Lawton v. Ludwick

Filing 25

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus, declining to issue a certificate of appealability, but granting leave to proceed in forma pauperis on appeal. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THEODORE LEE LAWTON,
Petitioner,
v.

CASE NO. 2:10-cv-10048
HONORABLE GEORGE CARAM STEEH

NICK LUDWICK,
Respondent.
_______________________________/
OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This matter has come before the Court on petitioner Theodore Lee Lawton’s pro
se amended habeas corpus petition under 28 U.S.C. § 2254. Petitioner is challenging
his state convictions for armed robbery, Mich. Comp. Laws § 750.529, and possession
of a firearm during the commission of a felony (felony firearm), Mich. Comp. Laws §
750.227b. He alleges that (1) the trial court violated his right to a public trial, (2) the jury
should not have been permitted to see two photographs obtained from his cell phone,
(3) trial counsel was ineffective for failing to challenge the affidavit supporting a search
warrant, (4) a detective suppressed evidence of a recorded telephone conversation
between petitioner and an acquaintance and also destroyed part of the recording, (5)
trial counsel was ineffective for failing to argue that offense variable seven of the
Michigan sentencing guidelines is vague, and (6) appellate counsel was ineffective for
failing to raise habeas claims two through five in the appeal of right. Respondent Nick
-1-

Ludwick urges the Court to deny the petition on grounds that petitioner’s claims are
procedurally defaulted or meritless. The Court agrees with respondent that petitioner’s
claims do not warrant habeas relief. Accordingly, the habeas petition will be denied.
I. BACKGROUND
The charges against petitioner arose from an armed robbery of a convenience
store in Cedar Springs, Michigan, on April 22, 2004, shortly before 10:00 p.m.
Petitioner’s first trial in Kent County Circuit Court ended in a mistrial because the jury
was unable to reach a unanimous verdict. Petitioner represented himself at his second
trial where the evidence established that:
[t]wo masked men with guns entered the store, and one fired a single shot
that lodged in a cigarette carton near the cash register. They left with
$170 in cash. A store customer drove in the direction he believed the
robbers went and copied down the license plate number of the only car he
came across. It was registered to Suzanne Spicer, who was charged in
the offense and testified at trial pursuant to a plea agreement. Spicer
testified that she acted as the getaway driver, and that she, [petitioner],
and codefendant Joshua Bushey planned the robbery because they
needed money. Spicer identified Bushey as the first robber to enter the
store and [petitioner] as the second one.
[Petitioner] and Bushey were arrested the following day. They were
apprehended after a brief footchase. Two guns, a nine-millimeter and a
Derringer, along with a box of nine-millimeter bullets, were found in
[petitioner] and Bushey’s apartment after the robbery. Spicer testified that
[petitioner] carried the nine-millimeter handgun and that Bushey carried
the Derringer during the robbery. A shell casing found outside the store’s
south entrance was determined to have been fired from the nine-millimeter
gun that was found in [petitioner] and Bushey’s apartment, and a bullet
recovered from the store was consistent with having been fired from that
gun. Photographs obtained from [petitioner’s] cell phone were admitted
that depicted the nine-millimeter gun and [petitioner] holding the gun. A
coat similar to one worn by one of the robbers was also found in the
apartment. It contained both [petitioner’s] and Bushey’s DNA, with
[petitioner] being the minor contributor of the DNA on the collar. Two
masks matching the descriptions given by Spicer were found along the
road near the store. [Petitioner] and Bushey were excluded as donors of
-2-

the DNA found on the mask allegedly worn by the second robber.
Cell phone records from a phone found on [petitioner] when he was
arrested were used to show [petitioner’s] whereabouts on the night of the
robbery. The locations corresponded with Spicer’s account of the
evening. A recorded phone call [petitioner] made from jail just after he
was arrested was played for the jury. During the call, [petitioner] asked a
friend, Lee Blunston, to tell Spicer to leave town so she could not testify
against himself and Bushey.
[Petitioner] denied any involvement in the robbery. He stated that
he was at his girlfriend’s house at the time of the robbery and only found
out about it later from Bushey, who said that he and Spicer had robbed the
store. [Petitioner] admitted that he helped Bushey hide the guns, but
contended that Spicer set him up by identifying him as one of the robbers.
People v. Lawton, No. 266674, 2007 WL 2141360, at *1 - *2 (Mich. Ct. App. July 26,
2007) (unpublished).
On August 8, 2005, the jury found petitioner guilty, as charged, of armed robbery
and felony firearm. On October 12, 2005, the trial court sentenced petitioner as a
habitual offender to two years in prison for the felony firearm conviction and to a
consecutive sentence of 562 months (forty-six years, ten months) to seventy-five years
for the robbery conviction.
On appeal from his convictions, petitioner argued through counsel that the trial
court committed reversible error by allowing him to represent himself at trial. In a pro se
supplemental brief, petitioner raised twelve claims, including three of his current claims
regarding the photographs of a gun, the alleged destruction of evidence, and trial
counsel’s failure to attack the search warrant. The Michigan Court of Appeals affirmed
petitioner’s conviction, see id., and on November 29, 2007, the Michigan Supreme
Court denied leave to appeal because it was not persuaded to review the issues. See
People v. Lawton, 480 Mich. 957; 741 N.W.2d 333 (2007).
-3-

Petitioner subsequently filed a motion for relief from judgment. He alleged,
among other things, that trial counsel was ineffective for failing to file a motion to
suppress the search warrant and for not arguing that one of the offense variables of the
sentencing guidelines was vague, that Detective Elmer Johnson destroyed evidence
favorable to his defense, and that appellate counsel was ineffective for failing to raise
these issues during the direct appeal. The state trial court denied the motion without
analyzing the issues, see People v. Lawton, No. 04-05016-FH (Kent Cnty. Cir. Ct. May
12, 2008), and the Michigan Court of Appeals denied leave to appeal for failure to
establish entitlement to relief under Michigan Court Rule 6.508(D). See People v.
Lawton, No. 285705 (Mich. Ct. App. June 30, 2008) (unpublished). On December 30,
2008, the Michigan Supreme Court denied leave to appeal for the same reason, see
People v. Lawton, 482 Mich. 1186; 758 N.W.2d 560 (2008), and on March 23, 2009, the
state supreme court denied reconsideration. See People v. Lawton, 483 Mich. 917; 762
N.W.2d 522 (2009).
On January 6, 2010, petitioner commenced this action. After respondent Nick
Ludwick filed an answer to the petition, petitioner moved to hold his case in abeyance
while he exhausted additional state remedies for a new claim based on Presley v.
Georgia, 558 U.S. 209 (2010). On September 30, 2010, the Court granted petitioner’s
request and closed this case for administrative purposes. See Order Granting
Petitioner’s Motion for a Stay, Dkt. #9.
Petitioner then filed a second motion for relief from judgment, claiming that his
right to a public trial was violated when the trial court excluded the public from voir dire
at his first trial to make room for prospective jurors. The trial court denied his motion,
-4-

citing Michigan Court Rule 6.502(G)(2), which permits a defendant to file a second or
successive motion for relief from judgment only if the motion is based on a retroactive
change in the law or a claim of new evidence. The Michigan Court of Appeals
dismissed petitioner’s subsequent application for leave to appeal on the basis that a
movant may not appeal the denial of a successive motion for relief from judgment. See
People v. Lawton, No. 305111 (Mich. Ct. App. Sept. 13, 2011) (unpublished). The
Michigan Supreme Court denied leave to appeal because petitioner’s motion for relief
from judgment was prohibited by Rule 6.502(G). See People v. Lawton, 491 Mich. 908;
810 N.W.2d 573 (2012).
On June 25, 2012, petitioner filed an amended habeas corpus petition, a
supporting brief, and a motion to re-open this case. The Court granted petitioner’s
motion to re-open this case, see Dkt. #14, and on September 21, 2012, the State filed
an answer to the amended petition. Petitioner filed a reply, and the case is now ready
to be adjudicated.
II. STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for
persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,
562 U.S. 86, __, 131 S. Ct. 770, 783 (2011). Pursuant to § 2254, the Court may not
grant a state prisoner’s application for the writ of habeas corpus unless the state court’s
adjudication of the prisoner’s claims on the merits
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
-5-

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.

28 U.S.C. § 2254(d).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court
may grant the writ 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. Under the “unreasonable application”
clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court for
Part II). “[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. Rather, that application must
also be unreasonable.” Id. at 411.
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court
decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “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.”
Richter, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To obtain a writ of habeas corpus from a federal court, a state prisoner must show that
the state court’s ruling on 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
-6-

fairminded disagreement.” Id. at 786-87.
III. ANALYSIS
A. The Right to a Public Trial (claim one)
Petitioner alleges that the state trial court violated his constitutional right to a
public trial by excluding the public from voir dire during his first trial to make room for
prospective jurors. Respondent claims that this issue is procedurally defaulted because
petitioner first raised the issue in his second motion for relief from judgment. To
proceed on a procedurally-defaulted claim, a habeas petitioner “must establish cause
and prejudice for the defaults” and “also show that the claims are meritorious.” Babick
v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). The Court “cut[s] to the merits here,”
because a procedural-default analysis “adds nothing but complexity to the case.” Id.
1. Presley v. Georgia
The Sixth Amendment to the United States Constitution guarantees the accused
the right to a public trial in all criminal prosecutions. U.S. CONST. amend. VI. This right
is applicable to the States through the Due Process Clause of the Fourteenth
Amendment, and it extends to the jury selection phase of trial and, in particular, to the
voir dire of prospective jurors. Presley, 558 U.S. at 211-13.
2. Application
Petitioner claims that the state trial court excluded the public from voir dire at his
first trial. Although the Court has found no reference to this incident in the state-court
record, petitioner contends that the proceedings for that day were not transcribed. Even
assuming that petitioner accurately recalls the trial court’s comment, the first trial ended

-7-

in a mistrial. Petitioner was retried a few months later, and the public was not excluded
from his second trial. Any error that occurred at his first trial is moot because the error
was cured at his second trial. See United States v. Borokinni, 748 F.2d 236, 238 (4th
Cir. 1984) (stating that the defendant’s second trial cured any errors in the government’s
nondisclosure of materials at the first trial, which ended in a hung jury); accord Schnepp
v. Hocker, 429 F.2d 1096, 1099 (9th Cir. 1970) (stating that any burden-of-proof error
on the issue of probable cause at the first trial “was cured by what transpired at the
second trial”); United States v. Valenzuela-Ruiz, No. 93-50567, 1994 WL 561833, at *1
n.3 (9th Cir. Oct. 13,1994) (unpublished decision stating: “[e]rrors that occurred before
[the defendant’s] first trial but which were cured before his second trial are moot
because the only remedy for these errors is a new trial, which he already received”).
Petitioner nevertheless maintains that, by excluding the public from voir dire
during his first trial, the trial court led people to believe that they could not attend voir
dire during his second trial. The trial court did say in response to petitioner’s question at
the beginning of the second trial that its rulings on motions at the first trial carried over
to the second trial. (Trial Tr. Vol. I, 4, Aug. 1, 2005.) But nothing was said about the
court’s decision to close the courtroom to the public during voir dire at petitioner’s first
trial. Petitioner did not raise the issue or seek clarification, and, after the trial court
stated that its rulings on prior motions still stood, petitioner said that he had no other
questions for the court. As there is no evidence that the trial court prevented the public
from attending any portion of petitioner’s second trial, petitioner has no right to habeas
relief on the basis of his first claim.
B. The Photographs (claim two)
-8-

Petitioner alleges next that his rights to due process and a fair trial were violated
when the jury was permitted to see two photographs that the police discovered on his
cell phone. One photograph depicted a handgun. The other photograph showed
petitioner pointing a handgun at the camera. Petitioner claims that the prosecutor used
the photographs as evidence of bad character and that the photographs were too
inflammatory and prejudicial to be shown to the jury because there was no direct link
between the guns used in the robbery and him.
Petitioner’s trial attorney made a pretrial motion to suppress the photographs, but
the trial court denied his motion, stating:
[W]e have here pursuant to a valid search a phone taken off the
defendant’s person. The photograph was taken from the phone. It’s
clearly of the defendant. It’s clearly of a nine millimeter pistol. A nine
millimeter pistol was used in the robbery here. The bullet [found at the
crime scene] is a nine millimeter bullet.
(Mot. Hr’g 10, Apr. 18, 2005.) The trial court concluded that the photographs were
“clearly admissible” and that the only question would be the weight given to the
evidence. Id. The Michigan Court of Appeals subsequently determined on direct
appeal that the trial court did not err in denying petitioner’s motion to suppress the
photographs.
Generally, “alleged errors in evidentiary rulings by state courts are not cognizable
in federal habeas review.” Moreland v. Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012),
cert. denied, 134 S. Ct. 110 (2013). “A federal court may nevertheless grant relief in
cases where ‘the state's evidentiary ruling is so fundamentally unfair that it rises to the
level of a due-process violation.’ ” Id. (quoting Collier v. Lafler, 419 F. App’x 555, 558
(6th Cir. 2011)). “[C]ourts ‘have defined the category of infractions that violate
-9-

“fundamental fairness” very narrowly.’ “ Wright v. Dallman, 999 F.2d 174, 178 (6th Cir.
1993) (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)).
The photographs in question here depicted a nine-millimeter handgun. Ms.
Spicer testified that petitioner owned a nine millimeter gun, that he always carried the
gun, and that he had planned to carry and shoot the gun during the robbery. Ms. Spicer
also testified that petitioner brought a nine-millimeter gun to the convenience store and,
after he retrieved the gun from under the hood of the car, he walked toward the
convenience store with it. She heard what sounded like a gunshot and assumed that
petitioner had shot the gun. (Trial Tr. Vol. III, 335-36, 363, Aug. 3, 2005; Trial Tr. Vol.
IV, 421-22, Aug. 4, 2005.) The photographs corroborated this testimony and countered
petitioner’s testimony that the guns used in the robbery did not belong to him. (Trial Tr.
Vol. V, 698, 791, Aug. 5, 2005.)
Detective Elmer Johnson, moreover, testified that, in his opinion, the gun in the
photograph was the gun used in the robbery. (Id. at 631-32, 666.) Given the testimony
of Detective Johnson and Ms. Spicer, the photographs were highly relevant evidence
because they linked petitioner to the crime. Furthermore, the prosecutor used the
photographs for that purpose and not as evidence of bad character.
The Court concludes that permitting the jurors to see photographs of the gun was
not so fundamentally unfair as to deprive petitioner of due process. Habeas relief,
therefore, is not warranted on the basis of petitioner’s second claim.
C. Trial Counsel (claims three and five)
Petitioner alleges that his trial attorney provided ineffective assistance before trial
and at sentencing.
-10-

1. Before Trial (before trial)
Petitioner asserts that his trial attorney should have challenged the affidavit
supporting a search warrant for petitioner’s residence.1 Petitioner claims that the
affidavit contained obvious falsehoods about his appearance, the suspects’ race, and
Ms. Spicer’s vehicle. Petitioner further alleges that the affidavit omitted a description of
Mr. Bushey’s clothing and the firearm that Ms. Spicer claimed to have seen inside the
apartment she shared with petitioner and Bushey. According to petitioner, the omitted
information would have shown that probable cause to issue the warrant was lacking,
and trial counsel should have moved to suppress the fruits of the search under Franks
v. Delaware, 438 U.S. 154 (1978).2
The Michigan Court of Appeals rejected petitioner’s claim because he chose to
represent himself at trial and could have filed a motion to suppress evidence before his
second trial commenced. The Court of Appeals also stated that there was no basis for

1

The police found a nine-millimeter gun, a two-shot Derringer, and some
ammunition when executing the search warrant at petitioner’s residence. (Trial Tr. Vol.
IV, 519-21, Aug. 4, 2005.)
2

The Supreme Court held in Franks that,
where the defendant makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause,
the Fourth Amendment requires that a hearing be held at the defendant’s
request. In the event that at that hearing the allegation of perjury or
reckless disregard is established by the defendant by a preponderance of
the evidence, and, with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish probable cause, the
search warrant must be voided and the fruits of the search excluded to the
same extent as if probable cause was lacking on the face of the affidavit.
Franks, 438 U.S. at 155-56.
-11-

concluding that the affidavit was based on false information or that material information
was omitted from the affidavit. Lawton, 2007 WL 2141360, at *4 n.1.
The record indicates that petitioner voluntarily and knowingly elected to represent
himself at trial. (Trial Tr. Vol. I, 3-4, Aug. 1, 2005.) And, under state law, he could have
challenged the affidavit supporting the search warrant at the beginning of his second
trial when the trial court addressed preliminary matters and asked petitioner whether he
had any questions. See People v. Carroll, 396 Mich. 408, 412; 240 N.W.2d 722, 724
(1976) (explaining that, although a motion to suppress evidence ordinarily must be
made before trial, it may be made at trial in the trial court’s discretion). Because
petitioner waived his right to counsel and could have filed a motion to suppress
evidence, his ineffective-assistance-of-counsel claim fails. Wilson v. Parker, 515 F.3d
682, 696 (6th Cir. 2008). “[A] defendant who elects to represent himself cannot
thereafter complain that the quality of his own defense amounted to a denial of ‘effective
assistance of counsel.’ ” Faretta v. California, 422 U.S. 806, 834 n. 46 (1975).
2. At Sentencing (claim five)
Petitioner claims that offense variable seven (OV 7) of the Michigan sentencing
guidelines is vague and that his trial attorney was ineffective for failing to make that
argument at sentencing.

-12-

a. Clearly Established Federal Law
Petitioner was represented by counsel at sentencing. Consequently, to prevail
on his claim, he must show that “counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). The “deficient performance” prong “requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. The “prejudice” prong of the Strickland test
“requires showing that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.” Id. at 687. The defendant must demonstrate a
substantial probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Richter, 131 S. Ct. at 791-92 (citing Strickland,
466 U.S. at 693).
b. Application
OV 7 “is aggravated physical abuse.” Mich. Comp. Laws § 777.37(1). A score of
fifty points is appropriate if “[a] victim was treated with sadism, torture, or excessive
brutality or conduct designed to substantially increase the fear and anxiety a victim
suffered during the offense.” Mich. Comp. Laws § 777.37(1)(a). If no victim was treated
that way, the correct score is zero. Mich. Comp. Laws § 777.37(1)(b).
Petitioner’s trial attorney objected to the fifty-point score for OV 7 on the basis
that there was no evidence of excessive brutality, sadism, or torture. The trial court,
however, opined that petitioner and Mr. Bushey engaged in conduct designed to
substantially increase the victims’ fear and anxiety. The court pointed out that both men
were armed, that a firearm was discharged, and that the firearm was pointed at the
-13-

victims and a baby. The court opined that this behavior was over and above what was
needed to commit an armed robbery and, therefore, the score for OV 7 would remain at
fifty points. (Sentencing Tr., 8, Oct. 12, 2005.)
Petitioner claims that the phrase “conduct designed to substantially increase the
fear and anxiety a victim suffered” is vague and that his conduct could not have
increased the victims’ fear and anxiety because he did not fire the gun at anyone and
because the victims did not realize that a gun had been fired. (Trial Tr. Vol. II, 213, 230,
Aug. 2, 2005.) Nevertheless, because “there is no constitutional right to sentencing
guidelines, the limitations placed on judges’ discretion by [sentencing guidelines] do not
violate a defendant’s right to due process by reason of vagueness.” United States v.
Smith, 73 F.3d 1414, 1418 (6th Cir. 1996) (quoting United States v. Salas, No. 93-5897,
1994 WL 24982, at *2 (6th Cir. Jan. 27, 1994) (unpublished decision citing United
States v. Wivell, 893 F.2d 156, 159-60 (8th Cir. 1990)).
Even if sentencing guidelines were susceptible to a vagueness attack, a statute
is considered void for vagueness only if it “fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S.
285, 304 (2008). The phrase “conduct designed to substantially increase the fear and
anxiety a victim suffered during the offense” is not so vague as to prevent a person of
ordinary intelligence from knowing what is prohibited. Nor is it so standardless that it
authorizes or encourages discriminatory enforcement. A person of ordinary intelligence
could conclude, as the state trial court did, that a score of fifty points for OV 7 is
warranted when the defendant’s conduct went beyond what was needed to commit the
-14-

charged offense and the defendant apparently “intended to make a victim’s fear or
anxiety greater by a considerable amount.” People v. Hardy, 494 Mich. 430, 444; 835
N.W.2d 340, 347 (2013). Petitioner’s trial attorney therefore was not ineffective for
failing to object to the scoring of OV 7 on the basis of vagueness.
To the extent petitioner is challenging the trial court’s scoring of OV 7 on due
process grounds, his claim lacks merit because the evidence at trial established that he
fired a gun shortly after he entered the convenience store. Although the bullet entered a
display case, a woman and two young children were nearby, and petitioner’s conduct
went beyond simply putting the victims in fear by representing that he had a weapon.
By firing the gun, he demonstrated that he was willing and capable of shooting anyone
who attempted to interfere with him and Mr. Bushey.
One woman in the store got on the floor and covered her infant daughter with her
body after she heard the gunshot and saw the armed men. (Trial Tr. Vol. II, 230-31,
Aug. 2, 2005.) And Ms. Spicer testified that, after the robbery both petitioner and Mr.
Bushey felt badly because of the way the woman was crying about her baby. (Trial Tr.
Vol. III, 343, Aug. 3, 2005.) These facts are indications that petitioner’s conduct went
beyond what was necessary to commit the armed robbery and that he increased the
victim’s fear and anxiety by a considerable amount. The trial court therefore did not
violate petitioner’s constitutional right to due process by scoring fifty points for OV 7.
D. The Recorded Telephone Conversation (claim four)
Petitioner contends that Detective Elmer Johnson destroyed portions of a
recorded telephone call that Petitioner made to Lee Blunston from jail shortly after his
arrest. During their conversation, petitioner asked Mr. Blunston to contact Ms. Spicer
-15-

and tell her to leave town so that she would not testify against him and Mr. Bushey.
According to petitioner, the destroyed portions of the conversation were favorable to the
defense, because they indicated that he told Blunston he was “locked up on some
bullshit” and that Mr. Bushey did something stupid and had “got him [petitioner] caught
in the middle of it.” Petitioner further alleges that Detective Johnson withheld
information about the recording for nearly six months.
Petitioner did not object at trial when the prosecutor played the recording of his
telephone call to Blunston from jail. (Trial Tr. Vol. IV, 490, Aug. 4, 2005.) And when the
prosecutor moved to admit the recording in evidence, petitioner stated that he had no
objection. (Id. at 493-94.) Consequently, when petitioner raised his claim on direct
appeal, the Michigan Court of Appeals stated that petitioner’s “affirmative approval of
this evidence extinguished any error” and that “there [was] no error to review.” Lawton,
2007 WL 2141360, at *4.
“Where a state court denies a claim as waived, the claim is procedurally
defaulted and the federal court may not review the claim absent a showing of cause and
prejudice . . . .” Phillips v. Houk, __ F. App’x __, __, No. 12-3884, 2014 WL 5137586, at
*3 (6th Cir. Oct. 14, 2014). But “a procedural default . . . is not a jurisdictional matter,”
Trest v. Cain, 522 U.S. 87, 89 (1997), and the Court has determined for the following
reasons that petitioner’s claim lacks merit regardless of whether it is procedurally
defaulted.
1. Alleged Suppression of Evidence
Petitioner alleges first that Detective Johnson suppressed evidence of his
telephone call to Lee Blunston from jail. Under Brady v. Maryland, 373 U.S. 83, 87
-16-

(1963), “a defendant's rights under the Due Process Clause are violated when a state
suppresses material exculpatory information.” Cauthern v. Colson, 736 F.3d 465, 481
(6th Cir. 2013). “[T]he elements of a Brady claim are: ‘The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.’ ” Id. (quoting Strickler v. Green, 527 U.S. 263,
281–82 (1999)). The Sixth Circuit has
held that “[i]n general, the principles announced in Brady do not apply to a
tardy disclosure of exculpatory information, but to a complete failure to
disclose. If previously undisclosed evidence is disclosed . . . during trial,
no Brady violation occurs unless the defendant has been prejudiced by
the delay in disclosure.” United States v. Word, 806 F.2d 658, 665 (6th
Cir. 1986) (internal citation omitted).
Robertson v. Lucas, 753 F.3d 606, 621 (6th Cir. 2014).
Detective Johnson testified in petitioner’s first trial that he thought something was
missing from the recorded telephone conversation between petitioner and Mr. Blunston.
(Trial Tr. Vol. IV, 417-19, Apr. 26, 2005.) It is obvious from this testimony that petitioner
knew about the recording and its incompleteness a few months before his second trial.
And he was able to make effective use of the information at the second trial by claiming
during his opening statement that the recorded conversation was not the entire phone
call and that the recorded part was the only part which helped the prosecution’s case.
(Trial Tr. Vol. II, 203, Aug. 2, 2005.) He later elicited Mr. Blunston’s testimony that,
during their telephone conversation, he had said Mr. Bushey did something stupid and
caught petitioner up in the middle of it. (Trial Tr. Vol. IV, 494, Aug. 4, 2005.) Blunston
testified that he had understood petitioner’s comment to mean that Mr. Bushey had got
-17-

petitioner “into some bullshit,” that petitioner “didn’t do it [him]self,” and that “somebody
else [got him] into it.” (Id. at 497.)
There was no Brady violation because information about the recording was
merely delayed, not suppressed, and because petitioner was able to make effective use
of the information despite the delayed disclosure.
2. Alleged Destruction of Evidence
Petitioner alleges that Detective Johnson not only delayed disclosure of
petitioner’s recorded conversation with Mr. Blunston, but also tampered with the
recording by destroying the portions of it that were favorable to the defense. Detective
Johnson, however, testified that only the inmate’s name and the brief introduction which
normally precede an inmate’s telephone call from jail were missing. He claimed that he
had no idea why this happened and that he had copied onto a disk everything that was
audible on the recording. (Trial Tr. Vol. V, 622-24, 657, Aug. 5, 2005.) He seemed to
think that the problem was with the outdated or defective equipment which was in use at
the time. He repeatedly denied editing the recording or omitting portions of it, stating
that he had enough information without editing it. (Id. at 623, 637-39, 643, 657, 663.)
Detective Johnson’s testimony was corroborated by Mr. Blunston, who testified that he
thought only the beginning of the phone call with the initial “hello” and introduction had
not been recorded. (Trial Tr. Vol. IV, 490, Aug. 4, 2005.)
Petitioner has failed to show that Detective Johnson destroyed a portion of the
taped recording. Habeas relief, therefore, is not warranted on petitioner’s claim about
the recording.
E. Appellate Counsel (claim six)
-18-

The sixth and final habeas claim alleges that petitioner’s appellate counsel was
ineffective for failing to raise habeas issues two through five in the appeal of right.
Petitioner first raised this claim in his first motion for relief from judgment and in the
subsequent appeals. The state trial court denied the motion without giving any reason
for its decision, and both the Michigan Court of Appeals and the Michigan Supreme
Court denied leave to appeal in brief orders stating that petitioner failed to establish
entitlement to relief under Michigan Court Rule 6.508(D). Because no state court
adjudicated petitioner’s claim on the merits, this Court’s review of petitioner’s claim
“receive[s] the pre-AEDPA standard of review: de novo for questions of law (including
mixed questions of law and fact), and clear error for questions of fact.” Robinson v.
Howes, 663 F.3d 819, 823 (6th Cir. 2011).
Under federal law, an appellate attorney’s failure “to raise an issue on appeal can
amount to constitutionally ineffective assistance.” Jalowiec v. Bradshaw, 657 F.3d 293,
321 (6th Cir. 2011). But an attorney is not required to raise every non-frivolous claim
requested by the client on appeal if counsel decides not to raise the claim as a matter of
professional judgment. Jones v. Barnes, 463 U.S. 745, 751 (1983). To demonstrate
that appellate counsel was ineffective, a habeas petitioner must show that (1) his
attorney unreasonably failed to discover and raise nonfrivolous issues on appeal and (2)
a reasonable probability exists that he would have prevailed on appeal were it not for his
appellate attorney’s failure to raise the issues. Smith v. Robbins, 528 U.S. 259, 285
(2000) (citing Strickland, 466 U.S. at 687-91, 694).
Petitioner’s claims about his trial attorney, the photographs on his cell phone, and
his telephone conversation with Mr. Blunston lack merit for the reasons given above.
-19-

The Court’s inquiry, therefore, is at an end. “Appellate counsel cannot be found to be
ineffective for ‘failure to raise an issue that lacks merit.’” Shaneburger v. Jones, 615
F.3d 448, 452 (6th Cir. 2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001)). The Court therefore declines to grant relief on petitioner’s claim about appellate
counsel.
IV. CONCLUSION
The state-court rulings in this case were not contrary to Supreme Court
precedent, unreasonable applications of Supreme Court precedent, or unreasonable
determinations of the facts. Accordingly, the amended habeas corpus petition (Dkt.
#12) is DENIED.
V. REGARDING A CERTIFICATE OF APPEALABILITY
AND THE APPELLATE FILING FEE
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327.
Reasonable jurists would not find the Court’s assessment of petitioner’s
constitutional claims debatable or wrong, nor conclude that the issues are adequate to
-20-

deserve encouragement to proceed further. The Court therefore declines to grant a
certificate of appealability. Nevertheless, if petitioner chooses to appeal this decision,
he may proceed in forma pauperis on appeal because an appeal could be taken in good
faith. 28 U.S.C. § 1915(a)(3).
Dated: January 28, 2015
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
January 28, 2015, by electronic and/or ordinary mail and also
on Theodore Lee Lawton #254897, Ionia Correctional Facility,
1576 W. Bluewater Hwy. Ionia, MI 48846.
s/Barbara Radke
Deputy Clerk

-21-