Johnson v. Romanowski

Filing 12

OPINION and ORDER Denying Habeas Corpus Petition, Denying Certificate of Appealability and Granting Leave to Proceed In Forma Pauperis Signed by District Judge Nancy G. Edmunds. (CHem)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CALVIN JOHNSON,
Petitioner,
v.

CASE NO. 2:10-cv-11210
HONORABLE NANCY G. EDMUNDS

KENNETH ROMANOWSKI,
Respondent.
__________________________________/
OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION,
DENYING A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Calvin Johnson has filed a pro se petition for the writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The habeas petition challenges Petitioner’s state convictions
for three counts of armed robbery. Petitioner alleges that the evidence was insufficient to
sustain the convictions, trial counsel was ineffective, the trial court committed errors, the
prosecutor engaged in misconduct, and the cumulative effect of errors deprived him of due
process. Respondent argues in an answer to the habeas petition that all of Petitioner’s
claims are procedurally defaulted. The Court agrees. Therefore, the habeas petition will
be denied.
I. BACKGROUND
A. The Charges, Trial Testimony, Verdict, and Sentence
Petitioner was charged with three counts of armed robbery, Mich. Comp. Laws §
750.529. The charges arose from three separate armed robberies in Oakland County,

Michigan in October of 2002. The trial court combined the three cases for a jury trial in
Oakland County Circuit Court.
1. The First Robbery
There was no physical evidence linking Petitioner to the crimes, but the testimony
at trial established that the first robbery occurred in Ferndale at a heating wholesaler known
as Hydronics Supply. Larry Atkins testified that, about 5:15 p.m. on October 16, 2002, a
man came into the store and asked whether the company was hiring. Atkins responded
that they were not hiring, but that the man could leave his name on a piece of paper. The
man left a piece of paper on the counter and turned to go, but then jumped over the
counter, pointed a gun at Atkins’ head, and pushed Atkins into his office. At the man’s
request, Atkins gave him his wallet, money clip, and watch. Before leaving, the man told
Atkins not to chase him or call anybody or he would be a dead man. He then jumped back
over the counter and left the building.
The police were called and a sketch of the suspect was made based on Atkins’
description of the man. Atkins described the suspect to the police as a black male in his
early thirties, short hair, 5'8" tall, medium build, no facial hair, wearing a brown or green
shirt, and armed with a blue steel revolver. About two or three weeks later, a detective
asked Atkins to look at some photographs. Atkins picked the man in the upper right-hand
corner, and at trial, he identified Petitioner as the man who had robbed him.
Detective John Thull of the Ferndale Police Department testified that he showed an
array of six photos to Atkins on November 4, 2002. Within three seconds, Atkins picked
Petitioner’s photo, which was the photograph located in the upper right-hand corner of the
array. Atkins informed Detective Thull that he was “very certain” of his identification.
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Detective Thull denied telling Atkins anything about the photos. He claimed that he
typically explained to witnesses that he had a suspect who was in the photo array, but that
he could be wrong about the suspect and that the witness should not feel compelled to pick
a photo, because if Thull were wrong, the suspect was still at large.
2. The Second Robbery
The second robbery occurred on October 17, 2002, at the Three Dollar Car Wash
in Bloomfield Township. Christopher Carpenter and Matthew McNamara were working at
the car wash about 6:45 p.m. that day when a man walked into the car wash and asked if
they were hiring. McNamara responded that they were not hiring, but that the man could
leave his name and telephone number in case they decided to hire someone in the future.
The man began to write something on a piece of paper, but then dropped the paper, pulled
out a gun, and asked for McNamara’s and Carpenter’s money, in addition to, money from
the safe. McNamara and Carpenter gave the man their money and wallets and money
from the safe. The man left, but threatened to come back if they did anything after he left.
Carpenter testified at trial that he did not get a good look at the robber and was
unable to identify him because he had focused on the man’s gun, which he thought was
a semi-automatic pistol. McNamara, on the other hand, testified that he had looked at the
man and that, when the police showed him a photo array, he picked number three in the
photo array. He informed the police that the robber was 5'8" tall, 160 pounds, with black
hair, brown eyes, and a mustache. At trial, McNamara identified Petitioner as the robber,
and he testified that he thought Petitioner had been carrying a revolver.
Officer Sean Kelley of the Bloomfield Township Police Department testified that he
was dispatched to the Three Dollar Car Wash on October 17, 2002, and that one of the
3

employees described the suspect as 5'8" and the other employee described the suspect
as 5'10". Both of the employees informed him that the suspect was 170 pounds.
Detective Craig Shackleford of the Bloomfield Township Police Department testified
that he showed a photo array to Matthew McNamara and that McNamara picked
Petitioner’s photograph within a matter of seconds. Detective Shackleford denied telling
McNamara anything about the people in the array, and he claimed that he went out of his
way not to make any suggestive comments to McNamara.
3. The Third Robbery
The third robbery occurred at the Main Auto Clearance Center in Royal Oak. Akram
Azzow testified that, about noon on October 21, 2002, a man approached him in the office
at the clearance center and asked whether the clearance center financed cars. Azzow
explained that they accepted cash only. The man then pulled out a gun and told Azzow to
open the safe. When Azzow informed the man that there was no safe, the man hit him on
the side of the head with the gun. Azzow then gave his wallet, ring, and watch to the man.
The man took one telephone from the office and pulled the wires of the other telephone,
and before running away, he threatened to “get” Azzow if Azzow called the police.
Azzow nevertheless called the police and, about a month or two after the crime, a
police officer showed him some pictures. He immediately picked the third photo, which was
Petitioner’s photo. Azzow also identified Petitioner at the preliminary examination and at
trial as the man who robbed and assaulted him.
On cross-examination, Azzow stated that the detective who showed him the photo
array did not tell him who to pick out, but the detective may have told him afterward that he
picked the right person. Azzow repeatedly insisted at trial that Petitioner was the man who
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robbed him.
Officer Ronald Durant testified that Azzow described the suspect to him as a thin,
black male, approximately 5'8" tall with black hair, wearing dark clothes, and armed with
a black revolver. Police Officer Richard Babecki testified that no firearm was recovered at
the Main Auto Clearance Center and that he was unable to recover any fingerprints from
the phones at the Center. He conceded that he had no scientific evidence suggesting who
might have committed the robbery.
Petitioner waived his right to testify and did not present any witnesses. His defense
was that the prosecution did not prove its case. He noted that there was no scientific
evidence linking him to the crime, and he claimed through counsel that the eyewitnesses’
identification of him was unreliable due to the lack of specificity and certain discrepancies
in their descriptions of the robber and his gun.
On November 16, 2004, the jury found Petitioner guilty, as charged, of three counts
of armed robbery. The trial court sentenced Petitioner as a habitual offender, third offense,
to three concurrent terms of twenty-five to fifty years. Petitioner was thirty-five years old
at the time.
B. The Direct Appeal, Post-Conviction Motion, and Collateral Appeal
In an appeal of right, Petitioner claimed that there was insufficient evidence to
support his convictions and that his trial attorney was ineffective for failing to request
appointment of an expert on eyewitness identification. The Michigan Court of Appeals
found no merit in these claims and affirmed Petitioner’s convictions in an unpublished, per
curiam opinion. See People v. Johnson, No. 260314 (Mich. Ct. App. June 27, 2006).
Petitioner applied for leave to appeal in the Michigan Supreme Court, but the clerk of the
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state supreme clerk returned Petitioner’s application on August 24, 2006, because it was
not received within fifty-six days of the Court of Appeals decision, as required by Michigan
Court Rule 7.302(C)(2).
On or about November 5, 2007, Petitioner filed a motion for relief from judgment in
which he alleged that trial and appellate counsel were ineffective, the trial court abused its
discretion by denying the jury’s request for a transcript, the trial court’s jury instruction on
reasonable doubt was erroneous, the prosecution engaged in misconduct, the trial court
erred by joining three unrelated cases for trial, and the cumulative effect of the errors
deprived him of a fair trial. The trial court denied Petitioner’s motion pursuant to Michigan
Court Rule 6.508(D)(3). The court stated that Petitioner had failed to demonstrate “good
cause” for failing to raise his claims on appeal and “actual prejudice” from the alleged
irregularities. The Michigan Court of Appeals denied Petitioner’s subsequent application
for leave to appeal on the ground that Petitioner had failed to establish entitlement to relief
under Michigan Court Rule 6.508(D). See People v. Johnson, No. 289621 (Mich. Ct. App.
May 6, 2009). On December 21, 2009, the Michigan Supreme Court denied leave to
appeal for the same reason. See People v. Johnson, 775 N.W.2d 752 (Mich. 2009).
C. The Habeas Petition
Petitioner filed his habeas corpus petition on March 26, 2010. The Court construes
his pleading and reply brief liberally to include all eight claims that Petitioner presented to
the state courts on direct and collateral review. These claims, briefly summarized, are:
(1) the prosecution did not introduce sufficient evidence to convict Petitioner
of three counts of armed robbery;
(2) trial counsel was ineffective for failing to request appointment of an
identification expert;
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(3) trial counsel was effective for (a) failing to move for the production of
witnesses who could have established an alibi defense, (b) advising
Petitioner not to testify, and (c) failing to move to suppress a statement given
by Shawn Metts;1
(4) the trial court abused its discretion by denying the jury’s request for a
transcript, and trial counsel was ineffective failing to object;
(5) the trial court erroneously instructed the jury that a reasonable doubt is
the kind of doubt to which you can assign a reason;
(6) the prosecution withheld evidence (a videotape);
(7) the trial court deprived Petitioner of a fair trial by joining three unrelated
cases, and trial counsel was ineffective for failing to object; and
(8) the cumulative effect of the issues deprived Petitioner of a fundamentally
fair trial.

II. DISCUSSION
As noted above, Respondent claims that all of Petitioner’s claims are barred from
substantive review by the doctrine of procedural default. A procedural default is “a critical
failure to comply with state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). The
doctrine of procedural default prohibits a federal court from reviewing the merits of a
petitioner’s claims, including constitutional claims, if the state court declined to hear the
claims because the prisoner failed to abide by a state procedural rule. Martinez v. Ryan,
__ U.S. __, __, 132 S. Ct. 1309, 1316 (2012). Stated differently, a claim is procedurally
defaulted and may not be considered by a federal court on habeas review “[w]hen a habeas
petitioner fails to obtain consideration of a claim by a state court, either due to the
petitioner’s failure to raise that claim before the state courts while state-court remedies are

1

Petitioner alleges that appellate counsel also was ineffective for failing to move
to suppress Mr. Metts’ statement.
7

still available or due to a state procedural rule that prevents the state courts from reaching
the merits of the petitioner’s claim.” Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.
2000) (citing Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977), and Picard v. Connor,
404 U.S. 270, 275-80 (1971)).
A. Claims I and II
Petitioner’s first claim alleges that the evidence at trial was insufficient to support
his convictions. His second claim alleges that trial counsel was ineffective for failing to
request appointment of an expert on eyewitness identification. Petitioner presented these
claims to the Michigan Court of Appeals on direct appeal, but when he attempted to raise
the claims in the Michigan Supreme Court, his application was returned to him because it
was untimely.
A federal court may not grant habeas corpus relief to a state prisoner unless the
prisoner first exhausts his remedies in state court. O’Sullivan v. Boerckel, 526 U.S. 838,
842 (1999). This requirement generally is satisfied if the petitioner “invoke[s] one complete
round of the State’s established appellate review process,” including a petition for
discretionary review in the state supreme court, “when that review is part of the ordinary
appellate review procedure in the State.” Id. at 845, 847; see also Bray v. Andrews, 640
F.3d 731, 734-35 (6th Cir. 2011) (noting that the exhaustion doctrine requires petitioners
to fairly present their claims to the state court of appeals and to the state supreme court)
(quoting Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009)).
Petitioner did not raise his first two claims in the Michigan Supreme Court. Thus,
it initially appears that his first two claims are not exhausted. But Petitioner no longer has

8

a state remedy to exhaust because he missed the state supreme court’s filing deadline on
direct review and the only post-conviction remedy available to him is to file a motion for
relief from judgment. See Mich. Ct. R. 6.502. Petitioner has already filed one motion for
relief from judgment, and he may not file another one because his first two claims are not
based on a retroactive change in the law or on “new evidence that was not discovered
before the first such motion.” Mich. Ct. R. 6.502(g)(2).2 Consequently, Petitioner’s first two
claims must be deemed exhausted, but procedurally defaulted. Pudelski v. Wilson, 576
F.3d 595, 605 (2009), cert. denied, __ U.S. __, 130 S. Ct. 3274 (2010); Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994). Federal habeas review of Petitioner’s procedurally defaulted
claims is barred unless he “can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991).
1. Cause and Prejudice
Petitioner has not advanced any argument in support of a finding of cause and
prejudice. The Court therefore deems the “cause and prejudice” argument abandoned or
forfeited. Strough v. Colson, 680 F.3d 596, 608 (6th Cir. 2012); Roberts v. Carter, 337 F.3d
609, 613 (6th Cir. 2003) (citing United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000)).

2

Petitioner claims to have new evidence from Keenan Verner who asserts in an
affidavit dated February 9, 2010, that Petitioner was working for him in Detroit on
October 16, 17, and 21, of 2002. Petitioner claimed in his motion for relief from
judgment, which he filed in 2007, that his trial attorney was ineffective for failing to
produce Mr. Verner to establish an alibi defense. Thus, Mr. Verner’s allegations are not
new evidence for purposes of Rule 6.502(g)(2), and Petitioner cannot file a second
motion for relief from judgment pursuant to the exception for new evidence.
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2. Miscarriage of Justice
The only question is whether the Court’s failure to review Petitioner’s claims on the
merits will result in a miscarriage of justice. Coleman, 501 U.S. at 750. The miscarriage-ofjustice exception “is grounded in the ‘equitable discretion’ of habeas courts to see that
federal constitutional errors do not result in the incarceration of innocent persons.” Herrera
v. Collins, 506 U.S. 390, 404 (1993).

Thus, “in an extraordinary case, where a

constitutional violation has probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in the absence of a showing of
cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496 (1986). To
demonstrate actual innocence, however, Petitioner must show that, in light of some new
evidence, no reasonable juror “would have voted to find him guilty beyond a reasonable
doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995).
As noted above in footnote two, Petitioner has submitted an affidavit from Keenan
Verner, who states that he employed Petitioner to do some home improvement projects on
his property in Detroit during October of 2002. Mr. Verner goes on to say that, before
Petitioner’s trial, he contacted Petitioner’s trial attorney and informed him that Petitioner
was working for him at his home on Forrer Street in Detroit on October 16, 17, and 21,
2002. Mr. Verner also states in his affidavit that Petitioner’s working hours were 8:00 a.m.
to 6:00 p.m., Monday through Saturday, and that Petitioner’s attorney did not return his
calls even though the attorney said that he would be calling Mr. Verner to testify in
Petitioner’s behalf at Petitioner’s trial.
Petitioner’s jury was not informed of Mr. Verner’s allegations that Petitioner was
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working for him on the days of the robberies. Had Verner’s testimony or affidavit been
offered at trial, the jury could have weighed the evidence, along with the evidence offered
by the State, in deliberating its verdict. Herrera, 506 U.S. at 418. For the following
reasons, however, Petitioner has failed to show that no reasonable juror would have voted
to convict him had the jury known about Mr. Verner’s allegations.
The prosecution established through unbiased eyewitnesses that Petitioner
committed a robbery at Hydronics Supply, at the Three Dollar Car Wash in Bloomfield
Township, and at the Main Auto Clearance Center in Royal Oak.

In each case, the

eyewitness had a good opportunity to view the robber. The eyewitnesses’ descriptions of
the robber were generally consistent with each other, and their testimony established that
there were certain common elements in the criminal incidents. As the prosecutor pointed
out in his closing argument, the crime was the same in each case, the weapon used was
a small gun, and the crimes were committed during a five-day period. The incidents
occurred at businesses when there were no other customers present, and two of the crimes
happened near the close of the business day. Each time, the robber engaged in small talk
and then pulled out a gun and demanded money and/or valuables.

At two of the

businesses, the robber asked whether the company was hiring, and he left a piece of paper
with a name and telephone number. The first name (Cedric) was the same on both pieces
of paper. The robber took personal property from the victims and threatened them before
leaving. The victims independently identified Petitioner in a photo array and at trial.
The testimony of a single witness is sufficient to support a jury’s verdict when, as
here, “the testimony was enough to prove [the defendant’s] involvement beyond a
reasonable doubt.” United States v. Graham, 622 F.3d 445, 450 (6th Cir. 2010), cert.
11

denied, __ U.S. __, 131 S. Ct. 2962 (2011). Given the certainty of the victims’ identification
in this case, the similarities in the crimes, and the fact that Petitioner himself did not testify
about being elsewhere during the crimes, he has not persuaded the Court that no
reasonable juror would have convicted him in light of Mr. Verner’s allegations.
Petitioner also has not persuaded the Court that this is an “extraordinary case” in
which “a constitutional violation has probably resulted in the conviction of one who is
actually innocent.”

Carrier, 477 U.S. at 496. His claim of innocence is based on an

affidavit, but claims of actual innocence “based solely upon affidavits are disfavored
because the affiants' statements are obtained without the benefit of cross-examination and
an opportunity to make credibility determinations.” Herrera, 506 U.S. at 417. Moreover,
at his sentencing, Petitioner apologized to the trial court, the victims, and his family for his
actions. He explained that he had a “weed addiction” and that he had “tried to get fast
money without hurting anybody.” (Tr. Dec. 7, 2004, at 6.)
Petitioner has not satisfied the exception for miscarriages of justice. Therefore, his
first two claims are procedurally defaulted.
B. Claims III through VIII
Petitioner’s remaining claims (three through eight) allege that trial counsel was
ineffective, the trial court committed errors, the prosecutor withheld evidence, and the
cumulative effect of errors deprived Petitioner of a fair trial. These claims are procedurally
defaulted because Petitioner failed to raise the claims on direct review of his convictions
and because the state courts relied on this procedural error to deny relief.
At issue is Michigan Court Rule 6.508(D), which reads in relevant part:
(D) Entitlement to Relief.

The defendant has the burden of
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establishing entitlement to the relief requested. The court may not grant
relief to the defendant if the motion
....
(3) alleges grounds for relief, other than jurisdictional
defects, which could have been raised on appeal from the
conviction and sentence . . . unless the defendant
demonstrates
(a) good cause for failure to raise such
grounds on appeal . . . , and
(b) actual prejudice from the alleged
irregularities that support the claim for relief.
Mich. Ct. R. 6.508(D)(3).
Petitioner violated Rule 6.508(D)(3) by failing to raise claims three through eight on
direct appeal and by asserting those claims for the first time in his motion for relief from
judgment and subsequent appeals. Moreover, the trial court, the Michigan Court of
Appeals, and the Michigan Supreme Court rejected Petitioner’s claims for failure to
establish entitlement to relief under Michigan Court Rule 6.508(D). Although the state
appellate courts’ orders citing Rule 6.508(D) were not “explained orders invoking a
procedural bar,” Guilmette v. Howes, 624 F.3d 286, 289 (6th Cir. 2010), the trial court
issued a reasoned opinion in which it specifically stated that Petitioner had failed to
demonstrate “good cause” and “actual prejudice” under Rule 6.508(D)(3)(a) and (b). Thus,
the last state court to issue a reasoned opinion actually enforced Rule 6.508(D)(3).
The rule was an adequate and independent state law ground for rejecting
Petitioner’s claims because the rule was firmly established and regularly followed by the
time Petitioner appealed his conviction.

Therefore, Petitioner’s last six claims are

procedurally defaulted unless he can show “cause” for his default and “prejudice” or that
13

a miscarriage of justice will occur if the Court does not consider his claims on the merits.
Coleman, 501 U.S. at 750.
1. Appellate Counsel as “Cause”
Petitioner alleges that his appellate attorney was “cause” for the failure to raise
claims three through eight on direct appeal. The problem with this argument is that
Petitioner did not exhaust state remedies for his allegation about appellate counsel.
Although he did state in his motion for relief from judgment and subsequent appeals that
appellate counsel’s ineffectiveness constituted “cause” for his procedural default, he made
that argument in a section of his brief entitled “cause and prejudice.” He did not raise the
argument as an independent claim in state court. The only independent claim that
Petitioner made about his appellate attorney was his claim that appellate counsel failed to
move to suppress a statement made by Shawn Metts. Because Petitioner did not raise an
independent claim about appellate counsel’s failure to raise claims three through eight on
direct appeal, counsel’s alleged ineffectiveness on direct appeal cannot serve as “cause”
for Petitioner’s procedural default. Carrier, 477 U.S. at 488-89.
Even if Petitioner’s allegation about appellate counsel were exhausted, “the mere
fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise
the claim despite recognizing it, does not constitute cause for a procedural default.”
Id. at 486. And an appellate attorney is not required to raise every nonfrivolous claim
requested by the client. Jones v. Barnes, 463 U.S. 745, 751 (1983). “[T]he decision of
which among the possible claims to pursue is ordinarily entrusted to counsel’s professional
judgment.” McFarland v. Yukins, 356 F.3d 688, 710 (6th Cir. 2004). To prove ineffective
assistance of appellate counsel, Petitioner must establish (1) that his appellate attorney
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was objectively unreasonable in failing to raise nonfrivolous issues on appeal and (2) a
reasonable probability that the result of the appeal would have been different were it not
for his attorney’s unprofessional errors. Smith v. Robbins, 528 U.S. 259, 285 (2000).
The claims which were not raised on direct appeal allege ineffective assistance of
trial counsel, trial court errors, prosecutorial misconduct, and cumulative effect of errors.
The Court will briefly analyze these claims to determine whether appellate counsel made
an objectively unreasonable decision not to raise the issues and whether Petitioner would
have prevailed on appeal had he raised the issues.
a. Trial Counsel
Petitioner claims that trial counsel was ineffective for failing to produce witnesses
who could have established an alibi defense, for advising him not to testify, and for failing
to move to suppress Shawn Metts’ statement. The only alibi evidence Petitioner has
submitted is Keenan Vernor’s affidavit, which states that Petitioner was working for him in
Detroit on the dates of the robberies. The affidavit is not supported by any work records
or pay receipts, and because one of the robberies occurred around lunch time and another
robbery occurred about 6:45 p.m., it is at least conceivable that Petitioner could have
committed those robberies during a lunch break or after regular work hours. Thus, trial
counsel did not act unreasonably in failing to assert an alibi defense.
Petitioner claims that he could have testified he was employed at the time of the
robberies and did not need to be committing robberies. The record, however, indicates that
Petitioner had a prior conviction for armed robbery. If he had testified, the prosecutor could
have attempted to impeach him with his criminal record and could have argued under
Michigan Rule of Evidence 609(a)(2) that Petitioner was not credible due to his prior
15

conviction for a crime containing an element of theft. Therefore, defense counsel was not
ineffective for advising Petitioner not to testify.
The contention that trial counsel should have moved to suppress Shawn Metts’
statement is frivolous because the statement was never admitted in evidence. The Court
concludes that Petitioner’s claims about trial counsel lack merit and that appellate counsel
was not ineffective for failing to raise the issues on appeal.
b. The Trial Court
i. The Refusal to Re-Read Testimony
Petitioner alleges that the trial court erred and abused its discretion by refusing the
jury’s request for a transcript without determining whether the jury desired a specific part
of the transcript. Petitioner contends that the trial court foreclosed the matter without a
justifiable finding that the request was unreasonable. Petitioner also alleges that trial
counsel’s failure to object to the trial court’s handling of the issue was another example of
his inept performance.
The record indicates that the deliberating jurors sent a note to the trial court asking
whether they could have a transcript of the trial. The trial court responded, “No, you may
not, because there is not a transcript. The court reporter took it down. She hasn’t typed
it up. That only happens in Hollywood, not in real life.” (Tr. Nov. 16, 2004, at 313.)
Although the trial court could have attempted to address any specific concerns the
jurors had, “[t]here is no recognized constitutional right to the production of trial transcripts
to the jury.” United States v. Sain, 387 F. App’x 558, 560 (6th Cir. 2010). Therefore, the
trial court’s refusal to provide the transcript of trial “cannot be construed as an abuse of its
discretion.” Id. It follows that defense counsel was not ineffective for failing to object to the
16

trial court’s response to the jurors’ request, and appellate counsel was not ineffective for
failing to raise the issue on appeal.
ii. The Instruction on Reasonable Doubt
Petitioner alleges next that the trial court erred by instructing the jurors that
reasonable doubt is a doubt to which you can assign a reason. The actual instruction
reads:
A reasonable doubt is a fair, honest doubt growing out of the evidence
or lack of evidence. It is not merely an imaginary or possible doubt, but a
doubt based on reason and common sense.
A reasonable doubt is just that, a doubt that is reasonable after a
careful and considered examination of the facts and circumstances of this
case.
(Tr. Nov. 16, 2004, at 294).
The Constitution does not require courts to use any particular form of words when
instructing a jury on the prosecution’s burden of proof, “so long as the court instructs the
jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt.”
Victor v. Nebraska, 511 U.S. 1, 5 (1994). Further, the United States Court of Appeals for
the Sixth Circuit has upheld the constitutionality of the standard instruction used in
Petitioner’s case. See Binder v. Stegall, 198 F.3d 177 (6th Cir. 1999). Therefore,
Petitioner’s challenge to the jury instruction on reasonable doubt lacks merit, and appellate
counsel was not ineffective for failing to raise the claim on appeal.
iii. The Joinder of the Charges
Petitioner’s final allegation about the trial court is that the court erred by joining his
three armed robbery cases for trial. Petitioner further alleges that trial counsel was
ineffective for failing to object to the joinder of charges.
17

In Michigan, a court may order a joint trial when actions involve a substantial and
controlling common question of law or fact. Mich. Ct. R. 2.505(A). But the issue on habeas
review “is not whether the failure to sever counts for separate trials was a violation of a
state rule of procedure.” Davis v. Coyle, 475 F.3d 761, 777 (6th Cir. 2007). Rather, the
only issue is whether the joinder of the three cases deprived Petitioner of due process of
law under the Fourteenth Amendment. Id. (citing Corbett v. Bordenkircher, 615 F.2d 722,
724 (6th Cir. 1980)). To prevail on his claim, Petitioner must show that the joinder of his
three cases was so prejudicial as to deprive him of his right to a fair trial. Id. (quoting
United States v. Lane, 474 U.S. 438, 446 n. 8 (1986)).
Without question, a risk of undue prejudice exists whenever joinder of
counts permits introduction of evidence of other crimes that would otherwise
be inadmissible. See, e.g., Bean v. Calderon, 163 F.3d 1073, 1084 (9th Cir.
1998). By allowing joinder of offenses, the possibility exists that a jury may
use the evidence of one of the charged crimes to infer a general criminal
disposition by the defendant; the jury also may confuse or cumulate the
evidence of the various crimes charges. See Lucero v. Kerby, 133 F.3d
1299, 1314 (10th Cir. 1998). The prejudice that [Petitioner] must
demonstrate, however, in order to justify a grant of a writ of habeas corpus
is actual prejudice, not merely the potential for prejudice. See Herring v.
Meachum, 11 F.3d 374, 377-78 (2d Cir. 1993).
Id.
The three cases at issue here involved the same charge and were factually similar.
Trying them together was an efficient way of handling them, particularly because the cases
were not complicated, and it was unlikely that the jury would confuse the evidence.
Petitioner was not entitled to separate trials simply because he may have had a better
chance of acquittal in separate trials. Zafiro v. United States, 506 U.S. 534, 540 (1993).
Furthermore, the trial court instructed the jurors that Petitioner was charged with three
counts of armed robbery and that the counts were separate crimes. The court charged the
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jurors to consider each crime separately in light of all the evidence. The court also stated
that the jurors could find Petitioner not guilty or guilty of any one of the counts. (Tr. Nov.
16, 204, at 308.)
The Court finds that the joinder of Petitioner’s cases for trial did not result in actual
prejudice, nor deprive Petitioner of a fair trial. The trial court, therefore, did not deprive
Petitioner of due process by joining the cases for trial, and defense counsel was not
ineffective for failing to object to the joinder. Appellate counsel was not ineffective for
failing to raise the issue on appeal.
c. The Prosecutor
Petitioner alleges that the prosecutor violated the trial court’s discovery order and
withheld a videotape from him. The videotape did not depict any of the robberies; instead,
it showed a black man going up to the counter at a gas station. (Tr. Nov. 15, 2004, at 142.)
Apparently, a credit card stolen in the Ferndale robbery was used at the Ferndale gas
station depicted in the videotape. (Id. at 132-34.)
Petitioner’s claim that the prosecutor violated the trial court's discovery order by not
producing the videotape is not a cognizable claim on habeas corpus review. Colston v.
Burke, 37 F. App’x 122, 125 (6th Cir. 2002). Thus, Petitioner’s claim lacks merit even if it
is not procedurally defaulted.
Petitioner’s allegation that the prosecutor withheld evidence from the defense team
is a cognizable claim because the claim raises a constitutional issue. See Brady v.
Maryland, 373 U.S. 83, 87 (1963) (stating that “the suppression of evidence favorable to
an accused upon request violates due process where the evidence is material to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution”). Brady,
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however, “generally does not apply to delayed disclosure of exculpatory information, but
only to a complete failure to disclose.” United States v. Bencs, 28 F.3d 555, 560 (6th Cir.
1994). A delay in disclosing evidence violates Brady only when the delay itself causes
prejudice. Id. at 561.
Petitioner admits that the videotape in question was admitted in evidence at his trial.
In fact, the videotape was introduced midway through the first day of trial. Detective John
Thull testified that the tape had degraded to the point where only the race and gender of
the person depicted on the tape were visible. (Tr. Nov. 15, 2004, at 142.)
Even assuming that the videotape was exculpatory evidence, Petitioner has failed
to show that the prosecutor suppressed it or that the delay in producing the tape prejudiced
him. Appellate counsel therefore was not ineffective for failing to raise this issue on appeal.

d. The Cumulative Effect of Errors
Petitioner alleges that the cumulative effect of the errors enumerated above deprived
him of a fundamentally fair trial. A claim that the cumulative effect of errors rendered a
petitioner’s trial fundamentally unfair is not cognizable on habeas review. Sheppard v.
Bagley, 657 F.3d 338, 348 (6th Cir. 2011) (citing Moore v. Parker, 425 F.3d 250, 256 (6th
Cir. 2005)), cert. denied, No. 11-9887, 2012 WL 1378961 (U.S. June 11, 2012). Therefore,
Petitioner’s claim lacks merit even if it were not procedurally defaulted.
2. Conclusion on Petitioner’s “Cause and Prejudice” Argument
For all the reasons given above, habeas claims three through eight lack merit and
appellate counsel did not act unreasonably in failing to raise the claims. Further, Petitioner

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in all probability would not have prevailed on appeal had he raised the claims. Therefore,
appellate counsel was not ineffective, and Petitioner has failed to show cause for his
procedural default of failing to raise all his claims on direct appeal.
The Court need not determine whether Petitioner was prejudiced by the alleged
constitutional errors, because he has not shown “cause” for his procedural default. Smith
v. Murray, 477 U.S. 527, 533 (1986). And, as discussed above, Petitioner has not
established a credible claim of actual innocence. Therefore, a miscarriage of justice will
not occur as a result of the Court’s failure to consider the substantive merits of habeas
claims three through eight.
III. CONCLUSION
All eight of Petitioner’s claims are procedurally defaulted. Claims one and two are
procedurally defaulted because Petitioner failed to exhaust state remedies for those claims
and because he no longer has a state remedy to exhaust.

Claims three and eight are

procedurally defaulted because Petitioner failed to raise those claims on direct review and
the state courts rejected his claims for that reason. Petitioner has not shown “cause” for
his procedural defaults and resulting prejudice, and he has not satisfied the exception for
miscarriages of justice. The Court therefore denies the petition for a writ of habeas corpus
[dkt. #1] on the basis of Petitioner’s procedural defaults.
The Court declines to issue a certificate of appealability because reasonable jurists
would not find it debatable whether the petition states a valid claim of the denial of a
constitutional right or whether the Court’s procedural ruling was correct. Slack v. McDaniel,
529 U.S. 473, 484 (2000). Petitioner nevertheless may proceed in forma pauperis on
appeal if he chooses to appeal this decision because an appeal could be taken in good
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faith. 28 U.S.C. § 1915(a)(3).

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: July 13, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record
on July 13, 2012, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

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