Mitchell v. Booker

Filing 19

MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AARON MITCHELL, # 237440,
Petitioner,

Case Number: 08-CV-14098

v.

Honorable Arthur J. Tarnow

RAYMOND BOOKER,
Respondent.
________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I. INTRODUCTION
This is a habeas case filed by a state prisoner under 28 U.S.C. § 2254. Petitioner Aaron
Mitchell is a state inmate in custody with the Michigan Department of Corrections, pursuant to
jury convictions for two counts of receiving and concealing stolen property over $20,000, two
counts of conspiracy to commit larceny by false personation, one count of conspiracy to commit
identity theft, and two counts of possession of stolen or counterfeit insurance certificates. He
was sentenced to concurrent prison terms of thirty-four months to twenty years for the receivingand-concealing convictions and seventeen months to ten years for the remaining convictions.
Petitioner was paroled on February 3, 2009. Pursuant to the Michigan Department of
Corrections Offender Tracking Information website, Petitioner’s supervision discharge date was
August 3, 2011. To date, Petitioner remains on parole and has not been discharged from his
sentences.
On September 24, 2008, Petitioner filed this pro se Habeas Petition, raising claims
concerning violations of the Confrontation Clause, trial court error in the admission of prior bad

acts evidence, a denial of his right to present a defense, and the effectiveness of trial and
appellate counsel. For the reasons stated, the Court will deny the Petition. The Court also will
decline to issue Petitioner a Certificate of Appealability.
II. BACKGROUND
A. Substantive Facts
Petitioner’s troubles in this case arose because of incidents that occurred in March 2005.
The prosecution’s theory was that Petitioner was actively involved in a scheme to steal the
identity of a client of the insurance agency where he was formerly employed and use that client’s
name and credit history to finance the purchase of two expensive cars. The client, Homer Powell,
was a retiree who had obtained his insurance, for thirty-seven years, from Allstate Insurance
Company, where Petitioner was once employed. The photocopy of the driver’s license Petitioner
provided to finance the purchase of the cars in Powell’s name contained Powell’s name and
address, but the photo of another man and a different date of birth. Powell did not know
Petitioner, did not buy the cars, and had never been to the dealership where the cars were
purchased. He learned that the cars had been purchased in his name in April 2005, when a bank
sent him notices regarding the unpaid loans.
Trial in this case began on February 13, 2006, and concluded on February 15, 2006.
Testimony revealed the following pertinent facts.
Nader Naamou, the owner of a small used car lot, testified that he was contacted by Bilial
Ali in March 2005, about purchasing a car. Ali was an auto broker with whom Naamou had
done business with in the past. On March 12, 2005, Petitioner came to Naamou’s business, with
Ali, in search of a Mercedes. Petitioner told Naamou that his “uncle,” Homer Powell, was

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looking for a car but could not come to the lot to fill out a credit application because he was
disabled. He gave Naamou a photo copy of the forged driver’s license and a copy of Powell’s
credit bureau report. He also provided Naamou with a phone number where he could reach his
“uncle” and verify the information.
Naamou called the number and spoke to a man who claimed to be Powell. He then filled
out a credit application for Powell.
Naamou did not have his own source for financing the purchase of cars. Rather, he had
an arrangement with a larger used car dealership, Park Motor Sales, through which a buyer could
obtain financing. Naamou would prepare the credit application for the buyer and sell the car to
Park Motor Sales. Park Motor Sales would then complete the transaction by securing financing
for the buyer and reselling the car. Park Motor Sales would receive approximately $800 for its
efforts.
Naamou referred the sale of the Mercedes to Park Motor Sales. After the sale had been
approved, Ali contacted Naamou about the purchase of a second car. Naamou then contacted
Park Motors and learned that the purchase of a second car would not be a problem. He relayed
that information to Ali, and Ali and Petitioner returned to buy another car, a Volvo.
Petitioner told Naamou that he would fax the required insurance information necessary to
complete the transaction. He then faxed insurance certificate binders to Naamou. However, the
binders, reflecting insurance issued by Titan Insurance Company, were forged. They contained
actual policy numbers, but the numbers were for policies issued to someone other than Powell.
Naamou’s contact at Park Motors was Frank Badalamente. Naamou told Badalamente
that Powell and his nephew would be coming to Park Motors to purchase the car. On March 25,

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2005, Petitioner arrived at Park Motors with an older man. Petitioner told Badalamente that he
was there with his “uncle,” that his uncle was buying the cars, and that he was just there to help
him out. The used car manager for Park Motor Sales, Gary Ambro, saw Petitioner in the
dealership that day, but he was not involved in the sale. Badalamente completed the transaction
with the man who had identified himself as Powell.
At trial, Badalamente saw Powell. He testified that the man he met on March 25, 2005,
was not Powell. Rather, the man had presented the driver’s license that contained his photo, not
that of the Powell. He said that, as Petitioner sat nearby, the man signed the paperwork and took
the keys to the cars. Badalamente saw Petitioner drive away in one of the cars.
According to Naamou’s testimony, Petitioner called him approximately one week after
the sale. He said he was on vacation in New York and needed to change the address to which
the bills or statements would be sent. Because Naamou was not familiar with the bank that
financed the transaction, Naamou told Petitioner to call Park Motors.
Agent John Tiano of the Office of Inspector General was conducting surveillance in
connection with an investigation involving counterfeit documents when he saw Petitioner
driving both the Mercedes and the Volvo. He saw Petitioner driving the Mercedes on May 24,
2005, and on June 3, 2005, and the Volvo on September 9, 2005. On other occasions, he saw the
cars driven from the house where Petitioner resided, but could not say positively that Petitioner
was the driver.
On August 19, 2005, 1nvestigator Sidney Godley, from the Wayne County Sheriff’s
Department, found the Mercedes. The car was equipped with two tracking devices. According
to the Mercedes Company, the first would allow one to know where the car was located at any

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time. The second allowed the company to listen to conversations within the car. The former
device, not the latter, had been disabled. Using information gleaned from conversations taking
place in the car on that day, Investigator
Godley tracked the car to a restaurant in Dearborn, Michigan. Investigator Godley saw Ali exit
the restaurant and get inside the car. He then arrested him.
During a search of the car, Investigator Godley found Petitioner’s résumé, an application
for employment at Auto Zone containing information about Petitioner, and a Michelin tire book
with Powell’s name, address, and driver’s license number written on it. The résumé indicated
that Petitioner had been employed between 2000 and 2003 as an insurance agent at the agency
where Powell purchased his insurance. The Auto Zone application also indicated that Petitioner
was a licensed insurance agent.
On September 23, 2005, Agent Tiano arrested Petitioner on a federal warrant. Petitioner
was the passenger in his ex-wife’s car at the time of the arrest. A briefcase
was between his legs. In the briefcase, Agent Tiano found an application for a Michigan vehicle
title for the Mercedes that listed Petitioner as the owner and Powell as the seller.
Petitioner told Agent Tiano “I have that in case I get pulled over by the police.” Trial Tr. vol. II,
114 Feb. 14, 2006.
Agent Tiano contacted Investigator Godley, and Godley interviewed Petitioner at Tiano’s
office. Petitioner waived his rights and spoke to Godley, but declined to make a written
statement. Petitioner told Investigator Godley that the Powell imposter was already at Park
Motor Sales when he arrived. He said his job was to oversee the paperwork and make sure
everything was being signed correctly. He said he drove the Mercedes off the lot and Ali’s son

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drove the Volvo. Petitioner told him that the imposter was a homeless drug addict who was paid
about hundred dollars. He said he received $1,000 from Ali.
Petitioner admitted that he faxed the insurance documents to Naamou from a Kinko’s in
Dearborn. He accurately described the location of the insurance agency from which the policy
allegedly originated. He said an older Arabic man gave him the documents, but did not want
him to fax them from his place of business. He told Investigator Godley that he drove the
Mercedes to New York City. He also said he
obtained a spare key to the Volvo and took the car from the parking lot of the school where Ali’s
son attended. He then subleased the car to a drug dealer.
The jury convicted Petitioner.
B. Procedural Facts
Following his sentencing, Petitioner filed a direct appeal with the Michigan Court of
Appeals, raising a claim concerning his Confrontation-Clause rights. Subsequently, through
counsel, the following two additional claims were raised: (1) whether the trial court erred in the
admission of prior bad acts evidence and (2) whether his rights to the compulsory process and to
present a defense were violated. On December 6, 2007, the Court of Appeals affirmed his
convictions and sentences. People v. Mitchell, No. 269141, 2007 WL 4270666 (Mich.Ct.App.
Dec. 6, 2007).
Petitioner then filed an application for leave to appeal the Court of Appeals’s decision
with the Michigan Supreme Court, raising the same claims and adding claims concerning the
effectiveness of trial and appellate counsel. The Supreme Court denied his application. People
v. Mitchell, 480 Mich. 1188, 747 N.W.2d 282 (2008).

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Petitioner neither filed a post-conviction motion with the state trial court nor a petition
for writ of certiorari with the United States Supreme Court. Rather, he filed this Habeas Petition,
raising the same claims raised in both state appellate courts.
III. STANDARD OF REVIEW
28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceedings.
A decision of a state court is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law
or if the state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable
application occurs” when “a state-court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. A federal-habeas court may not “issue the
writ simply because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Id. at 410-11.
Recently, in Harrington v. Richter, --- U.S. ---, 131 S.Ct. 770 (2011), the Untied States
Supreme Court stated: “A state court’s determination that a claim lacks merit precludes federal

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habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington, --- U.S. at ---, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)). The Court further stated:
Section 2254(d) reflects the view that habeas corpus is a “guard against extreme
malfunctions in the state criminal justice systems,” not a substitute for ordinary
error correction through appeal. 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, --- U.S. at ---, 131 S.Ct. at 786-87 (internal citation omitted).
A federal habeas court must presume the correctness of state court factual determinations.
See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and
convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
IV. DISCUSSION
A. No Confrontation-Clause Violation
Petitioner first contends that his right to confront the witnesses against him was violated
when he was not allowed to cross-examine Investigator Godley regarding Godley’s notes of his
interview with him and whether those notes reflected the statements that he had made to him. As
an initial matter, Respondent argues that this claim is procedurally defaulted; the Court of
Appeals procedurally defaulted the claim by reviewing it for plain error because Petitioner did
not make an offer of proof and the record did not indicate the substance of the evidence he
sought to admit. In the alternative, Respondent argues that the claim lacks merit.
A procedural default is not a jurisdictional bar to review of the merits of an issue,
Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal courts are not required to

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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)). Here, the Court deems it more efficient to proceed directly to the merits of Petitioner’s
claim.
“[T]he Confrontation Clause guarantees only ‘an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to whatever
extent, that the defendant might wish.’” United States v. Owens, 484 U.S. 554, 559 (1988)
(citations omitted and emphasis in the original). “Trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the issues, a witness’
safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986).
In this case, the trial court properly exercised its discretion in sustaining two of the
People’s objections during the cross-examination of Investigator Godley. Petitioner’s questions
about the Investigator’s notes of his interview with him would not have elicited impeachment
evidence. The questions involved are as follows: “So, essentially, according to your report and
to what you–you told–you indicated in your notes, Aaron Mitchell’s role was to witness a
transaction?” and “Does your report or do your notes indicate that Aaron Mitchell admitted
having anything to do with the identity–” Trial Tr. vol. II, 138-39 Feb 14, 2006.
In this case, defense counsel attempted to circumvent the requirement that the statements
be offered against the party who made them by framing his questions in terms of whether
Investigator Godley’s notes of an interview with Petitioner reflected his statements. The trial

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court recognized as much and correctly sustained the People’s objections. The trial court, in
explaining its ruling, stated, “Unless it’s impeachment, it would be hearsay, unless you’re
offering it to impeach what the witness testified previously to. Then, you’re offering your own
client’s out of court statement.” Trial Tr. vol. II, 139 Feb 14, 2006.
Investigator Godley had testified that Petitioner told him that the Homer Powell imposter
was already at Park Motor Sales when he arrived, that the imposter was a homeless drug addict,
and that his job was to oversee the paperwork and make sure everything was being signed
correctly. Moreover, Godley had already admitted, during cross-examination, that he did not
write down every single thing.
To the extent that Petitioner’s questions called for Godley’s characterization of the
substance of Petitioner’s statements, the evidence would not have been admissible because the
jurors already had a clear understanding of Godley’s testimony and were fully capable of
drawing their own conclusions from the evidence of Petitioner’s statements. See M.R.E. 701
(which provides that the testimony of a lay witness in the form of inferences is limited to those
inferences that are helpful to a clear understanding of the witness’ testimony or the determination
of a fact in issue); Stewart v. Wolfenbarger, 468 F.3d 338, 347 (6th Cir. 2006) (quoting Dorsey
v. Parke, 872 F.2d 163, 167 (6th Cir. 1989) (where it is merely the extent of cross-examination
that is limited, the trial judge retains a much wider latitude of discretion).
If defense counsel wanted to impeach the Investigator with his notes, he was free to
question him about notations that were inconsistent with his trial testimony. Any effort to
introduce Petitioner’s out-of-court statements as substantive evidence was improper.

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However, even if the trial court had erred in limiting defense counsel’s cross-examination
of the officer, such error was harmless. On habeas review, the proper harmless-error test is the
one articulated in Brecht v Abrahamson, 507 U.S. 619 (1993). Under Brecht, a violation of a
petitioner’s Sixth Amendment rights requires reversal only if it had “substantial and injurious
effect or influence in determining the jury’s verdict.” Id. at 637; Stoner v Sowders, 997 F.2d
209, 213 (6th Cir. 1993) (quoting Brecht, 507 U.S. at 637). Here, the limitation of defense
counsel’s cross-examination of the officer did not likely have a substantial and injurious effect or
influence in determining the jury’s verdict, given the overwhelming evidence against Petitioner,
as described above.
Accordingly, Petitioner is not entitled to habeas relief on this claim.
B. Admission of Prior Bad Acts Evidence Is Noncognizable
Petitioner next claims that the trial court abused its discretion in admitting evidence of
prior convictions as impeachment against him; Petitioner’s 1994 armed-robbery convictions.
Alleged trial court errors in the application of state evidentiary law are generally not
cognizable as grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); Serra v. Michigan Dep’t of Corr., 4 F.3d 1348, 1354 (6th Cir. 1993). Only when an
evidentiary ruling is “so egregious that it results in a denial of fundamental fairness,” may it
violate due process and warrant habeas relief. See Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.
2003); Clemmons v. Sowders, 34 F.3d 352, 356 (6th Cir. 1994).
As to the admission of prior acts, the United States Supreme Court has declined to hold
that similar “other acts” evidence is so extremely unfair that its admission violates fundamental
conceptions of justice. See Dowling v. United States, 493 U.S. 342, 352-53 (1990). Thus,

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“[t]here 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, 329
F.3d 496, 512 (6th Cir. 2003). Consequently, there is no Supreme Court precedent that the statecourt decisions could be deemed “contrary to” under 28 U.S.C. § 2254(d)(1). Id. at 513; see also
Adams v. Smith, 280 F.Supp.2d 704, 716 (E.D. Mich. 2003) (same). Petitioner’s claim that the
state trial court violated Michigan Rule of Evidence 404(b) by admitting the other acts evidence
is not cognizable on habeas review. See also Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007)
(same).
Furthermore, even if Petitioner stated a cognizable claim in this regard, he is not entitled
to relief. Petitioner has not shown that the disputed evidence rendered his trial fundamentally
unfair. As explained by the Michigan Court of Appeals in reviewing this issue under state law,
“the armed[-]robbery conviction was marginally probative on the issue of credibility, and while
old, was not similar to the crimes for which defendant was being tried. Further, defendant
testified and dealt with the issue well.” See Mitchell, 2007 WL 4270666 at *2.
Such testimony was properly admitted under state law for those purposes. Petitioner has
not shown that the admission of this evidence was erroneous or, more importantly, that it
rendered his trial fundamentally unfair. Habeas relief is not warranted.
C. Right to Present a Defense Not Violated
Petitioner next claims that the trial court intimidated his sole potential witness, his exwife Kimberly Mitchell, into not testifying, thereby depriving him of his right to present a
defense. Ms. Mitchell was originally a co-defendant in the case. The Court of Appeals rejected

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this claim on procedural grounds, finding that the claim was waived. However, for the reasons
stated in section IV, A, supra, this Court will address the merits of this claim.
Federal law is clear on the right to present a defense. Just as an accused has the right to
confront the prosecution’s witnesses for the purpose of challenging their testimony, he also has
the right to present his own witnesses to establish a defense. This right is a fundamental element
of the due process of law. Washington v. Texas, 388 U.S. 14, 19 (1967); Crane v. Kentucky, 476
U.S. 683, 690 (1986). However, an accused in a criminal case does not have an unfettered right
to offer evidence that is incompetent, privileged, or otherwise inadmissible under the standard
rules of evidence. Montana v. Egelhoff, 518 U.S. 37, 42 (1996). The Supreme Court gives trial
court judges wide latitude to exclude certain evidence. Id. (quoting Delaware, 475 U.S. at 679).
The Court agrees with the Court of Appeals’s decision. This issue was waived because
Petitioner ultimately withdrew his request to call his ex-wife as a witness. During an exchange
between the trial court and the attorney appointed for Petitioner’s ex-wife, defense counsel
stated, “Judge, defense is going to rest.” Trial Tr. vol. II, 199 Feb. 14, 2006. In response to the
court’s inquiry whether counsel desired to call the witness, counsel stated, “I’m not going to call
her.” Id. The court then stated, “So defense is going to waive the–Miss Kimberly Mitchell as
well as all remaining witnesses.” Id. Counsel responded, “That’s true, Judge.” Id. By
withdrawing his request, Petitioner waived any error.
Waiver is an “intentional relinquishment or abandonment of a known right.” United
States v. Olano, 507 U.S. 725, 733 (1993) (citations omitted). One who waives his [or her]
rights under a rule may not then seek appellate review of a claimed deprivation of those rights,
for his waiver has extinguished any error. Id. at 731. Forfeiture is “the failure to make the

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timely assertion of a right” and, unlike waiver, forfeiture does not extinguish an error. Id. at 732.
The court need not directly address the issue to the defendant, nor is defendant required to
personally waive objection. The waiver must, however, arise out of voluntary affirmative
conduct–it must be an intentional relinquishment or abandonment. The Court of Appeals
properly determined that this claim was waived at trial. However, even if Petitioner had not
waived the issue, no error occurred that would necessitate habeas relief.
Even if the trial court may have been mistaken about the possibility of the prosecution
reinstating the dismissed charges against Petitioner’s ex-wife, the trial court correctly informed
her and her attorney that her testimony might lead to new charges and might affect her probation
because anything she said could be used against her. Appointed counsel then met with the
witness. While counsel disagreed with the court over the prosecution’s ability to reinstate the
dismissed charges, she correctly observed that the witness’ testimony might affect the possibility
of any appeal and would expose her to civil liability by effectively negating her no-contest plea.
The trial court did not, as Petitioner asserts, intimidate the witness into not testifying. The trial
court simply ensured that the witness had the benefit of counsel and an understanding of the
ramifications of testifying before deciding whether to testify.
Although the witness never had to make that decision because Petitioner elected not to
call her, she could have invoked her privilege against self-incrimination because the period for
filing an application for leave to appeal from her conviction had yet to expire and her testimony
may well have exposed her to other state and federal charges. Her decision to do so would not
have infringed on Petitioner’s right to present a defense because he has no right to compel a
witness to waive her privilege against self-incrimination. See Kastigar v. United States, 406

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U.S. 441, 444 (1972) (a defendant’s right of confrontation and compulsory process under the
Sixth Amendment is not violated when a witness invokes his or her right against
self-incrimination under the Fifth Amendment); see also, e.g., United States v. Blaylock, 421
F.3d 758, 770 (8th Cir. 2005) (a defendant’s Sixth Amendment right to compulsory process does
not include the right to compel a witness to waive his or her Fifth Amendment privilege).
Against that backdrop, the Court concludes that Petitioner is not entitled to habeas relief
regarding this claim.
D. Appellate Counsel Not Ineffective
Petitioner next claims that he was deprived of his right to the effective assistance of
appellate counsel by the actions or inactions of his first appellate counsel.
The right to the effective assistance of counsel includes the right to the effective
assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 3 87, 396 (1985). To prevail on a
claim of ineffective assistance of appellate counsel, 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).
Petitioner claims that his first appellate counsel did not interview him prior to filing his
appellate brief and that the brief did not contain issues that he wanted to have raised on direct
appeal. However, the record in this case indicates that, when Petitioner brought these complaints
to the attention of appellate counsel, appellate counsel admitted his improper handling of
Petitioner’s case and filed a motion to withdraw, which was granted. New appointed appellate
counsel then filed a motion to hold the appeal in abeyance so he could file a supplemental brief,
which the Court of Appeals granted on May 10, 2007. A supplemental brief was filed, raising

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two additional claims. Petitioner does not appear to be claiming that his second appellate
counsel was ineffective.
Petitioner has not demonstrated how he was prejudiced by the ineffectiveness of his first
appellate counsel. While he makes vague references to being “denied the opportunity to file
post-trial motions,” he does not detail how this prejudiced him. Therefore, he is not entitled to
habeas relief regarding this claim.
E. Trial Counsel Not Was Ineffective
Finally, Petitioner alleges that trial counsel was ineffective for failing to discuss trial
strategy with him, for failing to request a hearing when he never confessed, and for failing to
research and urge for the enforcement of legal protections for him as a result of an immunity
agreement. Respondent argues that this claim is unexhausted. The Court agrees.
Generally, a federal district court should dismiss a “mixed” petition for writ of habeas
corpus, that is, one containing both exhausted and unexhausted claims, “leaving the prisoner
with the choice of returning to state court to exhaust his claims or amending and resubmitting the
habeas petition to present only exhausted claims to the district court.” Rose v. Lundy, 455 U.S.
509, 510 (1982). While the exhaustion requirement is strictly enforced, it is not a jurisdictional
prerequisite for bringing a habeas petition. See Granberry v. Greer, 481 U.S. 129, 134-35
(1987). A habeas petition may be denied on the merits despite the failure to exhaust state-court
remedies, if pursuit of a state court remedy would be futile, see Witzke v. Withrow, 702 F.Supp.
1338, 1348 (W.D. Mich. 1988), or if the unexhausted claim is meritless such that addressing it
would be efficient and not offend federal-state comity. 28 U.S.C. § 2254(b)(2); Prather v. Rees,

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822 F.2d 1418, 1422 (6th Cir. 1987). The Court concludes that the interests of justice are best
served by ruling on the Petition because the claim lacks merit.
“The Sixth Amendment guarantees criminal defendants the effective assistance of
counsel. That right is denied when a defense attorney’s performance falls below an objective
standard of reasonableness and thereby prejudices the defense.” Yarborough, 540 U.S. at 5
(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland, 466 U.S. at 687).
To establish deficient performance, a defendant must show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687. “Judicial scrutiny of counsel’s performance must be
highly deferential.” Id. at 689. To demonstrate that counsel’s performance prejudiced the
defense, a defendant 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 sufficient to undermine confidence in the outcome.” Id. at 694. “Unless a defendant
makes both showings [deficient performance and resulting prejudice], it cannot be said that the
conviction . . . resulted from a breakdown in the adversary process that renders the result
unreliable.” Id. at 687.
Petitioner alleges the following against trial counsel: his meetings with trial counsel took
place in the courthouse and lasted for about five minutes, he provided counsel with a list of
witnesses, who were not questioned or called to testify, and he had not made a statement to the
police and counsel failed to investigate that fact.
This Court’s scrutiny of counsel’s performance is highly deferential, “the court should
recognize that counsel is strongly presumed to have rendered adequate assistance and made all

17

significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S.
at 689-90; accord Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir. 2004). Petitioner attempts to
rebut this presumption by arguing that counsel’s trial strategy was not reasonable because he did
not communicate properly with him. Because Petitioner did not move for an evidentiary hearing
regarding his claim that counsel was allegedly ineffective,1 it is difficult to discern from the
record exactly how much time counsel spent with Petitioner. However, the Court finds that the
record demonstrates that counsel vigorously defended Petitioner and met with him as needed.
Counsel filed and argued various motions on Petitioner’s behalf; for discovery, to quash
information, to suppress statements, for a mistrial, to dismiss the case, and for a directed verdict.
Counsel’s failure to meet with Petitioner as much as he wanted does not make counsel’s
performance unreasonable under the facts of this case. There is no constitutionally prescribed
minimum time that an attorney must meet with a client and discuss trial strategy. Further, even
accepting Petitioner’s allegations as true, he has failed to demonstrate how additional
consultation with counsel would have changed the outcome of the trial.
Petitioner’s remaining assertions of ineffectiveness are completely unsupported by the
record in this case. As such, Petitioner has not even made a minimal showing of either deficient
performance or prejudice in that the result of his trial would have been different under
Strickland.

1

Under Michigan law, to develop the factual basis of his ineffective assistance of counsel
claim Petitioner was required to file a motion for a new trial and evidentiary hearing in the trial
court or a motion to remand for that purpose in the Court of Appeals. See People v. Ginther, 390
Mich. 436, 443-44, 212 N.W.2d 922, 925 (1973); People v. Gray, 125 Mich.App. 482, 486, 336
N.W.2d 491, 493 (1983). Here, neither the Court of Appeals materials submitted by Respondent
nor the trial court docket sheet reflects the filing of a motion for an evidentiary hearing on any
claim.

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Accordingly, the Court concludes that Petitioner is not entitled to habeas relief with
respect to his ineffective-assistance-of-trial-counsel claim.
F. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless
a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules
Governing Section 2254 Proceedings, which was amended as of December 1, 2009, requires that
a district court must “issue or deny a [COA] when it enters a final order adverse to the applicant .
. . If the court issues a certificate, the court must state the specific issue or issues that satisfy the
showing required by 28 U.S.C. § 2253(c)(2).” Rule 11, Rules Governing Section 2254
Proceedings.
A COA may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Courts must either issue a COA indicating which
issues satisfy the required showing or provide reasons why such a certificate should not issue.
28 U.S.C. § 2253(c)(3); Fed.R.App.P. 22(b); In re Certificates of Appealability, 106 F.3d 1306,
1307 (6th Cir. 1997). To receive a COA, “a petitioner must show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotes and citations omitted).
The Court finds that no reasonable jurist would debate about the Court’s resolution of
Petitioner’s claims. Therefore, the Court declines to issue Petitioner a COA with respect to all of
his claims.

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V. CONCLUSION
IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED that the Court declines to issue Petitioner a Certificate of
Appealability.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: September 12, 2011
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on September 12, 2011, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Secretary

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