McClellan v. Warren
Filing
21
OPINION AND ORDER granting Petition for Writ of Habeas Corpus Signed by District Judge Bernard A. Friedman. (CMul)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TYRIK McCLELLAN,
Petitioner,
CASE NO. 2:08-CV-10735
HONORABLE BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE
v.
LLOYD RAPELJE,
Respondent.
_______________________________/
OPINION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
Tyrik McClellan, (“Petitioner”), a state prisoner confined at the Saginaw Correctional
Facility, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1
Petitioner challenges his Wayne Circuit Court jury trial conviction for first-degree murder,
MICH. COMP. LAWS 750.316, felon in possession of a firearm, MICH. COMP. LAWS 750.224f,
and possession of a firearm during the commission of a felony. MICH. COMP. LAWS
750.227b. The Court held an evidentiary hearing on Petitioner's claim that his trial counsel
was ineffective for failing to call a number of witnesses at trial. For the reasons stated
below, the Court finds that Petitioner has demonstrated that he is being held in state
custody in violation of his Sixth Amendment right to the effective assistance of counsel.
The Court will therefore grant the writ of habeas corpus and order that Respondent release
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Petitioner has been transferred to the Saginaw Correctional Facility. The proper
respondent in a habeas case is the warden of the facility where the petitioner is
incarcerated. See Edwards Johns, 450 F. Supp. 2d 755, 757 (E.D. Mich. 2006); See
also Rule 2(a), 28 U.S.C. § 2254. Therefore, the Court substitutes Warden Lloyd
Rapelje in the caption.
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Petitioner from custody within ninety (90) days.
I. Background
Petitioner’s convictions arise from the shooting death of Iva Nathan Auld outside a
downtown Detroit bar in the early morning hours of December 20, 2001. Many of the
essential facts were not in dispute at Petitioner’s trial. There was an altercation inside the
bar between two groups of men. Both groups were asked to leave the bar, and the
altercation continued outside. At some point Auld rushed towards Petitioner, and Petitioner
shot him to death. Petitioner admitted to shooting Auld but claimed that he did so in selfdefense.
The evidence presented at trial consisted of the testimony of several men from
Auld’s group, two employees of the bar, and the medical examiner. No defense witnesses
were called.
Six of Auld’s companions testified at trial to relatively consistent accounts of the
confrontation. The two groups of men got into an argument in the bar at around closing
time, and so they were escorted out of the bar separately. Auld’s group left first, and
Petitioner’s group left a few minutes later. Outside the bar, one of the men from Auld's
group, Fred Hill, retrieved a metal rod from a car and confronted Petitioner’s group as they
were leaving the bar. Petitioner then drew a pistol and held it at his side. Another man
from Petitioner’s group announced “first person who throws a punch, start busting
(shooting),” and then he knocked Hill out with a single punch. As the two groups started
to tussle, Petitioner shot Auld four times.
Joseph Richardson testified that after Hill was knocked-out, Auld “tussled” with
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Petitioner for about 20-to-30 second and then fell backwards. Richardson did not see Auld
make any threatening gestures towards Petitioner other than the tussling, and he heard the
gunshots before Auld fell to the ground. Richardson testified that Petitioner was against
a wall when he fired, but that he could have retreated down the adjacent alley.
James Puriefoy testified that he made it as far as the car with Hill and Mandel Mays
when he noticed that the other members of the group had not made it to their cars.
Puriefoy saw Hill get out of the car and head back to the bar, and Puriefoy and Mays
followed him. Puriefoy testified that Hill squared off with someone from Petitioner’s group,
and Hill was knocked to the ground. Puriefoy saw that Petitioner was holding a handgun.
Puriefoy then saw Petitioner back-peddle towards the parking lot and heard shots. Puriefoy
did not see anyone else with a weapon beside Petitioner. He did not see Auld do anything
threatening before the shots were fired, and he testified that Auld was not moving towards
Petitioner when he was shot.
Kevin Thompson testified that he heard Puriefoy yell “he’s got a gun.” Thompson
saw Hill fall down, and then he heard shots being fired. He did not see anyone with a
weapon.
Leonard Strickland testified that he left the bar with Auld and Hill. A person from
Petitioner’s group punched Hill and knocked him to the ground. Strickland began tussling
with someone from Petitioner’s group. He heard someone say “he’s got a gun, he’s got a
gun, let’s go,” and then he heard gunfire. Strickland never saw anyone with a weapon.
Mandel Mays testified that he drove Hill and Puriefoy to the bar. He placed a
security club for locking the steering wheel in the back seat of his car. After they reached
May’s car, Hill will went into the back seat and then ran out of the car towards the bar.
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Mays followed him. The groups of men converged and someone knocked out Hill. He
heard the individual who punched Hill say “if anybody move, blast all of them,” and two
seconds later he heard shots. He also heard someone from Petitioner’s group say that
Auld’s group had guns.
Fred Hill admitted that he retrieved the club from Mays’s car and took it back to the
bar. He testified that he had a verbal confrontation with Petitioner’s group, but threw the
club down just before he was knocked out. Hill did not remember anything after he was
punched.
Two employees of the bar also testified regarding their observations. Dwight
Stephenson testified that he was a security guard and did not know any of the men
involved. He testified about the argument occurring inside the bar, and that the two groups
of men were escorted out separately. It looked to Stephenson like it was Auld’s group that
came back towards the bar and started arguing again with Petitioner’s group. Stephenson
saw an individual from Petitioner’s group emerge from the bar, take off his coat, tighten his
cap, and announce at least three times, “first one that swings, start busting.” He then
punched Hill once, knocking him out.
Stephenson then saw Auld “rush” Petitioner’s group, but he did not make contact.
Petitioner had his gun drawn, but before Auld could grab his arm, Petitioner fired. Stephen
testified that Auld “was falling. . . it looked like as he was trying to get away, he slipped, and
it looked like he was falling before he even got shot.” Trial Tr. II, at 136. Stephenson
testified that the shots were fired after the victim was already on the ground, and he saw
the sparks on the concrete. Stephenson could see Auld’s hands, and because Auld was
only wearing a tee-shirt, he could see that Auld did not possess any kind of weapon.
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Although Petitioner was backed up to the wall before he shot Auld, Stephenson testified
that he could have escaped: “the person that did the shooting wasn’t going anywhere. He
meant to shoot him.” Trial Tr. II, at 153.
Stephenson also testified that he patted-down every patron of the bar, and that no
one had a gun inside the building. Accordingly, Stephenson reasoned that Petitioner must
have obtained the gun after he left the bar.
Niko Simmons testified that he also worked at the bar. He testified that he saw Hill
retrieve the metal rod from a car, put it in his trousers, and approach the bar. While Hill
began arguing in front of the bar, two more men from Petitioner’s group came out of the
bar. One of the men knocked Hill out. Simmons did not see anyone take the metal rod
from Hill after he was knocked out. Simmons then saw Petitioner step back and rack a
round into the chamber of his gun. Auld tried to grab the gun or swing at Petitioner.
Petitioner was standing at the end of a wall, almost in an alley, when Auld was punching
at him and trying to get the gun. Petitioner stepped back a few feet, creating a little
separation, and then he shot Auld.
The only other testimony came from the medical examiner. Dr. Boguslaw Pietak
testified that Auld had four gunshot wounds. The lethal shot entered Auld’s upper left rear
shoulder and exited his front right upper chest. The track of this wound was from back to
front and from left to right. Pietak testified that the victim was not facing the shooter when
this wound occurred. The remaining wounds were to Auld’s legs and entered the victim’s
body at differing angles. Dr. Pietak could not determine the order that the wounds were
inflicted, and he could not determine the position of the body when the victim was shot. He
did testify, however, that the victim’s body must have been in motion during the shooting.
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No one from Petitioner’s group was called to testify, and Petitioner did not testify in
his own defense.
Based on this evidence, Petitioner was convicted of first-degree murder and two
firearm offenses. Following sentencing, Petitioner pursued an appeal as of right in the
Michigan Court of Appeals. His appellate brief raised three claims:
I. The evidence was insufficient to establish the elements of premeditation
and deliberation for first-degree murder.
II. The prosecutor committed misconduct by his remarks in opening
statement and closing argument.
III. The jury instructions regarding the order of deliberations was erroneous.
The Michigan Court of Appeals affirmed Petitioner’s convictions in an unpublished
opinion. People v. McClellan, 2004 Mich. App. LEXIS 1324 (Mich. Ct. App. May 25, 2004).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court that
raised the same issues, but the application was denied by form order. People v. McClellan,
471 Mich. 950; 690 N.W.2d 112 (2004).
Petitioner returned to the trial court and filed a motion for relief from judgment. The
motion raised three claims:
I. Petitioner was denied the effective assistance of counsel.
II. There was cumulative error that rendered Petitioner’s trial unfair.
III. Trial counsel was ineffective for offering a self-defense argument without
presenting any witnesses to support it.
Petitioner also filed a motion for an evidentiary hearing to support his claims of
ineffective assistance of counsel. The trial court denied the motion by an opinion dated
July 19, 2006. The parties now agree that the opinion based the denial of relief based on
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Petitioner’s failure to demonstrate cause and prejudice under Michigan Court Rule
6.508(D)(3).
Petitioner then retained his present counsel and appealed the decision of the trial
court to the Michigan Court of Appeals. The application requested, as an alternative
request to relief, that the case be remanded to the trial court for an evidentiary hearing.
The application and request for a hearing were supported by the affidavits of three
members of Petitioner's group who witnessed the fight and shooting, and with Petitioner's
own affidavit.
Petitioner’s application for leave to appeal was denied “for lack of merit in the
grounds presented.” People v. McClellan, 2007 Mich. App. LEXIS 2973 (Mich. Ct. App.
Aug. 30, 2007). Petitioner’s subsequent application for leave to appeal filed in the Michigan
Supreme Court was denied for failure “to meet the burden of establishing entitlement to
relief under MICH. CT. R. 6.508(D).” People v. McClellan, 480 Mich. 1006; 742 N.W.2d 367
(2007).
Petitioner then filed the instant petition for writ of habeas corpus. The Court granted
Petitioner's motion for an evidentiary hearing on his claim that his trial counsel was
ineffective for failing to call eyewitnesses from Petitioner's group at trial. A hearing was
held on April 6, 2011. Petitioner presented eight witnesses at the hearing. Kyle McClellan,
Calvin Guinn, Ramu McClellan, and Dialo McClellan, testified about their account of the
shooting. Cecily McClellan, Petitioner's aunt, testified about her contacts with Petitioner's
trial and appellate attorneys. Jeffery Edison, Petitioner's trial counsel, testified about his
reasons for not calling any defense witnesses. Jonathan Simon, Petitioner's appellate
counsel, testified about his conduct during Petitioner's appeal of right. Finally, Petitioner
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testified about the shooting and his interactions with his counsel. Respondent did not call
any witnesses.
Kyle McClellan testified at the hearing that he and Petitioner met-up with his brothers
Diallo and Ramu at the bar. The four men entered the bar together. Kyle saw Petitioner
hide a 9mm handgun in his waistband before entering the bar. Because Petitioner was
underage and armed, Kyle and the other two men obstructed the view of the security guard
so Petitioner could sneak into the bar without being searched.
Kyle testified that during the altercation outside the bar, he heard the man who was
punched (Fred Hill) threaten to shoot someone in Petitioner's group. After Hill fell to the
ground, he dropped a chrome object that Kyle thought was a gun. He then saw the
deceased (Auld) pick up that object and rush towards Petitioner and Calvin Guinn. Kyle
then heard shots. Kyle never talked to either of Petitioner's attorneys and was told by
Petitioner that he would not be needed at trial.
Calvin Guinn corroborated Kyle's testimony about how Petitioner snuck into the bar
with the handgun. Guinn also testified that he was standing next to Petitioner during the
fight outside the bar. He saw Auld grab an object from Hill's waistband after Hill was on the
ground and then rush towards Petitioner. He described Auld as being over six feet tall and
weighing around 280 pounds, while Petitioner was five-eight and 130 pounds. Guinn saw
Petitioner, who was against a wall, pull out his pistol and start shooting at Auld. Auld fell
to the ground and dropped the object, which Guinn said turned out to be a pistol. Guinn
admitted that he gave a statement to police in which he denied seeing the shooting, but he
explained that he was scared and did not want to implicate Petitioner. Guinn never spoke
to Petitioner's attorney and heard that he was not needed at trial.
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Ramu McClellan also testified about sneaking Petitioner into the bar with a handgun.
Ramu testified that during the altercation outside the bar, Hill put his hand in his pocket and
said "you don't want to mess with us." When Hill was knocked-out, a shiny object fell to his
side that Ramu assumed was a weapon. Ramu saw Auld pick up the object and run
towards them. Ramu heard shots, but he denied seeing the shooting. Ramu was never
contacted by the police or by any lawyers.
Diallo McClellan testified that Petitioner entered the bar without being searched.
Diallo was not present outside the bar and did not witness the altercation or shooting.
Cecily McClellan testified that she is Petitioner's aunt. She attended the trial and
was told by defense counsel that he would not call any defense witnesses because the
prosecutor had the burden of proof. After trial, she wrote a letter to Petitioner's appellate
counsel which expressed a concern about the failure to call defense witnesses, but she
never received a response.
Jeffrey Edison testified that he was retained to represent Petitioner at trial. After
speaking with Petitioner he decided to present a claim of self-defense.
During his
conversations, Petitioner told him about people who he was with at the bar. Edison also
knew from reviewing discovery materials that there were people present from Petitioner's
group who witnessed the altercation outside the bar. Edison had no recollection of
contacting potential defense witnesses, but he recalled talking to some family members.
Edison testified that he did not talk to any of the four eyewitnesses who testified at the
hearing. He did not send any letters to any potential witnesses, and he did not use a
private investigator to contact any either. Edison made the decision not to call any defense
witnesses at the close of the prosecutor's case because he believed the prosecutor
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presented insufficient evidence to rebut Petitioner's self-defense claim.
Edison described his thinking as follows:
I don't think the prosecutor had come close to at all on murder in the
first degree. The whole focus of our defense was whether the prosecutor
could support what they believed to be in the charges, Mr. McClellan's state
of mind. All the evidence from all the witnesses if I recall correctly
reasonably supported at least or at most a state of mind that provoked a
response to the excitement and emotions of the moment. Hearing. Tr. at
152-153.
He further testified that "strategically as defense trial attorney . . . one of my
objectives would be to try to elicit as much evidence as I can from the witnesses that are
presented by the prosecution to support any defense that I intend to raise so that the when
the prosecution rests the defense is in the best position to move forward without calling any
witnesses, if possible." Id. at 149. Edison testified that there "[t]here's always risks" in
calling defense witnesses. Id. at 149.
Jonathan Simon testified that he represented Petitioner during his direct appeal.
Simon did not have any recollection of speaking with Petitioner or Edison about Petitioner's
case. He had no recollection of reading Cecily McClellan's letter or a letter from Petitioner.
Simon also did not recall the process of developing the issues for Petitioner's appeal.
Petitioner testified at the hearing that when he met Edison in the county jail he
admitted shooting Auld but said he did so because Auld had picked up what he thought
was a gun and tucked it under his shirt before he rushed at Petitioner. Petitioner testified
to sneaking into the bar with the handgun. He told Edison the identities of the people whom
he was with at the bar.
Petitioner testified that Edison told him that he did not need any witnesses and to
let the prosecutor prove his case. Petitioner told his family that Edison did need them as
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witnesses. Edison also advised Petitioner not to have his family come to court for the trial.
Petitioner testified that he wrote a letter to Simon complaining that Edison had not
called any defense witnesses, and the letter gave Simon the names of Guinn, Diallo, Kyle,
and Ramu. Simon never responded to the letter.
II. Analysis
A. Standard of Review
28 U.S.C. § 2254(d) does not restrict review of Petitioner's ineffective assistance of
trial counsel claim because the state courts did not adjudicate the claim on the merits. In
both post-hearing briefs, the parties acknowledge that the trial court found Petitioner's claim
to be procedurally defaulted under Michigan Court Rule 6.508(D)(3) because Petitioner
failed to demonstrate "good cause" for his failure to raise the claim during his appeal of
right. The parties are correct. The trial court's decision rests on an independent and
adequate state procedural ground. Malone v. Sherman, 2011 U.S. App. LEXIS 3757, *3-4
(6th Cir. 2011). The parties also agree that the Michigan Court of Appeals' subsequent
summary denial of Petitioner's application for leave to appeal "for lack of merit in the
grounds presented" does not constitute an adjudication on the merits under Harrington v.
Richter, 131 S.Ct. 770 (2011). Lastly, the parties agree that review of Petitioner's claim is
barred absent a showing of cause and prejudice. See Petitioner's Supplemental Brief, at
32-34; Respondent's Supplemental Brief, at 8-9. If Petitioner demonstrates cause and
prejudice, the Court then reviews his ineffective assistance of counsel claim de novo.
Middlebrooks v. Bell, 619 F.3d 526, 534 (6th Cir. 2010) (When a state court does not
address the merits of a claim, federal review is de novo.)
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B. Cause and Prejudice - Ineffective Assistance of Appellate Counsel
The first question, then, is whether Petitioner has demonstrated cause and prejudice
to excuse his procedural default. In order to establish "cause," a petitioner must show that
"some objective factor external to the defense impeded counsel's efforts to comply with the
State's procedural rule." Haliym v. Mitchell, 492 F.3d 680, 690-91 (6th Cir. 2007) (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986)). "Prejudice," meanwhile, "requires a showing
that errors at trial 'worked to [the petitioner's] actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions.'" Haliym, 492 F.3d at 690-91 (quoting
United States v. Frady, 456 U.S. 152, 168(1982)).
Petitioner asserts that his appellate counsel's failure to raise his ineffective
assistance of trial counsel claim during his appeal of right constituted ineffective assistance
of appellate counsel, establishing cause to excuse his default. "Attorney error may
constitute cause if it rises to the level of constitutionally ineffective assistance of counsel."
Willis v. Smith, 351 F.3d 741, 745 (6th Cir. 2003). Petitioner must demonstrate that his
appellate counsel's performance fell below an objective standard of reasonableness and
that, but for counsel's deficient performance, there is a reasonable probability that the
outcome of his appeal would have been different. Goff v. Bagley, 601 F.3d 445, 462-63 (6th
Cir. 2010).
An attorney representing a criminal defendant pursuing an appeal of right in
Michigan has an obligation to investigate the possibility of raising claims that are not
supported by the existing trial record and require further factual development in the trial
court. See People v. Ginther, 390 Mich. 436, 443-444; 212 N.W.2d 922 (1973), and Smith
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v. Hofbauer, 312 F.3d 809, 821, n.2 (6th Cir. 2002). When a defendant wishes to raise a
claim of ineffective assistance of counsel based on facts not contained in the existing
record, he must request a so-called Ginther hearing. A request for such an evidentiary
hearing must be accompanied by affidavits or other offer of proof as to the evidence the
defendant wishes to present at the hearing. MICH. CT. RULE 7.211(C)(1).
In the present case, Petitioner's appellate counsel performed deficiently by failing
to investigate Petitioner's claim of ineffective assistance of trial counsel and by failing to
request a Ginther hearing to support it.
Simon had no independent recollection of
Petitioner's appeal. But both Petitioner and his aunt testified that they sent letters to Simon
informing him of the basis for investigating a possible ineffective assistance of trial counsel
claim. The Court finds their testimony in this regard to be credible and supported by copies
of the letters they sent to Simon. The letters contained enough detail to inform Simon of
the basis for at least investigating the possibility of raising a claim that Petitioner's trial
counsel was ineffective for failing to call the defense witnesses mentioned. Yet the
evidence shows that Simon completely ignored this lead - all of the defense witnesses
testified that they were never contacted by Simon.
The Court finds that an adequate investigation into Petitioner's claim would likely
have led to the discovery of the defense witnesses and to the production of affidavits in
support of a request for an evidentiary hearing as required by Ginther and Rule
7.211(C)(1). The fact that the defense witnesses cooperated with Petitioner's present
counsel and testified at the hearing in this Court shows that they likely would have done the
same thing had they been contacted by Simon during the appeal of right.
The Court recognizes that strategic and tactical choices regarding which issues to
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pursue on appeal are "properly left to the sound professional judgment of counsel." United
States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). And the Supreme Court has held that a
petitioner does not have a constitutional right to have appellate counsel raise every
non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). But Simon
never made a strategic decision not to raise the instant ineffective assistance of trial
counsel claim - he failed to investigate the possibility of raising the claim altogether. "A
purportedly strategic decision is not objectively reasonable 'when the attorney has failed
to investigate his options and make a reasonable choice between them.'" Parrish Towns
v. Smith, 395 F.3d 251, 258 (6th Cir.2005) quoting Horton v. Zant, 941 F.2d 1449, 1462
(11th Cir. 1991). "[W]here counsel fails to investigate and interview promising witnesses,
and therefore 'ha[s] no reason to believe they would not be valuable in securing
[defendant's] release', counsel's inaction constitutes negligence, not trial strategy."
Workman v. Tate, 957 F.2d 1339, 1345 (6th Cir. 1992)(internal citations omitted).
Accordingly, by failing to follow-up on leads given to him by Petitioner and his aunt, and
limiting his review of the appeal only to issues apparent in the record, Simon performed
deficiently.
Had Simon conducted an adequate investigation, there is a reasonable probability
that the outcome of Petitioner's appeal would have been different. For the reasons stated
below, not only did Simon miss a substantial claim, he missed one that has merit. There
is a reasonable probability that had the state court been presented with the evidence that
was presented to this Court, Petitioner's conviction for first-degree murder would have been
reversed.
Petitioner has therefore demonstrated that he was denied the effective
assistance of appellate counsel and has shown cause to excuse his default.
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Petitioner has also demonstrated the prejudice prong of the cause-and-prejudice
test. "Prejudice, for purposes of procedural default analysis, requires a showing that the
default of the claim not merely created a possibility of prejudice to the defendant, but that
it worked to his actual and substantial disadvantage, infecting his entire trial with errors of
constitutional dimensions." Jamison v. Collins, 291 F.3d 380, 388 (6th Cir. 2002) (citing
Frady, 456 U.S. at 170-71. For the reasons stated below, the default of Petitioner’s
ineffective assistance of trial counsel claim worked to Petitioner’s actual and substantial
disadvantage because had trial counsel presented the uncalled defense witnesses at trial,
there is a reasonably probability he would have prevailed on his claim of self-defense.
C. Ineffective Assistance of Trial Counsel
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the defendant
must demonstrate that, considering all of the circumstances, counsel’s performance was
so deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the
defendant must overcome a strong presumption that counsel’s behavior lies within the wide
range of reasonable professional assistance. Id. In other words, the defendant must
overcome the presumption that, under the circumstances, the challenged action might be
sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that
such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant
must show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
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It is well-established that "[c]ounsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular investigations unnecessary."
Strickland, 466 U.S. at 691. The duty to investigate derives from counsel's basic function,
which is "'to make the adversarial testing process work in the particular case.'" Kimmelman
v. Morrison, 477 U.S. 365, 384(1986) (quoting Strickland, 466 U.S. at 690). "In any
ineffectiveness case, a particular decision to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel's judgments." Strickland, 466 U.S. at 691. "The relevant question is not whether
counsel's choices were strategic, but whether they were reasonable." Roe v. Flores-Ortega,
528 U.S. 470, 481 (2000); Clinkscale v. Carter, 375 F.3d 430, 443 (6th Cir. 2004). A
purportedly strategic decision is not objectively reasonable "when the attorney has failed
to investigate his options and make a reasonable choice between them." Horton v. Zant,
941 F.2d 1449, 1462 (11th Cir.1991) (cited in Combs v. Coyle, 205 F.3d 269, 288 (6th Cir.
2000)). To establish prejudice from counsel's failure to investigate a potential witness, a
petitioner must show that the witness would have testified and that the witness's testimony
would probably have changed the outcome of the trial. Hadley v. Groose, 97 F.3d 1131,
1135 (8th Cir. 1996).
Petitioner's counsel performed deficiently by failing to investigate potential defense
witnesses.
Based on his conversations with Petitioner and his review of discovery
materials, Petitioner's trial counsel made the strategic decision to defend the case by
claiming that Petitioner acted in self-defense. Under Michigan law, one acts lawfully in
self-defense if he honestly and reasonably believes that he is in danger of serious bodily
harm or death, as judged by the circumstances as they appeared to the defendant at the
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time of the act. Blanton v. Elo, 186 F. 3d 712, 713, n. 1 (6th Cir. 1999)(citing People v.
Heflin, 434 Mich. 482, 456 N.W.2d 10 (1990)).
Petitioner's trial counsel testified that his strategy was to support the self-defense
theory through the testimony of the prosecutor's witnesses. And, in fact, there was
testimony developed during the prosecutor's case that did support the defense. Joseph
Richardson testified that Petitioner had his back against a wall. James Purifoy testified that
Petitioner back-peddled before shooting Auld. Mandel Mays testified that he heard
someone from Petitioner's group yell that the victim's group had a gun. Fred Hill admitted
that he had a steel rod when the fight began.
Dwight Stephenson testified that Auld's
group rushed Petitioner's group. And Auld held a significant advantage in terms of height
and weight over Petitioner. So this is not a case where Petitioner's counsel attempted to
present a defense without any evidentiary support - there was some support for it based
on the testimony of the prosecution witnesses.
But there can be little debate that presenting evidence that the victim was armed
with a weapon is relevant and important to a claim self-defense because it can demonstrate
that the defendant honestly and reasonably believed he was in danger. And none of the
prosecution witnesses who testified at trial said that they saw Auld with a weapon or pick
up Hill's weapon when he rushed Petitioner. By contrast, the witnesses from Petitioner's
group who testified at the hearing before this Court testified that Auld was armed. Kyle
McClellan testified that Auld picked up what appeared to be a handgun dropped by Hill
before Auld rushed at Petitioner. Calvin Guinn testified that after Auld was shot, he saw
that indeed it was a handgun he had been armed with. Ramu McClellan likewise testified
that Auld picked up the shiny object dropped by Hill. On the face of things, these witnesses
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certainly would have provided a description of the fatal encounter between Petitioner and
Auld that presented a far more compelling case of self-defense than the description given
by the prosecutor's witnesses.
Defense counsel testified regarding his general reasons for not calling defense
witnesses.
He talked about the desirability of focusing the jury's attention on the
prosecutor's burden of proof, and the fact that there is always a risk that the witnesses will
not perform well. Additionally, Respondent points to inconsistencies between the various
uncalled defense witnesses's versions of events, and the differences between their
testimony and the police statements - all of which could conceivably support a decision not
to call these particular witnesses. There was also more detail in their hearing testimony
than in their affidavits. All these factor could have supported defense counsel's decision
not to call the defense witnesses.
The problem for Respondent is that none of these factors were considered. Defense
counsel had no idea what these witnesses had to offer, and whether the value of their
proposed testimony was outweighed by any disadvantages. The Court finds credible the
testimony of the uncalled defense witnessed that they never spoke to defense counsel.
The Court also finds credible Petitioner's testimony that his trial counsel told him that his
family members would not be needed at trial. That is, the record demonstrates that
defense counsel made a decision that he could prevail on his self-defense theory with only
the prosecutor's witnesses without ever conducting any investigation.
Under Strickland, "a particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy measure of deference to
counsel's judgments." 466 U.S. at 691. While decisions as to what evidence to present
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and whether to call certain witnesses are presumed to be a matter of trial strategy, see
Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002), defense counsel must conduct a
reasonable investigation into the facts of a defendant's case or make a reasonable
determination that such investigation is unnecessary. See Wiggins v. Smith, 539 U.S. 510,
522-23 (2003).
While a strategic decision to not present evidence is virtually
unchallengeable if made after a thorough investigation, if made after less than complete
investigation the decision is "reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation." Strickland, 466 U.S. at
690-91.
Inattention or negligence, as opposed to reasoned strategic judgment, is
inexcusable. See Wiggins, 539 U.S. at 526.
Here, Petitioner's trial counsel did not make an objectively reasonable decision not
to call the defense witnesses because he never obtained sufficient information to make a
reasonable choice between the alternatives. For example, defense counsel could not have
known that some of Petitioner's witnesses would have testified that Auld had a gun when
he ran at Petitioner. Perhaps even with this knowledge counsel could have made a
reasoned judgement to abstain from calling the witnesses because he thought their
testimony was not credible or for some other strategic reason, but here there was no
informed decision at all. Petitioner's counsel was simply not in a position to determine
whether the general disadvantages of calling defense witnesses was outweighed by the
strength of potential testimony unknown but readily available to him.
This is certainly not a case where the defense theory was so strongly supported by
the prosecution witnesses that counsel could make a reasonable determination that the
investigation of possible defense witnesses was completely unnecessary. None of the
19
prosecution witnesses testified that Auld was armed.
And none of the prosecution
witnesses testified that Petitioner was armed before he entered the bar to rebut the
prosecutor's argument that Petitioner retrieved his weapon after he left the bar.
Accordingly, the Court finds that Petitioner's trial counsel performed deficiently by
failing to investigate the possibility of calling the men from Petitioner's group as defense
witnesses at trial.
To demonstrate that he was prejudiced by his counsel's deficient failure to
investigate, Petitioner must show that there is a reasonable probability that the result of his
trial would have been more favorable had counsel called these defense witnesses. The
Strickland court defined "reasonable probability" as "a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694.
Respondent asserts that Petitioner was not prejudiced because the defense
witnesses lacked credibility and because Petitioner's self-defense theory is contradicted by
the victim's injuries as reported by the medical examiner.
But as the Sixth Circuit
explained in Matthews v. Abramajtys, 319 F.3d 780, 790 (6th Cir. 2003) (emphasis added):
The actual resolution of the conflicting evidence, the credibility of witnesses,
and the plausibility of competing explanations is exactly the task to be
performed by a rational jury, considering a case presented by competent
counsel on both sides.
Even though the jury could have discredited the defense witnesses based on factors such
as bias, inconsistencies in their respective stories, and the strength of eyewitness accounts
by the "neutral" bar employees, there remains a reasonable probability that the jury would
have credited the testimony enough to produce a reasonable doubt as to Petitioner's guilt.
Despite some inconsistencies, the defense witnesses largely agreed on the same
20
scenario: Auld picked up an object that appeared to be a weapon that Hill had on him or
dropped when he fell to the ground and then rushed aggressively towards Petitioner. This
new testimony is not starkly inconsistent with the testimony of the prosecutor's witnesses,
which the jury must have accepted as true. Some of the prosecution's eyewitnesses also
saw Auld charge towards Petitioner, and several of them saw that Hill had a weapon before
he was knocked-out. The key difference between the two versions is that the defense
witnesses testified that they saw Auld retrieve Hill's weapon. Because the testimony of the
defense witnesses is not wildly different from the prosecution witnesses's, there is at least
a reasonable probability that the jury would have likewise credited it as true, or at least
credited it enough to allow a finding of reasonable doubt. All it would have taken is for "one
juror [to] have struck a different balance" between the competing stories for Petitioner to
have prevailed on his self-defense claim. Wiggins, 529 U.S. at 537.
Respondent also asserts that Petitioner cannot show that he was prejudiced by his
counsel's failure to call the defense witnesses because the defense had no adequate
response to the incriminating location of the victim's wounds. There is no question that the
location of the wounds presents a problem for Petitioner. Auld had four bullet wounds: (1)
entering the front upper left leg and exiting an inch below the entrance; (2) entering the
right side of the upper thigh and exiting the inner right leg; (3) entering the back of the right
lower leg and exiting front of the lower right leg; and (4) entering the back of the upper left
shoulder and exiting the front of the chest. Respondent contends that these wounds do not
correspond to any credible claim of self-defense.
To demonstrate prejudice, however, Petitioner is not required to show that he would
surely have been acquitted. He need only show a reasonable probability that the result of
21
the trial would have been more favorable. The shooting here occurred in the midst of a
melee. There was testimony presented at the hearing that Auld picked an object off of the
ground before he charged at Petitioner, and there was testimony presented at trial that he
slipped or stumbled as he ran towards Petitioner. While only one of the four gunshot
wounds entered the front of Auld's body, the location of the other wounds do not
conclusively contradict Petitioner claim of self-defense. On cross-examination, the medical
examiner conceded that he did not know the position of Auld's body when he was shot. He
acknowledged that it was possible Auld was "spinning around and falling back" or
"stumbling down and to the side," when he was shot. Trial Tr. 8-6-2002, at 74. If the jury
had heard the uncalled defense witnesses and found their account credible, they could
have reasonably concluded that Petitioner's first shot struck Auld in the front of the leg, and
that he kept on firing as Auld stumbled, turned, and fell. Nor was the interval between
shots so great as to preclude a finding of self-defense if the jury believed Auld stumbled
and fell after the first shot. The Court cannot conclude that the location of the victim's
wounds creates less than a reasonable probability that the result of Petitioner's trial would
have been different had the uncalled defense witnesses testified.
Moreover, there is a reasonable probability that the uncalled defense witnesses
would have benefitted the defense in another way. They would have undermined the
prosecutor's argument that Petitioner premeditated the murder because he retrieved the
handgun after he left the bar. The prosecutor based this argument on the fact that the bar's
security guard testified that he searched everyone who entered the bar and that no one
who entered could have been armed. The defense witnesses' testimony about how they
snuck Petitioner into the bar with a handgun is plausible. In fact, it is supported by the
22
undisputed fact that Petitioner - who was underage - was able to enter the bar without the
security guard checking his identification. There is a reasonable probability that the jury
would therefore have believed that Petitioner was also able to sneak into the bar with a
handgun.
It is true that the prosecutor argued in the alternative that Petitioner had enough time
to premeditate the killing while he was holding the gun just prior to the shooting. But again,
Petitioner need not prove beyond all doubt that the jury would not have found
premeditation.
He need only show a reasonable probability.
And because of the
significance the prosecutor placed on the evidence that Petitioner did not have a handgun
in the bar on establishing this element, there is more than just a mere possibility of
prejudice. Accordingly, even setting aside the fact that the defense witnesses would have
supported Petitioner's self-defense claim, there is a reasonable probability that their
testimony would have at least resulted in the more favorable verdict of guilty of seconddegree murder.
None of this is to say that the Court believes that Petitioner acted in self-defense or
that he acted without premeditation. Rather, the evidence presented at the hearing shows
that Petitioner's counsel's deficient failure to investigate sufficiently undermines the Court's
confidence in the outcome of the trial. The case was relatively straight-forward. Two
groups of men were involved in a bar fight and someone was shot and killed. The jury
heard the version of events from the victim's group but never heard the version of events
from the accused's group. That, in itself, is not a problem. But when, as here, it turns out
that the accused's attorney never bothered to investigate what members of his client's
group would say, and it turns-out that their version would have significantly supported a
23
claim of self defense, it follows that the attorney was not acting as "counsel" as
contemplated by the Sixth Amendment and that his failings undermine confidence in the
outcome of the trial. Therefore, Petitioner has demonstrated entitlement to habeas relief
based on his claim of ineffective assistance of trial counsel.
D. Petitioner's Remaining Claims
1. Sufficiency of the Evidence
Petitioner's remaining claims are without merit. Petitioner claims that constitutionally
insufficient evidence was presented at trial to support the elements of premeditation and
deliberation. The Michigan Court of Appeals rejected this claim on the merits during
Petitioner's direct appeal. Therefore, to demonstrate entitlement to habeas relief based on
this claim, Petitioner must overcome the strictures of § 2254(d) and show that the state
court decision was contrary to, or involved an unreasonable application of, clearly
established Supreme Court law.
Under this standard, "state-court decisions must be given the benefit of the doubt.'"
Renico v. Lett, 130 S.Ct. 1855, 1862, 176 L. Ed. 2d 678 (2010)((quoting Lindh v. Murphy,
521 U.S. 320, 333, n. 7 (1997). "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." Richter, 131 S.Ct. 770 (citing Jackson v.
Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)). 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
24
disagreement." Id.
The Due Process Clause "protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he
is charged." In re Winship, 397 U.S. 358, 364 (1970). The standard of review for a
sufficiency of the evidence challenge must focus on whether "after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S.
307, 319 (1979) (emphasis in original). In the habeas context, "[t]he Jackson standard
must be applied 'with explicit reference to the substantive elements of the criminal offense
as defined by state law.'" Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting
Jackson, 443 U.S. at 324 n. 16). "A reviewing court does not re-weigh the evidence or
re-determine the credibility of the witnesses whose demeanor has been observed by the
trial court." Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v.
Lonberger, 459 U.S. 422, 434 (1983)). Accordingly, "[t]he mere existence of sufficient
evidence to convict . . . defeats a petitioner's claim." Matthews, 319 F.3d at 788-89.
Under Michigan law, first-degree premeditated murder requires proof that the
defendant intentionally killed the victim and that the killing was premeditated and deliberate.
See People v. Kelly, 231 Mich. App. 627, 642, 588 N.W.2d 480 (1998); MICH. COMP. LAWS
750.316. Premeditation and deliberation may be established by evidence showing: "(1) the
prior relationship of the parties; (2) the defendant's actions before the killing; (3) the
circumstances of the killing itself; and (4) the defendant's conduct after the homicide."
People v. Schollaert, 194 Mich. App. 158, 170, 486 N.W.2d 312 (1992); see also People
v. Abraham, 234 Mich. App. 640, 656, 599 N.W.2d 736 (1999).
25
The Michigan Court of Appeals held that the prosecution presented sufficient
evidence to support Petitioner's conviction beyond a reasonable doubt.
The court
explained:
Defendant argues that there was insufficient evidence of premeditation
and deliberation to support his first-degree murder conviction. We disagree.
Challenges to the sufficiency of the evidence in criminal trials are reviewed
de novo to determine whether, in a light most favorable to the prosecutor,
any rational trier of fact could have found that the essential elements of the
crime were proven beyond a reasonable doubt. People v. Randolph, 466
Mich. 532, 572; 648 N.W.2d 164 (2002). To establish first-degree
premeditated murder, some time span between the initial homicidal intent
and the ultimate action is necessary to establish premeditation and
deliberation, and the interval should be long enough to afford a reasonable
person time to take a "second look." People v. Gonzalez, 468 Mich. 636,
641; 664 N.W.2d 159 (2003).
Premeditation and deliberation may be established by
evidence of (1) the prior relationship of the parties; (2) the
defendant's actions before the killing; (3) the circumstances of
the killing itself; and (4) the defendant's conduct after the
homicide. Circumstantial evidence and reasonable inferences
drawn therefrom may be sufficient to prove the elements of a
crime. [People v. Abraham, 234 Mich. App. 640, 656; 599
N.W.2d 736 (1999) (citations omitted).]
Absent exceptional circumstances, issues of witness credibility are for
the jury. People v. Lemmon, 456 Mich. 625, 642; 576 N.W.2d 129 (1998).
"This Court will not interfere with the role of the trier of fact of determining the
weight of the evidence or the credibility of witnesses." People v. Hill, 257
Mich. App. 126, 141; 667 N.W.2d 78 (2003).
The relationship between the victim and defendant consisted of an
argument between their two groups of friends inside a club that evening.
There was circumstantial evidence to support an inference that, before the
killing, defendant retrieved the gun and a jacket from a nearby vehicle. The
medical examiner testified that the victim was shot four times
through-and-through, and his body was in motion at some time between the
first and last gunshots. After the homicide, defendant fled. Pursuant to
Abraham, supra, this is sufficient evidence of premeditation and deliberation.
The act of retrieving the gun was sufficient time to afford a reasonable person
time to take a "second look." Gonzalez, supra. Viewed in a light most
favorable to the prosecution, the evidence presented at trial was sufficient to
26
permit a rational jury to conclude that defendant committed first-degree
murder. Randolph, supra.
McClellan, supra, 2004 Mich. App. LEXIS 1324, *1-3..
This decision did not result from an unreasonable application of the established
Supreme Court standard.
Viewed most favorably to the prosecution, the evidence
presented at trial allowed a reasonable fact-finder to conclude beyond a reasonable doubt
that Petitioner acted with premeditation and deliberation either when he returned to his
vehicle to obtain the handgun or in the moments that he held the gun at his side once the
altercation with Auld's group began. At a minimum, the state court's conclusion that the
evidence was sufficient was not "so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement." Richter. Relief is therefore barred under § 2254(d).
2. Prosecutorial Misconduct
Petitioner next claims that the prosecutor committed misconduct during opening
statements and closing arguments. Respondent asserts that the allegations of misconduct
are procedurally defaulted because Petitioner did not object to many of them at trial, and
because he did not raise the claim on federal constitutional grounds in the state courts.
Defaulted or not, however, the claims do not provide a basis for granting habeas relief
because they are without merit. See Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997)
(noting that procedural default issue should ordinarily be resolved first, but denying habeas
relief on a different basis where resolution of the default issue entailed unnecessary
complications).
Petitioner first claims that the prosecutor's remarks during the opening statements
27
violated his Fifth Amendment right against self-incrimination. The prosecutor stated during
opening that none of the members of Petitioner's group who were at the bar would be
testifying because they all fled from the scene after the shooting, whereas the members of
the victim's ground stayed.
A prosecutor may not shift the burden of proof to a defendant. See, e.g., United
States v. Clark, 982 F.2d 965, 968-69 (6th Cir.1993). A prosecutor may, however, highlight
inadequacies in the defense, Bates v. Bell, 402 F.3d 635, 646 (6th Cir. 2005), and point out
the lack of evidence supporting the defense theory. United States v. Forrest, 402 F.3d 678,
686 (6th Cir. 2005).
The prosecutor's tactic of calling into question the validity of
Petitioner's defense by highlighting the fact that it lacked evidentiary support from the
testimony of witnesses present at the scene was not improper. Of course, that this
argument could be made by the prosecutor highlights again Petitioner's counsel failure to
call any members of Petitioner's group as witnesses.
Petitioner next claims that the prosecutor argued facts not in evidence. Specifically,
the prosecutor stated during his opening that one witness from Petitioner's group who
stayed at the scene had since disappeared and could not be located by police. Although
it is possible for a prosecutor's comments during opening statements to be so prejudicial
as to support a finding of constitutional error, there is no error if the prosecutor gives an
"objective summary of evidence which the prosecutor reasonably expects to produce,"
even if events at trial prevent the prosecutor from actually presenting that evidence. Frazier
v. Cupp, 394 U.S. 731, 736 (1969). Although the prosecutor never presented evidence at
trial that the witness in question disappeared after the crime, there is no indication that the
remark was made in bad faith. Accordingly, the comment did not deprive Petitioner of a
28
fair trial. See, e.g., Thomas v. Garraghty, 18 F. App'x 301, 311 (6th Cir. 2001) (prosecutor
did not engage in deliberate misconduct by calling witness who he knew would claim a Fifth
Amendment privilege where he believed that the witness did not have a valid privilege and
he believed that he could put witness on stand to preserve his own credibility).
Petitioner also claims that the prosecutor vouched for the credibility of the
eyewitnesses who testified at trial. A prosecutor may not express a personal opinion
concerning the credibility of trial witnesses because such personal assurances of guilt or
vouching for the veracity of witnesses by the prosecutor "exceeds the legitimate advocates'
role by improperly inviting the jurors to convict the defendant on a basis other than a neutral
independent assessment of the record proof." Caldwell v. Russell, 181 F.3d 731, 737 (6th
Cir.1999). However, a prosecutor is free to argue that the jury should arrive at a particular
conclusion based upon the record evidence. Id. It is worth noting that the Sixth Circuit has
never granted habeas relief for improper vouching. Byrd v. Collins, 209 F.3d at 537 and n.
43. The comments here were not flagrant. They appeared to be a response to defense
counsel's attacks on the witnesses's credibility and based on the evidence presented at
trial.
Petitioner also asserts that the prosecutor disparaged him by referring to him as a
troublemaker, jerk, and idiot. The prosecutor's comments did not rise to the level of a
constitutional violation. See Hutchison v. Bell, 303 F. 3d 720, 750-51 (6th Cir. 2002)
(denying habeas claim of prosecutorial misconduct based on references to defendant as
having "evil ways" and being "an evil force").
After the complained-of remark, the
prosecutor explained that he was referring to "jerks and idiots" encountered in daily life.
He also asked the jury to focus on the evidence presented in reaching their verdict. The
29
remarks, though undesirable, did not render Petitioner's trial unfair.
Finally, Petitioner asserts that the prosecutor appealed to the civic duty of the jury
by asserting that a guilty verdict would bring a sense of justice to the victim's death.
"'Unless 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 486, 539 (6th Cir.2000) (quoting United States v. Solivan, 937 F.2d 1146, 1151 (6th
Cir.1991)). A prosecutor does not overstep by appealing to the jurors' sense of justice.
Bedford v. Collins, 567 F.3d 225, 234 (6th Cir. 2009). Petitioner has failed to show that the
prosecutor made the statement with the intention of inciting the passions or prejudices of
the jurors. The prosecutor's language was not inflammatory nor does it appear intended
to incite passions or prejudices. Further, the trial court instructed the jury to base their
decision only on the evidence and the law, not on their sympathies or prejudices. See
Cameron v. Pitcher, 2001 U.S. Dist. LEXIS 787, 2001 WL 85893, *10 (E.D. Mich. Jan. 4,
2001) (holding that jury instruction advising jurors they were required to decide facts on
basis of properly admitted evidence mitigated prosecutor's civic duty argument). Petitioner
has not demonstrated that this comment rendered Petitioner's trial unfair.
Accordingly, Petitioner's prosecutorial misconduct claim is also without merit.
30
III. Conclusion
The Court concludes that Petitioner was denied the effective assistance of counsel
at trial in violation of the Sixth Amendment. He is therefore being held in custody in
violation of his constitutional rights. Accordingly, IT IS ORDERED that the petition for writ
of habeas corpus is GRANTED. Respondent is ORDERED to release Petitioner from
custody imposed by the Judgment of Sentence entered in Wayne Circuit Court No. 02003088 within ninety (90) days. Nothing in this Opinion and Order should be construed as
barring re-arrest on the original charges pending new trial after his release from the illegal
judgment of sentence.
DATED: June 14, 2011
S/Bernard A. Friedman_________________
HON. BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE
31
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