Bradley v. Woods
Filing
30
OPINION and ORDER Denying the Petitions for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Granting Leave to Proceed in Forma Pauperis on Appeal Signed by District Judge Stephen J. Murphy, III. (CCoh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARVIN B. BRADLEY,
Petitioner,
CASE NO. 10-cv-12816
v.
HONORABLE STEPHEN J. MURPHY, III
JEFFREY WOODS,
Respondent.
_____________________________/
OPINION AND ORDER
DENYING THE PETITIONS FOR WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Marvin B. Bradley filed a habeas corpus petition under 28 U.S.C. § 2254.
The habeas petition challenges Bradley’s state convictions for second-degree murder,
Mich. Comp. Laws § 750.317, assault with intent to commit murder, Mich. Comp. Laws §
750.83, and possession of a firearm during the commission of a felony (“felony firearm”),
Mich. Comp. Laws § 750.227b. Bradley raises claims regarding the sufficiency of the
evidence, the trial court’s jury instruction on flight, and his trial and appellate attorneys. He
also purports to have new evidence that the prosecution’s main witness committed perjury,
and, on that basis, he claims to be actually innocent of the crimes for which he was
convicted. The Court has reviewed the record and will deny the petition.
BACKGROUND
I.
The Trial, Verdict, And Sentence
Bradley was charged in Wayne County, Michigan with first-degree (premeditated)
murder, assault with intent to commit murder, and felony firearm. The charges arose from
an incident during which Martel Solomon and Nigel Hawkins, Jr., were shot. Hawkins died
from a single gunshot to his head. Solomon survived and testified against Bradley at trial
in Wayne County Circuit Court. The state court summarized the evidence at trial as
follows:
On the afternoon of June 12, 2005, Martel Solomon and the decedent
were walking in the street and passed defendant’s house on the corner of
Mansfield and Elmira Streets in Detroit. Solomon testified that defendant,
whom he recognized from school and the neighborhood, was on the porch
with others. Solomon testified that someone yelled, “What the f* *k yall doing
here.”1 Solomon and the decedent continued walking, as Solomon urged the
decedent not to respond. Solomon testified that defendant ultimately moved
off the porch into the street and “started shooting” a pistol. Solomon and the
decedent ran and attempted to jump a fence to escape, and defendant “shot
at [the decedent] while he was jumping the fence.” The decedent fell over
the fence into a neighbor’s backyard.2 Solomon was shot in the arm, and
continued running. The decedent died from a gunshot wound to the head.
Solomon identified defendant as the shooter to the police. According
to police testimony, when they arrived at the crime scene, they spoke with
John Kealing, a/k/a Leonard Jackson, Cordero Jones, Lamar Jones, and
Veno Tuff, who had been outside with defendant. The police tested each of
the men for gunshot residue. Defendant was not there and could not be
located. Defendant was subsequently arrested on August 17, 2005, in
Atlanta, Georgia.
At trial, defendant, Cordero, and Tuff all testified that they were
standing together when the decedent and Solomon drove by, taunting them
by “burning rubber” and playing loud music. When Solomon and the
decedent were told to leave, the decedent brandished a gun. Defendant,
Cordero, and Tuff fled. Minutes later, defendant, Cordero, and Tuff heard
gunshots. Cordero and Tuff testified that they saw a man dressed in black
armed with a weapon fleeing the area. Neither Cordero nor Tuff saw
defendant in possession of a weapon.
1
Solomon indicated that the decedent and defendant “never got along” while
they were in middle school. Before the shooting, Solomon had no problems with
defendant.
2
The decedent’s body was found in the neighbor’s backyard. The neighbor told
the police that he heard arguing, followed by eight or nine gunshots.
2
Defendant denied possessing or shooting a firearm on the day of the
incident. Defendant denied knowing the decedent or having any
disagreement with him, although he admitted that he knew Solomon from his
neighborhood. Defendant denied knowing that anyone had been shot, that
the police were searching for him, or that there was a warrant for his arrest.
Rather, defendant claimed that he did not return to speak with the police on
the day of the shooting because he was on probation, and that he did not
leave Michigan until two or three weeks after the incident. Defendant claimed
that he left Michigan because he “just wanted to go have some fun.”
Defendant admitted that he gave the Atlanta police an alias and an incorrect
date of birth when he was arrested, but claimed that he did so only because
he had violated his probation by leaving Michigan.
In rebuttal, a Detroit fugitive apprehension team officer testified that
on June 12 and 13, 2005, the police looked for defendant at the homes of his
mother and sister, and also spoke to defendant’s brother. At that time,
defendant’s family members were advised that the police needed to locate
defendant in connection with a murder. The officer had contact with
defendant’s family at least three times.
People v. Bradley, No. 269568, 2007 WL 1490468, at *1–2 (Mich. Ct. App. May 22, 2007)
(footnotes in original as notes 2 and 3).
The jury found Bradley guilty of second-degree murder (as a lesser-included offense
of first-degree murder), assault with intent to commit murder, and felony firearm. The trial
court then sentenced Bradley to two years in prison for the felony firearm conviction,
followed by concurrent terms of twenty to thirty years in prison for the murder and assault
convictions.
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). Under Section 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
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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).
“[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.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a
highly deferential standard for evaluating state-court rulings, and demands that state-court
decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010)
(internal quotations omitted). “A state court's determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington, 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 claims “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.
DISCUSSION
I.
Sufficiency Of The Evidence
Bradley alleges that the prosecution failed to present legally sufficient evidence that
he committed the offenses. The only eyewitness to identify Bradley as the shooter was
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Martel Solomon, and Bradley claims that Solomon was not a credible witness. Bradley
points out that Solomon was not tested for gunshot residue and he lied about his identity
after the shooting. Bradley contends that Solomon could not have seen the shooter
because he was running away at the time and that Solomon’s testimony about his
identification of Bradley as the shooter and Bradley’s alleged hostility toward Nigel Hawkins
was contradicted by defense witnesses at trial. The Michigan Court of Appeals reviewed
Bradley’s claim on direct appeal and concluded that the evidence was sufficient to sustain
Bradley’s convictions.
A.
Clearly Established Federal Law
“A defendant challenging the sufficiency of the evidence bears a very heavy burden.”
United States v. Prince, 214 F.3d 740, 746 (6th Cir. 2000) (quotations marks and citation
omitted). The critical inquiry on review of challenges to the sufficiency of the evidence is:
Whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt. But this inquiry does not require a court to “ask
itself whether it believes that the evidence at the trial established guilt beyond
a reasonable doubt.” Instead, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) (internal citation and footnote omitted)
(emphases in original).
This standard ordinarily “must be applied with explicit reference to the substantive
elements of the criminal offense as defined by state law.” Id. at 324 n.16. Bradley, however,
is not contesting the elements of second-degree murder, assault with intent to commit
murder, or felony firearm. Instead, he claims there was insufficient evidence that he
perpetrated the crimes. Stated differently, he claims that there was insufficient evidence
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linking him to the crime and showing that he killed Hawkins, assaulted Solomon, and used
a firearm during those offenses.
“The identity of a defendant as the perpetrator of the crimes charged is an element
of the offense and must be proved beyond a reasonable doubt.” Byrd v. Tessmer, 82 F.
App’x 147, 150 (6th Cir. 2003) (citing People v. Turrell, 25 Mich. App. 646 (1970)). This is
a demanding standard, but “[i]f the evidence at trial was sufficient to permit jurors to find
beyond a reasonable doubt that the man seated at the defense table was the same person
referred to in the account of the offense, then there is no reason to overturn the jury’s
conviction based on the government’s alleged failure to prove identity.” United States v.
Thomas, 763 F.3d 689, 694 (7th Cir. 2014).
B.
Application
Martel Solomon was the only witness at trial to testify that Bradley shot him and
Nigel Hawkins. Nevertheless, even one witness testifying against the defendant is legally
sufficient evidence to convict the defendant. Jones v. Butler, 778 F.3d 575, 582 (7th Cir.
2015) (citing Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005)); accord Foxworth v. St.
Amand, 570 F.3d 414, 426 (1st Cir. 2009) (stating that “a criminal conviction can rest on
the testimony of a single eyewitness”); United States v. Smith, 563 F.2d 1361, 1363 (9th
Cir. 1977) (stating that “the testimony of one witness, if solidly believed, is sufficient to
prove the identity of a perpetrator of crime”); United States v. Sanders, 547 F.2d 1037,
1040 (8th Cir. 1976) (stating that “the uncorroborated testimony of a single eyewitness, if
believed, may be sufficient to sustain an identification upon which a conviction depends”).
And even though Bradley claims that Solomon was not credible, the Michigan Court of
Appeals correctly noted on review of Bradley’s claim that,
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Solomon was unwavering in his identification of defendant as the shooter.
Solomon testified that, at that time of the shooting, no one was near
defendant and defendant was the only person with a gun. Solomon indicated
that he could easily recognize defendant, explaining that he has “known of”
defendant for several years from school and the neighborhood. Immediately
after the incident, Solomon told the police that defendant was the shooter
while he was being treated at the hospital. Solomon provided a detailed
description of defendant that included defendant’s nickname, age, height,
weight, complexion, hairstyle, and the fact that defendant had teardrop
tattoos underneath one of his eyes. The next day, Solomon identified
defendant from a photograph. Solomon also identified defendant as the
shooter at the preliminary examination and trial. Solomon testified that he
was “absolutely positive” that defendant shot him and the decedent. In
addition, by defendant’s own admission, he was in the area at the time of the
shooting.
Bradley, 2007 WL 1490468, at *3.
While it is true that Solomon lied about his identity when he was treated for his
injuries after the shooting, he explained at trial that he used his brother’s name at the
hospital because his brother had medical insurance and he (Solomon) did not. Trial Tr. Vol.
II, 78-79, March 14, 2006. And even though Bradley and two of his friends maintained at
trial that Bradley did not shoot the victims or that they did not know who fired the gun,
a “reviewing court does not reweigh the evidence or redetermine the credibility of the
witnesses whose demeanor has been observed by the trial court.” Marshall v. Lonberger,
459 U.S. 422, 434 (1983). “It is the province of the factfinder to weigh the probative value
of the evidence and resolve any conflicts in testimony.” Neal v. Morris, 972 F.2d 675, 679
(6th Cir. 1992).
A rational juror could have concluded that Bradley perpetrated the crimes against
Solomon and Hawkins. Consequently, the evidence at trial was sufficient to support the
jury’s verdict. Even if the Court had concluded that a rational trier of fact could not have
7
found Bradley guilty beyond a reasonable doubt, the Court must defer to the state court’s
sufficiency determination because its determination was reasonable. Brown v. Konteh, 567
F.3d 191, 205 (6th Cir. 2009). Bradley therefore has no right to relief on the basis of his
challenge to the sufficiency of the evidence.
II.
Trial Counsel
Bradley alleges in his initial petition and in his amended petition that his trial attorney
provided ineffective assistance. The state courts considered and rejected Bradley’s claims
on the merits.
A.
Clearly Established Federal Law
The Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 687
(1984), is clearly established federal law for purposes of ineffective assistance of counsel
claims. Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011). Under Strickland, a defendant
must show that his trial attorney’s “performance was deficient” and “that the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687. “Unless a defendant
makes both showings, it cannot be said that the conviction . . . resulted from a breakdown
in the adversary process that renders the result unreliable.” Id.
The “deficient performance” prong of the Strickland 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. at 687. “Judicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689.
To demonstrate that counsel’s performance prejudiced the defense, Petitioner must
show “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
8
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.” Harrington, 562 U.S. at 111–12
(quoting Strickland, 466 U.S. at 693).
B.
Failure To Attempt To Suppress Evidence Of Flight
Bradley alleges that his trial attorney was ineffective for failing to move to suppress
evidence regarding police officers’ efforts to locate him after the shooting. The disputed
evidence consisted of testimony that:
the police searched for Bradley at several
addresses; a federal warrant for Bradley’s arrest was obtained on the basis of unlawful
flight to avoid apprehension or prosecution; Bradley was featured in televised newscasts
as being wanted by the police; his fingerprints were placed in the FBI central registry; and
he was arrested in Atlanta under a fictitious name and date of birth following the execution
of a narcotics raid. Trial Tr. Vol. III, 33–53, March 15, 2006; Trial Tr. Vol. IV, 133-44, March
16, 2006.
Bradley testified at trial that he left Michigan to have fun, that he did not know he
was wanted for murder before he left the state, that he learned of the shooting after his
arrest in Atlanta, and that he used an alias there because he was on probation in Michigan
and was not supposed to leave the state. Bradley claims in his habeas petition that
evidence of flight was irrelevant because the prosecution failed to show that he knew he
was wanted by the police and that he was actually fleeing from the police. He also claims
that the evidence unfairly prejudiced him because it suggested that he had committed other
crimes.
The Michigan Court of Appeals noted on review of Bradley’s claim that evidence of
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flight is admissible in evidence in Michigan, see People v. Coleman, 210 Mich. App. 1, 4
(1995), and that Bradley’s actions could be considered evidence of flight. In reaching this
conclusion, the Court of Appeals noted that Bradley left the scene of the crime,
subsequently went to Atlanta, and attempted to escape detection upon arrest in Atlanta by
providing an alias and incorrect date of birth.
The disputed evidence was relevant and admissible, and the jury could have inferred
from the evidence that Bradley fled from the State out of a guilty conscience. Defense
counsel, therefore, was not ineffective for failing to object to the officers’ testimony
concerning their efforts to locate Bradley. “Omitting meritless arguments is neither
professionally unreasonable nor prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th Cir.
2013).
C.
Failure To Object To The Prosecutor’s Comment About Bradley’s Tattoos
And Past Experience With Guns
Bradley argues that his trial attorney was ineffective for failing to object to the
prosecutor’s questions and comment about his tattoos and past experience with guns. “To
succeed on this claim, [Bradley] needs to establish that prosecutorial misconduct has taken
place, that his trial counsel’s failure to object to it was deficient, and that this failure
prejudiced the defense.” Kincade v. Wolfenbarger, 324 F. App’x 482, 493 (6th Cir. 2009).
1.
The Tattoos
Bradley asserts that his trial attorney was ineffective for failing to object to the
prosecutor’s questions and comments about three teardrop tattoos beneath Bradley’s left
eye. The tattoos were one of the factors that enabled Martel Solomon to identify Bradley
as the man who shot him and Hawkins. Trial Tr. Vol. II, 80-82, 97, March 14, 2006. At trial,
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however, the prosecutor cross-examined Bradley about the meaning of his tattoos. Bradley
explained that the tattoos represented “people who died close to [him].” Trial Tr. Vol. IV, 91,
March 16, 2006. The prosecutor then asked Bradley whether the teardrops actually
reflected people whom Bradley had shot. Bradley answered, “No.” Id.
Later, during closing arguments, the prosecutor stated that there were many
different reasons to have a tattoo and even though Bradley offered one explanation, the
criminal justice system had taught her a different explanation. Id. at 195. According to
Bradley, the prosecutor’s questions and comments about his tattoos inferred that he had
engaged in previous gun-related violence, that the tattoos represented people he had shot,
and that the prosecutor knew something which was not in evidence.
2.
Guns
Bradley claims that trial counsel also was ineffective for failing to object to the
prosecutor’s comments and questions about Bradley’s past acts, which included firing a
shotgun, possessing a handgun, and having BB gun fights with his friends as a young boy.
Id. at 104-05. After Bradley admitted to having engaged in BB gun fights with his friends,
the prosecutor asked, “[S]o you would shoot a human target, right?” Bradley answered,
“Yes.” Id. at 105. Continuing, the prosecutor asked, “[S]o what you did back on June twelve
shooting a human target is no difference (sic) than what you’ve done in your past?”
Bradley responded by saying that he did not shoot anyone on June twelve. Id. The
prosecutor also asked Bradley whether his nickname (“Pops”) was associated with gunfire.
Id. at 104.
Bradley contends that the prosecutor’s comments and questions were improper
under Michigan Rule of Evidence 404(b)(1), because the prosecutor used the “other acts”
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evidence to show that he acted in conformity with his past acts on June 12, 2005. Bradley
further alleges that the prosecutor failed to give defense counsel notice of intent to
introduce the evidence, as required by Michigan Rule of Evidence 404(b)(2). As a result,
he claims that trial counsel was ineffective for failing to object to the prosecutor’s comments
and questions. He maintains that, had trial counsel objected to the prosecutor’s comments
and questions, there is a reasonable probability that the trial court would have excluded the
testimony and argument and that he would have been acquitted.
3.
The State Evidentiary Hearing And The State Court’s Decision
At the state evidentiary hearing, Bradley’s defense attorney testified that she did not
object to the prosecutor’s questions about Bradley’s past experience with guns because
she did not consider the prior acts to be similar acts or “bad” acts. Mot. Hr’g Tr., 10–12, 42,
June 5, 2009. As for Bradley’s BB gun fights, defense counsel stated that she regarding
the incident as “just kids playing.” Id. at 32. She did not think the gun fights were illegal,
relevant, or harmful to the defense, and she noted that objecting to a question sometimes
merely calls attention to an issue. Id.
As for the prosecutor’s comments and argument about Bradley’s tattoos, defense
counsel noted that the tattoos were one basis for Martel Solomon’s identification of Bradley
as the shooter. She thought that Bradley had given a solid explanation for the meaning of
the tattoos in response to the prosecutor’s questions and that it was for the jury to decide
whose explanation was more credible. Id. at 15-16.
The trial court determined that the prosecutor’s disputed questions and comments
about Bradley’s tattoos and prior use of guns constituted improper conduct. The court
stated that there was no evidentiary basis for the inflammatory questions and comments
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and that the prosecutor had failed to give prior notice of intent to introduce prior “bad acts”
in evidence. The trial court went on to say that defense counsel should have objected to
the prosecutor’s conduct and, if she had, the court would have ruled in her favor and
admonished the jury to disregard the misconduct. The court opined that defense counsel
had misunderstood Michigan Rule of Evidence 404(b) on “other acts” evidence and that
there was no legitimate trial strategy in failing to object to the prosecutor’s serious
misconduct.
The trial court nevertheless ruled that, although the prosecutor’s misconduct was
disturbing and defense counsel “missed the boat” by not objecting to the misconduct,
Bradley was not entitled to a new trial. The court opined that Bradley’s guilt was proven
beyond a reasonable doubt without the tainted evidence, misconduct, and failure to object
and, therefore, Bradley did not suffer as a result. Mot. Hr’g Tr., 6-14, 21-22, Aug. 27, 2009.
4.
Analysis
This Court agrees that the prosecutor’s comment—that, based on her experience,
Bradley’s tattoos meant something different from Bradley’s explanation—was improper.
The comment was improper because it implied that the prosecutor knew something the jury
did not know. Cf. United States v. Trujillo, 376 F.3d 593, 607–08 (6th Cir. 2004)
(acknowledging that prosecutors engage in improper vouching when they imply that they
have special knowledge of facts not in front of the jury). The prosecutor’s question and
comment suggesting that Bradley’s tattoos represented people whom Bradley had killed
also was improper, because there was no evidence of that at trial. See Washington v.
Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000) (stating that prosecutors may not assert facts
which were never admitted in evidence).
13
Additionally, the state trial court determined that the prosecutor violated Michigan
Rule of Evidence 404(b) on “other acts” evidence when she questioned Bradley about his
past experiences with guns. And because a defense attorney’s failure to object to
prosecutorial misconduct can qualify as deficient performance under the first prong of the
Strickland test, see Hodge v. Hurley, 426 F.3d 368, 385 (6th Cir. 2005), the Court assumes,
for purposes of this opinion, that Bradley’s attorney’s failure to object to the prosecutor’s
misconduct amounted to deficient performance.
The remaining question is whether defense counsel’s failure to object prejudiced the
defense. To establish prejudice, Bradley must demonstrate a substantial likelihood that the
result of the proceeding would have been different absent defense counsel’s unprofessional
errors. Harrington, 562 U.S. at 111–12.
The evidence against Bradley was substantial. Martel Solomon identified Bradley
as the shooter shortly after the shooting, in a photo array, at the preliminary examination,
and at trial. He was acquainted with Bradley, and he denied having any animosity toward
Bradley before the shooting. Solomon’s testimony, moreover, was not the only evidence
against Bradley. A police officer testified that, by the time he left the crime scene, “Pops”
(Bradley’s nickname) had been identified as the shooter. Trial Tr. Vol. III, 18–19, March 15,
2006.
There also was evidence suggesting that Bradley fled the jurisdiction to evade the
police. Although he testified that neither his mother, nor his sister, informed him that the
police were looking for him, he admitted that, after he was arrested in Atlanta, his mother
was able to contact him and tell him about the shooting. Trial Tr. Vol. IV, 94, 76-77, March
16, 2006. And even though he provided a different version of the facts for the incident on
14
June 12, 2005, by implying that the victims were shot by someone else while driving down
the street, he could not explain how Hawkins’ body ended up in a neighbor’s backyard if
he had been in a vehicle during the shooting. Nor could he explain why the victims’ vehicles
were not visible in the neighborhood after the shooting. His testimony also was not entirely
consistent with that of his friends who implied that an unknown man in black clothing was
the shooter.
The Court also notes that Bradley handled the prosecutor’s questions about guns
and tattoos quite well, and defense counsel reminded the jury that the case was not about
having tattoos. Trial Tr. Vol. IV, 217, March 16, 2006. In addition, the trial court instructed
the jurors that the attorneys’ statements, arguments, and questions were not evidence and
that the jurors should not convict Bradley merely because they thought he was guilty of
some other bad conduct. Trial Tr. Vol. II, 4-5, March 14, 2006; Vol. IV, 164-65, 171, March
16, 2006.
In light of the trial court’s jury instructions and the strength of the evidence against
Bradley, there is not a substantial possibility that the result of the trial would have been
different had defense counsel objected to the prosecutor’s questions and comment about
Bradley’s tattoos and experience with guns. Bradley therefore has failed to show that
counsel’s allegedly deficient performance prejudiced the defense. And because AEDPA
review must be “doubly deferential” to afford the state court and defense counsel the
benefit of the doubt, Donald, 135 S. Ct. at 1376, the Court declines to grant relief on
Bradley’s claim that trial counsel was ineffective for failing to object to the prosecutor’s
questions and comments about his tattoos and past experience with guns.
III.
The Jury Instructions
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Bradley claims that the trial court erred by instructing the jury on flight. According to
Bradley, the instruction was damaging to his defense because there was no evidence that
he knew of the charges against him or that he fled the scene due to a sense of guilt. He
further alleges that the error was not harmless.
A.
Legal Framework
“[N]ot every . . . deficiency in a jury instruction rises to the level of a due process
violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004). The only question on habeas
review of a jury instruction is “whether the ailing instruction by itself so infected the entire
trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62,
72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
The Supreme Court “has consistently doubted the probative value in criminal trials
of evidence that the accused fled the scene of an actual or supposed crime.” Wong Sun
v. United States, 371 U.S. 471, 483 n.10 (1963). “Where evidence of flight has genuine
probative value, however, it is ‘generally admissible as evidence of guilt, and . . . juries are
given the power to determine ‘how much weight should be given to such evidence.’” United
States v. Dillon, 870 F.2d 1125, 1126 (6th Cir. 1989) (quoting United States v. Touchstone,
726 F.2d 1116, 1119 (6th Cir. 1984)).
B.
Application
The instruction on flight at Bradley’s trial read:
There has been some evidence in this case that the defendant tried
to run away and hide using an alias name after the alleged crime. This
evidence does not necessarily prove guilt. A person may run or hide for
innocent reasons such as panic, mistake or fear. However, a person may
also run and hide because of a consciousness of guilt.
You must decide in this case whether that evidence is true, and if true,
16
whether it shows that the defendant had a guilty state of mind.
Trial Tr. Vol. IV, 169-70, March 16, 2006.
This instruction correctly informed the jury that flight is not dispositive of guilt and
that the jury had the option of deciding whether Bradley fled from the authorities and, if so,
whether he had a guilty conscience. Because the jury instruction directed the jurors to
make their own determinations as to whether Bradley fled, and, if so, what state of mind
such flight evinced, the trial court’s instruction on flight was not so prejudicial as to render
the entire trial fundamentally unfair. Burton v. Renico, 391 F.3d 764, 778 (6th Cir. 2004).
Bradley therefore has no right to habeas relief on the basis of his challenge to the jury
instruction on flight.
IV.
Appellate Counsel
Bradley asserts that his appellate attorney was ineffective for failing to assert on
direct appeal a claim about trial counsel’s failure to object to the prosecutor’s comments
and questions about Bradley’s tattoos and past acts. The state trial court agreed on
collateral review that appellate counsel should have raised the issue on direct appeal.
Under federal law, an appellate attorney’s failure “to raise an issue on appeal can
amount to constitutionally ineffective assistance.” Jalowiec v. Bradshaw, 657 F.3d 293, 321
(6th Cir. 2011). But an appellate attorney is not required to raise every non-frivolous claim
requested by his or her client if counsel decides not to raise the claim as a matter of
professional judgment. Jones v. Barnes, 463 U.S. 745, 751 (1983). “In fact, the process
of winnowing out weaker arguments on appeal is the hallmark of effective appellate
advocacy.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (quotation marks and
citations omitted). To demonstrate that appellate counsel was ineffective, a habeas
17
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 appellate attorney had raised the issues. Smith v. Robbins, 528
U.S. 259, 285 (2000) (citing Strickland, 466 U.S. at 687–91, 694).
For the reasons given above in the discussion on trial counsel, Bradley’s trial
attorney was not constitutionally ineffective. Consequently, appellate counsel did not act
unreasonably in failing to raise a claim about trial counsel, and there is not a substantial
probability that Bradley would have prevailed on appeal if his attorney had raised the issue
of trial counsel’s alleged ineffectiveness. The Court concludes that Bradley’s appellate
attorney was not constitutionally ineffective. See Shaneburger v. Jones, 615 F.3d 448, 452
(6th Cir. 2010) (stating that “[a]ppellate counsel cannot be found to be ineffective for ‘failure
to raise an issue that lacks merit’ ”) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001)).
V.
Perjury
Bradley alleges that he was convicted on the perjured testimony of Martel Solomon,
who was the only eyewitness to testify that Bradley shot both him and Hawkins. The basis
for Bradley’s perjury claim is Solomon’s 2011 affidavit, which states that Solomon gave
false testimony at Bradley’s preliminary examination and trial when he said that Bradley
was the shooter. Solomon also states in his affidavit that he never actually saw who fired
the fatal shot, because he was running away at the time. According to Solomon’s affidavit,
the police informed him that Bradley was the shooter and also instructed him to testify
accordingly or he would lose custody of his daughter. Bradley claims that he is entitled to
a new trial because Solomon’s affidavit provides important evidence which was not
18
available at trial.
The trial court reviewed and rejected Bradley’s claim of perjury and actual innocence
in its order denying Bradley’s second motion for relief from judgment. The trial court stated
that Solomon’s affidavit was neither credible nor persuasive. First, the trial court noted that
Solomon gave a detailed description of Bradley after the shooting and was unwavering in
his identification of Bradley as the shooter. Second, the trial court stated that the affidavit
provided no plausible reason for Solomon to have committed perjury at Bradley’s trial.
Finally, the court found it unlikely that Solomon would lie about the identification of the
person who shot him.
A.
Clearly Established Federal Law
Prosecutors may not deceive a court or jurors by presenting evidence that they know
is false. Giglio v. United States, 405 U.S. 150, 153 (1972). Nor may they allow false
testimony to go uncorrected when it appears. Napue v. Illinois, 360 U.S. 264, 269 (1959).
But to prevail on a claim that the prosecutor relied on false testimony, a habeas petitioner
must show that (1) the testimony was actually false, (2) the testimony was material, and (3)
the prosecutor knew the testimony was false. Amos v. Renico, 683 F.3d 720, 728 (6th Cir.
2012); Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998) (quoting United States v. Lochmondy,
890 F.2d 817, 822 (6th Cir. 1989)).
B.
Application
Bradley’s claim of perjury rests on Martel Solomon’s recanting affidavit. Recanting
affidavits, however, “are always viewed with ‘extreme suspicion.’” Williams v. Coyle, 260
F.3d 684, 708 (6th Cir. 2001) (quoting United States v. Chambers, 944 F.2d 1253, 1264
(6th Cir. 1991)). Furthermore, Solomon’s purported affidavit offers no explanation for why
19
he waited over five years to correct his allegedly false trial testimony. Even if the Court
were to accept the affidavit as proof that Solomon falsely accused Bradley of shooting him
and Hawkins, there is no evidence that the prosecutor knew Solomon’s testimony was
false. In fact, at trial the prosecutor provided nine reasons for concluding that Solomon’s
testimony was trustworthy. Trial Tr. Vol. IV, 193–99, March 16, 2006.
Bradley has failed to prove that the prosecution relied on perjured testimony. The
Court therefore declines to grant relief on Bradley’s perjury claim.
VI.
Actual Innocence
In a related claim, Bradley asserts that he is actually innocent of the charges for
which he stands convicted because Solomon’s affidavit states that he lied at Bradley’s trial
when he testified that Bradley was the shooter. The Court finds no merit in this claim
because a freestanding claim of actual innocence is not itself a constitutional claim for
which habeas corpus relief may be granted. Herrera v. Collins, 506 U.S. 390, 404–05
(1993). Thus, Bradley’s “freestanding claim of actual innocence based on newly discovered
evidence is not cognizable on federal habeas review.” Thomas v. Perry, 553 F. App’x 485,
487 (6th Cir. 2014).
“[I]n a capital case, a truly persuasive demonstration of ‘actual innocence’ made
after trial would render the execution of a defendant unconstitutional, and warrant habeas
relief if there were no state avenue open to process such a claim.” Herrera, 506 U.S. at
417. But this is not a capital case, and “whatever burden a hypothetical freestanding
innocence claim would require, this petitioner has not satisfied it.” House v. Bell, 547 U.S.
518, 555 (2006). Consequently, Bradley has no right to habeas relief on the basis of his
claim of actual innocence.
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CONCLUSION
The state-court opinions and orders rejecting Bradley’s claims were not contrary to
Supreme Court precedent, unreasonable applications of Supreme Court precedent, or
unreasonable applications of the facts. The state-court decisions also were not “so lacking
in justification that there was an error . . . beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103. Accordingly, the petitions for writ of habeas
corpus are denied.
CERTIFICATE OF APPEALABILITY
Before Bradley may appeal the Court’s decision, a certificate of appealability must
issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). 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)).
The Court declines to grant a certificate of appealability because reasonable jurists
would not disagree with the Court’s resolution of those claims, nor conclude that the issues
are adequate to deserve encouragement to proceed further. Bradley nevertheless may
proceed in forma pauperis on appeal because an appeal could be taken in good faith. 28
U.S.C. § 1915(a)(3).
ORDER
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WHEREFORE, IT IS ORDERED that the Petitions for Writ of Habeas Corpus
(document nos. 1 and 20) are DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Bradley may proceed in forma pauperis on appeal
if he chooses to appeal this Court’s decision.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: June 30, 2015
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on June 30, 2015, by electronic and/or ordinary mail.
s/Carol Cohron
Case Manager
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