Abdul Muntaqim Bey v. Rapelje

Filing 41

OPINION AND ORDER Denying 1 PETITION for Writ of Habeas Corpus, and Declining to Issue a Certificate of Appealability. Signed by District Judge Sean F. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GHALIB ABDUL MUNTAQIM-BEY,
Petitioner,
v.

CASE NO. 10-cv-12478
HONORABLE SEAN F. COX

LLOYD RAPELJE,
Respondent.
___________________________________/
OPINION AND ORDER
DENYING THE HABEAS CORPUS PETITION
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
This matter has come before the Court on petitioner Ghalib Abdul MuntaqimBey’s habeas corpus petition under 28 U.S.C. § 2254. The habeas petition challenges
Petitioner’s Wayne County, Michigan conviction for second-degree murder, Mich.
Comp. Laws § 750.317. Petitioner alleges as grounds for relief that he is innocent of
the crime for which he is incarcerated, that the state prosecutor committed misconduct,
and that his trial and appellate attorneys were ineffective. The Court has determined
from a review of the pleadings and state-court record that Petitioner’s claims do not
warrant habeas corpus relief. Accordingly, the petition will be denied.
I. Background
A. The Facts, Conviction, Sentence, and Direct Appeal
Petitioner was charged with first-degree, premeditated murder.

The charge

arose from allegations that Petitioner beat Richard Taylor, III (Taylor), with a baseball
bat in Inkster, Michigan on August 20, 2006. The state trial court provided the following

details about the crime and the testimony at Petitioner’s jury trial in Wayne County
Circuit Court:
Taylor was hospitalized from [the date of the beating] until his death two
months later on October 23, 2006.
Dr. Somerset, an assistant Wayne County Medical Examiner, testified
[that] the cause of Taylor’s death was blunt force trauma to the head and
neck consistent with being beaten with a baseball bat. The manner of
death was homicide. Dr. Somerset opined there were three major sites of
blunt force trauma, any one of which was potentially fatal to Taylor.
On October 13, 2006 Taylor fell out of bed while hospitalized. Taylor lived
for several weeks after he fell out of bed. The medical records do not
show this fall changed Taylor’s medical status in any way. Dr. Somerset
opined there was a laceration to the left forehead (which may or may not
have been from the fall . . .), but it was minor. The doctor opined generally
that the fall “could” be a contributing factor in his death, but that the cause
of the death to Taylor was blunt force trauma, not the fall from the bed.
Dr. Somerset testified Taylor’s fall from the hospital bed did not
significantly contribute to Taylor’s death because it didn’t cause a change
in Taylor’s status or health.
Donnell Erquhart was a friend of Taylors. On August 12, 2006 he saw
Taylor on a bike near Fast Franks, a liquor store, in Inkster. Taylor left
Erquhart to buy some “weed” and returned about fifteen minutes later.
Erquhart and Taylor went to Fast Franks to buy something to drink.
Erquhart saw Taylor tussle with an unknown individual over some
marijuana. After the tussle Erquhart and Taylor went to New York Street
where they ran into defendant Frank Armstrong, a/k/a Ghalib Muntaqim
Bey.
Taylor and Bey apparently had an earlier confrontation which Bey had not
forgotten. When Taylor and Bey met, Armstrong (Bey) said, “Taylor was
not behind the glass now.” The two men got closer and Bey struck Taylor
in the head with a bat. Erquhart was about two feet away from Taylor
when Bey struck Taylor. Taylor fell off his bike and fell unconscious to the
street. Then, Bey struck Taylor again in the head with the bat as Taylor
lay unconscious in the street.
Erquhart left the area, as did Bey. Erquhart rode around the corner to
Taylor’s girlfriend’s house and told her “Rick Taylor had a problem.”
Erquhart spoke with the police and told them that Frank Armstrong hit
Taylor in the head with a bat.
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Cross-examination by defense counsel revealed that Erquhart did not
initially identify Bey as Taylor’s assailant to the police nor did he identify
anyone as Taylor’s assailant. Erquhart admitted he was under the
influence of alcohol and marijuana at the time of Taylor’s assault.
Erquhart, a cocaine user, first identified Bey as the assailant five days
after the incident. Erquhart knew both Ghalib Muntaqim Bey (a/k/a Frank
Armstrong) and Armstrong’s brother.
A paramedic responded to the area of New York Street on August 20,
2006 and found a person lying unresponsive on the street. The person
was bleeding from a laceration behind his left ear and from his forehead.
(. . . . The forehead laceration may have been caused by this fall). The
person was slightly combative, oriented x1 (as opposed to x4), and
smelled of alcohol.
Anthony Hasley was also a witness to the crime. Hasley identified a
photograph of Bey as a person who looked like Taylor’s assailant. Hasley
did not identify Bey at trial. Bey’s appearance changed from the time of
the crime to trial.
Bey presented an alibi (lack of presence) defense at trial. A witness
testified that Bey and he were at a party in Detroit when Taylor was
beaten.
The state called Bey’s wife in rebuttal. She testified Bey was with her
most of the day on August 12, 2006 and left the family home shortly
before the time of the offense and did not return until the following
morning.
People v. Muntaqim-Bey, No. 07-007792-01, Order Denying Def’t’s Mot. for Relief from
J. (Wayne Cty. Cir. Ct. Apr. 4, 2013) (unpublished). On July 19, 2007, the jury found
Petitioner guilty of the lesser-included charge of second-degree murder, Mich. Comp.
Laws § 750.317, and on August 24, 2007, the trial court sentenced Petitioner to
imprisonment for 336 to 500 months (twenty-eight years to forty-one years, eight
months).
On appeal from his conviction, Petitioner argued through counsel that: (1) his
wife’s rebuttal testimony was inadmissible, and trial counsel was ineffective for failing to

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object to the testimony on the basis of the husband-wife privilege; (2) the prosecutor
misstated a witness’s identification testimony, and trial counsel was ineffective for failing
to object; and (3) the trial court incorrectly scored prior record variable one of the state
sentencing guidelines. In a pro se supplemental brief, Petitioner argued that the trial
court erred in admitting his wife’s rebuttal testimony because the prosecution failed to
provide the defense with prompt notice of the witness.
The Michigan Court of Appeals rejected Petitioner’s claims and affirmed his
conviction and sentence in an unpublished, per curiam decision.

See People v.

Muntaqim-Bey, No. 280323, 2009 WL 279380 (Mich. Ct. App. Feb. 5, 2009). Petitioner
raised the same four claims in the Michigan Supreme Court, which denied leave to
appeal on June 23, 2009, because it was not persuaded to review the issues. See
People v. Muntaqim-Bey, 483 Mich. 1113; 766 N.W.2d 846 (2009) (table).
B. The Pro Se Habeas Corpus Petition and State Collateral Review
On June 23, 2010, Petitioner commenced this action by filing a pro se petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1.) He argued that (1)
the trial court deprived him of due process and a fair trial by admitting his wife’s rebuttal
testimony, despite the prosecution’s failure to provide timely notice of the witness, (2)
trial counsel was ineffective for failing to object to the prosecution’s expert witness, (3)
trial counsel was ineffective for failing to present a defense to the charges, and (4) trial
counsel was ineffective for failing to object to the trial court’s (a) improper statements to
the jury, (b) jury instruction on causation, and (c) refusal to permit the jury to review the
witnesses’ statements to the police.

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The State moved to dismiss the petition on the basis that Petitioner failed to
exhaust state remedies for three of his four claims. (Docket No. 10.) Former United
States District Judge Patrick J. Duggan agreed that the habeas petition was a “mixed”
petition of one exhausted claim and three unexhausted claims. However, instead of
granting the State’s motion, Judge Duggan held the habeas petition in abeyance
pending exhaustion of state remedies and then closed this case for administrative
purposes. (Docket No. 12.)
Petitioner subsequently filed a motion for relief from judgment in the state trial
court.

He alleged as grounds for relief from judgment that:

(1) the prosecutor

presented tainted testimony on the cause of the victim’s death; (2) he was actually
innocent of the homicide, because the cause of death was the fall from bed; (3) trial
counsel was ineffective for failing to produce the victim’s complete medical records to
show that the cause of death was the fall from bed; (4) he was denied his right of
confrontation by his inability to cross-examine witnesses regarding the victim’s medical
treatment after falling out of bed; and (5) appellate counsel was ineffective for failing to
raise these issues on appeal.
The trial court denied Petitioner’s motion after concluding that none of his claims
had merit, that all of the claims, except the one about appellate counsel, could have
been raised on direct appeal, and that Petitioner was not entitled to relief under
Michigan Court Rule 6.508(D). See People v. Muntaqim-Bey, No. 07-007792-01, Order
Denying Def’t’s Mot. for Relief from J. (Wayne Cty Cir. Ct. Apr. 4, 2013). The Michigan
Court of Appeals denied Petitioner’s application for leave to appeal the trial court’s
decision on the basis that Petitioner had failed to establish entitlement to relief under

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Rule 6.508(D). See People v. Muntaqim-Bey, No. 318454 (Mich. Ct. App. Dec. 20,
2013.) On September 5, 2014, the Michigan Supreme Court denied leave to appeal for
the same reason.

See People v. Muntaqim-Bey, 497 Mich. 852; 852 N.W.2d 168

(2014) (table).
C. The Amended Habeas Petition, Responsive Pleading, and Reply
Petitioner subsequently retained counsel, who filed an amended habeas corpus
brief (docket no. 19) and a motion to lift the stay in this case (docket no. 18). In his
amended brief, Petitioner argues that: (1) he is innocent of the crime for which he is
incarcerated; (2) the prosecutor committed misconduct by (a) misrepresenting evidence
during closing arguments and (b) failing to promptly notify the defense of the rebuttal
witness; (3) trial counsel was ineffective for (a) failing to investigate the circumstances
surrounding the victim’s death, (b) not protecting his right of confrontation, and (c) failing
to object to the rebuttal witness’s testimony on the basis of the husband-wife privilege;
(4) appellate counsel was ineffective for failing to raise these issues on direct appeal;
and (5) his sentence was imposed contrary to the Fourteenth Amendment.

Judge

Duggan granted Petitioner’s motion to lift the stay, re-opened this case, and ordered the
State to file an answer to the amended petition. (Docket No. 23.)
The State filed an answer to the amended petition, claiming that Petitioner failed
to exhaust state remedies for some of his claims and procedurally defaulted other
claims. The State also maintains that the state courts’ decisions were not contrary to
federal law, unreasonable applications of federal law, or unreasonable determinations of
the facts. (Docket no. 24). Petitioner filed a reply in which he asserts that his claims are
exhausted, meritorious, and not procedurally defaulted. (Docket no. 26). Petitioner

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subsequently withdrew his sentencing claim (docket no. 29), and, in the meantime, the
case was reassigned to this Court due to Judge Duggan’s retirement.
The case is now ready for an adjudication of Petitioner’s claims regarding actual
innocence, the prosecutor’s conduct, and trial and appellate counsel. The Court “cut[s]
to the merits here,” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010), because
Petitioner’s claims do not warrant habeas relief, the exhaustion requirement is not
jurisdictional, Castille v. Peoples, 489 U.S. 346, 349 (1989), and the Court is not
required to address a procedural-default issue before deciding against the petitioner on
the merits. Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v.
Singletary, 520 U.S. 518, 525 (1997)).

A procedural-default analysis would add

“nothing but complexity to the case.” Babick, 620 F.3d at 576.
II. Standard of Review
“The statutory authority of federal courts to issue habeas corpus relief for
persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,
562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state prisoner’s
application for the writ of habeas corpus unless the state court’s adjudication of the
prisoner’s claims on the merits
(1)

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

(2)

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

28 U.S.C. § 2254(d).

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Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts. Under the “unreasonable application”
clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court for
Part II). “[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.” Id. at 411.
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court
decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam).”

Renico v. Lett, 559 U.S. 766, 773 (2010).

“A state court’s

determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To obtain a writ of habeas corpus from a federal court, a state prisoner must show that
the state court’s ruling on his or her claim “was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
“ ‘In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a factual

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issue made by a State court shall be presumed to be correct,’ unless rebutted by ‘clear
and convincing evidence’. 28 U.S.C. § 2254(e)(1).” Holland v. Rivard, 800 F.3d 224,
242 (6th Cir. 2015), cert. denied, 136 S. Ct. 1384 (2016).

Lastly, “review under §

2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
III. Analysis
A. Actual Innocence
Petitioner alleges that this case is fundamentally about innocence, that his trial
was fraught with constitutional error, and that he is innocent of the crime for which he is
incarcerated. He claims to be entitled to a review of his claims on the merits, should the
Court determine that any of his claims are procedurally defaulted, and he contends that
his innocence serves as a context for the constitutional errors that occurred at trial.
The Court has not determined that any of Petitioner’s claims are procedurally
defaulted, and claims of actual innocence generally do not “state a ground for federal
habeas relief absent an independent constitutional violation occurring in the underlying
state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993). “This rule is
grounded in the principle that federal habeas courts sit to ensure that individuals are not
imprisoned in violation of the Constitution – not to correct errors of fact.” Id.
In capital cases, the Court may assume that “a truly persuasive demonstration of
‘actual innocence’ made after trial would render the execution of a defendant
unconstitutional, and warrant federal habeas relief if there were no state avenue open to
process such a claim.” Id. at 417. But this is not a capital case, and even if it were, “the
threshold showing for such an assumed right would necessarily be extraordinarily high.”

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Id. “[W]hatever burden a hypothetical freestanding innocence claim would require, this
petitioner has not satisfied it.” House v. Bell, 547 U.S. 518, 555 (2006). The testimony
at Petitioner’s trial supports the jury’s verdict, and Petitioner has not presented the Court
with any new and reliable evidence to support his claim of innocence.

The Court

therefore concludes that, to the extent Petitioner is asserting a freestanding claim of
actual innocence, his claim is not cognizable in this habeas corpus case. He has not
met the “extraordinarily high” threshold needed to establish actual innocence.
B. The Prosecutor
The second habeas claim alleges that the state prosecutor committed
misconduct by (1) misrepresenting evidence during closing arguments and (2)
producing a rebuttal witness without promptly notifying defense counsel of his intent to
call the witness.
1. Clearly Established Federal Law
“Claims of prosecutorial misconduct are reviewed deferentially” in a habeas case,
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004), and “the touchstone of due
process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial,
not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). When
the issue is the prosecutor’s remarks during closing argument, the “clearly established
Federal law” is the Supreme Court’s decision in Darden v. Wainwright, 477 U.S. 168
(1986).

Parker v. Matthews, 567 U.S. 37, __, 132 S. Ct. 2148, 2153 (2012) (per

curiam). In Darden, the Supreme Court stated that
it “is not enough that the prosecutors’ remarks were undesirable or even
universally condemned.” Darden v. Wainwright, 699 F.2d [1031, 1036
(11th Cir. 1983)]. The relevant question is whether the prosecutors’
comments “so infected the trial with unfairness as to make the resulting
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conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S.
637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Moreover, the appropriate
standard of review for such a claim on writ of habeas corpus is “the narrow
one of due process, and not the broad exercise of supervisory power.” Id.,
at 642, 94 S.Ct., at 1871.
Darden, 477 U.S. at 181.
“The prosecution necessarily has ‘wide latitude’ during closing argument to
respond to the defense’s strategies, evidence and arguments.” Bedford v. Collins, 567
F.3d 225, 233 (6th Cir. 2009) (quoting United States v. Henry, 545 F.3d 367, 377 (6th
Cir. 2008)). The Court must analyze “disputed comments in the context of the trial as a
whole and recogniz[e] that inappropriate comments alone do not justify reversal where
the proceedings were ‘otherwise fair.’ ” Henry, 545 F.3d at 377 (quoting United States
v. Young, 470 U.S. 1, 11 (1985)).
“In deciding whether prosecutorial misconduct mandates that habeas relief be
granted, the Court must apply the harmless error standard.” Pritchett v. Pitcher, 117
F.3d 959, 964 (6th Cir. 1997) (citing Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir.
1979)).

On habeas review, 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. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)).
2. The Prosecutor’s Closing Argument
Petitioner asserts that the prosecutor recast Mr. Hasley’s testimony during
closing arguments from one of not being able to identify Petitioner to one of positive
identification. In doing so, alleges Petitioner, the prosecutor corroborated Mr. Erquhart’s
identification testimony. The Michigan Court of Appeals reviewed this claim for “plain

11

error” because Petitioner did not preserve the issue by objecting at trial. The Court of
Appeals then concluded that the prosecutor’s argument about Hasley was proper
because it was based on the evidence and reasonable inferences therefrom.
“Misrepresenting facts in evidence can amount to substantial error because
doing so ‘may profoundly impress a jury and may have a significant impact on the jury’s
deliberations.’ ” Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000) (quoting
DeChristoforo, 416 U.S. at 646). But prosecutors are “permitted a certain degree of
latitude in summation,” United States v. Barker, 553 F.2d 1013, 1025 (6th Cir. 1977),
and they “must be given leeway to argue reasonable inferences from the evidence.”
United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996)
The disputed comment here (quoted in context) reads:
The corroboration [of Erquhart’s testimony] we gained from the testimony
of the tall, slender man. . . . . Mr. Hasley.
Now understand what’s going on with Mr. Hasley’s head, cause you got to
understand that. He comes in at a point in time when what? . . . . [H]e’s
thinking he’s in the soup when he comes and sees that man [Detective Anthony
Delgreco] in November. November 6. . . . . And he fills out a statement and
identifies from the lineup, my man, the defendant. The only thing he says that
day from his testimony and from the detective’s testimony is, you know the beard
is a little different color. That face, you got to age it some, and the beard is a little
bit more like the color of my man in the third spot but the face is the same.
(Trial Tr. Vol. II, at 131-32, July 18, 2007) (emphasis added)
Petitioner alleges that the italicized statement in the previous paragraph
misrepresented Hasley’s trial testimony that he was only fifty percent sure of his
identification of Petitioner in a photographic array. The record, however, supports the
prosecutor’s comment.

Hasley viewed a photographic array consisting of six

photographs and circled Petitioner’s photograph in position six. Hasley explained at trial

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that the person in the circled photograph looked like the man who had beat Taylor,
although the man that he saw beating Taylor was a little older.1 Hasley also stated at
trial that he recognized the face in the photograph and that he thought it was similar to
the face he had seen, but that he told the officer at the photographic showing that the
man’s facial hair was whiter and that the picture must have been taken some years
earlier. (Id. at 27-30.)
Although Hasley was not one hundred percent sure of his identification at the
time of the photographic showing or at trial (id. at 29-31, 35), he admitted that the
photograph he had picked looked like the suspect (id. at 34).

Detective Anthony

Delgreco, moreover, testified that Hasley had
looked at number six [Petitioner] and he kept saying, it looks like this guy
but the picture is younger. He kept saying that is a younger picture of him.
And he pointed up to number three, and he said he looks older like this
guy because of the color in the beard. But then he goes, but number six.
(Id. at 52.) Detective Delgreco’s colloquy with the prosecutor continued:
Q (by the prosecutor) And did [Hasley] make reference to number six’s face?
A (by Detective Delgreco) Just kept saying that he looks younger, but that was
him.
Q His facial features?
A Yes.
Q And with the addition of the facial beard change?
A Correct.

1

The photograph of Petitioner was six or seven years old. (Trial Tr. Vol. II, at 51, July
18, 2007.)
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(Id. at 53.)

Detective Delgreco went to say that Hasley stated in a handwritten

statement, which followed the photographic array, that number six looked like the
suspect, but that the gray in the suspect’s beard made him appear older. (Id. at 56.)
The Court concludes from the record that the prosecutor’s disputed comment –
that Hasley identified Petitioner in the photographic array -- was not improper. It was a
reasonable inference from the evidence at trial.
Even if the Court were to assume that the prosecutor’s closing comment was
improper, the trial court instructed the jurors several times that the attorneys’ statements
and arguments were not evidence. (Trial Tr. Vol. I, at 122, July 17, 2007; Trial Tr. Vol.
II, at 125-26, 151, 154, July 18, 2007.) Because “juries are presumed to follow their
instructions,” Richardson v. Marsh, 481 U.S. 200, 211 (1987), the prosecutor’s comment
could not have had a substantial and injurious effect on the jury’s verdict and was
harmless.
3. The Rebuttal Witness
Petitioner claims that the prosecutor undermined his alibi defense and “gutted the
defense case” by producing Petitioner’s wife as a rebuttal witness without giving prompt
notice of the witness, as required by Mich. Comp. Laws § 768.20(3). The Michigan
Court of Appeals determined that the trial court did not abuse its discretion in allowing
Petitioner’s wife to testify in rebuttal, because Petitioner’s wife did not approach the
prosecutor with information until the morning of the day she testified.
This Court finds no merit in Petitioner’s claim because it is based on an alleged
violation of Michigan’s alibi statute, which requires the prosecution to serve the
defendant with notice of the witnesses whom the prosecuting attorney intends to call on

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rebuttal to controvert the defendant’s defense at trial. Mich. Comp. Laws § 768.20(2).
The prosecution is under a continuing duty to disclose promptly the names of additional
witnesses who come to the prosecutor’s attention after filing the notice of rebuttal.
Mich. Comp. Laws § 768.20(3).
The prosecutor’s alleged violation of § 768.20 is not a basis for habeas relief,
because “federal habeas corpus relief does not lie for errors of state law.” Lewis v.
Jeffers, 497 U.S. 764, 780 (1990). “In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.”

Estelle v. McGuire, 502 U.S. 62, 68 (1991).

Thus, even if Mrs.

Muntaqim-Bey’s testimony was inappropriate rebuttal testimony under § 768.20,
Petitioner’s claim is not cognizable on federal habeas review, absent a showing that
Petitioner was denied a fair trial. Slack v. Cason, 258 F. Supp. 2d 727, 733 (E.D. Mich.
2003).
Petitioner was not denied a fair trial, because Mrs. Muntaqim-Bey testified at trial
that she did not seek out the prosecutor until the morning of the day she testified. She
explained that she did not begin to piece the facts together until after she heard the
previous day’s testimony and began to think about it. She maintained that the first time
she said anything to anybody about Petitioner being with her on the date of the crime
was on the morning of her testimony. (Trial Tr. Vol. II, at 104, 111-12, July 18, 2007.)
Defense counsel objected to Mrs. Muntaqim-Bey’s trial testimony on the basis
that the prosecutor failed to promptly notify him that Mrs. Muntaqim-Bey would be
testifying. (Id. at 114-23.) But the prosecutor confirmed that Mrs. Muntaqim-Bey had
approached him for the first time that morning, and the trial court pointed out that it had

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given defense counsel time to speak with Mrs. Muntaqim-Bey before she testified. (Id.
at 121-23.) Trial courts have “considerable discretion” under state law “to allow or
disallow the testimony of rebuttal witnesses when a timely notice has not been filed.”
People v. Travis, 443 Mich. 668, 679-80; 505 N.W.2d 563, 568 (1993).
Furthermore, no constitutional error occurred, because the Constitution does not
require pretrial disclosure of any impeachment evidence related to the defendant’s
case. Lorraine v. Coyle, 291 F.3d 416, 441 (6th Cir. 2002) (citing United States v.
Presser, 844 F.2d 1275 (6th Cir. 1988)). Thus, “there is no constitutional violation
cognizable on habeas here,” id., and Petitioner is not entitled to relief on the basis of his
claim about the prosecutor’s notice regarding the rebuttal witness.
C. Trial Counsel
The third habeas claim alleges ineffective assistance of trial counsel. The state
trial court adjudicated this claim during post-conviction proceedings and found no merit
in it.
The “clearly established Federal law” here is Strickland v. Washington, 466 U.S.
668 (1984). Pinholster, 563 U.S. at 189. Under Strickland, Petitioner must demonstrate
“that counsel’s performance was deficient” and “that the deficient performance
prejudiced the defense.”

Strickland, 466 U.S. at 687.

The “deficient performance”

prong of this test “requires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id.
The “prejudice” prong “requires showing that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. There must be

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“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.

A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694. “This does not require a
showing that counsel’s actions ‘more likely than not altered the outcome,’ ” but “[t]he
likelihood of a different result must be substantial, not just conceivable.” Richter, 562
U.S. at 111-12 (quoting Strickland, 466 U.S. at 693). In a habeas case, moreover,
review is “doubly deferential,” Cullen v. Pinholster, 563 U.S. 170, 190,
131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), because counsel is “strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment,” Burt v.
Titlow, 571 U.S. ––––, ––––, 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013)
(quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); internal quotation marks omitted).
In such
circumstances, federal courts are to afford “both the state court and the
defense attorney the benefit of the doubt.” Burt, supra, supra, at ––––,
134 S.Ct., at 13.
Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016).
1. Failure to Investigate
Petitioner alleges that trial counsel was ineffective for failing to investigate the
circumstances of Taylor’s death.

Petitioner points out that Taylor died about two

months after the beating and after falling out of bed and sustaining an additional injury.
Petitioner asserts that Dr. Somerset, the medical examiner, relied on Taylor’s medical
records, provided few details about the cause of death, and admitted that the fall from
bed could have contributed to Taylor’s death. Petitioner maintains that defense counsel
should have conducted interviews with the witnesses whose observations formed the
crux of Dr. Somerset’s opinion on the cause of death.
The state trial court adjudicated Petitioner’s claim during post-conviction
proceedings and concluded that Petitioner could have raised his claim on direct appeal.
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The trial court also declined to second guess defense counsel’s trial strategy, because
Petitioner had produced no evidence to support his contention that Taylor’s fall from bed
caused his death.
Under Strickland, attorneys have “a duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations unnecessary.”
Strickland, 466 U.S. at 691.

The duty to investigate “includes the obligation to

investigate all witnesses who may have information concerning his or her client’s guilt or
innocence,” Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005), and “[t]he failure to call
favorable witnesses can amount to ineffective assistance where it results in prejudice to
the defense.” Pillette v. Berghuis, 408 F. App’x 873, 884 (6th Cir. 2010). But “[i]n any
ineffectiveness case, a particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Strickland, 466 U.S. at 691.
Dr. Somerset testified on direct examination that Taylor died from blunt force
injuries, which were consistent with being hit with a baseball bat. (Trial Tr. Vol. I, 153,
July 17, 2007.) To his credit, defense counsel questioned Dr. Somerset on crossexamination about Taylor’s fall from bed ten days before he died. Defense counsel
elicited Dr. Somerset’s testimony that the fall and the resulting laceration to Taylor’s
forehead may have contributed to Taylor’s death, given Taylor’s fragile state of health.
(Id. at 157-59.)
Dr. Somerset explained, however, that Taylor was examined after the fall and
that there was really no new injury or change in Taylor’s status, except for the minor

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laceration to his left forehead. In other words, Taylor’s state of health did not change
after he fell out of bed. (Id. at 158-60.)
Petitioner has not named any witnesses who would have been willing and
capable of disputing Dr. Somerset’s opinion regarding the cause of death and the effect
of Taylor’s fall from bed. Furthermore, because the available evidence did not support
the conclusion that Taylor died from the fall, as opposed to the head and neck fractures
that he sustained during the beating, defense counsel apparently decided not to
investigate the matter any further. This was a reasonable decision under the
circumstances and in light of Petitioner’s alternative defense that he was elsewhere
when the crime occurred. Counsel’s performance was not deficient, and his failure to
investigate witnesses who might have been able to testify about Taylor’s fall from bed
did not prejudice the defense.
2. The Confrontation Clause
Petitioner alleges that his right of confrontation was violated by Dr. Somerset’s
reliance on medical records compiled by persons who did not testify at Petitioner’s trial.
Petitioner blames his trial attorney for failing to protect his right of confrontation.
The Confrontation Clause of the Sixth Amendment to the United States
Constitution guarantees the defendant in a criminal prosecution “the right . . . to be
confronted with the witnesses against him.” U.S. CONST. amend. VI. “The Amendment
contemplates that a witness who makes testimonial statements admitted against a
defendant will ordinarily be present at trial for cross-examination, and that if the witness
is unavailable, his prior testimony will be introduced only if the defendant had a prior
opportunity to cross-examine him.” Giles v. California, 554 U.S. 353, 358 (2008) (citing

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Crawford v. Washington, 541 U.S. 36, 68 (2004)). In other words, “[w]here testimonial
evidence is at issue, . . . the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-examination.” Crawford, 541
U.S. at 68.
Petitioner relies on Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), in
which the Supreme Court held that affidavits reporting the results of forensic analysis on
cocaine were testimonial statements subject to the requirements of the Sixth
Amendment. Petitioner’s reliance on Melendez-Diaz is misplaced for a few reasons.
First, it was not decided until almost two years after Petitioner’s trial.

Second, Dr.

Somerset did not rely exclusively on the medical reports. He performed the autopsy on
Taylor and, for purposes of testifying, he combined what he learned from the autopsy
with the medical records to form his expert opinion, because the records and the
autopsy “[told] the same story.” (Trial Tr. Vol. I, 139-40, July 17, 2007.)
Finally, the records on which Dr. Somerset relied pertained to Taylor’s treatment
(id. at 137),

and the Supreme Court stated in Melendez-Diaz that medical reports

created for treatment purposes are not testimonial statements. Melendez-Diaz, 557
U.S. at 312 n. 2.

An objection to Dr. Somerset’s use of medical records on

confrontation grounds would have been futile, and “the failure to make futile objections
does not constitute ineffective assistance.” Altman v. Winn, 644 F. App’x 637, 644 (6th
Cir.), cert. denied sub nom. Altman v. Brewer, 137 S. Ct. 76 (2016).

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3. The Husband-Wife Privilege
Petitioner’s final claim about defense counsel is that counsel should have
objected to Mrs. Muntaqim-Bey’s rebuttal testimony. Petitioner asserts that his wife’s
testimony violated the husband-wife privilege.
Under Mich. Comp. Laws § 600.2162(2), a wife may choose not to testify against
her husband. But, as the Michigan Court of Appeals pointed out, Mrs. Muntaqim-Bey
waived this privilege when she approached the prosecutor and agreed to testify against
Petitioner. A defense objection based on § 600.2162(2) would have lacked merit, and
“[o]mitting meritless arguments is neither professionally unreasonable nor prejudicial.”
Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013).
D. Appellate Counsel
In his fourth and final claim, Petitioner alleges that his appellate counsel on direct
review was ineffective for failing to submit (or failing to properly submit) his current
issues. The state trial court adjudicated this issue during post-conviction proceedings
and concluded that Petitioner’s appellate counsel was not ineffective for failing to raise
Petitioner’s claims on appeal because none of his claims had merit.
Petitioner had no constitutional right to compel his appellate attorney to make
every nonfrivolous argument that he suggested to the attorney. Evitts v. Lucey, 469
U.S. 387, 394 (1985); Jones v. Barnes, 463 U.S. 745, 751 (1983). To demonstrate that
appellate counsel was ineffective, Petitioner must show (1) that his attorney acted
unreasonably in failing to discover and raise nonfrivolous issues on appeal and (2) there
is a reasonable probability that he would have prevailed on appeal if his attorney had

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raised the issues. Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Strickland, 466
U.S. at 687-91, 694).
Petitioner’s appellate attorney raised some of the same issues, or similar issues,
that Petitioner has included in his habeas petition. The failure to raise the remainder of
Petitioner’s habeas claims in the appeal of right did not amount to deficient
performance, because those claims lack merit for the reasons given above.
Additionally, there is not a reasonable probability that Petitioner would have prevailed
on appeal if his attorney had raised all of Petitioner’s claims on direct appeal. The
Court’s inquiry, therefore, “is at an end; by definition, 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).
IV. Conclusion
Petitioner has failed to show that he is in custody in violation of federal law. The
Court, therefore, finds no merit in the claims that the state courts rejected on procedural
grounds. As for the issues that the state courts adjudicated on the merits, the state
courts’ decisions were not contrary to Supreme Court precedent, unreasonable
applications of Supreme Court precedent, or unreasonable determinations of the facts.
The state courts’ decisions certainly were not so lacking in justification that there was an
error beyond any possibility for fairminded disagreement.
application for the writ of habeas corpus is denied.

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Accordingly, Petitioner’s

V. Certificates of Appealability
Petitioner may not appeal this opinion and order without a certificate of
appealability, 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1), and a certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Reasonable jurists would not disagree with the Court’s resolution of Petitioner’s
constitutional claims, nor conclude that Petitioner’s claims deserve encouragement to
proceed further. The Court therefore declines to issue a certificate of appealability.

Dated: May 4, 2017

s/Sean F. Cox
Sean F. Cox
U. S. District Judge

I hereby certify that on May 4, 2017, the document above was served on counsel and/or
the parties of record via electronic means and/or First Class Mail.
s/Jennifer McCoy
Case Manager

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