Edwards v. Bell
OPINION and ORDER DENYING re 1 Petition for Writ of Habeas Corpus, declining to issue a certificate of appealability and granting leave to appeal in forma pauperis. Signed by District Judge George Caram Steeh. (DGoo) Modified on 2/14/2012 (DGoo).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 2:09-CV-14135
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING
LEAVE TO APPEAL IN FORMA PAUPERIS
Willie Edwards, (“Petitioner”), confined at the Macomb Correctional Facility in
New Haven, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for armed
robbery, M.C.L.A. 750.529; carrying a dangerous weapon with unlawful intent, M.C.L.A.
750.226; and being a fourth felony habitual offender, M.C.L.A. 769.12. For the reasons
stated below, the petition for writ of habeas corpus is DENIED.
Petitioner was convicted of the above charges following a jury trial in the
Saginaw County Circuit Court. 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.
JC Penney loss prevention officers observed defendant take four pairs of
khaki pants from a store display, conceal them in a garbage bag, and leave
the store with the merchandise without paying for it. The officers followed
defendant out of the store and, after identifying themselves as loss
prevention personnel, asked defendant to return to the store. Defendant
stopped and dropped the bag, then opened up a blue-handled Sheffield
folding knife and pointed it at the officers. Defendant directed the officers to
“stay back away from me or I'll cut you.” Although the knife contained both
a knife blade and a razor blade part, one of the officers testified that it was
the knife blade that was brandished.
Defendant thereafter left the garbage bag on the ground and ran across the
street and into another store, where police officers found him in a bathroom.
An unsheathed razor blade was found in defendant’s pocket, and a
blue-handled knife was found in a wastebasket in the bathroom. At trial,
defendant took the stand and admitted that he shoplifted the pants and that
he brandished the blue-handled knife at the loss prevention officers in an
attempt to escape. It was generally argued by trial counsel, however, that
defendant did not use the knife to accomplish the taking and, therefore, he
was not guilty of armed robbery.
People v. Edwards, No. 267212, * 1 (Mich.Ct.App. March 13, 2007).
Petitioner’s conviction was affirmed on appeal. Id; lv. den. 479 Mich. 866, 735
N.W.2d 232 (2007).
Petitioner then filed a post-conviction motion for relief from judgment with the trial
court pursuant to M.C.R. 6.500, et. Seq., which was denied. People v. Edwards, No. 05025985-FC (Saginaw County Circuit Court, June 30, 2008). The Michigan appellate
courts denied petitioner leave to appeal. People v. Edwards, No. 287492 (Mich.Ct.App.
December 2, 2008); lv. den. 484 Mich. 867, 769 N.W.2d 660 (2009).
Petitioner seeks habeas relief on the following grounds:
I. Appellate counsel denied defendant his Six[th] Amendment constitutional
right to the effective assistance of counsel by counsel’s failure to raise
numerous meritorious claims on appeal, failure to raise these claims denied
defendant a true and adverse right to his first appeal.
II. Defendant was denied his state and federal constitutional rights to
effective assistance of counsel where counsel’s cumulative error denied the
defendant a fair trial and true adversarial process.
III. It was unconstitutional for the defendant to be convicted of an indictment
the defendant was never indicted on. Defendant is entitled to resentencing
because he was erroneously sentenced as a fourth felony offender where the
prosecutor used a conviction not attributable to defendant for enhancement
purposes. The prosecutor’s error caused Mr. Edwards to be sentenced on
the basis of inaccurate information. Trial counsel and prior appellate counsel
were ineffective in not raising this issue.
IV. Was it unconstitutional for the defendant to be convicted of an indictment
the defendant was never indicted on.
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
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–
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
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. Taylor, 529 U.S. 362, 40506 (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 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. 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 Jackson v. Virginia,
443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)). Thus, 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. 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 or her 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.
A. The procedural default issue.
Respondent contends that petitioner’s claims are procedurally defaulted,
because he raised them for the first time in his post-conviction motion for relief from
judgment and failed to show cause for failing to raise these issues in his appeal of
right, as well as prejudice, as required by M.C.R. 6.508(D)(3).
Under the procedural default doctrine, a federal habeas court will not review a
question of federal law if the state court’s decision rests on a substantive or procedural
state law ground that is independent of the federal question and is adequate to support
the judgment. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). However, “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 the procedural bar.” Harris v. Reed, 489
U.S. 255, 263 (1989). If the last state court judgment contains no reasoning, but
simply affirms the conviction in a standard order, the federal habeas court must look to
the last reasoned state court judgment rejecting the federal claim and apply a
presumption that later unexplained orders upholding the judgment or rejecting the
same claim rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803
In the present case, the Michigan Supreme Court rejected petitioner’s postconviction appeal on the ground that “the defendant has failed to meet the burden of
establishing entitlement to relief under MCR 6.508(D).” This order, however, did not
refer to subsection (D)(3) nor did it mention petitioner’s failure to raise these claims on
his direct appeal as the rationale for rejecting his post-conviction claims. Because the
Michigan Supreme Court’s form order is ambiguous as to whether it refers to
procedural default or a denial of post-conviction relief on the merits, the order is
unexplained. See Guilmette v. Howes, 624 F. 3d 286, 291 (6th Cir. 2010). This Court
must “therefore look to the last reasoned state court opinion to determine the basis for
the state court’s rejection” of the petitioner’s claims. Id.
The Michigan Court of Appeals rejected petitioner’s post-conviction appeal “for
lack of merit on the grounds presented” without mentioning M.C.R. 6.508(D). The trial
court rejected petitioner’s claims on the merits without mentioning M.C.R. 6.508(D)(3)
or petitioner’s failure to raise the claims on his direct appeal as the basis for rejecting
these claims. Both the trial court and the Michigan Court of Appeals denied petitioner’s
claims on the merits and not based on the provisions of M.C.R. 6.508(D). Because the
lower state courts adjudicated petitioner’s claims on the merits, it is not clear that the
Michigan Supreme Court’s form order relied on the procedural bar of M.C.R.
6.508(D)(3) to deny petitioner relief. Because the last reasoned state court decisions
rejected petitioner’s claims on the merits, this Court concludes that petitioner’s claims
are not procedurally defaulted. Guilmette, 624 F. 3d 289, 292.
Moreover, petitioner alleges that his appellate counsel was ineffective for failing
to raise his claims in his appeal of right. Ineffective assistance of counsel may
establish cause for procedural default. Edwards v. Carpenter, 529 U.S. 446, 451-52
(2000). If petitioner could show that he received ineffective assistance of appellate
counsel that rose to the level of a Sixth Amendment violation, it would excuse his
procedural default for failing to raise his claims on his direct appeal in the state courts.
Seymour v. Walker, 224 F. 3d 542, 550 (6th Cir. 2000). Given that the cause and
prejudice inquiry for the procedural default issue merges with an analysis of the merits
of petitioner’s defaulted claims, it would be easier to consider the merits of these
claims. See Cameron v. Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004).
Additionally, petitioner could not have procedurally defaulted his ineffective assistance
of appellate counsel claim, because state post-conviction review was the first
opportunity that he had to raise this claim. See Guilmette, 624 F. 3d at 291.
B. The merits of petitioner’s claims.
The Court will discuss petitioner’s four claims together because they are
interrelated. In his first claim, petitioner alleges that he was deprived of the effective
assistance of appellate counsel. In his second claim, petitioner alleges that he was
deprived of the effective assistance of trial counsel. In his third claim, petitioner alleges
that he was improperly charged with being a fourth felony habitual offender. In his
fourth claim, petitioner contends that the trial judge improperly allowed the criminal
information to be amended on the day of trial. Because petitioner claims that trial and
appellate counsel were both ineffective for failing to challenge the validity of the
habitual offender charges and the amendment of the information, the Court will
address these two issues together with petitioner’s other ineffective assistance of
1. Standard of Review.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the
defendant must demonstrate that, considering all of the circumstances, counsel’s
performance was so deficient that the attorney was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687
(1984). In so doing, the defendant must overcome a strong presumption that counsel’s
behavior lies within the wide range of reasonable professional assistance. Id. In other
words, petitioner must overcome the presumption that, under the circumstances, the
challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second,
the defendant must show that such performance prejudiced his defense. Id. To
demonstrate prejudice, the defendant must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “Strickland’s test for prejudice is a
demanding one. ‘The likelihood of a different result must be substantial, not just
conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011)(quoting Richter,
131 S. Ct. at 792). The Supreme Court’s holding in Strickland places the burden on
the defendant who raises a claim of ineffective assistance of counsel, and not the
state, to show a reasonable probability that the result of the proceeding would have
been different, but for counsel’s allegedly deficient performance. See Wong v.
Belmontes, 130 S. Ct. 383, 390-91 (2009). The Strickland standard applies as well to
claims of ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F. 3d
602, 617 (6th Cir. 2005).
More importantly, on habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect
but whether that determination was unreasonable-a substantially higher threshold.’”
Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009)(quoting Schriro v. Landrigan,
550 U.S. 465, 473 (2007)). “The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s standard.” Harrington v.
Richter, 131 S. Ct. at 785. Indeed, “because the Strickland standard is a general
standard, a state court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.” Knowles, 129 S. Ct. at 1420 (citing
Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the § 2254(d)(1) standard, a
“doubly deferential judicial review” applies to a Strickland claim brought by a habeas
petitioner. Id. This means that on habeas review of a state court conviction, “[A] state
court must be granted a deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.”Harrington, 131 S. Ct. at 785.
“Surmounting Strickland's high bar is never an easy task.” Id. at 788 (quoting Padilla v.
Kentucky, 130 S. Ct. 1473, 1485 (2010)).
Because of this doubly deferential standard, the Supreme Court has indicated
Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d).
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.
Harrington v. Richter, 131 S. Ct. at 788.
Finally, this Court is aware that “[R]eliance on ‘the harsh light of hindsight’ to
cast doubt on a trial that took place” over six years ago and an appeal of right that took
place almost five years ago “is precisely what Strickland and AEDPA seek to prevent.”
Harrington v. Richter, 131 S. Ct. at 789.
2. The individual claims.1
a. The substitution of counsel claim.
Petitioner does not clearly delineate all of his claims in the body of his brief but has attached a
Sworn Affidavit, in which he brings numerous allegations of ineffective assistance of trial and appellate
counsel. Because petitioner is proceeding pro se, this Court assumes that he wishes to raise all of these
claims before this Court. Because some of the claims are duplicative, this Court will consolidate these
claims when addressing them.
Petitioner first contends that he was deprived of the effective assistance of trial
counsel due to a breakdown in the attorney-client relationship.
On the day scheduled for trial, petitioner’s trial counsel brought a motion to
withdraw as trial counsel. At the hearing, petitioner indicated that he and his attorney
“don’t agree on certain things” and complained that his attorney refused to file a motion
to quash the information on his behalf and failed to call certain witnesses whom
petitioner alleged would testify that petitioner only intended to shoplift and not commit
an armed robbery. Petitioner’s counsel responded that petitioner never provided him
with the names and addresses of the witnesses, which prevented counsel from
contacting them. Counsel further noted that although petitioner wanted him to file a
motion to quash the information, because of a change in the armed robbery and
unarmed robbery statutes a few years prior to petitioner’s trial, this motion would not be
successful. Counsel indicated that he had given a copy of the statutes to petitioner
which indicated this change in the law. Petitioner replied that he had given counsel the
name of a witness, but that when counsel tried to contact this person, the witness
refused to talk to him because he did not know who counsel was. Petitioner indicated
that counsel had informed him that his witnesses did not want to come to court, but
petitioner claimed that the witnesses did not want to speak with counsel because they
did not know who he was and thought that counsel was trying to trick them. The judge
denied the motion, noting that petitioner had rejected a plea offer and that trial was
scheduled to begin that morning before another judge. (Motion Tr.10/4/2005,
pp. 3-8). 2
The Sixth Amendment right to the assistance of counsel does not guarantee a
criminal defendant that he or she will be represented by a particular attorney. Serra v.
Michigan Department of Corrections, 4 F. 3d 1348, 1351 (6th Cir. 1993)(citing Caplin &
Drysdale v. United States, 491 U.S. 617, 624 (1989)). “A defendant is required to show
good cause for a request to substitute counsel and to do so in a timely manner.” See
United States v. Williams, 176 F. 3d 301, 314 (6th Cir. 1999). In determining whether a
court abuses its discretion in denying a motion for substitute counsel, a reviewing court
should consider the timeliness of the motion, the adequacy of the trial court’s inquiry
into the defendant’s complaint, whether the conflict between the attorney and the client
is so great that it resulted in a total lack of communication which prevented an
adequate defense, and a balancing of these factors with “the public's interest in the
prompt and efficient administration of justice.” Id. (citing United States v. Jennings, 83
F. 3d 145, 148 (6th Cir. 1996)).
This Court first notes that petitioner’s request for new counsel was untimely
because it was made on the day of trial. Petitioner offered no reasons to the state
courts or to this Court why he did not bring his dissatisfaction with his counsel up to the
trial court earlier, particularly at a hearing on August 9, 2005, in which petitioner’s
original trial date was adjourned. The Sixth Circuit has noted that when “the granting of
the defendant’s request [for a continuance to obtain new counsel] would almost
There are two different transcripts for October 4, 2005. The first transcript, which will be referred
to as Mot. Tr. 10/4/2005, is the transcript for the motion to withdraw as counsel[This Court’s Dkt. # 7-5(a
duplicate was filed in Dkt. # 7-6)]. The trial transcript from October 4, 2005 will be referred to as Tr.
10/4/2005[This Court’s Dkt. # 7-7].
certainly necessitate a last-minute continuance, the trial judge's actions are entitled to
extraordinary deference.” U.S. v. Whitfield, 259 Fed.Appx. 830, 834 (6th Cir.
2008)(quoting United States v. Pierce, 60 F.3d 886, 891 (1st Cir.1995)); See also
United States v. Reevey, 364 F. 3d 151, 157 (4th Cir. 2004)(“a continuance request for
the substitution of counsel made on the first day of trial is clearly ‘untimely under all but
the most exigent circumstances.’”). The Sixth Circuit has rejected similar requests as
being untimely. See U.S. v. Trujillo, 376 F. 3d 593, 606-07 (6th Cir. 2004)(motion for
substitution of counsel was untimely, coming only three days prior to the start of the
trial); Jennings, 83 F.3d at 148 (motion to continue to obtain new counsel untimely
when it was made the day before trial). In the present case, petitioner’s request for
new counsel on the day of trial was untimely, particularly where petitioner had
opportunities prior to trial to bring his dissatisfaction with counsel to the attention of the
trial court. Whitfield, 259 Fed. Appx. at 834.
Second, the state court judge sufficiently inquired into petitioner’s allegations of
ineffectiveness against counsel. In light of the fact that there were “multiple lengthy
discussions” with petitioner and his defense counsel about their alleged conflicts, there
was no abuse of discretion in denying petitioner’s request for new counsel. See U.S. v.
Vasquez, 560 F. 3d 461, 467 (6th Cir. 2009).
Finally, petitioner is unable to show that he was prejudiced by the failure of the
trial court to substitute counsel, in light of the fact that he received effective assistance
of counsel at trial. Vasquez, 560 F. 3d at 468. “The strained relationship” between
petitioner and his attorney was not a “complete breakdown in communication” that
prevented petitioner from receiving an adequate defense. Id. Indeed, a review of the
record shows that counsel actively participated in the jury selection process, including
making a number of peremptory challenges (Tr. 10/4/2005, pp. 43-53, 55-59, 66-81),
made an opening statement (Tr. 10/5/2005, pp. 22-25), vigorously cross-examined the
witnesses (Id., pp. 48-55, 57-58, 67-69, 82-87, 102-110), put petitioner on the stand to
testify (Id., pp. 114-23) and made a closing argument which in which counsel argued
that although petitioner stole items from the store, he did not intend to commit an
armed robbery. (Tr. 10/6/2005, pp. 14-16).
Petitioner is not entitled to habeas relief on his first claim, because the state trial
court’s decision to refuse to permit petitioner to substitute counsel was not contrary to
clearly established federal law as decided by the United States Supreme Court, so as
to entitle petitioner to habeas relief. See Ray v. Curtis, 21 Fed. Appx. 333, 335 (6th Cir.
b. The failure to call or investigate witnesses.
Petitioner next complains that trial counsel was ineffective for failing to call
several witnesses whom he claims could have provided favorable testimony for
The Court has reviewed the post-conviction applications for leave to appeal that
petitioner filed with the Michigan Court of Appeals and the Michigan Supreme Court. 3
Petitioner failed to give names of the proposed witnesses that he claims trial counsel
should have called at trial, nor did he attach any affidavits from these witnesses to his
post-conviction appeal briefs. Conclusory allegations of ineffective assistance of
See this Court’s Dkt. ## 7-14, 7-15, 7-16.
counsel, without any evidentiary support, do not provide a basis for habeas relief. See
Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). By failing to present any evidence
to the state courts in support of his claim that counsel was ineffective for failing to call
witnesses on his behalf, petitioner is not entitled to an evidentiary hearing on this
ineffective assistance of counsel claim with this Court. See Cooey v. Coyle, 289 F. 3d
882, 893 (6th Cir. 2002)(citing 28 U.S.C. § 2254(e)(2)(A)(ii)). Petitioner has likewise
failed to attach any offer of proof or any affidavits sworn by the proposed witnesses to
his petition for writ of habeas corpus. Petitioner has thus offered, neither to the
Michigan courts nor to this Court, any evidence beyond his own assertions as to
whether the witnesses would have been able to testify and what the content of these
witnesses’ testimony would have been. In the absence of such proof, petitioner is
unable to establish that he was prejudiced by counsel’s failure to call these witnesses
to testify at trial, so as to support the second prong of an ineffective assistance of
counsel claim. See Clark v. Waller, 490 F. 3d 551, 557 (6th Cir. 2007).
c. Failure to file a motion to quash the information.
Petitioner next contends that trial counsel was ineffective for failing to file a
motion to quash the information concerning the armed robbery and carrying a
dangerous weapon charges. Although petitioner does not offer any argument as to
why the motion to quash the information should have been granted, petitioner attached
to his application for leave to appeal to the Michigan Supreme Court a copy of a
handwritten “motion to dismiss” that presumably is the motion that he wished his trial
counsel to file and argue on his behalf. 4 Petitioner essentially argues that because he
did not actually take the property in the presence of any person, he could not be guilty
of armed robbery, even if he subsequently pointed a knife at one of the security
personnel in order to effectuate his escape. Petitioner further argues that he could not
be found guilty of carrying a dangerous weapon with unlawful intent because the knife
blade that he was carrying was not long enough under the statute to constitute a
dangerous weapon and the razor blade on the knife was only a half inch long and thus
could also not qualify as a dangerous weapon.
The testimony at the preliminary examination established that petitioner stole
several pairs of pants from a store and that while being chased by store security
personnel, petitioner removed a folding knife from his pocket and brandished it at them,
threatening to use the knife if the men came any closer. (Tr. 5/2/2005, pp. 4-9).
Petitioner’s use of a knife or razor blade against store security personnel after the
pants had been taken was sufficient under Michigan law to support his armed robbery
conviction, because the force was used to effectuate petitioner’s escape after he had
stolen the items. Effective July 1, 2004, the Michigan Legislature amended both the
armed robbery and unarmed robbery statutes. See People v. Morson,471 Mich. 248,
265, n. 2, 685 N.W.2d 203 (2004)(Corrigan, J., concurring). In pertinent part, the
unarmed robbery statute has now been amended, to include the following definition:
“As used in this section, ‘in the course of committing a larceny’ includes acts
that occur in an attempt to commit the larceny, or during commission of the
larceny, or in flight or attempted flight after the commission of the larceny,
or in an attempt to retain possession of the property.”
See Dkt. # 7-13.
Michigan’s armed robbery statute, M.C.L.A. 750.529,which petitioner was convicted
under, states, in pertinent part:
“A person who engages in conduct proscribed under section 530 and who
in the course of engaging in that conduct, possesses a dangerous weapon
or an article used or fashioned in a manner to lead any person present to
reasonably believe the article is a dangerous weapon, or who represents
orally or otherwise that he or she is in possession of a dangerous weapon,”
...is guilty of armed robbery.
By amending the robbery statutes, the Michigan Legislature sought to explicitly
reinstate what is commonly known as the “transactional approach” to armed and
unarmed robbery, under which force that it used after the initial larceny to effectuate
flight or escape will be sufficient to establish the elements of robbery. Morson, 471
Mich. at 265, n. 2; Turner v. Warren, No. 2006 WL 1109300, * 3, n. 3 (E.D. Mich. April
26, 2006). The Michigan Court of Appeals has since held that force that is used after
the theft in order to flee or escape is sufficient to establish the elements of armed
robbery. See People v. Passage, 277 Mich.App 175, 178; 743 N.W. 2d 746
(2007)(“[T]he use of any force against a person during the course of committing a
larceny, which includes the period of flight, is sufficient under the statute[, and] ‘[f]orce’
is nothing more than the exertion of strength and physical power.”). The testimony
from the preliminary examination was sufficient for the examining magistrate to bind
petitioner over for trial on the armed robbery charge.
With respect to the weapon charge, petitioner raised on direct appeal a claim
that the examining magistrate erred in binding him over for trial on the carrying a
dangerous weapon with unlawful intent charge. Although the Michigan Court of
Appeals reviewed the claim for plain error, due to the fact that no motion to quash had
been filed, the court nevertheless concluded that any failure to quash the information
was harmless error in light of the fact that sufficient evidence had been presented at
trial that petitioner carried a dangerous weapon with unlawful intent. The Michigan
Court of Appeals specifically pointed to evidence that petitioner had been carrying a
knife that contained both a knife blade and a razor blade part. The Michigan Court of
Appeals concluded that a knife that contained both a knife blade and a razor blade
portion qualified as a “dangerous or deadly weapon” within the meaning of M.C.L.A.
750.226. Edwards, Slip. Op. at * 2. The witness at the preliminary examination testified
that the weapon was a “folding knife” that was about six inches in length when opened.
(Tr. 5/2/2005, pp. 12-13).
In this case, there was sufficient evidence presented at the preliminary
examination to bind petitioner over for trial on the armed robbery and carrying a
dangerous weapon with unlawful intent charges. Accordingly, petitioner is unable to
show that counsel was ineffective for failing to file a motion to quash the information.
See e.g. Dell v. Straub, 194 F. Supp. 2d 629, 649 (E.D. Mich. 2002)(counsel not
ineffective for failing to object to the allegedly improper bindover of petitioner at the
preliminary examination, when there was sufficient evidence presented at the
examination to justify the bindover).
d. Failure to adequately advise petitioner about the plea bargain offer.
Petitioner next contends that he was prevented from accepting a plea bargain
offer from the prosecutor, because his trial counsel was unaware of the new armed
robbery statute mentioned above, which changed Michigan law by allowing a person
who uses force to escape from a theft to be convicted of armed robbery. Petitioner
contends that had his counsel known about the law and explained the law to petitioner,
there is a great probability that petitioner would have accepted the prosecutor’s plea
bargain offer of no jail time and five years’ probation. Petitioner further claims that
counsel misinformed petitioner that the prosecutor would not let him accept a guilty
A habeas petitioner who claims that his trial counsel gave him gross misadvice
about whether to accept or reject a plea offer must prove: (1) that his counsel's
performance was objectively deficient, and (2) that but for his counsel's erroneous
advice, there is a reasonable probability that he would have accepted the plea. See
Magana v. Hofbauer, 263 F. 3d 542, 550 (6th Cir. 2001). A habeas petitioner’s
testimony, however, by itself, would be subjective, self-serving, and insufficient to
satisfy the Strickland standard for proving this type of claim. Turner v. State of
Tennessee, 858 F. 2d 1201, 1206 (6th Cir. 1988), vacated on other grounds, 492 U.S.
As an initial matter, petitioner has failed to present any credible evidence that his
attorney failed to adequately advise him about the plea offer and the consequences of
going to trial, because petitioner’s self-serving statements that he was not properly
advised as to the benefits of taking the plea offer are insufficient to prove that counsel
failed to properly advise him concerning whether or not he should plead guilty. See
Jackson v. U.S., 248 F. Supp. 2d 652, 655-56 (E.D. Mich. 2003). Moreover,
petitioner’s allegations are belied and contradicted by the record. At a pre-trial
conference conducted on August 9, 2005 concerning an adjournment of trial, defense
counsel placed on the record that a plea offer had been made, in which petitioner
would plead guilty to felonious assault, carrying a concealed weapon, and retail fraud,
third-degree in exchange for dismissal of the armed robbery charge. Petitioner would
also plead guilty to two counts of carrying a concealed weapons charges in a
companion case. Petitioner would also plead guilty to being an habitual offender. As
part of the plea agreement, petitioner would agree to serve a three year prison term.
The agreement also called for the sentences from the two separate cases to be served
concurrently. On the record, counsel asked petitioner if he had discussed the plea
agreement with petitioner. Petitioner acknowledged that counsel had discussed the
plea agreement with him. Petitioner further agreed that his counsel had advised him
that if he was convicted of the separate criminal cases after trial, the court had the
option of imposing consecutive sentences. Petitioner further indicated on the record
that he was rejecting the plea agreement. In response to defense counsel’s question,
the prosecutor confirmed that the plea agreement as outlined on the record by defense
counsel was an accurate reflection of the terms of the agreement. (Tr. 8/9/2005, pp. 24). There is nothing from this record to indicate that the prosecutor ever offered to
agree to no jail time and probation in exchange for petitioner’s plea. The record also
clearly shows that petitioner was advised by defense counsel of the plea agreement
that had been offered by the prosecutor and that petitioner had rejected the offer.
The credibility of petitioner’s claim that counsel misinformed him that the
prosecutor would not accept his plea of guilty is further undercut by petitioner’s
subsequent allegation discussed below that counsel never discussed trial strategy with
petitioner other than persuade petitioner to accept a plea bargain. Clearly the latter
allegation is at odds with petitioner’s claim that trial counsel misinformed him that the
prosecutor would not accept a plea bargain.
Petitioner further claims that trial counsel was unaware of the changes in the
armed robbery law and had not informed petitioner of these changes, and had he done
so, petitioner would have pleaded guilty. A criminal defense attorney’s “complete
ignorance of the relevant law under which his client was charged” which leads to gross
misadvice to his client whether to accept a plea bargain can amount to ineffective
assistance of counsel. Magana, 263 F. 3d at 550. This Court notes that at the hearing
on the motion to withdraw as attorney, petitioner complained that counsel refused to
file a motion to quash the information that petitioner had wanted to have filed. This
motion, as discussed above, argued that petitioner could not be guilty of armed robbery
because he only used force to effectuate his escape after the theft had been
completed. At the hearing, petitioner indicated that he had only been shoplifting. In
response to petitioner’s complaint about counsel not filing a motion to quash, the
following exchange occurred between the trial judge, counsel, and petitioner:
MR. COWDRY [defense counsel]: He said–he presented the– defense
that– and he wanted a motion to quash the charges, I believe. And
because of the way that the law has been written, what was it, three, four
years ago when the armed robbery statute and the unarmed robbery
statute was changed, and I provided him with a copy of that statute, so he
knows exactly what he–what we’re up against. Didn’t I?
THE DEFENDANT: Of course you did.
THE COURT: You mean the motion to quash the information?
MR. COWDRY: Yeah.
(Motion Tr., 10/4/2005, pp. 3-4).
The prosecutor then elaborated that the facts established that petitioner had
been shoplifting, but that when store security went to apprehend him, he pulled a knife
out, which would amount to armed robbery. (Id., at p. 4).
Within the context of this discussion, it is clear that defense counsel advised
petitioner of the change in the armed robbery statute, in order to explain why a motion
to quash would have been without merit, even providing petitioner with a copy of the
law to review. Because petitioner was made aware of the changes in the law but
chose to proceed to trial anyway, petitioner is unable to establish that counsel provided
deficient advice in regards to accepting the plea.
e. Failure to challenge the habitual offender notice.
Petitioner next contends that trial counsel was ineffective for failing to challenge
the supplemental information that charged petitioner with being a fourth felony habitual
offender and that appellate counsel was ineffective for failing to challenge the
adequacy of the habitual offender charge on direct appeal. In his independent third
claim, petitioner also claims that he was improperly charged with being a fourth felony
habitual offender, because the trial court relied on a 1979 possession of narcotics
conviction that was not attributable to petitioner in sentencing him as a fourth felony
In rejecting petitioner’s claim involving the habitual offender charge, the trial
judge noted that the habitual offender notice that had been filed against petitioner listed
six prior felony convictions that were attributable to him. The trial judge further
observed that petitioner had offered no evidence that this prior conviction was
somehow invalid. The trial judge noted that even if the 1979 conviction was invalid,
petitioner still had five prior felony convictions, more than the three prior felony
convictions that were required to convict a defendant of being a fourth felony habitual
offender under M.C.L.A. 769.12. People v. Edwards, No. 03-025985-FC, * 4 (Saginaw
County Circuit Court, June 30, 2008).
Petitioner again alleges before this Court that
the 1979 possession of narcotics conviction out of Windsor, Ontario was not a felony
conviction and could not be used to charge him with being a fourth felony habitual
offender. Petitioner also appears to argue that a 1988 cases out of Harper Woods
District Court for malicious destruction of property had been reversed. Petitioner
acknowledges, however, that he has a 1982 conviction out of the State of Mississippi
for sale of marijuana, a 1985 conviction for larceny over $ 100.00, a 1975 conviction
out of Montgomery, Alabama for robbery, and a 1992 conviction for malicious
destruction of personal property.
Petitioner’s third claim involving the application of Michigan’s habitual offender
laws is non-cognizable on habeas review, because it involves an application of state
law. See Rodriguez v. Jones, 625 F. Supp. 2d 552, 569 (E.D. Mich. 2009); Grays v.
Lafler, 618 F. Supp. 2d 736, 751 (W.D. Mich. 2008). Petitioner would not be entitled to
relief on his third claim.
With respect to his claim that counsel was ineffective for failing to challenge the
fourth felony habitual offender charge at trial or on direct appeal, as the trial judge
noted in rejecting petitioner’s claim, the fourth felony habitual offender notice listed 6
prior felony convictions. Even if petitioner is correct that the supplemental information
contained two convictions that should not have been listed on the supplemental
information, petitioner acknowledges he has four prior felony convictions, more than
the three prior convictions required to charge a defendant with being a fourth felony
habitual offender. See M.C.L.A. 769.12(1). Because there were no viable grounds for
challenging the habitual offender charges in this case, trial and appellate counsel were
not ineffective for failing to challenge the viability of the habitual offender charges. See
e.g. Cummings v. United States, 84 Fed. Appx. 603, 605 (6th Cir. 2003).
f. Failure to present the defendant an opportunity to review the pre-sentence
report prior to sentencing.
Petitioner next contends that trial counsel was ineffective for failing to afford him
an opportunity to review the pre-sentence investigation report prior to sentencing.
At the time of sentencing, defense counsel indicated that he had reviewed the
pre-sentence investigation report with petitioner and indicated that there were no
corrections or additions. (Tr. 11/28/2005, pp. 2-3). After defense counsel argued for
leniency on the ground that this case was basically a shoplifting case that had gone
“south”, the trial judge asked petitioner if there was anything he would like to add.
Petitioner indicated that he was sorry for what had happened but did not complain to
the judge that he had not had an opportunity to review the pre-sentence report. (Id., pp.
In an event, any error by a defense counsel in failing to read and review a presentence investigation report with a defendant prior to sentencing does not constitute
ineffective assistance of counsel in the absence of any indication that the outcome of
the sentencing would have been different. See United States v. Bartholomew, 974 F.
2d 39, 42 (5th Cir. 1992). See also Siebert v. Jackson, 205 F. Supp. 2d 727, 734-35
(E.D. Mich. 2002). Petitioner has failed to show how he was prejudiced by counsel’s
alleged failure to review the pre-sentence investigation report with him, in that he has
failed to offer any argument as to how his sentence would have been different.
Petitioner is not entitled to habeas relief on this claim.
g. Failure to communicate with petitioner.
Petitioner next claims that counsel failed to correspond with or visit him during
the pendency of the case, other than to attempt to persuade him to accept a plea
In this case, trial counsel’s alleged failure to consult with petitioner did not
prejudice him, and thus could not amount to ineffective assistance, even if counsel
allegedly met with petitioner only to discuss the plea bargain, because petitioner has
failed to offer any arguments or otherwise show how additional consultation with his
counsel could have altered the outcome of the trial. See Bowling v. Parker, 344 F. 3d
487, 506 (6th Cir. 2003). The mere fact that petitioner’s trial counsel may have spent
little time with him is not enough under Strickland to establish ineffective assistance of
counsel, without evidence of prejudice or other defects. Id.
h. Failure to obtain a private investigator.
Petitioner next contends that trial counsel was ineffective for failing to request
that the trial court appoint a private investigator to investigate the case.
In the absence of a showing of prejudice, defense counsel's failure to retain a
private investigator does not constitute ineffective assistance. See Linnen v. Poole, 689
F.Supp.2d 501, 532 (W.D.N.Y. 2010). Petitioner has failed to offer any argument as to
what type of exculpatory information could have been uncovered by a private
investigator. Accordingly, he is not entitled to habeas relief on this claim.
i. Failure to challenge the amendment of the criminal information.
In his fourth claim, petitioner contends that the trial judge improperly permitted
the prosecutor to amend the information on the day of trial concerning the carrying a
dangerous weapon with unlawful intent charge. Petitioner further contends that trial
counsel was ineffective for failing to object to the amendment and that appellate
counsel was ineffective for failing to raise this claim on direct appeal.
The information originally charged that petitioner violated M.C.L.A. 750.226 by
going “armed with a razor and/or a knife having a blade over three inches in length.”
On the day of trial, the prosecutor was permitted to amend the charge to remove the
reference to a blade of over three inches in length and to add a reference to the “other
dangerous ... weapon” portion of the statute.
On direct appeal, in the context of addressing petitioner’s claim involving the
improper bindover on the carrying a dangerous weapon charge, the Michigan Court of
Appeals indicated that it was proper for the prosecutor to amend the information and
that petitioner had failed to argue that he was prejudiced by the amendment. People v.
Edwards, No. 267212, Slip. Op. at * 3. On post-conviction review, the trial judge again
rejected petitioner’s claim, ruling that it was proper for the prosecution to amend the
information. People v. Edwards, No. 05-025985-FC, Slip. Op. at * 3.
M.C.L.A. 750.226 provides:
Any person who, with intent to use the same unlawfully against the person
of another, goes armed with a pistol or other firearm or dagger, dirk, razor,
stiletto, or knife having a blade over 3 inches in length, or any other
dangerous or deadly weapon or instrument, shall be guilty of a felony,
punishable by imprisonment in the state prison for not more than 5 years or
by a fine of not more than 2,500 dollars.
A state criminal defendant has a due process right to be informed of the nature
of the accusations against him or her. Lucas v. O’Dea, 179 F. 3d 412, 417 (6th Cir.
1999). Notice and opportunity to defend against criminal charges as guaranteed by the
Sixth Amendment to the United States Constitution are an integral part of the due
process protected by the Fourteenth Amendment and therefore apply to state
prosecutions. Cole v. Arkansas, 333 U.S. 196, 201 (1948); In Re Oliver, 333 U.S. 257,
273 (1948). “The due process clause of the Fourteenth Amendment mandates that
whatever charging method the state employs must give the criminal defendant fair
notice of the charges against him to permit adequate preparation of his defense.”
Olsen v. McFaul, 843 F. 2d 918, 930 (6th Cir. 1988).
A complaint or indictment need not be perfect under state law so long as it
adequately informs the petitioner of the crime in sufficient detail so as to enable him or
her to prepare a defense. Therefore, an indictment “which fairly but imperfectly informs
the accused of the offense for which he is to be tried does not give rise to a
constitutional issue cognizable in habeas proceedings.” Mira v. Marshall, 806 F. 2d
636, 639 (6th Cir. 1986); Dell v. Straub, 194 F. Supp. 2d at 653-54. “When reviewing
amendments to state charging documents in habeas corpus proceedings, the federal
courts focus on the questions whether the defendant was surprised by the amendment
or otherwise prejudiced in his ability to defend himself at trial.” Rhea v. Jones, 622 F.
Supp. 2d 562, 583 (W.D. Mich. 2008)(citing Tague v. Richards, 3 F.3d 1133, 1141–42
(7th Cir. 1993); Wright v. Lockhart, 854 F.2d 309, 312–13 (8th Cir. 1988)).
Petitioner is unable to show that he was surprised by the amendment of the
information or that he was prejudiced in his ability to defend himself at trial. Petitioner
was already charged with armed robbery and carrying a dangerous weapon with
unlawful intent. The information originally charged petitioner with violating M.C.L.A.
750.226 by going armed with a razor and/or knife having a blade of over three inches
in length. When the prosecutor discovered that the knife/razor combination did not
exceed three inches in length, the prosecutor was permitted to amend the information
to add a reference to petitioner carrying an “other dangerous weapon”. The only
difference between the original carrying a dangerous weapon charge and the amended
charge was that the prosecutor did not have to show that the blade that petitioner was
carrying was over three inches in length, although he would still be required to show
that the knife was a dangerous weapon. Petitioner’s defense at trial was that no
robbery had taken place because he had already taken the property at the time that he
displayed the knife/razor combination to store security. Because petitioner’s defense
to this charge would have been the same regardless of whether he had been charged
with possessing a knife or razor that was over three inches in length or with possessing
any other dangerous weapon, petitioner is unable to establish that he was surprised or
prejudiced by the amendment to the information.
Petitioner is not entitled to habeas relief on his fourth claim. Moreover, because
petitioner has failed to show that he was prejudiced by the amendment to the
information, petitioner is unable to establish that counsel was ineffective for failing to
challenge the amendment of the information at trial or on direct appeal. See Olden v.
U.S., 224 F.3d 561, 567 (6th Cir. 2000)(counsel’s failure to challenge indictment for
variance was not ineffective assistance of counsel, where defendant did not establish
prejudice from any purported variance).
j. Failure to view security cameras in the mall or to subpoena the mall clerks.
Petitioner next contends that trial counsel was ineffective for failing to subpoena
any mall clerks or to view videotapes of the security cameras from the shopping mall or
the parking lot, claiming that the outcome of the case would have been different had
counsel done so.
Petitioner has offered no argument as to how any of this evidence would
exculpate him of the crime. A habeas petitioner cannot show deficient performance or
prejudice resulting from counsel’s failure to investigate if the petitioner does not make
some showing of what evidence counsel should have pursued and how such evidence
would have been material to his or her defense. See Hutchison v. Bell, 303 F. 3d 720,
748 (6th Cir. 2002). Petitioner cannot prevail on his claim that trial counsel was
ineffective for failing to adequately prepare the case or conduct a minimal investigation
because he has failed to show how additional pretrial work counsel had allegedly been
deficient in failing to perform would have been beneficial to his defense. See Martin v.
Mitchell, 280 F. 3d 594, 607-08 (6th Cir. 2002).
k. Failure to prepare petitioner for the witness stand.
Petitioner lastly contends that trial counsel was ineffective for failing to prepare
petitioner to testify on his own behalf at trial.
Any claim that counsel failed to prepare petitioner to testify fails, because
petitioner does not explain what testimony that he would have presented had he been
prepared more effectively by his defense counsel or how that testimony would have
differed materially from the evidence that the jury did consider. See Hill v. Mitchell, 140
Fed. Appx. 597, 598 (6th Cir. 2005).
l. Ineffective assistance of appellate counsel.
In his first claim, petitioner contends that appellate counsel was ineffective for
failing to raise on direct appeal his ineffective assistance of trial counsel claims and his
claims involving the validity of the fourth habitual offender charge and the amendment
of the information.
This Court has already determined that the petitioner’s second, third, fourth
claims are meritless. The Sixth Amendment guarantees a defendant the right to the
effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396
(1985); See also Harris v. Stegall, 157 F. Supp. 2d 743, 747 (E.D. Mich. 2001).
However, “[A]ppellate counsel cannot be found to be ineffective for ‘failure to raise an
issue that lacks merit.’” Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir.
2010)(quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Petitioner has
therefore failed to show that appellate counsel was ineffective for failing to raise these
claims on his appeal of right. Petitioner is not entitled to habeas relief on his first claim.
The Court will deny the petition for writ of habeas corpus. The Court will also
deny a certificate of appealability to petitioner. 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.
For the reasons stated in this opinion, the Court will deny petitioner a certificate
of appealability because he has failed to make a substantial showing of the denial of a
federal constitutional right. See Myers v. Straub, 159 F. Supp. 2d 621, 629 (E.D. Mich.
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP) is a
lower standard than the standard for certificates of appealability. See Foster v.
Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of the
denial of a constitutional right , a court may grant IFP status if it finds that an appeal is
being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a).
“Good faith” requires a showing that the issues raised are not frivolous; it does not
require a showing of probable success on the merits. Foster, 208 F. Supp. 2d at 765.
Although jurists of reason would not debate this Court’s resolution of petitioner’s
claims, the issues are not frivolous; therefore, an appeal could be taken in good faith
and petitioner may proceed in forma pauperis on appeal. Id.
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of Habeas
Corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that petitioner shall be granted leave to appeal in forma
Dated: February 14, 2012
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys
of record on
February 14, 2012, by electronic and/or ordinary
mail and also to Willie Edwards at Gus Harrison
Correctional Facility, 2727 East Beecher Street,
Adrian, MI 48221.
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