Kelly v. McKee

Filing 40

OPINION AND ORDER Denying 1 Petition for Habeas Corpus filed by Bernard Kelly. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BERNARD KELLY,
Petitioner,
v.

Case Number 08-13777
Honorable David M. Lawson

KENNETH T. McKEE,
Respondent.
_________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Michigan prisoner Bernard Kelly filed a pro se petition for writ of habeas corpus under 28
U.S.C. § 2254 challenging his convictions of first-degree murder, two counts of assault with intent
to commit murder, and possession of a firearm in the commission of a felony (felony firearm). He
was sentenced to prison for life without parole on the first-degree murder conviction and lesser terms
of years for the other crimes. The petitioner has listed thirty-eight issues in his habeas petition,
which itself casts doubt on the claim that error occurred in the state courts. See Fifth Third
Mortgage Co. v. Chicago Title Ins. Co., 692 F.3d 507, 509 (6th Cir. 2012) (where the court observed
that “[w]hen a party comes to us with nine grounds for reversing the district court, that usually
means there are none”). Here, the petitioner alleges that he was denied his right to due process when
the judge refused to conduct a pre-trial evidentiary hearing on the reliability of the eyewitness
identifications, he was denied his right to due process by the admission of evidence of prior
uncharged crimes, he was denied his right to the counsel of choice when he was forced to proceed
to trial with counsel whose representation was affected by conflicting interests, he was denied the
right to the possibility of full and fair appellate review when the trial court failed to provide him with
the entire pre-trial and trial record and other discovery, the trial judge erred by failing to conduct an

evidentiary hearing on his ineffective assistance of trial counsel claims, he was denied the right to
the effective assistance of trial and appellate counsel, he was denied the right to a fair trial because
of prosecutorial misconduct, and he was denied a fair trial because of cumulative error. The
respondent has filed an answer asserting that many of the petitioner’s claims were not preserved
properly in state court, and all lack merit. The Court agrees that the petitioner’s claims are meritless;
therefore, the petition will be denied.
I.
The petitioner’s convictions followed a jury trial in the Wayne County, Michigan circuit
court. The facts of the case, as derived from the trial testimony, were summarized as follows by the
state appellate court on direct appeal:
Defendant was convicted of killing his three-year-old daughter, Stefanie Belue, and
of shooting his daughter’s two daycare providers, Sherita Griggs and Annette Rice.
Griggs and Rice, both of whom were shot several times, each survived.
At trial, the prosecutor presented evidence that defendant reacted angrily when he
learned that Stefanie’s mother was pregnant. Defendant did not want her to have the
child and explained that he did not want any more children. Defendant thereafter
broke off his relationship with Stefanie’s mother. After Stefanie was born, Stefanie’s
mother did not initially seek child support and defendant had very little involvement
with the child. However, in April 2004, Stefanie’s mother decided to seek child
support from defendant. According to Stefanie’s mother, defendant was opposed to
paying child support and did not want the issue of child support to be handled
through the courts because he believed that the recommended child support payments
were too high. A court hearing on the issue of child support was scheduled for the
afternoon of September 28, 2004. The instant offense was committed on the
morning of September 28, 2004, at the home of Stefanie’s daycare providers. The
prosecutor also presented evidence that, at the time of the offense, defendant was
engaged to one woman, but was seeing several other women at the same time, none
of whom knew about Stefanie or another child that defendant had fathered.
...
Defendant . . . argues that the trial court erred in admitting evidence that he reacted
angrily when another woman, Charity Smith, became pregnant with defendant’s
child, that defendant told Smith that he did not want and could not afford another
child, that defendant threatened to kill Smith and her child if Smith went through
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with the pregnancy, that defendant became very belligerent when Smith subsequently
asked defendant for support money, and that Smith suspected defendant as the person
involved in an earlier incident in which Smith was shot several times.
...
Smith testified that she received a threatening telephone call from defendant in which
defendant cursed at Smith, complained about child support, and said that he was
going to “get” Smith and the child. According to Smith, she was shot seven times
when someone fired a gun through her bedroom window approximately 20 minutes
after the threatening telephone call. Smith did not see the shooter, but believed that
defendant was responsible.
...
In a second supplemental brief, defendant argues that Evern Charleston and Cora
Ivey were both coerced into giving false testimony at trial to discredit defendant’s
alibi defense. Defendant contends that defense counsel was ineffective for not
raising this issue at trial. We disagree.
Charleston and Ivey both gave prior statements to the police that tended to support
defendant’s alibi defense. Specifically, both individuals told police that that [sic]
defendant was working out in a gym at the time the offense was committed. At trial,
however, Charleston testified that he saw someone who looked like defendant at the
gym, but was not certain the person was defendant. Similarly, Ivey testified at trial
that she recalled seeing defendant at the gym on the morning of the offense, but was
uncertain about the time of day he arrived.
People v. Kelly, No. 261936, 2006 WL 3613638, at *1, 4, 7 (Mich. Ct. App. Dec. 12, 2006).
The petitioner raised ten claims on direct appeal. The Michigan Court of Appeals affirmed
the convictions. Ibid. The state supreme court denied leave to appeal. People v. Kelly, 478 Mich.
870, 731 N.W.2d 716 (2007).
After the petitioner filed his habeas corpus petition in this Court, he was allowed to return
to state court to file a post-conviction motion while the Court held the petition in abeyance. The
post-conviction motion for relief from judgment was denied, and the state appellate courts denied
the petitioner leave to appeal. People v. Kelly, No. 301023 (Mich. Ct. App. Oct. 5, 2011), lv. den.
493 Mich. 937, 826 N.W.2d 716 (2012). He then returned to this Court and filed an amended
petition for a writ of habeas corpus.

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In his original and amended petitions, the petitioner seeks habeas relief on thirty-eight
grounds, some of which can be grouped together as follows:
I.

[Direct appeal Issue 2.] Petitioner was denied due process by the trial court’s
refusal to hold a Wade hearing on the capacity of the witnesses to a photo
lineup to accurately make an identification.

II.

[Direct appeal Issue 4.] Petitioner was denied his right to due process when
evidence of prior, uncharged crimes were admitted into evidence.

III.

[Motion for Relief from Judgment (Motion) Issue 1.] Petitioner was
deprived of his right to counsel of his choice when the court failed to follow
procedure in determining whether defense counsel should be allowed to
withdraw from the case.

IV.

[Motion Issue 2.] Petitioner was denied his right to the effective assistance
of counsel when he was forced to proceed to trial with counsel whose
representation was affected by conflicted interests.

V.

[Motion Issue 9.] Petitioner was denied due process where the court failed
to provide adequate pretrial/trial record occurrences which precluded the
possibility of full and fair appellate review.

VI.

[Motion Issue 10.] Petitioner was denied of his right to due process when the
trial court erred by denying his motion for a new trial without an evidentiary
hearing.

VII.

[Direct appeal Issues 1, 5, 7, 8.] Petitioner was denied due process by
multiple instances of prosecutorial misconduct.

VIII.

[Direct appeal Issue 9, Motion Issue 5.] The prosecutor improperly withheld
evidence favorable to the defense.

IX.

[Direct appeal Issue 10, Motion Issue 11.] Petitioner was denied of his right
to due process where the cumulative effect of the errors committed at trial
deprived him of a fair trial.

X.

[Direct appeal Issues 3, 6, Motion Issues 2, 4A-4M.] Petitioner was denied
the effective assistance of trial counsel.

XI.

[Motion Issues 6, 7, 8.] Petitioner was denied the effective assistance of
appellate counsel.

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As noted above, the respondent filed an answer to the petition arguing that many of these claims
ought not be reviewed because the petitioner failed to preserve them by not objecting at trial, by not
raising his claims on direct appeal, or by abandoning his claims. A procedural default, however, is
not a jurisdictional bar to review of a claim, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005),
and “federal courts are not required to address a procedural-default issue before deciding against the
petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v.
Singletary, 520 U.S. 518, 525 (1997)). Because the petitioner’s claims lack merit, the Court
proceeds directly to the merits.
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). Because Kelly filed his petition after the AEDPA’s
effective date, its standard of review applies. Under that statute, if a claim was adjudicated on the
merits in state court, a federal court may grant relief only if the state court’s adjudication “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 if the adjudication
“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)(1)-(2). “Clearly established
Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions.” White v. Woodall, --- U.S. ---, 134 S. Ct. 1697, 1702 (2014) (internal

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quotation marks and citations omitted). “As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S.
86, 103 (2011).
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.
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, 559 U.S. 766,
773 (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 Dewald v. Wriggelsworth, 748 F.3d 295, 298-99 (6th Cir. 2014);
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); 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, 563 U.S. 170, 180 (2011).

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A.
The petitioner first contends that the trial court should have granted him a pretrial evidentiary
hearing as described in United States v. Wade, 388 U.S. 218 (1967), to challenge the reliability of
the pretrial identifications made by Sherita Griggs and Annette Rice. He did not identify any pretrial
identification procedures that he believed were unduly suggestive. Instead, he argued that their
medical conditions causing the women to be hospitalized for their gunshot wounds made their pretrial identifications unreliable. The petitioner’s trial counsel moved for such a hearing, but the trial
judge denied the motion. On appeal, the court of appeals concluded that the trial court did not err
in refusing to conduct an evidentiary hearing on the surviving victims’ identifications of the
petitioner, because the petitioner did not challenge any pretrial identification procedure as being
unduly suggestive. People v. Kelly, 2006 WL 3613638, at *3.
The Due Process Clause requires suppression of eyewitness identification evidence “when
law enforcement officers use an identification procedure that is both suggestive and unnecessary.”
Perry v. New Hampshire, --- U.S. ---, 132 S. Ct. 716, 718 (2012). A pretrial identification violates
due process where: (1) the identification procedure is impermissibly suggestive; and (2) the
suggestive procedure gives rise to a very substantial likelihood of misidentification. Neil v. Biggers,
409 U.S. 188, 197-98 (1972); Manson v. Braithwaite, 432 U.S. 98, 114 (1977) (holding that due
process challenges to identification procedures are reviewed using the Biggers test).
The evil to be avoided is that an initial improper identification procedure will result in
misidentification and will unduly influence later investigation. United States v. Wade, 388 U.S. 218,
229 (1967). A criminal defendant has the initial burden of proving that an identification procedure
used by law enforcement during the investigation was impermissibly suggestive. It is only after a

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defendant meets that burden that the court must require the state to prove that the identification was
reliable, independent of the suggestive identification procedure. Id. at 240 n.31. If a defendant fails
to show that the identification procedures were impermissibly suggestive, or if the totality of the
circumstances indicates that the identification is otherwise reliable, no due process violation has
occurred. As long as there is not a substantial likelihood of misidentification, it is for the jury to
determine the ultimate weight to be given to the identification. See United States v. Hill, 967 F.2d
226, 230 (6th Cir.1992).
The petitioner never established that Griggs’s or Rice’s in-court identifications were the
product of a suggestive pretrial identification procedure. The trial court, therefore, was correct in
refusing the request for a hearing to determine reliability.

Instead,

the reliability of the

identification testimony was for the jury to determine. See Watkins v. Sowders, 449 U.S. 341, 347-48
(1981). “[T]he Supreme Court has never held that an in-court identification requires an independent
basis for admission in the absence of an antecedent improper pre-trial identification.” Cameron v.
Birkett, 348 F. Supp. 2d 825, 843 (E.D. Mich. 2004). Moreover, “the Due Process Clause does not
require a preliminary judicial inquiry into the reliability of an eyewitness identification when the
identification was not procured under unnecessarily suggestive circumstances arranged by law
enforcement.” Perry, 132 S. Ct. at 730.
The jury was given sufficient information to assess the reliability of the witnesses’
identification of the petitioner as the shooter. Defense counsel cross-examined Rice and Griggs at
great length about the circumstances surrounding their pre-trial identifications, including their
medical conditions at the time of the identification. Rice acknowledged that she had been shot five
times, spent two months in the hospital, was on a ventilator, and was receiving pain medications at

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the time of the pretrial identification. Griggs admitted that she was in the hospital intensive care unit
and still receiving pain medications when she made the pretrial identification. Griggs also
acknowledged that she did not remember much from when she was in the hospital. Counsel also
questioned the line-up attorney who attended Rice’s pretrial lineup about the fact that Rice was
receiving intravenous medications, was on a ventilator, and had a tracheotomy at the time of the
identification. Petitioner’s counsel also brought out in his closing argument the fact that Griggs and
Rice had identified the petitioner while they were still in the hospital. The trial judge later instructed
the jurors on the factors that they needed to consider with regards to the issue of identification. The
judge previously instructed the jurors that the prosecutor was required to prove the petitioner’s guilt
beyond a reasonable doubt. “Given the safeguards generally applicable in criminal trials,” which
were taken advantage of by petitioner’s defense counsel, the introduction of Griggs’s and Rice’s
eyewitness testimony, “without a preliminary judicial assessment of its reliability, did not render
[petitioner’s] trial fundamentally unfair.” Ibid.
Because the petitioner did not show that the pretrial identifications procedures were
suggestive, the state courts’ determination that no “Wade hearing” was warranted reasonably applied
federal constitutional law as determined by the Supreme Court.
B.
The petitioner next contends that the trial judge erred by admitting evidence that the
petitioner reacted angrily when another woman named Charity Smith became pregnant with his
child, that the petitioner threatened to kill Smith and her child if Smith gave birth to the child, that
the petitioner reacted hostilely to Smith’s requests for child support, and that Smith suspected that
the petitioner was the perpetrator involved in an incident in which Smith was shot several times.

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The petitioner claims that the admission of this evidence violated Michigan Rule of Evidence
404(b).
The Michigan Court of Appeals held that the evidence was admitted properly under state
evidence law, because it was probative of the petitioner’s motive to commit the crimes charged, it
shed light on the identity of the perpetrator, and it was relevant to the petitioner’s intent. The court
also held that the danger of unfair prejudice was minimized by the trial court’s limiting instruction
to the jury on the use of that evidence. People v. Kelly, 2006 WL 3613638, at *4-5. The petitioner
did not argue, and the state courts did not address, a federal constitutional issue relating to the
admission of that evidence.
An alleged violation of state evidence rule 404(b) is not cognizable on habeas review.
“[S]tate-court evidentiary rulings cannot rise to the level of due process violations unless they
‘offend[] some principle of justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental.’” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Montana
v. Egelhoff, 518 U.S. 37, 43 (1996)). The Supreme Court has declined to hold that the admission
of “other acts” evidence is so extremely unfair that it violates fundamental conceptions of justice.
Dowling v. United States, 493 U.S. 342, 352-53 (1990). The Court has discussed when other acts
testimony is permissible under the Federal Rules of Evidence, see Huddleston v. United States, 485
U.S. 681 (1988), but has not addressed the issue in constitutional terms. Such matters are more
appropriately addressed in codes of evidence and procedure than under the Due Process Clause.
Dowling, 493 U.S. at 352. “There is no clearly established Supreme Court precedent which holds
that a state violates due process by permitting propensity evidence in the form of other bad acts
evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); see also Bey v. Bagley, 500 F.3d

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514, 519 (6th Cir. 2007). Consequently, there is no “clearly established federal law” to which the
state court’s decision could be “contrary” within the meaning of section 2254(d)(1). Bugh, 329 F.3d
at 512-13. Therefore, the Court must deny habeas relief on this claim.
C.
The petitioner argues that he was deprived of the assistance of competent counsel under the
Sixth Amendment in several instances. In his third claim, the petitioner argues that his right to the
counsel of his choice was violated when the judge refused to allow the petitioner’s retained counsel
to withdraw from representing the petitioner, instead appointing the same attorney to represent the
petitioner at court expense. In his fourth claim, the petitioner contends that he was forced to proceed
to trial with an attorney who was laboring under a conflict of interest. In his sixth claim, the
petitioner argues that his constitutional rights were violated when the Michigan courts denied his
motion to conduct an evidentiary hearing on his ineffective assistance of counsel claims in the
manner described by the state supreme court in People v. Ginther, 390 Mich. 436, 443, 212 N.W.2d
922, 925 (1973), and Michigan Court Rule 7.211(C)(1). In his tenth claim, the petitioner alleges that
he was denied the effective assistance of trial counsel, citing a number of alleged faults. In his
eleventh claim, the petitioner contends that he was denied the effective assistance of appellate
counsel.
1.
Taking the procedural issue first, it appears that the petitioner first raised his ineffective
assistance of counsel claims in his post-trial motion and on direct appeal and asked for an
evidentiary hearing. The trial court denied his motion without holding an evidentiary hearing. The

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court of appeals addressed the claims on the existing record and did not remand the case to take
evidence.
Federal courts do not provide relief under 28 U.S.C. § 2254 for alleged errors of that type. “[T]he
Sixth Circuit has consistently held that errors in post-conviction proceedings are outside the scope
of federal habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007). The Supreme
Court has held that states have no constitutional obligation to provide post-conviction remedies.
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Based on that holding, the Sixth Circuit has
reasoned that “habeas corpus cannot be used to mount challenges to a state’s scheme of
post-conviction relief.” Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001); see also Kirby v.
Dutton, 794 F.2d 245, 246 (6th Cir. 1986) (holding that habeas corpus is not the proper means by
which prisoners should challenge errors or deficiencies in state post-conviction proceedings).
The petitioner contends that the state courts should have held an evidentiary hearing on his
ineffective assistance of counsel claims. Even if that were true, such an error in the manner the state
court chose to address a post-conviction challenge is not grist for the federal habeas mill. See
Cornwell v. Bradshaw, 559 F.3d 398, 411 (6th Cir. 2009). Moreover, there is no clearly established
Supreme Court ruling that recognizes a constitutional right to a state court evidentiary hearing to
develop a claim of ineffective assistance of counsel on direct appeal. Hayes v. Prelesnik, 193 F.
App’x 577, 584-85 (6th Cir. 2006). The petitioner is not entitled to habeas relief on this claim.
2.
In his third claim, the petitioner contends that he was denied the counsel of his choice when
the trial judge failed to replace the petitioner’s retained counsel after a breakdown between the two
concerning a dispute over the payment of attorney’s fees and the quality of trial counsel’s

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representation. Instead, the court appointed the same attorney at court expense to represent the
petitioner. This issue was raised for the first time in the petitioner’s post-conviction motion for
relief from judgment.
The petitioner argues that his retained counsel visited him in the Wayne County Jail on
January 6, 2005 and explained to the petitioner the difficulties he had in preparing for the
petitioner’s trial due to personal issues and difficulties with obtaining discovery. Retained counsel
also requested additional payment of fees to continue with the representation. Trial was to
commence on January 31, 2005. The petitioner refused to pay his attorney and informed him of
several issues that required investigation. The petitioner alleges that he informed counsel that
because of the breakdown in their relationship, he was not going to pay counsel and asked him to
withdraw from the case. Counsel informed the petitioner that he would move to withdraw from the
case and that the petitioner would be brought to court for a hearing on the motion. The petitioner
himself never sent a letter to the judge informing him of the alleged breakdown in the relationship
between himself and his trial counsel. On January 10, 2005, counsel returned to the jail with an
order from the circuit court judge appointing him at court expense to represent the petitioner. A
hearing was never held on the petitioner’s complaints concerning counsel.
The Sixth Amendment states that, “[i]n all criminal prosecutions, the accused shall enjoy the
right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This
constitutional right is applicable to the states through the Fourteenth Amendment. Serra v. Michigan
Department of Corrections, 4 F.3d 1348, 1351 (6th Cir. 1993) (citing Gideon v. Wainwright, 372
U.S. 335, 344-45 (1963)). “A criminal defendant who desires and is financially able to retain his
own counsel ‘should be afforded a fair opportunity to secure counsel of his own choice.’” Ibid.

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(quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). However, “[t]he right to the assistance of
counsel at trial does not guarantee that a criminal defendant will be represented by a particular
attorney.” Ibid.; see also Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989)
(“Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth
Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases
the right to adequate representation, but those who do not have the means to hire their own lawyers
have no cognizable complaint so long as they are adequately represented by attorneys appointed by
the courts.”).
The petitioner’s right to counsel of his choice was not violated because he has made no
showing that he had the money to retain a new attorney. Because the petitioner did not show that
he had the financial means to hire a new lawyer, the trial court’s failure to allow for the substitution
of counsel did not violate the petitioner’s right to the counsel of his choice.
3.
The petitioner also contends that the trial court erred in failing to replace the petitioner’s
attorney without first conducting an inquiry into the nature of the petitioner’s complaints about his
counsel. “A defendant is required to show good cause for a request to substitute counsel and to do
so in a timely manner.” United States v. Williams, 176 F.3d 301, 314 (6th Cir. 1999). Here, there
is no evidence that the petitioner ever informed the trial judge of his dissatisfaction with trial
counsel. A defendant wishing to substitute counsel must “bring any serious dissatisfaction with
counsel to the attention of the district court.” Benitez v. United States, 521 F.3d 625, 632 (6th
Cir.2008). Because the petitioner never did so, the state court cannot be faulted for not addressing
the issue. See United States v. Iles, 906 F.2d 1122, 1131-32 (6th Cir. 1990).

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4.
In his fourth claim, the petitioner contends that his trial counsel was laboring under a conflict
of interest due to their disputes over attorney fees and disagreements over trial strategies. This claim
also was first presented in the petitioner’s motion for relief from judgment. To establish a Sixth
Amendment violation where a trial court fails to inquire into a potential conflict of interest about
which it knew or reasonably should have known, a defendant must show that a conflict of interest
adversely affected counsel’s performance. Mickens v. Taylor, 535 U.S. 162, 172-74 (2002). The
petitioner not pointed to any part of the record that suggests that the purported fee dispute affected
trial counsel’s representation of him during trial. In fact, the fee dispute was rendered moot by the
appointment of counsel under the state indigency plan. And as the petitioner acknowledged in his
state court brief, “[a]lthough a ‘defendant’s failure to pay fees may cause some divisiveness between
attorney and client,’ courts generally presume that counsel will subordinate his or her pecuniary
interests and honor his or her professional responsibility to a client.” United States v. Taylor, 139
F.3d 924, 932 (D.C. Cir. 1998) (citing United States v. O’Neil, 118 F.3d 65, 71 (2d Cir. 1997);
United States v. Jeffers, 520 F.2d 1256, 1265 (7th Cir. 1975) (Stevens, J.)). The state trial court
reasonably indulged that presumption when denying the petitioner’s motion for relief from judgment
on this ground, especially in light of the utter absence from the record of defective performance by
trial counsel.
5.
In his tenth claim, the petitioner proffers twenty-one allegations of ineffective assistance of
trial counsel. Many are repetitive or overlap. To begin, however, it is well established that to
succeed on an ineffective assistance of counsel claim, the petitioner “must show both deficient

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performance and prejudice.” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). An attorney’s
performance is deficient if “counsel’s representation fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). 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.” Id. at 687. To establish prejudice from counsel’s failure to
investigate or call a potential witness, a petitioner must show that had the witness testified, “the
result of the proceeding would have been different.” Landrum v. Mitchell, 625 F.3d 905, 921 (6th
Cir. 2010) (quoting Strickland, 466 U.S. at 694).
On habeas review, the petitioner’s burden is even greater. The Supreme Court explained in
Richter that
[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 372 (2010). . . . The question is whether an attorney’s representation
amounted to incompetence under “prevailing professional norms,” not whether it
deviated from best practices or most common custom. Strickland, 466 U.S. at 690.
Establishing that a state court’s application of Strickland was unreasonable under §
2254(d) is all the more difficult. The standards created by Strickland and § 2254(d)
are both “highly deferential,” id., at 689; Lindh v. Murphy, 521 U.S. 320, 333, n.7
(1997), and when the two apply in tandem, review is “doubly” so, Knowles, 556
U.S., at 123. The Strickland standard is a general one, so the range of reasonable
applications is substantial. Ibid. Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with unreasonableness under
§ 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.
Richter, 562 U.S. at 105.
In other words, on habeas review, “[t]he question ‘is not whether a federal court believes the
state court’s determination’ under the Strickland standard ‘was incorrect but whether that
determination was unreasonable — a substantially higher threshold.’” Knowles, 556 U.S. at 123

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(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Moreover, “because the Strickland
standard is a general standard, a state court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.” Ibid. (citing Alvarado, 541 U.S. at 664).
The petitioner first argues that his trial counsel was ineffective by failing to move for the
suppression of the identification testimony from Ms. Rice and Ms. Griggs or to challenge their
competency, due to their medical conditions, to have made their pretrial identifications. However,
as discussed above, trial counsel actually did move for a “Wade hearing” and was refused. The
petitioner’s ineffective assistance claim “relates to defense counsel’s failure to achieve substantive
results rather than a failure to file procedural motions.” Mason v. Mitchell, 320 F.3d 604, 617 (6th
Cir. 2003). “Strickland’s objective standard of reasonableness does not require lawyers to be
perfect.” Ibid. And, as also noted earlier, trial counsel thoroughly cross-examined the witnesses on
their ability to made an accurate identification. What’s more, Antwain White, Sherita Griggs’s son,
who was present at the day care center at the time of the shooting, positively identified the petitioner
at trial as the perpetrator. Alvette Madison positively identified the petitioner as the man she saw
running fast through the median of the road in the vicinity of the day care center at the time of the
murder and the shootings. And there was testimony that the petitioner did not want to pay child
support for his daughter and that a hearing on the child support issue was scheduled for the day of
the murder, coupled with the evidence that the petitioner had threatened to kill another daughter to
avoid paying child support. Even if trial counsel’s performance on this point was deficient — which
it was not — the petitioner is not able to establish prejudice.

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6.
As a related claim, the petitioner alleges that his trial counsel was ineffective by failing to
challenge the photographic array as being unduly suggestive, either by alleging in a pretrial motion
that the photographic lineup was suggestive, or by calling the police officers who conducted the
photographic lineups to testify at trial concerning the suggestive nature of the lineup. This argument
also was presented in the petitioner’s motion for relief from judgment. The trial judge rejected it,
expressly finding that the photographic lineup was not unduly suggestive. The petitioner offered
no contrary evidence either to the state court or to this Court. It is also worth noting that there is
abundant evidence in the record fortifying the reliability of the victims’ in-court identifications.
Annette Rice testified that she spent 10 to 15 minutes with the petitioner prior to the shooting,
immediately identified him in the lineup, and positively identified the petitioner at trial as her
assailant. Sherita Griggs testified that she positively identified the petitioner at the photographic
lineup as being the shooter. Griggs also positively identified the petitioner in court as her assailant
and testified that she had gotten a good look at the petitioner’s face at the time of the shooting.
Defense counsel’s performance cannot be deemed deficient for failing to make futile or meritless
motions. Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2014) (“Omitting meritless arguments is
neither professionally unreasonable nor prejudicial.”); United States v. Steverson, 230 F.3d 221, 225
(6th Cir. 2000). The state court, therefore, reasonably applied Strickland to this issue.
7.
The petitioner next claims that trial counsel failed to prepare adequately for trial in that he
did not consult appropriately with the investigator that counsel had hired to assist the defense. This
issue was raised on direct appeal. The court of appeals considered the affidavit of the investigator,

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which criticized defense counsel for certain shortcomings, but found no basis to conclude that
prejudice could be shown. In this court, the petitioner has not suggested how more consultation
would have generated beneficial information. Absent even an attempt at such a showing, the
petitioner cannot establish prejudice. See e.g. Welsh v. Lafler, 444 F. App’x 844, 851 (6th Cir.
2011) (rejecting a similar claim where petitioner failed to present sufficiently detailed and
convincing account of what additional facts investigator could have discovered in support of the
petitioner’s innocence). The Michigan Court of Appeals’s finding that no prejudice resulted was
a reasonable application of Strickland.
8.
The petitioner next contends that trial counsel was ineffective by failing to call alibi
witnesses on his behalf. This issue also was raised on direct appeal. Two of the proposed alibi
witnesses, Evern Charleston and Corey Ivey, did testify at the petitioner’s trial, albeit for the
prosecution. Counsel elicited testimony from Mr. Charleston that he had told the police in an initial
statement to them that he had seen the petitioner at the Powerhouse Gym on September 28, 2004
between 9:00 and 9:30 a.m. while Charleston was training there. Corey Ivey testified that while she
was working at the gym on the day in question, she witnessed the petitioner come into the gym
around 9:00 a.m., although she was not sure that he had signed the sign-in sheet at the time. At trial,
these witnesses expressed uncertainty on whether the petitioner was at the gym at the time of the
assaults. Nonetheless, defense counsel elicited testimony from them in support of the petitioner’s
alibi. Moreover, it appears that defense counsel used information obtained from his investigator to
cross-examine both individuals.

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The court of appeals rejected the petitioner’s claim because the record did not support it, and
the court was convinced that counsel performed adequately. Those conclusions are entitled to
“double[] deferen[ce]” under AEDPA and Strickland. See Burt v. Titlow, --- U.S. ---, 134 S. Ct. 10,
13 (2013) (holding that on habeas review of ineffective-assistance-of-counsel claims, the Supreme
Court “require[s] that the federal court use a ‘doubly deferential’ standard of review that gives both
the state court and the defense attorney the benefit of the doubt”) (citing Cullen v. Pinholster, 563
U.S. 170, 190 (2011)). Habeas relief is not warranted on this claim.
9.
The petitioner also argues that trial counsel should have called Tracey Poteat to testify that
she had filed a personal protection order against Charlity Smith and that Smith had made harassing
telephone calls against her after the petitioner was convicted. The petitioner does not explain how
this evidence would have been exculpatory. Defense counsel has no obligation to present evidence
or testimony that would not have exculpated the defendant. See Millender v. Adams, 376 F.3d 520,
527 (6th Cir. 2004). Because Poteat’s testimony would not have exculpated the petitioner, counsel
was not ineffective by not calling her to testify.
10.
The petitioner next contends that trial counsel was ineffective by failing to call a
pharmacologist, a memory specialist, or a doctor to testify as to the unreliability of Rice’s and
Griggs’s pretrial identifications due to their medical conditions. The petitioner also argues that trial
counsel was ineffective by failing to call a gunshot residue expert, and an expert in video image
recovery to look at the videotapes from the Powerhouse Gym in order to substantiate the petitioner’s

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alibi defense. These claims were presented to the trial court in the motion for relief from judgment.
That court rejected them on both performance and prejudice grounds.
A habeas petitioner’s claim that trial counsel was ineffective by failing to call an expert
witness cannot be based on speculation. Keith v. Mitchell, 455 F.3d 662, 672 (6th Cir. 2006). The
petitioner has offered no evidence that there were any experts in these fields who would have
impeached Griggs’s and Rice’s testimony or who would have offered exculpatory testimony with
respect to the gunshot residue or the videotape. The petitioner is thus not entitled to relief on these
claims.
11.
The petitioner next contends that defense counsel did not litigate adequately against the
admission of the prior acts testimony offered by Charity Smith, that the petitioner attempted to
murder his other daughter to avoid paying child support. The Michigan Court of Appeals found that
the evidence was relevant and admissible to establish the petitioner’s intent, his identity, and a
motive to commit the murder. Counsel challenged the evidence, but did not meet with success.
However, not winning a losing argument does not constitute ineffective assistance. Moss v.
Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (holding that an ineffective assistance of counsel claim
“cannot survive so long as the decisions of a defendant's trial counsel were reasonable, even if
mistaken”).
12.
The petitioner next contends that trial counsel was ineffective by failing to object to certain
instances of prosecutorial misconduct, which is discussed below. For the reasons stated there, the
Court finds that the prosecutor’s conduct did not deprive the petitioner of a fair trial. To show

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prejudice under Strickland for failing to object to prosecutorial misconduct, a habeas petitioner must
show that there is a reasonable probability that the proceeding would have been different, had
defense counsel lodged an objection. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001). Because
the Court determines that the prosecutor’s comments and questions were not fundamentally unfair,
the petitioner is unable to establish that he was prejudiced by counsel’s failure to object to these
remarks. See Slagle v. Bagley, 457 F.3d 501, 528 (6th Cir. 2006).
13.
As a related claim, the petitioner contends that trial counsel was ineffective by failing to
object to the prosecutor’s statement at the preliminary examination that Annette Rice had positively
identified the petitioner at that hearing, even though Rice stated that she could not at the moment
see the petitioner because defense counsel was in the way. As mentioned above, Rice positively
identified the petitioner at trial. The petitioner does not explain how Rice’s rather innocuous
statement and the prosecutor’s reaction affected the trial, thus, he has failed to show that he was
prejudiced by counsel’s failure to object.
14.
The petitioner next contends that trial counsel was ineffective by failing to subpoena the
bank records of Alvette Madison, who was sitting in the parking lot of her bank on the morning of
the murder and observed the petitioner running through the streets by the bank at the time of the
murder. The petitioner does not explain how those bank records would have impeached Ms.
Madison’s testimony. Conclusory allegations of ineffective assistance of counsel, without any
evidentiary support, do not provide a basis for habeas relief. Workman v. Bell, 178 F.3d 759, 771
(6th Cir. 1998).

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15.
The petitioner next claims that trial counsel was ineffective by failing to investigate and
prove that telephone records used by the prosecution had been altered to make the petitioner to look
guilty. The petitioner, again, has presented no evidence to establish that those telephone records had
been falsified. The petitioner has failed to show that his attorney was ineffective by failing to
investigate the telephone records because the petitioner has failed to show, in light of the other
evidence at trial, that such records would establish anything that could have changed the result of
his trial. The state court of appeals, which addressed this claim on direct appeal, did not
unreasonably apply Strickland in rejecting his ineffective assistance of counsel claim. See Davis v.
Burt, 100 F. App’x 340, 346-47 (6th Cir. 2004).
16.
The petitioner next contends that his trial counsel was ineffective by failing to move to
suppress evidence found in the petitioner’s car and home following the execution of a search warrant
that he claims was invalid because it was based on cell phone records that allegedly were seized
illegally. To prove that counsel’s failure to litigate a Fourth Amendment claim competently
amounted to ineffective assistance, the petitioner must also prove that his Fourth Amendment claim
is meritorious and that there is a reasonable probability that the verdict would have been different
absent the excludable evidence. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
The petitioner has not offered any evidence to establish that the police illegally seized the
cell phone records that were used to obtain the search warrant. Moreover, the only evidence seized
as the result of these searches were books that the petitioner had purchased relating to fooling the
police and changing one’s identity. There was overwhelming evidence of the petitioner’s guilt even

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in the absence of the books. Therefore, there is no reasonable probability that the verdict would
have been different had this evidence been suppressed.
17.
The petitioner argues that counsel was ineffective by failing to object to the testimony of a
process server, who was the object of intense anger by the petitioner for serving him with Friend of
the Court papers in an earlier case. This evidence was relevant and admissible to show the
petitioner’s attitude toward Friend of the Court matters. The failure to object to relevant and
admissible evidence is not ineffective assistance of counsel. Alder v. Burt, 240 F. Supp. 2d 651, 673
(E.D. Mich. 2003).
18.
The petitioner contends that trial counsel should have objected to the introduction of autopsy
photographs. The photographs of the murder victim were most likely admissible to prove the
petitioner’s intent to kill and the extent of the injuries to the victim. Therefore, counsel was not
ineffective for failing to object to their admission. Skrzycki v. Lafler, 347 F. Supp. 2d 448, 455-56
(E.D. Mich. 2004).
19.
In his eleventh claim, the petitioner alleges that his appellate counsel was ineffective by
failing to raise on direct appeal the twenty-nine issues that the petitioner raised in his motion for
relief from judgment and by failing adequately to move for a Ginther hearing on the ineffective
assistance of trial counsel claims that were raised on direct appeal.
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel
on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). However, appellate

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counsel does not have a constitutional duty to raise every nonfrivolous issue requested by a
defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983). None of the ineffective assistance of trial
counsel claims raised by the petitioner have any merit. “Appellate counsel cannot be found to be
ineffective for ‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones, 615 F.3d 448, 452
(6th Cir. 2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Because none of
those claims can be shown to be meritorious, appellate counsel was not ineffective in his handling
of the petitioner’s direct appeal. Petitioner is not entitled to habeas relief on his ineffective
assistance of appellate counsel claim.
D.
In his fifth claim, the petitioner contends that he was denied his right to due process when
the trial court failed to provide an adequate pretrial or trial court record, thus obstructing full and
fair appellate review.
The Sixth Circuit has stated that “federal habeas relief based on a missing transcript will only
be granted where the petitioner can show prejudice.” Scott v. Elo, 302 F.3d 598, 604 (6th Cir. 2002)
(citing Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986)). Although the Sixth Circuit has
recognized the difficulty in demonstrating prejudice where the transcripts are missing, a habeas
petitioner must nonetheless “present something more than gross speculation that the transcripts were
requisite to a fair appeal.” Bransford, 806 F.2d at 86.
The petitioner has offered this Court nothing more than speculation that his appellate counsel
was not provided with the entire court record or that there was additional information that would
have assisted him with his appeal. Therefore, the petitioner is not entitled to habeas relief on his
fifth claim.

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E.
In his seventh claim, the petitioner contends that he was deprived a fair trial because of
prosecutorial misconduct. The “clearly established Federal law” relevant to a habeas court’s review
of a prosecutorial misconduct claim is the Supreme Court’s decision in Darden v. Wainwright, 477
U.S. 168, 181 (1986). Parker v. Matthews, --- U.S. ---, 132 S. Ct. 2148, 2153 (2012). In Darden,
the Supreme Court held that a “prosecutor’s improper comments will be held to violate the
Constitution only if they ‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’” Ibid. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In
assessing the petitioner’s claims under 28 U.S.C. § 2254, this Court must ask whether the Michigan
court’s decisions denying the petitioner’s prosecutorial misconduct claims “‘w[ere] so lacking in
justification that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.’” Id. at 2155 (quoting Harrington, 562 U.S. at 103). And
the Court must keep in mind that “the Darden standard is a very general one, leaving courts ‘more
leeway . . . in reaching outcomes in case-by-case determinations . . . .’” Ibid. (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)).
The petitioner argues that the prosecutor committed misconduct by introducing evidence to
demonstrate that the petitioner’s motive for killing his daughter was to avoid paying child support,
and evidence showing the petitioner’s consciousness of guilt. The petitioner further contends that
the prosecutor made improper statements about the petitioner’s financial situation, namely, that he
was in bankruptcy. The Michigan Court of Appeals rejected the petitioner’s claims, finding that this
evidence was all relevant to establish the petitioner’s intent, his identity, and his motive to commit
the crime. People v. Kelly, 2006 WL 3613638, at *1-2, 5.

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Although the petitioner has framed these claims as a prosecutorial misconduct challenge,
they amount “in the end to a challenge to the trial court’s decision to allow the introduction of this
evidence.” Webb v. Mitchell, 586 F.3d 383, 397 (6th Cir. 2009). “A prosecutor may rely in good
faith on evidentiary rulings made by the state trial judge and make arguments in reliance on those
rulings.” Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008). It is “not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire,
502 U.S. 62, 67-68 (1991). A federal court is limited in federal habeas review to deciding whether
a state court conviction violates the Constitution, laws, or treaties of the United States. Ibid. Errors
in the application of state law, especially rulings regarding the admissibility of evidence, are usually
not questioned by a federal habeas court. Seymour, 224 F.3d at 552. The Michigan Court of
Appeals concluded that all of this evidence was relevant and admissible. The Sixth Circuit has
observed that “the Supreme Court has never held (except perhaps within the capital sentencing
context) that a state trial court’s admission of relevant evidence, no matter how prejudicial,
amounted to a violation of due process.” Blackmon v. Booker, 696 F.3d 536, 551 (6th Cir. 2012).
The petitioner is not entitled to relief on this claim.
The petitioner also alleges that the prosecutor coerced Evern Charleston and Cora Ivey into
giving false testimony at the petitioner’s trial to discredit the petitioner’s alibi defense. To establish
a claim of witness intimidation, a defendant must demonstrate “government conduct which amounts
to substantial interference with a witness’s free and unhampered determination to testify,” and must
prove that any inappropriate conduct was not harmless. United States v. Foster, 128 F.3d 949, 953
(6th Cir. 1997). A defendant who contends that he was denied due process of law by government
intimidation of defense witnesses must establish, as a “threshold matter,” that the actions of the

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government “worked to deprive him of a witness who would have testified on his behalf.” Wynne
v. Renico, 279 F. Supp. 2d 866, 888 (E.D. Mich. 2003); rev’d on other grds 606 F.3d 867 (6th Cir.
2010) (quoting United States v. Stewart, 820 F.2d 370, 375 (11th Cir. 1987)).
The petitioner’s witness intimation claim fails because there is no showing that either Mr.
Charleston or Ms. Ivey were prevented from testifying for the defense. Instead, both witnesses
simply chose to testify for the prosecution. That does not establish a witness intimidation claim.
See Johnson v. Bell, 525 F.3d 466, 480 (6th Cir. 2008). Moreover, because both witnesses testified
at trial, both the prosecutor and defense counsel were able to explore the circumstances of their prior
statements, in which they indicated that the petitioner was at the gym at the time of the murder.
Significantly, defense counsel was able to question Charleston and Ivey about their earlier
statements, which exculpated the petitioner. Therefore, the petitioner has failed to show that the
prosecutor interfered with a defense witness. Id. at 481.
As part of his ineffective assistance of counsel claim, the petitioner contends that the
prosecutor committed misconduct by arguing that the petitioner had an issue with women and his
female children and for describing the wounds inflicted by the petitioner on his daughter. He
characterizes that argument as a misrepresentation of the facts.
A prosecutor’s misrepresentation of facts can amount to substantial error because doing so
“may profoundly impress a jury and may have a significant impact on the jury’s deliberations.”
Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000) (quoting Donnelly v. DeChristoforo, 416
U.S. at 646). Likewise, it is improper for a prosecutor during closing arguments to present
information that has not been introduced into evidence and that is prejudicial. Byrd v. Collins, 209
F.3d 486, 535 (6th Cir. 2000). However, prosecutors must be given leeway to argue reasonable

-28-

inferences from the evidence. Ibid. In the present case, there was an evidentiary basis for the
prosecutor’s arguments, and therefore her comments were not misconduct.
F.
In his eighth claim, the petitioner contends that the prosecutor improperly withheld
exculpatory evidence with respect to certain telephone records. The state court of appeals rejected
that claim, finding that defense counsel “admits that he received a copy of the telephone records
before trial and that he was aware of the alleged inaccuracies in the records.” People v. Kelly, 2006
WL 3613638, at *7. The court, citing Brady v. Maryland, 373 U.S. 83 (1963), determined that no
due process violation occurred because there was no failure to disclose. Id. at *8.
That court faithfully applied Brady. Suppression by the prosecution of evidence favorable
to the defendant upon request violates the Due Process Clause where evidence material to either
guilt or punishment of the defendant is withheld, irrespective of the good or bad faith of the
prosecution. Brady, 373 U.S. at 87. There are three components of a Brady violation: (1) the
evidence at issue must be favorable to the accused, either because it is exculpatory or because it is
impeaching; (2) the evidence must have been suppressed by the state, either willfully or
inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82
(1999).
The petitioner’s Brady claim fails for several reasons because all of the challenged evidence
was disclosed to the petitioner during trial. Brady generally does not apply to the delayed disclosure
of exculpatory information, but only to a complete failure by the prosecutor to disclose such
information. See United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (citations omitted). If
previously undisclosed evidence is disclosed during trial, no Brady violation occurs unless the

-29-

defendant is prejudiced by its nondisclosure. United States v. Word, 806 F.2d 658, 665 (6th Cir.
1986); see also United States v. Bencs, 28 F.3d 555, 560-61 (6th Cir. 1994).
In addition, the petitioner has failed to offer any evidence or argument to show any of this
evidence contained exculpatory material, that is, that it was favorable to him. The burden is on a
habeas petitioner to prove that evidence that is required to be disclosed to him under Brady was not
disclosed to him. Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). Conclusory allegations will not
do. See Burns v. Lafler, 328 F. Supp. 2d 711, 724 (E.D. Mich. 2004). The petitioner is therefore
not entitled to habeas relief on his Brady claim.
G.
In his ninth claim, the petitioner contends that he is entitled to habeas relief because of
cumulative error. The Michigan Court of Appeals rejected this claim on the ground that the
petitioner had “not established that any actual errors occurred.” People v. Kelly, 2006 WL 3613638,
at *8. This Court must reject the petitioner’s claim because the Supreme Court has never held that
cumulative errors may form the basis for issuance of a writ of habeas corpus. Lorraine v. Coyle, 291
F.3d 416, 447 (6th Cir. 2002). The petitioner’s cumulative-error claim, therefore, is not cognizable
on habeas corpus review. Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011) (citing Moore v.
Parker, 425 F.3d 250, 256 (6th Cir. 2005)).
III.
For the reasons stated, the Court finds that the petitioner has not established that he is in
custody in violation of the Constitution or laws of the United States.

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Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 31, 2016

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 March 31, 2016.
s/Susan Pinkowski
SUSAN PINKOWSKI

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