White v. McQuiggin

Filing 9

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and Issuing a Certificate of Appealability Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ARTURO JUAN WHITE,
Petitioner,
CASE NO. 2:09-CV-13238
HONORABLE DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE

v.
GREG McQUIGGIN,

Respondent.
___________________________________/
OPINION AND ORDER DENYING THE PETITON FOR WRIT OF HABEAS
CORPUS AND ISSUING A CERTIFICATE OF APPEALABILITY
Arturo Juan White, (“Petitioner”), presently confined at the Chippewa
Correctional Facility in Kincheloe, Michigan, has filed petition for writ of habeas
corpus through counsel S. Allen Early pursuant to 28 U.S.C. § 2254, in which he
challenges his conviction for three counts of first-degree murder, M.C.L.A.
750.316; one count of possession of a firearm in the commission of a felony,
M.C.L.A. 750.227b; and one count of felon in possession of a firearm, M.C.L.A.
750.224f. 1 For the reasons stated below, the petition for writ of habeas corpus is
DENIED.

1

Petitioner was originally convicted of three counts of first-degree premeditated murder and
three counts of first-degree felony murder, based on the murder of three victims. On appeal, the Michigan
Court of Appeals ordered that petitioner’s judgment of sentence be modified to reflect three convictions for
first-degree murder, each supported by two theories, premeditated murder and felony murder.

1

I. Introduction
Petitioner was convicted of the above offenses following a jury trial in the
Wayne County Circuit Court, in which he was tried jointly with co-defendant
Lamar Woods, who was acquitted of all the charges. 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):
Defendant was convicted, following a jury trial, of three counts of
first-degree premeditated murder, MCL 750.316(1)(a), three counts of
first-degree felony murder, MCL 750.316(1)(b), felon in possession of
a firearm, MCL 750.224f, and possession of a firearm during the
commission of a felony, MCL 750.227b, arising from the shooting
deaths of three victims. He was sentenced to concurrent terms of life
imprisonment for each of the six murder convictions, and thirty-eight
months to five years' imprisonment for the felon-in-possession
conviction, and to a consecutive two-year term for the felony-firearm
conviction. He appeals as of right. We affirm defendant's convictions,
but remand for modification of the judgment of sentence.
The prosecutor introduced testimony at trial that had been previously
given by a witness at a proceeding pursuant to an investigative
subpoena. The witness had testified at the subpoena proceeding that
he saw defendant, carrying an AK-47, enter the victims’ house shortly
before the killings. The witness had also testified that defendant came
to his house later, still carrying a weapon, and threatened that he would
kill the witness unless he drove defendant to the hospital. At trial, the
witness admitted that he made the statements under oath, but denied
that they were true.
Evidence was also introduced of the witness’ oral and written
statements to police, indicating that defendant told the witness he was
going to rob someone, that the witness saw defendant enter the victims’
house with an AK-47, and that defendant later told him that he had
been shot, and that “some people tried to rob him, but he killed them.”
2

The witness testified at trial that he understood when he gave his
statements that he had the right to remain silent and the right to have
an attorney present. The witness acknowledged that he told the police
that defendant threatened to kill him and his mother if he told the police
what happened, and that defendant told the witness that he would be
watched to be sure he did not “snitch.” 2 The witness testified at trial
that none of the things he told the police were true.
Girlfriends of one of the victims testified that the victims were planning
to engage in a drug transaction with “friends from around the block to
make some extra money.”
According to the caller ID in the victims’ home, the last call made from
the home was to defendant’s telephone number. No guns or drugs
were found in the house. There was evidence that more than one type
of weapon had been fired, a trail of blood leading away from two of the
victims and bloodstains outside on the driveway, but no blood analysis
or gunshot residue tests were conducted by the police.
Defendant also gave the police a statement, in which he admitted that
he was in the house at the time of the killings, where he took cocaine
and “cooked it up,” but claimed that he had also been a victim of the
crime by two unknown men. Defendant suffered from six gunshot
wounds and said that he pretended to be dead until the assailants left,
and then went to the hospital. Defendant told the police that he did not
check on the other victims or call 911 because he did not want to be
involved.
People v. White, No. 249210, * 1-2; 2004 WL 2624722, * 1 ((Mich.Ct. App.
November 18, 2004).
Petitioner’s conviction was affirmed on appeal. Id.; lv. den. 473 Mich. 884;
699 N.W.2d 705 (2005). Petitioner then filed a post-conviction motion for relief

2

The witness was required to appear at defendant's preliminary examination, where he testified
that his statements implicating defendant were all lies. The witness' home burned down soon afterwards.
(footnote original).

3

from judgment pursuant to M.C.R. 6.500, et. seq., which was denied. People v.
White, No. 02-005241-01 (Third Judicial Circuit Court, March 30, 2007). The
Michigan appellate courts denied petitioner leave to appeal. People v. White, No.
284484 (Mich.Ct.App. November 14, 2008); lv. den. 484 Mich. 866; 769 N.W. 2d
660 (2009).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Admission of the investigative subpoena testimony of witness
Romonda McCloud as substantive evidence violated the defendant's
Fifth, Sixth, and Fourteenth amendment rights to due process of law
and a fair trial where the foundational requirements for admissibility
under MRE801(d)(1)(a) had not been met.
II. The admission of Romonda McCloud's investigative subpoena
testimony as substantive evidence violated petitioner's Sixth and
Fourteenth amendment rights of confrontation.
III. The admission of the prior inconsistent statements of Romonda
McCloud to police violated petitioner's Fifth, Sixth, and Fourteenth
amendment rights to due process of law and a fair trial where no
limiting instruction was given to clarify their permissive use as
impeachment evidence only and not as substantive evidence of guilt.
IV. The prosecutor engaged in impermissible misconduct in violation
of petitioner's Fifth, Sixth, and Fourteenth amendment due process
rights to a fair trial where she called a witness known to be adverse
or hostile, referred to impeachment evidence as substantive, and
elicited inadmissible hearsay statements from witnesses.
V. Petitioner's due process right to a fair trial was violated where the
investigative subpoena testimony introduced at trial was inadmissible
as a matter of law where the prosecutor failed to comply with the
statute and advise the witness of his right to object to participate in
the investigative subpoena testimony, thus constituting a structural
defect.

4

VI. Petitioner's due process right to a fair trial was violated where the
investigative subpoena testimony introduced at trial was inadmissible
as a matter of law where petitioner's counsel requested production of
the subpoena challenging its content, the trial court ordered
production of the subpoena, and the prosecutor had no subpoena to
produce, thus constituting a structural defect.
VII. The introduction of inadmissible hearsay was not harmless error
and deprived petitioner of his due process right to a fair trial. 3
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for
habeas cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
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.
3

Petitioner’s seventh claim is not an independent ground for relief, but is merely an argument
that petitioner is entitled to habeas relief because the complained of errors are not harmless.

5

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 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 (2010)((quoting Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 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, 786 (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
6

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. at 786. 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. “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
Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in
judgment)). A “readiness to attribute error [to a state court] is inconsistent with
the presumption that state courts know and follow the law.” Woodford, 537 U.S.
at 24. 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.” Harrington, 131 S. Ct. at
786-87.
7

III. Discussion
A. Claims # 1, 5, and 6. Claims involving the admissibility of
Romonda McCloud’s investigative subpoena testimony.
The Court will discuss petitioner’s first, fifth, and sixth claims together for
purposes of judicial clarity.
Petitioner contends that Romonda McCloud’s investigative subpoena
testimony should have been suppressed because the prosecutor failed to
comply with the statutory procedures under Michigan law regarding investigative
subpoenas. See M.C.L.A. 767A.1, et. seq. Petitioner further contends that the
prior inconsistent subpoena testimony should have been excluded because it
was uncorroborated. Petitioner argues that McCloud’s investigative subpoena
testimony should not have been admitted pursuant to M.R.E. 801(d)(1)(A),
because the investigative subpoena hearing did not qualify as a prior proceeding
under which such testimony could be admitted. Petitioner further argues that
McCloud’s investigative subpoena testimony should have been excluded
because it had been coerced by the prosecutor and the police and obtained in
violation of his right to counsel.
Petitioner would not be entitled to habeas relief on his claim that the
prosecutor failed to comply with state law requirements regarding investigative
subpoenas. The Supreme Court has held that “‘federal habeas corpus review
does not lie for errors of state law.’ ” Estelle v. McGuire, 502 U.S. 62, 67

8

(1991)(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990); See also Williams v.
White, 183 F. Supp. 2d 969, 977 (E.D.Mich. 2002). The Sixth Circuit has held
that “[i]n a federal habeas corpus proceeding, it is not the province of a federal
appellate court to review the decision of the state’s highest court on purely state
law.” Long v. Smith, 663 F.2d 18, 23 (6th Cir. 1981). “[E]rrors by a state court in
the admission of evidence are not cognizable in habeas corpus proceedings
unless they so perniciously affect the prosecution of a criminal case as to deny
the defendant the fundamental right to a fair trial.” Kelly v. Withrow, 25 F.3d 363,
370 (6th Cir. 1994).
Any claim that the prosecutor failed to comply with the requirements under
Michigan law for the issuance of an investigative subpoena is non-cognizable on
habeas review. See e.g. Jackson v. Howes, No. 2011 WL 1118682, * 2-3
(W.D.Mich. March 25, 2011).
Likewise, the fact that Mr. McCloud’s prior inconsistent statement from the
investigative subpoena hearing was admitted as substantive evidence would not
entitle him to habeas relief. The use of a witness’ prior inconsistent statement as
substantive evidence, and not merely for impeachment purposes, is not an error
of constitutional dimension. See Isaac v. United States, 431 F. 2d 11, 15 (9th Cir.
1970). Therefore, any claim involving the improper admission of Mr. McCloud’s
prior inconsistent statements is not cognizable in a federal habeas corpus
proceeding. See e.g. Bolton v. Nelson, 426 F. 2d 807, 809 (9th Cir.
9

1970)(whether procedure followed by state court in permitting use of prior
inconsistent statement was in violation of state decisional rule was not matter for
federal district court to decide, on petition for habeas corpus); See also Roland
v. Mintzes, 554 F. Supp. 881, 890 (E.D. Mich. 1983)(alleged misapplication of
state law in impeachment by prosecutor of petitioner’s accomplice with prior
inconsistent statements was not cognizable in federal habeas corpus
proceedings).
Petitioner further contends that the trial court erred in admitting McCloud’s
testimony from the investigative subpoena hearing, because such a hearing is
more akin to a police investigation or interrogation than it is to a prior judicial
proceeding; the investigative subpoena testimony should not have been
admitted pursuant to M.R.E. 801(d)(1)(A).
MRE 801(d)(1)(A) provides that a statement is not hearsay if:
[t]he declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement is (A)
inconsistent with the declarant’s testimony, and was given under oath
subject to the penalty of perjury at a trial, hearing, or other proceeding,
or in a deposition.”
This rule is identical to F.R.E. 801(d)(1)(A).
In rejecting petitioner’s claim, the Michigan Court of Appeals ruled that Mr.
McCloud’s investigative subpoena testimony was akin to grand jury testimony, in
that McCloud was advised that he could have an attorney, his testimony was
given under oath, and the testimony was recorded by a court reporter. White,
10

Slip. Op. at * 3. The Michigan Court of Appeals further concluded that the
investigative subpoena procedure was “investigatory, ex parte, inquisitive,
sworn, basically prosecutorial, held before an officer other than the arresting
officer, recorded, and held in circumstances of some legal formality.” Id. at * 4
(quoting United States v. Livingston, 661 F.2d 239, 243 (D.C. Cir. 1981). Finally,
the Michigan Court of Appeals concluded that there was “overwhelming proof
that the witness did in fact make the prior inconsistent statement,” because
McCloud testified at trial that he had made the statement. Id.
Under both federal and Michigan law, a prior inconsistent statement that is
made under oath is not considered hearsay and can be used as substantive
evidence. See United States v. Ricketts, 317 F.3d 540, 544 (6th Cir. 2003)(citing
F.R.E. 801(d)(1)(A)); People v. Chavies, 234 Mich. App. 274, 281-84; 593 N.W.
2d 655 (1999)(citing M.R.E. 801(d)(1)(A)). Petitioner acknowledges that “[T]here
is precious little case law discussing whether testimony taken pursuant to an
investigative subpoena qualifies as a ‘proceeding’ for purposes of MRE
801(d)(1)(A). In fact, counsel could not locate a precedential published case
which addressed that issue.” 4
In United States v. Mornan, 413 F. 3d 372, 378-79 (3rd Cir. 2005), the
Third Circuit Court of Appeals held that a prosecution witness' prior inconsistent
statement which had been given to a prosecutor and postal inspector under oath
4

See Brief in Support of Petition for Writ of Habeas Corpus, p. 20.

11

at a video deposition was admissible pursuant to F.R.E. 801(d)(1)(A). The Third
Circuit’s approval of the admission of a videotaped deposition at a federal
criminal trial precludes habeas relief, because it shows that “fairminded jurists
could disagree” on the correctness of the Michigan Court of Appeals’ decision
that the investigative subpoena hearing, which was similar in many respects to a
deposition, qualfied as a “proceeding” under M.R.E. 801(d)(1)(A). Richter, 131 S.
Ct. at 786.
The United States Supreme Court has yet to determine what sort of prior
hearing would constitute a “prior trial, hearing, or other proceeding,” or “a
deposition” under F.R.E. 801(d)(1)(A) or any of its state counterparts. Given the
lack of holdings by the Supreme Court on the issue of whether an investigative
subpoena hearing would qualify as a “proceeding” within the meaning of
801(d)(1)(A), the Michigan Court of Appeals’ rejection of petitioner’s claim was
not an unreasonable application of clearly established federal law. See Wright v.
Van Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77 (
2006).
Petitioner further contends that McCloud’s investigative subpoena
testimony should have been suppressed because it was coerced and obtained in
violation of McCloud’s right to counsel. Respondent argues that petitioner lacks
standing to challenge the alleged violations of McCloud’s constitutional rights.
Under both federal and Michigan law, a criminal defendant does not have
12

any standing to challenge the voluntariness of a statement made by a witness to
the police, because the privilege against self-incrimination of the Fifth and
Fourteenth Amendments is personal in nature and does not extend to third
parties called as witnesses at trial. United States v. Nobles, 422 U.S. 225, 234
(1975); Berry v. Mintzes, 529 F. Supp. 1067, 1075 (E.D. Mich. 1981); People v.
Arthur Jones, 115 Mich. App 543, 547-48; 321 N.W. 2d 723 (1982), aff'd 419
Mich. 577 (1984). Likewise, the Sixth Amendment right to counsel is also
personal and cannot be asserted vicariously. Texas v. Cobb, 532 U.S. 162, 172,
n. 2 (2001)(“The Sixth Amendment right to counsel is personal to the defendant
and specific to the offense.”); United States v. Sabatino, 943 F. 2d 94, 96, n. 1
(1st Cir. 1991)(Sixth Amendment rights “are personal in nature and cannot be
asserted vicariously”); United States v. Fortna, 796 F. 2d 724, 732 (5th Cir. 1986)
(holding that Sixth Amendment rights of a defendant are personal and cannot be
asserted by another); Tate v. Yenoir, 537 F. Supp. 306, 307-08 (E.D. Mich.
1982)(plaintiff could not vicariously assert the Sixth Amendment rights of another
person in a § 1983 civil rights complaint). Petitioner lacks standing to challenge
the alleged violations of McCloud’s constitutional rights.
While the Fifth Amendment right against compelled incrimination is a
personal right and may not be asserted on another's behalf, the Sixth Circuit has
held that use of another person's coerced testimony may violate a defendant's
rights under the Due Process Clause of the Fourteenth Amendment. See
13

Bradford v. Johnson, 476 F. 2d 66 (6th Cir. 1973), aff'g 354 F.Supp. 1331 (E.D.
Mich.1972). Petitioner, nonetheless, is not entitled to habeas relief on his claim
for several reasons.
First, the Sixth Circuit decided Bradford many years prior to the enactment
of the AEDPA. A habeas court may only look at the holdings of the United
States Supreme Court as they existed at the time of the relevant state court
decision to determine whether the state court decision was contrary to, or an
unreasonable application of, clearly established federal law. Mitzel v. Tate, 267
F. 3d 524, 530-531 (6th Cir. 2001). A habeas court cannot look to this circuit’s
decisions, or other courts of appeals, when deciding whether a state court’s
decision was contrary to, or an unreasonable application of, clearly established
federal law. Id.
The Supreme Court had not yet decided whether the admission of a
coerced third-party statement against a criminal defendant is unconstitutional.
See Samuel v. Frank, 525 F. 3d 566, 569 (7th Cir. 2008)(sexual assault victim’s
out of court statements to the police were admissible even though the police told
the victim she would not get her baby back if she did not cooperate). A witness’
coerced testimony is different from a defendant's coerced statement because
“confessions tend to be devastating evidence in a jury trial because jurors find it
difficult to imagine someone confessing to a crime if he is not guilty, unless the
pressures exerted on him to confess were overwhelming.” Id. That the case for
14

exclusion of a third-party’s coerced statement “is so much weaker...than in the
case of a defendant's coerced confession is a further clue that exclusion would
require the creation of new law rather than the application of an existing
principle.” Id. Therefore, whether a state court is “right or wrong to refuse to
extend the bar against the use of a defendant's coerced statement to that of a
nondefendant witness,” a state court would not be “unreasonable in refusing to
do so[;]”. Id. at 571.
In the absence of any clearly established federal law requiring the
suppression of a nondefendant witness’ coerced testimony, petitioner would not
be entitled to habeas relief on his claim.
Even where police conduct in obtaining a statement from a witness is
inappropriate, if the conduct is “not so extreme that it violates a sense of
fundamental fairness, shocking to universal justice,” a habeas petitioner’s due
process rights are not violated where the petitioner is able to cross-examine the
witness regarding the circumstances surrounding the police interrogation. Wilcox
v. Ford, 813 F. 2d 1140, 1149 (11th Cir. 1987) (internal quotation omitted). The
opportunity for cross examination allows the jury “adequate opportunity to
assess the proper weight to be accorded to the challenged evidence.” Id.
In the present case, Romonda McCloud was cross-examined extensively
by petitioner’s counsel and co-defendant’s counsel concerning the
circumstances surrounding his arrest and interrogation by the police. (Tr.
15

3/11/2003, pp. 177-94; Tr. 3/12/2003, pp. 5-24; 25-59). McCloud testified that at
the time he gave his investigative subpoena testimony, he had been in police
custody for three days and had been told by the officers that he was a suspect in
these murders and would go to prison for life unless he implicated petitioner in
the murders. Detectives had spoken to McCloud several times. He had not
slept, had been given water but no food, and had been denied contact with his
family. McCloud testified that he was taken to the Frank Murphy Hall of Justice
for the investigative subpoena testimony in handcuffs and was denied access to
a telephone, with which he could have contacted an attorney. The jury,
therefore, had a sufficient basis to determine the reliability of McCloud’s
investigative subpoena testimony.
In the present case, there is no clearly established Supreme Court law
requiring the suppression of a nondefendant witness’ coerced statement to the
police. The cross-examination of McCloud provided the jury an opportunity to
assess the credibility and reliability of McCloud’s investigative subpoena
testimony. This Court concludes that under the circumstances, it was not
unreasonable for the Michigan Court of Appeals to uphold the trial court’s
decision to permit the introduction of McCloud’s investigative subpoena
testimony into evidence. Petitioner is not entitled to habeas relief on his first,
fifth, and sixth claims.
B. Claim # 2. Confrontation Clause claim.
16

Petitioner next contends that the admission of Mr. McCloud’s investigative
subpoena testimony violated his Sixth Amendment right to confrontation.
There is no Confrontation Clause problem when the witness testifies at
trial and is subject to unrestricted cross-examination. United States v. Owens,
484 U.S. 554, 560 (1988); See also Crawford v. Washington, 541 U.S. 36, 59, n.
9 (2004); U.S. v. Mayberry, 540 F. 3d 506, 516 (6th Cir. 2008). The admission of
a witness’ prior inconsistent statement pursuant to F.R.E. 801(d)(1)(A) does not
violate the Confrontation Clause where the witness testifies at trial, concedes
making the prior statements, and is subject to cross-examination. See California
v. Green, 399 U.S. 149, 164 (1969); Mayberry, 540 U.S. at 516.
McCloud testified at trial and acknowledged making the prior inconsistent
statements at the investigative subpoena testimony. McCloud was subject to
extensive, unrestricted cross-examination regarding his prior inconsistent
statement. Because McCloud testified at petitioner’s trial and was subject to
cross-examination, the admission of McCloud’s prior inconsistent statement from
the investigative subpoena hearing did not violate petitioner’s right to
confrontation. Petitioner is not entitled to habeas relief on his second claim.
C. Claim # 3. The jury instruction claim.
Petitioner next contends that the trial court failed to clarify to the jurors that
McCloud’s prior inconsistent statements to the police could only be used as
impeachment evidence and not as substantive evidence of petitioner’s guilt.
17

Petitioner argues that the trial judge should have given the jurors a limiting
instruction when McCloud’s prior inconsistent statements to the police were read
into the record that they could only be used as impeachment evidence.
Petitioner further claims that the trial court failed to sufficiently differentiate for
the jury the difference between McCloud’s prior inconsistent statements to the
police, which could only be used for impeachment, and his prior inconsistent
testimony at the investigative subpoena hearing, which could be used as
substantive evidence.
At the conclusion of trial, the judge instructed the jurors that McCloud had
made several prior inconsistent statements and that these statements could not
be used to decide whether the elements of the crime had been established but
only could be used to determine whether the witness was being truthful. (Tr.
3/21/2003, p. 13). The judge then instructed that if the witness testified that the
prior statement was true or if the prior inconsistent statement was made under
oath subject to the penalty of perjury, then the statement could be used as “proof
of the facts in the statement.” Id. The judge, however, did not specifically
instruct the jurors that only McCloud’s testimony from the investigative subpoena
hearing qualified under this definition as substantive evidence.
The burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack upon the constitutional validity of
a state court conviction is even greater than the showing required in a direct
18

appeal. The question in such a collateral proceeding is whether the ailing
instruction so infected the entire trial that the resulting conviction violates due
process, not merely whether the instruction is undesirable, erroneous, or even
“universally condemned”, and an omission or incomplete instruction is less likely
to be prejudicial than a misstatement of the law. Henderson v. Kibbee, 431 U.S.
145, 154-155 (1977). The challenged instruction must not be judged in isolation
but must be considered in the context of the entire jury charge. Jones v. United
States, 527 U.S. 373, 391 (1999). Further, any ambiguity, inconsistency or
deficiency in a jury instruction does not by itself necessarily constitute a due
process violation. Waddington v. Sarausad, 129 S.Ct. 823, 831 (2009). It is not
enough that there might be some “slight possibility” that the jury misapplied the
instruction. Id. A habeas petitioner’s burden of showing prejudice is especially
heavy when a petitioner claims that a jury instruction was incomplete, because
an omission, or an incomplete instruction, is less likely to be prejudicial than a
misstatement of the law. See Hardaway v. Withrow, 305 F. 3d 558, 565 (6th Cir.
2002).
The use of a witness’ prior inconsistent statement as substantive
evidence, and not merely for impeachment purposes, is not an error of
constitutional dimension. See Isaac v. United States, 431 F. 2d at 15. Therefore,
any jury instruction that would permit the jury to use to a witness’ prior
inconsistent statement as substantive evidence and not solely for impeachment
19

is not a constitutional error which would require reversal of a criminal conviction.
Id.
McCloud’s investigative subpoena testimony was properly admissible as
substantive evidence of petitioner’s guilt pursuant to M.R.E. 801(d)(1)(A) and
clearly implicated petitioner in the murders. McCloud’s prior statements to the
police were duplicative of this evidence. Because McCloud’s investigative
subpoena testimony established petitioner’s guilt, the trial court’s failure to clarify
that McCloud’s prior inconsistent statements to the police could only be used as
impeachment evidence was harmless error that would not entitle petitioner to
habeas relief. See e.g. Doss v. Bock, 89 Fed.Appx. 964, 965-66 (6th Cir.
2004)(state court’s determination that failure to give jury instruction on prior
inconsistent statements was harmless error was not unreasonable application of
Supreme Court precedent, and thus did not support federal habeas relief; in light
of admissible evidence, which included prior testimony, result of trial likely would
have been the same if instruction had been given). Petitioner is not entitled to
habeas relief on his third claim.
D. Claim # 4. The prosecutorial misconduct claim.
Petitioner next contends that he was deprived of a fair trial because of
prosecutorial misconduct.
The United States Supreme Court has stated that prosecutors must
“refrain from improper methods calculated to produce a wrongful conviction.”
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Berger v. United States, 295 U.S. 78, 88 (1935). When a petitioner seeking
habeas relief makes a claim of prosecutorial misconduct, the reviewing court
must consider that the touchstone of due process is the fairness of the trial, not
the culpability of the prosecutor. On habeas review, a court’s role is to
determine whether the conduct was so egregious as to render the entire trial
fundamentally unfair. Serra v. Michigan Department of Corrections, 4 F. 3d
1348, 1355-1356 (6th Cir. 1993). When analyzing a claim of prosecutorial
misconduct, a court must initially decide whether the challenged statements
were improper. Boyle v. Million, 201 F. 3d 711, 717 (6th Cir. 2000). If the conduct
is improper, the district court must then examine whether the statements or
remarks are so flagrant as to constitute a denial of due process and warrant
granting a writ. Id. In evaluating prosecutorial misconduct in a habeas case,
consideration should be given to the degree to which the challenged remarks
had a tendency to mislead the jury and to prejudice the accused, whether they
were isolated or extensive, whether they were deliberately or accidentally placed
before the jury, and, except in the sentencing phase of a capital murder case,
the strength of the competent proof against the accused. Serra, 4 F.3d at 135556; See also Simpson v. Warren, 662 F. Supp. 2d 835, 853 (E.D. Mich. 2009).
“The Supreme Court has clearly indicated that the state courts have substantial
breathing room when considering prosecutorial misconduct claims because
‘constitutional line drawing [in prosecutorial misconduct cases] is necessarily
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imprecise.’” Slagle v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006)(quoting Donnelly
v. DeChristoforo, 416 U.S. 637, 645 (1974)). In deciding whether prosecutorial
misconduct mandates that habeas relief be granted, a federal court must apply
the harmless error standard. See Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.
1997).
Petitioner first contends that the prosecutor committed misconduct by
calling Romonda McCloud as a hostile witness in order to admit his prior
inconsistent statements into evidence.
Under F.R.E. 607, it is proper for a prosecutor to impeach the credibility of
his or her own witness. See U.S. v. Faymore, 736 F. 2d 328, 334 (6th Cir. 1984).
Although F.R.E. 607 is not controlling in a state trial, it “certainly provides
persuasive evidence that allowing the prosecutor to impeach his own witnesses
does not rise to a constitutional violation meriting habeas corpus relief.” Lyle v.
Koehler, 720 F. 2d 426, 429 (6th Cir. 1983). As mentioned above, Mr. McCloud’s
investigative subpoena testimony was admissible as substantive evidence
pursuant to M.R.E. 801(d)(1)(A). Petitioner has failed to show that there was
anything improper about the prosecutor calling McCloud to testify.
Petitioner next contends that the prosecutor asked questions about the
family circumstances which were irrelevant and were asked in order to elicit
sympathy for the victims.
The Sixth Circuit has noted that there are no Supreme Court cases which
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support the proposition that a prosecutor’s questions that simply call for answers
that are inadmissible due to relevancy constitute prosecutorial misconduct that
rises to the level of a federal due process violation. See Wade v. White, 120
Fed. Appx. 591, 594 (6th Cir. 2005). The fact that the prosecutor attempted to
elicit irrelevant evidence about the victim’s family circumstances would not
entitle petitioner to habeas relief. Id.
Regardless of whether the prosecutor’s appeals to the jury’s emotions or
sympathies was improper, this would be insufficient to render the trial
fundamentally unfair, since it was likely that the nature of the crime itself would
have produced juror sympathy even before the prosecutor made any of these
comments. See Millender v. Adams, 187 F. Supp. 2d 852, 875-76 (E.D. Mich.
2002)(citing Walker v. Gibson, 228 F. 3d 1217, 1243 (10th Cir. 2000)). This
portion of petitioner’s claim was also defeated by the fact that the trial court
instructed the jury that they were not to let sympathy or prejudice influence their
decision (Tr. 3/21/2003, p. 4). Id., see also Welch v. Burke, 49 F. Supp. 2d 992,
1006 (E.D. Mich. 1999).
Petitioner next argues that the prosecutor committed misconduct by
eliciting inadmissible hearsay testimony from Stephanie Taylor and Nicole
Anderson that one of the victims was expecting to engage in a drug transaction.
Even if the prosecutor’s questions amounted to misconduct, such error was
harmless in light of petitioner’s own testimony that he was at the victims’ house
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using cocaine at the time of the murder.
Petitioner next contends that the prosecutor engaged in misconduct by
asking a series of speculative questions regarding the illegal drug trade. A
review of the transcripts shows that the judge sustained the objections,
sometimes very emphactically, to most of these questions. (Tr. 3/18/2003, pp. 916). Because the trial judge quickly sustained defense counsel’s objections to
these questions, Petitioner was not deprived of a fair trial because of
prosecutorial misconduct. U.S. v. Galloffway, 316 F.3d 624, 633 (6th Cir. 2003).
With respect to the prosecutor’s final question, the prosecutor was
permitted by the trial judge to ask Sargent Willson whether a person who leaves
a gun at the scene of a shooting could be connected to the shooting if the bullet
in the victim’s body matched the gun and the gun was traced to the person who
fired it. The judge overruled defense counsel’s objection to the question. (Tr.
3/18/2003, pp. 15-16).
Although Petitioner has framed his improper question claim as a
prosecutorial-misconduct challenge, “it amounts in the end to a challenge to the
trial court’s decision to allow the introduction of this evidence.” Webb v. Mitchell,
586 F. 3d 383, 397 (6th Cir. 2009). “A prosecutor may rely in good faith on
evidentiary rulings made by the state trial judge and make arguments in reliance
on those rulings.” Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008). The judge
ruled that the prosecutor could ask this question. The prosecutor’s question to
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the witness was relevant and admissible because it went to whether or how a
murder weapon could be traced to the person who fired it. A prosecutor does
not commit misconduct by asking witnesses relevant questions. See Slagle, 457
F. 3d at 518.
Petitioner finally claims that the prosecutor used McCloud’s prior
inconsistent statements to the police as substantive evidence and not just to
impeach his credibility.
In the present case, in light of the trial court’s instruction to the jury that the
lawyers’ statements and arguments were not evidence, any possible use of
McCloud’s prior inconsistent statements by the prosecutor as substantive
evidence did not render Petitioner’s trial fundamentally unfair. (Tr. 3/21/2003, p.
7). See Adams v. Holland, 168 Fed. Appx. 17, 20 (6th Cir. 2005). In this case,
the prosecutor’s use of McCloud’s prior statements to the police in closing
argument argument did not “transmute” the statements “evidentiary use from
impeachment to substantive evidence of guilt.” Id. at 21. Petitioner is not entitled
to habeas relief on his fourth claim.
IV. Conclusion
For the reasons discussed, state court adjudication of the Petitioner’s
claims did not result in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law as determined by the
United States Supreme Court. Nor did the state court adjudication result in a
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decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding. This Court concludes that
the Petitioner is not entitled to federal habeas relief on the claims contained in
his petition.
In order to obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
To demonstrate this denial, the applicant is required to show that reasonable
jurists could debate whether, or 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,
483-84 (2000). When a district court rejects a habeas Petitioner’s constitutional
claims on the merits, the Petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims to be
debatable or wrong. Id. at 484. “The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.”
Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
The Court finds that a certificate of appealability is warranted with respect
to the trial court’s admission of Petitioner’s investigative subpoena hearing
testimony.
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of
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habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
GRANTED in accordance with the opinion.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: November 30, 2011
I hereby certify that a copy of the foregoing document was served upon counsel
of record on November 30, 2011, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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