Burns-Perry v. Warren

Filing 18

OPINION AND ORDER Denying re 1 Petition for Writ of Habeas Corpus filed by Brandon Burns-Perry, Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Marianne O. Battani. (BThe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRANDON BURNS-PERRY,
Petitioner,
CASE NO. 2:07-CV-12212
HONORABLE MARIANNE O. BATTANI
UNITED STATES DISTRICT COURT

v.

MILLICENT D. WARREN,
Respondent,
_______________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Brandon Burns-Perry, (“Petitioner”), confined at the Lakeland Correctional
Facility in Coldwater, Michigan, has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner
challenges his conviction for first-degree felony murder, M.C.L.A. 750.316(b). For
the reasons stated below, the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted of the above offense following a jury trial in the
Oakland County Circuit Court. 1 Both parties have provided extensive factual
summaries in their various pleadings. Accordingly, the Court will only discuss the

1

Petitioner was also convicted of armed robbery but that conviction was vacated on direct
appeal on Double Jeopardy grounds.

1

facts that are pertinent to petitioner’s involvement in the crime.
On September 2, 2003, petitioner assisted Thomas Jackson, John Spratt,
and Shirley Haywood with the armed robbery of a hotel in Troy, Michigan. During
the robbery, the night clerk, Michelle Eberhard, was tied up with a telephone cord,
robbed, and then shot in the back of the head at close range, execution style.
The prosecutor’s theory was that petitioner was not the shooter but aided and
abetted in the commission of the crimes.
Marcus Perry testified that he was petitioner’s cousin and Shirley
Haywood’s son. (Tr. 2/3/04, pp. 491-92). Perry lived with petitioner at a
residence located at 13429 Moran in Detroit, Michigan. (Id., p. 476). Codefendant Thomas Jackson lived at 13433 Moran with his wife. (Id., p. 480). On
the night of September 2, 2003, Perry was at home when Haywood, Jackson and
Spratt arrived with petitioner. Perry later heard a gunshot coming from
petitioner’s room. Marcus Perry went upstairs and saw a .9-millimeter gun in
petitioner’s hand. (Id., pp. 482-84). Petitioner informed Perry that they had taken
the .9-millimeter from a “spot” (i.e., a drug house) and “it was sweet.” Petitioner
admitted to Perry that he had seen the .9-millimeter gun in the car and stated:
“this mug is sweet.” (Id., pp. 486-88). Perry testified that Shirley Haywood gave
him some money to hold after they returned from the Holiday Inn. Perry’s uncle
later told him to get rid of what Haywood had given him. Perry testified that he
threw the money into an alley. (Id., pp. 495-99).
2

Sergeant Barry Whiteside of the Troy Police Department negotiated with
petitioner and his grandmother to have petitioner turn himself in to the police. (Tr.
2/5/04, pp. 596-99). In an initial interview with Sergeant Whiteside, petitioner
admitted that he knew that Thomas Jackson had been employed at the Holiday
Inn. Petitioner called Shirley Haywood his aunt. Petitioner indicated that he did
not really know Spratt, having met him only three times. Petitioner admitted to
being with Jackson and Haywood on the night in question and accompanying
them to Spratt’s house. Petitioner stated that after they picked up Spratt,
petitioner fell asleep in the car. Petitioner admitted that Jackson backed the car
he was driving into a handicapped parking spot at the side of the Holiday Inn.
Petitioner stated that he had to go to the bathroom at the hotel. Petitioner
informed Sergeant Whiteside that Spratt or Jackson ordered him to come out the
side door. Petitioner never used the bathroom. Petitioner then went out the side
door, Spratt held the door, and Jackson entered the hotel to talk to a girl.
Petitioner indicated that the men eventually left the hotel and went to petitioner’s
house. Petitioner claimed that Spratt pulled a purse out from behind his back and
took money out of his pocket, which was split four ways. Petitioner stated that he
pushed the money that he had been given away from him. Petitioner claimed
that Spratt gave him a Glock 40 handgun and told him to put it away. Petitioner
took the gun upstairs, and played with it before it discharged. (Id., pp. 600-08).
Petitioner initially denied knowing anything about a planned armed robbery.
3

Later in the interview with Sergeant Whiteside, however, petitioner admitted that
he “thought there might have been a robbery that occurred.” Petitioner believed,
however, that the men were not going to use guns. Petitioner denied seeing any
guns in the car, but admitted giving a .9-millimeter Luger firearm to Jackson.
Petitioner claimed that he did not go back to the Holiday Inn after he saw the
guns. (Id., pp. 609-13, 619). Petitioner was arrested. (Id., p. 614).
Petitioner was interviewed by the police the day after his arrest. In this
second interview, petitioner acknowledged being aware that a robbery was going
to occur at the Holiday Inn. Petitioner admitted that his role in the robbery was to
go into the front door of the hotel and open up the side door to let Jackson and
Spratt in. Petitioner denied seeing the gun in the car, but admitted telling his
cousin that, “these n[*****]s just did a lick.” (Id., pp. 614-15, 618, 624-25).
Shirley Haywood testified against petitioner as part of a plea agreement
that allowed her to plead guilty to second-degree murder and armed robbery with
a sentence agreement of fifteen to twenty five years. (Id., Tr. 2/5/04, pp. 767-71,
776, 794, Tr. 2/6/04, p. 856). Haywood testified that earlier in the evening of the
murder, she had driven petitioner, Jackson, and Spratt to a house in Detroit.
Spratt stole a firearm from the occupants of that residence. (Tr. 2/5/04, pp. 72227). Petitioner asked to “see that mug,” stating: “it’s sweet.” (Id., pp. 729,
812-13). Spratt stated that he was “keeping that one.” (Id., p. 731). Petitioner
had a brown-handled gun that night. (Tr. 2/6/04, p. 852).
4

While the four were driving, Jackson informed the others that he “knew this
quick lick, [i.e. a robbery] it was in and out.” Petitioner was not asleep during the
conversation. Jackson stated that one person would be there. Jackson, who had
worked at the Holiday Inn, told them about the safe with money and that the
person working at the hotel would have a key. Jackson also indicated that there
was money in little drawers. Spratt indicated that he was “with” Jackson.
Haywood testified that petitioner reaching into the area of the back passenger
seat and into the trunk, before handing something to Jackson. Jackson put the
object between his legs or under his shirt. Haywood admitted knowing that an
armed robbery was going to take place. (Tr. 2/5/04, pp. 732-36, 785-86; Tr.
2/6/04, pp. 829, 837, 839, 851-53).
When the four accomplices arrived at the Holiday Inn, petitioner tried to
enter through the back door, but it was locked. Jackson then backed the car into
a handicapped parking spot. Jackson then told petitioner “you know what to do.”
Petitioner responded “yeah.” The plan was that if petitioner encountered anyone
at the hotel, he was supposed to say that he needed to use the bathroom. (Tr.
2/5/04, pp. 736-39, 788; Tr. 2/6/04, pp. 835, 854-55, 858, 863-66).
The three men got out and petitioner walked toward the front of the Holiday
Inn. Spratt and Jackson went to the trunk of the car.(Tr. 2/5/04, pp. 740, 746,
788, Tr. 2/6/04, pp. 836-37). Haywood moved into the driver’s seat of the car.
(Tr. 2/5/04, p. 748). Shortly thereafter, petitioner exited the side door of the hotel,
5

holding it open so that Jackson and Spratt could enter. Petitioner told the men
that no one was inside the hotel. (Tr. 2/5/04, pp. 740, 746-747, 788; Tr. 2/6/04,
pp. 835-37). Jackson and Spratt came out of the hotel after ten or fifteen minutes
and asked Haywood to pop the trunk. (Tr. 2/5/04, pp. 747, 788; Tr. 2/6/04, pp.
841-42).
The four accomplices drove to petitioner’s house, where they divided the
money taken from the robbery four ways. Haywood testified that petitioner did
not refuse to take the money. Spratt told Jackson to put up the guns. Petitioner
took the guns upstairs. Haywood then heard a gunshot and saw petitioner with
Spratt’s gun in his hand. Jackson then took the guns away from petitioner. ((Tr.
2/5/04, pp. 751-56, 789-90; Tr. 2/6/04, pp. 843-45).
Jackson, Spratt, and Haywood subsequently returned to the Holiday Inn to
retrieve the telephone cord that was used to bind Eberhard’s hands because they
were concerned that the cord may have contained Spratt’s fingerprints. (Tr.
2/5/04, pp. 749-58, 789; Tr. 2/6/04, p. 843). When the three arrived at the hotel,
they confronted Rachel Joost, a business traveler from Texas, who had arrived to
check in. Jackson forced Joost to lie on the floor and shot her in the head. Joost
survived and managed to call the police. (Tr. 2/5/04, pp. 675-99).
The following morning, Haywood saw a news report about the robbery,
which indicated that two people had been killed. When Haywood informed
petitioner about this information, petitioner acted like he “couldn’t care
6

less.” (Tr. 2/5/04, pp. 774, 792; Tr. 2/6/04, p. 849).
William Rice testified that he was incarcerated in the county jail with
Petitioner. Petitioner informed Rice that he was with his aunt, his cousin and their
friend. Petitioner advised Rice that there were two guns involved in the crime,
including a .9-millimeter. Petitioner indicated that one of the guns could have had
his fingerprints on it because it was his. Petitioner gave the gun to his cousin’s
friend. Petitioner knew that Spratt and Jackson were armed when they entered
the hotel. Petitioner knew that Thomas Jackson had worked at the hotel.
Petitioner stated that if he was released, he would “probably leave [the] state” and
get out of the country. (Tr. 2/6/04, pp. 870-82).
Sergeant David Livingston of the Troy Police discovered Michelle
Eberhard’s purse inside of a garbage bag in the kitchen of petitioner’s house.
The key to the Holiday Inn’s cash registers was found inside that purse. (Tr.
2/5/04, pp. 540-542, 546-547).
Petitioner’s conviction was affirmed on appeal. People v. Burns-Perry, No.
254213, 2005 WL 2514257 (Mich.Ct.App. Oct. 11, 2005); lv. den. 474 Mich.
1071; 711 N.W. 2d 324 (2006).
Petitioner filed a petition for writ of habeas corpus, which was held in
abeyance so that petitioner could return to the state courts to exhaust additional
claims. Burns-Perry v. Warren, No. 07-CV-12212, 2009 WL 2222591 (E.D. Mich.
July 21, 2009).
7

Petitioner filed a motion for relief from judgment with the trial court, which
was denied. People v. Burns-Perry, No. 03-193006-FC, Order (Oakland County
Cir. Ct. Oct. 27, 2010). The Michigan appellate courts denied petitioner leave to
appeal. People v. Burns-Perry, No. 306814, (Mich. Ct. App. May 7, 2012); lv. den.
493 Mich. 917; 823 N.W. 2d 601 (2012).
On March 14, 2013, this Court reactivated the case to the Court’s active
docket following the completion of petitioner’s state post-conviction proceedings
and permitted petitioner to file an amended habeas petition. In his original and
amended habeas petitions, petitioner seeks habeas relief. For the purposes of
judicial clarity, the Court will paraphrase the claims rather than quote them
verbatim:
I. The trial judge improperly instructed the jurors on the malice
element necessary to convict him of aiding and abetting in a felony
murder.
II. Petitioner was deprived of a fair trial by the admission of irrelevant
and prejudicial evidence concerning the assault on Rachel Joost,
because petitioner had no involvement in the assault.
III. Petitioner was denied his right to due process due to
prosecutorial misconduct.
IV. Petitioner was denied the effective assistance of trial counsel.
V. The prosecutor presented insufficient evidence that petitioner
intended to rob and kill the victim, so as to sustain his convictions for
first-degree murder and armed robbery.

8

II. Standard of Review
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 decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs
when “a state court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may
not “issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 410-11.

9

The Supreme Court has explained that “[A] federal court’s collateral review
of a state-court decision must be consistent with the respect due state courts in
our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings,’and ‘demands that state-court decisions be given the benefit of the
doubt.’” Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)((quoting Lindh v. Murphy,
521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per
curiam)). “[A] state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 131 S.Ct. 770,
786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court has emphasized “that even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Id. ( citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Furthermore, pursuant to §
2254(d), “a habeas court must determine what arguments or theories supported
or...could have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision” of the Supreme
Court. Id.
“[I]f this standard is difficult to meet, that is because it was meant to be.”
Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the
10

AEDPA, does not completely bar federal courts from relitigating claims that have
previously been rejected in the state courts, it preserves the authority for a
federal court to grant habeas relief only “in cases where there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with” the
Supreme Court’s precedents. Id. Indeed, “Section 2254(d) reflects the view that
habeas corpus is a ‘guard against extreme malfunctions in the state criminal
justice systems,’ not a substitute for ordinary error correction through appeal.” Id.
(citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J.,
concurring in judgment)). Indeed, a “readiness to attribute error [to a state court]
is inconsistent with the presumption that state courts know and follow the law.”
Woodford, 537 U.S. at 24. Therefore, in order to obtain habeas relief in federal
court, a state prisoner is required to show that the state court’s rejection of his
claim “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 131 S. Ct. at 786-87.
III. Discussion
A. Claim # 1. The defective jury instruction.
Petitioner first claims that the trial judge misintructed the jurors on the
requisite intent required to aid and abet in a felony murder. Petitioner claims that
the instruction as given was erroneous because it permitted petitioner to be
convicted as an aider and abettor simply based upon a showing that the principal
11

acted with a wanton and wilful disregard for human life.
The burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack upon the constitutional validity of
a state court conviction is even greater than the showing required in a direct
appeal. The question in such a collateral proceeding is whether the ailing
instruction so infected the entire trial that the resulting conviction violates due
process, not merely whether the instruction is undesirable, erroneous, or even
“universally condemned,” and an omission or incomplete instruction is less likely
to be prejudicial than a misstatement of the law. Henderson v. Kibbee, 431 U.S.
145, 154-155 (1977). The challenged instruction must not be judged in isolation
but must be considered in the context of the entire jury charge. Jones v. United
States, 527 U.S. 373, 391 (1999). Further, any ambiguity, inconsistency or
deficiency in a jury instruction does not by itself necessarily constitute a due
process violation. Waddington v. Sarausad, 555 U.S. 179, 190 (2009). It is not
enough that there might be some “slight possibility” that the jury misapplied the
instruction. Id. at 191.
The Michigan Court of Appeals rejected petitioner’s claim, on the ground
that the instruction as given “virtually mirrored” the elements set forth under
Michigan law to convict a defendant of felony murder under an aiding and
abetting theory. Burns-Perry, No. 2005 WL 2514257, Slip. Op. at * 1.
Federal courts are bound by the state courts’ interpretation of their own
12

laws. See Mullaney v. Wilbur, 421 U.S. 684, 690-91 1975). The nature of a
particular jury instruction that is given is a matter of state law, and a federal court
is not at liberty to grant a writ of habeas corpus simply because the federal court
finds the state court’s decision was incorrect under state law. Newton v. Million,
349 F.3d 873, 879 (6th Cir. 2003). Because the Michigan Court of Appeals
essentially found that the jury instruction as given accurately reflected Michigan
law with respect to the elements of aiding and abetting a felony murder, this
Court must defer to that determination and cannot question it. See Seymour v.
Walker, 224 F. 3d 542, 558 (6th Cir. 2000). Petitioner is not entitled to habeas
relief on his first claim.
B. Claim # 1. Evidence of the assault on Rachel Joost.
Petitioner argues that the trial court abused its discretion when it permitted
his jury to hear evidence concerning the assault on Rachel Joost because such
evidence was inadmissible and prejudicial, in light of the fact that petitioner did
not participate in this crime.
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). A federal court is limited in federal habeas review to deciding whether a
state court conviction violates the Constitution, laws, or treaties of the United
States. Id. Errors in the application of state law, especially rulings regarding the
admissibility of evidence, are usually not questioned by a federal habeas court.
13

Seymour v. Walker, 224 F. 3d at 552.
Petitioner's claim that he was denied a fair trial by the admission of
irrelevant and prejudicial evidence cannot form the basis for habeas relief,
because it involves a state law evidentiary issue. See Hall v. Vasbinder, 551 F.
Supp. 2d 652, 676 (E.D. Mich. 2008); rev’d on other grds 563 F.3d 222 (6th Cir.
2009); See also Oliphant v. Koehler, 451 F. Supp. 1305, 1308 (W.D. Mich.
1978).
To the extent that petitioner argues that the state court violated M.R.E.
404(b) by admitting improper character evidence against him, he would not be
entitled to relief because this claim is non-cognizable on habeas review. See Bey
v. Bagley, 500 F 3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme
Court’s habeas powers did not permit Court to reverse state court conviction
based on their belief that the state trial judge erred in ruling that prior injury
evidence was admissible as bad acts evidence under California law); Dowling v.
U.S., 493 U.S. 342, 352-53 (1990)(admission at defendant’s bank robbery trial of
“similar acts” evidence that he had subsequently been involved in a house
burglary for which he had been acquitted did not violate due process). The
admission of this “prior bad acts” or “other acts” evidence against petitioner at
his state trial does not entitle him to habeas relief, because there is no clearly
established Supreme Court law which holds that a state violates a habeas
petitioner’s due process rights by admitting “other acts” evidence. See Bugh v.
14

Mitchell, 329 F. 3d 496, 512 (6th Cir. 2003). Petitioner is not entitled to habeas
relief on his second claim.
Claim # 3. Prosecutorial misconduct.
Petitioner contends that he was deprived of a fair trial by prosecutorial
misconduct.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v.
Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper comments
will be held to violate a criminal defendant’s constitutional rights only if they “‘so
infected the trial with unfairness as to make the resulting conviction a denial of
due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will thus
form the basis for habeas relief only if the conduct was so egregious as to render
the entire trial fundamentally unfair based on the totality of the circumstances.
Donnelly v. DeChristoforo, 416 U.S. at 643-45. The Court must focus on “‘the
fairness of the trial, not the culpability of the prosecutor.’” Pritchett v. Pitcher, 117
F. 3d 959, 964 (6th Cir.1997)(quoting Serra v. Michigan Dep't of Corr., 4 F.3d
1348, 1355 (6th Cir. 1993)). Moreover, in order to obtain habeas relief on a
prosecutorial misconduct claim, a habeas petitioner must show that the state
court’s rejection of his prosecutorial misconduct claim “was so lacking in
justification that there was an error well understood and comprehended in
15

existing law beyond any possibility for fairminded disagreement.” Parker v.
Matthews, 132 S. Ct. 2148, 2155 (2012)(quoting Harrington, 131 S. Ct., at
786–87). This is particularly so, “because the Darden standard is a very general
one, leaving courts ‘more leeway ... in reaching outcomes in case-by-case
determinations[,]’”. Id. (quoting Yarborough v. Alvarado, 541 U.S. at 664).
Petitioner first contends that the prosecutor appealed to the jurors’
sympathy by stating that Michelle Eberhard had been “executed” and that her
children no longer had a mother, merely to obtain $ 125.00 in cash. (Tr. 2/9/04,
pp. 1058-59). After defense counsel’s objection was overruled, the prosecutor
indicated that neither he nor the victim’s family wanted the jury’s sympathy but
that petitioner was not entitled to sympathy because of his age. The prosecutor
also told the jurors that the judge would instruct them on the role of sympathy in
the case. (Id., pp. 1059, 1074). The judge later instructed the jurors that
sympathy should have no influence on their decision, that the lawyers’
statements and arguments were not evidence, and that they were to decide the
case solely on the evidence. (Id., pp. 1104, 1106-07).
Petitioner is not entitled to habeas relief on his claim. First, the
prosecutor’s comment, even if it was an attempt to invoke sympathy with the
jury, would not entitle petitioner to habeas relief because the remark was
relatively isolated, was not extensive, and was only a small part of the closing
argument that focused on summarizing the evidence. Byrd v. Collins, 209 F. 3d
16

486, 532 (6th Cir. 2000). This portion of petitioner’s claim would also be defeated
by the fact that the trial court instructed the jury that they were not to let
sympathy or prejudice influence their decision. See Cockream v. Jones, 382
Fed. Appx. 479, 486 (6th Cir. 2010). Finally, even if the prosecutor’s appeals to
the jury’s emotions or sympathies was improper, this would be insufficient to
render the trial fundamentally unfair, since it was likely that the nature of the
crime itself would have produced juror sympathy even before the prosecutor
made any of these comments. See Millender v. Adams, 187 F. Supp. 2d 852,
875-76 (E.D. Mich. 2002).
Petitioner next claims that the prosecutor impermissibly appealed to the
juror's civic duty when in his rebuttal he reminded the jurors that plexiglass is
used in gas stations to protect the clerk from getting shot in the head.
With regards to civic or societal duty arguments, the Sixth Circuit has
noted that, “[u]nless calculated to incite the passions and prejudices of the
jurors, appeals to the jury to act as the community conscience are not per se
impermissible.” Byrd v. Collins, 209 F. 3d at 539 (quoting United States v.
Solivan, 937 F. 2d 1146, 1151 (6th Cir. 1991)).
In this case, the prosecutor’s “less than-pointed-remarks” did not rise to
the level of remarks designed to incite prejudice in a jury, thus defeating
petitioner’s “civic duty” argument claim. See Puetas v. Overton, 168 Fed. Appx.
689, 701 (6th Cir. 2006). Moreover, the prosecutor did not make an improper
17

civic duty argument, because the prosecutor appeared to be asking the jurors to
use their common sense in evaluating petitioner’s claim that he had no idea that
his armed co-defendants were going to rob and kill Ms. Eberhard. Finally, the
trial court’s instruction to the jury that they must not let prejudice or sympathy
influence their decision defeats petitioner’s claim that he was deprived of a fair
trial because of an improper civic duty argument. See Knapp v. White, 296 F.
Supp. 2d 766, 776 (E.D. Mich. 2003). Petitioner is not entitled to habeas relief
on his third claim.
D. Claims # 4 and # 5. The procedurally defaulted claims.
Respondent contends that petitioner’s remaining claims are procedurally
defaulted because petitioner raised these claims for the first time in his postconviction motion and failed to show cause and prejudice for failing to raise
these claims in his appeal of right, as required by M.C.R. 6.508(D)(3).
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, 750-51 (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). However, in an extraordinary case,
18

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, 479-80 (1986).
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
which 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.” M.C.R. 6.508(D)(3)(b)(i).
The Supreme Court has noted that “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 v. Reed, 489 U.S. 255, 263 (1989).
If the last state court judgment contains no reasoning, but simply affirms the
conviction in a standard order, the federal habeas court must look to the last
reasoned state court judgment rejecting the federal claim and apply a
presumption that later unexplained orders upholding the judgment or rejecting
the same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991).
19

The Michigan Court of Appeals and the Michigan Supreme Court rejected
petitioner’s post-conviction appeal on the ground that “the defendant has failed
to meet the burden of establishing entitlement to relief under MCR 6.508(D).”
These orders, however, did not refer to subsection (D)(3) nor did they mention
petitioner’s failure to raise these claims on his direct appeal as their 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.
The Oakland County Circuit Court judge rejected petitioner’s postconviction claims on the ground that petitioner had “failed to satisfy either the
good cause or the actual prejudice prong of the two-prong standard of MCR
6.508(D)(3).” People v. Burns-Perry, No. 03-193006-FC, * 6 (Oakland County
Circuit Court, October 27, 2010). Because the trial court judge denied petitioner
post-conviction relief based on the procedural grounds stated in M.C.R.
6.508(D)(3), petitioner’s post-conviction claims are clearly procedurally defaulted
pursuant to M.C.R. 6.508(D)(3). See Ivory v. Jackson, 509 F. 3d 284, 292-93 (6th
Cir. 2007); Howard v. Bouchard, 405 F. 3d 459, 477 (6th Cir. 2005). The fact that
the trial court may have also discussed the merits of petitioner’s claims in
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addition to invoking the provisions of M.C.R. 6.508(D)(3) to reject petitioner’s
claims does not alter this analysis. See Alvarez v. Straub, 64 F. Supp. 2d 686,
695 (E.D. Mich. 1999). A federal court need not reach the merits of a habeas
petition where the last state court opinion clearly and expressly rested upon
procedural default as an alternative ground, even though it also expressed views
on the merits. McBee v. Abramajtys, 929 F. 2d 264, 267 (6th Cir. 1991).
In the present case, petitioner has offered no reasons for his failure to
raise his fourth and fifth claims on his appeal of right. Because petitioner has not
demonstrated any cause for his procedural default, it is unnecessary to reach the
prejudice issue. Smith, 477 U.S. at 533.
Additionally, petitioner has not presented any new reliable evidence to
support any assertion of innocence which would allow this Court to consider his
fourth and fifth claims as a ground for a writ of habeas corpus in spite of the
procedural default.
First, although petitioner claims that the evidence was insufficient to
convict him of the crime [Claim # 5], petitioner’s sufficiency of evidence claim is
insufficient to invoke the actual innocence exception to the procedural default
doctrine. See Malcum v. Burt, 276 F. Supp. 2d 664, 677 (E.D. Mich. 2003).
Secondly, petitioner’s affidavit from his co-defendant Thomas Jackson,
dated September 21, 2009, is not reliable evidence of innocence. In this
affidavit, Jackson claims that petitioner did not give him a firearm to commit a
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robbery or homicide at the Holiday Inn, that there was no discussion about taking
anyone’s life at the Holiday Inn, and that petitioner was not an aider and abettor
to the “accidental shooting death” of the victim.
Jackson’s affidavit is suspect, because it was not made until six years
after the shooting and some five and a half years after Jackson and petitioner
were both convicted. A long-delayed affidavit like Jackson’s which seeks to
exonerate petitioner is “treated with a fair degree of skepticism.” Herrera v.
Collins, 506 U.S. 390, 423 (1993). Indeed, in determining whether a habeas
petitioner has satisfied the miscarriage of justice standard, a federal court “may
consider how the timing of the submission and the likely credibility of the affiants
bear on the probable reliability of that evidence.” Schlup v. Delo, 513 U.S. 298,
332 (1995).
In this case, Jackson’s affidavit is untrustworthy, because the purported
affidavit does not offer any convincing explanation as to why Jackson waited
over five years to come forward and attempt to exonerate petitioner. See Lewis
v. Smith, 100 Fed. Appx. 351, 355 (6th Cir. 2004)(proper for district court to reject
as suspicious a witness’ recanting affidavit made two years after petitioner’s
trial). In particular, “[p]ostconviction statements by codefendants [which attempt
to exculpate a criminal defendant] are inherently suspect because codefendants
may try to assume full responsibility for the crime without any adverse
consequences.” See Allen v. Yukins, 366 F. 3d 396, 405 (6th Cir. 2004); See also
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In re Byrd, 269 F. 3d 561, 574 (6th Cir. 2001)(petitioner did not satisfy the
miscarriage of justice exception necessary to reach the merits of a successive
habeas petition, where the evidence of actual innocence was an affidavit from a
co-defendant which was made six years after the co-defendant had been
convicted and sentenced for his part in the crime and the co-defendant’s
confession was made only after he was no longer subject to further punishment
for his actions for these crimes).
In this case, Jackson’s post-conviction attempt to exculpate petitioner is
suspect, in light of the fact that it was made after Jackson himself was sentenced
and was no longer subject to any further punishment or other adverse
consequences for his actions.
Jackson’s affidavit is also unreliable because it is inconsistent with the
evidence presented at trial, which established petitioner’s active involvement in
the robbery. Allen v. Yukins, 366 F. 3d at 406 (post-conviction affidavit of habeas
petitioner’s co-defendant was legally insufficient to establish that she was
actually innocent of an assault charge as the assertions in the affidavit were
inconsistent with the evidence presented at trial). Petitioner’s own confessions
to Sergeant Whiteside and his admissions to his fellow inmate William Rice
establish that petitioner actively participated in the robbery knowing that Jackson
was armed. In addition, it was unneccesary under Michigan law for petitioner to
have known that Jackson was going to kill the victim in order to sustain his
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conviction as an aider and abettor to the first-degree felony murder. Under
Michigan law, a defendant’s participation in an armed robbery, while either he or
his co-defendants were armed with a loaded firearm, manifests a wanton and
reckless disregard that death or serious bodily injury could occur, to support a
finding that the defendant acted with malice aforethought, so as to sustain a
conviction for felony-murder on an aiding and abetting theory. See Hill v.
Hofbauer, 337 F. 3d 706, 719-20 (6th Cir. 2003)(intent for felony murder “can be
inferred from the aider and abettor’s knowledge that his cohort possesses a
weapon.”); See also People v. Carines, 460 Mich. 750, 759-60; ; 597 N.W. 2d
130 (1999); Harris v. Stovall, 22 F. Supp. 2d 659, 667 (E.D. Mich. 1998); People
v. Hart, 161 Mich. App. 630, 635; 411 N.W. 2d 803 (1987).
Because petitioner has not presented any new reliable evidence that he is
innocent of these crimes, a miscarriage of justice will not occur if the Court
declined to review petitioner’s post-conviction claims on the merits. See Malcum,
276 F. Supp. 2d at 677.
Finally, assuming that petitioner had established cause for his default, he
would be unable to satisfy the prejudice prong of the exception to the procedural
default rule, because his claims would not entitle him to relief. The cause and
prejudice exception is conjunctive, requiring proof of both cause and prejudice.
See Matthews v. Ishee, 486 F. 3d 883, 891 (6th Cir. 2007). For the reasons
stated by the Oakland County Circuit Court in rejecting petitioner’s post24

conviction motion and by the Assistant Michigan Attorney General in her answer
to the amended petition for writ of habeas corpus, petitioner has failed to show
that his post-conviction claims have any merit. Petitioner is not entitled to
habeas relief on his remaining claims.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will
also deny a certificate of appealability to petitioner. In order to obtain a
certificate of appealability, a prisoner must make a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this
denial, the applicant is required to show that reasonable jurists could debate
whether, or agree that, the petition should have been resolved in a different
manner, or that the issues presented were adequate to deserve encouragement
to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a
district court rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims to be debatable or wrong. Id. at 484.
Likewise, when a district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claims, a certificate of
appealability should issue, and an appeal of the district court’s order may be
taken, if the petitioner shows that jurists of reason would find it debatable
whether the petitioner states a valid claim of the denial of a constitutional right,
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and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling. Id. at 484. 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 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. “The district court
must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C.
foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because petitioner has failed to make a substantial
showing of the denial of a federal constitutional right. See Dell v. Straub, 194 F.
Supp. 2d 629, 659 (E.D. Mich. 2002).
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP)
is a lower standard than the standard for certificates of appealability. See Foster
v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002). Whereas a certificate
of appealability may only be granted if petitioner makes a substantial showing of
the denial of a constitutional right , a court may grant IFP status if it finds that an
appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a). “Good faith” requires a showing that the issues raised are not
26

frivolous; it does not require a showing of probable success on the merits.
Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not debate this
Court’s resolution of petitioner’s claims, the issues are not frivolous; therefore,
an appeal could be taken in good faith and petitioner may proceed in forma
pauperis on appeal. Id.
V. ORDER
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of
Habeas Corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be GRANTED leave to
appeal in forma pauperis

Dated: December 17, 2013

s/Marianne O. Battani
HONORABLE MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this Opinion and Order
was served upon the Petitioner via ordinary U.S. Mail and Counsel for the
Respondent, electronically.
s/Bernadette M. Thebolt
Case Manager

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