Bothel v. Woods

Filing 10

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DENNIS BOTHEL, # 464266,
Petitioner,
v

Case No. 16-cv-13718
Honorable Thomas L. Ludington

JEFFREY WOODS,
Respondent.
__________________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO
APPEAL IN FORMA PAUPERIS
Petitioner Dennis Bothel, a state prisoner, seeks habeas corpus relief under 28 U.S.C. §
2254. Petitioner Bothel is serving concurrent sentences of 8 to 20 years for first-degree home
invasion and 6 to 10 years for assault with intent to commit great bodily harm after he was
convicted by a jury in Macomb County Circuit Court. His current petition raises nine claims: (1)
the trial court failed to instruct the jury on lesser offenses, (2) a mistrial should have been
declared after the prosecutor erroneously accused Petitioner of presenting false evidence, (3) the
prosecutor suppressed evidence of the victim’s medical records and criminal history, (4)
insufficient evidence was presented to sustain the convictions, (5) Petitioner’s trial counsel was
ineffective during the plea bargaining process, (6) Petitioner’s right to confront witnesses was
violated by limitations placed on his cross examination of a prosecution witness, (7) Petitioner’s
trial was rendered unfair by the introduction of irrelevant evidence, (8) Petitioner was denied the
effective assistance of counsel at trial, and (9) Petitioner can establish cause and prejudice to
excuse his procedural defaults. Bothel’s petition will be denied because his claims are without

merit or barred by his state court procedural default.

Petitioner will be also be denied a

certificate of appealability and denied permission to proceed on appeal in forma pauperis.
I.
A.
Petitioner Bothel’s state court conviction arose out of an incident that occurred in the
home of Michael Dzikowski in the early morning hours of April 2, 2011. At the jury trial
commencing on March 28, 2012, Dzikowski testified that he was Petitioner’s neighbor in
Clinton Township. See Trial Tr. 140, ECF No. 9-3. Dzikowski further testified that he had an
ongoing affair with Petitioner’s wife, Nicole Williams. Id. at 142-43. According to the testimony
of Starla Weissinger, a mutual friend of Dzikowski and Petitioner, Petitioner was informed of the
affair in October of 2010 by Ms. Weissinger. Id. at 201.
Two days before the April 2, 2011 incident, Dzikowski testified that he intervened in a
physical altercation between Petitioner and Ms. Williams. Id. at 143. Then, on April 1, 2011,
Petitioner told Ms. Weissinger that he was going to kill Dzikowski. Id., at 205.
On the night of the incident, Dzikowski testified that he returned home from Lipsticks
Bar and Grill and fell asleep on his couch. Id., at 144. He woke up when someone struck him in
the head with a hammer. Id. at 144-45. Dzikowski allegedly rolled off the couch, and grabbed
the assailant’s ankles. Id. at 145. The assailant said, “[t]hat’s what you get for sleeping with my
wife” as he fled the scene. Id. Dzikowski testified that he recognized Petitioner as the man who
assaulted him. Id. at 148.
According to Ms. Weissinger, Petitioner attempted to contact her multiple times at
around three o’clock in the morning. Id. at 206-07. After Ms. Weissinger answered the phone,
Petitioner asked Ms. Weissinger to be his alibi for the assault, and to report that he had gone up
-2-

north. Id. at 208. Petitioner admitted to her that he hit Dzikowski in the head with a hammer as
he was sleeping on a couch, and had told Dzikowski, “that’s what you get for sleeping with my
wife.” Id. at 208-10. Petitioner also told her that he had attempted to look through Dzikowski’s
cell phone. Id.
Meanwhile, after Petitioner left, Dzikowski testified that he crawled to his neighbor’s
house. The neighbor then called 9-1-1. Id. at 148. Dzikowski was transported to a hospital, where
he required nine staples to close a gash on the back of his head. Id. at 149, 153, 168.
Upon returning home from the hospital, Dzikowski found that his cell phone was
missing. Id. at 154. He testified the he used his mother’s phone to call his phone, and that
Petitioner answered. Id. at 155-56. Dzikowski demanded the return of his phone, after which
Petitioner drove up to Dzikowski’s house and threw the phone at him from his car. Id. at 156-57.
Dzikowski testified that Petitioner was armed with a metal pipe at the time. Id. at 156.
Dzikowski’s brother Steven testified that before Petitioner returned the phone, Petitioner
used Dzikowski’s phone to call him. According to Steven, Petitioner left a voice message asking
if he was “doing the same thing” – presumably sleeping with Petitioner’s wife – and whether
Steven wanted “the same thing to happen to [him,]” – presumably, being attacked like
Dzikowski. Id. at 187-90.
At trial, Petitioner attempted to defend against the charges by arguing that he was not the
assailant, and that Dzikowski and the other witnesses were lying because they disliked him. See
Tr. 83-90, ECF No. 9-4. The jury apparently rejected this defense, and found Petitioner guilty of
one count of first-degree home invasion in violation of Michigan Compiled Law § 750.110a(2),
and one count of assault with intent to commit great bodily harm in violation of Michigan

-3-

Compiled Law § 750.84. On May 8, 2012 Petitioner was sentenced to 8 to 20 years on count
one, and 6 to 10 years on count two, to run concurrently. See Sentencing Tr. 20-21, ECF No. 9-5.
B.
Following sentencing, Petitioner filed a claim of appeal. His appellate counsel filed a
brief in the Michigan Court of Appeals raising the following claims:
I.

Did the trial court abuse its discretion and violate Defendant’s rights to
due process of law and a fair trial in refusing to instruct the jury on lesser
included offenses of entry without breaking, entry without permission,
felonious assault, aggravated assault and assault where there was
evidentiary support for those lesser offenses?

II.

Did the trial court err in denying Defendant’s motion for mistrial based
upon police and prosecutorial misconduct in falsely accusing Defendant of
forgery and fraud upon the court, causing Defendant to file a grievance
against the prosecutor, thereby depriving Defendant of a fair trial and due
process of law, constituting manifest injustice?

III.

Did the prosecutor fail to disclose and promptly produce discovery of the
medical and criminal records of the complaining witness, necessary for an
effective cross-examination of the complaining witness? Was this failure
compounded by the serious mistake of defense counsel in failing to
formally move for the production of these records? Did the combined
malfeasance deprive Defendant of due process and a fair trial?

IV.

Was there insufficient evidence that Defendant had committed a home
invasion or an assault with intent to do great bodily harm in violation of
Michigan law and the Due Process Clause of the Michigan and United
States Constitutions, which require sufficient evidence to convict a
Defendant of a criminal offense?

The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished opinion.
People v. Bothel, No. 310900, 2013 WL 6331732 (Mich. Ct. App. Dec. 5, 2013).
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme
Court, raising the same claims. He also added a claim that appellate counsel was ineffective for
combining a prosecutorial misconduct and ineffective assistance of counsel claim under a single
argument heading (claim III). Finally, he added an additional claim that his counsel was
-4-

ineffective during the plea bargaining stage. The Michigan Supreme Court denied the application
because it was not persuaded that the questions presented should be reviewed by the Court.
People v. Bothel, 845 N.W.2d 493 (Mich. 2014) (Table).
Petitioner then returned to the trial court and filed a motion for relief from judgment,
raising the following claims:
I.

Did the trial court violate Defendant’s right of confrontation and crossexamination, where he sought to question prosecution witness Starla
Weissinger about a criminal complaint Defendant filed against her and her
boyfriend which may have affected the witness’s bias, interest or motive
to testify falsely. US Const, Ams V, VI; Const 1963, Art I § § 17, 20?

II.

Was Mr. Bothel denied due process when the prosecution introduced a
plethora of irrelevant and unduly prejudicial evidence of other bad acts at
his trial; and trial counsel was ineffective for failing to object?

III.

Was Defendant deprived of his right under the Sixth Amendment to the
United States Constitution and under § 20 Article 1, of the Michigan
Constitution 1963 to the effective assistance of defense counsel.

IV.

Should the court grant relief from judgment because the Defendant can
establish good cause for not bringing his appellate issue before the court
previously and actual prejudice due to trial and appellate counsel’s
ineffectiveness?

In an opinion dated December 12, 2014, the trial court denied the motion for relief from
judgment, finding that review of Petitioner’s claims was barred because he had failed to
demonstrate good cause for failing to raise the instant issues on appeal, as required by Michigan
Court Rule 6.508(D)(3)(a), and because the court did not conclude that there was a significant
possibility that Petitioner was innocent of the subject crimes. See Op. & Ord. at 4, ECF No. 9-8.
Petitioner then filed an application for leave to appeal in the Michigan Court of Appeals,
attempting to raise the same claims raised in the motion for relief from judgment. The Michigan
Court of Appeals denied the application for leave to appeal “for failure to meet the burden of
establishing entitlement to relief under Mich. Ct. R. 6.508(D).” People v. Bothel, No. 148496
-5-

(Mich. Ct. App. Nov. 4, 2015). Petitioner filed an application for leave to appeal in the Michigan
Supreme Court, but it was also denied with citation to Rule 6.508(D). People v. Bothel, 884
N.W.2d 571 (Mich. 2016) (Table). Petitioner now brings the present petition for habeas corpus
relief.
II.
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), imposes the following standard of review for habeas cases: 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.
A state court adjudication is contrary to Supreme Court precedent under § 2254(d)(1) if (1) “the
state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases”
or (2) “ the state court confronts a set of facts that are materially indistinguishable from a
decision [of the Supreme Court] and nevertheless arrives at a [different result].” Lockyer v.
Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted). A state court adjudication
involves an unreasonable application of federal law under § 2254(d)(1) if “the state court
identifies the correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Harris v. Haeberlin, 526
F.3d 903, 909 (6th Cir. 2008) (internal quotation marks omitted).

-6-

“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,” but rather “must have been objectively unreasonable.” Wiggins v. Smith, 539 U.S.
510, 520-21 (2003) (internal quotations and citations omitted):
[E]ven clear error will not suffice. Rather, as 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 fairminded disagreement.
White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (citations, quotation marks, and alterations
omitted). “When reviewing state criminal convictions on collateral review, federal judges are
required to afford state courts due respect by overturning their decisions only when there could
be no reasonable dispute that they were wrong.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015).
“Federal habeas review thus exists as ‘a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction through appeal.’” Id. (quoting
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). “[W]hether the trial judge was right or
wrong is not the pertinent question under AEDPA.” Renico v. Lett, 559 U.S. 766, 778 n.3 (2010).
Rather, the pertinent question is whether the state court’s application of federal law was
“objectively unreasonable.” White, 134 S. Ct. at 1702. In short, the standard for obtaining
federal habeas relief is “difficult to meet . . . because it was meant to be.” Burt v. Titlow, 134 S.
Ct. 10, 16 (2013) (internal quotation marks omitted).
A.
In his first claim for relief, Petitioner argues that the trial court abused its discretion by
failing to instruct the jury on the lesser offenses of entry without breaking, entry without
permission, simple assault, felonious assault, and aggravated assault. He asserts that the jury was
-7-

deprived of the opportunity of considering these more minor offenses, and instead was forced to
make an all-or-nothing choice of the serious felonies for which he was convicted. In reviewing
this claim, the Michigan Court of Appeals found that none of the lesser offense instructions was
required under Michigan law. Bothel, 2013 WL 6331732 at *2-5.
Petitioner’s claim cannot form the basis for granting habeas relief because it is not
supported by clearly established Supreme Court law. The United States Supreme Court has
declined to determine whether the Due Process Clause requires a state trial court to instruct a
jury on a lesser included offense in a non-capital case. See Beck v. Alabama, 447 U.S. 625, 638,
n. 4 (1980). A state trial court’s failure to give the jury an instruction on a lesser included offense
in a non-capital case therefore cannot run contrary to, or amount to an unreasonable application
of, clearly established federal law as required for federal habeas relief. Id.; See also David v.
Lavinge, 190 F. Supp. 2d 974, 986, n. 4 (E.D. Mich. 2002). The Sixth Circuit has interpreted
Beck to mean that “the [federal] Constitution does not require a lesser-included offense
instruction in non-capital cases.” Campbell v. Coyle, 260 F. 3d 531, 541 (6th Cir. 2001). The
failure of a state trial court to instruct a jury on a lesser included offense in a non-capital case is
thus not an error cognizable in federal habeas review. Bagby v. Sowders, 894 F. 2d 792, 797 (6th
Cir. 1990); see also Scott v. Elo, 302 F. 3d 598, 606 (6th Cir. 2002).
Even though first-degree home invasion can result in a life sentence, Petitioner was not
facing a capital conviction within the meaning of Beck that would entitle him to a jury instruction
on any lesser included offenses. In Scott v. Elo, the Sixth Circuit held that a criminal defendant
who had been convicted of first-degree murder in Michigan and had been sentenced to life
imprisonment without parole was not entitled to habeas relief based upon the trial court’s failure
to instruct on the lesser offense of involuntary manslaughter. 302 F. 3d at 606. In so ruling, the
-8-

Sixth Circuit characterized the defendant’s first-degree murder charge as a conviction for a noncapital offense. Id. Accordingly, Petitioner’s claim that he was entitled to lesser offense
instructions in his non-capital case does not present a cognizable claim for relief under section
2254(d).
B.
In his second claim, Petitioner argues that he was deprived of a fair trial due to judicial
bias. Petitioner asserts that during trial the trial court appeared to concur with the prosecutor’s
assertion that Petitioner had falsified a ticket issued against the victim. In fact, Petitioner had
made a police report with the Roseville City Attorney against the victim, and that the ticket was
not a forgery. See Trial Tr. 4-9, ECF No. 9-4.
The Michigan Court of Appeals denied the claim as follows:
Upon review of the record, contrary to defendant’s claims, the trial court’s
conduct does not demonstrate that it lacked impartiality. Instead, the trial court,
recognizing that the formatting of the ticket appeared to be improper because it
lacked a signature from an officer, appropriately allowed the prosecutor to further
investigate the matter. Further, the entire discussion of this ticket occurred outside
the presence of the jury. Thus, had the prosecutor engaged in misconduct by
accusing defendant of producing a forged document in court, defendant did not
suffer prejudice as a result. Therefore, defendant is not entitled to reversal on his
claim of prosecutorial misconduct, and the trial court did not abuse its discretion
in denying his motion for a mistrial.
Bothel, 2013 WL 6331732 at *5.
This decision did not constitute an unreasonable application of clearly established
Supreme Court law. 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, 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.
-9-

DeChristoforo, 416 U.S. 637, 643 (1974); see also Darden v. Wainwright, 477 U.S. 168,
181(1986) (citing Donnelly); Parker v. Matthews, 567 U.S. 37 (2012) (confirming that
Donnelly/Darden is the proper standard). With respect to the claim of prosecutorial misconduct,
the claim fails for the obvious reason that the allegations and subsequent discussion occurred
outside the presence of the jury. See Trial Tr. 214-21, ECF No. 9-3. Thus, the prosecutor’s
comments could not have infected the trial with unfairness.
Petitioner’s judicial bias argument fairs no better. A defendant has a right to a trial before
an impartial judge. Tumey v. Ohio, 273 U.S. 510, 535 (1927). However, comments that do not
exhibit favoritism or antagonism for a party are insufficient to establish judicial bias. See Liteky
v. United States, 510 U.S. 540, 555 (1994). Indeed, “expressions of impatience, dissatisfaction,
annoyance, and even anger” are insufficient to show bias. Id. at 555-56. When the prosecutor
objected to Defendant’s proffer of the ticket, the trial court indicated that the matter should be
explored as it appeared that the defense was offering a forged document in court. The allegation
had prima facie validity because the ticket was unsigned and written on a discontinued format.
The next trial day, after the matter was investigated by the prosecutor and officer in charge, it
was determined that the city attorney had improperly drafted the ticket and that the ticket had not
been served on the victim. Trial Tr. 219-21, ECF No. 9-3. At that point the matter was dropped,
and there is nothing in the record to suggest that the incident affected the trial court’s
impartiality. Id. Accordingly, the record does not support Petitioner’s claim that the trial court
was biased. Petitioner’s second claim was therefore reasonably adjudicated by the state courts.
C.
Petitioner’s third claim is comprised of two related claims regarding the prosecution’s
alleged failure to disclose the victim’s medical and criminal records. First, Petitioner argues that
- 10 -

he was denied due process and a fair trial by the prosecution’s failure to turn over the records,
which could have been used to impeach the victim’s credibility and thereby undermined the
prosecutor’s case. Relatedly, Petitioner’s asserts that his trial counsel was ineffective for failing
to obtain the medical and criminal records of the victim. Each claim will be addressed in turn.
i.
Prosecutors may not suppress evidence that is favorable to an accused and material to
guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). The components of a true
Brady claim are: (1) evidence that is favorable to the accused, either because it is exculpatory or
impeaching; (2) suppression of the evidence by the State, either willfully or inadvertently; and
(3) resulting prejudice. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
“Brady … applies to relevant evidence in the hands of the police, whether the prosecutors
knew about it or not, whether they suppressed it intentionally or not, and whether the accused
asked for it or not.” Harris v. Lafler, 553 F.3d 1028, 1033 (6th Cir. 2009) (internal and end
citations omitted). “[E]vidence 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.’”
Strickler, 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Stated
differently, “the materiality standard for Brady claims is met when ‘the favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine confidence in
the verdict.’” Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoting Kyles v. Whitley, 514 U.S. 419,
435 (1995)).
After reciting the application constitutional standard governing the suppression of
evidence by the prosecutor, the Michigan Court of Appeals rejected Petitioner’s claims as
follows:
- 11 -

Defendant argues that because Michael denied being under the influence of drugs
or alcohol at the time of the incident, disclosure of his medical report would have
allowed defense counsel to impeach him. The report would have demonstrated
that he had consumed an excessive amount of alcohol and was under the influence
of drugs, including cocaine, at the time of the incident. In addition, defendant
asserts that this evidence would have demonstrated that Michael was cognitively
impaired at the time of the incident, which would have affected his ability to see
and experience the events that he testified about. Defendant also claims that had
Michael’s criminal record been produced, defense counsel could have used this
evidence to impeach Michael, which would likely have resulted in defendant’s
acquittal because Michael was the sole eyewitness and there was no corroborating
physical evidence.
Though defendant alleges that the prosecutor failed to produce Michael’s entire
hospital report in response to his discovery request, he fails to offer proof that the
prosecutor had this report. Defendant also merely alleges “on information and
belief” that Michael “had a history of impeachable offenses[,]” without offering
any proof that this is true or that the prosecutor had this information.
If defendant’s assertions are taken as fact—namely, that the prosecutor had
Michael’s full medical report and criminal record, that defendant could not have
obtained this evidence with reasonable diligence, and that the prosecutor
suppressed this evidence—defendant failed to show that “a reasonable probability
exists that the outcome of the proceedings would have been different.” Lester, 232
Mich App at 281. While it is true that Michael was the only eyewitness to the
incident, Steven Dzikowski, Michael’s brother, testified that defendant called him
from Michael’s phone the morning after the attack and asked if Steven was
“doing the same thing”—presumably, sleeping with Nicole Williams, defendant’s
wife—and whether Steven wanted “the same thing to happen to [him,]”—
presumably, being attacked. Further, Weissinger also testified that defendant
asked her to be his alibi for Michael’s assault and told her that he hit Michael in
the head with a hammer and said, “that’s what you get for sleeping with my
wife.” Even if the medical report and criminal record would have impeached
Michael, other witnesses corroborated his account of the attack and his claim that
defendant was the perpetrator. Accordingly, it is not reasonably probable that the
outcome of trial would have been different had the prosecutor produced the
documents.
Defendant further argues that the medical report would have demonstrated that
Michael exaggerated what was only a minor two-centimeter cut. The medical
report, supposedly, would thus indicate that the perpetrator lacked the intent to
cause great bodily harm, an element the prosecutor had to prove. However, the
jury saw pictures of Michael’s injury at trial, and determined the severity of the
injury. Therefore, disclosure of Michael’s medical report would not likely have
changed the jury’s mind regarding the severity of the injury.
- 12 -

Bothel, 2013 WL 6331732 at *6-7.
This decision did not constitute an unreasonable application of the Brady prejudice
standard. Even assuming, as the state appellate court did, that the evidence was suppressed, there
was no reasonable probability that the outcome of Petitioner’s trial would have been more
favorable. Petitioner asserts that the medical records and criminal history could have been used
to impeach Dzikowski, but the victim admitted that he drank alcohol—specifically two or three
beers and two or three shots—on the night of the assault, and that he had taken drugs. Trial Tr.
158-59. ECF No. 9-3. In any event, there was not a reasonably debatable issue as to Petitioner’s
identity as the perpetrator because he stole and used the victim’s cell phone, admitted his
involvement to Weissinger, and asked Weissinger to be an alibi witness.
To the extent Petitioner asserts that the medical records would have been useful to
demonstrate that the victim was exaggerating the severity of his wound, the physical evidence
indicated that the wound was two centimeters long and required staples. Id., at 126. The jury
saw photographs of the wound, and so could see and decide for themselves the severity of the
injury. Id., at 148-49.
Moreover, even to the extent Dzikowski could have been impeached by his medical or
criminal records, the evidence of Petitioner’s guilt was otherwise overwhelming. The evidence
presented at trial suggested that before the assault Petitioner told Weissinger that he was going to
kill the victim, and after the assault he asked her to be his alibi. The evidence also demonstrated
that Petitioner stole the victim’s phone and made calls from it, including a call to the victim’s
brother threatening similar acts. In light of the strength of the prosecution’s case, it was not
objectively unreasonable for the Michigan Court of Appeals to find that Petitioner had failed to
demonstrate prejudice under Brady.
- 13 -

ii.
Petitioner also cannot demonstrate prejudice with regard to his related ineffective
assistance of trial counsel claim. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court set forth a two-prong test for determining whether a habeas petitioner’s counsel was
ineffective. 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
guaranteed by the Sixth Amendment. Id. 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. Id.
To satisfy the prejudice prong under Strickland, 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.” Strickland, 466 U.S. at 694. A reasonable probability is one that is
sufficient to undermine confidence in the outcome. 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.” Id. at 686.
Because the state courts rejected this claim on the merits, however, it is beyond the scope
of review for this Court to evaluate Petitioner’s claim de novo under the Strickland standard. The
issue here is a narrower one. The question is whether the conclusion reached by the state court
falls within the bounds of reasonable adjudications of Petitioner’s claims — a substantially
higher threshold. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). 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.
- 14 -

For the reasons stated above, the state courts reasonably adjudicated Petitioner’s
ineffective assistance of counsel claim. Petitioner’s third claim for relief is therefore without
merit.
D.
Petitioner next argues that there was insufficient evidence presented at trial to sustain his
convictions. Specifically, he argues that the evidence presented against him was insufficient for
a conviction because the prosecution’s witnesses were not credible. “[T]he Due Process Clause
protects the accused against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358,
364 (1970). On direct appeal, review of a sufficiency of the evidence challenge must focus on
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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
“Two layers of deference apply to habeas claims challenging evidentiary sufficiency.”
McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v. Konteh, 567 F.3d 191, 20405 (6th Cir. 2009)). First, the Court “must determine whether, viewing the trial testimony and
exhibits 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.” Brown, 567 F.3d at 205, (citing
Jackson, 443 U.S. at 319). Second, if the Court were “to conclude that a rational trier of fact
could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, [the
Court] must still defer to the state appellate court’s sufficiency determination as long as it is not
unreasonable.” Id. Indeed, the Jackson standard is “exceedingly general” and therefore Michigan
courts are afforded “considerable leeway” in its application. Davis v. Lafler, 658 F.3d 525, 535
- 15 -

(6th Cir. 2011). For a federal habeas court reviewing the sufficiency of evidence for 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, 182 L.
Ed. 2d 978 (2012).
After reciting the Jackson standard, the Michigan Court of Appeals denied Petitioner’s
claim as follows:
The prosecutor correctly points out that defendant’s arguments on appeal only
challenge the credibility of witnesses whose testimony identified defendant as the
perpetrator. Because there was ample testimony that identified defendant as the
perpetrator, and because this Court leaves questions of witness credibility and the
weight to give to a witness’s testimony for the jury, viewing the evidence in the
light most favorable to the prosecutor, defendant has failed to demonstrate that
there was insufficient evidence such that a rational jury could not find defendant
guilty of the charged offenses beyond a reasonable doubt.
Bothel, 2013 WL 6331732 at *9.
This decision of the state court reasonably applied the clearly established Supreme Court
standard. Essentially, Petitioner presented the state court with reasons that a jury should not
have believed the victim’s testimony and should have acquitted Petitioner. His arguments are
akin to what one expects during closing argument. They do not truly challenge the legal
sufficiency of the evidence in which the Jackson standard requires that the evidence be viewed
most favorably to the prosecution. On habeas review, a federal court does not reweigh the
evidence or redetermine credibility of the witnesses whose demeanor was observed at trial by the
jury. 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. 1992) (citing Jackson, 443 U.S. at 319). 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).
- 16 -

Viewing the victim’s trial testimony in the light most favorable to the prosecution, the
state court decision that sufficient evidence was presented to establish Petitioner’s identity was
not so insupportable as to fall below the threshold of bare rationality. Coleman, 132 S.Ct. at
2065. Petitioner’s fourth claim is therefore without merit.
E.
Petitioner’s remaining claims were not raised on direct appeal. Instead, they were either
presented to the state courts in his motion for relief from judgment and the subsequent appeal, or
in the case of his fifth habeas claim, presented only to the Michigan Supreme Court following his
appeal of right. Respondent contends that review of these claims is barred by Petitioner’s failure
to raise these claims in the Michigan Court of Appeals during his appeal of right. Because
Respondent is correct, Petitioner’s remaining claims will be dismissed.
When the state courts clearly and expressly rely on a valid state procedural bar, federal
habeas review is also barred unless petitioner can demonstrate “cause” for the default and actual
prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to
consider the claim will result in a “fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750-751 (1991). If a petitioner fails to show cause for his procedural default, it is
unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533
(1986). In an extraordinary case, where a constitutional error has probably resulted in the
conviction of one who is actually innocent, a federal court may consider the constitutional claims
presented even in the absence of a showing of cause for procedural default. Murray v. Carrier,
477 U.S. 478, 479-480 (1986). However, to be credible, such a claim of innocence requires a
petitioner to support the allegations of constitutional error with new reliable evidence that was
not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). “‘[A]ctual innocence’ means
- 17 -

factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624
(1998).
Michigan Court Rule 6.508(D)(3) provides that a court may not grant relief to a
defendant if the motion for relief from judgment alleges grounds for relief that could have been
raised on direct appeal, absent a showing of good cause for the failure to raise such grounds
previously and actual prejudice resulting therefrom. For purposes of a conviction following a
trial, “actual prejudice” means that “but for the alleged error, the defendant would have had a
reasonably likely chance of acquittal.” Mich. Ct. R. 6.508(D)(3)(b)(I).
The Michigan Court of Appeals and the Michigan Supreme Court rejected Petitioner’s
post-conviction appeal “because the defendant failed to meet the burden of establishing
entitlement to relief under MCR 6.508(D).” These orders did not refer to subsection (D)(3), and
they did not mention Petitioner’s failure to raise these claims in the Michigan Court of Appeals
on direct review as the rationale for rejecting his post-conviction claims. Because the form
orders in this case citing Rule 6.508(D) are ambiguous as to whether they refer to procedural
default or a denial of post-conviction relief on the merits, the orders are unexplained. See
Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010). This Court must “therefore look to the
last reasoned state court opinion to determine the basis for the state court’s rejection” of
Petitioner’s claims. Id.
In the present case, the Macomb County Circuit Court judge explicitly relied on Rule
6.508(D)(3)(a) in rejecting Petitioner’s motion for relief from judgment. The court determined
that that rule barred review of Petitioner’s post-conviction claims, and found that Petitioner
“failed to demonstrate good cause for failing to raise the instant issues on appeal. Mich. Ct. R.
6.508(D)(3)(a).” ECF No. 9-8. Therefore, the trial court clearly denied Petitioner’s post- 18 -

conviction relief based on the procedural grounds stated in Rule 6.508(D)(3). As such,
Petitioner’s post-conviction claims are procedurally defaulted. See Ivory v. Jackson, 509 F.3d
284, 292-293 (6th Cir. 2007); see also Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005).
Petitioner alleges that his procedural default should be excused because his appellate
counsel provided him with ineffective assistance. Petitioner, however, has not shown that
appellate counsel was ineffective. 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 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. The Supreme Court has subsequently noted that:
Notwithstanding Barnes, it is still possible to bring a Strickland claim based on
[appellate] counsel’s failure to raise a particular claim [on appeal], but it is
difficult to demonstrate that counsel was incompetent.”
Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000).
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). “The hallmark of effective appellate advocacy” is the “process of ‘winnowing out
weaker arguments on appeal and focusing on’ those more likely to prevail.” Smith v. Murray,
477 U.S. at 536 (quoting Barnes, 463 U.S. at 751-752). “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,”

- 19 -

which is defined as an issue which was obvious from the trial record and would have resulted in
a reversal on appeal. Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).
Petitioner has failed to show that appellate counsel’s performance fell outside the wide
range of professionally competent assistance by omitting his newly-raised claims in his initial
appeal. Appellate counsel filed a substantial appellate brief which raised the first four claims
that Petitioner presents in the present habeas petition. Petitioner has not shown that his appellate
counsel’s strategy in presenting his lead claims and not raising other claims was deficient or
unreasonable. Moreover, for the reasons stated in Respondent’s answer to the petition for writ of
habeas corpus, none of the claims raised by Petitioner in his post-conviction motion were “deadbang winners.” Succinctly stated, the evidence presented against Petitioner at trial was
overwhelming, and he has not shown any probability that the result of his proceeding would have
been any different even if his claims had merit. Moreover, Petitioner completely failed to proffer
any evidence supporting his claim that his counsel was ineffective during the plea bargaining
process. Because the defaulted claims are not “dead-bang winners,” Petitioner has failed to
establish cause for his procedural default of failing to raise these claims on direct review. See
McMeans v. Brigano, 228 F.3d 674, 682-683 (6th Cir. 2000).
Because Petitioner has not demonstrated any cause for his procedural default, it is
unnecessary for the court to reach the prejudice issue. Smith, 477 U.S. at 533. Furthermore,
Petitioner has not presented any new reliable evidence to support any assertion of innocence that
would allow this Court to consider these claims as a ground for a writ of habeas corpus, in spite
of the procedural default. Petitioner’s sufficiency of evidence claim is insufficient to invoke the
actual innocence doctrine to the procedural-default rule. See Malcum v. Burt, 276 F. Supp. 2d
664, 677 (E.D. Mich. 2003). Because Petitioner has not presented any new reliable evidence that
- 20 -

he is innocent of these crimes, a miscarriage of justice will not occur if the court declined to
review the procedurally defaulted claims on the merits. See Welch v. Burke, 49 F. Supp. 2d 992,
1007 (E.D. Mich. 1999).

In conclusion, Petitioner is not entitled to habeas relief on his

remaining claims because they are all procedurally barred from review.
III.
Before a 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,
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.
When a court denies relief on procedural grounds without addressing the merits, a
certificate of appealability should issue if it is shown that jurists of reason would find it debatable
whether the petitioner states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the court was correct in its procedural ruling. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). When a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either

- 21 -

that the district court erred in dismissing the petition or that the petition should be allowed to
proceed further. In such a circumstance, no appeal would be warranted. Id.
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).
IV.
Accordingly, it is it is ORDERED, that Petitioner Bothel’s petition for a 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 appeal in forma pauperis is DENIED

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: July 5, 2017

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 July 5, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

- 22 -