Smith v. Woods
Filing
29
OPINION AND ORDER denying 1 Petition for writ of habeas corpus, granting a certificate of appealability, granting in forma pauperis status on any appeal, and dismissing case. Signed by District Judge Denise Page Hood. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM JACOB SMITH, SR.,
PETITIONER,
CASE NO. 08-11389
vs.
HONORABLE DENISE PAGE HOOD
JEFF WOODS, WARDEN,
RESPONDENT.
_______________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
GRANTING A CERTIFICATE OF APPEALABILITY, GRANTING IN FORMA
PAUPERIS STATUS ON ANY APPEAL, AND DISMISSING ACTION
I.
INTRODUCTION
This is a habeas case under 28 U.S.C. § 2254. Petitioner William Jacob Smith, Sr.
(“Petitioner”) is confined at the Kinross Correctional Facility in Kincheloe, Michigan. He claims
ineffective assistance of trial counsel, ineffective assistance of appellate counsel, prosecutorial
misconduct, as well as error for failure to grant various hearings, interwoven with claims of
actual innocence. For the reasons below, the petition will be denied.
II.
FACTUAL BACKGROUND
On the night of February 19, 1992, the Troy Fire Department responded to a house fire at
the residence of Lee Morningstar. The house did not appear to be ransacked or broken into, and
Morningstar did not appear to be home. The next day, the Detroit police investigated a burning
dumpster located in the City of Detroit in which there was a smoldering mutilated body with a
knife lodged in its head. The body was determined to be that of Morningstar. An investigation
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ensued, three individuals confessed and were charged with the murder of Morningstar. The Troy
police later determined that the confessions were false, and the investigation eventually focused
on Petitioner.
On May 20, 1993, following a jury trial in the Oakland County Circuit Court, Petitioner
was found guilty of first-degree murder, felony murder, armed robbery, and arson in connection
with the killing of Morningstar. On June 3, 1993, Petitioner was sentenced to life imprisonment
for the first-degree murder and armed robbery convictions, and 13 to 20 years for the arson
conviction.
III.
PROCEDURAL HISTORY
The Michigan Court of Appeals affirmed the convictions in an unpublished opinion dated
February 16, 1996. All of the issues presented on direct appeal are distinct from the issues raised
in this petition. The Michigan Supreme Court denied Petitioner’s Application for Leave to
Appeal on November 11, 1996.
Several years later, Petitioner filed a Motion for Relief from Judgment before the trial
court, raising several federal constitutional issues. In a 21-page opinion dated July 18, 2005, the
Oakland County Circuit Court denied Petitioner’s Motion for Relief from Judgment, finding that
Petitioner had procedurally defaulted on his constitutional claims by failing to raise them on
direct appeal. Petitioner filed a delayed application for leave to appeal the Circuit Court’s order
denying the Motion for Relief from Judgment and a Motion to Remand. The Michigan Court of
Appeals issued an order denying leave to appeal and to remand on December 6, 2006. The Court
of Appeals denied Petitioner’s Motion for Reconsideration in an order issued on January 17,
2007. The Michigan Supreme Court denied Petitioner’s application for leave to appeal and to
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remand in an order issued on September 10, 2007. Petitioner filed the instant habeas petition on
April 2, 2008.
IV.
STANDARD OF REVIEW
Under 28 U.S.C. §2254 (d), a petitioner is not entitled to federal habeas relief with
respect to claims adjudicated on the merits in state court unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). “Clearly established federal law” means “the holdings, as opposed to the
dicta” of the decisions of the United States Supreme Court “as of the time of relevant state court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is “contrary to”
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.” Id. at 412-13. “Under the
‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case.” Id. at 413. Under this clause, therefore,
“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. Rather, that application must also be unreasonable.” Id. at 411.
V.
ANALYSIS
A. Procedural Default
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Respondent argues that Petitioner procedurally defaulted his claims. Petitioner asserts
the trial court’s reliance on MCR 6.508(D)(3) was insufficient to result in procedural default.
Procedural default occurs when a prisoner fails to present his or her claims in state court.
Under the doctrine of procedural default, “in all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and adequate state procedural rule,” a
federal habeas court may not review the claims unless the prisoner can show “cause for the
default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 US 722, 750 (1991). A habeas petitioner procedurally defaults a federal
constitutional claim if:
(1) the petitioner fails to comply with a state procedural rule; (2) the state courts
enforce the rule; (3) the state procedural rule is an adequate and independent
ground for denying review of a federal constitutional claim; and (4) the
petitioner cannot show cause and prejudice excusing the default.
Tolliver v. Sheets, 594 F.3d 900, 928 (6th Cir. 2010).
In order to determine whether the state courts have enforced the rule, a federal habeas
court must “determine the basis on which the state courts rejected a given claim.” Guilmette v.
Howes, 624 F.3d 286, 290 (6th Cir. 2010). Because Rule 6.508(D) “has both a procedural and a
substantive component,” the federal courts must ascertain whether the state post-conviction court
has denied review of the claims on the basis of the rule’s procedural clause, or on the merits. See
id. at 12. Rule 6.508(D) provides:
The defendant has the burden of establishing entitlement to the relief requested.
The court may not grant relief to the defendant if the motion
(1) seeks relief from a judgment of conviction and sentence that still is subject to
challenge on appeal...;
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(2) alleges grounds for relief which were decided against the defendant in a prior
appeal or proceeding under this subchapter, unless the defendant establishes that a
retroactive change in the law has undermined the prior decision;
(3) alleges grounds for relief, other than jurisdictional defects, which could have
been raised on appeal from the conviction and sentence or in a prior motion under
this subchapter, unless the defendant demonstrates
(a) good cause . . . , and
(b) actual prejudice . . . .
* * *
The court may waive the “good cause” requirement of subrule (D)(3)(a) if it
concludes that there is a significant possibility that the defendant is innocent of
the crime.
MCR 6.508 (D). “In some cases, the context of a brief order citing Rule 6.508(D) clearly
indicates that the state appellate court is affirming the lower court’s determination that a
petitioner’s claims are procedurally defaulted.” Guilmette, 624 F.3d at 290 (internal citation
omitted). Yet other orders citing Rule 6.508 (D) deny post-conviction relief on the merits. Id.
“Michigan practice confirms that brief orders citing Rule 6.508(D) in some cases refer to a
petitioner’s failure to meet his burden on the merits. The procedural default rule stated by Rule
6.508(D)(3) applies only to claims that could have been brought on direct appeal, and thus—by
necessity—it does not apply to the claims of ineffective assistance of appellate counsel.” Id. at
291 (emphasis in original). To determine whether form orders citing Rule 6.508(D) refer to
procedural default or denial on the merits, a federal habeas court must “look to the last reasoned
state court opinion to determine the basis for the state court’s rejection” of a prisoner’s claim. Id.
The trial court’s order denying Petitioner’s motion for relief was based on procedural
default. Although the trial court did reach the merits on some Petitioner’s constitutional claims,
the court unambiguously cited to, and relied on, subsection 3 of 6.508(D) rather than 6.508(D)
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generally. For each of Petitioner’s federal claims, the trial court prefaced its analysis as follows:
“Defendant did not raise these issues in the Michigan Court of Appeals. Therefore, Defendant
must demonstrate good cause and actual prejudice for failure to raise these issues previously.”
App. D to Pet. citing MCR 6.508(D)(3)(a)&(b) (emphasis added). The substance of the trial
court’s analysis also addressed whether Petitioner demonstrated either cause for failing to raise
the claim on direct appeal, or prejudice as a result of his claims being defaulted. For each claim,
the trial court found either a lack of cause or, alternatively, a lack of actual prejudice.
Although the trial court sufficiently invoked MR 6.508(D)(3), the Court will address the
merits of Petitioner’s federal constitutional claims.
B. Prosecutorial Misconduct (Pet. Issue II)
Petitioner presents several claims of prosecutorial misconduct: (1) pre-trial identification
procedures concerning the knife, a gun missing from the victim’s home, and a 911 call were
unduly suggestive, resulting in irreparable misidentification; (2) the pre-trial identification
procedures were held in the absence of defense counsel in violation of Petitioner’s Sixth and
Fourteenth Amendment right to counsel; (3) the prosecution and/or police intentionally
suppressed material impeachment evidence concerning the leniency the Troy police requested
for several state witnesses for their testimony in violation of Petitioner’s right to a fair trial and
right of confrontation; (4) the prosecution suppressed material impeachment evidence that its key
witness, Mitchell Merrill, was, at the time of trial, a police informant for, and friend of, the lead
detective in Petitioner’s case; (5) the prosecution suppressed material impeachment evidence
concerning a knife seized by police by failing to inform the trial court of it after defense counsel
failed to bring it to the attention of the court; and (6) the prosecution offered into evidence false
testimony concerning the 911 call.
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1. Unduly Suggestive Identification Procedures (Pet. Issues IIB and IIC)
a. Identification Procedures Regarding Murder Weapon and Guns
Petitioner argues that the pre-trial identification procedures involving the murder weapon,
as well as guns that were taken from the victim’s home, were unduly suggestive and conducive
to irreparable misidentification.
A few days after the fire at the victim’s home, the victim’s son, David Morningstar,
noticed several guns missing from his father’s residence. At Petitioner’s preliminary
examination and trial, prosecution witness, Roger Kirk, offered testimony tending to link
Petitioner to a gun that was apparently stolen from the victim’s residence. At trial, Kirk also
identified a photograph of the actual murder weapon as the same knife that he had seen in
Petitioner’s possession prior to the date of the murder. Kirk’s testimony revealed that he met
with the police prior to the preliminary examination to identify photographs of knives, and
possibly firearms as well. While the details concerning these identification procedures are not
entirely clear from the record, it is clear that the photographic identifications did occur.
Petitioner challenges all identification procedures concerning either the knife, or the guns
as unduly suggestive. Concerning the knives, Petitioner challenges the photo identification
procedure as unduly suggestive because “there were not multiple knives for the witness to
choose from.” Pet. at 39.
The Supreme Court has recognized that photographic identification of the accused “is
peculiarly riddled with innumerable dangers and variable factors which might seriously, even
crucially, derogate from a fair trial.” United States v. Wade, 388 U.S. 218, 228 (1967). The
accused is denied due process of the law when such an identification procedure is “so
unnecessarily suggestive and conducive to irreparable mistaken identification.” Stovall v.
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Denno, 388 U.S. 293, 302 (1967). The Supreme Court has not considered “whether its decision
in Stovall extends to identification testimony of inanimate objects. Those courts which have
addressed the issue appear to have unanimously held that it does not.” See Smith v. Booker, 2006
WL 3313763 *5 (E.D. Mich. Nov. 14, 2006)(unpublished)(quotation omitted). The Ninth
Circuit rejected a habeas petitioner’s argument that the victim’s in-court identification of an
automobile was tainted by suggestive pre-trial identification procedures: “While this argument
deserves credit for creativity, Stovall and its progeny do not require car line-ups. There is no
authority holding that a defendant’s due process right to reliable identification procedures
extends beyond normal authenticity and identification procedures for physical evidence offered
by the prosecution.” Johnson v. Sublett, 63 F.3d 926, 931-932 (9th Cir. 1995).
In the case at hand, the identification procedures Petitioner is challenging fall squarely
within the parameters of the holdings discussed above. Prosecution witness Kirk offered
testimony regarding inanimate objects consisting of two knives and a gun. Petitioner has not
offered any authority establishing a constitutional right to reliable identification procedures for
inanimate physical evidence. Because Petitioner has not shown that the trial court’s resolution of
this issue was contrary to clearly established federal law, he is not entitled to habeas relief.
b. Identification Procedures Concerning the 911 Call
Plaintiff also argues that the identification procedures of the 911 tape were unduly
suggestive. For the reasons that follow, this Court disagrees.
At trial, the prosecution admitted into evidence tape of a 911 call in which the caller
asked for directions to the victim’s residence on the day of the murder. Prosecution witness Lori
Cunningham, who was personally acquainted with Petitioner, testified that she attended a pretrial procedure where she identified the voice of the caller as Petitioner’s. At trial, another
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prosecution witness also identified the voice as Petitioner’s. Petitioner challenges Cunningham’s
pre-trial identification of the recording as unduly suggestive because there were only two voices
on the call, the voice of the caller and that of the operator.
“A witness’s voice identification is subject to the same due process analysis as other
forms of identification.” United States v. Recendiz, 557 F.3d 511, 528 (7th Cir. 2009). A
conviction based on testimony from a suggestive identification procedure will be set aside if “the
identification procedure was so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” Neil v. Biggers, 409 U.S. 188, 197 (1972)(internal
citation omitted). Assuming a pre-trial identification procedure was suggestive, the question
then becomes whether, under the “totality of the circumstances,” the identification was
nevertheless reliable. Id. at 199. “[T]he factors to be considered in evaluating the likelihood of
misidentification include the opportunity of the witness to view the criminal at the time of the
crime, the witness' degree of attention, the accuracy of the witness' prior description of the
criminal, the level of certainty demonstrated by the witness at the confrontation, and the length
of time between the crime and the confrontation.” Id. at 199-200.
In the case at hand, Petitioner does not point to any factors other than the number of
voices on the call. Even assuming the 911 call was suggestive in light of the totality of the
circumstances, it was still arguably reliable. Both witnesses who identified Petitioner’s voice on
the 911 call were personally acquainted with Petitioner. Petitioner offers no evidence that the
witnesses were uncertain as to their identification of Petitioner’s voice. Petitioner suggests that
the accuracy of the recording is in dispute without proffering specific evidence to call its
accuracy into question. Petitioner relies on People v. Williams in which the court found a voice
identification procedure highly suggestive because the tape only revealed three voices, two of
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which were the voices of officers. People v. Williams, 244 Mich. App. 533, 543 (2001). In
Williams, however, the victim was attacked by an unknown man whose face was masked. Id. at
535. In Petitioner’s case, both witnesses were personally acquainted with Petitioner and thereby
qualified to identify his voice. In Williams, the court explicitly held that the number of voices on
the recording would not alone establish suggestiveness. Id. at 543. Under the totality of the
circumstances, it does not appear that the identification procedures of the 911 recording were so
impermissibly suggestive as to create “a very substantial likelihood of irreparable
misidentification.”
2. Absence of Counsel During Identification Procedures (Pet. Issue II.D)
Petitioner argues that he was denied due process due to the absence of his trial counsel at
the identification procedures described above, held after his arraignment and appointment of trial
counsel, but prior to his preliminary examination and trial.
A criminal defendant “requires the guiding hand of counsel at every step in the
proceeding against him.” Gideon v. Wainwright, 372 U.S. 335, 345 (1963)(internal citation
omitted). In particular, counsel must be present at “every critical stage” of the proceedings
against him, or at “every stage of a criminal proceeding where substantial rights of a criminal
accused may be affected.” Mempa v. Rhay, 389 U.S. 128,134 (1967). Among proceedings
deemed “critical” are some, but not all, identification procedures. The Supreme Court held “that
the Sixth Amendment does not grant the right to counsel at photographic displays conducted by
the Government for the purpose of allowing a witness to attempt an identification of the
offender.” United States v. Ash, 413 U.S. 300, 321 (1973). The Supreme Court stated the same
principle more broadly: “there is no Sixth Amendment right to counsel whatsoever at a postindictment photographic display identification.” Patterson v. Illinois, 487 U.S. 285, 298 (1988).
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In Ash, the identification in question involved photographs of suspects, including the defendant.
413 U.S. at 301. Arguably, witness identification of a criminal suspect is more critical than a
procedure in which a potential witness identifies an inanimate object, such as a murder weapon.
In the case at bar, the identification procedures in question occurred after Petitioner’s
arraignment, and after the appointment of his trial counsel. Prosecution witness Roger Kirk was
interviewed by the Troy Police Department on September 8, 1992, approximately four days after
Petitioner’s arraignment. During this interview, Kirk identified photographs of the murder
weapon, as well as a gun that had been stolen from the victim’s home, as belonging to Petitioner.
The Supreme Court has found no right of counsel to attach to a photographic display of criminal
suspects. Petitioner offers no support for the conclusion that the right to counsel attaches to
identification procedures involving photographs of murder weapons. Habeas relief is not
appropriate on the basis of this evidence.
3. Suppressed Brady Materials (Pet. Issues V, VI, IX)
Petitioner makes three arguments in support of his Brady claims: (1) the prosecution
intentionally suppressed exculpatory evidence by not bringing to the court’s attention evidence
that it knew was in defense counsel’s possession; (2) the prosecution suppressed material
impeachment evidence concerning favorable consideration given to prosecution witness Mitchell
Merrill; (3) the prosecution suppressed material impeachment evidence that Mitchell Merrill
was, at the time of trial, a police informant; and (4) the prosecution suppressed material
impeachment evidence concerning favorable treatment two state witnesses received for their
testimony.
“Suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective
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of the good faith or bad faith of the prosecution.” Brady v. Maryland, 73 U.S. 83, 87 (1963).
“Brady applies to relevant evidence in the hands of the police, whether the prosecutors knew
about it or not.” Harris v. Lafler, 553 F.3d 1028, 1033 (6th Cir. 2009). “There are three
elements to a true Brady claim: The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been suppressed
by the state, either willfully or inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). To establish prejudice, a petitioner must show that there
is “a reasonable probability” that the result of the trial would have been different if the
suppressed evidence had been disclosed to the defense. Id. at 289.
a. Leniency for Prosecution Witnesses
“It is well established that an express agreement between the prosecution and a witness is
possible impeachment material that must be turned over under Brady.” Bell v. Bell, 512 F.3d
223, 233 (6th Cir. 2008)(citing Giglio v. United States, 405 U.S. 150, 154-55 (1972)). The
existence of less formal, implicit, or tacit understandings between the prosecution and a witness
is also subject to Brady’s disclosure requirements. Bell, 512 F.3d at 233. If Petitioner could
prove that the prosecution and any of its witnesses had a mutual understanding, albeit implicit or
tacit, such an agreement would qualify as favorable impeachment evidence under Brady. For the
reasons below, the record does not demonstrate the existence of such evidence.
i. Leniency for Mitchell Merrill (Pet. Issue V)
Petitioner claims to have discovered new evidence that materially affects the credibility
of prosecution witness Mitchell Merrill. At trial, Merrill, who was incarcerated at the time on
unrelated charges, testified that he received no favorable consideration for giving information to
the police, and that his cooperation actually placed him in a worse position, protective custody.
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As Merrill testified, he served his entire sentence, plus an additional day. Detective Robert
Cantlon testified that Merrill did not request any favorable treatment in return for his
cooperation.
After the conclusion of his trial, Petitioner discovered evidence that the Troy police had
written a letter, prior to Petitioner’s trial, requesting leniency on behalf of Merrill for his
cooperation. The letter stated:
The information given to the Troy Police Department will be directly responsible
for a warrant and arrest of a known suspect in the murder of a Troy resident. This
is brought to your attention as it is a service to this community for Mr. Merrill to
come forth with this information . . . The information given to the Troy Police
Department will be directly responsible for a warrant and arrest of a known
suspect in the murder of a Troy resident.
App. N to Pet. Petitioner argues that this letter was contrary to Merrill’s and Cantlon’s testimony
at trial. Petitioner claims that the fact that the police had requested, before trial, leniency for
Merrill was material impeachment evidence subject to disclosure under Brady.
Merrill initially requested “work release” in exchange for his cooperation. Although his
request was denied, this letter demonstrates that the police eventually recommended favorable
treatment to Merrill’s sentencing judge. This sequence of events establishes that there was a
request for work release in exchange for cooperation, followed by a denial of work release,
followed by a general recommendation of favorable treatment. There is no clear evidence of a
‘mutual understanding.’ “A witness’s expectation of a future benefit is not determinative of the
question of whether a tacit agreement subject to disclosure existed.” Bell, 512 F.3d at 233.
Although Merrill may have been seeking more lenient treatment in his own case, “we find no
evidence of a corresponding assurance or promise.” Id.
ii. Leniency for Kirk and Klavinger (Pet. Issue IX)
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Petitioner offers newly discovered evidence that the prosecution suppressed material
impeachment evidence concerning the leniency two state witnesses, Roger Kirk and Peter
Klavinger, allegedly received for their testimony against Petitioner.
At the time of the trial, Klavinger was incarcerated on unrelated charges. Klavinger
testified that Petitioner had asked him for the victim’s home address. He also told Petitioner that
the victim raped Petitioner’s girlfriend. Klavinger testified that Petitioner told him that Petitioner
was going to burn down the victim’s home and rob him. Kirk testified at trial that he observed
Petitioner in possession of the murder weapon before the murder, but never saw it again after the
murder. He also identified the murder weapon in court as the knife he saw Petitioner with before
the murder.
Both witnesses denied receiving any favorable consideration for their testimony.
Klavinger testified that he never requested “any kind of deals or arrangements, or anything.” Tr.
III 162. Although he admitted that he had requested to be placed on a tether for his cooperation,
he stated that he eventually received nothing in return for his willingness to testify for the
prosecution. Likewise, Kirk testified at trial that there were no deals or understandings relating
to his testimony, that he came forth because he “felt bad for the older man,” that his parole was
revoked as a result of his cooperation and that “[i]f [he] would have kept [his] mouth shut, [he]
would have been free right now.” Tr. IV 202.
In November 2004, several years after the conclusion of his trial, Petitioner filed a motion
before the trial court for the discovery of withheld or suppressed evidence in the State’s
possession. In response, the prosecutor turned over two letters written to the Michigan Parole
Board only six days after Petitioner’s conviction recommending leniency for Kirk and Klavinger.
The State did not release these two letters on direct appeal in response to appellate defense
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counsel Linda Borus’ request for all material evidence, when it turned over the letter written for
Mitchell Merrill. The prosecution instead delayed turning over these two letters until Petitioner’s
motion for discovery fourteen years later. The letters for each witness were substantively
identical:
The records of this prisoner should include that he voluntarily provided
information and testimony which assisted in obtaining a First Degree Murder
conviction of an individual who kidnapped a 71 year old (sic) man, embedded a
knife in his head, and then dismembered and mutilated his body. I am not
requesting that the Board should overlook other criteria or the statutory
requirements for release of this prisoner. My intention is to make you aware of
his cooperation with law enforcement in this case. All decisions in this matter
remain for your discretion pursuant to law.
App. U to Pet.
Petitioner argues that these two letters reveal that Kirk and Klavinger did receive
favorable consideration for their testimony, and that there was an implicit deal or understanding.
“[I]t is not the case that, if the government chooses to provide assistance to a witness following a
trial, a court must necessarily infer a preexisting deal subject to disclosure under Brady.” Bell,
F.3d 223 at 234. In Bell, the court found that the petitioner had relied too heavily on the
prosecutor’s “subsequent decision to transmit a letter to the parole board.” Id. at 233. The fact
that a request for leniency is written after a trial certainly does not preclude the possibility that
there was a mutual understanding prior to conviction, but the letter only demonstrates the
possibility that the prosecutor intended to request favorable consideration, not that a mutual
understanding was in place. Petitioner has not adequately shown the existence of a mutual
understanding between the prosecution and witnesses Kirk and Klavinger concerning their
testimony at trial. “Without an agreement, no evidence was suppressed, and the state’s conduct,
not disclosing something it did not have, cannot be considered a Brady violation.” Id. at 234
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(quoting Todd v. Schomig, 283 F.3d 842, 849 (7th Cir. 2002)). This Court therefore denies relief
on this claim.
iii. Mitchell Merrill’s Alleged Informant Status (Pet. Issue VI)
Petitioner claims that the prosecution withheld material impeachment evidence that
prosecution witness Mitchell Merrill was a police informant, a friend of Detective Robert
Cantlon’s, and that the prosecution may have been feeding Merrill information concerning
Petitioner’s case. As discussed above, Mitchell Merrill testified that Petitioner confessed to the
murder of Morningstar and that Petitioner admitted to calling 911 on the day of the murder to ask
for directions to Morningstar’s residence. Merrill testified that his motivation for cooperating
with the prosecution was that Petitioner had done a “bad thing,” and that he did not make up the
story because of Petitioner’s apparent romantic overtures towards Merrill’s girlfriend.
Several years subsequent to Petitioner’s conviction, Petitioner met inmate James Craig
Cristini at the Bellamy Creek Correctional Facility prison law library. Incidentally, Petitioner
and Cristini were researching aspects of their respective murder convictions when Petitioner
discovered that Merrill had also testified against Cristini in his trial for first degree murder in
Macomb County Circuit Court (Case No. 94-2485). Each of their cases was handled by
Detective Cantlon of the Troy police1. In Cristini’s case, Merrill claimed in an interview with
police that Cristini had confessed to committing the murder. Merrill later contradicted his
interview when he testified at Cristini’s preliminary examination that he worked for Detective
Cantlon, that they were friends, and that Cantlon induced him to offer his original statements to
police and told him what to say and in exchange he “would get out of prison.” At Cristini’s
preliminary examination, Merrill stated under oath “Sergeant Robert Cantlon of the Special
1
Petitioner mentions in his brief that the facts surrounding these two murder cases- the way the
victims were mutilated and burned, and the geographic location of the murders- are strikingly
similar.
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Investigation Unit in Troy informed me about what Jimmy [Cristini] did. He said it would be in
my best interest if I told some things on Jimmy.” App. P to Pet. Merrill also testified at the
preliminary examination that Cantlon had fed information to him in a previous murder case. Id.
Petitioner argues that Merrill’s testimony in the Cristini case about his relationship with
Detective Cantlon suggests that Merrill was a “veteran informant” for Detective Cantlon.
Considering the unspecified murder case Merrill alluded to in his testimony at Cristini’s
preliminary examination, Merrill apparently testified for the prosecution in at least three Troy
murder cases within a two-year period. In Petitioner’s view, this timeline, along with Merrill’s
testimony that he is a friend of Detective Cantlon and that Cantlon had fed him information in
Cristini’s murder case, suggest Merrill was an informant for Cantlon at the time of Petitioner’s
trial.
3. Introduction of False Testimony (Pet. Issues IV and VIII)
The trial court admitted into evidence a 911 tape recording of someone asking for
directions to the victim’s home only hours before the murder. Detective Dennis Bobby of the
Troy Police Department testified at trial that in July or August of 1992, he was contacted by
Mitchell Merrill, who had been incarcerated in the Macomb County Jail with Petitioner at the
time as Petitioner’s cellmate. Though Merrill initially contacted Detective Bobby for the
purpose of discussing an unrelated breaking and entering case, he also told Detective Bobby that
he had information concerning the murder of Morningstar. Merrill told Detective Bobby that,
while in jail, Petitioner admitted to calling 911 shortly before the murder in order to obtain
directions to the victim’s residence. After hearing Merrill’s statements, Detective Bobby
prepared a written statement, which he and Merrill both signed. Petitioner points out that the
statement makes no mention of a 911 call. See App. F to Pet.
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Petitioner claims that on March 31, 1992, approximately one month after the murder,
Detective Robert Cantlon questioned Petitioner concerning the 911 call. Contrary to Petitioner’s
allegations, the Troy police claim that the interview was never recorded. See App. T to Pet.
Detective Bobby testified that he had no knowledge of the 911 call prior to Merrill coming forth
with the information. Detective Cantlon also testified that the police had no knowledge of the
call until Merrill came forth with the information. Petitioner argues that the record clearly
contradicts this testimony.
Petitioner argues that the trial record demonstrates the existence of the 911 tape was
known long before Merrill came forth, undermining the prosecution’s theory that Merrill’s
testimony was based on what Petitioner told him, rather than fabricated by the police. First,
Petitioner argues that if Merrill had actually known [from Petitioner] about the 911 call, then his
signed written statement would have mentioned it. Second, Petitioner suggests that his own
interview, for which no record exists, which allegedly occurred five months prior to Merrill’s
interview, proves that the police knew about the existence of the 911 call, and that they did not
originally receive the information from Merrill. Petitioner also points out that the testimony of
the 911 operator as well as Troy Police Communications Supervisor Sergeant Pillen, clearly
suggest that the police had knowledge of the 911 call prior to Merrill coming forth.
Prosecutors may not deliberately deceive a court or jurors by presenting known false
evidence, nor allow unsolicited false evidence to go uncorrected. See Giglio, 405 U.S. at 150.
“To prevail on a false testimony claim, [a habeas petitioner] must show (1) that the prosecution
presented false testimony, (2) that the prosecution knew was false, and (3) that was material.”
Abdus-Samad v. Bell, 420 F.3d 614, 625-26 (6th Cir. 2005). The testimony must be indisputably
false rather than merely misleading, or the result of confusion, mistake, or faulty memory. See
18
id. “[M]ere inconsistencies in testimony by government witnesses do not establish knowing use
of false testimony.” United States v. Lochmondy, 890 F2d. 817, 822 (6th Cir. 1989).
a. Police Testimony Concerning the 911 Call
Petitioner identifies as perjured testimony (1) Detective Bobby’s trial testimony that he
was certain that the first time he had heard of the 911 call was after Merrill came forth, and (2)
Detective Cantlon’s trial testimony that the police did not know of the existence of the call until
Merrill came forth, and that at that time the information was investigated and discovered.
Upon review of the record, the testimony that Petitioner challenges, while somewhat
inconsistent, is not “indisputably false.” Sergeant Pillen did not contradict Detective Bobby’s
testimony when he testified that Detective Bobby told him to retrieve the 911 recording on
August 22, five days prior to the date on which the Troy police interviewed Merrill. The
transcript indicates that Pillen could not recall the date but that according to the evidence tag on
the tape, dated August 26, 1992, that was the date Detective Bobby told him to pull the tape. Tr.
Vo. III, p. 29. The portion of the transcript which states August 22 has a (sic) next to the date,
indicating that the August 22 date was not correct. Petitioner claims that this inconsistency was
not resolved by defense counsel on cross-examination and it was never demonstrated whose
testimony was more accurate. The fact that Merrill’s signed and written statement does not
mention the 911 call, while questionable, does not itself render Bobby’s in-court testimony
indisputably false.
Detective Bobby’s testimony that he was not aware of the recording until after meeting
with Merrill is not “indisputably false.” He testified that on August 25, 1992, he interviewed
Merrill who told him about the 911 call by Petitioner. Detective Bobby informed Detective
Cantlon about Merrill’s statements regarding the Morningstar murder because it was Detective
19
Cantlon who was the lead detective of the Morningstar murder. Both Detectives Bobby and
Cantlon went to the jail on August 26, 1992 to further interview Merrill. Tr. Vol. III, pp. 214216. Detective Bobby testified that either sometime on August 26 or August 27, he called the
911 officers to look for the 911 tape on the day of the murder. Id.
Detective Cantlon’s testimony that he was not aware of the phone call before Merrill
came forth, nor aware of “anyone” else who knew of the call’s existence, was not false. Cantlon
testified that he was not aware of anyone else who knew of the existence of the 911 call; he did
not assert, as a matter of fact, that no else knew. Cantlon testified that it was around August 25th
that he learned about the 911 call from Merrill. Tr. Vol. IV, pp. 260, 287. For the testimony to
be indisputably false, it must be shown that Cantlon was clearly aware that others knew the
recording existed before Merrill came forth. Petitioner has not offered any evidence sufficient to
conclude that Cantlon knew about the 911 tape before Merrill told him about the 911 call.
Because Petitioner has failed to satisfy the “indisputably false” standard regarding Cantlon’s
testimony, his false testimony claim must fail and does not warrant relief.
b. Kirk’s trial identification of the murder weapon
Petitioner also identifies as perjured testimony Roger Kirk’s positive identification of the
murder weapon as the knife he had seen in Petitioner’s car prior to the murder. Petitioner claims
that the fact that the police had seized a similar knife from Petitioner’s residence following the
murder renders Kirk’s positive identification at trial “false testimony.”
Petitioner must show that Kirk’s trial testimony was “indisputably false,” and not ‘merely
inconsistent.’ On the record before the Court, Petitioner cannot make such a showing. In order
to show that Kirk’s identification of the knife was indisputably false, Petitioner must prove that
the confiscated knife was indisputably the knife that Kirk observed prior to the murder. While
20
the record does suggest that Kirk might have identified the confiscated knife had it been adduced
at trial, there is certainly no indisputable evidence that it was in fact the knife that Kirk observed.
This claim must therefore fail.
C. Ineffective Assistance of Trial Counsel (Pet. Issues I and II.A.)
Petitioner argues that he was denied the effective assistance of trial counsel as a result of:
(1) trial counsel’s failure to investigate certain aspects of the case, which caused trial counsel to
be wholly unaware that the prosecution had held identification procedures outside of Petitioner’s
presence involving the murder weapon, a gun allegedly stolen from the victim’s home, and
Petitioner’s voice on a 911 call; (2) trial counsel’s failure to file a motion to suppress the
identification; and (3) trial counsel’s failure to present certain evidence at trial that was
potentially favorable to Petitioner’s defense.
Petitioner must satisfy a two-pronged test in order to make a showing of ineffective
assistance of trial counsel, as set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, a petitioner must show that trial counsel’s performance was deficient, which requires a
showing that counsel made errors so serious that he or she was not functioning as counsel as
guaranteed by the Sixth Amendment. Id. Second, a petitioner must show that counsel’s
deficiency actually prejudiced the defense. Id.
To satisfy the first prong, a petitioner must demonstrate acts that were “outside the wide
range of professionally competent assistance.” Id. at 690. The reviewing court’s scrutiny of
counsel’s performance is highly deferential. Id. at 689. The court must “recognize that counsel
is strongly presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment.” Id. At 690. The petitioner must overcome
the presumption that the challenged actions might be considered sound trial strategy. Id. 689.
21
To establish prejudice under the second prong, Petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. A reasonable probability is one that is sufficient to
undermine confidence in the outcome.” Id.
1. Failure to Investigate Pretrial Identification Procedures
Petitioner alleges that in several instances defense counsel failed to investigate key
aspects of Petitioner’s case. In particular, Petitioner alleges that defense counsel’s failure to
investigate prosecution witnesses caused him to be unaware of several identification procedures
conducted by the State after the appointment of trial counsel and prior to Petitioner’s preliminary
examination. The identification procedures consisted of the following: (1) Roger Kirk’s
identification of the murder weapon; (2) Roger Kirk’s identification of a gun allegedly stolen
from the victim’s home; and (3) Lori Cunningham’s identification of Petitioner’s voice on a 911
call in which the caller asked for directions to the victim’s home on the morning of the murder.
Petitioner’s argument is premised on the alleged illegality of the identification procedures due to
the suggestiveness of the procedures, and the fact that the procedures were conducted without
trial counsel present. In Petitioner’s view, had trial counsel investigated and become aware of
the procedures, he could have raised several meritorious objections at trial.
Defense counsel must undertake a reasonable investigation into the facts of a defendant’s
case or make a reasonable determination that such investigation is unnecessary. Strickland, 466
U.S. at 691. The duty to investigate “includes the obligation to investigate all witnesses who
may have information concerning his or her client’s guilt or innocence.” Towns v. Smith, 395
F.3d 251, 258 (6th Cir. 2005). “A purportedly strategic decision is not objectively reasonable
22
‘when the attorney has failed to investigate his options and make a reasonable choice between
them.’” Id. (internal citations omitted).
To the extent that Petitioner bases his ‘failure to investigate’ claim on the view that the
identification procedures were illegal, the claim must fail. For the reasons discussed in the
analysis of Petitioner’s prosecutorial misconduct claims, supra, Petitioner was not entitled to the
presence of counsel during the procedures in question, and the procedures were not unduly
suggestive. It follows that trial counsel could not have made a meritorious motion to suppress
the identification procedures. Defense counsel cannot be deemed deficient for failing to make a
futile objection or motion. See McQueen v. Scroggy, 99 F.3d 1302, 1328 (6th Cir. 1996).
Petitioner also implies that further investigation into the identification procedures would
have enabled trial counsel to ‘completely undermine’ the prosecution witness’ subsequent
testimony at trial. The Court disagrees for the following reasons.
Whether or not trial counsel was aware of the identification procedures, and regardless of
when he became aware, it is clear that trial counsel in fact did attempt to ‘undermine’ Kirk’s trial
testimony. At trial, counsel attempted to demonstrate through cross-examination and re-cross
examination the inconsistencies between Kirk’s preliminary examination and trial testimony
concerning the knife. Counsel’s questioning revealed that Kirk’s recollection of the knife he saw
in Petitioner’s possession conflicted with testimony at the preliminary hearing several months
prior. For instance, counsel successfully drew attention to the apparent contradiction between
Kirk’s preliminary examination testimony that the knife was unremarkable and that there were
probably “thousands” of similar knives, and his trial testimony that the knife was “rather
unique.” Likewise, trial counsel attempted to undermine certain aspects of Kirk’s trial testimony
concerning the guns Petitioner allegedly took from the victim’s home. Petitioner proffers no
23
evidence demonstrating that if trial counsel had become aware of the identification procedures
sooner, he would have undermined Roger Kirk’s trial testimony.
Petitioner likewise fails to proffer any evidence that if trial counsel had known of Lori
Cunningham’s pre-trial identification of Petitioner’s voice on the 911 call he would have been
able to undermine Cunningham’s trial testimony any more than he did. Cunningham was
personally acquainted with Petitioner and therefore her identification of his voice on the 911
recording could not be easily undermined. Because there is no indication that the alleged failure
to investigate impeded counsel’s ability to discredit any of the prosecution’s witnesses’,
Petitioner is unable to show prejudice under Strickland’s second prong, even assuming counsel’s
performance was unprofessional. Relief is therefore not granted on this claim.
2. Failure to Object to Identification Procedures (Pet. Issue II.A)
Petitioner argues that trial counsel was ineffective for failing to object to the introduction
of testimony or evidence stemming from the “illegally held identification procedures,” in
particular identification procedures concerning Kirk’s identification of the murder weapon.
Petitioner urges, “[a]fter Petitioner was in custody and appointed counsel, the mere fact that the
government held such procedures, without counsel present, would have rendered such a motion
successful.” Pet. at 42.
As discussed above, the identification procedures in question were not illegal. It is
unclear to what extent, if any, Kirk’s trial evidence or testimony ‘stemmed’ from the pre-trial
identification procedures. In any event, because the procedures did not violate Petitioner’s
constitutional rights, any objection to evidence stemming from the procedures would have been
non-meritorious. “Defense counsel cannot be deemed deficient for failing to make a futile
24
objection or motion.” See McQueen, 99 F.3d at 1328. This court therefore denies relief on this
claim of ineffective assistance of counsel.
3. Failure to Present Evidence (Pet. Issue III)
Petitioner claims that, immediately preceding his direct appeal, he learned of the
existence of exculpatory evidence, which had been in defense counsel’s file and which counsel
failed to present at trial. Petitioner discovered in defense counsel’s file evidence that, following
the murder, the police had seized by warrant a knife from Petitioner’s residence which Petitioner
claims was “uncannily similar” to the murder weapon, and generally matched Kirk’s description
of the knife he saw in Petitioner’s possession. Petitioner argues that this evidence would have
undermined Kirk’s identification of the murder weapon as the knife he saw in Petitioner’s
possession before the murder. For the reasons discussed below, trial counsel’s failure to make
any use of this evidence was constitutionally deficient; however, the Court cannot conclude that
such deficiency actually prejudiced Petitioner’s defense.
a. Performance
As noted above, Roger Kirk’s testimony was somewhat contradictory at several points.
At the preliminary examination, Kirk initially testified that the knife he saw in Petitioner’s
possession had jagged edges. By contrast, he later testified at trial that he was sure that the knife,
like the murder weapon, had no jagged edges. Although at the preliminary examination, Kirk
suggested that the knife he had seen in Petitioner’s car was the same one Kirk saw in Petitioner’s
possession following the murder, at trial he testified positively that he had never seen the first
knife again. At the preliminary examination, Kirk suggested the knife he saw Petitioner with
was very common or unremarkable; however, at trial, he suggested that the knife was highly
distinctive. In light of the apparent inconsistencies in Kirk’s testimony, as well as the fact that
25
Kirk’s testimony was the only direct evidence linking Petitioner to the murder weapon, it was not
reasonable for trial counsel to fail to explore this potential means of undermining Kirk’s
testimony. Any suggestion that offering the knife into evidence might have prejudiced Petitioner
by merely linking him to yet another dangerous weapon is unpersuasive as it was already
established that Petitioner was linked to several dangerous weapons.
b. Prejudice
Notwithstanding the apparent inconsistencies in Kirk’s recollection of Petitioner’s knife,
as well as the fact that the murder weapon and the confiscated knife appear to be somewhat
similar, Petitioner cannot show that there is a “reasonable probability” that the result of the
proceeding would have been different but for counsel’s errors. To be certain, there is a
reasonable possibility that Kirk might have testified differently if he had been confronted with
evidence of the confiscated knife. For instance, Kirk might have testified that in fact the
confiscated knife was the knife he saw in Petitioner’s car. At a minimum, if offered into
evidence, the confiscated knife could have served as an additional means to test Kirk’s certainty
about whether the knife he saw Petitioner with was in fact the murder weapon. It is also
possible, however, that viewing the confiscated knife would have made Kirk more confident that
the confiscated knife was different from the knife he testified to seeing Petitioner with, bolstering
the theory that the murder weapon belonged to Petitioner. In any event, a reasonable possibility
of a different outcome is not sufficient to satisfy the prejudice prong under Strickland. Relief,
therefore, is denied with respect to this claim.
Petitioner relies heavily on the fact that the lab reports demonstrate that the murder
weapon and the confiscated knife were roughly similar - both had large wooden handles and both
lacked jagged edges. This rough similarity, however, establishes only the possibility, not the
26
probability, that Kirk would have testified differently and in turn caused the outcome of the trial
to change. Because Kirk was never made to observe the confiscated knife, we are left only to
speculate as to how Kirk’s testimony might have changed.
Because Petitioner cannot demonstrate a reasonable probability that but for counsel’s
error the result of the proceedings against him would have been different, Petitioner’s request for
relief must be denied.
D. Ineffective Assistance of Appellate Counsel (Pet. Issues V and X)
Petitioner makes two claims of ineffective assistance of appellate counsel: (1) appellate
counsel failed to supplement Petitioner’s brief on appeal with evidence, discussed above, that the
Troy police wrote a letter to the sentencing judge in prosecution witness Mitchell Merrill’s
unrelated case; and (2) appellate counsel failed to raise issues I through V, and VIII in
Petitioner’s brief in support for habeas relief. For each claim, Petitioner argues that appellate
counsel failed to raise “dead bang winners” on appeal.
The right to the effective assistance of counsel includes the right to effective assistance of
appellate counsel on direct appeal. See Evits v. Lucey, 469 U.S. 387, 396 (1985). A criminal
defendant does not have a right to demand that appellate counsel raise every possible issue on
appeal. Id. at 394 “[W]innowing out weaker arguments on appeal and focusing on those more
likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate
advocacy.” Smith v. Murray, 477 US 527, 536 (1986)(internal citation omitted). However,
appellate counsel may be deemed ineffective for omitting a “dead bang winner,” an issue from
the trial record that would obviously result in reversal. See Meade v. Lavigne, 265 F. Supp. 2d
849, 870 (E.D. Mich. 2003).
27
A petitioner may establish ineffective assistance of appellate counsel by demonstrating
that counsel ignored a significant and obvious issue while pursuing weaker claims. See
Carpenter v. Mohr, 163 F.3d 938, 947 (6th Cir. 1998) (citing Fagan v. Washington, 942 F.2d
1155, 1157 (7th Cir. 1991)). “Generally, only when ignored issues are clearly stronger than
those presented will the presumption of effective counsel be overcome.” Monzo v. Edwards, 281
F.3d 568, 579 (6th Cir. 2002) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).
Appellate counsel cannot be deficient for failing to raise an issue that lacks merit. See Mahdi v.
Bagley, 522 F.3d 631, 638 (6th Cir. 2008).
1. Ineffective Assistance for Failing to Raise Issues (Pet. Issues I-V and VIII)
Petitioner argues that appellate counsel was deficient for failing to raise the prosecutorial
misconduct and ineffective assistance of trial counsel claims, issues I-V in Petitioner’s brief,
discussed above: “Arguably, these issues which Petitioner raises within this brief are ‘stronger’
than those appellate counsel raised in Petitioner’s direct appeal.” Pet. at 99. For the reasons
discussed above, each of those claims, far from “dead bang winners,” as Petitioner suggests, is
without merit. Petitioner’s ineffective assistance of appellate counsel claims as to those
arguments that are without merit must therefore fail.
Regarding the claim that the prosecution suppressed evidence of an alleged implicit deal
between the police and witness Mitchell Merrill (Argument V), Petitioner claims that appellate
counsel’s failure to raise this argument on appeal resulted from counsel’s failure to comply with
a page requirement under MCR 7.212(B). Appellate counsel attempted to supplement
Petitioner’s brief on direct appeal in order to include this argument, but the Court of Appeals
denied the motion without explanation. See Appendix C to Pet. Even assuming that the Court of
Appeals denied the motion to amend because of the page limitation, and that this oversight
28
constituted ineffective performance on the part of appellate counsel, the argument regarding
Mitchell Merrill’s alleged informant status ultimately lacked merit, as discussed above, and
therefore there can be no prejudice under Strickland’s second prong. Appellate counsel cannot
be ineffective for failing to raise an issue that lacks merit. See Mahdi, 522 F.3d at 638.
E. Newly Discovered Evidence of Actual Innocence
Petitioner offers what he claims to be new exculpatory evidence of possible state
misconduct, and requests a new trial or, in the alternative, an evidentiary hearing to determine
the veracity of such evidence. Specifically, Petitioner offers Joan Krasnicki’s recantation of her
trial testimony against Petitioner. Krasnicki also avers by way of affidavit that she was coerced
by the police into testifying for the prosecution.
At the time of trial, Krasnicki was Petitioner’s ex-girlfriend. Krasnicki had received
financial assistance from the victim while Petitioner was in prison. Krasnicki testified that
Petitioner was jealous and possessive. After the victim had refused Petitioner a ride in his car,
Petitioner allegedly stated, “he said no to the wrong person for the last time.” Tr. Vol. III at 231.
She testified that after the murder and after the police identified the original suspects, Petitioner
told her that the police had the wrong person in custody. Krasnicki also wore a wiretap for the
police, which at trial revealed that Petitioner stated that the victim ‘got what he deserved.’ Id. at
239.
In 2004, Krasnicki recanted her trial testimony and written statements by way of a
personal letter to Petitioner, which was subsequently put into affidavit form and signed.
Krasnicki claimed that the Troy police threatened to charge her as an accessory to the murder
and take away her children if she did not cooperate, and that the police coached her on how to
testify. See Appendix S to Pet. Krasnicki averred that her reason for coming forth was to “clear
29
this burden from [her] conscience.” Id. Petitioner argues that this newly discovered recantation
evidence is a sufficient basis for granting relief, or in the alternative an evidentiary hearing.
This court must apply the standard announced by the Supreme Court in Schlup v. Delo,
513 U.S. 298 (1995), to determine whether the new recantation evidence warrants a new trial.
Under Schlup, a petitioner must show that “it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence.” 513 U.S. at 327. The court must
consider "all the evidence, old and new, incriminating and exculpatory, without regard to
whether it would necessarily be admitted under rules of admissibility that would govern at trial."
House v. Bell, 547 U.S. 518, 538 (2006).
In the case at hand, Krasnicki’s recanting affidavit is not sufficient to show that no
reasonable juror would have convicted Petitioner in light of this new evidence. Notwithstanding
Krasnicki’s recantation, a reasonable juror could have still convicted on the basis of the
testimony of several witnesses that Petitioner confessed to the murder, Roger Kirk’s testimony
that he observed Petitioner with the murder weapon prior to the murder, as well as Lori
Cunningham’s identification of Petitioner’s voice on a 911 call in which the caller asked for
directions to the victim’s home on the day of the murder.
“[A]ffidavits by witnesses recanting their trial testimony are to be looked upon with
extreme suspicion.” McCray v. Vasbinder, 499 F.3d 568, 574 (6th Cir. 2007)(quoting United
States v. Willis, 257 F.3d 636, 645 (6th Cir. 2001)). In McCray, the petitioner offered in support
of his actual innocence claim the recantation of an eye-witness who testified at trial that he saw
the petitioner murder the victim. McCray, 499 F.3d at 573. The witness subsequently recanted
his trial testimony by affidavit, claiming that he did not actually see who committed the murder,
his testimony was coerced, and that he testified in order to avoid charged in connection with the
30
murder. Id. at 568. The court in McCray did not find the recantation evidence sufficient to
support an actual innocence “gateway” claim, noting that, unlike cases in which recantation
evidence did support an actual innocence claim, the petitioner provided “no evidence casting
sufficient doubt on [the recanting witness’s] [original] testimony so as to ensure that no
reasonable juror would have convicted [the petitioner] of the crime.” See id. at 576. By contrast,
the Sixth Circuit recognized the petitioner’s gateway claim where the petitioner offered the
recantations of two expert witnesses whose original testimony was central to the petitioner’s
conviction. See Souter v. Jones, 395 F.3d 577, 596-97 (6th Cir. 2005).
Here, the evidence that Petitioner has offered to cast doubt on Krasnicki’s testimony is
arguably weaker than that offered by the petitioner in McCray. It also does not appear that
Krasnicki’s testimony was extremely central to Petitioner’s conviction, in contrast to Souter.
Petitioner concedes in his brief that “without the testimony of Krasnicki there was still, at the
time of trial, enough evidence left to convict.” Petitioner argues, however, that in light of
Krasnicki’s recantation, along with the other arguments in support of his petition, relief is still
appropriate (he specifically mentions arguments II, IV, V, VI, and IX). As discussed above,
each of these claims lacks merit, and therefore hardly adds any strength to this recantation
evidence. Because Petitioner has failed to demonstrate that no reasonable juror could have
convicted in light of this newly presented evidence, this actual innocence claim must fail and
does not warrant relief.
F. The State Courts’ Failure to Provide a Full and Fair Hearing on Post-Conviction
Claims; Refusal to Expand the Record; Failure to Hold an Evidentiary Hearing
on Newly Discovered Evidence; Failure to Apply Schlup v. Delo to Actual
Innocence Claims (Pet. Issue XI)
Petitioner asserts that the state courts erred by refusing to expand the record at the postconviction stage, failing to hold an evidentiary hearing on his newly discovered evidence, and by
31
failing to apply Schlup v. Delo to his actual innocence claims. Petitioner argues that these
denials have led to a deprivation of a full and fair post-conviction hearing and a miscarriage of
justice.
As for the state courts’ failure to expand the record, failure to apply Schlup, and failure to
hold an evidentiary hearing, such questions are matters of state law. Because a federal habeas
court may not correct a state court’s misapplication of its own law, a state trial court’s denial of a
motion for a new trial based on newly discovered evidence is not a ground for habeas relief.
Kirby v. Dutton, 794 F.2d 245, 246-47 (6th Cir. 1986); Monroe v. Smith, 197 F.Supp.2d 753, 763
(E.D. Mich. 2001). Given that this Court finds Petitioner is not entitled to habeas relief, any
alleged errors of state law have not led to a miscarriage of justice.
G. Evidentiary Hearing (Pet. Issue VII)
Petitioner requests an evidentiary hearing on each of his claims for relief in order to
develop certain underlying facts he insists are essential for the resolution of such claims. For the
following reasons, Petitioner is not entitled to an evidentiary hearing.
28 U.S.C. § 2254(e)(2) prevents a federal habeas court from granting evidentiary
hearings where a petitioner has “fail[ed] to develop the factual basis of a claim in State court
proceedings.” The Supreme Court explained that “a failure to develop the factual basis of a
claim is not established unless there is lack of diligence, or some greater fault, attributable to the
prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000). “Diligence
for purposes of the opening clause depends upon whether the prisoner made a reasonable
attempt, in light of the information available at the time, to investigate and pursue claims in state
court.” Id. at 435. “Diligence will require in the usual case that the prisoner, at a minimum, seek
an evidentiary hearing in state court in the manner prescribed by state law.” Id. at 437. “[T]he
32
fact that [a petitioner] is not disqualified from receiving an evidentiary hearing under §
2254(e)(2) does not entitle him to one.” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003).
The Sixth Circuit has held that “a habeas petitioner is generally entitled to such a hearing if he
alleges sufficient grounds for release, relevant facts are in dispute, and the state courts did not
hold a full and fair evidentiary hearing.” Id. (quoting Sawyer v. Hofbauer, 299 F.3d 605, 610
(6th Cir. 2002)). “Even in a death penalty case, ‘bald assertions and conclusory allegations do
not provide sufficient ground to warrant requiring the state to respond to discovery or to require
an evidentiary hearing.’” Stanford v. Parker, 266 F3d 442, 460 (6th Cir. 2001) (internal citation
omitted).
Petitioner claims that Merrill’s informant status is material impeachment evidence subject
to disclosure under Brady. The Supreme Court held that all three elements of a Brady claim
were satisfied where the prosecution failed to disclose the informant status of one of its key
witnesses. Banks v. Dretke, 540 U.S. 668, 704 (2004). In Banks, the petitioner presented newly
discovered evidence that the prosecution suppressed a witness’ status as a paid informant for the
police after the petitioner successfully demonstrated that he was entitled to an evidentiary
hearing. See id. at 678. In the present case, Petitioner offers evidence that Merrill might have
had an informant relationship with Cantlon subsequent to his own conviction. Petitioner proffers
no evidence that would prove that Merrill worked as an informant for Cantlon at the time of
Petitioner’s case. The evidence Petitioner relies on in support of his allegation that Merrill was
an informant for Detective Cantlon is unique in that it rests primarily on Merrill’s actions
following Petitioner’s trial. Petitioner is not merely alleging a “bald assertion.” Merrill testified
in a subsequent case, under oath, that he had an informant-like relationship with Detective
Cantlon, that he and Cantlon were “friends,” and that Cantlon essentially fed Merrill information
33
to offer against Cristini in another case. Merrill also testified that he had cooperated with
Cantlon in connection with an unspecified murder case prior to Cristini’s case. These factual
allegations raise not only the question of whether there existed an informant relationship between
Cantlon and Merrill, but also whether such a relationship existed at the time of Petitioner’s trial.
If believed, the allegation that Merrill was an informant for the lead detective in Petitioner’s case
might very well undermine confidence in the outcome of Petitioner’s trial. However, as
discussed above, the Court finds that all of Petitioner’s claims for relief lack merit. The Court is
satisfied that the resolution of Petitioner’s claims for relief do not require the development of any
questions of fact.
VI. CERTIFICATE OF APPEALABILITY
A petitioner must receive a certificate of appealability (“COA”) in order to appeal the
denial of a habeas petition for relief from either a state or federal conviction. 28 U.S.C. §
2253(c)(1)(A), (B). A court may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal district
court rejects a habeas claim on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the district court’s assessment of the
constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
“A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). In applying this standard, a district court may not conduct a full merits
review, but must limit its examination to a threshold inquiry into the underlying merit of the
petitioner’s claims. Id. at 336-37. When a federal district court denies a habeas claim on
procedural grounds without addressing the merits, a certificate of appealability should issue if it
34
is shown that jurists of reason would find it debatable whether the petitioner states a valid claim
of the denial of a constitutional right, and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling. See Slack, 529 U.S. at 484-85.
Here, the Court concludes that jurists of reason could find the Court’s assessment of
Petitioner’s Brady claim as it relates to the relationship between Merrill and Detective Cantlon
may be debatable or wrong. The Court further finds that jurists of reason could find that the
Court’s conclusions regarding the testimony recanted by the witness may be debatable or wrong.
The Court therefore issues Petitioner a certificate of appealability on these two claims only.
A court may grant in forma pauperis status if the court finds that an appeal is being taken
in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. 24 (a); Foster v. Ludwick, 208 F. Supp.
2d 750, 765 (E.D. Mich. 2002). Any appeal of this order will be taken in good faith. The Court
will grants any request by Petitioner to proceed in forma pauperis status on any appeal filed.
VII. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the petition for writ of habeas corpus (Doc. No. 1) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability issue in this matter on the
two claims noted above.
IT IS FURTHER ORDERED that Petitioner may proceed in forma pauperis on any
appeal filed.
IT IS FURHTER ORDERED that this action is DISMISSED with prejudice.
s/Denise Page Hood_________
United States District Judge
DATED: September 30, 2011
35
I hereby certify that a copy of the foregoing document was served upon William
Smith #200445, 1500 Caberfae Highway, Manistee, MI 49660 and counsel of record
on September 30, 2011, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager
36
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