Jackway v. Woods
Filing
13
OPINION and ORDER Denying and Dismissing with Prejudice 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Thomas L. Ludington. (Sian, M)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
RALPH JACKWAY, #252862,
Petitioner,
v.
Case No. 15-cv-11491
Honorable Thomas L. Ludington
JEFFREY WOODS,
Respondent.
__________________________________________/
OPINION AND ORDER DENYING AND DISMISSING WITH PREJUDICE PETITION
FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner, Ralph Jackway, confined at the Chippewa Correctional Facility in Kincheloe,
Michigan, filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner was convicted by a jury in the Lapeer County Circuit Court of second-degree home
invasion, Mich. Comp. Laws § 750.110a(3); and unlawfully driving away an automobile
(U.D.A.A.), Mich. Comp. Laws § 750.413. Petitioner was sentenced as a fourth-felony habitual
offender under Mich. Comp. Laws § 769.12 to nine to thirty years in prison on the second-degree
home invasion charge and nine to fifteen years in prison on the U.D.A.A. conviction. Petitioner
contends: (1) that his speedy trial rights were violated when he was not brought to trial within
180 days of the prosecutor receiving notice that he was incarcerated on another offense; (2) that
the evidence was insufficient to convict; (3) that trial counsel was ineffective; (4) that Petitioner
was forced to go to trial in jail clothing and while wearing other visible restraints; (5) that the
prosecution witness committed perjury; (6) and that habeas relief should be granted because
Petitioner is innocent. The respondent has filed an answer to the petition, asserting that the
claims lack merit. Petitioner’s claims are indeed without merit, therefore the petition will be
denied.
I.
The facts relied upon by the Michigan Court of Appeals 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). They are recited here verbatim.
This case arises out of the break-in of Mark and Mary Becker’s home and the
theft of Herbert Cornette’s pickup truck. The truck was found stuck in a snow
bank near the Beckers’ home, and police later found defendant in possession of
the Beckers’ jewelry and camcorder.
...
Viewing the evidence in a light most favorable to the prosecution, there was
sufficient evidence for a rational juror to find beyond a reasonable doubt that
defendant committed the crime. Christine Roberts, defendant’s then girlfriend,
testified that defendant admitted to her that he broke into a home and stole
property. She also saw him possess this property. Police officers found some of
the stolen property in defendant’s home. And defendant admitted at trial that he
possessed the stolen property. He also admitted to Roberts that he had Cornette’s
truck and footprints in the snow led from the truck to the Beckers’ home.
...
Defendant argues that there was insufficient evidence showing that he took the
truck without the owner’s permission because Cornette did not hold legal title to
the truck. However, MCL 257.37(a) provides that an individual who has exclusive
use of a motor vehicle for more than 30 days is considered an “owner” of that
vehicle. The facts, viewed in a light most favorable to the prosecution, were
sufficient for a rational juror to find that Cornette exclusively used the truck for
more than 30 days. That is, Cornette’s actions of purchasing the truck, installing a
new motor in it, keeping it on his property for six months, deciding to sell it after
the crime, and then receiving the proceeds of its sale, permitted the jury to
reasonably infer that he exclusively used the truck for more than 30 days.
Further, there was sufficient evidence for a rational juror to find that the other
elements of UDAA were proven beyond a reasonable doubt. It is undisputed that
Cornette never granted defendant permission to use the truck on the night at issue.
Roberts testified that defendant admitted to her that he had Cornette’s truck.
Testimony established that defendant called an acquaintance on the night of the
crime and asked for help because he was “stuck.” The area where the truck was
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found, and the truck itself, visibly showed that it was stuck. Moreover, the
evidence connecting defendant to the home invasion supported that he drove the
truck. Accordingly, there was sufficient evidence for a rational juror to convict
defendant of UDAA.
People v. Jackway, No. 313703, 2014 WL 1510120, at * 1-3 (Mich. Ct. App. Apr. 15, 2014).
Petitioner’s conviction was affirmed on appeal, although the case was remanded to
correct Petitioner’s sentencing guidelines score. Id., lv. den. 853 N.W.2d 340 (Mich. 2014);
reconsideration den., 858 N.W.2d 447 (Mich. 2015).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The state appellate courts failed to make good faith efforts to consider 180 day
rule was violated where prosecutor had been notified of [Jackway’s] location
about 469 days before trial. (190 days before arraignment.)
II. Truthful evidence was insufficient to convict [Jackway] on home invasion and
UDAA charges, requiring dismissal of conviction(s) for constitutional violations.
III. [Jackway was] denied effective assistance of counsel during the preliminary
process and trial proceedings.
IV. Miscarriage of justice and actual innocence of [Jackway] relies firmly on
enclosed motion and brief for new trial, dated 10-21-12.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), governs all habeas
applications filed after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326−27 (1997). In
this case, Jackway’s habeas application was filed in April 2015; therefore, his petition is
governed by AEDPA.
AEDPA created new standards for review of state court decisions under 28 U.S.C.
§2254(d). Paragraph (d), as amended, reads as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim—
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(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.
28 U.S.C. §2254(d).
Under §2254(d)(1), a federal court may grant a writ of habeas corpus under two different
clauses, both of which provide the basis for relief: (1) the “contrary to” clause or (2) the
“unreasonable application” clause. Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
Under the “contrary to” clause, a federal court may grant habeas relief in two different
ways. First, if the state court arrives at a conclusion that contradicts the governing law set forth
in Supreme Court cases. Id. Second, if the state court decides a case differently than the Supreme
Court has decided on a set of materially indistinguishable facts. Id. As the Supreme Court
explains, the words “contrary to” should be construed to mean “diametrically different, opposite
in character, or mutually opposed.” Id. at 405. Accordingly, “the state court’s decision must be
substantially different from . . . [relevant Supreme Court precedent].” Id.
A federal court may grant habeas relief under the “unreasonable application” clause in
two different ways as well. First, “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.” Id. at 413. Second, if the state court decision either unreasonably extends or
unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context
where it should apply. Williams, 529 U.S. at 407; Arnett v. Jackson, 393 F.3d 681, 686 (6th Cir.
2005). The proper inquiry for the “unreasonable application” analysis is whether the state court’s
decision was “objectively unreasonable” and not simply erroneous or incorrect. Williams, 529
U.S. at 409−11. The Supreme Court explains that the writ of habeas corpus “is a ‘guard against
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extreme malfunctions in the state criminal justice system,’ not a substitute for ordinary error
correction through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Jackson
v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in the judgment)). Thus, “[a]s a
condition for obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any possibility
for fair-minded disagreement.” Harrington, 131 S. Ct. at 786–87.
When analyzing whether a state court’s decision is “contrary to” or an “unreasonable
application” of clearly established federal law, a federal court may only look to the holdings, as
opposed to dicta, of the Supreme Court’s decisions as of the time of the relevant state-court
decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams, 529 U.S. at 412. However, the
standard set forth in § 2254(d) “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); see
also Mitchell v. Esparza, 540 U.S. 12, 16 (2003). In addition, a court may not look to lower
federal court decisions to formulate the relevant rule of law; but, it may look to lower federal
courts decisions to assess the reasonableness of the state court’s resolution of an issue. Smith v.
Stegall, 385 F.3d 993, 998 (6th Cir. 2004). Accordingly, “[u]nder AEDPA, if there is no ‘clearly
established Federal law, as determined by the Supreme Court,’ that supports a habeas petitioner’s
legal argument, the argument must fail.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005)
(quoting 28 U.S.C. § 2254(d)(2)) (emphasis in original).
III.
A.
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Petitioner first contends that his right to a speedy trial was violated because he was
brought to trial in violation of the 180 day rule set forth in Mich. Comp Laws § 780.131(1) and
M.C.R. 6.004(d). Petitioner is not entitled to habeas relief on his claim that his right to a speedy
trial was deprived violation of Michigan’s 180 day rule because it is a state law claim. See Burns
v. Lafler, 328 F. Supp. 2d 711, 722 (E.D. Mich. 2004). A violation of a state speedy trial law by
state officials, by itself, does not present a cognizable federal claim that is reviewable in a habeas
petition. Burns, 328 F. Supp. 2d at 722 (citing Poe v. Caspari, 39 F. 3d 204, 207 (8th Cir. 1994);
Wells v. Petsock, 941 F. 2d 253, 256 (3rd Cir. 1991)). Petitioner’s allegation that the State of
Michigan violated its own 180 day rule would therefore not entitle him to habeas relief. Id.
To the extent that Petitioner is claiming that he was denied his Sixth Amendment right to
a speedy trial, his claim is without merit. The Sixth Amendment guarantees a criminal defendant
the right to a speedy trial. U.S. CONST. Amend. VI. To determine whether a speedy trial violation
has occurred, the 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).
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. Therefore, to trigger a speedy trial analysis, the accused must
allege that the interval between the accusation and the trial has crossed the threshold dividing
ordinary from presumptively prejudicial delay. Doggett v. United States, 505 U.S. 647, 651-52
(1992). Courts have generally found postaccusation delays that approach one year to be
“presumptively prejudicial”. Id. 505 U.S. at 652, n. 1; United States v. Brown, 90 F. Supp. 2d
841, 846 (E.D. Mich. 2000).
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Petitioner was not arraigned on this offense until December 6, 2011. Petitioner went to
trial on September 20, 2012, some nine months later. Although an arrest warrant had been issued
for Petitioner prior to his arraignment, this would not trigger the right to a speedy trial. The
Supreme Court noted that it is “[e]ither a formal indictment or information or else the actual
restraints imposed by arrest and holding to answer a criminal charge that engage the particular
protections of the speedy trial provision of the Sixth Amendment.” United States v. Marion, 404
U.S. 307, 320 (1971). Therefore, although the invocation of the Speedy Trial Clause of Sixth
Amendment need not await indictment, information or other formal charge, the provision of the
Speedy Trial Clause does not reach to the period prior to arrest. Id. The issuance of an arrest
warrant does not, in and of itself, trigger the right to a speedy trial. See United States v. Ramos,
586 F. 2d 1078, 1079 (5th Cir. 1978).
There was only a nine month delay between Petitioner’s arraignment and trial, which is
not presumptively prejudicial. See United States v. Gardner, 488 F.3d 700, 719 (6th Cir. 2007)
(nine month delay between indictment and trial not presumptively prejudicial). Because
Petitioner has failed to establish that his nine month delay was presumptively prejudicial, it
would be unnecessary for this Court to inquire into the other Barker factors. Id. Petitioner is not
entitled to habeas relief because the nine month delay between his arraignment and his trial is not
presumptively prejudicial. See Wilson v. Mitchell, 61 Fed. Appx. 944, 946 (6th Cir.
2003)(unpublished).
B.
Petitioner next contends that there was insufficient evidence to support his convictions.
It is beyond question that “the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
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crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970). But the critical
inquiry on review of the sufficiency of the evidence to support a criminal conviction is, “whether
the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court to
“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.” Id. at 318-19 (internal citation and footnote omitted) (emphasis in the original). Instead,
the relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Id.
More importantly, a federal habeas court may not overturn a state court decision that
rejects a sufficiency of the evidence claim simply because the federal court disagrees with the
state court’s resolution of that claim. Instead, a federal court may grant habeas relief only if the
state court decision was an objectively unreasonable application of the Jackson standard. See
Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “Because rational people can sometimes disagree, the
inevitable consequence of this settled law is that judges will sometimes encounter convictions
that they believe to be mistaken, but that they must nonetheless uphold.” Id. Indeed, for a federal
habeas court reviewing a state court conviction, “the only question under Jackson is whether that
finding was so insupportable as to fall below the threshold of bare rationality.” Coleman v.
Johnson, 132 S.Ct. 2060, 2065 (2012).
Finally, on habeas review, a federal court does not reweigh the evidence or redetermine
the credibility of the witnesses whose demeanor was observed at trial. Marshall v. Lonberger,
459 U.S. 422, 434 (1983). It is the province of the factfinder to weigh the probative value of the
evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir.
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1992). A habeas court therefore must defer to the fact finder for its assessment of the credibility
of witnesses. Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003).
Petitioner first contends that there was insufficient evidence to establish his identity as
the person who broke into the Beckers’ home. The elements of second degree home invasion
under Michigan law are “(1) a breaking, (2) an entry, and (3) specific intent to commit a felony
or a listed crime.” United States v. Howard, 327 F. App’x 573, 575 (6th Cir. 2009). Petitioner
does not dispute that the elements of second-degree home invasion were proven but claims that
there was insufficient evidence to establish that he was the perpetrator. Under Michigan law,
“[t]he identity of a defendant as the perpetrator of the crimes charged is an element of the offense
and must be proved beyond a reasonable doubt.” Byrd v. Tessmer, 82 F. App’x 147, 150 (6th Cir.
2003) (citing People v. Turrell, 181 N.W.2d 655, 656 (Mich. Ct. App. 1970)).
Petitioner’s girlfriend, Christine Roberts, testified that Petitioner admitted to her that he
broke into a home and stole property. Roberts saw him possess this property. “[T]he testimony of
a single, uncorroborated prosecuting witness or other eyewitness is generally sufficient to
support a conviction.”s Brown v. Davis, 752 F. 2d 1142, 1144 (6th Cir. 1985)(internal citations
omitted). “[A]n admission by the accused identifying himself as the person involved in the
[crime] is sufficient to sustain a guilty verdict when the crime itself is shown by independent
evidence.” United States v. Opdahl, 610 F.2d 490, 494 (8th Cir. 1979); See also Sok v.
Romanowski, 619 F. Supp. 2d 334, 351 (W.D. Mich. 2008) (holding there was sufficient
evidence to establish petitioner’s identity as armed robber where his admissions placed him at
the location of the crime). In the present case, there was independent evidence that a home
invasion had taken place. Petitioner’s admission of guilt was sufficient evidence to establish his
guilt for the home invasion charge.
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In addition, police officers found some of the stolen property in Petitioner’s home.
Petitioner also told Roberts that he had Cornette’s truck and footprints in the snow led from the
truck to the Beckers’ home. Circumstantial evidence alone is sufficient to support a conviction,
and it is not necessary for the evidence at trial to exclude every reasonable hypothesis except that
of guilt. Johnson v. Coyle, 200 F. 3d 987, 992 (6th Cir. 2000) (internal quotations omitted). The
identity of a defendant can be inferred through circumstantial evidence alone. See Dell v. Straub,
194 F. Supp. 2d 629, 648 (E.D. Mich. 2002). This additional circumstantial evidence was
sufficient to establish Petitioner’s identity as the perpetrator separate and apart from his
girlfriend’s testimony.
To the extent that Petitioner challenges the credibility of the prosecution witnesses,
particularly Christine Roberts, he would not be entitled to relief. Attacks on witness credibility
are simply challenges to the quality of the prosecution’s evidence, and not to the sufficiency of
the evidence. Martin v. Mitchell, 280 F. 3d 594, 618 (6th Cir. 2002). An assessment of the
credibility of witnesses is generally beyond the scope of federal habeas review of sufficiency of
evidence claims. Gall v. Parker, 231 F. 3d 265, 286 (6th Cir. 2000). The mere existence of
sufficient evidence to convict therefore defeats a petitioner’s claim. Id. Any insufficiency of
evidence claim that rests on an allegation of the witnesses’ credibility, which is the province of
the finder of fact, does not entitle a habeas petitioner to relief. See Tyler v. Mitchell, 416 F. 3d
500, 505 (6th Cir. 2005).
Petitioner further contends that there was insufficient evidence to convict him of
U.D.A.A. because there was no evidence that he took the truck without the owner’s permission
because Cornette did not own legal title to the truck. The Michigan Court of Appeals rejected
this claim, on the ground that Mich. Comp. Laws § 257.37(a) provides that an individual who
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has exclusive use of a motor vehicle for more than 30 days is considered an “owner” of that
vehicle under Michigan law. The Michigan Court of Appeals further concluded that there was
sufficient evidence for a rational juror to find that Cornette exclusively used the truck for more
than 30 days. People v. Jackway, 2014 WL 1510120, at *2.
The United States Supreme Court has “repeatedly held that a state court’s interpretation
of state law, including one announced on direct appeal of the challenged conviction, binds a
federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005). State courts
are the “ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). What is
essential to establish an element of a crime, like the question whether a given element is
necessary, is a question of state law, for which federal habeas review is not available. See
Sanford v. Yukins, 288 F.3d 855, 862 (6th Cir. 2002). Moreover, a federal court on habeas review
must distinguish genuine sufficiency of the evidence claims from state law claims merely
disguised as Jackson claims. Id. (citing Bates v. McCaughtry, 934 F.2d 99, 103 (7th Cir. 1991)).
This Court must therefore defer to the Michigan Court of Appeals’ construction of the elements
of state crimes. See Coe v. Bell, 161 F.3d 320, 347 (6th Cir. 1998).
The Michigan Court of Appeals concluded that under Michigan law, Mr. Cornette was
the owner of the vehicle and his testimony that he did not give Petitioner permission to drive the
truck was sufficient to support Petitioner’s U.D.A.A. conviction. This Court must defer to the
Michigan Court of Appeals’ construction of the elements of U.D.A.A. and therefore cannot grant
habeas relief on any claim that the Michigan Court of Appeals misinterpreted Michigan law.
C.
Petitioner next alleges he was denied the effective assistance of counsel.1
1
Respondent contends that several of Petitioner’s ineffective assistance of counsel claims are unexhausted
but meritless. Assuming that some of Petitioner’s claims have not been properly exhausted with the state courts, an
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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 the
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).
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
unexhausted claim may nonetheless be rejected if it lacks merit. See Burton v. Bock, 239 F. Supp. 2d 686, 691 (E.D.
Mich. 2002) (citing 28 U.S.C. § 2254(b)(2); Cain v. Redman, 947 F. 2d 817, 820 (6th Cir.1991)). In the interest of
judicial economy, and to avoid any further burden on the state courts if Petitioner were to return there to attempt to
exhaust these claims in a post-conviction motion, Petitioner’s unexhausted claims will be addressed on the merits.
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Strickland’s standard.” Harrington v. Richter, 562 U.S. 86, 101 (2011). 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. at 664). 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 his first trial counsel was ineffective for failing to call alibi
witnesses at his preliminary examination.
Under Strickland, a court must presume that decisions by counsel as to whether to call or
question witnesses or present evidence are matters of trial strategy. See Hutchison v. Bell, 303 F.
3d 720, 749 (6th Cir. 2002). “A preliminary examination is not the time to create questions of
fact or present a defense to the charges.” People v. Hill, 282 Mich. App. 538, 546, 766 N.W.2d
174 (2009); aff’d in part, vacated in part on other grounds, 773 N.W.2d 257 (Mich. 2009)(citing
People v. Goecke, 457 Mich. 442, 469-470, 579 N.W.2d 868 (1998)). Presenting alibi witnesses
at the preliminary examination “would have been futile because the district court is not permitted
to discharge a defendant [at a preliminary examination] on the basis of factual or credibility
disputes.” Id. Thus, counsel was not ineffective for failing to present a defense at the preliminary
examination. Id.
Petitioner next claims that counsel was ineffective for failing to bring a motion to quash
the information. Petitioner makes no allegation that the evidence was insufficient to bind
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Petitioner over for trial. In this case, there was sufficient evidence presented at the preliminary
examination to support Petitioner’s bindover for trial. Accordingly, Petitioner is unable to show
that counsel was ineffective for failing to file a motion to quash the information. See, e.g., Dell v.
Straub, 194 F. Supp. 2d at 649.
Petitioner next contends that he was denied the effective assistance of counsel because
his first attorney failed to file a motion to dismiss based on a violation of the 180 day rule.
Petitioner’s second attorney, who was appointed to replace the first attorney, did file a motion to
dismiss the charges because of the alleged 180 day rule violation, which was denied. Petitioner
was not denied the effective assistance of counsel by his first attorney’s failure to file a motion to
dismiss based on the 180 day rule, when his replacement counsel did, in fact, file such a motion,
which was denied by the trial court. See United States v. Galloway, 749 F.3d 238, 241 (4th Cir.
2014). In addition, Petitioner filed a post-trial motion for a new trial, in which he again moved
for the charges to be dismissed based on a violation of the 180 day rule. See Def.’s Mot. for New
Trial, ECF No. 11-12. The judge denied the motion for a new trial at sentencing. (Tr. 11/19/12,
pp. 9-11). In light of the fact that the judge rejected Petitioner’s 180 day rule claim when denying
the motion for a new trial, Petitioner is unable to show that he was prejudiced by any failure of
his attorney to raise this claim earlier. See Butler v. Renico, 255 F. App’x 939, 947 (6th Cir.
2007).
Petitioner next contends that his first and his second attorneys were not honest with the
trial judge about the attorney-client relationship between Petitioner and themselves and portrayed
Petitioner as a problem client.
Petitioner has offered no proof in support of this claim nor does he offer any argument as
to how he was prejudiced by his attorneys’ allegedly negative remarks. Conclusory allegations of
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ineffective assistance of counsel, without any evidentiary support, do not provide a basis for
habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998).
Petitioner next contends that trial counsel was ineffective for failing to call Christa
Robbins as an alibi witness at trial.
Although Petitioner mentioned Christa Robbins’s name in his supplemental pro per Rule
4 brief, Petitioner did not attach any affidavit from this witness to his supplemental brief. He also
has not provided this Court with an affidavit from Ms. Robbins concerning her proposed
testimony and willingness to testify on Petitioner’s behalf. As mentioned above, conclusory
allegations of ineffective assistance of counsel, without any evidentiary support, do not provide a
basis for habeas relief. See Workman v. Bell, 178 F.3d at 771. By failing to present any evidence
to the state courts in support of his ineffective assistance of counsel claim, Petitioner is not
entitled to an evidentiary hearing on his ineffective assistance of counsel claim with this Court.
See Cooey v. Coyle, 289 F. 3d 882, 893 (6th Cir. 2002) (citing 28 U.S.C. § 2254(e)(2)(A)(ii)).
Petitioner has not attached any offer of proof or any affidavits sworn by the proposed witness.
Petitioner has not offered, either to the Michigan courts or to this Court, any evidence beyond his
own assertions as to whether Christa Robbins would have been able to testify and what the
content of her testimony would have been. In the absence of such proof, Petitioner is unable to
establish that he was prejudiced by counsel’s failure to call Ms. Robbins to testify at trial, so as
to support the second prong of an ineffective assistance of counsel claim. See Clark v. Waller,
490 F. 3d 551, 557 (6th Cir. 2007).
Petitioner next claims that his trial counsel was ineffective because he failed to
effectively examine Kimberly Robbins, an alibi witness for Petitioner. Robbins testified “as to
exact times when [Petitioner] was with [her] between December 2010 and May 2011.”
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A review of Kimberly Robbins’ testimony shows that defense counsel questioned her
about the fact that she had been in a romantic relationship with Petitioner from December of
2010 until his arrest in May of 2011. Tr. 9/20/12, pp. 422-28. Counsel elicited testimony from
Robbins that beginning in January of 2011, Petitioner would stay every night at her house.
Robbins testified that Petitioner stayed at her house every night until May of 2011. Id. at 425).
Robbins testified that other than Petitioner going to his job, he was never away from her home
for more than a few hours. Id. at 426-27.
Petitioner has offered no evidence that Ms. Robbins would have been able to remember
Petitioner being with her on the specific date and time of the home invasion had she been asked
by counsel. Counsel did elicit testimony from Ms. Robbins that Petitioner had stayed at her
house every night from January of 2011 until May of 2011. Counsel’s questioning was sufficient
to present Petitioner’s alibi defense to the jury. Petitioner’s claim that if his counsel had
questioned Ms. Robbins more thoroughly, she would have testified in a more credible way is
purely speculative. Petitioner’s counsel was not ineffective for this reason. See, e.g., United
States v. Burwell, 83 F. Supp. 3d 6, 12 (D.D.C. 2015).
Petitioner further contends that trial counsel was ineffective for failing to more
adequately cross-examine the various police witnesses.
Petitioner’s claim is conclusory. Petitioner does not indicate what questions his attorney
should have asked the police witnesses. Petitioner has not identified how additional
impeachment of the officers would have affected the jury verdict. Defense counsel did not
perform ineffectively by not more fully cross-examining these witnesses, particularly when the
effect of further probing is entirely speculative on Petitioner’s part. See Jackson v. Bradshaw,
681 F.3d 753, 764-65 (6th Cir. 2012).
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Petitioner finally contends that counsel was ineffective because he failed to visit him
before trial. The record establishes that counsel was present and assisted Petitioner at the pre-trial
and trial proceedings. Petitioner is not entitled to relief on his claim because he failed to show
that he was prejudiced by counsel’s alleged failure to consult with him prior to trial. See Bowling
v. Parker, 344 F. 3d 487, 506 (6th Cir. 2003) (holding trial counsel’s alleged failure to consult
with defendant was not ineffective, although attorneys allegedly met with defendant for less than
one hour in preparing defense, because defendant did not show how additional consultation
could have altered outcome of trial). Petitioner is not entitled to relief on his ineffective
assistance of counsel claims.
D.
Petitioner lastly claims that he is entitled to relief because of a miscarriage of justice.
Petitioner first contends that he is entitled to habeas relief because of his actual innocence. In
Herrera v. Collins, 506 U.S. 390, 400 (1993), the Supreme Court held that claims of actual
innocence based on newly discovered evidence fail to state a claim for federal habeas relief
absent an independent constitutional violation occurring in the underlying state criminal
proceeding. Federal habeas courts sit to ensure that individuals are not imprisoned in violation of
the constitution, not to correct errors of fact. Id. See also McQuiggin v. Perkins, 133 S. Ct. 1924,
1931 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief based on
a freestanding claim of actual innocence”). Freestanding claims of actual innocence are thus not
cognizable on federal habeas review, absent independent allegations of constitutional error at
trial. See Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007) (collecting cases). Petitioner is
therefore not entitled to relief for this claim under available Supreme Court precedent. See
Wright v. Stegall, 247 F. App’x 709, 711 (6th Cir. 2007).
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Petitioner further alleges that he was forced to go to trial in jail clothing. The trial judge
rejected this claim in denying the motion for a new trial, finding that Petitioner had worn civilian
clothing at trial and that there was no evidence that the Taser belt under his clothing was visible
to the jury. (Tr. 11/19/12, pp. 13-15).
In considering federal habeas petitions, a federal district court must presume the
correctness of state court factual determinations, and a habeas petitioner may rebut this
presumption only with clear and convincing evidence. See Bailey v. Mitchell, 271 F. 3d 652, 656
(6th Cir. 2001); 28 U.S.C. § 2254(e)(1). The factual finding by the trial court that Petitioner was
not wearing jail clothing or that any restraints were visible to the jurors is binding on this Court
unless Petitioner can show that it is clearly erroneous. See, e.g., Earhart v. Konteh, 589 F.3d 337,
349 (6th Cir. 2009) (citing 28 U.S.C. § 2254(e)(1)). Petitioner has offered no clear and
convincing evidence to rebut the trial judge’s finding that he was not wearing jail clothing or
restraints visible to the jury during trial. He is not entitled to relief on this claim.
Petitioner next contends that Christine Roberts committed perjury at his trial. The
deliberate deception of a court and jurors by the presentation of known and false evidence is
incompatible with the rudimentary demands of justice. Giglio v. United States, 405 U.S. 150, 153
(1972). There is also a denial of due process when the prosecutor allows false evidence or
testimony to go uncorrected. Napue v. Illinois, 360 U.S. 264, 269 (1959)(internal citations
omitted). To prevail on a claim that a conviction was obtained by evidence that the government
knew or should have known to be false, a defendant must show that the statements were actually
false, that the statements were material, and that the prosecutor knew they were false. Coe v.
Bell, 161 F. 3d 320, 343 (6th Cir. 1998).
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Petitioner presented no evidence to suggest that Ms. Roberts testified falsely. Conclusory
allegations of perjury in a habeas corpus petition must be corroborated by some factual evidence.
Barnett v. United States, 439 F.2d 801, 802 (6th Cir. 1971). More importantly, assuming that Ms.
Roberts’s testified falsely on some matters, Petitioner is still not entitled to habeas relief on his
perjury claim, because he has failed to show that the prosecutor knew that the witness testified
falsely. See Rosencrantz v. Lafler, 568 F. 3d 577, 587 (6th Cir. 2009).
IV.
The petition for a writ of habeas corpus will be denied. Petitioner will also be denied a
certificate of appealability. In order to obtain a certificate of appealability, a prisoner must make
a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To
demonstrate this denial, the applicant is required to show that reasonable jurists could debate
whether, or agree that, the petition should have been resolved in a different manner, or that the
issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel,
529 U.S. 473, 483-84 (2000). When a district court rejects a habeas petitioner’s constitutional
claims on the merits, the petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims to be debatable or wrong. Id. at 484. A
federal district court may grant or deny a certificate of appealability when the court issues a
ruling on the habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002).
For the reasons stated in this opinion, the Court will deny Petitioner a certificate of
appealability because he has failed to make a substantial showing of the denial of a federal
constitutional right. Dell v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2002). Because
McFerrin has not made a substantial showing of the denial of a constitutional right he is not
entitled to the issuance of a certificate of appealability on this claim. See Heidelberg v. Illinois
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Prisoner Review Bd., 163 F.3d 1025, 1025-1027 (7th Cir. 1998). The Court will also deny
Petitioner leave to proceed in forma pauperis on appeal because the appeal would be frivolous.
28 U.S.C. § 1915(a)(3).
V.
Accordingly, it is ORDERED that the petition for writ of habeas corpus, ECF No. 1, is
DENIED and DISMISSED with prejudice.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that leave to proceed in forma pauperis on appeal is DENIED.
Dated: January 26, 2016
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
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 January 26, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager
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