Whitman v. Palmer

Filing 19

OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus AND DENYING CERTIFICATE OF APPEALABILITY. Signed by District Judge Gerald E. Rosen. (RGun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DESHAWN WHITMAN,
Petitioner,

Civil No. 09-12969
Honorable Gerald E. Rosen

v.
CARMEN PALMER, Warden,
Respondent.
__________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF APPEALABILITY
Petitioner, Deshawn Whitman, presently incarcerated at a Michigan correctional
facility, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner
was convicted after a jury trial in the Wayne Circuit Court of assault with intent to commit
murder, MICH. COMP. LAWS § 750.83, carjacking, MICH. COMP. LAWS § 750.529a, felon in
possession of a firearm, MICH. COMP. LAWS § 750.224f, and commission of a felony with
a firearm, MICH. COMP. LAWS § 750.227b. For the reasons stated below, the Court denies
the petition. The Court also declines to issue Petitioner a certificate of appealability.
I. Background
This Court recites verbatim the relevant facts relied upon by the Michigan Court of
Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendants were tried jointly n1, as a result of two shootings on April
6, 2000. Relating to the murder charges, Erwin Wilson was shot and killed
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in front of 4171 Drexel, in Detroit. The assault with intent to murder and
carjacking charges arose out of another shooting, in which Jermaine
Davenport, Wilson's cousin, was shot in the neck and his vehicle, a Yukon,
was taken. Both defendants were acquitted of first-degree murder and the
lesser offense of second-degree murder.
n1 Marcus Taylor was tried with defendants, and was acquitted of all charges
(relating to both shootings).
The prosecution's theory was that Hill, Whitman, Taylor and a fourth
man, were in a black SUV around 10:00 p.m. on April 6, 2000, and shot and
killed Erwin Wilson, a street-level drug dealer, in front of 4171 Drexel Street.
A few minutes later, the black SUV approached Jermaine Davenport,
Wilson's cousin, who was in another SUV parked on the street talking to
fourteen-year-old Unique Webster. Someone from the black SUV shot at
Davenport and the SUV and chased him, until Davenport's SUV crashed into
a parked car and stopped. Davenport got out of his SUV and was shot at by
Whitman and the others. Davenport sustained a gunshot wound to the neck,
and Davenport's SUV was taken by several of the perpetrators. Davenport
walked to the house on Drexel, saw Wilson lying in the street, and saw
Roosevelt Walker, a friend of Davenport's with whom Davenport had been
earlier. Davenport did not name any perpetrators until well after the
shootings. In May 2000, Davenport was charged with Wilson's murder, but
the charges were later dropped.
Defendant Whitman's defense theory was that Jermaine Davenport
argued with Wilson on the evening in question and was in the SUV from
which the shot that killed Wilson was fired. Defendant Hill's defense was that
he was not present at either shooting incident, and that Jermaine Davenport,
who was involved in drug-dealing along with Wilson, had every reason to lie
regarding this case.
People v. Whitman, 2006 Mich. App. LEXIS 314, *2-3 (Mich. Ct. App. Feb. 7, 2006).
Petitioner filed an appeal by right. His appellate counsel filed a brief in the Michigan
Court of Appeals that raised four claims:
I. Defendant is entitled to resentencing when the record does not set forth
the sentence or the reason for the same and does not reflect that he was
entitled to allocute.
II. The trial court erred in not allowing defense counsel to cross examine
Roosevelt Walker regarding a prior inconsistent statement provided at a
preliminary examination hearing which was stricken on the grounds of
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hearsay.
III. Defendant was deprived of the effective assistance of counsel where his
attorney failed to file a motion for a new trial on the grounds that his
conviction was against the great weight of the evidence.
IV. The trial court abused its discretion in denying defendant's motion for
directed verdict where the prosecution presented insufficient evidence to
prove beyond a reasonable doubt that he assaulted Jermain Davenport with
intent to murder, carjacked his vehicle, was a felon in possession of a
firearm, and committed felony-firearm.
The Michigan Court of Appeals affirmed Petitioner's convictions and sentence in an
unpublished opinion. Ibid.
Petitioner then filed an application for leave to appeal in the Michigan Supreme
Court. The application raised the same four claims raised in the court of appeals, and it
also included six new claims:
I. The prosecutor abused his charging authority in the first degree murder,
assault with intent to murder, carjacking, felon in possession, felony firearm,
in violation of Appellant's constitutional right to due process.
II. Appellant was denied his constitutional right to effective assistance of
counsel by actual conflict of interest; which also violated Michigan Court Rule
6.005(f) & (g), and the Michigan Rules of Professional Conduct 1.7 through
1.9.
III. Appellant was denied his due process and his right to a fair trial where
there was insufficient evidence to support his conviction for assault with
intent to murder, carjacking, felon in possession, and felony firearm.
IV. Though no proper foundation was laid, the trial court permitted the
prosecution to present to the jury uncorroborated facts and testimony
regarding the alleged drivers license belonging to Terry Lee Spielman in
violation of Appellants constitutional right to due process and to a fair trial.
V. Appellant counsel was denied his constitutional right to effective
assistance of counsel in his appeal of right.

VI. The cumulative effect of the errors committed during appellant's trial
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require relief because he did not receive a fair trial under both the state and
federal constitutions.
The Michigan Supreme Court denied leave to appeal by standard order. People v.
Whitman, 477 Mich. 927, 723 N.W.2d 204 (2006).
Petitioner subsequently returned to the state trial court and filed a motion for relief
from judgment. The motion raised nine claims:
I. Mr. Whitman was denied his fundamental constitutional rights to raise a
complete defense, confrontation, and to have the jury determine credibility
of Jermaine Davenport uninfluenced by opinions of prosecutor and
investigating officer thus depriving him of his right to a fair trial; the opening
statement promised went unfulfilled.
II. The prosecutor deprived Mr. Whitman of a fair trial when he engaged in
misconduct by seeking to bolster testimony of his witnesses, misrepresented
facts in evidence, asserting facts not in evidence, and suggesting Whitman's
guilt and Davenport's innocence.
a. Mr. Whitman was denied his right to a fair trial when the
prosecution improperly elicited testimony from Sergeant
Abdella commenting on defendant's right to remain silent and
in doing so shifted the burden [of] proof to the defense.
III. The alleged unwritten statements made to Sergeant Abdella must be
suppressed because they were taken while Mr. Whitman was lodged in the
Wayne County Jail awaiting trial on a second case of which the right to
counsel had attached.
IV. Mr. Whitman was denied his right to due process and a fair trial by
admitting testimony that he committed fraud when: (a) he allegedly used a
false name and obtained a false driver's license, and (b) by admitting
testimony that he was under a federal criminal investigation where there was
no testimony regarding Whitman's involvement in the alleged crimes, the
prosecution never connected the testimony to any alleged motive, and the
evidence was overwhelmingly prejudicial.
V. Mr. Whitman's attorney was totally absent from trial during a critical stage
where further evidence was taken and the court gave further instructions to
the jury amounting to a complete denial of counsel; standby counsel also
represented the co-defendant and the court failed to inquire into potential for
a conflict of interest; Mr. Whitman never waived his right to counsel.
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VI. Defendant Whitman was denied due process and fir trial where the
prosecution failed to investigate the real possibility that its witnesses were
conspiring to commit imminent perjury at trial.
VII. Defense counsel was ineffective and deprived Mr. Whitman of his
Fourteenth Amendment constitutional right to present the defense of
third-party culpability.
VIII. Mr. Whitman was denied his rights to the effective assistance of trial
counsel and a fair trial under both state and federal constitutions where
counsel failed to object to admission of prejudicial evidence, failed to raise
a viable defense, and counsel's otherwise deficient performance as set forth
in issues I through VIII.
IX. This case can and should be heard on its merits without regard to
"cause" since DeShawn Whitman can show that: (a) he had ineffective
assistance of appellate counsel and the absence of counsel at a critical stage
claim qualifies as "structural defect", i.e., jurisdictional defect which can be
raised at any time; (a) it would result in a miscarriage of justice not to hear
the case; and (c) he is actually innocent of the crime for gateway purposes.
The trial court denied the motion in an opinion dated January 10, 2008. The trial
court stated, in pertinent part, "defendant has failed to demonstrate 'good cause' for failing
to raise these issues in his prior motions or on appeal. He has also failed to demonstrate
that he suffered actual prejudice from any of the alleged irregularities." Opinion, at 2.
Petitioner appealed this decision in the Michigan Court of Appeals, but his
application for leave to appeal was denied "for failure to demonstrate entitlement to relief
under Michigan Court Rule 6.508(D)." People v. Whitman, Michigan Court of Appeals No.
283917 (August 29, 2008). Petitioner then pursued relief in the Michigan Supreme Court
based on the same issues, but his application for leave to appeal was also denied under
Rule 6.508(D). People v. Whitman, 483 Mich. 913, 762 N.W.2d 510 (2009).
Petitioner's amended petition for writ of habeas corpus enumerates nine claims:
I. The evidence was insufficient to convict Mr. Whitman beyond a reasonable
doubt of assault with intent to commit murder, carjacking, felon in possession
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of a firearm, and felony firearm.
II. Mr. Whitman was denied his fundamental constitutional rights to raise a
complete defense, confrontation, and to have the jury determine credibility
of Jermaine Davenport uninfluenced by opinions of the prosecutor and
investigating officer, thus depriving him of his right to a fair trial; the opening
statement of the prosecutor regarding Davenport went unfulfilled.
III. The prosecutor deprived Mr. Whitman of a fair trial when he engaged in
misconduct by: (a) seeking to bolster testimony of his witnesses,
misrepresented facts in evidence, asserted facts not in evidence, and
suggested Whitman’s guilt and Davenport’s innocence, and (b) improperly
eliciting testimony from Sgt. Abdella commenting on Mr. Whitman’s right to
remain silent and shifting the burden of proof to the defense.
IV. The alleged written statements made to Sergeant Abdella must be
suppressed because they were taken while Mr. Whitman was lodged in the
Wayne County jail on a second case of which the right to counsel had
attached.
V. Mr. Whitman was denied his right to due process and a fair trial when the
state court admitted testimony that he committed fraud when (a) he allegedly
used a false name and obtained a false driver’s license; and (b) admitting
testimony that there was no testimony regarding the extent or substance of
Whitman’s involvement in the alleged crime, the prosecution failed to connect
the testimony to any alleged motive in this crime, and the evidence was
overwhelmingly prejudicial.
VI. Mr. Whitman was actually denied his right to counsel when (a) counsel
was totally absent from trial during a critical stage where further evidence
was taken and the trial court gave further instructions to the jury amounting
to a complete denial of counsel; and (b) standby counsel also represented
the co-defendant and the court failed to inquire into a potential conflict of
interest and Mr. Whitman never waived his right to counsel.
VII. Mr. Whitman was denied due process and a fair trial where the
prosecution failed to investigate the real possibility that its witnesses were
conspiring to commit imminent perjury at trial.
VIII. Mr. Whitman was denied the effective assistance of counsel in the
following ways: (a) defense counsel failed to raise the defense of third-party
culpability; (b) failed to object to the admission of prejudicial evidence; and
(c) failed to object to numerous instances of prosecutorial misconduct.
IX. This case can and should be heard on its merits because “cause and
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prejudice” is satisfied where: (a) Appellate counsel was ineffective on appeal;
(b) issue VI qualifies as “structural defect” and a “jurisdictional defect” under
Michigan law which can be raised at anytime; (c) it would result in a
fundamental miscarriage of justice not to hear the case on its merits; and (d)
Mr. Whitman is “actually innocent” of the crime for gateway purposes.

II. Standard of Review
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas
corpus only if he can show that the state court's adjudication of his claims on the merits(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, 405-06 (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." Id. at 410-11.
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
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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, 130 S.Ct. 1855, 1862, 176 L.
Ed. 2d 678 (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, 131 S.Ct. 770, No.
2011 WL 148587, * 11 (U.S. 2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). The Supreme Court has 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). 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 the Supreme Court. Id. "[I]f this standard is difficult to meet, that is because
it was meant to be." Harrington, 131 S. Ct. 770.
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 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" the Supreme Court's precedents. 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. (citing
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Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)).
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." 131 S.Ct. at 786-787.
IV. Discussion
A. Insufficiency of the Evidence
Petitioner first claims that insufficient evidence was presented at his trial to sustain
his convictions because they are based only on the unreliable testimony of Jermaine
Davenport and Roosevelt Walker. The Michigan Court of Appeals rejected this claim on
the merits as follows:
Defendant Whitman next argues that the trial court abused its
discretion in denying defendant's motion for directed verdict. Defendant
maintains that his convictions are based solely on the unbelievable and
inconsistent testimony of Jermaine Davenport and his friend, Roosevelt
Walker, and that his own name (Whitman) did not become involved in the
investigation until after Davenport was implicated in the homicide of Erwin
Wilson. At no time before did Davenport identify defendant Whitman as the
person who shot him in the neck. Defendant asserts that the number of
inconsistencies in Davenport and Walker's testimony should have created a
reasonable doubt in the jury's mind and ought to have been insufficient to
convict Whitman of the charges.
We conclude that the trial court properly denied defendant's motion for
a directed verdict. Despite the many inconsistencies in Davenport's
testimony, a reasonable jury could believe Davenport and find that defendant
and his accomplices shot Davenport and carjacked his SUV. The parties
stipulated that defendant had been convicted of a specified felony for
purposes of the felon in possession of a firearm and felony-firearm charges.
Thus, viewing the evidence in a light most favorable to the prosecution,
sufficient evidence was presented to support defendant's convictions.
Whitman, 2006 Mich. App. LEXIS 314, *9-11.
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"[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with which
he is charged." In re Winship, 397 U.S. 358, 364 (1970). The critical inquiry on habeas
review of the sufficiency of the evidence to support a criminal conviction is
whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt. [T]his inquiry does not require a court to 'ask
itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt.' Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citation and footnote omitted)
(emphasis in original). A federal court may not reweigh the evidence or redetermine the
credibility of the witnesses. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). "It is the
province of the factfinder to weigh the probative value of the evidence and resolve any
conflicts in testimony." Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing
Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992)). A habeas court must defer to the fact
finder for its assessment of the credibility of witnesses. Id. The Court does not need to be
convinced that the petitioner is actually guilty beyond a reasonable doubt. Walker v.
Russell, 57 F.3d 472, 475 (6th Cir. 1995).
The decision of the state appellate court rejecting Petitioner's claims did not result
in an unreasonable application of this standard. Petitioner questions the credibility of
Davenport and Walker's testimony, but assessing the credibility of witnesses was a matter
for the jury to decide and is not an appropriate subject for habeas review. See Schlup v.
Delo, 513 U.S. 298, 333 (1995); Pinchon v. Myers, 615 F.3d 631, 644 (6th Cir. 2010). The
only issue is whether the jury could reasonably infer from the evidence that Petitioner
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committed the crime of conviction. See White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009).
Despite contradictions in Davenport's testimony and similar problems presented by
Walker's testimony, there were compelling reasons for the jury to chose to believe them.
Viewed most favorably to the prosecution, circumstantial evidence presented at trial
undermined the defense's suggestion that Davenport murdered Wilson and then falsely
accused Petitioner and his co-defendants.

So viewed, the evidence showed that

Davenport did not have gunshot residue on his hands, that he ran back to the murder
scene, that his truck was stolen after it crashed, that the shell casings from both shooting
sites matched, and that there was another vehicle besides Davenport's involved in the
shootings because there was evidence of a high speed chase. Given this evidence, a jury
could rationally conclude beyond a reasonable doubt that the essential part of Davenport's
testimony - that Petitioner and not Davenport was the perpetrator of the crimes - was true.

While the case was obviously closely tried, review at this point "is limited to
determining whether the evidence was so overwhelmingly in favor of the petitioner that it
compelled a verdict in his or her favor." Thompson v. Bock, 215 F. App'x 431, 436 (6th Cir.
2007). It did not. The prosecutor's key witnesses certainly had credibility problems, but
they were not so great as to prevent the state appellate court from reasonably rejecting his
sufficiency-of-the-evidence claim. Petitioner's first claim for relief is therefore without merit.

B. Claims Raised in Motion for Relief from Judgment
Petitioner's remaining claims were not presented to the state courts during his
appeal of right. Rather, these claims were first presented to the state trial court in his
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motion for relief from judgment. The trial court denied the motion under Michigan Court
Rule 6.508(D)(3) because Petitioner had not demonstrated "good cause" or prejudice for
failing to have raised them previously. The state appellate courts subsequently denied
relief by using the form order citing to Rule 6.508(D). Respondent asserts that review of
these claims is procedurally barred because the state trial court relied on a state procedural
rule in denying Petitioner relief.
Federal habeas relief is precluded on claims 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, 85-87 (1977). 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). The last explained state
court judgment should be used to make this determination. See Ylst v. Nunnemaker, 501
U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is
presumed that the last reviewing court relied upon the last reasoned opinion. Id.
The Michigan appellate courts denied relief pursuant to Michigan Court Rule
6.508(D), which provides, in part, that a court may not grant relief to a defendant if the
motion for relief from judgment alleges grounds for relief which could have been raised on
direct appeal, absent a showing of good cause for the failure to raise such grounds
previously and actual prejudice resulting therefrom. See MICH. CT. R. 6.508(D)(3). The
Sixth Circuit has held, however, that the form order used by the Michigan Supreme Court
to deny leave to appeal in this case is unexplained because its citation to Michigan Court
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Rule 6.508(D) is ambiguous as to whether it refers to a procedural default or a rejection on
the merits. See Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc).
Consequently, under Guilmette, the Court must "look through" the unexplained order of the
Michigan Supreme Court to the state trial court's decision to determine the basis for the
denial of state post-conviction relief.
In this case, the state trial court clearly denied relief on procedural grounds. The trial
court cited Michigan Court Rule 6.508(D)(3) and concluded that Petitioner had failed to
demonstrate good cause and actual prejudice on the basis of his claim of ineffective
assistance of appellate counsel. Accordingly, Petitioner's second through ninth claims are
procedurally defaulted.
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 v. Thompson, 501 U.S. 722, 750-51 (1991); Nields v.
Bradshaw, 482 F.3d 442 (6th Cir. 2007); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir.
1996).
Petitioner asserts in his ninth claim ineffective assistance of appellate counsel as
cause to excuse his default. In order to establish ineffective assistance of counsel, the
petitioner must show "that counsel's performance was deficient ... [and] that the deficient
performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984);
O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In determining whether counsel's
performance was deficient,
[t]he court must ... determine whether, in light of all the circumstances, the
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identified acts or omissions were outside the wide range of professionally
competent assistance . . . . At the same time, the court should recognize that
counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment.
Strickland, 466 U.S. at 690. Judicial scrutiny of counsel's performance is thus "highly
deferential." Id. at 689. The defense is prejudiced only if "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694.
It is well-established that a criminal defendant does not have a constitutional right
to have appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes,
463 U.S. 745, 751 (1983). The Supreme Court has explained:
For judges to second-guess reasonable professional judgments and impose
on appointed counsel a duty to raise every "colorable" claim suggested by a
client would disserve the ... goal of vigorous and effective advocacy ....
Nothing in the Constitution or our interpretation of that document requires
such a standard.
Id. at 754.
Strategic and tactical choices regarding which issues to pursue on appeal are
"properly left to the sound professional judgment of counsel." United States v. Perry, 908
F.2d 56, 59 (6th Cir. 1990). In fact, "the hallmark of effective appellate advocacy" is the
"process of 'winnowing out weaker arguments on appeal and focusing on' those more likely
to prevail." See Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at
751-52). "Generally, only when ignored issues are clearly stronger than those presented
will the presumption of effective assistance of appellate counsel be overcome." Monzo v.
Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate counsel may deliver deficient
performance and prejudice a defendant by omitting a "dead-bang winner," defined as an
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issue which was obvious from the trial record and would have resulted in reversal on
appeal. See Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).
Petitioner has failed to show that by omitting the claims presented in his motion for
relief from judgment, appellate counsel's performance fell outside the wide range of
professionally competent assistance. Appellate counsel presented legitimate issues on
direct appeal, including a challenge to the sufficiency of the evidence that Petitioner
contends entitles him to relief. Such issues, although ultimately unsuccessful, were
substantial. The claims presented in the motion for relief from judgment are not obviously
stronger than the ones raised by appellate counsel on direct appeal. To be sure, the trial
court, in considering the prejudice component of the cause and prejudice test, found that
the claims lacked merit. Petitioner has thus failed to demonstrate that appellate counsel
was ineffective so as to establish cause to excuse his procedural default.
Lastly, Petitioner has not demonstrated 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 Murray v.
Carrier, 477 U.S. 478, 479-80 (1986). To be credible, such a claim of actual innocence
requires a petitioner to support the allegations of constitutional error with new reliable
evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Actual
innocence means factual innocence, not mere legal insufficiency. Bousley v. United States,
523 U.S. 614, 623 (1998). Petitioner has made no such showing. These claims are thus
barred by procedural default, and do not warrant habeas relief.
VI. Certificate of Appealability
A petitioner must receive a certificate of appealability ("COA") in order to appeal the
15

denial of a habeas petition for relief from either a state or federal conviction. 28 U.S.C. §§
2253(c)(1)(A), (B). A court may issue a COA "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
district court rejects a habeas claim on the merits, the substantial showing threshold is met
if the petitioner demonstrates that reasonable jurists would find the district 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
of reason could disagree with the district court's resolution of his constitutional claims or
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)(citation omitted). In
applying this standard, a district court may not conduct a full merits review, but must limit
its examination to a threshold inquiry into the underlying merit of the petitioner's claims. Id.
at 336-37.

The Court concludes that jurists of reason would not find the Court's

assessment of Petitioner's claims debatable or wrong. The Court thus declines to issue
Petitioner a certificate of appealability.

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VI. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: August 3, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 3, 2011, by electronic mail and upon Deshawn Whitman, #259030,
Earnest C. Brooks Correctional Facility, 2500 South Sheridan Drive, Muskegon Heights,
MI 49444 by ordinary mail.
s/Ruth A. Gunther
Case Manager

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