Smith v. Naples

Filing 9

OPINION AND ORDER Denying Petition for Writ of Habeas Corpus; Declining to Issue a Certificate of Appealability; Granting Leave to Appeal In Forma Pauperis Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOSEPH SMITH,
Petitioner,
CASE NO. 10-cv-11995
HONORABLE VICTORIA A. ROBERTS

v.
ROBERT NAPELS,
Respondent.
___________________________/

OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
On May 18, 2010, petitioner Joseph Smith filed a pro se habeas corpus petition
under 28 U.S.C. § 2254. The pleading challenges Petitioner’s convictions for armed
robbery, carjacking, third-degree fleeing or eluding, and four firearm offenses. Counsel
for Respondent Robert Napels urges the Court to deny the petition. The Court finds no
merit in Petitioner’s claims. Accordingly, the habeas petition is denied. A procedural
history and discussion follow.
I. Background
Petitioner was charged in Oakland County, Michigan with eight counts: armed
robbery, MICH. COMP. LAWS § 750.529; bank robbery, MICH. COMP. LAWS § 750.531, as
an alternative count to count one; carjacking, MICH. COMP. LAWS § 750.529a; felon in
possession of a firearm, MICH. COMP. LAWS § 750.224f; third-degree fleeing or eluding a
police officer, MICH. COMP. LAWS § 257.602a; carrying a concealed weapon (CCW),
MICH. COMP. LAWS § 750.227; and two counts of possession of a firearm during the

commission of, or attempt to commit, a felony (felony firearm), MICH. COMP. LAWS §
750.227b. The charges arose from the robbery of a bank in Farmington Hills, Michigan
and a subsequent police chase during which Petitioner crashed into a vehicle and then
tried to escape from the police using another person’s vehicle.
Trial evidence established that Petitioner walked into the Bank of America in
Farmington Hills on September 5, 2006, and handed teller Betty Petrusha a note, which
stated, “This is a robbery, I have a gun. Give me the money, no dye packs or I will kill
you. 100's and 50's only.” Petrusha thought it might be a joke, but Petitioner shook his
head and patted his left side. She did not see a gun, but she heard something hitting an
object when Petitioner patted his side. She gave Petitioner the money in her teller
drawer; included in the bills was some bait money. After Petitioner took the money and
left, Petrusha hit the alarm button and informed a fellow employee, Sonya Haio, of the
robbery. Ms. Haio looked out the window and saw Petitioner get into a white mini van.
Petrusha and Haio gave the police a description of the suspect and his van.
Police Officer Jeffrey Medici received a radio dispatch about the bank robbery.
He saw a white van traveling southbound on Telegraph Road. Because the van and
driver fit the description given to him, he followed the van, called for help, and activated
his lights and siren.
Sergeant Michael Mellec also heard the announcement about the bank robbery.
The suspect’s van approached him in the area of Telegraph and Ten Mile Roads. He
followed it and led the chase with Officer Medici following as backup. The suspect
ignored Mellec’s lights and sirens, and at the intersection of Eight Mile and Beech
Roads, the suspect disregarded a traffic signal and collided with another vehicle.
2

Officer Medici then observed Petitioner flee from the white van and get into a red
Dodge Neon whose four occupants piled out of the driver’s door. Petitioner attempted
to drive the car from the scene, but Sergeant Mellec fired two gunshots at Petitioner,
who then raised his hands and exited the car. The two officers handcuffed and arrested
Petitioner.
Officer Pamela Beesley transported Petitioner to the Oakland County Jail and
told him that he was lucky he did not get shot. Petitioner responded, “You guys are
lucky I didn’t shoot you. I do practice and know how to shoot my gun.”
Evidence technician Mark Malott arrived on the scene and inspected the white
van. Inside the van, he found $ 1,682, including the bait money from the bank, and the
demand note that was used at the bank. He collected a baseball hat and a pair of
sunglasses because he had information that the suspect was wearing a hat and
sunglasses during the robbery. He found a loaded gun and a cell phone in the Dodge
Neon.
Defense counsel stipulated that Petitioner was convicted of a prior felony, and
Detective Damian Woodmore testified that Petitioner had not applied to have his right to
carry a weapon reinstated. Petitioner testified in his own behalf and admitted that he
had four prior convictions for theft or dishonesty. He also conceded that he was guilty
of the current charges of bank robbery and fleeing or eluding the police, but he denied
having a gun or an intention to keep the Dodge Neon.
Defense counsel argued to the jury that Petitioner fled from the police and was
guilty of bank robbery, but that the prosecution had failed to prove Petitioner was guilty
of carjacking and the gun counts. On March 28, 2007, the jury found Petitioner guilty of
3

armed robbery, carjacking, felon in possession of a firearm, third-degree fleeing or
eluding a police officer, CCW, and two counts of felony firearm. The trial court
sentenced Petitioner as a fourth habitual offender to concurrent prison terms of sixty to
one hundred years for the robbery and carjacking convictions, and five to twenty years
for the felon-in-possession, fleeing or eluding, and CCW convictions. Petitioner is to
serve the carjacking and felon-in-possession sentences consecutively to concurrent
terms of two years in prison for the felony firearm convictions.
Petitioner raised his habeas claims in the Michigan Court of Appeals, which
affirmed his convictions in an unpublished, per curiam opinion. See People v. Smith,
No. 277901 (Mich. Ct. App. Dec. 23, 2008). Petitioner raised the same issues in the
Michigan Supreme Court, but the state supreme court denied leave to appeal on May
27, 2009, because it was not persuaded to review the issues. See People v. Smith, 483
Mich. 1020 (2009) (table).
Petitioner filed his habeas corpus petition on May 18, 2010. He alleges that: (1)
the prosecution abused its discretion by proceeding with the armed robbery charge
instead of the more specific charge of bank robbery; (2) there was insufficient evidence
to support his carjacking conviction; (3) the trial court abused its discretion when it
permitted the prosecutor to impeach him with three prior theft convictions; (4) the
prosecutor committed misconduct by vouching for two prosecution witnesses and by
calling Petitioner a liar; (5) the trial court erred by allowing Officer Beesley to testify
about her interrogation of Petitioner even though she did not inform Petitioner of his
constitutional rights; (6) the jury had a preconceived opinion of Petitioner’s guilt because
they learned that he was in custody; and (7) the cumulative effect of the errors requires
4

a new trial.
Respondent argues in an answer to the petition that the first and fourth habeas
claims are procedurally defaulted, the third claim is not cognizable on habeas corpus
review, and the remaining claims lack merit. The Court elects to excuse the alleged
defaults because Petitioner’s claims lack substantive merit, and procedural default is not
a jurisdictional limitation. Pudelski v. Wilson, 576 F.3d 595, 606 (6th Cir. 2009), cert.
denied, __ U.S. __, 130 S. Ct. 3274 (2010).
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 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).
Under the “contrary to” clause, 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, 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
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unreasonably applies that principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
“A state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v. Richter, 131 S. Ct. at 786 (citing 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 claim “was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Id. at 786-87.
III. Discussion
A. Proceeding on Alternative Grounds
Petitioner alleges that the prosecution abused its discretion by proceeding with
the armed robbery charge instead of only the bank robbery charge. Petitioner says that
under state law, the prosecutor was obligated to charge him with the more specific
charge (bank robbery) rather than the more general charge (armed robbery). He
contends that the prosecutor charged him with armed robbery to enhance the
sentencing guidelines and to take advantage of the mandatory two-year minimum
sentence found in the armed robbery statute. Petitioner argues that the resulting
conviction is unduly harsh, constitutes cruel and unusual punishment, and violates his
rights to equal protection and due process of the law.
The Michigan Court of Appeals reviewed Petitioner’s claim for “plain error”
because Petitioner did not object in the trial court to being charged with alternative
counts. The Court of Appeals determined that plain error did not occur, because there
6

was factual support for both charges and because the prosecution had discretion to
charge Petitioner in the alternative with both offenses.
The United States Supreme Court explained in Bordenkircher v. Hayes, 434 U.S.
357 (1978), that,
[i]n our system, so long as the prosecutor has probable cause to believe
that the accused committed an offense defined by statute, the decision
whether or not to prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in his discretion. Within the limits set by
the legislature's constitutionally valid definition of chargeable offenses,
“the conscious exercise of some selectivity in enforcement is not in itself a
federal constitutional violation” so long as “the selection was [not]
deliberately based upon an unjustifiable standard such as race, religion, or
other arbitrary classification.” Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct.
501, 506, 7 L. Ed.2d 446 [1962].
Id. at 364 (footnote omitted).
“[W]hen an act is punishable under more than one statute, ‘the Government may
prosecute under either so long as it does not discriminate against any class of
defendants.’” United States v. Green, 654 F.3d 637, 652 (6th Cir. 2011) (quoting United
Sates v. Batchelder, 442 U.S. 114, 123-24 (1979)), cert. denied, __ U.S. __, 132 S. Ct.
1056 (2012); see also United States v. Hamel, 551 F.2d 107, 113 (6th Cir. 1977)
(“When the same conduct is prohibited by two penal statutes, the government may
proceed under either and the defendant may not complain if the government elects to
proceed under the harsher one.”). “This rule is not changed by the circumstance that
one of the applicable statutes is general and the other specific.” United States v.
Armijo, 834 F.2d 132, 136 (8th Cir. 1987); see also United States v. Quigley, 798 F.
Supp. 451, 456-57 (W.D. Mich. 1992) (“[T]he fact that an alternative statute exists for
prosecuting a particular offense does not preclude prosecution under a more general
7

offense, as the decision is generally a matter of prosecutorial discretion.”) (citing United
States v. Oldfield, 859 F.2d 392, 398 (6th Cir. 1988)).
Evidence supported the charges for both armed robbery and bank robbery,1 and

1

The unarmed robbery statute reads in relevant part:

A person who, in the course of committing a larceny of any money or other
property that may be the subject of larceny, uses force or violence against
any person who is present, or who assaults or puts the person in fear, is
guilty of a felony punishable by imprisonment for not more than 15 years.
MICH. COMP. LAWS § 750.530(1).
The armed robbery statute reads in relevant part:
A person who engages in conduct proscribed under section 530 [the
unarmed robbery statute] and who in the course of engaging in that
conduct, possesses a dangerous weapon or an article used or fashioned
in a manner to lead any person present to reasonably believe the article is
a dangerous weapon, or who represents orally or otherwise that he or she
is in possession of a dangerous weapon, is guilty of a felony punishable by
imprisonment for life or for any term of years.
MICH. COMP. LAWS § 750.529.
The evidence in this case established that Petitioner committed a larceny,
frightened the bank teller, and wrote in his demand note that he had a gun. Thus, there
was a factual basis for charging Petitioner with armed robbery.
The bank robbery statute reads:
Any person who, with intent to commit the crime of larceny, or any felony,
shall confine, maim, injure or wound, or attempt, or threaten to confine,
kill, maim, injure or wound, or shall put in fear any person for the purpose
of stealing from any building, bank, safe or other depository of money,
bond or other valuables, or shall by intimidation, fear or threats compel, or
attempt to compel any person to disclose or surrender the means of
opening any building, bank, safe, vault or other depository of money,
bonds, or other valuables, or shall attempt to break, burn, blow up or
otherwise injure or destroy any safe, vault or other depository of money,
bonds or other valuables in any building or place, shall, whether he
succeeds or fails in the perpetration of such larceny or felony, be guilty of
8

there is no indication that the prosecutor charged Petitioner for an improper reason such
as race, religion, or some arbitrary classification.
The Court concludes that the prosecutor did not violate Petitioner’s constitutional
rights by charging him in the alternative with armed robbery and bank robbery. The
state appellate court’s rejection of Petitioner’s claim did not result in a decision that was
contrary to, or an unreasonable application of, clearly established federal law as
determined by the Supreme Court.
B. Sufficiency of the Evidence
Petitioner alleges there was insufficient evidence to support his carjacking
conviction. Petitioner claims that he did not steal or even take the Dodge Neon and that
his conduct did not amount to carjacking, because (1) he gave the occupants the option
of remaining in the vehicle and (2) he intended to use the vehicle for the limited purpose
of escaping from the police. The Michigan Court of Appeals disagreed with Petitioner
and decided that the evidence was sufficient to sustain his conviction.
The relevant question on 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

a felony, punishable by imprisonment in the state prison for life or any
term of years.
MICH. COMP. LAWS § 529.531.
Petitioner admitted at trial that he intended to take money from the bank. He also
admitted that he handed the teller a note, which included a threat to kill her if she did not
comply with his demand for money. The facts, therefore, also supported the charge of
bank robbery.
9

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original). Jackson claims are subject to two layers of judicial deference in federal
habeas corpus proceedings: deference to the jury’s verdict and deference to the state
court’s decision. Coleman v. Johnson, __ U.S. __, __, 132 S. Ct. 2060, 2062 (2012)
(per curiam); Nali v. Phillips, 681 F.3d 837, 841 (6th Cir. 2012), petition for cert. filed,
No. 12-5974 (U.S. Aug. 22, 2012).
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. To sustain a carjacking conviction in Michigan, “the prosecution
must prove (1) that the defendant took a motor vehicle from another person, (2) that the
defendant did so in the presence of that person, a passenger, or any other person in
lawful possession of the motor vehicle, and (3) that the defendant did so either by force
or violence, by threat of force or violence, or by putting the other person in fear.” People
v. Davenport, 230 Mich. App. 577, 579 (1998) (citing People v. Green, 228 Mich. App.
684, 694 (1998)).
Susan Neal testified at trial that a man approached the passenger side of the
Dodge Neon she was driving on September 5, 2006, and announced that he was taking
the car. The man entered the car, crawled over her daughter who was seated in the
front passenger seat, and pushed Ms. Neal out of the way as she was opening the
driver’s door to get out. All four occupants of the car managed to get out of the car.
The man then put the car in reverse and slammed into the car behind them; he put the
car in drive and slammed into the car in front of them. He did not have permission to
take the vehicle, and, if the police had not arrived, he would have been able to drive
10

away. (Tr. Mar. 26, 2007, at 255-68.)
Ms. Neal’s nineteen-year-old daughter, Corie Traver, testified that the man
grabbed her car door and ordered the occupants to drive or get out of the car. He
pointed a gun at her and got in the car, climbing over her to the driver’s seat where he
pushed her mother out of the car. He then tried to drive the car. (Id. at 274-80.)
Although neither Ms. Neal, nor Ms. Traver, could identify Petitioner at trial,
Sergeant Michael Mellec testified that he saw Petitioner open the passenger door of the
Dodge Neon and point a gun at the occupants. According to Sergeant Mellec, the
occupants were trying to get out of the car and comply with Petitioner’s demands.
Sergeant Mellec later saw a gun on the front seat of the Neon. (Tr. Mar. 26, 2007, at
224-26, 229-31, 245-46.) Police Officer Jeffrey Medici also saw Petitioner climb into
the Dodge Neon, and he, too, observed a loaded handgun lying on the front seat of the
Neon after Petitioner was taken into custody. (Id., at 183, 199-200).
Petitioner argues that he did not actually take the vehicle, but merely wanted to
use it to get away from the police. “[A] defendant ‘takes’ a motor vehicle ‘from’ another
when he acquires possession of the motor vehicle through force or violence, threat of
force or violence, or by putting another in fear.” People v. Green, 228 Mich. App. at
695-96. Taking a vehicle “does not require that the victim be physically separated from
the motor vehicle. The hallmark of possession is dominion and control.” Id. at 696.
Here, there was evidence that Petitioner took possession of the Dodge Neon by
threatening the occupants with a gun and announcing that he was taking the car. He
then got in the driver’s seat without permission and attempted to drive away. He took
possession of the Neon by exercising dominion and control over it, and his actions
11

implied that he intended to permanently deprive the occupants of the car. There was no
indication that he intended to return the car if he succeeded in getting away. In fact, he
testified that he did not think that far into the future. (Tr. Mar. 27, 2007, at 414.) And
even assuming that he gave the occupants the option of remaining in the vehicle, their
presence in the Neon did not diminish Petitioner’s exercise of possession. People v.
Green, 228 Mich. App. at 696.
A rational trier of fact could have concluded from the evidence taken in the light
most favorable to the prosecution that Petitioner took a motor vehicle from another
person, in the presence of people in lawful possession of the vehicle, and did so by
force, by threat of force or violence, and by putting the occupants in fear. Thus, there
was sufficient evidence of a carjacking, and the state appellate court’s decision was not
contrary to, or an unreasonable application of, Jackson.
C. Evidence of Prior Convictions
Petitioner states that the trial court abused its discretion when it permitted the
prosecutor to impeach him with his prior convictions for receiving or concealing stolen
property and unlawful use of a motor vehicle. Petitioner maintains that two of the prior
convictions should not have been used for impeachment purposes under Michigan Rule
of Evidence 609 because they were more than ten years old, and a third offense was
almost ten years old. Petitioner concludes that the probative value of the prior
convictions was essentially nil.
Generally, issues dealing with the admissibility or exclusion of evidence may not
be questioned in a federal habeas corpus proceeding, Seymour v. Walker, 224 F.3d
542, 552 (6th Cir. 2000), and the contention that the trial court violated Michigan Rule of
12

Evidence 609 lacks merit because “‘federal habeas corpus relief does not lie for errors
of state law.’” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497
U.S. 764, 780 (1990)). But if a state court’s “evidentiary ruling is so egregious that it
results in a denial of fundamental fairness, it may violate due process and thus warrant
habeas relief.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
Petitioner’s prior convictions had some probative value on the issue of
Petitioner’s credibility because they involved a form of theft, deceit, or dishonesty.
Furthermore, defense counsel conceded for purposes of the felon-in-possession count
that Petitioner had a prior conviction, and Petitioner was not deterred from testifying
even though he knew that evidence of his prior convictions would be admitted at trial.
The Court therefore concludes that the trial court’s evidentiary ruling was not
fundamentally unfair and did not deprive Petitioner of his right to due process.
Even if constitutional error occurred, the evidence against Petitioner was
substantial, and the trial court instructed the jurors that the evidence of past crimes
should not be treated as evidence that Petitioner committed the crimes charged in this
case. (Tr. Mar. 27, 2007, at 465-66.) In light of the trial court’s jury instruction and the
substantial evidence against Petitioner, the information about his prior convictions could
not have had a “substantial and injurious effect or influence in determining the jury's
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). The jury likely based its verdict on the strength of
the testimony about the current charges, not Petitioner’s past conduct. Any evidentiary
error was harmless.
D. The Prosecutor
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The fourth habeas claim challenges the prosecutor’s comments during closing
arguments. Petitioner contends that the prosecutor committed misconduct by vouching
for two prosecution witnesses and by calling him a liar.
The Michigan Court of Appeals reviewed this claim for “plain error” because
Petitioner did not object to the prosecutor’s comments at trial. The Court of Appeals
concluded that plain error did not occur, because the prosecutor did not vouch for the
credibility of her witnesses, and merely offered plausible explanations for why some of
the testimony conflicted with other evidence. The Court of Appeals also stated that it
was not improper for the prosecutor to argue from the evidence that Petitioner was a
liar.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v.
Parker, 344 F.3d 487, 512 (6th Cir. 2003)). To prevail on a prosecutorial-misconduct
claim, a habeas petitioner must demonstrate that the prosecutor’s conduct infected his
trial with such unfairness as to make the resulting conviction a denial of due process.
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The misconduct must have been
“so egregious as to render the entire trial fundamentally unfair.” Cook v. Bordenkircher,
602 F.2d 117, 119 (6th Cir. 1979). Federal courts in this Circuit
apply a “two-part test to determine whether the state court reasonably
applied the federal standard in holding that prosecutorial misconduct did
not render [the petitioner’s] trial fundamentally unfair.” Irick v. Bell, 565
F.3d 315, 324 (6th Cir. 2009). [Courts] first determine whether the
prosecution's conduct was improper. Id. Second, [courts] determine
whether that improper conduct was flagrant by considering four factors:
“(1) whether the evidence against the defendant was strong; (2) whether
the conduct of the prosecution tended to mislead the jury or prejudice the
defendant; (3) whether the conduct or remarks were isolated or extensive;
14

and (4) whether the remarks were made deliberately or accidentally.” Id.
(internal quotation marks omitted).
Wogenstahl v. Mitchell, 668 F.3d 307, 328 (6th Cir. 2012), petition for cert. filed, No. 125231 (U.S. July 10, 2012).
Claims of prosecutorial misconduct also are subject to harmless-error analysis.
Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir. 2003) (citing Hill v. Brigano, 199 F.2d
833, 847 (6th Cir. 1999)). As noted above, an error is harmless unless it had a
“substantial and injurious effect or influence in determining the jury's verdict.” Brecht v.
Abrahamson, 507 U.S. at 623.
1. Vouching
Petitioner claims that the prosecutor vouched for her witnesses when she stated
during closing arguments that bank teller Betty Petrusha was trying to be honest and
that Corie Traver, owner of the Dodge Neon, honestly believed Petitioner fired his gun,
as she claimed in her statement to the police.
“Improper vouching occurs when a prosecutor supports the credibility of a
witness by indicating a personal belief in the witness’s credibility thereby
placing the prestige of the [prosecutor’s office] behind that witness.”
[United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)]. This
generally involves either blunt comments asserting personal belief, or
comments that imply special knowledge of facts not before the jury or the
credibility or truthfulness of the witness. Id.
United States v. Reid, 625 F.3d 977, 982 (6th Cir. 2010).
a. Betty Petrusha
The prosecutor’s comments must be viewed in context. Ms. Petrusha testified on
cross-examination by defense counsel that the demand note found in Petitioner’s van
did not look like the note Petitioner presented to her. She could not recall seeing the
15

comment about fifty and one-hundred dollar bills, nor the comment about not giving the
robber any dye packs. (Tr. Mar. 26, 2007, at 146.) In her closing argument, the
prosecutor said,
Betty Petrusha, bless her little heart, was trying to be so honest she
said I don’t know if that’s the note or not. I don’t think it is, because I don’t
remember denominations and dye packs.
(Tr. Mar. 27, 2007, at 436.)
These remarks, although intentional, were brief. They could not have misled the
jury or prejudiced Petitioner because they pertained only to Petrusha’s testimony about
the demand note, and they merely emphasized Petrusha’s inability to say whether the
demand note in evidence was the note that Petitioner presented to her. Therefore,
even if the prosecutor’s remarks about Betty Petrusha amounted to improper vouching,
the misconduct was not flagrant.
b. Corie Traver
Corie Traver testified about the carjacking. She said that Petitioner approached
her door and instructed the occupants to drive or get out. (Tr. Mar. 26, 2007, at 27477.) On cross-examination, Ms. Traver admitted to telling the police at the crime scene
that Petitioner fired a gun during the incident. She maintained at trial that Petitioner
fired a gun during the incident (id. at 283-85), even though the other evidence
established that Sergeant Mellec fired the gunshots (id. at 228).
During her rebuttal argument, the prosecutor said:
She [Corie Traver] tried to be truthful in her written statement. She
honestly believed that the person who was shooting the gun was the bad
man who just pointed it in her mother’s face. She was wrong. It was the
sergeant. That doesn’t make her a liar or incredible. It makes her wrong,
but she certainly wasn’t trying to be wrong. She used deductive reasoning
16

to say the bad man got into my car with a gun, as soon as I got out, there
were shots fired and she thought it was him, period.
(Tr. Mar. 27, 2007, at 454-55.)
The prosecutor was not vouching for Ms. Traver, but explaining why that part of
Traver’s testimony was inaccurate. The remarks helped Petitioner to the extent that
they demonstrated witnesses can be wrong.
Even if the quoted remarks were improper, the testimony of Susan Neal and the
police officers who chased Petitioner was sufficient to convict him of the carjacking.
Therefore, the remarks about Ms. Traver could not have had a substantial and injurious
effect on the jury’s verdict and were harmless.
2. Calling Petitioner a Liar
Petitioner admitted at trial that he committed two of the seven charges against
him: bank robbery and fleeing or eluding the police. He nevertheless maintained that
he did not possess a firearm when he went in the bank on September 5, 2006, nor
when he was driving his van and trying to elude the police, nor when he approached the
occupants of the Dodge Neon. (Tr. Mar. 27, 2007, at 382-85, 390.) Although the bank
teller did not see a gun during the robbery, a police officer subsequently saw Petitioner
point a gun at the occupants of the Dodge Neon, and a gun was found in the Dodge
Neon following Petitioner’s arrest.
In her closing argument, the prosecutor called Petitioner a liar and stated that
Petitioner proved to the jury on the stand that he had no credibility and was trying to
wiggle out of a few charges. (Id. at 444.) In her rebuttal argument, the prosecutor said:
The assertion that he is an honest individual because he’s
conceding two of seven charges is ridiculous. Obviously from his
17

testimony, it’s clear this is not a truthful individual. He’s a thief, he’s a liar,
period.
(Id. at 458.)
When, as in this case, a defendant testifies, “a prosecutor may attack his
credibility to the same extent as any other witness.” United States v. Francis, 170 F.3d
546, 551 (6th Cir. 1999). When emphasizing discrepancies between the evidence and
the defendant's testimony, a prosecutor may even assert during closing arguments that
the defendant is lying. Id. “To avoid impropriety, however, such comments must ‘reflect
reasonable inferences from the evidence adduced at trial.’” Id. (quoting United States v.
Goodapple, 958 F.2d 1402, 1490-10 (7th Cir. 1992)). Because Petitioner testified and
because the prosecutor’s argument was based on discrepancies between the evidence
and Petitioner’s testimony, it was not improper to suggest that he lied.
3. Conclusion
The prosecutor’s remarks were not improper, and even if they were, the remarks
were not flagrant. Furthermore, the trial court instructed Petitioner’s jury that the
attorneys’ statements and arguments were not evidence, but were meant to help the
jurors understand the attorneys’ theories. (Tr. Mar. 27, 2007, at 466). An instruction
such as this one generally can correct improprieties in a prosecutor’s closing argument.
United States v. Crosgrove, 637 F.3d 646, 664 (6th Cir. 2011) (citing United States v.
Emuegbunam, 268 F.3d 377, 406 (6th Cir. 2001)). At worst, harmless error occurred,
and the Court declines to grant relief based on prosecutorial misconduct.
To the extent Petitioner asserts an independent claim about trial counsel’s failure
to object to the prosecutor’s remarks, the Court declines relief on that claim as well.
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Because the prosecutor’s comments were proper and not flagrant, an objection would
have been futile. Counsel was not ineffective for failing to make futile objections. Harris
v. United States, 204 F.3d 681, 683 (6th Cir. 2000).
E. The Alleged Failure to Comply with Miranda
Petitioner alleges that the trial court erred by allowing police officer Pamela
Beesley to testify about his remark to Beesley after he was taken into custody. The
contested remark was that the police were lucky Petitioner did not shoot them because
he practiced and knew how to shoot his gun. Petitioner contends that Officer Beesley’s
testimony about his comment to her should have been suppressed because she did not
read Petitioner’s constitutional rights to him before interrogating him.
The trial court ruled that Petitioner’s remark did not occur during an interrogation.
The Michigan Court of Appeals agreed that constitutional warnings were not required,
that Petitioner’s statement was admissible, and that the trial court did not err in
permitting Officer Beesley to testify about the remark.
The Fifth Amendment to the United States Constitution provides that “[n]o person
shall be . . . compelled in any criminal case to be a witness against himself.” U.S.
CONST. amend. V. “To give force to the Constitution’s protection against compelled selfincrimination, the [Supreme] Court established in Miranda [v. Arizona, 384 U.S. 436
(1966)] ‘certain procedural safeguards that require police to advise criminal suspects of
their rights under the Fifth and Fourteenth Amendments before commencing custodial
interrogation.’” Florida v. Powell, __ U.S. __, __, 130 S. Ct. 1195, 1203 (2010) (quoting
Duckworth v. Eagan, 492 U.S. 195, 201 (1989)). “Prior to any questioning, the person
must be warned that he has a right to remain silent, that any statement he does make
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may be used as evidence against him, and that he has a right to the presence of an
attorney, either retained or appointed.” Miranda, 384 U.S. at 444.
[T]he Miranda safeguards come into play whenever a person in custody is
subjected to either express questioning or its functional equivalent. That
is to say, the term “interrogation” under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response from
the suspect. . . . A practice that the police should know is reasonably
likely to evoke an incriminating response from a suspect thus amounts to
interrogation. But, since the police surely cannot be held accountable for
the unforeseeable results of their words or actions, the definition of
interrogation can extend only to words or actions on the part of police
officers that they should have known were reasonably likely to elicit an
incriminating response.
Rhode Island v. Innis, 446 U.S. 291, 300-302 (1980) (footnotes omitted) (emphasis in
original).
Officer Beesley testified at trial that Petitioner was handcuffed and lying on the
ground when she arrived at the intersection of Beech and Eight Mile Roads on
September 5, 2006. She then transported Petitioner to the Oakland County Jail. On
the way there, she told Petitioner he was lucky he did not get shot. According to Officer
Beesley, Petitioner replied, “You guys are lucky I didn’t shoot you. I do practice and
know how to shoot my gun.” (Tr. Mar. 27, 2007, at 338-39.)
Officer Beesley’s comment to Petitioner was a statement or assertion, not a
question. And, because Sergeant Mellec fired two gunshots at Petitioner, one could
expect Petitioner to respond to Officer Beesley’s remark by saying that he was indeed
lucky not to have been hit. Officer Beesley’s remark was not the type of remark that she
could reasonably expect would elicit an incriminating response from Petitioner.
Therefore, Officer Beesley’s comment to Petitioner was not an interrogation, and
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Miranda warnings were unnecessary. The trial court’s ruling and the state appellate
court’s decision affirming the trial court were not contrary to, or unreasonable
applications of, Miranda and Innis.
F. Information that Petitioner was in Custody
Petitioner alleges that his trial attorney had a file with his name on it and the
words “IN CUSTODY” in green laminate. Petitioner claims that the file was facing the
jury and that he was denied a fair trial because the jury developed a preconceived
opinion of his guilt when they learned that he was in custody. He argues that the error
was comparable to having the jury see him in shackles or jail clothes, and, at a
minimum, the trial court should have read a cautionary jury instruction.
Petitioner raised this issue while the jury was deliberating. The trial court
dismissed his objection by stating that there were two deputies in the courtroom
throughout the trial and the jury would be naive if they did not realize Petitioner was in
custody. (Tr. Mar. 28, 2007, at 494-95.) The Michigan Court of Appeals held that the
folder did not prejudice Petitioner’s right to a fair trial and that the trial court did not
abuse its discretion failing to take additional action, because the jury should not have
been alarmed or surprised to learn that Petitioner might be in custody.
It is not clear from the record whether the jurors actually saw the folder with the
words “IN CUSTODY” on it. Even assuming they did, the Court agrees with the state
courts; the jurors would have been naive not to think that Petitioner might be in custody.
He was charged with seven serious offenses, and there were two deputies in the
courtroom throughout the trial.
Furthermore, the trial court instructed the jurors that Petitioner was presumed
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innocent throughout the trial, that they should base their decision on the admissible
evidence, and that they should not let prejudice influence their decision. (Tr. Mar. 27,
2007, at 464-68.) “[J]uries are presumed to follow their instructions.” Richardson v.
Marsh, 481 U.S. 200, 211 (1987). Petitioner’s right to a fair trial was not violated.
G. The Cumulative-Effect Theory
Petitioner’s seventh and final claim alleges that the cumulative effect of the trial
errors affected the fairness of the proceedings and undermines the trustworthiness of
the verdict. The Michigan Court of Appeals stated on review of this claim that, because
no cognizable errors were identified, reversal under a cumulative error theory was
unwarranted.
This Court agrees and further rejects Petitioner’s claim; 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, __ U.S. __,
132 S . Ct. 2751 (2012).
IV. Conclusion
The decision of the Michigan Court of Appeals was not contrary to clearly
established Supreme Court precedent, an unreasonable application of Supreme Court
precedent, or an unreasonable determination of the facts. Accordingly, the Court
DENIES the petition for a writ of habeas corpus.
The Court declines to issue a certificate of appealability. Reasonable jurists
would not disagree with the Court’s resolution of Petitioner’s claims, nor conclude that

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the issues deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). Nevertheless, the Court allows Petitioner to proceed in forma pauperis
if he chooses to appeal this decision; an appeal could be taken in good faith. 28 U.S.C.
§ 1915(a)(3).

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: September 12, 2012
The undersigned certifies that a copy of this
document was served on the attorneys of
record and Joseph Smith by electronic
means or U.S. Mail on September 12, 2012.
s/Carol A. Pinegar
Deputy Clerk

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