Simpson v. Romanowski

Filing 12

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus - Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT SIMPSON,
Petitioner,

Case Number 08-11390
Honorable David M. Lawson

v.
THOMAS BIRKETT,
Respondent.
_______________________________/
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
The petitioner, Robert Simpson, a Michigan prisoner, seeks the issuance of a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Simpson challenges his Wayne County, Michigan circuit court
conviction for assault with intent to rob while armed on the grounds that his trial and appellate
counsel were constitutionally ineffective. The respondent has filed an answer to the petition
contending that review of some of the claims is barred by procedural default and the rest lack merit.
The Court finds that the petitioner’s claims lack merit and do not warrant habeas relief. The Court,
therefore, will deny the petition.
I.
The petitioner’s conviction arises from events which occurred on August 26, 2001 when a
group of individuals assaulted Willie York, an alleged marijuana dealer, during an attempted armed
robbery at his home in Detroit, Michigan. The trial testimony revealed that York was barbequing
at his home when he saw four men get out of a car and walk into an alley. Later, one of the men,
who was armed with a gun, approached York’s home and fired several shots at the house. York
returned fire and killed the shooter. Homicide investigators contacted the petitioner to question him
about the shooting. After being advised of his rights and signing a waiver form, the petitioner made

a statement in which he admitted that he knew that the other men intended to rob York, he pointed
out York’s home, he was the “lookout” and waited by their getaway van, and he left the scene with
two of the men. The petitioner also admitted that he expected to receive money and drugs from the
robbery. The petitioner’s statement was admitted in evidence at his bench trial along with the
testimony of several witnesses, including Willie York. After considering the evidence, the trial court
concluded that the petitioner acted as a lookout for the group and found him guilty as an aider and
abettor of assault with intent to rob while armed. The trial court subsequently sentenced him to 15
to 50 years imprisonment.
Following sentencing, the petitioner, through appellate counsel, filed a motion for new trial
and a request for evidentiary hearing arguing that his trial counsel was ineffective by failing to move
to suppress the petitioner’s statement to the police. The trial court conducted an evidentiary hearing
during which trial counsel and the petitioner testified. The petitioner contended that his statement
was involuntary because he was high on drugs and the police intimidated him and threatened him
with a murder charge if he did not cooperate. The petitioner acknowledged that he gave his
statement “a couple of hours” after being in custody. Defense counsel testified that he asked the
petitioner about his police statement and the petitioner never told him anything that led him to
believe that the statement was involuntary. The trial court found the petitioner’s testimony
incredible, accepted trial counsel’s version of events, ruled that trial counsel was not ineffective, and
denied the motion for new trial.
The petitioner filed his direct appeal in the Michigan Court of Appeals asserting that the
prosecution presented insufficient evidence to support his conviction, trial counsel was ineffective
by failing to challenge the voluntariness of his police statement, and the trial court erred in scoring

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several offense variables at sentencing. The court affirmed the petitioner’s conviction, but found
sentencing error and remanded for re-sentencing. People v. Simpson, No. 240350, 2003 WL
22240968 (Mich. Ct. App. Sept. 30, 2003) (unpublished). The Michigan Supreme Court denied
leave to appeal. People v. Simpson, 469 Mich. 1016, 677 N.W.2d 27 (2004). The trial court
thereafter issued an amended judgment of sentence reducing the maximum term of imprisonment.
The new sentence was 15 to 40 years imprisonment. The Michigan Court of Appeals affirmed the
amended sentence. People v. Simpson, No. 253183, 2005 WL 1812712, *1 (Mich. Ct. App. Aug.
2, 2005). The petitioner did not further appeal that decision.
The petitioner subsequently filed a motion for relief from judgment in the state trial court,
raising the same ineffective assistance of trial and appellate counsel claims presented to this Court
on habeas review. The trial court denied the motion on the merits, finding that the petitioner had
failed to establish that trial and appellate counsel were ineffective. People v. Simpson, No. 01-10433
(Wayne Co. Cir. Ct. Nov. 11, 2005). The Michigan Court of Appeals denied leave to appeal “for
failure to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v.
Simpson, No. 270220 (Mich. Ct. App. Nov. 9, 2006) (unpublished). The Michigan Supreme Court
similarly denied leave to appeal. People v. Simpson, 478 Mich. 867, 731 N.W.2d 738 (2007).
The petitioner timely filed his federal habeas petition following the exhaustion of his state
remedies. He raises the following claims:
[He] was denied his Sixth Amendment right to the effective assistance of [appellate]
counsel where appellate counsel neglected to argue [the following claims] during the
appeal of right:
A.

That trial counsel was ineffective in failing to argue that defendant’s
statement was the product of an illegal detention following an arrest
unsupported by probable cause; and

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B.

That trial counsel was ineffective in failing to advance an alternative theory
where the evidence supported a conviction on a lesser included offense.

The respondent’s answer alleges that the claims are barred by procedural default, lack merit, and do
not warrant habeas relief.
II.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the
standard of review federal courts must apply when considering an application for a writ of habeas
corpus raising constitutional claims, including claims of ineffective assistance of counsel. See
Wiggins v. Smith, 539 U.S. 510, 520 (2003). As amended, 28 U.S.C. § 2254(d) permits a federal
court to issue the writ only if the state court decision on a federal issue “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court,” or it amounted to “an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Franklin v. Francis, 144 F.3d
429, 433 (6th Cir. 1998). Under that review standard, mere error by the state court does not justify
issuance of the writ; rather, the state court’s application of federal law “must have been objectively
unreasonable.” Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)
(internal quotes omitted)). Additionally, this Court must presume the correctness of state court
factual determinations. 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be presumed to be correct.”); see also
West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (stating that “[t]he court gives complete deference
to state court findings of historical fact unless they are clearly erroneous”).
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The Supreme Court has explained the proper application of the “contrary to” clause as
follows:
A state-court decision will certainly be contrary to [the Supreme Court’s] clearly
established precedent if the state court applies a rule that contradicts the governing
law set forth in our cases. . . .
A state-court decision will also be contrary to this Court’s clearly established
precedent if the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless arrives at a result
different from [the Court’s] precedent.
Williams, 529 U.S. at 405-06.
The Supreme Court has held that a federal court should analyze a claim for habeas corpus
relief under the “unreasonable application” clause of § 2254(d)(1) “when a state-court decision
unreasonably applies the law of this Court to the facts of a prisoner’s case.” Id. at 409. The Court
has explained that an unreasonable application of federal law is different from an incorrect
application of federal law. Under that language, “a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413.
The Supreme Court has continued to emphasize the limited nature of this review. In its recent
unanimous decision in Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770 (2011), the Court
reiterated that the AEDPA requires federal habeas courts to review state court decisions with
“deference and latitude,” and “[a] state court’s determination that a claim lacks merit precludes
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Id. at 785-86 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The distinction between mere error and an objectively unreasonable application of Supreme
Court precedent creates a substantially higher threshold for obtaining relief than de novo review.
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The AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and
demands that state-court decisions be “given the benefit of the doubt.” Renico v. Lett, --- U.S. ---,
---, 130 S. Ct. 1855, 1862 (2010) (finding that the state court’s rapid declaration of a mistrial on
grounds of jury deadlock was not unreasonable even where “the jury only deliberated for four hours,
its notes were arguably ambiguous, the trial judge’s initial question to the foreperson was imprecise,
and the judge neither asked for elaboration of the foreperson’s answers nor took any other measures
to confirm the foreperson’s prediction that a unanimous verdict would not be reached”) (internal
quotation marks and citations omitted); see also Bray v. Andrews, 640 F.3d 731, 737-39 (6th Cir.
2011); Phillips v. Bradshaw, 607 F.3d 199, 205 (6th Cir. 2010); Murphy v. Ohio, 551 F.3d 485,
493-94 (6th Cir. 2009); Eady v. Morgan, 515 F.3d 587, 594-95 (6th Cir. 2008); Davis v. Coyle, 475
F.3d 761, 766-67 (6th Cir. 2007); King v. Bobby, 433 F.3d 483, 489 (6th Cir. 2006); Rockwell v.
Yukins, 341 F.3d 507, 511 (6th Cir. 2003) (en banc). Moreover, habeas review is “limited to the
record that was before the state court.” Cullen v. Pinholster, --- U.S. ---, 131 S. Ct. 1388, 1398
(2011).
A.
Before turning to the merits, the Court will address the respondent’s argument that the
petitioner’s claims of ineffective assistance of appellate counsel are barred by the doctrine of
procedural default. A procedural default is “a critical failure to comply with state procedural law.”
Trest v. Cain, 522 U.S. 87, 89 (1997). Such a default may occur if the state prisoner fails to present
an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th
Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done
something at trial to preserve his claimed error for appellate review, e.g., make a contemporaneous

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objection or file a motion for a directed verdict. See Simpson v. Sparkman, 94 F.3d 199, 202-03 (6th
Cir. 1996). Procedural default will bar consideration of the merits of a federal claim if the state rule
is actually enforced and is an adequate and independent ground for the state court’s decision.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Monzo v. Edwards, 281 F.3d 568, 575–76 (6th
Cir. 2002).
In this case, the trial court addressed the petitioner’s claims on the merits when denying his
motion for post-conviction relief, and both Michigan appellate courts denied relief in standard form
orders on the grounds that the petitioner had failed to demonstrate entitlement to relief under
Michigan Court Rule 6.508(D). The Sixth Circuit has held that the form orders used by the
Michigan appellate courts are unexplained because they are ambiguous as to whether they refer to
a procedural default or the denial of right on the merits. Guilmette v. Howes, 624 F.3d 286, 291-92
(6th Cir. 2010). However, when the Court “look[s] through,” id. at 291; see also id. at 293 (Boggs,
J., dissenting), the unexplained orders of the Michigan appellate courts to the decision of the state
trial court, it is quite clear that the court did not rely on the state court procedure or consider it a bar
to the petitioner’s claim.
There is good reason for this. Ineffective assistance of appellate counsel claims plainly
cannot be raised on direct appeal as they do not arise before the appeal. Hicks v. Straub, 377 F.3d
538, 558 n.17 (6th Cir. 2004) (“Petitioner did not procedurally default his claim of ineffective
assistance of appellate counsel. State collateral review was the first opportunity that petitioner had
to raise this claim.”). The petitioner raised his ineffective assistance of appellate counsel claims at
his first opportunity to do so, in his motion for relief from judgment. See Tucker v. Renico, 317 F.

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Supp. 2d 766, 772-73 (E.D. Mich. 2004). Consequently, his ineffective assistance of appellate
counsel claims are not procedurally defaulted.
B.
The petitioner asserts that appellate counsel was constitutionally ineffective by failing to
raise two claims of ineffective assistance of trial counsel on direct appeal of his conviction. The
record shows that appellate counsel did raise an ineffective-assistance-of-counsel argument, but that
argument addressed trial counsel’s failure to challenge the petitioner’s statement on the grounds of
involuntariness. The petitioner maintains that trial counsel was ineffective for two other reasons —
failing to challenge the admissibility of his statement on the alternate theory that it was the product
of an illegal arrest, and failing to advance a defense theory pointing toward guilt of a lesser offense
— and that appellate counsel was deficient for not raising those issues on direct appeal.
The right to the effective assistance of counsel includes the right to the effective assistance
of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 396 (1985). To prevail on a claim of ineffective
assistance of appellate counsel, the petitioner must demonstrate that appellate counsel’s performance
was deficient and that the deficient performance prejudiced the appeal. Strickland v. Washington,
466 U.S. 668, 687 (1984). The United States Court of Appeals for the Sixth Circuit has held that
the determination of whether appellate counsel performed deficiently should be assessed in light of
the following eleven factors:
1. Were the omitted issues “significant and obvious”?
2. Was there arguably contrary authority on the omitted issues?
3. Were the omitted issues clearly stronger than those presented?
4. Were the omitted issues objected to at trial?
5. Were the trial court’s rulings subject to deference on appeal?
6. Did appellate counsel testify in a collateral proceeding as to his appeal strategy
and, if so, were the justifications reasonable?
7. What was appellate counsel’s level of experience and expertise?
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8. Did the petitioner and appellate counsel meet and go over possible issues?
9. Is there evidence that counsel reviewed all the facts?
10. Were the omitted issues dealt with in other assignments of error?
11. Was the decision to omit an issue an unreasonable one which only an
incompetent attorney would adopt?
Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999); see also Franklin v. Anderson, 434 F.3d 412,
429 (6th Cir. 2006).
The Supreme Court has made clear that a criminal defendant has no constitutional right to
demand that appellate counsel raise every possible colorable issue on appeal. See Jones v. Barnes,
463 U.S. 745, 751 (1983). Strategic and tactical choices regarding which issues to pursue on appeal
are “properly left to the sound professional judgment of counsel.” United States v. Perry, 908 F.2d
56, 59 (6th Cir. 1990). “‘[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 U.S. 527, 536 (1986) (quoting Jones, 463 U.S. at 751-52).
Appellate counsel thus need not raise every nonfrivolous issue, but he or she must exercise
reasonable professional judgment. Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003) (citing
Jones, 463 U.S. at 751-53).
A petitioner is prejudiced by appellate counsel’s deficient performance if a reasonable
probability exists that, but for counsel’s deficient performance, he would have prevailed on appeal.
See Riley v. Jones, 476 F. Supp. 2d 696, 709 (E.D. Mich. 2007); see also Meade v. Lavigne, 265 F.
Supp. 2d 849, 870 (E.D. Mich. 2003) (appellate counsel may prejudice a defendant by omitting a
“dead-bang winner,” an “issue . . . obvious from the trial record . . . which would have resulted in
reversal on appeal”).

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The petitioner has not shown that not raising the additional ineffective assistance of trial
counsel claims identified above caused appellate counsel’s performance to fall outside the wide
range of professionally competent assistance. Appellate counsel presented viable issues on direct
appeal, including claims of insufficient evidence, ineffective assistance of trial counsel for not
seeking suppression of the petitioner’s statement on Fifth Amendment grounds, and sentencing
error. In fact, the Michigan Court of Appeals agreed with appellate counsel that re-sentencing was
required, which resulted in a 10-year reduction in the petitioner’s maximum sentence. As further
explained below, the petitioner has not shown that appellate counsel’s strategy in presenting such
claims and not raising the claims contained in the motion for relief from judgment was deficient or
unreasonable, nor has he shown that he was prejudiced by counsel’s performance.
1.
The petitioner first asserts that appellate counsel was ineffective by failing to raise a claim
that trial counsel was ineffective for not objecting to the admission of his police statement on the
basis of pre-arraignment delay. The petitioner states that he was arrested on August 29, 2001 and
was arraigned on September 2, 2001. The record reveals that he gave his inculpatory statement
while in police custody on August 29, 2001. The petitioner argues that his statement was the fruit
of an illegal arrest and should have been suppressed because he was not arraigned within 48 hours
of his arrest and the Supreme Court has found such a delay to be presumptively unreasonable. See
County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991). Trial counsel, the petitioner
contends, was ineffective by failing to seek suppression of the statement on such a basis.
Strickland’s two-pronged test first requires the petitioner to demonstrate that trial counsel’s
performance was deficient. Strickland, 466 U.S. at 687. An attorney’s performance is deficient if

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“counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. The
defendant must show “that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. “Judicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689. The Supreme Court has “declined
to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that
‘[t]he proper measure of attorney performance means simply reasonableness under prevailing
professional norms.’” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688).
The petitioner has not established that trial counsel erred by not raising the illegal-arrest
theory to suppress the statement. Even assuming that a McLaughlin violation occurred, such a
violation does not automatically result in suppression. The Supreme Court has explicitly declined
to rule on the appropriate remedy for a McLaughlin violation. See Powell v. Nevada, 511 U.S. 79,
84 (1994). The federal courts in this circuit, see Corley v. United States, 129 S. Ct. 1558 (2009);
Evans v. Booker, No. 05-CV-74075, 2007 WL 2516459, *6 (E.D. Mich. Aug. 30, 2007), and the
Michigan courts have held that suppression of a statement is not per se required for a McLaughlin
violation, see People v. Manning, 243 Mich. App. 615, 636-44, 624 N.W.2d 746, 754-55 (2000).
Instead, “the existence of a delay is merely a factor to be considered in determining whether a
statement was voluntary.” Evans. 2007 WL 2516459, at *4. The other factors include police
coercive activity, the length of detention, the defendant’s age, education and intelligence level, his
prior criminal experience, whether he was injured or under the influence of drugs or alcohol,
whether he was advised of his rights, whether he was deprived of food, sleep, or medical care. See
People v. Cipriano, 431 Mich. 315, 334, 429 N.W.2d 781, 790 (1988); see also Withrow v. Williams,
507 U.S. 680, 693-94 (1993). Under both state and federal law, the ultimate question is whether

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“under the totality of the circumstances, the challenged confession was obtained in a manner
compatible with the requirements of the Constitution.” Miller v. Fenton, 474 U.S. 104, 112 (1985).
The petitioner has not established that his statement was involuntary under the totality of the
circumstances. Even accepting that the petitioner was arrested on August 29, 2001 and arraigned
four days later on September 2, 2001, the record shows that he gave his police statement during
custodial interrogation on August 29, 2001. The petitioner gave his statement on the day of his
arrest, and the pre-arraignment delay was not a factor that could have contributed to his decision to
talk. Furthermore, the record is devoid of evidence that his statement was otherwise involuntary.
There is no credible evidence that the police engaged in coercive activity, that the petitioner was
unable to understand or waive his rights, that he was subject to lengthy interrogation, or that he was
deprived of any necessities while in custody. Although the petitioner argued on direct appeal that
his statement was involuntary due to heroin use and police intimidation, the state courts found his
testimony incredible and rejected that claim. Such a credibility determination is presumed correct,
see Miller, 474 U.S. at 112, and the petitioner has not rebutted that presumption with clear and
convincing evidence. Moreover, the petitioner does not re-assert his Fifth Amendment suppression
claim here; rather his argument is that the delay in arraignment invalidated his statement. Such is
not the case. The petitioner’s statement was simply not the product of undue pre-arraignment delay.
Nor has the petitioner shown that he was prejudiced by his trial attorney’s failure to raise the
issue. An attorney’s deficient performance is prejudicial if “counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
The petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability

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sufficient to undermine confidence in the outcome.” Id. at 694. Unless the petitioner demonstrates
both deficient performance and prejudice, “it cannot be said that the conviction . . . resulted from
a breakdown in the adversary process that renders the result unreliable.” Id. at 687.
The argument that pre-arraignment delay rendered that petitioner’s statement involuntary
was very weak. Trial counsel probably could not be faulted for failing to raise it, and appellate
counsel’s
choice to omit that argument from the issues on direct appeal is a tactical decision that is well within
the range of professional norms. “Because trial counsel performed adequately, the Court’s inquiry
‘is at an end; by definition, appellate counsel cannot be ineffective for a failure to raise an issue that
lacks merit.’” Riley v. Jones, 476 F. Supp. 2d 696, 711 (2007) (quoting Greer v. Mitchell, 264 F.3d
663, 676 (6th Cir. 2001)). The petitioner has failed to establish that appellate counsel was
ineffective as to that appellate issue.
2.
The petitioner next contends that appellate counsel was ineffective on direct appeal for not
raising a claim that trial counsel was ineffective by failing to request consideration of the lesser
cognate offense of attempted armed robbery as an alternative to the pursued defense of seeking
outright acquittal. That decision fairly can be relegated to the category of trial strategy.
Trial counsel’s strategic decisions are entitled to deference however, and reviewing courts
will not second-guess counsel’s strategic decisions as long as those decisions are reasonable.
Strickland, 466 U.S. at 490. It was reasonable for trial counsel to seek a complete acquittal and to
forego consideration of the lesser offense. The petitioner’s defense at trial was that he merely waited
by a van more than a block away from the victim’s house and that he did not participate in the

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robbery. Had the lesser offense of attempt been included in the charge, the prosecutor’s burden
would have been less onerous and a conviction of the lesser offense even more likely. Moreover,
an argument that the petitioner was only guilty of attempted armed robbery would have been
incompatible with his primary defense that he was merely present while the other men committed
the crime and he did not take any significant action to aid and abet their efforts. Given the
circumstances of the case, trial counsel’s defense tactics were reasonable. The fact that counsel’s
strategy was ultimately unsuccessful does not mean that counsel was ineffective. See, e.g., Moss
v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (“[A]n ineffective-assistance-of-counsel claim
cannot survive so long as the decisions of a defendant’s trial counsel were reasonable, even if
mistaken” (quoting Campbell v. Coyle, 260 F.3d 531, 551 (6th Cir. 2001)). The petitioner has not
established that trial counsel’s performance was deficient.
Moreover, the petitioner cannot establish that he was prejudiced by trial counsel’s conduct.
As found by the Michigan Court of Appeals on direct appeal, the prosecution presented sufficient
evidence to support the petitioner’s conviction of assault with intent to rob while armed as an aider
and abettor. Michigan law prohibits the crime of assault with intent to rob while armed by statute:
Any person, being armed with a dangerous weapon, or any article used or fashioned
in a manner to lead a person so assaulted reasonably to believe it to be a dangerous
weapon, who shall assault another with intent to rob and steal shall be guilty of a
felony, punishable by imprisonment in the state prison for life, or for any term of
years.
Mich. Comp. Laws § 750.89. The elements of the offense are: (1) an assault, (2) an attempt to rob,
(3) while armed. People v. Akins, 259 Mich. App. 545, 554, 675 N.W.2d 863, 873 (2003). To
convict a defendant under an aiding and abetting theory, the prosecution must establish that the
crime was committed by the defendant or some other person, that the defendant performed acts or

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gave encouragement that aided or assisted in the commission of the crime, and that the defendant
either intended to commit the crime or knew that the principal intended to commit the crime at the
time he gave the aid or encouragement. People v. Carines, 460 Mich. 750, 757-58, 597 N.W.2d 130,
135 (1999). The evidence at trial, including the petitioner’s own statement, demonstrated that the
petitioner pointed out the victim’s house to the other men knowing their intent to commit an armed
robbery, that at least one man was armed, that shots were fired at the victim during the attempted
robbery, that petitioner waited by the car, and that he expected to receive proceeds from the robbery.
The record establishes beyond a reasonable doubt that the petitioner aided and abetted the crime of
assault with intent to rob while armed. Consequently, the petitioner cannot demonstrate that he was
prejudiced by trial counsel’s failure to argue the lesser offense of attempted armed robbery. No
prejudice results from the failure to raise a potential defense, unless the defense would likely have
succeeded at trial. See, e.g., United States v. Holland, 117 F.3d 589, 595 (D.C. Cir. 1997); Mangum
v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995). Such is not the case here. The petitioner has failed to
establish that he was prejudiced by counsel’s conduct.
Again, because trial counsel was not ineffective under the Strickland test, the petitioner
cannot demonstrate that appellate counsel was ineffective for not raising the foregoing issue on
direct appeal of his conviction. Habeas relief is therefore not warranted on this claim.
III.
The Court finds that the petitioner is not in custody in violation of the Constitution or laws
of the United States.
Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.

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s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: July 13, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 13, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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