Jenkins v. Rivard
OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Marquis Jenkins, and DECLINING to issue a Certificate of Appealability Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT court
FOR THE EASTERN DISTRICT OF MICHIGAN
Case No. 2:11-CV-10469
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner Marquis Jenkins, incarcerated at the St. Louis Correctional Facility in
St. Louis, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his pro se application, Petitioner challenges his conviction for armed
robbery,1 attempting to escape from jail,2 and being an habitual offender.3 For the
reasons that follow, the petition for writ of habeas corpus will be denied.
Petitioner was convicted of the above offenses following a jury trial in the Kent
County Circuit Court.
On the morning of January 11, 2006, Xochitl Torres cashed a $660.00
check at the bank. Ms. Torres then went down the street to a gas station, where she
purchased some cigarettes, energy drinks, juice, and prepaid for gasoline for her car.
Mich. Comp. Laws § 750.529; Mich. Stat. Ann. 28.797.
Mich. Comp. Laws § 750.197(2); Mich. Stat. Ann. 28.394(2).
Mich. Comp. Laws § 769.10; Mich. Stat. Ann. 28.1082.
(Tr. 5/10/06, pp. 18-19). When Ms. Torres returned to her car, Petitioner and another
man were standing there arguing and mentioned something about a gun before the
other man walked away. (Id., p. 23). Ms. Torres could not pump gas because the pump
was defective. While Ms. Torres was attempting to push the assistance button,
Petitioner came up behind her and demanded her money, saying that he had a gun. He
poked something in the victim’s back that felt like a gun. Torres had seen Petitioner at
her bank earlier that morning. (Id., pp. 19-21). Petitioner reached into Ms. Torres’
pocket and removed her cell phone and the bank envelope, which included both money
and the victim’s Michigan ID card. Petitioner fled the scene and Ms. Torres attempted
unsuccessfully to chase him on foot. Ms. Torres returned to the gas station, where
another customer offered to drive after Petitioner. This chase also proved futile. (Id., pp.
The bank manager, Arlene Edwards, testified that Petitioner had been in the
bank earlier that day and his demeanor had led her to fear that Petitioner was armed
with a gun and was about to rob the bank. (Tr. 5/11/06, p. 14).
Petitioner was arrested by the police the next day for trespassing at Central High
School in Grand Rapids. The police testified that Petitioner’s appearance matched that
of the robbery suspect. (Tr. 5/10/06, pp. 54-55, 57). While searching Petitioner’s duffel
bag, officers discovered a small silver cigarette lighter in the shape of a handgun. (Id.,
pp. 56, 79). Officers testified that there are real guns that are the size of the lighter. (Tr.
5/10/06, p. 87; Tr. 5/11/06, p. 129). The SIM card from Ms. Torres’ stolen phone was
located by police in Petitioner’s cell phone. (Tr. 5/11/06, p. 109). New shoes, new
t-shirts, and a new watch were also found in Petitioner’s duffle bag. (Id., pp. 126-128)
Petitioner confessed to robbing the victim, but denied having a gun. Petitioner
acknowledged that the lighter that had been recovered from his duffel bag may have
been in his hand during the robbery. Petitioner indicated that he used the money that
he had stolen from the victim to buy new clothes and shoes. (Id., pp. 114-15). During a
subsequent search of Petitioner’s hotel room, police found Ms. Torres’ Michigan ID card
wrapped inside of Petitioner’s birth certificate in a dresser drawer. The victim’s cell
phone cover was also recovered from the room and cell phone pieces were scattered all
over the room. The officers also found clothing that was similar to that worn by the
robber. (Tr. 5/10/06, p. 34; Tr. 5/11/06, pp. 39-40, 44, 48). The police did not find any
money or a weapon during the search of the hotel room. (Tr. 5/11/06, p. 55; Tr. 5/12/06,
After being arrested, Petitioner was detained at the Kent County Jail. (Tr.
5/10/06, p. 88). On the afternoon of his arrest, Petitioner attempted to get in line and
slip out of the jail along with other prisoners who were being released. (Tr. 5/11/06, p.
68). Petitioner managed to get through the first set of doors, where he attempted to
disguise his face with toothpaste and a hood. (Id., pp. 72, 78). After being caught,
Petitioner confessed to jail personnel that he was trying to escape. Petitioner also
confessed to having a knife on his person, which was discovered in a subsequent
search. (Id., pp. 94, 96-97).
Petitioner’s conviction was affirmed on appeal. People v. Jenkins, No. 272217
(Mich. Ct. App. December 11, 2007), leave to appeal denied at 746 N.W. 2d 89 (Mich.
2008). Petitioner then filed a post-conviction motion for relief from judgment pursuant to
M.C.R. 6.500, et. seq., which the trial court denied. People v. Jenkins, Case ## 063
01490-FH; 06-00908-FC (Kent County Circuit Court, April 30, 2009). The Michigan
appellate courts denied Petitioner’s post-conviction appeal. People v. Jenkins, No.
295547 (Mich. Ct. App. February 10, 2010), leave to appeal denied at 787 N.W. 2d 505
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Defendant was denied due process of law because the evidence against
him showed that he attempted to leave the jail without being discharged
rather than attempted to escape and the statute he was charged with
violating does not apply to attempting to leave the jail without being
II. Defendant was deprived of effective assistance of counsel by his
attorney’s failure to request an instruction to the jury that it should not convict
defendant of jail escape on attempt theory if it found that he only intended to
leave custody by being mistakenly released.
III. Defendant’s conviction for armed robbery should be vacated and the
defendant should be resentenced on the lesser included offense of robbery
unarmed, as the prosecutor failed to present legally sufficient evidence that
Mr. Jenkins possessed a weapon contrary to his constitutional right to due
process of the law. US Cons, Amends XIV, Mich. Const. Art 1,Sect 17.
IV. Defendant was denied the right to effective assistance of trial counsel
where trial counsel failed to inform defendant that armed robbery carried a
potential life sentencde [sic.] and also failed to inpeach [sic.] the wholly
incredible testimony of the victim regarding the alleged use of a weapon
during the robbery.
V. Defendant is entitled to post conviction relief under either, statutory or
court rule, and can show cause and prejudice by the ineffective assistance
of his appellate attorney on appeal as of right provided.
Title 28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(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.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court
has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362,
405-06 (2000). An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.”
Id. at 409. A federal habeas court may not “issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly." Id. at 410-11.
The Supreme Court has explained that “a federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “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, 130 S. Ct.
1855, 1862 (2010) ((quoting Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997); Woodford
v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[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. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court has emphasized “that even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable.” Id. ( citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or...could have supported, the state
court’s decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior
decision” of the Supreme Court. Id.
A. Claim # 1. The claim that there was insufficient evidence to
convict Petitioner of attempting to escape jail.
Petitioner first argues that there was insufficient evidence to convict him of
attempting to escape from jail, because his act of attempting to leave the Kent County
Jail by tricking jail personnel into releasing him by mistake does not amount to escape
under Michigan’s jail escape statute unless he had been successful in leaving the jail.
It is beyond question that “the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In Re Winship, 397 U.S. 358, 364
(1970). But the critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction is, “whether the record evidence could reasonably support a finding
of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979).
This inquiry, however, 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. Id. at 318-19 (internal citation and footnote omitted)
(emphasis in the original).
More importantly, a federal habeas court may not overturn a state court decision
that rejects a sufficiency of the evidence claim simply because the federal court
disagrees with the state court’s resolution of that claim. Instead, a federal court may
grant habeas relief only if the state court decision was an objectively unreasonable
application of the Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011).
“Because rational people can sometimes disagree, the inevitable consequence of this
settled law is that judges will sometimes encounter convictions that they believe to be
mistaken, but that they must nonetheless uphold.” Id.
Finally, on habeas review, a federal court does not reweigh the evidence or
redetermine the credibility of the witnesses whose demeanor was observed at trial.
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 habeas court therefore must defer to
the fact finder for its assessment of the credibility of witnesses. Matthews v.
Abramajtys, 319 F. 3d 780, 788 (6th Cir. 2003).
The Michigan Court of Appeals concluded that Petitioner’s act of inducing jail
personnel into releasing him from jail by mistake constituted an attempt to escape
under M.C.L.A. 750.197(2) and that it was not necessary under this statute for
Petitioner to have successfully left the jail in order to be convicted. Jenkins, Slip. Op.
at * 2. Specifically, the Michigan Court of Appeals rejected Petitioner’s contention that
the definition of escape under the statute must exclude leaving the jail without
permission. Id. The Michigan Court of Appeals further concluded that there was
sufficient evidence to convict Petitioner of attempting to escape from jail:
Here, defendant admitted in his signed statement that he tried to “get out for
free,” and that he intended to leave the jail to go home. He planned his
departure and purposely hid until he could blend in with a group of prisoners
who were being released. He tried to disguise himself and pretended to be
someone else. The prosecution presented additional evidence that
defendant knew that he was not authorized to leave. He had been asked
his clothing sizes and was aware that he would be moved out of the intake
area and into the residence area of the jail. A reasonable jury could
conclude that defendant knew he was wrongly removing himself from the
restraint of jail. He did not use force, and so did not “break” from the jail, but
a reasonable jury could find, beyond a reasonable doubt, that he attempted
to depart from legal custody or remove himself from the restraint imposed
by being held in the jail. He attempted to escape and the evidence
sufficiently supported his conviction. The fact that defendant might also have
been guilty of “leaving without being discharged” had he actually been
successful is irrelevant because he was not charged with an attempt to
violate that prohibition in the statute.
Jenkins, Slip. Op. at * 2-3 (internal citation omitted).
M.C.L.A. 750.197(2); M.S.A. § 28.394(2) provides as follows:
A person lawfully imprisoned in a jail or place of confinement established by
law, awaiting examination, trial, arraignment, or sentence for a felony; or
after sentence for a felony awaiting or during transfer to or from a prison,
who breaks the jail or place of confinement and escapes; who breaks the
jail, although no escape is actually made; who escapes; who leaves the jail
or place of confinement without being discharged from the jail or place of
confinement by due process of law; who breaks or escapes while in or being
transferred to or from a courtroom or courthouse, or a place where court is
being held; or who attempts to break or escape from the jail or place of
confinement is guilty of a felony.
The elements of jail escape are that:
(1) the defendant was lawfully imprisoned in a jail or other place of
confinement while awaiting legal proceedings or transfer to prison, and
(2) the defendant broke or attempted to break the jail or place of
confinement, regardless of whether an escape was actually made.
People v. Fox, 591 N.W.2d 384, 392 (Mich. Ct. App.1998).
In the present case, there was sufficient evidence for a rational trier of fact to
conclude that Petitioner attempted to escape from jail while awaiting arraignment for a
felony. Petitioner does not dispute that he was lawfully imprisoned in jail at the time of
the incident or that he was awaiting arraignment on his pending armed robbery charge.
Petitioner admitted that he intended to “get out for free” from the jail, purposefully hid
until he could blend in with prisoners who were being lawfully released, and tried to
disguise his identity by using toothpaste and a hood. Petitioner had been asked his
clothing size by jail personnel and was aware that he would be moved from the intake
area and into the residential area of the jail. Under these facts, a rational trier of fact
could conclude that Petitioner “attempted to break the jail or place of confinement”.
Moreover the fact that Petitioner did not successfully effectuate the escape was not a
necessary element of the offense under Michigan law. Accordingly, the Michigan Court
of Appeals did not unreasonably apply clearly established law in rejecting Petitioner’s
To the extent that Petitioner contends that his act of inducing jail personnel to
release him by mistake should not, as a matter of law, constitute an attempt to escape
under M.C.L.A. 750.197(2), he would not be entitled to habeas relief. State courts are
the “ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975).
What is essential to establish the elements of a crime is a matter of state law. See
Sanford v. Yukins, 288 F. 3d 855, 862 (6th Cir. 2002). Thus, “[s]tates are allowed to
define the elements of, and defenses to, state crimes.” See Lakin v. Stine, 80 Fed.
App’x. 368, 373 (6th Cir. 2003) (citing Apprendi v. New Jersey, 530 U.S. 466, 484-87
(2000); McMillan v. Pennsylvania, 477 U.S. 79, 84-86, (1986)). A federal habeas court
must therefore defer to a state appellate court’s construction of the elements of state
crimes. See Coe v. Bell, 161 F. 3d 320, 347 (6th Cir. 1998). In the present case, the
Michigan Court of Appeals concluded that Petitioner’s act of attempting to trick jail
personnel into releasing him by mistake constituted an attempt to escape under
Michigan’s jail escape statute and that it was not necessary for Petitioner to have
actually left the jail in order for him to be prosecuted under that statute. Because this
court must defer to a state appellate court’s construction of the elements of state
crimes, Petitioner would not be entitled to habeas relief on his first claim.
B. Claim # 2. The claim that trial counsel was ineffective for failing
to request a jury instruction that Petitioner could not be convicted
of jail escape based upon an attempt to be mistakenly released.
Petitioner next contends that trial counsel was ineffective for failing to request a
jury instruction which informed the jurors that they could not convict Petitioner for
attempting to escape based upon Petitioner’s attempt to be mistakenly released.
The Michigan Court of Appeals rejected Petitioner’s claim:
Again, defendant was not charged or convicted under the portion of the
statute that proscribes leaving without being discharged from the jail by due
process of law. That portion of the statute was not at issue in the trial court.
Therefore, if counsel had requested an instruction regarding an alternate
circumstance for which the defendant was not charged, the trial court would
have denied counsel’s request. Further, defendant’s claim that his attempt
to be mistakenly released is merely an attempt to leave without being
discharged by due process of law is a novel legal argument, and counsel is
not ineffective for failing to raise a novel legal argument.
Jenkins, Slip. Op. at * 3 (internal citation omitted).
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the
defendant must demonstrate that, considering all of the circumstances, counsel’s
performance was so deficient that the attorney was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687
(1984). In so doing, the defendant must overcome a strong presumption that counsel’s
behavior lies within the wide range of reasonable professional assistance. Id. In other
words, Petitioner must overcome the presumption that, under the circumstances, the
challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second,
the defendant must show that such performance prejudiced his defense. Id. To
demonstrate prejudice, the defendant must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “Strickland’s test for prejudice is a
demanding one. ‘The likelihood of a different result must be substantial, not just
conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011) (quoting Richter,
131 S. Ct. at 792). The Supreme Court’s holding in Strickland places the burden on
the defendant who raises a claim of ineffective assistance of counsel, and not the
state, to show a reasonable probability that the result of the proceeding would have
been different, but for counsel’s allegedly deficient performance. See Wong v.
Belmontes, 130 S. Ct. 383, 390-91 (2009).
More importantly, on habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect
but whether that determination was unreasonable-a substantially higher threshold.’”
Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009) (quoting Schriro v. Landrigan,
550 U.S. 465, 473 (2007)). “The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s standard.” Harrington v.
Richter, 131 S. Ct. at 785. Indeed, “because the Strickland standard is a general
standard, a state court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.” Knowles, 129 S. Ct. at 1420 (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Pursuant to § 2254(d)(1)
standard, a “doubly deferential judicial review” applies to a Strickland claim brought by
a habeas petitioner. Id. This means that on habeas review of a state court conviction,
“a state court must be granted a deference and latitude that are not in operation when
the case involves review under the Strickland standard itself.” Harrington, 131 S. Ct. at
785. “Surmounting Strickland’s high bar is never an easy task.” Id. at 788 (quoting
Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010)).
In the present case, the Michigan Court of Appeals determined that as a matter
of state law, Petitioner was not entitled to an instruction that he could not be convicted
of attempting to escape from jail if he was mistakenly released because Petitioner had
not been charged or convicted under the portion of the Michigan jail escape statute that
prohibits a defendant from leaving without being discharged from the jail by due
process of law. In analyzing Petitioner’s claim that counsel was ineffective for failing to
request such an instruction, this expression of state law is binding on this court. See
Strayhorn v. Booker, 718 F. Supp. 2d 846, 870 (E.D. Mich. 2010) (internal citations
omitted). Because Petitioner’s proposed instruction was inappropriate under state law,
counsel was not ineffective for failing to request such an instruction. Id;, See also
Mitzel v. Tate, 267 F. 3d 524, 538 (6th Cir. 2001). Moreover, as the Michigan Court of
Appeals noted, Petitioner’s argument that his attempt to be mistakenly released was
merely an attempt to leave without being discharged by due process of law is a novel
legal argument. As a general matter, a defense counsel has no duty to present novel
theories or arguments. See e.g. Byrd v. Trombley, 580 F. Supp. 2d 542, 557 (E.D.
Mich. 2008). Accordingly, the Michigan Court of Appeals did not unreasonably apply
Strickland in rejecting Petitioner’s second claim.
C. Claims ## 3, 4, and 5. The procedurally defaulted claims.
Respondent contends that Petitioner’s remaining claims are procedurally
defaulted because Petitioner raised these claims for the first time in his post-conviction
motion, and failed to show cause and prejudice for failing to raise these claims in his
appeal of right, as required by M.C.R. 6.508(D)(3).
When the state courts clearly and expressly rely on a valid state procedural bar,
federal habeas review is also barred unless Petitioner can demonstrate “cause” for the
default and actual prejudice as a result of the alleged constitutional violation, or can
demonstrate that failure to consider the claim will result in a “fundamental miscarriage
of justice.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). If Petitioner fails to
show cause for his procedural default, it is unnecessary for the court to reach the
prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an
extraordinary case, where a constitutional error has probably resulted in the conviction
of one who is actually innocent, a federal court may consider the constitutional claims
presented even in the absence of a showing of cause for procedural default. Murray v.
Carrier, 477 U.S. 478, 479-80 (1986). To be credible, such a claim of innocence
requires a petitioner to support the allegations of constitutional error with new reliable
evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995).
“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley
v. United States, 523 U.S. 614, 624 (1998).
Michigan Court Rule 6.508(D)(3) provides that a court may not grant relief to a
defendant if the motion for relief from judgment alleges grounds for relief which could
have been raised on direct appeal, absent a showing of good cause for the failure to
raise such grounds previously and actual prejudice resulting therefrom. For purposes
of a conviction following a trial, “actual prejudice” means that “but for the alleged error,
the defendant would have had a reasonably likely chance of acquittal.” M.C.R.
The Supreme Court has noted that “a procedural default does not bar
consideration of a federal claim on either direct or habeas review unless the last state
court rendering a judgment in the case ‘clearly and expressly’ states that its judgment
rests on the procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). If the last
state court judgment contains no reasoning, but simply affirms the conviction in a
standard order, the federal habeas court must look to the last reasoned state court
judgment rejecting the federal claim and apply a presumption that later unexplained
orders upholding the judgment or rejecting the same claim rested upon the same
ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
The Michigan Court of Appeals and the Michigan Supreme Court rejected
Petitioner’s post-conviction appeal on the ground that “the defendant has failed to meet
the burden of establishing entitlement to relief under MCR 6.508(D).” These orders,
however, did not refer to subsection (D)(3) nor did they mention Petitioner’s failure to
raise these claims on his direct appeal as their rationale for rejecting his post-conviction
claims. Because the form orders in this case citing Rule 6.508(D) are ambiguous as to
whether they refer to procedural default or a denial of post-conviction relief on the
merits, the orders are unexplained. See Guilmette v. Howes, 624 F.3d 286, 291 (6th
Cir. 2010). This court must “therefore look to the last reasoned state court opinion to
determine the basis for the state court’s rejection” of Petitioner’s claims. Id.
In the present case, the Kent County Circuit Court judge, in rejecting Petitioner’s
motion for relief from judgment, mentioned that M.C.R. 6.508(D)(3) provides that a
motion for relief from judgment cannot be granted unless the defendant demonstrates
good cause for failing to raise the grounds on appeal as well as actual prejudice from
the alleged irregularities. Although noting that Petitioner attempted to satisfy the “good
cause” requirement by alleging that appellate counsel was ineffective for failing to raise
on direct appeal the issues contained in the motion for relief from judgment, the trial
judge concluded that appellate counsel was not ineffective for failing to raise what
amounted to meritless claims, therefore, Petitioner’s motion for relief from judgment
“could be denied for failing to satisfy the first prong of the analysis.” The judge further
concluded that Petitioner had failed to establish “actual prejudice”, i.e., that he would
have had a reasonably likely chance of an acquittal at trial but for counsel’s error.
People v. Jenkins, No. 06-01490-FH; 06-00908-FC, * 2 (Kent County Circuit Court,
April 30, 2009).
Because the trial court judge denied Petitioner post-conviction relief based on
the procedural grounds stated in M.C.R. 6.508(D)(3), Petitioner’s post-conviction
claims are clearly procedurally defaulted pursuant to M.C.R. 6.508(D)(3). See Ivory v.
Jackson, 509 F. 3d 284, 292-93 (6th Cir. 2007); see also Howard v. Bouchard, 405 F.
3d 459, 477 (6th Cir. 2005). The fact that the trial judge may have also discussed the
merits of Petitioner’s claims in addition to invoking the provisions of M.C.R. 6.508(D)(3)
to reject Petitioner’s claims does not alter this analysis. See Alvarez v. Straub, 64 F.
Supp. 2d 686, 695 (E.D. Mich. 1999). A federal court need not reach the merits of a
habeas petition where the last state court opinion clearly and expressly rested upon
procedural default as an alternative ground, even though it also expressed views on
the merits. McBee v. Abramajtys, 929 F. 2d 264, 267 (6th Cir. 1991). Petitioner’s
remaining claims are procedurally defaulted.4
With respect to his post-conviction claims, Petitioner alleges ineffective
assistance of appellate counsel as cause to excuse his procedural default. Petitioner,
however, has not shown that appellate counsel was ineffective. It is well-established
that a criminal defendant does not have a constitutional right to have appellate counsel
Petitioner could not have procedurally defaulted his ineffective assistance of
appellate counsel claim, because state post-conviction review was the first opportunity
that he had to raise this claim. See Guilmette, 624 F. 3d at 291; Hicks v. Straub, 377 F.
3d 538, 558, n. 17 (6th Cir. 2004). However, for the reasons stated below, Petitioner is
not entitled to habeas relief on this claim.
raise every non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751
(1983). The United States Supreme Court has explained:
“For judges to second-guess reasonable professional judgments and
impose on appointed counsel a duty to raise every ‘colorable’ claim
suggested by a client would disserve the ... goal of vigorous and effective
advocacy.... Nothing in the Constitution or our interpretation of that
document requires such a standard.”
Id. at 463 U.S. at 754.
Moreover, “[A] brief that raises every colorable issue runs the risk of burying
good arguments-those that, in the words of the great advocate John W. Davis, ‘go for
the jugular,’-in a verbal mound made up of strong and weak contentions.” Id. at 463
U.S. at 753 (citations omitted).
The Supreme Court has subsequently noted that:
Notwithstanding Barnes, it is still possible to bring a Strickland claim based
on [appellate] counsel’s failure to raise a particular claim[on appeal], but it
is difficult to demonstrate that counsel was incompetent.”
Smith v. Robbins, 528 U.S. 259, 288 (2000).
Strategic and tactical choices regarding which issues to pursue on appeal are
“properly left to the sound professional judgment of counsel.” United States v. Perry,
908 F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate advocacy”
is the “process of ‘winnowing out weaker arguments on appeal and focusing on’ those
more likely to prevail.” Smith v. Murray, 477 U.S. at 536 (quoting Barnes, 463 U.S. at
751-52). “Generally, only when ignored issues are clearly stronger than those
presented will the presumption of effective assistance of appellate counsel be
overcome.” Monzo v. Edwards, 281 F. 3d 568, 579 (6th Cir. 2002). Appellate counsel
may deliver deficient performance and prejudice a defendant by omitting a “dead-bang
winner,” which is defined as an issue which was obvious from the trial record and
would have resulted in a reversal on appeal. See Meade v. Lavigne, 265 F. Supp. 2d
849, 870 (E.D. Mich. 2003).
Petitioner has failed to show that appellate counsel’s performance fell outside
the wide range of professionally competent assistance by omitting the claims that he
raised for the first time in his post-conviction motion for relief from judgment. Appellate
counsel filed an appellate brief which raised the first two claims that Petitioner has
presented in his petition. Petitioner has not shown that appellate counsel’s strategy in
presenting these two claims and not raising other claims was deficient or
unreasonable. Moreover, for the reasons stated by the Kent County Circuit Court in
rejecting Petitioner’s post-conviction claims and by the Assistant Michigan Attorney
General in his answer to the petition for writ of habeas corpus, none of the claims
raised by Petitioner in his post-conviction motion were “dead bang winners.” Because
the defaulted claims are not “dead bang winners,” Petitioner has failed to establish
cause for his procedural default of failing to raise these claims on direct review. See
McMeans v. Brigano, 228 F. 3d 674, 682-83 (6th Cir. 2000).
Moreover, because these post-conviction claims lack merit, this court must
reject any independent ineffective assistance of appellate counsel claim raised by
Petitioner. “[A]ppellate counsel cannot be found to be ineffective for ‘failure to raise an
issue that lacks merit.’” Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir. 2010);
cert. den. 131 S. Ct. 1013 (2011) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
In the present case, Petitioner has failed to show cause to excuse his default.
Because Petitioner has not demonstrated any cause for his procedural default, it is
unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. at
533. Additionally, Petitioner has not presented any new reliable evidence to support
any assertion of innocence which would allow this court to consider these claims as a
ground for a writ of habeas corpus in spite of the procedural default. Petitioner’s
sufficiency of evidence claims are insufficient to invoke the actual innocence doctrine to
the procedural default rule. See Malcum v. Burt, 276 F. Supp. 2d 664, 677 (E.D. Mich.
2003). Because Petitioner has not presented any new reliable evidence that he is
innocent of these crimes, a miscarriage of justice will not occur if the court declined to
review the procedurally defaulted claims on the merits. See Welch v. Burke, 49 F.
Supp. 2d 992, 1007 (E.D. Mich. 1999).
Finally, assuming that Petitioner had established cause for his default, he would
be unable to satisfy the prejudice prong of the exception to the procedural default rule,
because his claims would not entitle him to relief. The cause and prejudice exception
is conjunctive, requiring proof of both cause and prejudice. See Matthews v. Ishee, 486
F. 3d 883, 891 (6th Cir. 2007). For the reasons stated by the Kent County Circuit
Court in rejecting Petitioner’s post-conviction motion and by the Assistant Michigan
Attorney General in his answer to the petition for writ of habeas corpus, Petitioner has
failed to show that his post-conviction claims have any merit. In particular, the reasons
justifying the denial of the claims that Petitioner raised for the first time in his postconviction motion were “ably articulated by the” state trial court, therefore, “the
issuance of a full written opinion” by this court regarding these claims “would be
duplicative and serve no useful, jurisprudential purpose.” See e.g. Bason v. Yukins,
328 Fed. App’x. 323, 324 (6th Cir. 2009). Petitioner is not entitled to habeas relief on
his remaining claims.
D. Certificate of Appealability
Before Petitioner may appeal this decision, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R.App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies a habeas
claim on the merits, the substantial showing threshold is met if the petitioner
demonstrates that reasonable jurists would find the court’s assessment of the claim
debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). “A
petitioner satisfies this standard by demonstrating that . . . jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.”
Miller–El v. Cockrell, 537 U.S. at 327. In applying this standard, a court may not
conduct a full merits review, but must limit its examination to a threshold inquiry into the
underlying merits of the claim. Id. at 336–37.
Likewise, when a district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claims, a certificate of
appealability should issue, and an appeal of the district court’s order may be taken, if
the petitioner shows that jurists of reason would find it debatable whether the petitioner
states a valid claim of the denial of a constitutional right, and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.
Slack, 529 U.S. at 484. When a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude either
that the district court erred in dismissing the petition or that the petition should be
allowed to proceed further. In such a circumstance, no appeal would be warranted. Id.
Having considered the matter, the court concludes that Petitioner has not made
a substantial showing of the denial of a constitutional right as to his habeas claims.
Accordingly, the court will deny Petitioner a certificate of appealability.
IT IS ORDERED that Petitioner Marquis Jenkins’ petition for writ of habeas
corpus [Dkt. # 1] is DENIED.
IT IS FURTHER ORDERED that the court DECLINES to issue a certificate of
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: January 31, 2012
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 31, 2012, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
1/31/12:S:\Cleland\JUDGE'S DESK\C3 ORDERS\11-10469.JENKINS.Habeas.db.2.wpd
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