Jenkins v. Scutt

Filing 14

JUDGMENT in favor of Respondent against Petitioner. Signed by District Judge Bernard A. Friedman. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DANIEL ANTUAN JENKINS,
Petitioner,
Civil Action No. 10-cv-10339
HON. BERNARD A. FRIEDMAN

v.
DEBRA L. SCUTT,
Respondent.
_________________________________/

OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY AND
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Daniel Antuan Jenkins filed an application for the writ of habeas corpus,
challenging his Oakland County conviction and sentence for armed robbery. The habeas petition
raises issues regarding the weight and sufficiency of the evidence, the admission of certain evidence,
the assistance provided by trial and appellate counsel, the sentence and the racial composition of
Oakland County juries. The state courts’ rejection of these claims was objectively reasonable.
Consequently, the petition must be denied.
I. Background
Petitioner was charged in Oakland County, Michigan with the armed robbery of a
hotel on May 18, 2003. The state court summarized the facts adduced at trial as follows:
. . . Llanard Hanley’s testimony established that he was
working as the desk clerk at the Auburn Hills Fairfield Inn on May
18, 2003. Shortly after 5:00 a.m., three men in masks, dark hooded
jackets and carrying handguns came in. They walked over to him and
said “let’s go.” One of the men was wearing light gray sweatpants,
another was wearing dark colored sweatpants, and the third was

wearing black pants with white stripes down the sides of the legs. He
observed that one was wearing green plaid boxer shorts. Mr.
Hanley’s hands were tied behind his back using a green jump rope
and the three masked men walked him to the back room. When they
arrived at the back room they asked him for the keys to the cash
drawer. The masked men were unable to unlock the drawer so they
busted the lock and took the money inside. They also took the money
in a cash box located alongside the cash drawer. Then the masked
men asked Hanley where the safe was located and its combination.
Hanley told them the safe was in the manager’s office, but that he did
not have the combination. When he could not produce the safe
combination, the masked men took him into the break room and
asked Hanley if he was “ready to die.” They had him lie face down
with his head towards the door. As the men left, Hanley heard one
of them say “hey, Corn, let’s go.”
Officer Jeffrey Walker’s testimony established that he was a
police officer with the City of Auburn Hills. Walker was working as
a patrol officer on May 18, 2003, when he was dispatched to the
Auburn Hills Fairfield Inn on the report of an armed robbery. After
he arrived at the Fairfield Inn, he and Sergeant Amand located Mr.
Hanley in the break room and Amand cut off the rope that was
around Hanley’s wrists. After interviewing Hanley, Walker gathered
the security camera tape and returned to the police station. On the
tape, Walker observed that one of the subjects had a black hooded
jacket with a sunburst on the back and the letter M outlined in thread.
On May 21, 2003 Walker was again on patrol duty when he
was dispatched to the Extended Stay Hotel for trouble in one of the
rooms. Walker arrived at the hotel and made contact with Kendra
Lewis in the hallway. Lewis pointed down the hall where Walker
observed someone going down the stairs. The officer learned that
Lewis was staying at the hotel with Defendant. The officer also
learned that Defendant was known to carry a firearm. Concerned, he
obtained permission to search Lewis’ vehicle. Upon searching the
vehicle, Walker became suspicious when he found several articles
that matched the description of clothing that was worn by the
suspects in the Fairfield Inn robbery. Walker found a black
sweatshirt and a hooded sweatshirt with the sunburst design. He
found rope that was similar to the kind used in the robbery, gloves
and sweat pants and boxes of ammunition for a nine-millimeter
weapon as well as a .38-caliber weapon. Walker also found rolled
coins in front of the ammunition boxes.

2

Kendra Lewis’ testimony established that she was
Defendant’s girlfriend at the time of the robbery. She established that
Defendant was called AC or Acorn because of his head. Lewis,
Defendant and her children, were staying at the Extended Stay Hotel
next door to the Fairfield Inn. On the 21st, the two had a fight and
the police were summoned. Lewis owned a 1995 Winstar van that
both she and Defendant drove. They had recently moved from the
Wood Lake Hills apartments and still had some of their stuff in the
van. Police asked if they could search the van and she gave them
permission. Police showed her a sweater, gloves, green plaid boxer
shorts and jogging pants that belonged to Defendant. She did not
know how a ski mask or ammunition had gotten in her van. The
police also found a blue jump rope in the van that was similar to the
green one that was used in the robbery.
. . . Lewis established that [on the night in question] she went
to bed about 1:00 a.m. Defendant left the room that night to “bust a
sale” or sell some marijuana. When she woke up at 7:00 a.m.,
Defendant had returned. She noticed a bunch of pennies on the floor
and $218.00 on the counter which she had never seen before.
Officer Craig Damiani’s testimony established that he is the
Auburn Hills police detective involved in the investigation of the
Fairfield Inn robbery. On May 21, 2003 he interviewed Defendant
after he was taken into custody for assault and battery. Before he
mentioned the robbery, Defendant stated “don’t got me for Fairfield”.
Also, before there was any mention of the robbery, Defendant stated:
“They have no fingerprints.” “They have no face and are they going
to put me in a line up to show that my body is shaped like somebody
on that camera?” Defendant told him that neither a .38-caliber nor a
nine-millimeter handgun was used in the robbery, and that the blue
jump rope from the van was not used during the robbery. Defendant
admitted that all of the men’s cloth[es] in the van, except for one
“red, white and grey Gear shirt, belong[ed] to him. He also admitted
that the .38-caliber ammunition belonged to him. He told them that
the black hooded sweatshirt with the sunburst was inside out, which
explained why they did not match exactly on the video.
People v. Jenkins, No. 2004-198320-FC (Oakland Cnty. Cir. Ct. May 28, 2008) (unpublished).
On September 23, 2005, an Oakland County Circuit Court jury found petitioner
guilty, as charged, of armed robbery. Mich. Comp. Laws § 750.529. The trial court sentenced

3

petitioner to imprisonment for twelve to thirty years.
On appeal, petitioner challenged the weight and sufficiency of the evidence and the
trial court’s assessment of two offense variables of the Michigan sentencing guidelines. In a pro se
supplemental brief, petitioner claimed that he was deprived of effective assistance of trial counsel
and that the trial court committed reversible error by allowing the prosecutor to admit hearsay
testimony and extrinsic rebuttal evidence. The Michigan Court of Appeals affirmed petitioner’s
conviction, but remanded the case for resentencing, because the trial court erroneously scored
offense variables nine and ten of the state sentencing guidelines. See People v. Jenkins, No. 266236,
2007 Mich. App. LEXIS 1126 (Mich. Ct. App. Apr. 24, 2007). The trial court subsequently resentenced petitioner to imprisonment for eleven and a quarter to thirty years with credit for time
served, 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. Jenkins, 480 Mich. 953 (2007) (table).
In 2008, petitioner filed a motion for relief from judgment in which he argued that
(1) the prosecution failed to prove every fact that constituted the charged offense, (2) the
prosecutor’s conduct resulted in a denial of due process, (3) trial and appellate counsel were
ineffective, and (4) the state district court abused its discretion when it bound him over for trial
without probable cause. The trial court denied petitioner’s motion after concluding that petitioner
could have raised his claims on appeal and failed to demonstrate actual prejudice from the alleged
irregularities.
Petitioner appealed the trial court’s decision and argued in his motion to file a
supplemental brief that there was systematic underrepresentation of African Americans on Oakland
County juries during the years preceding his conviction. The Michigan Court of Appeals denied

4

petitioner’s motion to file a supplemental brief and his application for leave to appeal. The Court
of Appeals stated that petitioner had failed to establish entitlement to relief under Michigan Court
Rule 6.508(D). See People v. Jenkins, No. 287970 (Mich. Ct. App. Mar. 2, 2009). On October 26,
2009, the Michigan Supreme Court denied leave to appeal for the same reason. See People v.
Jenkins, 485 Mich. 926 (2009) (table).
Petitioner filed his habeas corpus petition on January 26, 2010.1 The court
understands the petition to allege that:
I.

there was insufficient evidence to establish petitioner’s guilt;

II.

the state district court erred when it bound petitioner over for trial
without probable cause;

III.

the verdict was against the great weight of the evidence;

IV.

the jury could have reasonably inferred that petitioner was not
involved in the robbery and that he was, at most an accessory after
the fact;

V.

the desk clerk’s testimony regarding the remark, “Hey, Corn, let’s
go,” was inadmissible hearsay;

VI.

the trial court erred in allowing the prosecutor to present rebuttal
evidence of Kendra and Felicia’s prior inconsistent statements;

VII.

trial counsel was ineffective for failing to impeach the testimony of
the desk clerk, failing to object to the prosecutor’s questioning of a
witness, and failing to object during the prosecutor’s closing
argument;

VIII.

appellate counsel was ineffective for failing to raise several
meritorious and dispositive claims;

IX.

the trial court erred in scoring offense variables nine and ten;

1

The petition is dated December 31, 2009, but was received and filed by the Clerk of
Court on January 26, 2010.
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X.

petitioner was sentenced in violation of Blakely v. Washington, 542
U.S. 296 (2004); and

XI.

petitioner was denied due process and equal protection of the law
where he was tried before an all-white jury and there was systematic
under-representation of African Americans on Oakland County juries
in the years preceding his conviction, specifically in 2005.2
Respondent argues in an answer to the habeas petition that petitioner did not exhaust

state remedies for his eleventh claim and he procedurally defaulted his second and seventh claims
by failing to raise them on direct appeal. Petitioner replies that his claims are not procedurally
defaulted and that the court should either adjudicate his unexhausted eleventh claim on the merits
or delete that claim rather than dismiss the entire habeas petition for failure to exhaust state
remedies.

Neither exhaustion, nor procedural default, are jurisdictional limitations,

Pudelski v. Wilson, 576 F.3d 595, 606 (6th Cir. 2009), cert. denied, __ U.S. __, 130 S. Ct. 3274
(2010), and petitioner’s claims lack merit. The court therefore will excuse the alleged procedural
errors and proceed to adjudicate the merits of petitioner’s claims.
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, __ U.S. __, __, 131 S. Ct. 770, 783 (2011).
Pursuant to § 2254, state prisoners are entitled to the writ of habeas corpus only if the state court’s
adjudication of their claims on the merits
(1)

resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established

2

The Court has adopted respondent’s summary and numbering of the claims, because
petitioner did not clearly enumerate the issues.
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Federal law, as determined by the Supreme Court of
the United States; or
(2)

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

28 U.S.C. § 2254(d).
A state court’s decision is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or
if the state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (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. Rather, that application must also be unreasonable.” Id. at 411.
“[W]here factual findings are challenged, the habeas petitioner has the burden of rebutting, by clear
and convincing evidence, the presumption that the state court’s factual findings are correct.”
Goodwin v. Johnson, 632 F.3d 301, 308 (6th Cir. 2011) (citations omitted).
“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. 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 claims “was so lacking in justification” that it
resulted in “an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 786-787.
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III. Discussion
A. Probable Cause in State District Court;
the Weight and Sufficiency of the Evidence at Trial
(Habeas claims one through four)
Petitioner alleges that, following his preliminary examination, the state district court
court transferred jurisdiction to Oakland County Circuit Court without a showing of probable cause.
Petitioner further alleges that the jury’s verdict was against the great weight of the evidence and that
there was insufficient evidence to support his conviction on an aiding and abetting theory.
According to petitioner, the jury could have inferred that he was not involved in the robbery and
that, at most, he was guilty of being an accessory after the fact.
The Michigan Court of Appeals concluded on review of these claims that the prosecutor
presented sufficient evidence to sustain petitioner’s conviction and that certain discrepancies
between the hotel clerk’s description of the perpetrators and petitioner’s actual appearance did not
preponderate so heavily against the verdict such that it would be a miscarriage of justice to let the
verdict stand. The Court of Appeals also stated that the inconsistencies in the witnesses’ testimony
did not sufficiently warrant granting a new trial.
Petitioner’s challenge to the probable cause determination at the preliminary
examination lacks merit because he had no constitutional right to a preliminary examination.
Gerstein v. Pugh, 420 U.S. 103, 125 n.26 (1975); Dillard v. Bomar, 342 F.2d 789, 790 (6th Cir.
1965). Therefore, the prosecutor’s alleged failure to present sufficient evidence of armed robbery
at the preliminary examination is not a basis for habeas corpus relief. Instead, the alleged “error
raises only matters of state law and procedure and involves no federal question of fundamental
fairness or constitutional protection.” Oliphant v. Koehler, 451 F. Supp. 1305, 1307 (W.D. Mich.

8

1978).
The contention that the jury’s verdict was against the weight of the evidence also is
a state-law argument, and a federal habeas court is allowed to review only issues of federal law.
Nash v. Eberlin, 258 F. App’x 761, 764 n.4 (6th Cir. 2007). Thus, petitioner’s weight of the
evidence argument does not provide a basis for habeas corpus relief. Petitioner’s sufficiency of the
evidence claim, on the other hand, raises a constitutional issue. The Court finds no merit in that
claim for the reasons stated below.
1. Clearly Established Federal Law on Sufficiency-of-the-Evidence Claims
The Supreme Court has “held that due process requires proof of each element of a
criminal offense beyond a reasonable doubt.” Dretke v. Haley, 541 U.S. 386, 395 (2004) citing In
re Winship, 397 U.S. 358 (1970). The relevant question on habeas corpus review of a sufficiency
of the evidence claim is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) citing Johnson v. Louisiana, 406
U.S. 356, 362 (1972).
“Jackson claims face a high bar in federal habeas proceedings
because they are subject to two layers of judicial deference. First, on
direct appeal, ‘it is the responsibility of the jury—not the court—to
decide what conclusions should be drawn from evidence admitted at
trial. A reviewing court may set aside the jury’s verdict on the
ground of insufficient evidence only if no rational trier of fact could
have agreed with the jury.’ Cavazos v. Smith, 565 U. S. 1, ___
(2011) (per curiam) (slip op., at 1). And second, on habeas review,
‘a federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may do
so only if the state court decision was ‘objectively unreasonable.’
Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at
5)).”
9

Coleman v. Johnson, __ S. Ct. __, __, No. 11-1053, 2012 U.S. LEXIS 3943, at *1-2 (U.S. May 29,
2012) (per curiam).
Courts must apply the Jackson standard “with explicit reference to the substantive
elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324, n.16. “The
elements of armed robbery are: (1) an assault and (2) a felonious taking of property from the
victim’s presence or person (3) while the defendant is armed with a weapon.” People v. Smith, 478
Mich. 292, 319 (2007) citing People v. Carines, 460 Mich. 750, 757 (1999). The prosecutor
proceeded on an aiding and abetting theory, which required a showing that
“(1) the crime charged was committed by the defendant or some other
person; (2) the defendant performed acts or gave encouragement that
assisted the commission of the crime; and (3) the defendant intended
the commission of the crime or had knowledge that the principal
intended its commission at the time that [the defendant] gave aid and
encouragement.”
People v. Robinson, 475 Mich. 1, 6 (2006) quoting People v. Moore, 470 Mich. 56, 67-68 (2004).
“Circumstantial evidence is sufficient to sustain a conviction and the evidence need not remove
every reasonable hypothesis except that of guilt.” United States v. Clark, 634 F.3d 874, 876 (6th
Cir. 2011) citing United States v. Algee, 599 F.3d 506, 512 (6th Cir. 2010).
2. Application
There was no direct evidence linking petitioner to the crime, but the circumstantial
evidence was considerable. As explained by the Michigan Court of Appeals:
“The prosecution presented sufficient evidence to prove that an
armed robbery was committed at the hotel. First, the prosecutor
presented sufficient evidence to prove, beyond a reasonable doubt,
that an assault occurred. An assault is defined as ‘an attempt to
commit a battery or an unlawful act that places another in reasonable
apprehension of receiving an immediate battery.’ People v. Grant,
211 Mich. App. 200, 202; 535 NW2d 581 (1995) (internal citation
10

and quotation marks omitted). The evidence in this case established
that the masked perpetrators entered the hotel brandishing handguns.
They tied the desk clerk’s hands behind his back, led him at gunpoint
to the location of the money, and threatened to kill him if he did not
tell them the combination to the hotel safe. Second, the prosecutor
presented uncontroverted testimony that the perpetrators removed
$828.55 from the hotel in the desk clerk’s presence. Third, the desk
clerk testified that all three men were armed with handguns during
the robbery. A gun is, in fact, a dangerous weapon. See People v.
Jolly, 442 Mich. 458, 468; 502 NW2d 177 (1993).
Furthermore, the prosecution presented sufficient evidence
from which a rational jury could have concluded, beyond a
reasonable doubt, that defendant committed the armed robbery or that
he aided and abetted in the commission of the armed robbery. The
evidence presented at trial established that, on the night of May 17,
2003, defendant and his ex-girlfriend Kendra Lewis stayed at the
Extended Stay Hotel, which was directly adjacent to the Fairfield Inn.
It was defendant’s idea to stay at the hotel. He left his hotel room
after midnight and returned in the early morning hours. Some time
after defendant returned to the hotel room, Kendra awoke and found
a large amount of pennies on the floor and $218 in cash in the hotel
room. Although defendant claimed that Kendra gave him the cash,
she told police that she did not know the source of the money.
A search of Kendra’s van revealed clothing that was similar
to the clothing worn by the perpetrators of the armed robbery. Police
found gloves, sweatpants, a pair of black pants with white stripes
going down the sides of the legs, a pair of green plaid boxer shorts,
and sweatshirts, including a sweatshirt with a sunburst design and an
‘M’ outlined in thread on the back. Police also discovered
ammunition for .38–caliber and nine-millimeter weapons. Police also
found rolls of coins in the van that were similar to the rolls of coins
taken from the hotel during the robbery, and they found a blue jump
rope in the van, which was similar to the green jump rope used to tie
the desk clerk’s hands behind his back during the robbery. Kendra
told police that one of her daughters had a blue jump rope and that
her other daughter had a multicolored green, yellow, and pink jump
rope. After the robbery, the multicolored green, yellow, and pink
jump rope was missing. Additionally, at trial, Kendra testified that
defendant’s nickname was ‘AC,’ which stood for ‘Acorn.’
Kendra’s sister, Felicia Lewis, testified at trial that defendant
came to her house on May 21, 2003, after the incident at the
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Extended Stay. He called his friend Maurice Threlkeld, a suspect in
the robbery, from Felicia’s home telephone.3 Trial testimony also
revealed that, when defendant was interrogated by police, he said
‘you don’t got me for the Fairfield’ before detectives mentioned the
robbery. During the interrogation, defendant relayed specific details
about the robbery to the detectives. He told detectives that neither a
.38–caliber nor nine-millimeter handgun was used in the robbery and
that the blue jump rope police recovered from Kendra’s van was not
used during the robbery. Defendant admitted to the police, at one
point, that all of the men’s clothing in the van, except for one ‘red,
white and grey Gear’ shirt, belonged to him.4 He also admitted that
the .38–caliber ammunition belonged to him.”
Jenkins, Mich. Ct. App., No. 266236, 2007 Mich App. LEXIS 1126 at *5-7 (footnotes in original).
Petitioner claims that his case is analogous to Brown v. Palmer, 441 F.3d 347 (6th
Cir. 2006), a case in which the Sixth Circuit held that there was insufficient evidence of an armed
robbery and carjacking. The evidence in Brown established that the defendant in the case was
merely present at the crime scene and was acquainted with the perpetrator of the crime. The Sixth
Circuit opined that the evidence pointing to Brown’s guilt was “quite speculative.” Id. at 351.
There was more than reasonable speculation that Petitioner participated in the armed
robbery or aided and abetted it. He was absent from the room where he was staying during the early
morning hours when the robbery occurred, and the hotel clerk testified that one of the perpetrators
addressed an accomplice as “Corn.” Petitioner’s nickname was “AC” or “Acorn.” The police found
clothing, which matched the garments worn by the robbers, in petitioner’s van. Among these items
police discovered a sweatshirt or jacket, which was visible on the videotape of the robbery, and
petitioner initially admitted to the police that all the clothing, except one shirt, belonged to him. The

3

Felicia denied telling the police that she overheard that conversation and that in it,
defendant told Threlkheld to “get rid of the masks.”
4

Defendant later denied that the sweatshirt with the sunburst design belonged to him.
12

police also found gloves, a rope similar to the one used in the robbery, and rolls of coins in the van.
Cash and coins were found in petitioner’s hotel room after the robbery, and, when the police
interviewed petitioner, he appeared to know details about the robbery before the police mentioned
the robbery to him.
Petitioner contends that the jury could have inferred from the evidence that he was
not involved in the robbery and was, at most, merely an accessory after the fact. The prosecutor,
however, did not have an affirmative duty “to rule out every hypothesis except that of guilt beyond
a reasonable doubt.” Jackson, 443 U.S. at 326. Furthermore, “Jackson leaves juries broad discretion
in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors
‘draw reasonable inferences from basic facts to ultimate facts.’” Johnson, 2012 U.S. LEXIS 3943,
at *8 quoting Jackson, 443 U.S. at 319. The jury could have reasonably concluded that petitioner
was more than an accessory after the fact and that he actively participated in the armed robbery. At
a minimum, the jury could have inferred from the circumstantial evidence that petitioner aided and
abetted the robbery by providing the perpetrators with a gun, approaching the hotel clerk with the
other men, and supplying the rope that was used to restrain the clerk.
After construing the aforementioned evidence, in a light most favorable to the
prosecution, a rational juror could have concluded that petitioner was guilty of armed robbery, either
as a principal or as an aider and abettor. Therefore, the state court’s decision that the prosecutor
presented sufficient evidence to sustain petitioner’s conviction was not contrary to, or an
unreasonable application of Jackson, and petitioner’s challenge to the sufficiency of the evidence
is without merit.
B. The Evidentiary Issues
(Habeas claims five and six)
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1. The Desk Clerk’s Testimony
As already noted, petitioner’s nickname was Acorn or AC, and the hotel desk clerk,
Llanard Hanley, testified that one of the perpetrators said, “Hey, Corn, let’s go.” Petitioner contends
that Hanley’s remark was inherently incredible and inadmissible hearsay.
The Michigan Court of Appeals determined that the challenged remark did not
qualify as hearsay because it was a command, not an assertion. The Court of Appeals also stated
that the remark was admissible under the court rule permitting courts to admit co-conspirators’
statements. See Mich. R. Evid. 801(d)(2)(E) (explaining that “[a] statement is not hearsay if . . . the
statement is offered against a party and is . . . a statement by a coconspirator of a party during the
course and in furtherance of the conspiracy”).
“What is or is not hearsay evidence in a state court trial is governed by state law.”
Johnson v. Renico, 314 F. Supp. 2d 700, 705 (E.D. Mich. 2004) (citations omitted). Consequently,
this court must defer to the state appellate court’s ruling that Hanley’s testimony about the contested
remark was not hearsay and was admissible at trial. “[A] state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a federal court sitting
in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citations omitted). Thus, petitioner
has no right to habeas relief on the basis of his hearsay claim.
2. The Rebuttal Evidence
Petitioner further alleges that the trial court erred when it permitted the prosecutor
to elicit testimony from Detective Scott Edwards that the trial testimony of Kendra and Felicia Lewis
conflicted with their prior statements to the police. Detective Edwards testified that, during his
interview with Kendra, she acted surprised when he showed her the blue jump rope that the police

14

found in her van. She explained to Edwards that her mother had purchased blue, green and yellow
jump ropes for her children and that the blue one belonged to one of the children. Kendra stated that
she could not find the green and yellow ropes and that she last saw the blue rope at the house. She
noted that the rope’s handles were missing. (Tr. Sept. 22, 2005, at 259-60.)
Kendra also informed Detective Edwards that petitioner had returned to their hotel
room about 5:30 a.m. on May 18, 2003, and that she later observed about 100 pennies on the floor
of the hotel room. Kendra subsequently told Detective Edwards that petitioner had returned to the
room between 4:00 and 5:30 a.m. (Id. at 259-63.)
At trial, Kendra denied telling Detective Edwards that petitioner had returned to their
room about 5:30 a.m., claiming instead that she did not know when petitioner returned to the room.
She also denied telling Detective Edwards that there were a hundred pennies on the floor of the
room. Instead, Kendra insisted that there were a couple of pennies on the floor of their room. (Tr.
Sept. 21, 2005, at 90-91, 97-98.) She further testified that she had packed the jump ropes, including
the blue one, in the van, and claimed that she did not recall whether the handles were detached from
the blue rope at that time. (Id. at 111, 115.)
Detective Edwards testified that Felicia also made prior inconsistent statements. In
Felicia’s interview with Detective Edwards, she stated that petitioner’s cell phone had been ringing
incessantly on May 21, 2003, and that he refused to answer it even though he knew that Maurice
Threkeld, another suspect in the case, was trying to reach him. Felicia also informed Detective
Edwards that petitioner had asked to use her home telephone to call Maurice, and, during his
conversation with Maurice, petitioner instructed Maurice to get rid of the masks and clothing in his
car. (Tr. Sept. 22, 2005, at 263-64.) At trial, Felicia denied that she heard what petitioner had said

15

to Maurice. She also denied telling Detective Edwards that she overheard petitioner instructing the
person on the other end of the phone to get rid of the masks and clothing in the car. (Id. at 66, 69.)
Petitioner contends that Detective Edwards’ testimony about Kendra and Felicia’s
prior inconsistent statements was improper extrinsic evidence, which should not have been used to
impeach witnesses on collateral matters. Nevertheless, on petitioner’s direct appeal, the Michigan
Court of Appeals stated that extrinsic evidence may be used to impeach a witness on a material or
related matter. See Jenkins, 2007 Mich. App. LEXIS 1126 at *15 citing Mich. R. Evid. 613(b). The
Court of Appeals concluded that the matters in question in petitioner’s case were not collateral
matters and that the trial court did not abuse its discretion by allowing Detective Edwards’ testimony
to be admitted to rebut Kendra and Felicia’s testimony.
This Court agrees with the state court’s finding that Detective Edwards’ testimony
did not pertain to mere collateral matters and that the evidence was relevant to the determination of
petitioner’s guilt. The state court’s determination that the testimony was admissible under state law
is binding on this court. Bradshaw, 546 U.S. at 76. Furthermore, since Detective Edwards’
testimony was not fundamentally unfair, it did not violate petitioner’s right to due process. Wynne
v. Renico, 606 F.3d 867, 871 (6th Cir. 2010) (citations omitted); see McAdoo v. Elo, 365 F.3d 487,
494 (6th Cir. 2004).
C. Ineffective Trial and Appellate Counsel
(Habeas claims seven and eight)
Petitioner complains that his trial attorney was unprepared for trial, failed to impeach
a witness and did not make certain important objections. The Michigan Court of Appeals concluded
that petitioner failed to overcome the heavy burden of proving that he received ineffective assistance
of counsel.
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1. Trial Counsel
The Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984),
constitutes clearly established federal law for purposes of evaluating a claim of ineffective assistance
of counsel. Cullen v. Pinholster, __ U.S. __, __, 131 S. Ct. 1388, 1403 (2011). Pursuant to
Strickland, petitioner must demonstrate that his attorney’s “performance was deficient” and “that
the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.
The “deficient performance” prong requires a showing that petitioner’s counsel
“made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Strickland, 466 U.S. at 687. “Judicial scrutiny of counsel’s performance
must be highly deferential.” Id. at 689.
To establish that counsel’s performance prejudiced the defense, petitioner must
demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “This does not require a showing that counsel’s
actions ‘more likely than not altered the outcome.’” However, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Richter, 131 S. Ct. at 792 quoting Strickland, 466 U.S.
at 693. “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when
the two apply in tandem, review is ‘doubly’ so.” Richter, 131 S. Ct. at 788 (citations omitted).
a. The Failure to Impeach the Hotel Clerk with Police Reports
Petitioner asserts that trial counsel should have attempted to attack Llanard Hanley’s
credibility after Hanley testified that one of the perpetrators said, “Hey, Corn, let’s go.” Petitioner
faults trial counsel for not impeaching Hanley with police reports, which show that Hanley did not
inform the police that one of the perpetrators said, “Hey, Corn, let’s go.”

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The absence of the comment in police reports does not prove that the comment was
never made, and even if trial counsel had raised the issue, Hanley might have explained his failure
to mention the comment by stating that he was excited or upset at the time or that he simply forgot
to mention all the details of the incident.
Trial counsel did elicit testimony from Hanley that the three perpetrators were not
identifiable in any fashion, that he could not determine the race of two of the men, and that he could
not say whether petitioner was one of the perpetrators. (Tr. Sept. 20, 2005, at 168, 174-75, 177.)
Trial counsel was not ineffective because he failed to elicit additional testimony that Hanley did not
tell the police about the perpetrator’s comment, “Hey, Corn, let’s go.”

Even if counsel’s

performance was deficient, such performance did not prejudice petitioner given the strength of the
other circumstantial evidence against him.
b. The Failure to Object to the Prosecutor’s Conduct
Petitioner claims that trial counsel should have objected when the prosecutor
attempted to impeach his own witness. This claim arose when the prosecutor asked Kendra Lewis
whether Petitioner told her two days before trial to change her story about a physical confrontation
she had with petitioner after the robbery. Kendra denied that petitioner asked to change her
testimony. She also denied talking to petitioner about his case while the two of them were seated
next to each other in the courtroom hallway. (Tr. Sept. 21, 2005, at 119-20.) Petitioner claims that
there was no evidence to support the prosecutor’s questions and that such inquiry amounted to
testimony by the prosecutor.
Under Michigan law, a party may impeach, cross-examine or attack the credibility
of any witness, including the party’s own witness. Mich. Comp. Laws § 767.40a(6); Mich. R. Evid.

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607. Thus, the prosecutor’s questions were not improper and petitioner’s claim does not rise to the
level of a constitutional violation meriting habeas corpus relief. Lyle v. Koehler, 720 F.2d 426, 429
(6th Cir. 1983). Furthermore, trial counsel did object on the ground that the prosecutor’s questions
were leading and the trial court sustained the objection.

(Tr. Sept. 21, 2005, at 120-21.)

Consequently, petitioner’s claim lacks merit.
c. Failure to Object to the Prosecutor’s Closing Argument
Petitioner claims that trial counsel should have objected to the prosecutor’s closing
argument that petitioner did not have a good alibi. (Tr. Sept. 23, 2005, at 12.) Petitioner contends
that this remark shifted the burden of proof to him to prove his innocence.
A prosecutor may not shift the burden of proof to the defendant, Patterson v. New
York, 432 U.S. 197, 215 (1977), or suggest that the defendant had an obligation to produce evidence
to prove his innocence. United States v. Clark, 982 F.2d 965, 968-969 (6th Cir. 1993). But
prosecutors may comment on a defendant’s failure to call an available alibi witness, United States
v. Schultz, 698 F.2d 365, 367 (8th Cir. 1983), or to produce witnesses to contradict the government’s
case “so long as the prosecutor does not suggest that the defendant bears the burden of proof.”
Perkins v. McKee, 411 F. App’x 822, 832 (6th Cir. 2011).
The prosecutor at petitioner’s trial did not suggest that petitioner carried the burden
of proving his innocence. In fact, the prosecutor stated that it was his own burden to prove his case
beyond a reasonable doubt. (Tr. Sept. 23, 2005, at 36.) The trial court, moreover, instructed the
jurors that petitioner was presumed innocent and did not have to prove his innocence by presenting
his own case and that the attorneys’ statements and arguments were not evidence. (Id. at 39-41.)
The Court concludes that the prosecutor’s comment was proper and, even if it were improper, it was

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not flagrant misconduct. Consequently, trial counsel’s failure to object did not amount to deficient
performance.
d. The Alleged Failure to Prepare for Trial
Petitioner alleges that his trial attorney met with him for only ten minutes before trial
and failed to investigate or prepare for trial. The attorney who represented petitioner at trial was not
petitioner’s first attorney, and by the time he was appointed, a number of motions had already been
filed and decided.
Even assuming that trial counsel spent only a short amount of time with petitioner
before trial, the record indicates that he was thoroughly prepared and did his utmost to represent
petitioner. The trial court stated at the sentencing that petitioner could not have gotten better
representation. The trial court noted that counsel presented a vigorous defense, effectively
challenged the prosecutor’s proof and put forward a strategy that was one of the finest the court had
seen. (Tr. Oct. 7, 2005, at 22-23.)
The Michigan Court of Appeals stated that “defense counsel was proficient and wellprepared and that he was a zealous advocate for [petitioner] throughout the proceedings.” Jenkins,
2007 Mich. App. LEXIS 1126 at *18. The record supports the state courts’ assessment of trial
counsel. Trial counsel made an opening statement, effectively cross-examined witnesses, made
objections, which the trial court frequently sustained, requested a jury instruction on accessory after
the fact and made a closing argument in which he maintained that there was no direct evidence
against petitioner. Petitioner has not alleged a defense that he would have asserted if he had been
consulted before trial and he has failed to demonstrate that the result of his trial would have been
different had his attorney done more. Thus, trial counsel’s allegedly deficient performance did not

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prejudice petitioner.
2. Appellate Counsel
Petitioner alleges that his appellate attorney was ineffective for failing to raise his
trial counsel’s ineffectiveness on appeal. The Strickland test for ineffective assistance of trial
counsel (deficient performance and prejudice) applies to claims about appellate counsel. Smith v.
Robbins, 528 U.S. 259, 285 (2000). To prove the deficient performance prong of Strickland,
petitioner must show that his appellate attorney was objectively unreasonable in failing to raise
nonfrivolous issues on appeal. Id. To satisfy the prejudice prong, petitioner must demonstrate a
reasonable probability that he would have prevailed on appeal were it not for his attorney’s alleged
errors. Id.
“Failure of appellate counsel to raise an issue on appeal can amount to
constitutionally ineffective assistance. McFarland [v. Yukins, 356 F.3d 688, 710 (6th
Cir. 2004)]. Yet, counsel has no obligation to raise every possible claim and “the
decision of which among the possible claims to pursue is ordinarily entrusted to
counsel’s professional judgment.” Id. An appellate attorney is not required to raise
a non-meritorious claim. See Wilson v. Mitchell, 498 F.3d 491, 514–15 (6th Cir.
2007).”
Jalowiec v. Bradshaw, 657 F.3d 293, 321-322 (6th Cir. 2011). Moreover, “appellate counsel cannot
be ineffective for a failure to raise an issue that lacks merit.” Greer v. Mitchell, 264 F.3d 663, 676
(6th Cir. 2001).
As already noted, trial counsel was not ineffective because trial counsel’s
representation did not fall below an objective standard of reasonableness. Thus, appellate counsel
cannot be held accountable for failing to raise petitioner’s claims concerning trial counsel’s
ineffectiveness.
D. The Sentence
(Habeas claims nine and ten)
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Petitioner asserts that the trial court erred when it scored ten points for offense
variable nine (number of victims) and fifteen points for offense variable ten (predatory conduct) of
the Michigan sentencing guidelines. Petitioner claims that the trial court’s assessments were not
supported by the record and contravened his Sixth Amendment right to a jury trial as set forth in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).
Petitioner’s claim “that the trial court erred in applying the state sentencing guidelines
raises an issue of state law only. It does not implicate any federal rights,” Garcia-Dorantes v.
Warren, 769 F. Supp.2d 1092, 1112 (E.D. Mich. 2011), and “federal habeas corpus relief does not
lie for errors of state law,” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Therefore, a claim that the
trial court incorrectly calculated the state sentencing guidelines is not cognizable on federal habeas
corpus review. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007); McPhail v. Renico, 412 F.
Supp. 2d 647, 656 (E.D. Mich. 2006); Robinson v. Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich.
2001).
Petitioner attempts to couch his claim in constitutional terms by alleging that he was
sentenced on the basis of inaccurate information. The Michigan Court of Appeals, however, agreed
with petitioner that he should not have received any points for offense variables nine and ten. The
Court of Appeals remanded the case for re-sentencing within a sentencing guidelines range of 81
to 135 months. On remand, the trial court assessed no points for offense variables nine and ten and
sentenced petitioner to a minimum sentence within the guidelines range of 81 to 135 months. As
a result, the alleged inaccuracies were cured at re-sentencing.
Petitioner’s Apprendi/Blakely claim must also fail. In Apprendi, the Supreme Court
held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

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beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 490. In Blakely, the Supreme Court stated “that the
‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542
U.S. at 303.
Unlike the determinate sentencing scheme at issue in Blakely, Michigan has an
indeterminate sentencing scheme in which “[t]he maximum penalty is set by statute, but the
minimum penalty is determined by the sentencing court and must fall within a mandated guidelines
range.” Montes v. Trombley, 599 F.3d 490, 496 (6th Cir. 2010). “Apprendi’s rule does not apply
to judicial factfinding that increases a minimum sentence so long as the sentence does not exceed
the applicable statutory maximum.” Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009)
(citation omitted). Petitioner’s sentence of twelve to thirty years did not exceed the statutory
maximum penalty of life imprisonment or any term of years. See Mich. Comp. Laws § 750.529.
Therefore, petitioner’s Blakely claim is without merit.
E. The Jury Venire
(Habeas claim eleven)
Petitioner’s final claim alleges that he was denied due process and equal protection
of the law because he was tried before an all-white jury and there was systematic underrepresentation of African-Americans on Oakland County juries in 2005 when he was tried. “The
Sixth Amendment secures to criminal defendants the right to be tried by an impartial jury drawn
from sources reflecting a fair cross section of the community.” Berghuis v. Smith, __ U.S. __, __,
130 S. Ct. 1382, 1387 (2010) citing Taylor v. Louisiana, 419 U.S. 522 (1975). To establish a prima
facie violation of the Sixth Amendment’s fair-cross-section requirement, a defendant must show:
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“(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the
representation of this group in venires from which juries are selected is not fair and reasonable in
relation to the number of such persons in the community; and (3) that this underrepresentation is due
to systematic exclusion of the group in the jury-selection process.” Id. at 1388 quoting Duren v.
Missouri, 439 U.S. 357, 364 (1979).
As an African American, petitioner belongs to a distinctive group in the community.
United States v. Forest, 355 F.3d 942, 953 (6th Cir. 2004) (citations omitted). Therefore, he has
satisfied the first prong of the Duren test for a violation of the Sixth Amendment’s fair-cross-section
requirement. Petitioner has not, however, submitted any evidence demonstrating that the number
of African Americans in Oakland County jury venires was unfair and unreasonable in relation to the
number of African Americans in the community. Nor has he shown that any underrepresentation
was due to systematic exclusion of African Americans in the jury-selection process. It is not enough
to “point[] to a host of factors that, individually or in combination, might contribute to a group’s
underrepresentation.” Berghuis, 130 S. Ct. at 1395 (emphasis in original). Accordingly, petitioner’s
underrepresentation claim is unavailing.
IV. CONCLUSION
The state court decisions rejecting petitioner’s claims were not contrary to Supreme
Court precedent, unreasonable applications of Supreme Court precedent or based on unreasonable
determinations of fact. Consequently, the petition for writ of habeas corpus is DENIED.
V. CERTIFICATE OF APPEALABILITY
A prisoner seeking postconviction relief under 28 U.S.C. § 2254 must seek and obtain
a certificate of appealability before appealing a district court’s denial or dismissal of a habeas

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petition. 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). When, as here, the district court “rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward:

The petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Some of petitioner’s claims are not cognizable on habeas corpus review and others
challenge the trial court’s evidentiary rulings, which are entitled to deference.

Moreover,

petitioner’s remaining claims are entitled to double deference. Thus, reasonable jurists would not
debate the court’s assessment of petitioner’s claims, and the court, therefore, declines to issue a
certificate of appealability. Petitioner may, nevertheless, proceed in forma pauperis if he chooses
to appeal this decision because he was granted in forma pauperis relief in the District Court and he
could file an appeal in good faith. FED. R. APP. P. 24(a)(3)(A).
Accordingly, for the reasons stated herein,

IT IS ORDERED that the Petition for Writ of Habeas Corpus is denied.
IT IS FURTHER ORDERED that a certificate of appealability is denied.
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is granted.

Dated: July 5, 2012

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

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