Lamb v. Jones

Filing 79

REPORT AND RECOMMENDATION re 1 Petition Signed by Magistrate Judge Paul J Komives. (EBut)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DAVID K. LAMB, Petitioner, v. CARMEN PALMER, Respondent.1 / REPORT AND RECOMMENDATION
I. II. RECOMMENDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Factual Background Underlying Petitioner's Conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C. Procedural Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 D. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 E. Arrest Related Claims (Claims II and III) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 F. Prosecutorial Misconduct (Claims IV-V, VII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1. Suppression of Exculpatory Evidence (Claims IV-V) . . . . . . . . . . . . . . . . . . . . . . . . . . 17 a. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 b. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 2. Comments (Claim VII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 a. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 b. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 G. Bind Over and Sufficiency of Information (Claims VI & VIII) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 1. Variance (Claim VI) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 2. Sufficiency of Bind Over (Claim VIII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 H. Sufficiency of the Evidence (Claim IX) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 I. Ineffective Assistance of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 1. Trial Counsel (Claims IV-V & X-XII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 a. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 b. Failure to Object to Suppression of Evidence (Claims IV & V) . . . . . . . . . . . . . . . . 31 c. Failure to Present Alibi Defense (Claim X) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 d. Failure to Request Remmer Hearing (Claim XI) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 e. Cumulative Errors (Claim XII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 2. Appellate Counsel (Claims I, X & XII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CASE NO. 03-CV-73587 JUDGE JOHN CORBETT O'MEARA MAGISTRATE JUDGE PAUL J. KOMIVES

By Order entered this date, Carmen Palmer has been substituted in place of Kurt Jones as the proper respondent in this action.

1

III.

a. Denial of Counsel (Claim I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Failure to Raise Claims (Claims X & XII) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35 39 39 40

* I.

*

*

*

*

RECOMMENDATION: The Court should deny petitioner's application for the writ of

habeas corpus. II. A. REPORT: Procedural History 1. Petitioner David K. Lamb is a state prisoner, currently confined at the Michigan

Reformatory in Ionia, Michigan. 2. Petitioner was convicted of four counts of first degree murder on the alternative

theories of premeditation and felony murder, MICH. COMP. LAWS § 750.316; armed robbery, MICH. COMP. LAWS § 750.529; and possession of a firearm during the commission of a felony, MICH. COMP. LAWS 750.227b, following a jury trial in the Wayne County Circuit Court. On December 14, 1999, he was sentenced to a four mandatory terms of life imprisonment without parole on the murder convictions, and a mandatory consecutive term of two years' imprisonment on the felony firearm conviction. 3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through

counsel, the following claims: I. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRED IN DENYING THE MOTION TO DISMISS BASED ON THE LACK OF PROBABLE CAUSE TO ARREST DEFENDANT. DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRED IN FAILING TO SUPPRESS HIS STATEMENT. 2

II.

III.

DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND FOR THE CONVICTIONS; ALTERNATIVELY, THE MOTION FOR DIRECTED VERDICTS SHOULD HAVE BEEN GRANTED. DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRED IN DENYING THE MOTION FOR MISTRIAL BASED ON THE PROSECUTOR'S CLOSING ARGUMENTS; ALTERNATIVELY, THE PROSECUTOR'S CLOSING ARGUMENTS WERE IMPROPER, DENYING HIM HIS RIGHT TO A FAIR TRIAL.

IV.

In a supplemental pro se brief, petitioner raised the following additional claims: I. WHERE AS HERE, THE CIRCUIT COURT'S DECISION DENYING THE MOTION TO QUASH BIND OVER ON THE FIRST DEGREE MURDER COUNTS WAS CONTRARY TO THE FACTS PRESENTED AT THE PRELIMINARY EXAMINATION, AS WELL AS THE LAW, THAT DECISION WAS AN ABUSE OF DISCRETION AND SHOULD BE REVERSED. THE TRIAL JUDGE DENIED THE DEFENDANT DUE PROCESS RIGHTS TO A FAIR TRIAL WHEN IT SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT. THE PROSECUTOR DENIED THE DEFENDANT DUE PROCESS WHEN IT KNOWINGLY USED PERJURED TESTIMONY OR ALLOWED UNTRUE TESTIMONY TO GO UNCORRECTED. THE PROSECUTOR DENIED THE DEFENDANT DUE PROCESS WHEN IT KNOWINGLY WITHHELD EVIDENCE DURING THE EVIDENTIARY HEARING. IT WAS POLICE MISCONDUCT WHEN THE WARRANTLESS ARREST AND DETENTION WAS USED AS A TOOL TO GENERALLY MARSHAL EVIDENCE AGAINST THE DEFENDANT WITHOUT PROMPT JUDICIAL DETERMINATION OF PROBABLE CAUSE.

II.

III.

IV.

V.

The court of appeals found no merit to petitioner's claims, and affirmed his conviction and sentence. See People v. Lamb, No. 225989, 2002 WL 31955204 (Mich. Ct. App. Dec. 17, 2002) (per curiam). 4. Petitioner, proceeding pro se, sought leave to appeal these issues to the Michigan

Supreme Court. The Supreme Court denied petitioner's application for leave to appeal in a standard 3

order. See People v. Lamb, 469 Mich. 860, 666 N.W.2d 672 (2003). 5. On September 18, 2003, petitioner filed an application for the writ of habeas corpus

challenging his state court convictions. Petitioner raised three claims in support of his application: (1) ineffective assistance of counsel for failing to request a hearing on extraneous jury influences; (2) illegal arrest and perjury to fabricate probable cause; and (3) denial of counsel on appeal. Petitioner subsequently filed an amended petition, asserting four additional claims: (1) warrantless arrest and detention; (2) ineffective assistance of counsel for failing to object to prosecutorial misconduct; (3) ineffective assistance of counsel for failing to present an alibi defense; and (4) ineffective assistance counsel based on the cumulative effects of counsel's errors. On March 4, 2005, the Court entered an Order granting petitioner's motion to stay and holding the case in abeyance pending petitioner's exhaustion of all his claims. 6. Meanwhile, on November 24, 2004, petitioner filed a motion for new trial in the trial

court, which the trial court construed as a motion for relief from judgment pursuant to MICH. CT. R. 6.500-.509. Petitioner's motion raised the following claims: I. THE DEFENDANT SUFFERED AN ACTUAL ABSENCE OF COUNSEL ON APPEAL AS OF RIGHT WHERE THE MICHIGAN COURT OF APPEALS RULED WITHOUT COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS AND US v CRONIC, WHERE PREJUDICE IS PRESUMED, THUS, CAUSING A STRUCTURAL DEFECT. THE DEFENDANT WAS DENIED HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS WHERE THERE WAS A REASONABLE PROBABILITY OF A DIFFERENT RESULT HAD THE PROSECUTION TURNED OVER EXCULPATORY EVIDENCE THAT WAS MATERIAL IN VIOLATION OF BRADY WHERE DEFENDANT WAS ACTUALLY INNOCENT AND WHERE COUNSEL FAILED TO SUBJECT THIS BRADY VIOLATION TO A MEANINGFUL ADVERSARIAL TESTING. CRONIC.

II.

4

III.

THE DEFENDANT WAS DENIED HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS WHERE THERE WAS A REASONABLE PROBABILITY OF A DIFFERENT RESULT HAD THE PROSECUTION TURNED OVER IMPEACHMENT EVIDENCE THAT WAS MATERIAL IN VIOLATION OF BAGLEY. AND WHERE COUNSEL FAILED TO SUBJECT THIS BRADY VIOLATION TO A MEANINGFUL ADVERSARIAL TESTING. THE DEFENDANT WAS DENIED HIS FOURTH AMENDMENT [RIGHTS] WHERE INVESTIGATOR ADAMS' WITHHOLDING OF BRADY INFORMATION AND PERJURY CAUSED A FATAL VARIANCE WHERE HIS WITHHOLDING OF EXCULPATORY EVIDENCE CAUSED THE PROSECUTOR TO AMEND THE INFORMATION TO ADD ARMED ROBBERY AND FELONY MURDER WHERE THE DEFENDANT WAS ACTUALLY INNOCENT. THE DEFENDANT WAS DENIED HIS FOURTEENTH AMENDMENT R I G H T WHERE THE FATAL VARIANCE CAUSED A JURISDICTIONAL DEFECT WHICH CANNOT BE WAIVED OR PROCEDURALLY DEFAULTED WHERE THE DEFENDANT IS ACTUALLY INNOCENT. THE DEFENDANT WAS DEPRIVED OF HIS FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL WHERE THE PROSECUTOR ARGUED THAT THE PANTS THE DEFENDANT WAS ARRESTED IN WERE THE SAME PANTS USED DURING THE CRIME WITHOUT ANY EVIDENCE AND WHERE COUNSEL FAILED TO OBJECT. STRICKLAND. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL WHERE COUNSELS FAILED TO PRESENT AN ALIBI DEFENSE, FAILED TO INVESTIGATE THE ALIBI WITNESSES, AND FAILED TO ARGUE AND INVESTIGATE THESE CLAIMS ON APPEAL AS OF RIGHT IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENTS [sic]. THE DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL WHEN COUNSEL FAILED TO REQUEST A "REMMER" HEARING, DESPITE BEING AWARE OF CREDIBLE ALLEGATIONS AND ACTUAL INSTANCES OF EXTRANEOUS JURY INFLUENCES. THE DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF BOTH TRIAL AND APPELLATE COUNSEL WHERE COUNSEL'S 5

IV.

V.

VI.

VII.

VIII.

IX.

CUMULATIVE ERRORS RENDERED THE TRIAL AND APPEAL U N R E A L I A B L E IN VIOLATION OF THE FOURTEENTH AMENDMENT WHERE THE DEFENDANT IS ACTUALLY INNOCENT. On November 10, 2005, the trial court denied petitioner's motion for relief from judgment. The Michigan Court of Appeals and Michigan Supreme Court denied petitioner's applications for leave to appeal in standard orders, based on petitioner's "fail[ure] to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Lamb, 477 Mich. 942, 723 N.W.2d 818 (2006); People v. Lamb, No. 266812 (Mich. Ct. App. June 22, 2006). 7. On December 12, 2006, petitioner filed a motion to lift the stay as well as an amended

petition raising twelve claims: I. THE DEFENDANT SUFFERED AN ACTUAL ABSENCE OF COUNSEL ON APPEAL AS OF RIGHT WHERE THE MICHIGAN COURT OF APPEALS RULED WITHOUT COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS AND US v CRONIC, WHERE PREJUDICE IS PRESUMED, THUS, CAUSING A STRUCTURAL DEFECT. THE TRIAL JUDGE DENIED THE DEFENDANT[`S] DUE PROCESS RIGHTS TO A FAIR TRIAL WHEN IT SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT. IT WAS POLICE MISCONDUCT WHEN THE WARRANTLESS ARREST AND DETENTION WAS USED AS A TOOL TO GENERALLY MARSHAL EVIDENCE AGAINST THE DEFENDANT WITHOUT A PROMPT JUDICIAL DETERMINATION OF PROBABLE CAUSE. THE DEFENDANT WAS DENIED HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS WHERE THERE WAS A REASONABLE PROBABILITY OF A DIFFERENT RESULT HAD THE PROSECUTION TURNED OVER EXCULPATORY EVIDENCE THAT WAS MATERIAL IN VIOLATION OF BRADY WHERE DEFENDANT WAS ACTUALLY INNOCENT AND WHERE COUNSEL FAILED TO SUBJECT THIS BRADY VIOLATION TO A MEANINGFUL ADVERSARIAL TESTING. CRONIC. THE DEFENDANT WAS DENIED HIS FIFTH AND FOURTEENTH 6

II.

III.

IV.

V.

AMENDMENT RIGHTS WHERE THERE WAS A REASONABLE PROBABILITY OF A DIFFERENT RESULT HAD THE PROSECUTION TURNED OVER IMPEACHMENT EVIDENCE THAT WAS MATERIAL IN VIOLATION OF BAGLEY. AND WHERE COUNSEL FAILED TO SUBJECT THIS BRADY VIOLATION TO A MEANINGFUL ADVERSARIAL TESTING. VI. THE DEFENDANT WAS DENIED HIS FOURTEENTH AMENDMENT R I G H T WHERE THE FATAL VARIANCE CAUSED A JURISDICTIONAL DEFECT WHICH CANNOT BE WAIVED OR PROCEDURALLY DEFAULTED WHERE THE DEFENDANT IS ACTUALLY INNOCENT. THE DEFENDANT WAS DEPRIVED OF HIS FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL WHERE THE PROSECUTOR ARGUED THAT THE PANTS THE DEFENDANT WAS ARRESTED IN WERE THE SAME PANTS USED DURING THE CRIME WITHOUT ANY EVIDENCE AND WHERE COUNSEL FAILED TO OBJECT. WHERE AS HERE, THE CIRCUIT COURT'S DECISION IN DENYING THE MOTION TO QUASH BIND OVER ON THE FIRST DEGREE MURDER COUNTS WAS CONTRARY TO THE FACTS PRESENTED AT THE PRELIMINARY EXAMINATION, AS WELL AS THE LAW, THAT DECISION WAS AN ABUSE OF DISCRETION AND SHOULD BE REVERSED. DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND FOR THE CONVICTIONS; ALTERNATIVELY, THE MOTION FOR DIRECTED VERDICT SHOULD HAVE BEEN GRANTED. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL WHERE COUNSELS FAILED TO PRESENT AN ALIBI DEFENSE, FAILED TO INVESTIGATE THE ALIBI WITNESSES, AND FAILED TO ARGUE AND INVESTIGATE THESE CLAIMS ON APPEAL AS OF RIGHT IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENTS [sic]. THE DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL WHEN COUNSEL FAILED TO REQUEST A "REMMER" HEARING, DESPITE BEING AWARE OF CREDIBLE ALLEGATIONS AND ACTUAL INSTANCES OF EXTRANEOUS JURY INFLUENCES.

VII.

VIII.

IX.

X.

XI.

7

XII.

THE DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF BOTH TRIAL AND APPELLATE COUNSEL WHERE COUNSEL'S CUMULATIVE ERRORS RENDERED THE TRIAL AND APPEAL U N R E A L I A B L E IN VIOLATION OF THE FOURTEENTH AMENDMENT WHERE THE DEFENDANT IS ACTUALLY INNOCENT. Respondent filed an answer to the amended petition on December 27, 2007.

8.

Respondent contends that: (1) petitioner's first, fourth through seventh, and tenth through twelfth claims are barred by petitioner's procedural default in the state courts based on petitioner's failure to raise these claims on direct appeal; (2) petitioner's second and third claims are barred by petitioner's procedural default based on petitioner's failure to object at trial, and are without merit; (3) petitioner's eighth claim is not cognizable on habeas review; and (4) petitioner's ninth claim is without merit. 9. B. Petitioner filed a reply to respondent's answer on January 18, 2008.

Factual Background Underlying Petitioner's Conviction Petitioner was convicted in connection with the robbery and murder of four individuals at

the Prestige Barbeque in Detroit, on the evening of April 3-4, 1999. The evidence adduced at trial was summarized in the prosecutor's brief in the Michigan Court of Appeals: On April 3, 1999, Karen Jaks-Bouchard went to work, at the Prestige Barbecue, as a cashier/delivery person. The cooks, Tony Evans and Paul Scott, were also present. Since it was Easter weekend, the restaurant was busy. The owner, Jamal (Jim) Akrawi, arrived with his brother, Abed, and Tommy, his 12 year old son (T 11/19/99, 224-227). Jamal only kept enough money in the cash register to make change for the customer. He kept the rest of the money and the large bills on his person. At 9:30 p.m., the end of Tony's shift, Jamal paid Tony for the week. He took the cash from his pocket, where he had several hundred dollars (T 11/9/99, 244, 11/15/99, 16-22). Jaks-Bouchard made a delivery just prior to midnight- closing time. When she returned, the restaurant was closed, the front door locked, and the lights, in front, were off. She entered through the back door, which was still opened. The lights in the back and the kitchen were on (T 11/9/99, 230, 11/10/99, 23-24). Paul Evans and Jamal Akrawi were in the kitchen, and Jaks-Bouchard gave 8

Jamal the money from the delivery. Cordale Henry, also know as "Q", and a man, introduced as his uncle, were also inside­either in the kitchen or restaurant area. Q Q's uncle was standing in the shadows. He was about six feet tall and his hair was had worked at the restaurant the previous summer. tightly braided in com rows (T 11/19/99, 230-233, 11/10/99, 39). Jaks-Bouchard cleaned up and, around 12:30 a.m., got her bicycle from the hallway, to go home. Jamal, his brother, Tommy, Paul, Henry and Henry's uncle were still there. Jamal caught up with Jaks-Bouchard at the front door and gave her $20 as an Easter tip, which he took from his pocket. Henry was also at the front door and he helped her get her bicycle out the door (T 11/9/99, 235, 11/10/99, 25). When Jaks-Bouchard had pedaled a house away from the restaurant, she heard something that sounded like firecrackers. She thought it may have been gunfire, so she hurried home. She only lived four blocks from the restaurant, so it took her less than five minutes to get home. She told her boyfriend, Larry Osowski, what happened, and she telephoned the restaurant. No one answered, so she left a message (T 11/9/99, 233-238). While Jaks-Bouchard was still on the telephone, Osowski answered the door. It was Q. Jaks-Bouchard told Osowski not to let Q inside. Osowski knew Q from working at the Prestige Barbecue. After a conversation, Q walked down the driveway toward the street and walked around a red car to the sidewalk across the street. The car drove off, going the wrong way on the one-way street (T 11/10/99,64-66,68-69). At 6:30 or 7:30, Hana Akrawi, Jamal's wife, telephoned. Hana Akrawi was crying and upset because she was missing her family. Jaks-Bouchard called 911 and the Fifth Precinct. (T 11/9/99, 239-244). Osowski walked to the Prestige Barbecue. He saw Jamal Akrawi's white Volvo at the rear of the restaurant. The police pulled up and asked him questions. He did not go inside the restaurant (T 11/10/99, 62-71). The police arrived at the Prestige Barbecue at 7:35 a.m. They discovered that the front door to the restaurant was ajar. Three members ofthe Akrawi family were found dead by the front door, and Paul Scott was found by the kitchen area (T 11/15/99, 66). 11 casings and five slugs were recovered from the murder scene. Six ofthe casings were .380 and five were .25 (T 11/15/99, 87-92). Jamal was laying just inside the front door. He died as a result of three gunshot wounds to the head, all fired from close range (T 11/16/99, 179-182). Abdul's body was in a kneeling position with his rosary beads in his hand. He died as a result of a single gunshot wound to the back of the head (T 11/16/99, 185.) Tommy was found face down on the ceramic floor with a pool of blood around his head. Tommy died as a result of a gunshot wound to the back ofthe head, fired at close range (T 11/16/99, 183-184 ). Paul Scott's body was dragged across the floor, leaving a bloodstain smear on the tile that extended 52 feet. His pants were pulled toward his knees (T 11/15/99, 69-71, 78-83, 96). Paul died as a result of multiple gunshot wounds: three to the back and one to the head (T 11/16/99, 186-189). Jamal Akrawi's left pant's pocket was turned out and he had 10 cents on his person. Abdul had 35 cents (T 11/15/99, 83-85). The cash register was open and empty. The insert that goes inside the drawer was under the service counter, outside of plain view. The insert contained small bills, 5's and 1's (T 11/15/99, 71, 73, 86, 9

115). Defendant was Cordale Henry's uncle (T 11/10/99, 79-85). When Defendant was arrested on April 6th, he had his hair braided in corn rows. However, when Defendant was placed in a lineup, Defendant had started to undo his braids. He only had time to take the braids out of the right side of his head, so his hair on the right side was sticking out. The left side of his head was still braided (T 11/15/99, 142144). Furthermore, when Defendant was arrested, he was wearing the same clothes that he wore in the evening of April 3rd and the early morning hours of April 4th (T 11/10/99, 127-134, 144). These items were taken into evidence (T 11/15/99, 131132, 141, 11/16/99, 23). Scientific test preformed on Defendant[`s] clothing detected gunshot residue on Defendant[`s] jacket and pants. Defendant's jeans had gunshot residue in the front pockets, both left and right pockets, indicating that Defendant fired a gun, then, placed his hands in his pockets. The jacket had gunshot residue in the right and left sleeve cuffs, and the upper right and left front panel and in both right and left front pockets (T 11/16/99, 137-138, 143, 146-147). When Defendant first spoke to the police, he denied ever being in the restaurant or being involved in the crime (T 11/15/99, 184-185). Then, Defendant made a written statement stating that he went to Q's house on that Saturday night. Defendant stated that Tone was also there, and that Tone had a small nickel plated automatic handgun, possibly a .22 or .25. Q had another small handgun: a .22.0r.25 or .380 and some bullets, which he shared with Tone (T 11/15/99, 175-176). Defendant told police that Tone sounded mad, and said that he had been fired from the restaurant. Q and Defendant were going to go to the bar, but Q told Defendant that they had to make a stop at the Prestige Barbecue so that Tone could "holler at my man." Q and Tone got into Tone's car and Defendant followed them in his own car. When they arrived at the restaurant, Tone and Q went inside through the side door. Defendant entered through the front door and a white lady, who was cleaning up, asked him who he was. He told her that he was Q's uncle. Q and Tone were in the back and Defendant stayed in the front. Tone and the owner argued over Tone being fired and the owner owing Tone some money (T 11/15/99, 176-178). As the white lady was leaving, the owner paid her some money. When he returned, he and Tone argued some more. Tone pulled out a handgun, shooting both the owner, and the owner's 12 year old son, in the head. Defendant stated that he panicked and ran to the front door. He heard more shots coming from the back ofthe restaurant. The door was hard to open because the man's body was laying in front ofthe door. When he made it outside, he heard more shots fired. He went to his car and saw Q and Tone running out the front door to Tone's car. They all left (T 11/15/99, 179.180). Defendant told police that, when Tone was shooting the owner, Q was in the back of the restaurant with the black cook and the older man. Defendant stated that he did not have a gun and did not shoot anyone. Q and Tone were friends from the restaurant and working together at Technicolor. Defendant stated that he never heard Q and Tone talk about robbing the restaurant. Defendant did not know any of the people at the restaurant (T 11/15/99, 180-182). 10

Tony Evans, testified that he worked at the Prestige Barbecue as the head cook, on and off for seven years. He knew Q from the barbecue, but did not socialize, and he did not even know where Q lived. Evans did not see Q on April 3rd (T 11/15/99, 18-19, 27). Pl.'s Br. on Appeal, in People v. Lamb, No. 225989 (Mich. Ct. App.), at 5-9.2 C. Procedural Default Respondent first contends that a number of petitioner's claims are barred by petitioner's procedural default in the state courts, either because petitioner failed to raise these claims on direct appeal or failed to object at trial. Under the procedural default doctrine, a federal habeas court will not review a question of federal law if the state court's decision rests on a substantive or procedural state law ground that is independent of the federal question and is adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). However, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on the procedural bar." Harris, 489 U.S. at 263. Furthermore, "only a `firmly established and regularly followed state practice' may be interposed by a State to prevent subsequent review . . . of a federal constitutional claim." Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984)); see also, Calderon v. United States Dist. Ct. for the E. Dist. of Cal., 96 F.3d 1126, 1129 (9th Cir. 1996) (internal quotation omitted) ("For the procedural default doctrine to apply, a state rule must be clear, consistently applied, and well-established at the time of the petitioner's purported default."). Respondent's Rule 5 materials do not include the state court trial transcripts. However, the factual summary set forth above is consistent with both the Michigan Court of Appeals's summary of the evidence and the factual statement in the brief filed by petitioner's counsel in the Michigan Court of Appeals. See Lamb, 2002 WL 31955204, at *5-*6, slip op. at 5-6; Def.-Appellant's Br. on Appeal, in People v. Lamb, No. 225989 (Mich. Ct. App.), at 6-11. 11
2

Even were the Court to conclude that petitioner's claims are procedurally defaulted, it is still necessary to consider the claims on the merits. Petitioner can still have his defaulted claims reviewed on the merits if he can show cause for, and prejudice attributable to, his default in the state courts. Petitioner contends that his appellate counsel was ineffective for failing to raise these claims either at trial or on direct appeal. If petitioner's position is correct, counsel's ineffectiveness may constitute cause to excuse any procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Murray v. Carrier, 477 U.S. 478, 488 (1986). A consideration of whether counsel was ineffective in turn requires a consideration of the merits of petitioner's claims. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); McCleese v. United States, 75 F.3d 1174, 1180 (7th Cir. 1996). Given that the cause and prejudice inquiry merges with an analysis of the merits of petitioner's defaulted claims, it is better to simply consider the merits of these claims, even if they are defaulted. See Jamison v. Collins, 100 F. Supp. 2d 647, 676 (S.D. Ohio 2000); Watkins v. Miller, 92 F. Supp. 2d 824, 832 (S.D. Ind. 2000); cf. Strickler v. Greene, 527 U.S. 263, 282 (1999) (considering merits of petitioner's habeas claims where inquiry into the merits mirrored cause and prejudice inquiry). D. Standard of Review Because petitioner's application was filed after April 24, 1996, his petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Amongst other amendments, the AEDPA amended the substantive standards for granting habeas relief by providing: (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-12

(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). "[T]he `contrary to' and `unreasonable application' clauses [have] independent meaning." Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). "A state court's decision is `contrary to' . . . clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535 U.S. at 694. "[T]he `unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also, Bell, 535 U.S. at 694. However, "[i]n order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also, Williams, 529 U.S. at 409. By its terms, § 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with "clearly established federal law as determined by the Supreme Court." Thus, "§ 2254(d)(1) restricts the source of clearly established law to [the

13

Supreme] Court's jurisprudence." Williams, 529 U.S. at 412. Further, the "phrase `refers to the holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision.' In other words, `clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529 U.S. at 412). Although "clearly established Federal law as determined by the Supreme Court" is the benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) "does not require citation of [Supreme Court] cases­indeed, 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, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements of "clearly established law" are to be determined solely by the holdings of the Supreme Court, the decisions of lower federal courts are useful in assessing the reasonableness of the state court's resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v. Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F. Supp.2d 354, 359 (E.D. Mich. 2002) (Tarnow, J.). E. Arrest Related Claims (Claims II and III) In his second and third habeas claims, petitioner challenges the validity of his arrest and detention following his arrest, and argues that both the pants seized from him and the statement he gave to the police should have been suppressed. More specifically, in these claims petitioner contends that: (1) the trial court erred in placing the burden of proof on him to show an absence of consent; (2) the police effected a warrantless entry into his home and warrantless arrest; and (3) his

14

detention was not based on probable cause but was merely used as a tool to gather evidence against petitioner. In a motion to amend his application which is granted in a separate order, petitioner also raises a more general claim that the police lacked probable cause to arrest him. The Court should conclude that these claims are not cognizable on habeas review. It is an "established rule that illegal arrest or detention does not void a subsequent conviction." Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (citing Frisbie v. Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886)). Thus, "although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause." Gerstein, 420 U.S. at 119. Because petitioner is now incarcerated pursuant to a valid conviction, he cannot challenge either the arrest leading to his incarceration or the preliminary procedures employed prior to his trial. Petitioner does contend that his subsequent statement to the police and the police seizure of his pants was the fruit of his initial arrest, and that he was held without probable cause so that the police could marshal further evidence against him. These claims, however, are not cognizable on habeas review. because "the exclusion of illegally seized evidence is simply a prophylactic device intended to deter Fourth Amendment violations by law enforcement officers," Kaufman v. United States, 394 U.S. 217, 224 (1969), the Supreme Court has determined that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. Stone v. Powell, 428 U.S. 465, 482 (1976); see also, Cardwell v. Taylor, 461 U.S. 571, 571-72 (1983) (per curiam). Thus, petitioner's claim is not cognizable on habeas review if he had an 15

adequate opportunity to present his claim to the state courts. "For such an opportunity to have existed, the state must have provided, in the abstract, a mechanism by which to raise the claim and the presentation of the claim in this case must not have been frustrated by a failure of that mechanism." Gilbert v. Parke, 763 F.2d 821, 823 (6th Cir. 1985); see also, Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982); Willett v. Lockhart, 37 F.3d 1271-72 (8th Cir. 1994). The requirement that there be, in the abstract, a mechanism by which to raise the Fourth Amendment claim "is met when state procedures provide a meaningful vehicle for a prisoner to raise a fourth amendment claim." United States v. Scarborough, 777 F.2d 175, 182 (4th Cir. 1985). A claim that a confession was tainted by an illegal arrest and should have been excluded is a claim based on the Fourth Amendment, and thus falls with the rule of Stone. See Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983) (per curiam); Jones v. Johnson, 171 F.3d 270, 277-78 (5th Cir. 1999). Likewise, a claim that the state impermissibly delayed arraignment following arrest is a claim based on the Fourth Amendment, and is therefore barred by the Stone rule. See Franklin v. McBride, No. 96-2399, 1997 WL 73228, at *1 (7th Cir. Feb. 5, 1997); Ben-Yisrayl v. Davis, 245 F. Supp. 2d 960, 968 (N.D. Ind. 2002). Further Michigan provides a mechanism to raise and litigate Fourth Amendment claims, and there is no evidence that this mechanism was not available to petitioner in the state courts. See Markham v. Smith, 10 Fed. Appx. 323, 327 (6th Cir. 2001); Machacek, 213 F.3d at 952. Petitioner's argument, rather, attacks the correctness of the state courts' factual findings and conclusions of law. However, in determining whether a mechanism for litigating the Fourth Amendment claims existed, it is irrelevant whether the state courts came to the correct conclusion on petitioner's claims. The courts that have considered the matter "have consistently held that an erroneous determination of a habeas petitioner's Fourth Amendment claim

16

does not overcome the Stone v. Powell bar." Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir. 1986); see also, Willett, 37 F.3d at 1270 (citing cases). An argument directed solely at the correctness of the state court decision "goes not to the fullness and fairness of his opportunity to litigate the claim[s], but to the correctness of the state court resolution, an issue which Stone v. Powell makes irrelevant." Siripongs v. Calderon, 35 F.3d 1308, 1321 (9th Cir. 1994). Thus, neither petitioner's allegedly illegal arrest nor the alleged subsequent use of evidence obtained as a result of that arrest provides a basis upon which a writ of habeas corpus may issue. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on these claims. F. Prosecutorial Misconduct (Claims IV-V, VII) Petitioner next raises several claims of prosecutorial misconduct. In his fourth and fifth claims, petitioner contends that the prosecutor suppressed exculpatory substantive and impeachment evidence. In his seventh claim, petitioner contends that he was denied a fair trial by the prosecutor's comments at trial. The Court should conclude that petitioner is not entitled to habeas relief on these claims. 1. Suppression of Exculpatory Evidence (Claims IV-V)

Petitioner contends that the prosecution suppressed exculpatory evidence relating to the amount of money found in the store, which would have constituted both exculpatory substantive evidence and exculpatory impeachment evidence. The Court should conclude that petitioner is not entitled to habeas relief on this claim. a. Clearly Established Law In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held "that the suppression by

17

the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. However, "there is no general constitutional right to discovery in a criminal case, and Brady did not create one." Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Thus, in order to establish a Brady violation, petitioner must show that the prosecutor (1) withheld evidence that was both (2) favorable to the accused and (3) material to guilt or punishment. See United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988). Furthermore, regardless of the exculpatory nature or materiality of the evidence withheld by the prosecution, "[n]o Brady violation exists where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available to defendant from another source." United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991) (citations omitted) (internal quotation omitted); accord United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir. 1994). Thus, petitioner's claim raises three questions: (1) was the evidence suppressed by the prosecution in that it was not known to petitioner and not available from another source?; (2) was the suppressed evidence favorable or exculpatory?; and (3) was the evidence material to the question of petitioner's guilt? See Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000); Luton v. Grandison, 44 F.3d 626, 628-29 (8th Cir. 1994); see also, Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Moore v. Illinois, 408 U.S. 786, 794-95 (1972). Petitioner bears the burden of establishing each of these three elements. See Carter, 218 F.3d at 601. If all three of these questions are answered in the affirmative, petitioner has established a constitutional error entitling him to the writ of habeas corpus, and "there is no need for further harmless-error review." Kyles v. Whitley, 514 U.S. 419, 435 (1995). If, on the other hand, any of these three questions is answered in the negative, then petitioner has failed to establish

18

a Brady violation. b. Analysis Petitioner's claim is based on the testimony of Investigator Adams and Officer Rem. At the preliminary examination, Investigator Adams testified that only $35.50 was found in the store, see Prelim. Exam Tr., at 99-100, and the prosecutor argued that the lack of any other money found in the store supported a bind over on the armed robbery and felony murder charge because the store should have had more money on hand, see id. at 105-06, 111-12. At trial, however, Officer Rem testified that he photographed bundled money in a desk drawer in the back office of the store. See Trial Tr., Vol. IV, at 112-14. Officer Rem testified that the $35.50 was found on the body of one of the victims in the front of the store. See id. at 110. Petitioner contends that this money was purposely withheld by the police to make it appear that he had taken it. The Michigan Court of Appeals rejected petitioner's claim, explaining: Contrary to defendant's claim, the officers' testimony concerning the amount of money found at the scene, being the area where the bodies were found, is consistent. Further, through defense counsel's cross-examination of the officer at trial, the jury was apprised that additional money was found in a back room of the restaurant. In addition, defendant has not established a Brady violation, where he has failed to persuasively argue that evidence of additional money found in a back office of the restaurant underneath a desk is favorable, or that such disclosure would have changed the outcome of the proceedings. Lamb, 2002 WL 31955204, at *10, slip op. at 10. The Court should conclude that this determination was reasonable. First, petitioner has failed to show suppression of the evidence because the evidence regarding the other money in the store came out at trial. Because the purpose of Brady is to permit a defendant to put all exculpatory information before the factfinder, "Brady generally does not apply to delayed disclosure of exculpatory information, but only to a complete failure to disclose." United 19

States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (internal quotation omitted). "[I]f previously undisclosed evidence is disclosed, as here, during trial, no Brady violation occurs unless the defendant has been prejudiced by the delay in disclosure." Norris v. Schotten, 146 F.3d 314, 334 (6th Cir. 1998) (internal quotation omitted); accord Davis, 306 F.3d at 421 ("Delay violates Brady only where the delay causes prejudice."); United States v. Bencs, 28 F.3d 555, 560-61 (6th Cir. 1994). Petitioner offers no argument why counsel could not recall Adams to further pursue this matter, or otherwise take advantage of whatever exculpatory value the additional evidence may have had. Second, petitioner has failed to demonstrate that the court of appeals's conclusion that the evidence was neither favorable nor material was unreasonable. On the contrary, the fact that there was money found in a desk drawer in an area apart from the area where the shootings occurred provides no favorable or material evidence that the shootings did not occur during the commission or attempted commission of a robbery. The evidence established that the restaurant was busy on the day of the murders; the owner only kept enough money in the cash register to make change but kept the rest of the money­including large bills­on his person, and that owner was found lying face down on the floor with his pocket turned out and no money on his person; and the restaurant's cash register was open and empty. As the court of appeals explained in rejecting petitioner's sufficiency of the evidence claim, the validity of the underlying robbery conviction was not called into question by the fact that other valuables which could have been stolen were left behind. See Lamb, 2002 WL 31955204, at *6 n.2, slip op. at 6 n.2. The evidence "was not material evidence, because the prosecution was not obligated to show that a robbery actually occurred." Mahaday v. Cason, 367 F. Supp. 2d 1107, 1118 (E.D. Mich. 2005).

20

Finally, the evidence was not material because, with respect to each victim, petitioner was convicted alternatively of first degree premeditated murder and first degree felony murder. The allegedly suppressed evidence went only to the robbery element of the felony murder charges. Even assuming that the jury would have acquitted petitioner of those charges had the evidence of the other money been disclosed earlier, petitioner makes no argument that the jury would also have acquitted him on the premeditated murder charges. Thus, the result of the proceeding­petitioner's conviction and sentence on four counts of first degree murder­would not have been different even if petitioner was acquitted on the felony murder charges. For these reasons, the Court should conclude that petitioner is not entitled to habeas relief on his Brady claims. 2. Comments (Claim VII)

Petitioner also contends that he was denied a fair trial by the prosecutor's comments during rebuttal argument. Specifically, during rebuttal argument the prosecutor suggested that the pants which petitioner was wearing when he was arrested were the same ones that he was wearing on the night of the murders, and that petitioner's girlfriend's testimony on this point was not credible. See Trial Tr., Vol. VII, at 48. Petitioner contends that this comment misrepresented the facts and constituted improper bolstering. The Court should disagree. a. Clearly Established Law For habeas relief to be warranted on the basis of prosecutorial misconduct, it is not enough that the prosecutor's conduct was "undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986). Rather, the misconduct must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. (internal quotation

21

omitted). "[T]he touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). In determining whether the prosecutor's conduct was so egregious as to warrant habeas relief, a court should consider "the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury; and the strength of the competent proof to establish the guilt of the accused." Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (internal quotations and citations omitted). In sum, to constitute a denial of due process the prosecutor's conduct must be "so pronounced and persistent that it permeates the entire atmosphere of the trial." Id. (internal quotation omitted). b. Analysis Contrary to petitioner's claim, the prosecutor's argument neither misstated the evidence nor constituted impermissible bolstering. Improper bolstering occurs through "comments that imply that the prosecutor has special knowledge of facts not in front of the jury." United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999). The prosecutor's comment in no way suggested that the prosecutor had knowledge of any facts beyond those presented to the jury; rather, the prosecutor was merely commenting that the pants were consistent with the witnesses' descriptions of the pants petitioner was wearing the night of the murders. Further, the prosecutor's argument that the pants were the same ones petitioner wore on the night of the murders did not misstate the evidence. The prosecutor's comment was a fair inference from the evidence, particularly the evidence that the pants were consistent with the witnesses' descriptions and that gunshot residue was found on the pants. Thus, the prosecutor's comment was a permissible characterization based on the evidence admitted at trial, and was not improper. See, e.g., Nichols v. Scott, 69 F.3d 1255, 1283 (5th Cir. 1995)

22

(comment "is permissible to the extent that it draws a conclusion based solely on the evidence presented.") (internal quotation omitted); United States v. Grey Bear, 883 F.2d 1382, 1392 (8th Cir. 1989); Martin v. Foltz, 773 F.2d 711, 717 (6th Cir. 1985) (prosecutor may argue permissible inferences from the evidence); United States ex rel. Williams v. Washington, 913 F. Supp. 1156, 1163 (N.D. Ill. 1995) (prosecutor's assertion during closing argument that the defendant had "lied" did not deprive petitioner of a fair trial where "the prosecution's statements were reasonable inferences drawn from the physical evidence and witness testimony[.]"). Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim. G. Bind Over and Sufficiency of Information (Claims VI & VIII) Petitioner next raises two claims challenging the sufficiency of the pretrial proceedings. In Claim VI, petitioner contends that a fatal variance caused a jurisdictional defect. In Claim VIII, he contends that the trial court improperly bound him over on the first degree murder counts. The Court should conclude that petitioner is not entitled to habeas relief on these claims. 1. Variance (Claim VI)

Petitioner first contends that a fatal variance occurred because the prosecution's amendment of the information at the preliminary examination was based on a Brady violation and perjury. As explained above, petitioner has failed to establish a Brady violation with respect to the money found in the back office of the restaurant. In any event, there was no variance here. "A variance to the indictment occurs when the charging terms of the indictment are unchanged, but where the evidence at trial proves facts materially different from those alleged in the indictment." United States v. Swafford, 512 F.3d 833, 841 (6th Cir. 2008) (internal quotation omitted). Here, there was no material difference between the facts proved at trial and those alleged in the information because

23

the information was amended to add the felony murder and armed robbery charges at the preliminary examination, well before trial. Nor has petitioner proffered any reason why the alleged perjury at the preliminary examination deprived the trial court of jurisdiction. Even if petitioner's

constitutional rights were violated at the preliminary examination or trial, this alone would not have deprived the trial court of subject matter jurisdiction over the charges lodged against petitioner. And, in any event, "[t]he question of whether the state courts had jurisdiction is one for those courts." Hunt v. Tucker, 875 F. Supp. 1487, 1522 (N.D. Ala. 1995), aff'd, 93 F.3d 735 (11th Cir. 1996) (per curiam); see also Murphy v. Beto, 416 F.2d 98, 100 (5th Cir. 1969) ("[J]urisdiction to try an offense includes jurisdiction to determine whether the offense is properly charged."). "A determination of whether a state court is vested with jurisdiction under state law is a function of the state courts, not the federal judiciary." Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976) (per curiam); accord Rhode v. Olk-Long, 84 F.3d 284, 287 (8th Cir. 1996); Wesselman v. Seabold, 834 F.2d 99, 102 (6th Cir. 1988); United States ex rel. Holliday v. Sheriff of Du Page County, Ill., 152 F. Supp. 2d 1004, 1013 (N.D. Ill. 2001). Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim. 2. Sufficiency of Bind Over (Claim VIII)

Petitioner also contends that his bind over by the district court for trial was improper because there was insufficient evidence to support a bind over and because the trial court incorrectly applied the law. These claims do not state cognizable bases for habeas relief. First, there is no general constitutional right to a preliminary examination before trial. See Gerstein v. Pugh, 420 U.S. 103, 125 n.26 (1975); Harris v. Neil, 437 F.2d 63, 64 (6th Cir. 1971). Thus, a state court's failure to even hold a preliminary examination does not present a cognizable habeas claim. See Scott v. Bock, 241

24

F. Supp. 2d 780, 793 (E.D. Mich. 2003) (Lawson, J.). Similarly, therefore, a claim that the evidence offered at a preliminary examination was insufficient for a finding of probable cause is not cognizable on habeas review. See David v. Lavinge, 190 F. Supp. 2d 974, 978 (E.D. Mich. 2002) (O'Meara, J.). Second, it is an "established rule that illegal arrest or detention does not void a subsequent conviction." Gerstein, 420 U.S. at 119 (citing Frisbie v. Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886)). Thus, "although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause." Gerstein, 420 U.S. at 119. Because petitioner is now incarcerated pursuant to a valid conviction, he cannot challenge the preliminary procedures employed prior to his trial. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim. H. Sufficiency of the Evidence (Claim IX) Petitioner next argues that the evidence presented at trial was insufficient to prove his guilt beyond a reasonable doubt. The Court should conclude that petitioner is not entitled to habeas relief on this claim. 1. Clearly Established Law

The Due Process Clause of the Fourteenth Amendment "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). Under the pre-AEDPA standard for habeas review of sufficiency of the evidence challenges, "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."

25

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Reviewing courts must view the evidence, draw inferences and resolve conflicting inferences from the record in favor of the prosecution. See Neal v. Morris, 972 F.2d 675, 678 (6th Cir. 1992). In determining the sufficiency of the evidence, the court must give circumstantial evidence the same weight as direct evidence. See United States v. Farley, 2 F.3d 645, 650 (6th Cir. 1993). However, under the amended version § 2254(d)(1) a federal habeas court must apply a more deferential standard of review of the state court decision. Thus, the question here is whether the Michigan Court of Appeals's application of the Jackson standard was reasonable. See Gomez v. Acevedo, 106 F.3d 192, 198-200 (7th Cir. 1997), vacated on other grounds sub nom. Gomez v. DeTella, 522 U.S. 801 (1998); Restrepo v. DiPaolo, 1 F. Supp. 2d 103, 106 (D. Mass 1998). While a challenge to the sufficiency of the evidence on an established element of an offense raises a federal constitutional claim cognizable in a habeas corpus proceeding, see Jackson, 443 U.S. at 324, "[t]he applicability of the reasonable doubt standard . . . has always been dependent on how a State defines the offense that is charged in any given case." Patterson v. New York, 432 U.S. 197, 211 n.12 (1977); see also, Jackson, 443 U.S. at 324 n.16; Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). Thus, "[a] federal court must look to state law to determine the elements of the crime." Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). Under Michigan law, first degree murder includes "[m]urder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, or kidnapping." MICH. COMP. LAWS § 750.316(1)(b) (emphasis added), as well as murder

26

committed with premeditation, MICH. COMP. LAWS § 750.316(1)(a). Under either theory of first degree murder, the prosecution must show that a defendant had the mental state necessary for murder, that is, malice aforethought. See generally, People v. Aaron, 409 Mich. 672, 713-21, 299 N.W.2d 304, 319-323 (1980); People v. Turner, 213 Mich. App. 558, 556, 540 N.W.2d 728, 73233 (1995) (per curiam). Under Michigan law, malice is established by showing that the defendant possessed one of three mental states: (1) intent to kill; (2) intent to do serious bodily harm; or (3) wanton and willful disregard for the likelihood that the natural tendency of his act is to cause death or great bodily harm. See Aaron, 409 Mich. at 733, 299 N.W.2d at 328. Thus, the elements of first degree felony murder are: "(1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result; (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in M.C.L. § 750.316." Turner, 213 Mich. App. at 566, 540 N.W.2d at 732. Similarly, "[i]n order to convict a defendant of first-degree murder, the prosecution must prove that the defendant intentionally killed the victim and that the act of killing was premeditated and deliberate." People v. Anderson, 209 Mich. App. 527, 537, 531 N.W.2d 780, 786 (1995); see also, Grant v. Rivers, 920 F. Supp. 769, 786 (E.D. Mich. 1996); People v. Younger, 380 Mich. 678, 681, 158 N.W.2d 493, 495 (1968); People v. Brown, 137 Mich. App. 396, 407, 358 N.W.2d 592, 597 (1984). Further, MICH. COMP. LAWS § 767.39 abolished the common law distinction between aiders and abettors and principals, and provides that aiders and abettors may be prosecuted and convicted as though they had directly participated in the crime. See People v. Palmer, 392 Mich. 370, 378, 220 N.W.2d 393, 396 (1974). Aiding and abetting under Michigan law requires proof of three

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elements: (1) commission of the underlying crime either by the defendant or some other person; (2) acts or encouragement by the defendant which aided or assisted the commission of the crime; and (3) intent on the part of the defendant to commit the crime or knowledge by the defendant that the principle intended to commit the crime at the time aid or encouragement was given. See People v. Acosta, 153 Mich. App. 504, 511-12, 396 N.W.2d 463, 467 (1986) (per curiam). Thus, "[t]o be convicted of aiding and abetting first-degree [premeditated] murder, the defendant must have had the intent to kill or have given the aid knowing the principal possessed the intent to kill." People v. Buck, 197 Mich. App. 404, 410, 496 N.W.2d 321, 326 (1992), rev'd on other grounds sub nom. People v. Holcomb, 444 Mich. 853, 508 N.W.2d 502 (1993). 2. Analysis

Petitioner contends that the evidence was insufficient because there was no physical evidence which placed him at the scene, no witness who placed petitioner at the scene, no evidence of a robbery or intent to rob, no evidence of aiding and abetting (i.e., that he and codefendant Henry acted in concert), no evidence that linked petitioner's pants to the date of the crime, and no evidence that linked the gunshot residue found on his pants to the murder weapon. The Michigan Court of Appeals rejected petitioner's claim, concluding that the evidence was sufficient to prove petitioner's guilt beyond a reasonable doubt on both a premeditation and felony murder theory. The Court should conclude that this determination was reasonable. Although there was no direct evidence of petitioner's guilt, as the court of appeals explained there was substantial circumstantial evidence of petitioner's guilt. The prosecution's principal witness testified that when she left the restaurant, petitioner's codefendant and a man he identified as his uncle were in the restaurant. It was undisputed that petitioner is codefendant Henry's uncle.

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She also testified that she heard gunshots shortly after leaving the restaurant. The four victims were shot with two different guns, and pants in petitioner's home which were consistent with the pants he was wearing at the restaurant on the night of the murders had gunshot residue. Petitioner initially denied being at the restaurant, but later admitted that he was there on the night of the murder. Further, there was testimony to support that the murders occurred during a robbery, notably testimony that the restaurant was busy that day, that the owner kept the bulk of the money in his pocket but was found with no money on his person, and that the cash register was open and empty. See Lamb, 2002 WL 31955204, at *5-*6, slip op. at 5-6. Although there may have been some gaps or inconsistencies in the testimony and evidence it is the job of the jury, not this Court sitting on habeas review, to resolve conflicts in the evidence, and this Court must presume that the jury resolved those conflicts in favor of the prosecution. See Jackson, 443 U.S. at 326; United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996). A reviewing court, whether on direct appeal or habeas review, "do[es] not make credibility determinations in evaluating the sufficiency of the evidence." United States v. Owusu, 199 F.3d 329, 344 (6th Cir. 2000); Walker v. Russell, 57 F.2d 472, 475-76 (6th Cir. 1995); see also, United States v. Bailey, 444 U.S. 394, 414-15 (1980) ("It is for [jurors] and not for appellate courts to say that a particular witness spoke the truth or fabricated a cock-and-bull story."). Viewed in the light most favorable to the prosecution, the evidence presented was sufficient to prove petitioner's guilt of first degree murder, both on a premeditation and felony murder theory. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim. I. Ineffective Assistance of Counsel Finally, petitioner raises a number of claims that his trial and appellate attorneys rendered

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constitutionally inadequate assistance. The Court should conclude that petitioner is not entitled to habeas relief on these claims. 1. Trial Counsel (Claims IV-V & X-XII)

Petitioner contends that trial counsel was ineffective for failing to: properly pursue his Brady claims; investigate and pursue an alibi defense; and request a Remmer hearing regarding extraneous jury influences. Petitioner also contends that he is entitled to habeas relief based on the cumulative effect of counsel's errors. The Court should conclude that petitioner is not entitled to habeas relief on these claims. a. Clearly Established Law The Sixth Amendment right to counsel and the corollary right to effective assistance of counsel protect the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish the ineffective assistance of counsel, petitioner must show that: (1) counsel's errors were so serious that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment;" and (2) counsel's deficient performance prejudiced the defense. Id. at 687. These two components are mixed questions of law and fact. See id. at 698. Further, "[t]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697. If "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Id. With respect to the performance prong of the inquiry, a strong presumption exists that counsel's behavior lies within the wide range of reasonable professional assistance. See id. at 689; O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). "[D]efendant must overcome the

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presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (citation omitted). "[T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. With respect to the prejudice prong, the reviewing court must determine, based on the totality of the evidence before the factfinder, "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.3 b. Failure to Object to Suppression of Evidence (Claims IV & V) Petitioner argues that counsel was ineffective for failing to properly raise his Brady claims

Petitioner contends that he is entitled to a presumption of prejudice under United States v. Cronic, 466 U.S. 648 (1984), such that a showing of prejudice with respect to his ineffective assistance of counsel claims is not necessary. The Court should disagree. Petitioner has pointed to no clearly established Supreme Court precedent requiring application of the presumed prejudice standard in the circumstances present here. The Supreme Court has limited the presumed prejudice