite.
People v. Jones, No. 308293, 2013 WL 5630075, at *1 (Mich. Ct. App. Oct. 15, 2013).
Petitioner’s conviction was affirmed on appeal. Id., lv. Den. 495 Mich. 992, 845 N.W.2d
106 (2014).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Petitioner’s right to due process was violated when the trial court allowed the
prosecutor to introduce unfairly prejudicial evidence of other alleged domestic
assaults not tending to show motive, intent, or absence of accident.
II. Petitioner’s right to due process was violated when the trial court refused to
appoint substitute counsel after Petitioner and his counsel were in conflict about
fundamental trial tactics on the charge of making a false terrorism threat.

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III. The trial court violated Petitioner’s due process rights by admitting statements
Petitioner made to a detective during custodial interrogation where the detective
did not scrupulously honor Petitioner’s silence following the Miranda warning by
another officer the previous day. Furthermore due process requires a new trial
where the trial court accepted appellant’s equivocal waiver of counsel prior to a
pretrial hearing on suppression.
IV. Petitioner was deprived of his right to effective assistance of counsel at trial
when Petitioner’s counsel elicited Petitioner’s prior forgery and drunk driving
conviction while cross-examining the complainant.
V. Petitioner’s defense counsel was constitutionally ineffective in failing before
trial to correct the defense expert’s mistaken recollection that Petitioner had
admitted threatening to blow up the bank where the complainant was employed.
II.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]”
the standard of review federal courts must apply when considering applications for a writ of
habeas corpus raising constitutional claims. See Wiggins v. Smith, 539 U.S. 510, 520 (2003).
As amended, 28 U.S.C. § 2254(d) permits a federal court to issue the writ only if the state
court decision on a federal issue “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court,” or it amounted to “an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1) & (2); Franklin v. Francis, 144 F. 3d 429, 433 (6th Cir.
1998). Mere error by the state court will not justify issuance of the writ; rather, the state court’s
application of federal law “must have been objectively unreasonable.” Wiggins, 539 U.S. at 52021 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) (internal quotes omitted)).
Additionally, this Court must presume the correctness of state court factual determinations. 28
U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of a State court, a determination of a factual issue
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made by a State court shall be presumed to be correct.”); see also West v. Seabold, 73 F. 3d 81,
84 (6th Cir. 1996) (stating that “[t]he court gives complete deference to state court findings of
historical fact unless they are clearly erroneous”).
The Supreme Court has explained the proper application of the “contrary to” clause as
follows:
A state-court decision will certainly be contrary to [the Supreme Court’s] clearly
established precedent if the state court applies a rule that contradicts the
governing law set forth in our cases....
A state-court decision will also be contrary to this Court’s clearly established
precedent if the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless arrives at a result
different from [the Court’s] precedent.
Williams, 529 U.S. at 405-06.
The Supreme Court has held that a federal court should analyze a claim for habeas corpus
relief under the “unreasonable application” clause of § 2254(d)(1) “when a state-court decision
unreasonably applies the law of this Court to the facts of a prisoner’s case.” Id. at 409. As stated
in Renico v. Lett:
We have explained that an unreasonable application of federal law is different from an
incorrect application of federal law. Indeed, a federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. Rather,
that application must be objectively unreasonable. This distinction creates a substantially
higher threshold for obtaining relief than de novo review. 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) (finding that the state court’s rapid declaration of a
mistrial on grounds of jury deadlock was not unreasonable even where “the jury only deliberated
for four hours, its notes were arguably ambiguous, the trial judge’s initial question to the
foreperson was imprecise, and the judge neither asked for elaboration of the foreperson’s

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answers nor took any other measures to confirm the foreperson’s prediction that a unanimous
verdict would not be reached”) (internal quotation marks and citations omitted); see also
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting the Supreme Court “has held on
numerous occasions that it is not an unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule that has not been squarely established by
this Court”) (internal quotation marks and citations omitted); Phillips v. Bradshaw, 607 F. 3d
199, 205 (6th Cir. 2010); Murphy v. Ohio, 551 F. 3d 485, 493-94 (6th Cir. 2009); Eady v.
Morgan, 515 F. 3d 587, 594-95 (6th Cir. 2008); Davis v. Coyle, 475 F. 3d 761, 766-67 (6th Cir.
2007); King v. Bobby, 433 F. 3d 483, 489 (6th Cir. 2006); Rockwell v. Yukins, 341 F. 3d 507, 512
(6th Cir. 2003)(en banc).
III.
A.
Petitioner first argues that his due process rights were violated when the prosecutor
introduced evidence of Petitioner’s prior acts of domestic violence against his former wife and
two ex-girlfriends solely to establish Petitioner’s propensity to commit the charged offenses, in
violation of M.R.E. 404(b). Petitioner further alleges that this evidence was unduly prejudicial
and hence should not have been admitted under Mich. Comp. Laws §768.27b.
It is “not the province of a federal habeas court to reexamine state-court determinations
on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal court is
limited in federal habeas review to deciding whether a state court conviction violates the
Constitution, laws, or treaties of the United States. Id. Thus, errors in the application of state
law, especially rulings regarding the admissibility of evidence, are usually not questioned by a
federal habeas court. See Seymour v. Walker, 224 F. 3d 542, 552 (6th Cir. 2000).

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Petitioner’s claim that the state court violated M.R.E. 404(b) or any other provision of
state law by admitting evidence of his prior domestic violence is non-cognizable on habeas
review. See Bey v. Bagley, 500 F 3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme
Court’s habeas powers did not permit Court to reverse state court conviction based on their belief
that the state trial judge erred in ruling that prior injury evidence was admissible as bad acts
evidence under California law); Dowling v. U.S., 493 U.S. 342, 352-53 (1990)(admission at
defendant’s bank robbery trial of “similar acts” evidence that he had subsequently been involved
in a house burglary for which he had been acquitted did not violate due process). The admission
of this “prior bad acts” or “other acts” evidence against Petitioner at his state trial does not entitle
him to habeas relief, because there is no clearly established Supreme Court precedent holding
that a state violates a habeas petitioner’s due process rights by admitting propensity evidence in
the form of “prior bad acts” evidence. See Bugh v. Mitchell, 329 F. 3d 496, 512 (6th Cir. 2003).
Given the lack of Supreme Court authority on the issue of whether a state court violates a habeas
petitioner’s due process rights by the admission of evidence to establish Petitioner’s propensity
to commit criminal acts, the Michigan Court of Appeals’ rejection of Petitioner’s claim was not
an unreasonable application of clearly established federal law. See Carey v. Musladin, 549 U.S.
70, 77 ( 2006).
Petitioner’s related claim that he was denied a fair trial by the admission of irrelevant and
highly prejudicial evidence cannot form the basis for habeas relief because it also involves a state
law evidentiary issue. See Hall v. Vasbinder, 551 F. Supp. 2d 652, 676 (E.D. Mich. 2008); rev’d
on other grds 563 F.3d 222 (6th Cir. 2009); See also Oliphant v. Koehler, 451 F. Supp. 1305,
1308 (W.D. Mich. 1978). Therefore, Petitioner is not entitled to relief on his first claim.
B.

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Petitioner next contends that his Sixth Amendment right to counsel was violated when
the trial judge refused his request to appoint substitute counsel. This claim is also without merit.
During the fourteen months between the arraignment and the trial date, the trial judge
appointed Petitioner four different trial attorneys: David Prine, Mark Scharrer, Steven Dodge,
and Heather Nalley. (See Livingston County Docket Sheet, at 1-4). Prine and other attorneys
from his firm were dismissed at Petitioner’s request because he accused them of deficient and
unethical representation. (Tr. 6/25/10, pp. 7-9; Tr. 9/16/10, pp. 4-5). Scharrer and Dodge were
appointed and both were subsequently discharged due to conflicts of interest. (See Livingston
County Docket Sheet, at 4; Tr. 5/13/11, pp. 4-5). Heather Nalley was appointed in October
2010.

Nalley requested an adjournment in order to review the large amount of materials

involved in this case. (Tr. 10/15/10, pp. 3-4).
After Nalley was appointed as substitute counsel, Petitioner filed no fewer than six
separate motions for her to be removed from the case. Petitioner’s reasons included an imagined
conflict of interest over a horseshoe league, Nalley’s failure to effectively communicate with
Petitioner, and Nalley’s failure to file motions Petitioner asked her to file. (Tr. 1/20/11, pp. 3-5;
Tr. 2/17/11, pp. 3-5; Tr. 4/7/11, pp. 4-6; Tr. 5/13/11, pp. 3-5, 11; Tr. 6/2/11, pp. 3-5; Tr. 8/26/11,
pp. 5-7).

Because the trial judge found that Nalley was “vigorously” and “zealous[ly]”

representing Petitioner in an “exceptional” manner, the court denied nearly all of these requests.
(Tr. 1/20/11, p. 6; Tr. 2/17/11, pp. 5, 7; Tr. 4/7/11, p. 7; Tr. 5/13/11, pp. 14-15; Tr. 8/26/11, pp.
11-12).
During the course of Ms. Nalley’s representation, Petitioner made several requests to
represent himself. The judge warned Petitioner each time of the dangers of self-representation
before permitting Petitioner to represent himself. (Tr. 5/13/11, p. 12; Tr. 6/2/11, pp. 5-12; Tr.

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6/3/11, pp. 4-5, 11-12, 16; Tr. 8/26/11, pp. 16-21, 22, 29; Tr. 9/23/11, p. 3). Once Petitioner
realized that his library access was restrained and he did not have the ability to do online legal
research, the trial court reappointed Nalley as defense counsel. (Tr. 6/16/11, pp. 3-7). Petitioner
requested for Nalley to be removed yet again. The trial judge did so briefly, but then reappointed
her two days before trial at Petitioner’s request. (Tr. 8/26/11, pp. 5-7, 16-22; Tr. 10/12/11, pp. 35).
The Michigan Court of Appeals rejected Petitioner’s claim:
At defendant’s request, the trial court appointed four different attorneys to assist
defendant with his defense, and defendant settled on the last of the attorneys,
Heather Nalley, for a time, but then repeatedly asked that she be replaced with
new counsel. Finally, the trial court granted defendant’s request to represent
himself, with Nalley serving as standby counsel, and this arrangement held for
several months. However, within a few weeks of trial, defendant again requested
appointed counsel, stating that he would accept anyone but Nalley. The trial court
denied the request, advising defendant that if he desired representation, Nalley
would remain his court appointed attorney.
…
In this case, defendant requested a waiver of counsel on the grounds that Nalley
did not spend adequate time preparing his defense, failed to file motions he
requested, failed to retrieve evidence he suggested, and released documents to an
expert witness without authorization. The trial court properly found that none of
these issues constituted proper cause for substitution of counsel. The choice of
theories to pursue, and the preparation of an expert witness, are matters of
professional judgment and trial strategy rightfully entrusted to the attorney.
Further, defendant’s general complaints about Nalley’s dedication or case
preparation do not warrant good cause for substitution of counsel. Moreover,
Nalley was defendant’s fourth attorney. Granting defendant yet another
substitution of counsel would have unreasonably disrupted the judicial process.
Jones, 2013 WL 5630075, * 3 (internal citations omitted).
The Sixth Amendment right to the assistance of counsel does not guarantee a criminal
defendant that he or she will be represented by a particular attorney. Serra v. Michigan
Department of Corrections, 4 F. 3d 1348, 1351 (6th Cir. 1993)(citing Caplin & Drysdale v.
United States, 491 U.S. 617, 624 (1989)). A criminal defendant who has the desire and the
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financial means to retain his own counsel “should be afforded a fair opportunity to secure
counsel of his own choice.” Id. (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). Indeed,
“[t]he Sixth Amendment guarantees the defendant the right to be represented by an otherwise
qualified attorney whom that defendant can afford to hire, or who is willing to represent the
defendant even though he is without funds.” U.S. v. Gonzalez-Lopez, 548 U.S. 140, 144
(2006)(quoting Caplin & Drysdale, 491 U.S. at 624-25).
However, while a criminal defendant who can afford his or her own attorney has a right
to a chosen attorney, that right is a qualified right. Serra, 4 F. 3d at 1348 (citing to Wheat v.
United States, 486 U.S. 153, 159 (1988)). Stated differently, the right to counsel of one’s own
choice is not absolute. See Wilson v. Mintzes, 761 F. 2d 275, 280 (6th Cir. 1985). “Although a
criminal defendant is entitled to a reasonable opportunity to obtain counsel of his choice, the
exercise of this right must be balanced against the court’s authority to control its docket.” Lockett
v. Arn, 740 F. 2d 407, 413 (6th Cir. 1984); See also Gonzalez-Lopez, 548 U.S. at 151-52)
(“Nothing we have said today casts any doubt or places any qualification upon our previous
holdings that limit the right to counsel of choice and recognize the authority of trial courts to
establish criteria for admitting lawyers to argue before them...We have recognized a trial court’s
wide latitude in balancing the right to counsel of choice against the needs of fairness, and against
the demands of its calendar.”) (internal citations omitted). Finally, the right to counsel of choice
may not be used to unreasonably delay a trial. See Linton v. Perini, 656 F.2d 207, 209 (6th Cir.
1981).
In reviewing a motion for substitution of counsel, a reviewing court should consider “the
timeliness of the motion; the adequacy of the [trial] court’s inquiry into the defendant’s
complaint; and the asserted cause for that complaint, including the extent of the conflict or

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breakdown in communication between lawyer and client (and the client’s own responsibility, if
any, for that conflict).” Martel v. Clair, 132 S. Ct. 1276, 1287 (2012). “Because a trial court’s
decision on substitution is so fact-specific, it deserves deference; a reviewing court may overturn
it only for an abuse of discretion.” Id.
Petitioner argues that he was entitled to substitute counsel because Ms. Nalley did not
spend enough time preparing his defense, failed to file motions he requested, failed to retrieve
evidence that Petitioner wanted, and released documents to the defense expert without
Petitioner’s authorization.
Petitioner is not entitled to relief for several reasons. First, Petitioner failed to establish
good cause for substitution of counsel because he failed to show that the conflict between
himself and his attorney was so great that it resulted in a total lack of communication, preventing
an adequate defense. See United States v. Jennings, 83 F. 3d 145, 149 (6th Cir. 1996). Petitioner
was not entitled to substitute counsel because his complaints against counsel involved
differences of opinion regarding trial strategy rather than any irreconcilable conflict or total lack
of communication. See e.g. Adams v. Smith, 280 F. Supp. 2d 704, 720 (E.D. Mich. 2003). The
record in this case does not demonstrate that the disagreements between Petitioner and his
attorney rose to the level of a conflict sufficient to justify the substitution of counsel. See United
States v. Sullivan, 431 F.3d 976, 981 (6th Cir. 2005).
Second, the trial judge sufficiently inquired into Petitioner’s allegations of ineffectiveness
against counsel at the hearings on Petitioner’s various motions. In light of the fact that there
were “multiple lengthy discussions” with Petitioner and his defense counsel about their alleged
conflicts, the trial judge did not abuse his discretion in denying Petitioner’s motion to appoint
him a fifth attorney. See U.S. v. Vasquez, 560 F.3d 461, 467 (6th Cir. 2009).

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Finally, Petitioner is unable to show that he was prejudiced by the failure of the trial court
to appoint substitute counsel, in light of the fact that he received effective assistance of counsel
at trial. Vasquez, 560 F.3d at 468. “The strained relationship” between Petitioner and his
attorney was not a “complete breakdown in communication” that prevented Petitioner from
receiving an adequate defense. Id.
The Michigan Court of Appeals’ conclusion that the trial judge’s denial of Petitioner’s
motion to substitute counsel did not violate his Sixth Amendment rights was not an unreasonable
application of federal law. For this reason, Petitioner is not entitled to federal habeas relief. See
Henness v. Bagley, 644 F.3d 308, 322 (6th Cir. 2011).
C.
Petitioner next contends that the trial judge erred in failing to suppress a statement that he
made to the police, because Petitioner was interrogated after he invoked his right to remain
silent. As a related claim, Petitioner contends that the trial judge erred in permitting Petitioner to
represent himself at the suppression hearing, without first obtaining a valid waiver of the right to
counsel.
The Michigan Court of Appeals rejected Petitioner’s suppression claim:
At the hearing regarding defendant’s motion to suppress, officer Gary Mitts
testified that he and another officer were sent to the Wexford County Jail to pick
defendant up and transport him to the Livingston County Jail. The officers took
defendant into custody and began the transport at about 5:30 p.m. Mitts testified
that as soon as defendant was placed in the back of the patrol car he was read his
Miranda warnings. Defendant stated that he knew his Miranda rights, and when
asked specifically what the rights entailed he stated that “it means I can keep my
mouth shut if I want to.” The officers made no attempt to interrogate defendant
during the transport from Wexford County to Livingston County; however, after
about 45 minutes defendant began asking the officers questions. After defendant
started initiating conversation, Mitts testified that he informed defendant that if
defendant wanted to talk he would read defendant his Miranda rights again and
then they would both ask questions. Defendant then stated “I’m not sayin’

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nothing.” No further attempts to question defendant or obtain a waiver of his
rights were made by the transport officers.
Detective David Fogo also testified at the suppression hearing. He testified that
he interviewed defendant at the Livingston County Jail sometime “before lunch”
the day after defendant was taken into custody and transported from Wexford
County. Fogo testified that the interview lasted about 30 to 40 minutes, and that
defendant appeared calm, seemed to understand everything that was going on, and
seemed eager to talk to him. Fogo testified that at the beginning of the interview
he asked defendant whether defendant “recalled Officer Mitts advising him of his
Miranda rights the day before,” and defendant stated that he “understood the
rights.” Fogo testified that he “clarified” that defendant understood his rights and
then specifically asked defendant “if he wanted to talk,” and defendant said “yes.”
The trial court denied defendant’s motion to suppress, concluding that
from the short amount of video that we watched from May the 4th
when he was picked up from the Wexford County Jail, it was clear
to mean [sic], and I so find, that Mr. Jones was aware of the rights;
he knew what the rights were. And he exercised the right not to
talk to the officer about the incident. Said he could be silent; he
was silent.
...I am going to deny the motion by the Defendant. I do find that
Mr. Jones had a knowing of [sic] the—his rights. That he was in a
condition or a state of mind at—that they were voluntarily done. I
don’t find his elaborate discussion during the half hour video that
we watched of the May 5th interview showed anything but a
person that responded clearly, coherently, understandingly,
intelligently, to the questions ... that were asked.
On appeal, defendant argues that the trial court erred by denying his motion to
suppress the statements he made during the interview with Detective Fogo.
Specifically, defendant argues that he invoked his right to remain silent during
transport, and that Detective Fogo failed to scrupulously honor his invocation of
his right to remain silent.
At the outset, we question whether defendant ever actually invoked his right to
remain silent under the circumstances of this case. It is clear from the testimony
at the hearing that the transport officers did not intend to interrogate or attempt to
interrogate defendant. Nor did the officers specifically ask defendant to waive his
Miranda rights. Nevertheless, even assuming defendant properly invoked his
rights during transport, we find no Miranda violation. The first attempt to
interrogate defendant did not occur until the day after he was transported and first
read his Miranda rights. Further, before Detective Fogo conducted the
interrogation, he clarified that defendant understood his Miranda rights and was
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willing to waive them. Defendant acknowledged that he had been read his
Miranda rights before the interview was conducted, and he further acknowledged
that he understood his rights, but wanted to talk to Detective Fogo. While
defendant denies Detective Fogo’s account of what happened, claiming that he
did not agree to speak to the detective and noting that no recording verifies the
detective’s account, the trial court was free to judge the credibility of the
witnesses. Moreover, defendant cites no authority for the proposition that the
police are required to create electronic records of such waivers. Thus, we
conclude that there was no Miranda violation and suppression was properly
denied. The police scrupulously honored defendant’s Miranda rights because
defendant clearly understood his rights and agreed to talk to the detective and
there was a significant lapse of time between defendant’s first invocation of his
right to remain silent and the subsequent attempt to obtain a waiver.
People v. Jones, 2013 WL 5630075, at *5-6 (internal citations and footnotes omitted).
A prosecutor may not use a defendant’s statements that stem from custodial interrogation
unless the prosecutor can demonstrate the use of procedural safeguards effective to secure a
defendant’s privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Unless other means are devised to inform a suspect of his right to silence and a “continuous
opportunity to exercise it,” the following warnings must be given to a suspect:
1. the person must be warned that he has a right to remain silent;
2. that any statement he does make may be used against him;
3. and that he has a right to the presence of an attorney, either appointed or
retained.
Miranda, 384 U.S. at 444. The Supreme Court in Miranda further explained:
“Once warnings have been given, the subsequent procedure is clear. If the
individual indicates in any manner, at any time prior to or during questioning, that
he wishes to remain silent, the interrogation must cease. At this point he has
shown that he intends to exercise his Fifth Amendment privilege; any statement
taken after the person invokes his privilege cannot be other than the product of
compulsion, subtle or otherwise. Without the right to cut off questioning, the
setting of in-custody interrogation operates on the individual to overcome free
choice in producing a statement after the privilege has been once invoked.”
Miranda, 384 U.S., at 473-474.

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The admissibility of statements obtained after a criminal suspect has invoked his right to
remain silent depends on whether the police “scrupulously honored” the suspect’s invocation of
his “right to cut off questioning.” Michigan v. Mosley, 423 U.S. 96, 104 (1975). Where the
police “scrupulously honor” such an invocation, there is no per se prohibition against resuming
questioning after the invocation of the right to silence, and a suspect may be approached again
later to seek a waiver. See id. at 104–05.
The Michigan Court of Appeals reasonably rejected Petitioner’s claim. When Petitioner
first spoke with the officers who transported him to the Livingston County Jail, the police
honored his request to cut off questioning and did not continue to interrogate him. Detective
Fogo did not speak with Petitioner until the next day, at which time he asked Petitioner if he
remembered the Miranda warnings which had been given to him by the officers the day before.
Petitioner confirmed that he did. Petitioner then indicated that he was willing to speak with
Detective Fogo. The Michigan Court of Appeals’ conclusion that Petitioner’s statement was
admissible was reasonable because: (1) the police advised Petitioner of his Miranda rights when
he was transported back from Wexford County to the Livingston County Jail, (2) the police
immediately ceased speaking with Petitioner when he invoked his right to remain silent, (3)
Detective Fogo only resumed questioning after a significant period of time, and (4) the detective
reminded Petitioner of his Miranda rights at this second interview. See Davie v. Mitchell, 547
F.3d 297, 310 (6th Cir. 2008).
Even assuming that Petitioner’s statement was taken in violation of Miranda, he still is
not entitled to relief because the admission of his statement was harmless error. In Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993), the U.S. Supreme Court held that for purposes of
determining whether federal habeas relief must be granted to a state prisoner on the ground of

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federal constitutional error, the appropriate harmless error standard to apply is whether the error
had a substantial and injurious effect or influence in determining the jury’s verdict.

The

admission of evidence obtained from a suspect in violation of Miranda is considered harmful
only if it has a substantial and injurious effect in determining the jury’s verdict. See Kyger v.
Carlton, 146 F. 3d 374, 381-82 (6th Cir. 1998). In light of the overwhelming evidence of guilt in
this case, the admission of Petitioner’s statement to the police did not have a substantial or
injurious influence or effect on the jury’s verdict. Id. Petitioner is not entitled to relief on this
portion of his third claim.
Petitioner further contends that the trial judge erred in permitting Petitioner to represent
himself at the hearing on his motion to suppress without obtaining a valid waiver of counsel.
The Michigan Court of Appeals rejected the claim:
Defendant alternatively argues that the trial court erred by proceeding with the
suppression hearing in reliance on his continued insistence on self-representation.
We disagree.
At the beginning of the suppression hearing, the trial court reminded defendant
that he was entitled to appointed counsel:
Q. Mr. Jones, you understand you do have the right to an attorney?
A. Yes, sir.
Q. If you can’t afford one I would put Ms. Nalley back on the case for you; you
understand that?
A. Yes, sir.
Q. And that would be at public expense; you understand that?
A. Yes, sir.
Q. You understand the maximum possible punishment on this case is up to life in
prison?
A. Yes, sir.
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Q. You understand, and ... I’ll express it here again today, in the opinion of the
Court you’re doing yourself a disservice by representing yourself-not availing
yourself of an attorney to assist you. I’m not asking for you to comment on that.
You have exercised your constitutional right to represent yourself. I’ve told you
in the past that I respect that. Knowing these things, Mr. Jones, do you wish to
continue representing yourself or do you wish to avail yourself of an attorney?
A. Represent myself.
The trial court accepted defendant’s waiver of counsel and proceeded with the
hearing.
…
In this case, defendant was given several opportunities to proceed with appointed
legal representation. Before beginning the suppression hearing, the trial court
informed defendant that he had a right to an attorney at public expense, and
offered to reappoint attorney Nalley if he wanted counsel, and also reminded
defendant that he was vulnerable to life imprisonment. Further, the trial court
expressed its opinion that defendant was doing himself a disservice by insisting
on self-representation. Nonetheless, when the trial court asked defendant if he
wanted to continue in propria persona, defendant responded unequivocally, “yes,
sir.” The trial court substantially complied with Williams and MCR 6.005(D)(1),
and thus properly accepted defendant’s waiver of counsel.
Moreover, to the extent that defendant is arguing that the trial court erred by
forcing defendant to choose between self-representation and the services of
Nalley, we find no error for the same reasons that we concluded that the trial court
did not err by refusing to appoint a fifth public defender as defendant’s attorney,
as discussed supra.
People v. Jones, 2013 WL 5630075, at * 6-7.
The United States Supreme Court has held that a waiver of the Sixth Amendment right to
counsel is valid only when it reflects “an intentional relinquishment or abandonment of a known
right or privilege.” Patterson v. Illinois, 487 U.S. 285, 292 (1988) (quoting Johnson v. Zerbst,
304 U.S. 458, 464 (1938)). A defendant’s waiver of his right to counsel must “be knowing,
voluntary, and intelligent.” Iowa v. Tovar, 541 U.S. 77, 88 (2004). The waiver must be “done
with sufficient awareness of the relevant circumstances.” Id. at 81 (internal quotation marks

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omitted). It is the criminal defendant’s burden to prove that he or she “did not competently and
intelligently waive” his or her right to the assistance of counsel. Id. at 92.
Before a criminal defendant waives his or her right to counsel, he or she “should be made
aware of the dangers and disadvantages of self-representation,” so that the record establishes that
the defendant knows what he or she is doing “and his choice is made with eyes open.” Faretta v.
California, 422 U.S. 806, 835 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S.
269, 279 (1942)). The Supreme Court, however, has not “prescribed any formula or script to be
read to a defendant who states that he elects to proceed without counsel.” Tovar, 541 U.S. at 88.
The information that a criminal defendant must have in order to make an intelligent election
“will depend on a range of case-specific factors, including the defendant’s education or
sophistication, the complex or easily grasped nature of the charge, and the stage of the
proceeding.” Id. The failure of a district court in a federal criminal case to give a particular
prophylactic warning and conduct a particular inquiry in determining whether a defendant should
be permitted to waive his or her right to counsel does not in and of itself require reversal of a
conviction. See U.S. v. McDowell, 814 F. 2d 245, 248-49 (6th Cir. 1987). There is thus no
clearly established federal law, as determined by the Supreme Court, requiring any specific
colloquy to determine whether a defendant’s waiver of counsel was made with “eyes open.”
Mack v. Holt, 62 Fed. Appx. 577, 580 (6th Cir. 2003); See also Sullivan v. Pitcher, 82 Fed.
Appx. 162, 165 (6th Cir. 2003) (a formal inquiry into a defendant’s desire to proceed pro se “is
not a sine qua non of constitutional waiver”).
In the present case, the judge advised Petitioner that he had a right to court-appointed
counsel to assist him at the hearing and was willing to reappoint Ms. Nalley to represent
Petitioner. The judge warned Petitioner that he faced a maximum of life in prison. The judge

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further admonished Petitioner that he was doing a “disservice” to himself by proceeding pro se at
the suppression hearing. At several previous hearings, the judge had also warned Petitioner of
the dangers of self-representation. Under the circumstances, the Michigan Court of Appeals
reasonably concluded that Petitioner’s waiver of the right to counsel was valid. Petitioner is not
entitled to relief on his third claim.
D.
In his fourth and fifth claims, Petitioner contends that he was denied the effective
assistance of trial counsel during the times in which Ms. Nalley was representing him.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the defendant must
demonstrate that, considering all of the circumstances, counsel’s performance was so deficient
that the attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment.
Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome
a strong presumption that counsel’s behavior lies within the wide range of reasonable
professional assistance. Id. In other words, Petitioner must overcome the presumption that, under
the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at
689. Second, the defendant must show that such performance prejudiced his defense. Id. To
demonstrate prejudice, the defendant must show that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The Supreme Court’s holding in Strickland places the burden on a
defendant who raises a claim of ineffective assistance of counsel, and not the state, to show a
reasonable probability that the result of the proceeding would have been different, but for
counsel’s allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).

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More importantly, on habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect but whether
that determination was unreasonable - a substantially higher threshold.’” Knowles v. Mirzayance,
556 U.S. at 123 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal question
is whether the state court’s application of the Strickland standard was unreasonable. This is
different from asking whether defense counsel’s performance fell below Strickland’s standard.”
Harrington v. Richter, 562 U.S. at 101. Indeed, “because the Strickland standard is a general
standard, a state court has even more latitude to reasonably determine that a defendant has not
satisfied that standard.” Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Pursuant to the § 2254(d)(1) standard, a “doubly deferential judicial review”
applies to a Strickland claim brought by a habeas petitioner. Id. This means that on habeas
review of a state court conviction, “[A] state court must be granted a deference and latitude that
are not in operation when the case involves review under the Strickland standard
itself.”Harrington, 562 U.S. at 101. “Surmounting Strickland’s high bar is never an easy task.”
Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner first claims that defense counsel was ineffective for eliciting from the victim
during cross-examination that Petitioner had forgery and drunk driving convictions. As the
Michigan Court of Appeals noted in rejecting Petitioner’s claim, defense counsel did not
specifically question the victim about these convictions but was merely questioning the victim
about Petitioner’s history and convictions for “hurting women” when the victim volunteered the
information concerning the forgery and drunk driving. See Jones, 2013 WL 5630075, at *10.
The victim’s answer was non-responsive to counsel’s question. This Court rejects Petitioner’s
claim that counsel was ineffective for eliciting this testimony from the victim, because the

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victim’s remarks about Petitioner’s forgery and drunk driving convictions were a non-responsive
answer to a legitimate question from defense counsel. See Hodge v. Haeberlin, 579 F. 3d 627,
641 (6th Cir. 2009).
In his fifth claim, Petitioner claims that his defense counsel was ineffective for failing to
correct the defense expert’s mistaken recollection that Petitioner admitted to threatening to blow
up the bank where the victim worked. The Michigan Court of Appeals rejected Petitioner’s
claim, in part, by ruling that even if counsel was somehow deficient, any such error was harmless
because two other witnesses, an acquaintance and a police detective, testified that Petitioner had
threatened to blow up the bank. People v. Jones, No. 308293, 2013 WL 5630075, at *10.
A reviewing court “need not determine whether counsel’s performance was deficient ...
[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice
....”. Strickland, 466 U.S. at 697. Thus, if an alleged error by counsel was not prejudicial, a
federal court need not determine whether counsel’s performance was constitutionally deficient.
See McMeans v. Brigano, 228 F. 3d 674, 686 (6th Cir. 2000) (citing to Strickland, 466 U.S. at
697). In light of the fact that two other witnesses testified that Petitioner threatened to blow up
the bank, any possible deficiency by counsel in failing to correct the defense expert’s mistaken
recollection that Petitioner told him he threatened to blow up the bank did not prejudice
Petitioner.
IV
Before Petitioner may appeal this Court’s dispositive 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 court rejects 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 district court’s assessment of the constitutional claim debatable or wrong. See
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 the 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.
Having considered the matter, the Court concludes that Petitioner has failed to make a
substantial showing of the denial of a constitutional right.

Accordingly, a certificate of

appealability is not warranted in this case. The Court further concludes that Petitioner should not
be granted leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See
Fed.R.App. P. 24(a).
V
Accordingly, it is ORDERED that Jones’s petition for habeas corpus (ECF No. 1) is
DENIED.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that leave to appeal in forma pauperis is DENIED.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 14, 2015
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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 14, 2015.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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