Meridy v. Ludwick

Filing 30

OPINION and ORDER Denying Petition for Writ of Habeas Corpus 1 and Denying Certificate of Appealability. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EDWIN DANTREL MERIDY,
Case Number: 2:08-CV-15249

Petitioner,

HON. DENISE PAGE HOOD

v.
NICK J. LUDWICK,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Edwin Daniel Meridy filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Petitioner, who is a state inmate currently incarcerated at
the Mound Correctional Facility in Detroit, Michigan, challenges his convictions
for second-degree murder, felon in possession of a firearm, and felony firearm. He
raises five claims for relief. Respondent argues that several of the claims are
procedurally defaulted and that all of the claims are meritless. For the reasons
stated, the Court denies the petition and denies a certificate of appealability.
I.

Background
Petitioner’s convictions arise from the shooting death of Stephen Kimble

(also known as Steve Man) on August 23, 2004. Before the shooting, Kimble was

hanging out at the Buss Housing Projects in Benton Harbor, with Izear Hall, Jr.,
Demarcus Greely, Glenn Reed, Petitioner, and several others. See 2/17/05 Tr. At
88 (ECF No. 9-7, Pg. ID 1132). The men were hanging out in the parking lot near
Petitioner’s car. Id. Petitioner and Reed began arguing. Id. at 853-54 (Pg. ID
1137-38). At some point, Petitioner grabbed Reed, who was sitting on the hood of
Petitioner’s vehicle, and threw him off the vehicle. Id. at 854 (Pg. ID 1138).
Kimble approached and defended Reed. Id. at 854-55 (Pg. ID 1138-39). Kimble
argued with Petitioner and several others who attempted to act as peacemakers. Id.
Kimble reportedly told Reed to get a gun. See 2/16/05 Tr. at 639, 652 (Pg. ID 923,
936). Eventually, Greely calmed everyone down. 2/17/05 Tr. at 856 (ECF No. 97, Pg. ID 1140). Hall and Kimble then left the area to purchase alcohol. Id. at
856-57 (Pg. ID 1140-41). They returned to the parking lot ten to fifteen minutes
later. Id. at 859 (Pg. ID 1143). Kimble showed Hall a sawed off rifle, which he
placed in a barbeque grill so no one would steal it. Id. at 862 (Pg. ID 1146).
According to Hall, he then heard a gunshot. Id. He saw Petitioner walking toward
them with a gun in his hand. Id. at 863 (Pg. ID 1147). Kimble ran around the car,
chased by Petitioner. Id. at 864 (Pg. ID 1148). Hall heard another gunshot. Id.
Kimble ran between two buildings; Petitioner followed him. Id. at 867 (Pg. ID
1151). Hall lost sight of the men but heard four more gunshots. Id. Petitioner
2

returned to the parking lot alone, still holding the gun. Id. He then left the area.
Id.
Calvin Bowman testified that he woke up in the middle of the night on the
night of the shooting, looked out the window, and saw Petitioner shoot Kimble.
See 2/15/05 Tr. at 499-505 (ECF No. 9-5, Pg. ID 783-789). Sonya Bridgeman
testified that she was walking through the entrance to the housing projects when
she heard four or five gunshots. Id. at 557 (Pg. ID 841). She saw Petitioner
running away as she was entering. Id. at 560 (Pg. ID 844). He told her not to enter
because “[t]hey shooting.” Id.
Police responded to the report of gunfire. They searched the area but,
hindered by the lack of lighting, failed to find Kimble. See 2/16/05 Tr. at 801 (ECF
No. 9-6, Pg. ID 1085). Sometime later, a resident found Kimble’s body and police
returned to the area. See 2/15/05 Tr. at 388 (ECF No. 9-5, Pg. ID 672). He had
been shot at least four times. See 2/14/05 Tr. at 278 (ECF No. 9-4, Pg. ID 562).
The spent bullets recovered from Kimble’s body were consistent with a .38 caliber
gun. A sawed-off .22 caliber bolt-action rifle was recovered hidden in a barbeque
grill not far from where Kimble was shot. 2/16/05 Tr. at 743, 745 (ECF No. 9-6,
Pg. ID 1027, 1029). That rifle, however, could not have fired the spent bullets
recovered from Kimble’s body. Id.
3

Petitioner testified in his own defense at trial. He admitted pulling Reed off
of his car. 2/17/05 Tr. at 1090-92 (ECF No. 9-7, Pg. ID 1376-78). He denied
shooting Kimble and testified that, at the time of the shooting, he was at his
girlfriend’s house. Id. at 1098-1100 (Pg. ID 1383-1385).
Following a jury trial in Berrien County Circuit Court, Petitioner was
convicted of second-degree murder, felon in possession of a firearm, and
possession of a firearm during the commission of a felony. On March 28, 2005, he
was sentenced to 35 to 75 years’ imprisonment for the second-degree murder
conviction, 3 to 10 years’ imprisonment for the felon-in-possession conviction, and
2 years’ imprisonment for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising
the following claims: (i) insufficient evidence; (ii) verdict against the great weight
of the evidence; (iii) trial court errors denied Petitioner a fair trial; (iv)
prosecutorial misconduct; (v) ineffective assistance of trial counsel; and (vi) newly
discovered evidence warrants a new trial. Petitioner presented a pro per
supplemental brief raising these additional claims: (i) ineffective assistance of trial
and appellate counsel; (ii) prosecutorial misconduct; (iii) lack of credible evidence
to support the testimony of Mr. Bowman or Mr. Hall; (iv) inaccurate information
relied on in sentencing; and (v) Blakely violation. The Michigan Court of Appeals
4

affirmed Petitioner’s convictions. People v. Meridy, No. 262371, 2007 WL
1429630 (Mich. Ct. App. May 15, 2007).
Petitioner filed an application for leave to appeal in the Michigan Supreme
Court. He raised the same claims raised in the Michigan Court of Appeals. The
Michigan Supreme Court denied leave to appeal. People v. Meridy, 481 Mich. 876
(Mich. May 27, 2008).
Petitioner then filed a habeas corpus petition. He also filed a motion to hold
the petition in abeyance, which the Court granted. See 3/4/11 Order (ECF No. 13).
Petitioner filed a motion for relief from judgment in the trial court. He raised
these claims: (i) new trial should be granted on the basis of recanting witness
affidavit; and (ii) verdict form did not give jury the option of finding Petitioner not
guilty of second-degree murder and appellate counsel was ineffective in failing to
raise this claim. The trial court denied the motion. See 3/12/12 (Order, ECF No.
26-9). The Michigan Court of Appeals denied Petitioner’s application for leave to
appeal, People v. Meridy No. 309341 (Mich. Ct. App. Sept. 23, 2013), as did the
Michigan Supreme Court. People v. Meridy, 495 Mich. 917 (2013).
Petitioner moved for this Court to reopen the habeas corpus proceeding. The
Court granted the motion. See 5/24/14 Order (ECF No. 17). Petitioner filed an
amended petition and Respondent filed an answer in opposition. The petition
5

raises these claims:
I.

Petitioner was deprived of his constitutional right to a fair and
impartial trial, contrary to state and federal law, by the admission of
five autopsy photographs of the victim that were not relevant to prove
a material fact in the case, and where any probative value of the
evidence was substantially outweighed by the danger of unfair
prejudice to the defense.

II.

Petitioner was deprived of his constitutional right to a fair trial, due to
the cumulative effects of egregious prosecutorial misconduct that was
clearly intended to impermissibly vouch for Petitioner’s guilt,
denigrate the defense, bolster the integrity of the investigation, and
mislead the jury to convict for improper reasons.

III.

Petitioner was deprived of his constitutional right to a jury trial
because the jury was not given the choice of finding him not guilty of
the specific crime of second-degree murder, the offense he was
eventually convicted of, where the trial court’s oral instructions and
the jury verdict form left only one option for the jury to choose –
guilty of second-degree murder.

IV.

Petitioner was denied his right to effective assistance of counsel, at
trial and on appeal, and his due process right to a full and adequate
direct appeal, due to the constitutionally deficient actions and
omissions of his attorneys, and when an “off-the-record” bench trial
conference regarding the jury-verdict form was not transcribed for
appeal.

V.

Petitioner was denied his constitutional right to a fair trial and due
process of the law, where new reliable evidence that undermines the
confidence in the verdict reveals that his conviction for second-degree
murder was procured through the use of perjured testimony by two
key witnesses who were threatened and coerced by police
investigators, one who has been convicted and sentenced to prison on
corruption-based charges, and where Petitioner can make out a viable
claim that he is actually innocent of the crimes he stands convicted of.
6

II.

Standard of Review
Review of this case is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Under the AEDPA, a state prisoner is entitled to
a writ of habeas corpus only if he can show that the state court’s adjudication of his
claims –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
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 (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 408. “[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
7

incorrectly.” Id. at 411.
The Supreme Court has explained that “[a] federal court’s collateral review
of a state-court decision must be consistent with the respect due state courts in our
federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 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) quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7
(1997); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). “[A] state
court’s determination that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The Supreme Court
has emphasized “that even a strong case for relief does not mean the state court's
contrary conclusion was unreasonable.” Id. at 102. Furthermore, pursuant to §
2254(d), “a habeas court must determine what arguments or theories supported or
... could have supported, the state court's decision; and then it must ask whether it
is possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of th[e Supreme] Court.” Id.
Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not
completely bar federal courts from relitigating claims that have previously been
8

rejected in the state courts, it preserves the authority for a federal court to grant
habeas relief only “in cases where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with” Supreme Court precedent.
Id. Indeed, “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.” Id. quoting Jackson v. Virginia, 443
U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring)). Therefore, in order to obtain
habeas relief in federal court, a state prisoner is required to show that the state
court’s rejection of his claim “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103, 131 S. Ct. at 786–87.
Additionally, a state court’s factual determinations are entitled to a
presumption of correctness on federal habeas review. See 28 U.S.C. § 2254(e)(1).
A petitioner may rebut this presumption with clear and convincing evidence. See
Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Moreover, habeas review
is “limited to the record that was before the state court.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011).
III.

Discussion
A.

Claim One: Admission of Autopsy Photographs
9

In his first claim for habeas relief, Petitioner argues that the admission of
autopsy photographs denied him his right to a fair trial. He argues that the
photographs were irrelevant and that their probative value was substantially
outweighed by their unfair prejudice to Petitioner. Respondent argues that this
claim is procedurally defaulted. The Court finds that the interests of judicial
economy are best served by addressing the merits of this claim. See Hudson v.
Jones, 351 F.3d 212, 215 (6th Cir. 2003), citing Lambrix v. Singletary, 520 U.S.
518, 525 (1997) (“[F]ederal courts are not required to address a procedural-default
issue before deciding against the petitioner on the merits.”).
The Michigan Court of Appeals held that the admission of these photographs
was proper under Michigan Rule of Evidence 403 because the photographs were
relevant and not unfairly prejudicial. People v. Meridy, 2007 WL 1429630 at *2.
The Sixth Circuit has held that the introduction of graphic photographs of a victim
in a murder case does not offend the Constitution when there is some legitimate
evidentiary purpose for the photographs’ admission. See, e.g., Biros v. Bagley, 422
F.3d 379, 391 (6th Cir. 2005) (upholding the admission of photographs depicting a
victim’s severed head, severed breast, and severed body parts placed near the
victim’s torso); Frazier v. Huffman, 343 F.3d 780, 789 (6th Cir. 2003) (finding
acceptable the admission of multiple photographs of the victim used to illustrate
10

the nature of the encounter preceding the victim’s death); Cooey v. Coyle, 289 F.3d
882, 893 (6th Cir. 2002) (observing that “although the photographs were
gruesome, they were highly probative”).
Here, the photographs were relevant to illustrate the pathologist’s testimony
regarding his autopsy of the victim. The pathologist used the photographs to
illustrate the nature of Petitioner’s injuries and the path of the bullets. The
photographs were less inflammatory than those in Biros, and related to the
circumstances surrounding the shooting. Biros, 422 F.3d at 391. Petitioner has not
established a due process violation arising from admission of the photographs.
B.

Claim Two: Prosecutorial Misconduct

Petitioner’s second claim for relief raises allegations of prosecutorial
misconduct. Specifically, Petitioner claims that the prosecutor committed
misconduct by vouching for the honor and prestige of the police, denigrating the
defense by disparaging Petitioner’s decision to proceed to trial, eliciting improper
testimony, and arguing facts not in evidence.
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, 567 U.S. 37, 45 (June
11, 2012). In Darden, the Supreme Court held that a “prosecutor’s improper
11

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.’”
Darden, 477 U.S. at 181, quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974). This Court must ask whether the Michigan Court of Appeals’ decision
denying Petitioner’s prosecutorial misconduct claims “‘was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.’” Parker, 567 U.S. at 47,
quoting Harrington, 562 U.S. at 103.
First, Petitioner argues that the prosecutor committed misconduct by
vouching for the integrity and bravery of the police during voir dire. After a
prospective juror noted that several family members had previously been arrested,
the prosecutor asked if the prospective juror had any feelings about the Benton
Harbor Police Department. 2/14/05 Tr. at 72 (ECF No. 9-4, Pg. ID 356). The
prospective juror responded that he did not. Id. The prosecutor asked: “Would
you agree that they’re brave individuals who are trying to do a very difficult job?”
Id. at 72-73 (Pg. ID 356-57). The prospective juror agreed. Id. The Michigan
Court of Appeals noted that the voir dire process is designed to uncover bias and
that the prosecutor’s question addressed that goal. Meridy, 2007 WL 1429630 at
*3. The prosecutor did not improperly vouch for the truth of the police witnesses
12

or imply that he had an special knowledge regarding the integrity of the police
department. The state court’s conclusion that this was a fair question is reasonable.

Next, Petitioner argues that the prosecutor commented negatively on
Petitioner’s decision to proceed to trial when, during voir dire, he engaged in the
following exchange with a prospective juror:
Prosecutor:

... [H]as anyone in your family or someone close to you,
which includes yourself, had any contact with the police
in an enforcement way in say the last four to five years?

Prospective Juror: As far as a ticket or anything?
Prosecutor:

Anything.

Prospective Juror: Yes. I had a ticket once about three years ago for an open
container.

Prosecutor:

***
... [W]hat was the outcome of it?

Prospective Juror: The outcome of it was is I was guilty of having an open
container. I pled guilty and I paid the ticket.
Prosecutor:

Do you think that people who are charged with crimes
and they know that they’re guilty, apparently you felt in
this case, that they should step up and take responsibility
for their actions or do you think that they should always
just drag out the process and see what they can get?

Prospective Juror: I don’t know. I think that if you do something then you
should be able to admit it. Or – if you didn’t do it, or if I
wasn’t guilty I would have fought it.
13

Prosecutor:

Okay. Thanks for your answer. I appreciate it.

2/14/05 Tr. at 112-13 (ECF No. 9-4, Pg. ID 396-97.
The Michigan Court of Appeals held that, considered in context, the
prosecutor’s remarks were not improper. Meridy, 2007 WL 1429630 at *3. The
state court noted that the prosecutor’s questions were not directed at Petitioner and
did not denigrate Petitioner or vouch for his guilt. Id. Instead, the remarks, were a
“general query as to whether the jury believed that people should assume
responsibility for their actions.” Id. It is improper for a prosecutor to argue that a
defendant’s refusal to plead guilty evidences a failure to take responsibility for his
or her actions. See United States v. Ochoate-Zarate, 540 F.3d 613, 617-18 (7th
Cir. 2008); United States v. Smith, 934 F.2d 270, 275 (11th Cir. 1991). Here, the
prosecutor did not connect his comments to Petitioner in any way and did not
attempt to use Petitioner’s decision to proceed to trial as evidence of Petitioner’s
guilt. It is clear from the context that the prosecutor’s questions were designed to
uncover any bias the prospective juror may have had based upon his prior
experience with law enforcement. The Court finds the Michigan Court of Appeals’
decision denying this claim is neither contrary to nor an unreasonable application
of Supreme Court precedent.
Next, Petitioner argues that the prosecutor engaged in misconduct by
14

referencing the possibility that witnesses might be reluctant to testify and asking
potential jurors during voir dire to consider possible explanations for a witness’s
reluctance to testify. The Michigan Court of Appeals reasonably found that the
prosecutor’s comments were relevant to the jury’s determination of the witnesses’
credibility. Meridy, 2007 WL 1429630 at *3. It is not improper for a prosecutor to
explore a witness’s motive for testifying which may bear upon credibility
determinations. See United States v. Akins, 237 F. App’x 61, 64 (6th Cir. 2007).
The prosecutor’s statement that there might be many reasonable explanations for a
witness’s reluctance to cooperate with police was designed to uncover possible
biases potential jurors might have in assessing the credibility of uncooperative
witnesses. The court of appeals’ decision was not “so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
Petitioner also claims that the prosecutor improperly elicited testimony from
Petitioner’s cousin, Brandon Hipps, about whether Petitioner denied shooting the
victim. The Michigan Court of Appeals did not directly address this question, but
generally found no prosecutorial misconduct. The state court’s denial of this claim
is entitled to deference under § 2254(d), because where a state court denies a claim
on the merits but without explanation, a habeas court must nevertheless afford
15

deference to the state court’s decision (rather than just its reasoning). Harrington,
562 U.S. at 102. The record shows that Hipps testified that Petitioner was at his
own home at the time of the shooting. Hipps also testified that he never heard
Petitioner deny being the shooter. This contradicted Hipps’ statement to police.
Several months after the shooting, police interviewed Hipps about the murder.
During the recorded interview, Hipps stated that Petitioner denied shooting the
victim. The trial court allowed a portion of the taped interview to be played for the
jury as impeachment evidence. Petitioner fails to show how the prosecutor’s
question regarding this impeachment evidence was improper.
Petitioner argues that the prosecutor improperly argued in closing argument
that no witnesses could corroborate Petitioner’s story that Glenn Reed had a gun.
In fact, two witnesses did testify that Reed had a gun. The Michigan Court of
Appeals found that the prosecutor’s argument was a misstatement of the evidence
but found the error harmless. Meridy, 2007 WL 1429630 at *5.
Although a prosecutor is allowed “to argue reasonable inferences from the
evidence,” Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000), he or she is not
permitted to misstate the evidence. Macias v. Makowski, 291 F.3d 447, 452 (6th
Cir. 2002), citing United States v. Carter, 236 F.3d 777, 784 (6th Cir. 2001). The
Court applies the harmless error standard to determine whether prosecutorial
16

misconduct warrants habeas corpus relief. Pritchett v. Pitcher, 117 F.3d 959, 964
(6th Cir. 1997), citing Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979).
On habeas review, an error is harmless unless it had a “‘substantial and injurious
effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507
U.S. 619, 623 (1993), quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946).
The trial court instructed the jurors that the attorneys’ arguments were not
evidence and that the jurors should base their verdict only on the admissible
evidence. Jurors are presumed to follow their instructions. United States v. Olano,
507 U.S. 725, 740 (1993). Darden allows that jury instructions may cure potential
misconduct. See Darden, 477 U.S. at 182 (finding significant that the trial court
“instructed the jurors several times that their decision was to be made on the basis
of the evidence alone, and that the arguments of counsel were not evidence”). In
addition, the prosecutor’s misstatement of the evidence was brief and isolated. It
was not the primary focus of the closing argument. The Michigan Court of
Appeals’ decision that Petitioner was not harmed by the error was reasonable.
Finally, Petitioner claims that the cumulative effect of the prosecutor’s errors
denied him his right to a fair trial. The only proven error is the prosecutor’s
misstatement regarding testimony about whether Glenn Reed carried a gun. As
17

discussed, the state court’s conclusion that the error was harmless was reasonable.
The remaining meritless individual claims of error cannot by accumulation create a
constitutional infirmity. See Campbell v. United States, 364 F.3d 727, 736 (6th
Cir. 2004) (“[T]he accumulation of non-error cannot collectively amount to a
violation of due process.”).
C.

Claim Three: Jury Instructions and Jury Instruction Form

In his third claim for relief, Petitioner argues that the jury instructions and
jury verdict form did not give the jury the option of finding Petitioner not guilty of
second-degree murder. The relevant portion of the jury verdict form read:
POSSIBLE VERDICTS: COUNT 1
You may return only one verdict on this count. Mark only one box.
___ Not Guilty
___ Guilty of First-Degree Premeditated Murder
___ Guilty of the Lesser Offense of Second-degree Murder
3/12/12 Op. & Ord. Denying Def.’s Mot. for Relief from Judgment at 14 (ECF No.
26-9).
The jury was also instructed:
The defendant is charged with three counts. ...
You may find the defendant guilty of all or any combination of these
counts. Guilty of the less serious crime of second-degree murder on
18

Count I, or not guilty. I have prepared a verdict form listing the
possible verdicts. And it is as follows: The People of the State of
Michigan vs. Edwin Dantrel Meridy, possible verdicts, on Count I,
you may mark only one box on this count. Either not guilty or guilty
of first-degree premeditated murder, or guilty of the lesser offense of
second degree murder.
2/18/05 Tr. at 1196-1197 (ECF No. 9-8, Pg. ID 1481-82).
Petitioner raised this claim for the first time in his motion for relief from
judgment in the trial court. The trial court reviewed this claim for plain error
because Petitioner failed to raise this claim on direct review. 3/12/12 Op. & Ord.
at 13 (ECF No. 26-9, Pg. ID 2722). The trial court held that the jury verdict form
was not improper because it allowed the jury to return a general not guilty verdict.
Id. at 15 (Pg. ID 2724).
To obtain habeas relief based on an allegedly improper jury instruction, a
petitioner must show that the instructions, taken as a whole, were “so infirm that
they rendered the entire trial fundamentally unfair.” Doan v. Carter, 548 F.3d 449,
455 (6th Cir. 2008), quoting Austin v. Bell, 126 F.3d 843, 846–47 (6th Cir. 1997).
The issue in the present case is not whether the verdict form or jury instruction was
undesirable or erroneous under Michigan law, but rather whether the verdict form
instruction, by itself, so infected the entire trial that the resulting conviction
violated due process. The jury was correctly instructed in this case that it could
find Petitioner not guilty as to both first-degree murder and second-degree murder
19

both during jury instructions and in the plain text of the verdict form. Nothing in
the instructions or verdict form could be read to mean that the jury did not have the
option of finding Petitioner not guilty of second-degree murder. The state court,
therefore, reasonably rejected this claim.
D.

Claim Four: Ineffective Assistance of Counsel

Petitioner argues that he was denied the effective assistance of trial and
appellate counsel. He argues that trial counsel was ineffective in these ways: (1)
failing to object to prosecutorial misconduct; (2) failing to investigate the case; (3)
failing to move to reopen the proofs or move for a mistrial upon learning of a
witness’s alleged statement that she had testified under duress, and (4) failing to
object to the jury instructions and jury verdict form.
The “clearly established law” for purposes of reviewing ineffective
assistance of counsel claims under the AEDPA is Strickland v. Washington, 466
U.S. 668 (1984). Williams v. Taylor, 529 U.S. 362, 390-91 (2000). The twopronged Strickland test requires a showing of deficient performance and resulting
prejudice. Id. at 687. A petitioner may show that counsel’s performance was
deficient by establishing that counsel’s performance was “outside the wide range
of professionally competent assistance.” Id. at 689. This “requires a showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
20

guaranteed by the Sixth Amendment.” Id. at 687.
Habeas relief may be granted only if the state-court decision unreasonably
applied the standard for evaluating ineffective-assistance-of-counsel claims
established by Strickland. Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009).
“The 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.” Id. at 123
(internal quotation omitted). When evaluating the state court’s resolution of
Strickland’s performance requirement, federal courts must “use a ‘doubly
deferential’ standard of review that gives both the state court and the defense
attorney the benefit of the doubt.” Burt v. Titlow, — U.S. —, 134 S. Ct. 10, 13
(2013), quoting Cullen v. Pinholster, 563 U.S. 170 (2011).
First, Petitioner argues that his attorney was ineffective in failing to object to
numerous instances of prosecutorial misconduct. The Michigan Court of Appeals
found this claim meritless because Petitioner suffered no prejudice from any
alleged misconduct. Meridy, 2007 WL 1429630 at *6. As discussed, all but one of
the alleged instances of misconduct failed to rise to that level. With respect to the
prosecutor’s misstatement of fact in closing argument, the Michigan Court of
Appeals found the mistake harmless. Where, as here, Petitioner has failed to show
21

that this harmless-error determination was unreasonable, he cannot show that
counsel was ineffective for failing to object to the prosecutor’s error.
Second, Petitioner argues that counsel was ineffective in failing to properly
investigate the case. Petitioner, however, fails to provide any specific information
as to what counsel could have or should have done, but failed to do. This
conclusory allegation is insufficient to sustain an ineffective assistance of counsel
claim. See Wogenstahl v. Mitchell, 668 F.3d 307, 335-36 (6th Cir. 2012)
(“[C]onclusory and perfunctory ... claims of [ineffective assistance of counsel] are
insufficient to overcome the presumption of reasonable professional assistance and
are insufficient to warrant habeas relief.”).
Next, Petitioner argues that counsel was ineffective in failing to move to
reopen the proofs or for a mistrial regarding the testimony of Sonya Bridgeman.
During Petitioner’s trial, Bridgeman testified that she saw Petitioner running from
the housing projects after the shooting. She also testified that shortly before her
scheduled testimony, an associate of Petitioner’s warned her that she would end up
dead if she testified against Petitioner. After the jury had been deliberating for
approximately three hours, defense counsel was informed that Bridgeman was
being held at the county jail on unrelated charges. Defense counsel learned that
Bridgeman told some individuals at the jail that the police threatened her before
22

she took the stand in Petitioner’s case. 2/18/05 Tr. at 1204 (ECF No. 9-8, Pg. ID
1489). The prosecution informed the trial court that the officer in charge of the
criminal case against Bridgeman indicated that Bridgeman was not offered a deal
on her pending charges for testifying and no one threatened or coerced her into
testifying. Id. at 1205 (ECF No. 9-8, Pg. ID 1490). The trial court determined that
there was no need to reopen the proofs. Id.
Approximately eight months after the trial, Bridgeman executed a notarized
letter dated November 18, 2005, stating that two Benton Harbor police officers told
her that they would dismiss a drug warrant against her if she testified that she saw
Petitioner running from the housing project and that he told her not to enter the
projects because they were shooting. See 11/18/2005 Letter from Sonya
Bridgeman (ECF No. 22, Pg. ID 2257). She wrote that her testimony against
Petitioner was false and that one of the police officers, Officer Takemoto, placed
money into her jail account in exchange for her testimony. Id.
On March 28, 2006, the trial court held a hearing on Petitioner’s motion for
new trial which raised the claim that police threatened and coerced Bridgeman into
testifying against Petitioner. Petitioner’s wife, Marshetta Meridy, testified that she
served Bridgeman with a subpoena to appear for the hearing, but Bridgeman did
not appear. 3/28/06 Tr. at 40-41 (ECF No. 9-11, Pg. ID 1586-87). She also
23

testified that Petitioner’s aunt prepared and typed Bridgeman’s letter-affidavit. Id.
at 43 (Pg. ID 1589). Loree LaFlex, the Berrien County inmate accounting clerk,
testified that during the time Bridgeman was incarcerated at the Berrien County
Jail, seven deposits were made to Bridgeman’s jail account. 3/28/06 Tr. at 71
(ECF No. 9-11, Pg. ID 1617). The deposit receipts indicated the deposits were
made by Willie Thompson and Consuela. Id. at 74 (ECF No. 9-11, Pg. ID 1620).
LaFlex testified that nothing in Bridgeman’s account indicated that Officer
Takemoto deposited money into Bridgeman’s account. Id. Berrien County Deputy
Sheriff Karen Miller testified that she was the employee charged with tracking the
location of inmates in the Criminal Justice Computer System. Id. at 76-77 (ECF
No. 9-11, Pg. ID 1622-23). Miller testified that, on February 16-18, 2005 (the days
immediately preceding Bridgeman’s trial testimony), Bridgeman was housed in a
unit with Charleccia Meridy, Petitioner’s cousin. Id. at 79, 85 (ECF No. 9-11, Pg.
ID 1625, 1631). The prosecutor who tried Petitioner’s case, Jeff Rhoa, testified
that Bridgeman was crying before and during her trial testimony because she was
frightened of testifying. Id. at 101 (ECF No. 9-11, Pg. ID 1647). The trial court
denied the motion on May 19, 2006, reasoning:
Ms. Bridgeman’s affidavit is not sufficiently credible evidence that
she has recanted her trial testimony and, standing alone, does not
merit a new trial. Defendant admits in his brief that her testimony was
useful at trial for impeachment, not because it incriminated Defendant.
24

Ms. Bridgeman was clearly frightened when she testified at trial. She
was subsequently jailed in an area where one of Defendant’s relatives
had access to her. She did not type the affidavit recanting her
testimony for herself, rather it was prepared by people associated with
Defendant. She was provided the affidavit by people associated
[with] Defendant. She was also served with a subpoena by people
associated with Defendant. Additionally, the evidence supporting the
reason for her purported perjury, as indicated in the affidavit, is
refuted by county records.
See Excerpt of 5/19/06 Order Denying Motion for New Trial (ECF No. 9-12, Pg.
ID 1743).
On direct appeal, the Michigan Court of Appeals held that Petitioner’s
defense counsel was not ineffective for failing to move to reopen proofs or move
for a mistrial on the basis of Bridgeman’s statement that she testified under police
threat or coercion. Meridy, 2007 WL 1429630 at *6. The state court reasoned
that, at that point, Bridgeman had not yet recanted her trial testimony, but merely
expressed remorse for testifying. Id. In addition, reopening proofs would not be
without risk. There was evidence that Bridgeman had been threatened by
Petitioner’s associates prior to her testimony. Reopening proofs would provide the
opportunity to elicit more information about the threats and the connection to
Petitioner. Id. In light of these considerations, the Michigan Court of Appeals
held that Petitioner failed to rebut the presumption that counsel acted with
reasonable trial strategy. Id.
25

Petitioner fails to show that the state court’s denial of this claim was
contrary to or an unreasonable application of Strickland. There were many
troubling aspects to Bridgeman’s alleged change of heart. She was incarcerated
with Petitioner’s cousin in the days preceding her alleged jailhouse statement that
police threatened her to convince her to testify against Petitioner. She also testified
at trial that, prior to her trial testimony, one of Petitioner’s associates threatened
her in an attempt to persuade her not to testify. It would have been reasonable for
defense counsel to conclude that reopening the proofs would likely refocus the
jury’s attention on attempts to interfere with Bridgeman’s incriminating testimony.
While another attorney may have concluded that reopening the proofs was worth
the risk, it cannot be said that defense counsel’s decision not to do so was
objectively unreasonable or “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690.
Finally, Petitioner argues that defense counsel was ineffective in failing to
object to the jury instructions and jury verdict form. As discussed above, the trial
court held the jury instructions and jury verdict form adequate and this Court found
the decision reasonable. Petitioner therefore cannot show that defense counsel was
ineffective in failing to raise a meritless objection. Habeas relief is denied.
E.

Claim Four: Newly-Discovered Evidence
26

Finally, Petitioner argues that newly discovered evidence shows that his
conviction was achieved through the use of perjured testimony by two witnesses,
Sonya Bridgeman and Izear Hall, and that he is actually innocent. The “deliberate
deception of a court and jurors by the presentation of known false evidence is
incompatible with rudimentary demands of justice.” Giglio v. United States, 405
U.S. 150, 153 (1972) (citations and internal quotations omitted). This rule applies
to both the solicitation of false testimony and the knowing acquiescence in false
testimony. Napue v. Illinois, 360 U.S. 264, 269 (1959). In order to prove this
claim, a defendant must show that (1) the evidence the prosecution presented was
false; (2) the prosecution knew it was false; and (3) the false evidence was
material. United States v. Hawkins, 969 F.2d 169, 175 (6th Cir.1992). Petitioner
fails to satisfy his burden.
First, the Court considers the testimony of Sonya Bridgeman. As discussed
above, Bridgeman’s affidavit was prepared by Petitioner’s aunt and Bridgeman
testified at trial that she had been warned by associates of Petitioner that she should
not testify against him. In light of these circumstances, Bridgeman’s affidavit is
simply insufficient to show that her trial testimony was false.
Second, Petitioner submits an affidavit of Izear Hall. At Petitioner’s trial,
Izear Hall identified Petitioner as the shooter of the victim. He testified that he saw
27

Petitioner carrying a handgun and chasing after the victim after shooting the victim
twice. In his affidavit, dated September 11, 2009, Hall states that he was forced by
Benton Harbor police to be a witness against Petitioner. See 9/11/09 Affidavit of
Izear Hall, Jr. (ECF No. 22, Pg. ID 2271-72). Contrary to his trial testimony, Hall
states that, on the night of the murder, he heard gunshots but did not see anyone
with a gun. Id. Further, Hall states that Petitioner was at the housing projects on
the night of the shooting, but left after arguing with the victim. Id. At a December
14, 2011 evidentiary hearing on Petitioner’s motion for relief from judgment, Hall
acknowledged that he met with the prosecutor on August 3, 2011, and denied
seeing the affidavit before the prosecutor showed it to him. See 12/13/11 Tr. at 17
(ECF No. 26-6, Pg. ID 2616). When questioned about his statements to the
prosecutor, Hall stated that the content of the affidavit was truthful. The trial court
then advised Hall of his Miranda rights and allowed him to consult with an
attorney. Id. at 25 (Pg. ID 2624). After consulting with counsel, Hall exercised his
right to remain silent. Id. at 43-44 (Pg. ID 2643-44). Following the hearing, the
trial court issued an order denying the motion for relief from judgment, finding
Hall’s recanting affidavit “suspect and inherently unreliable.” See 3/12/12 Order at
11 (ECF No. 26-9, Pg. ID 2720).
Hall’s affidavit warrants the extreme suspicion typically afforded recanting
28

affidavits and witnesses by the courts. Byrd v. Collins, 209 F.3d 486, 508 n.16 (6th
Cir. 2000). See also Welsh v. Lafler, No. 10-1467, 444 F. App’x 844, 850 (6th Cir.
2011) (trial witness’s sworn recantation must be viewed with caution); Bower v.
Curtis, No. 03-1821, 118 F. App’x 901, 908 (6th Cir. Dec. 17, 2004) (“The
recanting of trial testimony by prosecution witnesses is typically viewed with the
‘utmost suspicion.’”) (internal quotation omitted). The affidavit contradicts his
sworn trial testimony. It was executed approximately four years after the trial.
Hall variously claimed to have no knowledge of the affidavit (during 8/3/11
meeting with the prosecutor), vouched for the truth of the affidavit (during
12/14/11 evidentiary hearing), and then exercised his right to remain silent (also
during 12/14/11 evidentiary hearing). These circumstances essentially nullify any
value of the affidavit to Petitioner’s case. The trial court’s decision denying
Petitioner’s claim that Hall perjured himself at trial is amply supported in the
record.
Finally, to the extent that Petitioner raises a free-standing actual innocence
claim, he fails to state a claim upon which relief may be granted. Claims of actual
innocence based on newly discovered evidence “have never been held to state a
ground for federal habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506
29

U.S. 390, 400 (1993). “[F]ederal habeas courts sit to ensure that individuals are
not imprisoned in violation of the Constitution – not to correct errors of fact.” Id.
In House v. Bell, the Supreme Court declined to answer the question left open in
Herrera – whether a habeas petitioner may bring a freestanding claim of actual
innocence. See House v. Bell, 547 U.S. 518, 555 (2006) (noting that “in a capital
case a truly persuasive demonstration of ‘actual innocence’ made after trial would
render the execution of a defendant unconstitutional and warrant federal habeas
relief if there were no state avenue open to process such a claim”).
Citing Herrera and House, the Sixth Circuit has ruled that a free-standing
claim of actual innocence based upon newly-discovered evidence does not warrant
federal habeas relief. See Bowman v. Haas, No. 15-1485, 2016 WL 612019, *5
(6th Cir. Feb. 10, 2016) (holding that a freestanding claim of actual innocence is
not cognizable in a non-capital federal habeas proceeding); Muntaser v. Bradshaw,
429 F. App’x 515, 521 (6th Cir. 2011) (“[A]n actual innocence claim operates only
to excuse a procedural default so that a petitioner may bring an independent
constitutional challenge . . .Given that [petitioner] alleges only a free-standing
claim to relief on the grounds of actual innocence, his claim is not cognizable . . .
and, accordingly, does not serve as a ground for habeas relief.”). Consequently,
Petitioner’s claim that he is actually innocent and has newly-discovered evidence
30

to prove his innocence fails to state a claim upon which habeas relief can be
granted.
IV.

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 now requires that
the Court “must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.”
A COA may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2). 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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (citation omitted).
The Court concludes that reasonable jurists would not debate the Court’s
disposition of the claims raised in this petition. The Court denies a COA.
V.

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

31

and a certificate of appealability are DENIED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: July 31, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on July 31, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

32