Poindexter v. Bauman

Filing 8

ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CLEO POINDEXTER, #598640,
Petitioner,
v.

CASE NO. 2:09-CV-12021
HONORABLE LAWRENCE P. ZATKOFF

CATHERINE BAUMAN,
Respondent.
_____________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
I.

Introduction
Michigan prisoner Cleo Poindexter (“Petitioner”) has filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. §2254 challenging his Wayne County Circuit Court convictions
on four counts of assault with intent to commit murder, MICH. COMP. LAWS § 750.83, and one count
of possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, for
which he was sentenced to four concurrent terms of 10 ½ to 18 years imprisonment and a
consecutive term of two years imprisonment. In his pleadings, Petitioner raises claims concerning
the lack of a due diligence hearing for two missing witnesses and the effectiveness of trial counsel.
Respondent has filed an answer to the petition contending that it should be denied. Having
considered the matter, the Court concludes that Petitioner is not entitled to federal habeas relief on
his claims and denies the petition. The Court also denies a certificate of appealability.
II.

Facts and Procedural History
Petitioner’s convictions arise from a shooting which occurred at a nightclub in Detroit,

Michigan on August 1, 2005. The Michigan Court of Appeals provided a factual summary of the
case, which is presumed correct on habeas review, see Monroe v. Smith, 197 F. Supp. 2d 753, 758
(E.D. Mich. 2001), aff’d. 41 F. App’x 730 (6th Cir. 2002), as follows:
This case arises out of a shooting that occurred at the Chicago Blues Lounge
(Lounge) in Detroit, Michigan on August 1, 2005. Micah Wilson, Calvin Scott,
Deshawn Cheatom, Latasha Peterson, and Brittany Peterson went to the Lounge to
attend a party for high school kids. As they approached the Lounge, defendant was
outside rapping and waiving money. Cheatom testified that he approached defendant
and asked him if he was responsible for “shooting up” his house. Defendant
responded that he was not, and Cheatom backed away and suggested to the others
that they leave because he had noticed a gun in defendant's pocket. He stated that as
the group turned to leave, defendant pulled out the gun and fired four to five shots.
Scott testified that he was shot in the upper back. He did not see defendant with a
gun, and he did not see who shot him. Wilson was shot in the stomach and identified
defendant as the shooter.
Terrance Turner was working security at the Lounge when the shooting occurred.
Turner and his cousin left the Lounge to purchase cases of water for the bar. As they
exited the Lounge, Turner testified that he saw defendant fire several shots in his
direction into a group of people. He stated that he was 10 to 15 feet away from
defendant at the time of the shooting.
Derrius Dixson testified for the defense. Dixson testified that he was defendant's
friend. He stated that he was sitting in his car on the corner next to the Lounge when
he heard six shots fired. He never saw defendant at the Lounge. Dixson stated that
he saw Wilson and Cheatom and a “gang of other guys” verbally confronting one
another. He explained that Wilson and Cheatom were members of the Brightmoor
Killers gang and the other group was composed of members from the Seven Mile
gang. Dixson explained that the two groups continued to verbally spar until Wilson
lifted up his shirt like he was going for a gun, and in retaliation, an individual from
the Seven Mile group drew a gun and started firing.
Defendant attempted to call Sergeant Dunbeck to testify as to his efforts in procuring
Latasha Peterson and Brittany Peterson as witnesses, but the court instructed him to
call another witness because Dunbeck was unavailable. As the officer standing in for
Sergeant Dunbeck, Detroit Police Sergeant David Levalley testified that he failed to
serve the Peterson girls because he was unable to locate them. He had no addresses
for them, and Wilson and Scott told him that they had moved away and were unable
to contact them. Additionally, Sergeant Levalley was unable to look up their driver's
license information because he did not have their birth dates. He also stated that he
was unsure what additional information Sergeant Dunbeck may have had concerning
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the witnesses. But as the officer-in-charge, Dunbeck was responsible for locating and
serving the witnesses.
Defendant was convicted of assault with intent to murder Wilson, Cheatom, Scott,
and Turner. He was acquitted of the charges related to the shooting of Brittany and
Latasha Peterson.
People v. Poindexter, No. 269915, 2007 WL 2847757, *1-2 (Mich. Ct. App. Oct. 2, 2007)
(unpublished).
Following his convictions and sentencing, Petitioner filed an appeal of right with the
Michigan Court of Appeals essentially raising the same claims presented on habeas review. The
Michigan Court of Appeals denied relief on Petitioner’s claims and affirmed his convictions. Id.
Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was
denied. People v. Poindexter, 480 Mich. 1076, 744 N.W.2d 167 (2008).
Petitioner thereafter instituted this federal habeas action, raising the following claims as
grounds for relief:
I.

He was denied due process and the right to compulsory process when the trial
court refused to require the prosecution to demonstrate the exercise of due
diligence to produce endorsed, known res gestae witnesses who would have
corroborated his defense that someone else was the shooter.

II.

Defense counsel was ineffective for failing to demand the witnesses’
production, for failing to demand a due diligence hearing, for failing to seek
assistance with locating the witnesses, and for failing to request a missing
witness jury instruction.

Respondent has filed an answer to the petition contending that it should be denied because the first
claim is barred by procedural default and the second claim lacks merit.
III.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified 28 U.S.C.

§ 2241 et seq., governs this case because Petitioner filed his petition after the AEDPA’s effective
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date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
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 proceeding.

28 U.S.C. §2254(d) (1996).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts
that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)
(per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535
U.S. 685, 694 (2002). “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal
habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from
[the Supreme] Court but unreasonably applies that principle to the facts of petitioner’s case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535
U.S. at 694. However, “[i]n order for a federal court find a state court’s application of [Supreme
Court] precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539
U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that state-court

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decisions be given the benefit of the doubt.’” Renico v. Lett, _ U.S. _, 130 S. Ct. 1855, 1862 (2010)
(quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
The Supreme Court recently held that “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, _ U.S. _, 131 S. Ct. 770, 786 (2011) (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized “that even
a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id.
( citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003). 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 the Supreme Court.
Id. Thus, in order to obtain habeas relief in federal court, a state prisoner must 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.
Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the
state court’s decision comports with clearly established federal law as determined by the Supreme
Court at the time the state court renders its decision. See Williams, 529 U.S. at 412; see also
Knowles v. Mirzayance, _ U.S. _, 129 S. Ct. 1411, 1419 (2009) (noting that the Supreme Court “has
held on numerous occasions that it is not ‘an unreasonable application of clearly established Federal
law’ for a state court to decline to apply a specific legal rule that has not been squarely established
by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer
v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) “does not require a state court to give

5

reasons before its decision can be deemed to have been ‘adjudicated on the merits.’” Harrington,
131 S. Ct. at 785. Furthermore, it “does not require citation of [Supreme Court] cases–indeed, it
does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the
result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also
Mitchell, 540 U.S. at 16. While the requirements of “clearly established law” are to be determined
solely by Supreme Court precedent, the decisions of lower federal courts may be useful in assessing
the reasonableness of the state court’s resolution of an issue. See Stewart v. Erwin, 503 F.3d 488,
493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v.
Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal habeas review.
See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only 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, _ U.S.
_, 131 S. Ct. 1388, 1398 (2011).
IV.

Discussion
A.

Due Diligence Claim

Petitioner first asserts that he is entitled to habeas relief because the trial court did not
require the prosecution to demonstrate that it had exercised due diligence in attempting to locate
LaTasha and Brittany Peterson and secure their appearance at trial. Respondent contends that this
claim is barred by procedural default.
Federal habeas relief may be precluded on a claim that a petitioner has not presented to the
state courts in accordance with the state’s procedural rules. See Wainwright v. Sykes, 433 U.S. 72,

6

85-87 (1977); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). The doctrine of procedural default
is applicable when a petitioner fails to comply with a state procedural rule, the rule is actually relied
upon by the state courts, and the procedural rule is “adequate and independent.” White v. Mitchell,
431 F.3d 517, 524 (6th Cir. 2006); see also Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir.
2005); Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). “A procedural default does not bar
consideration of a federal claim on either direct or habeas review unless the last state court
rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state
procedural bar.” Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last explained state court
judgment should be used to make this determination. See Ylst v. Nunnemaker, 501 U.S. 797, 80305 (1991).
The Michigan Court of Appeals rendered the last reasoned opinion on this issue. In denying
relief on this claim, the court relied upon the defense’s failure to properly preserve this issue by
requesting a due diligence hearing or a new trial. See Poindexter, 2007 WL 2847757 at *2. The
failure to make a contemporaneous objection is a recognized and firmly-established independent
and adequate state law ground for refusing to review trial errors. See People v. Carines, 460 Mich.
750, 763, 597 N.W.2d 130 (1999); People v. Dixon, 217 Mich. App. 400, 409, 552 N.W.2d 663
(1996); People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994); see also Coleman v.
Thompson, 501 U.S. 722, 750-51 (1991). Moreover, a state court does not waive a procedural
default by looking beyond the default to determine if there are circumstances warranting review
on the merits. See Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989). Plain error review does
not constitute a waiver of state procedural default rules. See Girts v. Yanai, 501 F.3d 743, 755 (6th
Cir. 2007); Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542,

7

557 (6th Cir. 2000). Nor does a state court fail to sufficiently rely upon a procedural default by
ruling on the merits in the alternative. See McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991).
The Michigan Court of Appeals denied relief on this claim based upon a procedural default – the
failure to move for a due diligence hearing or a new trial.
A state prisoner who fails to comply with a state’s procedural rules waives the right to
federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting
from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. See
Coleman, 501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). To establish
cause, a petitioner must establish that some external impediment frustrated his ability to comply
with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner must
present a substantial reason to excuse the default. See Amadeo v. Zant, 486 U.S. 214, 223 (1988).
Such reasons include interference by officials, attorney error rising to the level of ineffective
assistance of counsel, or a showing that the factual or legal basis for a claim was not reasonably
available. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).
Petitioner alleges ineffective assistance of trial counsel as cause to excuse his procedural
default. As explained infra, however, Petitioner has not shown that counsel was constitutionally
ineffective. He thus has failed to establish cause to excuse his procedural default. The Court need
not address the issue of prejudice when a habeas petitioner fails to establish cause to excuse a
procedural default. See Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286,
289 (6th Cir. 1983); Bell v. Smith, 114 F. Supp. 2d 633, 638 (E.D. Mich. 2000). Nonetheless, the
Court finds that Petitioner cannot establish prejudice (or entitlement to habeas relief) as this claim
lacks merit for the reasons stated by the Michigan Court of Appeals in reviewing the issue for plain

8

error. See Poindexter, 2007 WL 2847757 at *2-3.
Petitioner has also not shown that a fundamental miscarriage of justice has occurred. The
miscarriage of justice exception requires a showing that a constitutional violation probably resulted
in the conviction of one who is actually innocent. See Schlup v. Delo, 513 U.S. 298, 326-27 (1995).
“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 624 (1998). “To be credible, [a claim of actual innocence] requires petitioner
to support his allegations of constitutional error with new reliable evidence – whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence –
that was not presented at trial.” Schlup, 513 U.S. at 324. Petitioner has made no such showing.
This claim is thus barred by procedural default, lacks merit, and does not warrant habeas relief.
B.

Ineffective Assistance of Counsel Claims

Petitioner relatedly asserts that he is entitled to habeas relief because trial counsel was
ineffective for failing to demand the witnesses’ production, for failing to demand a due diligence
hearing, for failing to seek assistance in locating the witnesses, and for failing to request a missing
witness jury instruction. Respondent contends that these claims lack merit.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth
a two-prong test for determining whether a habeas petitioner has received the ineffective assistance
of counsel. First, a petitioner must prove that counsel’s performance was deficient. This requires
a showing that counsel made errors so serious that he or she was not functioning as counsel as
guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the petitioner must
establish that counsel’s deficient performance prejudiced the defense. Counsel’s errors must have
been so serious that they deprived the petitioner of a fair trial or appeal. Id.

9

As to the performance prong, a petitioner must identify acts that were “outside the wide
range of professionally competent assistance” in order to prove deficient performance. Id. at 690.
The reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at 689. Counsel
is strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Id. at 690. The petitioner bears the burden of
overcoming the presumption that the challenged actions were sound trial strategy. Id. at 689.
To satisfy the prejudice prong under Strickland, a petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. A reasonable probability is one that is sufficient to
undermine confidence in the outcome. Id. “On balance, the benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
The Supreme Court has recently confirmed that a federal court’s consideration of ineffective
assistance of counsel claims arising from state criminal proceedings is quite limited on habeas
review due to the deference accorded trial attorneys and state appellate courts reviewing their
performance. “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and
when the two apply in tandem, review is ‘doubly’ so.” Harrington, 131 S. Ct. at 788 (internal and
end citations omitted). “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. Id. at 788.
Applying the Strickland standard, the Michigan Court of Appeals denied relief on these

10

claims, stating in relevant part:
Defendant first argues that counsel should have requested a hearing under People
v. Pearson, 404 Mich 698, 721; 273 NW2d 856 (1979), superseded by statute
People v. Cook, 266 Mich App 290; 702 NW2d 613 (2005), where the trial court
could have ordered the prosecution to produce the witnesses or to assist defendant
in finding them. However, the Pearson hearing defendant refers to was based on the
preamendment version of MCL 767.40a, where the prosecution was required to
produce res gestae witnesses. See Cook, supra at 294-295. Under the
postamendment statute, the prosecutor is only obligated to notify a defendant of all
res gestae witnesses known to the prosecution and to provide defendant a list of
witnesses that the prosecution intends to call at trial. Id.; see also MCL 767.40a(1)
and (3). This Court held in Cook that Pearson hearings are no longer required since
the statute no longer requires the prosecution to produce res gestae witnesses. Cook,
supra at 295-296. Thus, counsel was not ineffective for failing to move for a
Pearson hearing.
Further, defense counsel did not err in failing to call Brittany and Latasha Peterson.
The failure to call supporting witnesses can constitute ineffective assistance of
counsel where the missing witness's testimony could have changed the outcome of
the case or, in other words, where a defendant is deprived of a substantial defense.
People v. Bass, 247 Mich App 385, 392; 636 NW2d 781 (2001). However, defense
counsel did not fail to call Brittany and Latasha. Rather, the witnesses were
endorsed witnesses, and therefore, the prosecution presumably intended to produce
them. MCL 767.40a(3). Under MCL 767.40a(4), the prosecution can only strike a
witness from its endorsed list by showing good cause. Thus, requiring defense
counsel to produce witnesses on the prosecution's endorsed witness list is illogical,
and counsel is not required to advocate meritless positions. People v. Mack, 265
Mich App 122, 130; 695 NW2d 342 (2005).
Defendant also argues that his trial counsel was ineffective for failing to seek
assistance with locating the witnesses. Under MCL 767.40a(5), the prosecution is
obligated to provide reasonable assistance to the defense to locate witnesses the
defense requests. People v. Long, 246 Mich App 582, 585-586; 633 NW2d 843
(2001). Here, the missing witnesses were not on defendant's witness list. However,
they were endorsed on the prosecution's witness list. Therefore, defendant could
presume that the prosecution intended to produce Brittany and Latasha. MCL
767.40a(3). In addition, defense counsel heard the prosecutor state at a pretrial
motion hearing that he was having difficulty locating the two witnesses. The
prosecutor's statement implies that efforts were being made to locate Brittany and
Latasha. Thus, defense counsel's performance was not deficient.
Defendant contends that his trial counsel was ineffective for not more firmly
demanding an adjournment so that he could elicit Dunbeck's testimony. Defense
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counsel first argued with the trial court regarding the importance of Dunbeck's
testimony and then attempted to call Dunbeck as a witness. Defense counsel
complained to the trial court that Dunbeck, who was returning in two days, should
be produced so he could testify regarding the effort that was made to locate Brittany
and Latasha. We find that defense counsel's efforts to have the trial adjourned were
not deficient.
Defendant next claims that he was denied the effective assistance of counsel when
his counsel failed to request a missing-witness jury instruction, CJI2d 5.12.
Defendant asserts that the trial court would have determined that the witnesses'
absence at trial was prejudicial to defendant, and therefore, defendant would have
been entitled to a jury instruction stating that it could infer that the missing
witnesses' testimony would have been unfavorable to the prosecution. However, a
missing-witness jury instruction is appropriate upon a court's determination that the
prosecution failed to exercise due diligence. Eccles, supra at 388. Here, the trial
court did not make a due-diligence determination. Therefore, an instruction was not
warranted.
Finally, defendant contends that his trial counsel was ineffective for failing to
demand a due-diligence hearing. While defense counsel did not specifically request
a hearing, he did raise the issue of the missing witnesses and he complained about
Dunbeck's failure to appear. However, upon hearing Levalley's testimony about the
efforts that he made to locate and serve subpoenas on Brittany and Latasha, defense
counsel should have requested a due-diligence hearing as part of a sound trial
strategy.
Regardless of counsel's performance, defendant has not shown prejudice. Defendant
must show a reasonable probability that, but for his counsel's deficient performance,
he would not have been convicted. Snider, supra at 424. Even if defense counsel
had been successful at producing Brittany and Latasha, it is unclear whether their
testimony would have been favorable to defendant. According to defense counsel,
they would have testified that defendant was not the shooter. However, that
testimony would have conflicted with Dixson's testimony that defendant was not at
the Lounge when the shooting occurred. In addition, while Dixson testified that
defendant was not at the Lounge when the shooting occurred, three witnesses,
Cheatom, Wilson, and Turner, testified that defendant was the shooter, and Wilson
was positive defendant was the shooter. Further, the trial court, upon hearing the
recorded conversations of defendant from jail, stated that defendant sounded like
he was “concocting a kind of defense and manipulating that with other persons who
might be testifying in this case.” FN2 Consequently, we hold that defendant has
failed to show that but for his counsel's performance, the outcome of his trial would
have been different. Toma, supra at 302-303.
FN2. Defendant contacted Scott and Wilson several times in jail in an attempt to
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convince them that he was not the shooter.
Poindexter, 2007 WL 2847757 at *4-5.
This decision is neither contrary to Supreme Court precedent nor an unreasonable
application of federal law or the facts. Even assuming that trial counsel erred by not requesting a
due diligence hearing or taking other action relative to the missing witnesses, Petitioner has not
established that he was prejudiced by counsel’s conduct. First, he has not shown that police and
prosecuting authorities failed to act with reasonable diligence in attempting to locate the witnesses.
The record reflects that the prosecutor was aware of the witnesses and had them listed as potential
prosecution witnesses. The record also indicates that the police were attempting to find the
witnesses to have them provide statements and/or appear for trial.
Second, and more importantly, Petitioner has not presented testimony or affidavits from the
missing witnesses to show that they would have testified at trial and that their testimony would
have been favorable to the defense. Conclusory allegations, without evidentiary support, do not
provide a basis for habeas relief. See Cross v. Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007);
Prince v. Straub, 78 F. App’x 440, 442 (6th Cir. 2003); Workman v. Bell, 178 F.3d 759, 771 (6th
Cir. 1998) (conclusory allegations of ineffective assistance of counsel do not justify federal habeas
relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions and
conclusory allegations do not provide sufficient basis to hold an evidentiary hearing in habeas
proceedings).
While defense counsel indicated during the state court proceedings that he spoke to the
witnesses and they would testify that Petitioner was not the shooter, counsel offered no specifics
and provided no documentation to support his assertions. Such unsworn, speculative, hearsay

13

statements are insufficient to establish prejudice or justify habeas relief. See, e.g., Herrera v.
Collins, 506 U.S. 390, 417 (1993) (hearsay affidavits in support of actual innocence claim are
“particularly suspect”); Teahan v. Almager, 383 F. App’x 615 (9th Cir. 2010) (unsworn statements
of purported alibi witnesses given to counsel were insufficient to show actual innocence); Rolan
v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006) (a showing of Strickland prejudice “must be made
based on the potential witness’s testimony to the habeas court”); Horton v. Allen, 370 F. 3d 75, 81,
n. 5 (1st Cir. 2004) (citing United States v. Maguire, 600 F.2d 330, 332 (1st Cir. 1979), and ruling
that habeas counsel’s affidavit which summarized conversations with defense counsel was hearsay
and could not establish ineffective assistance claim); United States v. Ashimi, 932 F.2d 643, 650
(7th Cir. 1991) (“[E]vidence about the testimony of a putative witness must generally be presented
in the form of actual testimony or affidavit. A defendant cannot simply state that the testimony
would have been favorable; self-serving speculation will not sustain an ineffective assistance
claim.”); United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983) (ineffective assistance is
not shown if defendant fails to produce affidavit of uncalled witness); see also Harrison v.
Quarterman, 496 F.3d 419, 428 (5th Cir. 2007); Dows v. Woods, 211 F.3d 480, 486 (9th Cir. 2000).
Third, even if the witnesses had been located to testify or a missing witness instruction had
been given, Petitioner still cannot prevail given the significant evidence of guilt presented at trial.
Shooting victim Micah Wilson, his friend DeShawn Cheatom, and security guard Terrance Turner
all testified that Petitioner was the shooter. Shooting victim Calvin Scott and Turner’s cousin
Myron Dunlap also provided testimony implicating Petitioner in the shooting. Additionally, while
in custody, Petitioner contacted Scott and Wilson to try to convince them that he was not the
shooter. Given such testimony, Petitioner has not shown that there is a reasonable probability that,

14

but for counsel’s alleged errors, the result of the proceeding would have been different. He has thus
failed to establish that trial counsel was ineffective under the Strickland standard. Habeas relief
is not warranted on this claim.
V.

Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas

relief on the claims contained in his petition.

Accordingly, the Court DENIES WITH

PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal the Court’s decision, a certificate of appealability (“COA”)
must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). When a federal court denies relief on the merits, the substantial showing threshold is
met if the petitioner demonstrates that reasonable jurists would find the court’s assessment of the
constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A
petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). A court may not conduct a full merits review, but must limit its examination
to a threshold inquiry into the underlying merit of the habeas claims. Id. at 336-37. When a federal
court denies relief on procedural grounds without addressing the merits of a claim, a certificate of
appealability should issue if it is shown that jurists of reason would find it debatable whether the
petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would
find it debatable whether the court was correct in its procedural ruling. See Slack, 529 U.S. at 48485. Having considered the matter, the Court concludes that Petitioner has failed to make a

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substantial showing of the denial of a constitutional right as to his habeas claims and that
reasonable jurists could not debate the correctness of the Court’s procedural ruling. Accordingly,
the Court DENIES a certificate of appealability.
IT IS SO ORDERED.
s/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: July 28, 2011
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of record
by electronic or U.S. mail on July 28, 2011.

s/Marie E. Verlinde
Case Manager
[phone]

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