Thomas v. McKee
Filing
30
OPINION and ORDER dismissing 1 Petition for Writ of Habeas Corpus. Signed by District Judge R. Allan Edgar. (ATee)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HAROLD THOMAS,
Petitioner,
v.
Case No. 2:11-CV-10653
HON. R. ALLAN EDGAR
KENNETH MCKEE, et al.,
Respondent.
________________________________/
OPINION AND ORDER
Petitioner filed this § 2254 petition for writ of habeas corpus challenging the
validity of his state court conviction for violations of his Fifth, Sixth, and Fourteenth
Amendment rights. In 2008, after a bench trial, Petitioner was convicted of armed robbery
(MICH. COMP. LAWS § 750.529) and resisting and obstructing (MICH. COMP. LAWS § 750.81d(1)).
Petitioner was sentenced as a fourth habitual offender to fifteen to forty years for the armed
robbery conviction and five to fifteen years for the resisting and obstructing conviction.
Petitioner remains in the custody of the Michigan Department of Corrections.
After his conviction, Petitioner filed an application for leave to appeal in the
Michigan Court of Appeals, claiming that “the prosecution abused its discretion by charging
defendant in the alternative with both robbery and bank robbery.” ECF No. 8 at 5. The Court of
Appeals denied Petitioner’s application and affirmed his convictions on October 6, 2009. ECF
No. 8 at 5; ECF No. 18-18. Petitioner then filed an application for leave to appeal in the
Michigan Supreme Court, raising the same claim. The Michigan Supreme Court denied his
application on February 26, 2010. ECF No. 8 at 5; ECF No. 18-19.
Petitioner filed a habeas petition in this Court on February 17, 2011 (ECF No. 1),
along with a motion to stay the habeas proceedings since he had an outstanding motion in the
trial court that raised claims not yet exhausted for purposes of the habeas proceedings (ECF No.
2). The habeas court granted the motion to stay. ECF No. 4. Petitioner filed an amended habeas
application in federal court on September 7, 2012 (ECF No. 8), which the habeas court granted
by re-opening his case on January 17, 2013 (ECF No. 10). After re-opening his habeas case,
Petitioner filed a motion for relief from judgment in the trial court on May 2, 2013. ECF No. 1813. On October 22, 2013, Petitioner filed a supplemental motion for relief from judgment. ECF
No. 18-14 at 1. On March 28, 2014, the trial court denied Petitioner’s motion and supplemental
motion for relief from judgment.1 ECF No. 18-16. At no time did Petitioner file an appeal in the
United States Supreme Court.
Petitioner maintains that his convictions were based on violation of his federal
rights. Petitioner sets forth the following claims for relief in his habeas application:
I. The prosecution abused its discretion by charging defendant in the
alternative with both bank robbery and armed robbery.
II. Petitioner Harold Thomas was denied a fair trial and due process
of law, in violation of the United States Constitution VI, XIV
Amendments and the legal principle of the US Supreme Court’s
myriad stare decisis when Petitioner Thomas’ bench trial, conviction
and sentence was conducted by a bias trial judge, whose impartiality
might reasonably be called into question, because the trial judge
necessarily had a prejudgment or preconceived notion of Petitioner
Thomas’ guilt of the charged offense due to his prior participation as
a fact finder and initial decision maker, and because his mental
1
In May of 2014, Petitioner filed a delayed appeal to the Michigan Court of Appeals. The outcome of that
appeal was unknown at the time this amended habeas application was filed.
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impartiality was negated by a barrage of evidence relating to alleged
similar acts, uncharged crimes and bad man character testimony to the
degree that any possible impartiality was nullified.
III. Petitioner Harold Thomas was denied a fair trial and due process
of law, in violation of United States Constitution VI, XIV
Amendments and the legal principle of the US Supreme Court in
Santobello v. New York, 404 US 257; 92 S Ct 495 (1971), the
prosecution and defense counsel breached the legal contract
agreement that Petitioner Thomas would not be impeached with any
reference to his prior record, imprisonment or current parole status if
he testified for the defense, then proceeded to repeatedly impeach
Petitioner Thomas with references to his imprisonment, current parole
status and prior record.
IV. Petitioner Harold Thomas was denied a fair trial and due process
of the law, in violation of the United States Constitution VI, XIV
Amendments and the legal principle of stare decisis when the trial
court repeatedly considered uncharged similar act crimes as
substantive proof or constructive evidence of Petitioner Harold
Thomas’ guilt of the charged offenses of armed robbery or bank
robbery without affording Petitioner Thomas the required Huddleston
v. United States, 486 US 681; 108 S Ct 1496 (1988)/People v.
Vandervliet, 444 Mich 52, 89 (1993) evidentiary hearing.
V. Petitioner Thomas was denied a fair trial, due process of law, the
right to effectively confront, cross-examine or impeach Detective
Litteracki [sic] and the Westland Police, in violation of the United
States Constitution VI, XIV Amendments and the legal principle of
the US Supreme Court in Crawford v. Washington, 541 US 36; 124
S Ct 1354 (2004) when Detective James Dziedzic’s testimonial
hearsay was used to interpret at length Detective Litterack’s [sic]
report and the Westland Police’s 11/24/07 accident report.
VI. Michigan’s application of MCL 767.39 [aiding and abetting
statute] an unconstitutional application that resulted in inherent
prejudices to Petitioner Harold Thomas, thereby denying Harold
Thomas Due Process of law, in violation of the V, VI, XIV
Amendment of the United States Constitution when Michigan’s
application of MCL 767.39: (1) disregards the plain unambiguous
language of MCL 767.39 and the doctrine of statutory construction;
(2) usurps and ignores previous Michigan stare decisis deemed to
have been the final authority; (3) deprives any Petitioner subject to
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Michigan’s misapplication of MCL 767.39 of the right to know the
nature of the charge; (4) precludes the Petitioner from presenting the
defense of merely present.
VII. Petitioner Harold Thomas was denied a fair trial and due process
of law, in violation of the United States Constitution VI, XIV
Amendments and the legal principle of the US Supreme Court in
Strickland v. Washington, 466 US 668; 104 S Ct 2052 (1984) and/or
United States v. Cronic, 466 US 648; 104 S Ct 2039 (1984) due to
trial counsel’s cumulative incompetent errors (whether by
commission or omission) as alphabetized below when those
incompetent errors were prejudicial to the defense when trial counsel:
A. Coerced Petitioner Thomas to waive a jury trial and take
a bench trial before a bias[ed] judge, who prejudged the case
and had obvious preconceived notions of Petitioner Thomas’
guilt to the charged offenses due to his prior participation as
an [sic] factfinder or initial decision maker.
B. Failed to file a motion for the biased judge to recuse on the
ground that under the circumstances of the case the trial
judge’s impartiality might reasonably be questioned.
C. Failed to object to the prosecution’s and trial court’s
breaching the contractual agreement made between the parties
that Petitioner Thomas would not be impeached by any
reference to his prior record, imprisonment or current parole
status, but was the first one to breach the agreement. See TT
1, p. 12, LL 12-3.
D. Failed to file a motion for a People v. Vandervliet, 444
Mich 52 (1993)/Huddleston v. United States, 485 US 681;
108 S Ct 1496 (1988) evidentiary hearing to preclude bad
man character, uncharged crimes, similar act crimes evidence
from pervading and prejudicing the trial proceedings.
E. Failed to object to multiple or cumulative instances of
prosecutorial misconduct as set forth in habeas ground seven.
F. Failed to conduct numerous types of pre-trial
investigations, including potential defense favorable
witnesses and statutes revolving or relevant to the defense.
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G. Failed to endorse a defense favorable expert witness [a
chirographer (handwriting expert)] who would have rebutted
(if not exposed perjury by the state’s key witness Keyana
Pettus) the state’s key witness and alleged co-defendant’s
testimony when she testified Petitioner Thomas wrote the
robbery notes she gave the tellers in the uncharged similar act
[of] Farmington Hi[ll]s and the current conviction [of the]
Southfield bank robberies.
H. Failed to impeach the state’s key witness (Keyana Pet[t]us)
with her conflicting (if not irreconcilable) extrajudicial,
custodial interrogation statements, and with her obvious
motive, interest, bias to testify to the satisfaction of the
prosecution and to lie about Petitioner Thomas’ involvement
in any bank robberies.
I. Failed to object to the state’s deliberate, perjurious and
fraudulent misrepresentation of the date of the Farmington
Hi[ll]s bank robbery.
K.2 Failed to call parole officer Hughes (a favorable defense
witness) as a rebuttal witness to establish the fact that on the
actual date [11/8/07 instead of 11/7/07] and time of the
Farmington Hi[ll]s bank robbery [that] Pettus testified
Petitioner Thomas was involved in with her [despite the fact
that] Petitioner Thomas was in an interview conducted by his
parole officer at the parole office.
L. Failed to present defense supporting DVDs of the custodial
interrogation of Pettus and documents so damaging to the
prosecution’s theory of the charged offenses of armed
robbery, bank robbery and aiding and abetting that those
charges against Petitioner Thomas would have been dismissed
or acquittal would have resulted.
M. On cross-examination elicited testimony from a state
witness that equated to a Miranda-less (TT, 11, p. 88, LL 7-8),
Edwards v. Arizona, 451 US 477, 101 S Ct 1880 (1981)
violation confession of Petitioner Thomas being used to
establish every element of the charged offenses.
2
Petitioner did not have a sub-claim “J” listed in his amended habeas petition. ECF No. 8 at 19.
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N. Provided (thus introduced) the highly prejudicial and
irrelevant nude or sexual photographs of Petitioner Thomas
and Keyana Pettus thereby establishing Petitioner Thomas
was at least guilty of CSC 4th degree or 1st degree.
O. Failed to know the laws centering around the case where
those same laws allowed a chirographer to be endorsed as a
defense witness to establish the mere presence defense.
P. Failed to request an instruction on merely presence
pursuant to CJI2d 8.5.
VIII. Petitioner Harold Thomas was denied a fair trial and due process
of law, in violation of the United States Constitution VI, XIV
Amendments and the legal principle of Berger v. United States, 295
US 78; 55 S Ct 692 (1935) et all due to cumulative prosecutorial
misconduct.
IX. Petitioner Thomas was denied the right to an appeal of right and
the effective assistance of appellate counsel, in violation of the United
States Constitution XIV Amendment and the legal principle of the
myriad of US Supreme Court stare decisis when he was denied
accurate transcripts because segments of the trial transcripts (basic
tools of an appeal) were altered to reflect testimony diverse from the
actual trial testimonies, thereby constructively constituting no
transcript at all.
X. Petitioner Harold Thomas was denied a fair trial and due process
of law, in violation of the United States Constitution VI, XIV
Amendments and the legal principle of the US Supreme Court’s
myriad stare decisis when he was charged with and convicted of the
general offense armed robbery instead of the more specific offense of
bank robbery.
XI. The state trial court’s judicial determination was an unreasonable
determination in light of the evidence presented in the state court
when the trial judge determined Pettus’ inconsistent (if not
perjurious) extra-judicial statements made during police interrogation
were minor when the statements compared to Pettus’ trial testimony
reflect those inconsistencies were significant.
XII. The state’s adjudication that the prosecution did not abused [sic]
its discretion by charging defendant in the alternative with both bank
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robbery and armed robbery, in violation of the United States
Constitution VI, XIV Amendments and legal principle of the US
Supreme Court in myriad stare decisis is an adjudication that was
contrary to US Supreme Court stare decisis.
ECF No. 1 at 4; ECF No. 8 at 7-25. Respondent filed an Answer in Opposition to Petitioner’s
habeas application on June 5, 2014. ECF No. 17. Petitioner filed a Reply on August 27, 2015.
ECF No. 24. The matter is now ready for a decision.
I.
Petitioner filed this petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996. PUB. L. 104-132, 110 STAT. 1214 (AEDPA); Bell v. Cone,
535 U.S. 685, 693-94 (2002) (noting that AEDPA prevents federal habeas “retrials” and ensures
state convictions are made under state law). 28 U.S.C. § 2254(d) provides that any habeas
application by a person in state custody shall not be granted in regards to any claim that has
previously been adjudicated on the merits in state court unless the adjudication:
(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)(1)-(2).
This Court may only consider “clearly established holdings” of the Supreme
Court, not lower federal courts, in analyzing a petitioner’s claim under § 2254. Williams v.
Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). A
decision of the state court may only be overturned if: (1) it applies a rule contradicting Supreme
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Court governing law, (2) it contradicts a set of facts materially indistinguishable from a Supreme
Court decision, (3) it unreasonably applies correct Supreme Court precedent to the facts of the
case, (4) it unreasonably extends Supreme Court legal principles where it should not apply, or (5)
it unreasonably refuses to extend Supreme Court legal principle where it should apply. Bailey,
271 F.3d at 655; see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003).
A federal habeas court may not find a state adjudication to be “unreasonable”
simply because that court decides, in its own judgment, that the relevant state decision applied
federal law incorrectly. Williams, 529 U.S. at 410-11 (noting that it must instead determine if the
state court’s application of clearly established federal law was “objectively unreasonable”). This
Court defers to state court decisions when the state court addressed the merits of petitioner’s
claim. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); see Wiggins v. Smith, 539 U.S. 510,
534 (2003) (allowing review of habeas application de novo when state court clearly did not reach
the question). When applying AEDPA to state factual findings, factual issues by state courts are
presumed correct unless the petitioner rebuts the presumption with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429.
After applying the standards under AEDPA to Petitioner’s case, this Court
concludes that Petitioner has not provided clear and convincing evidence that the state court
improperly applied clearly established federal law to the facts of Petitioner’s case.
II.
Petitioner argues that habeas relief is warranted due to violations of his Fifth,
Sixth, and Fourteenth Amendment rights.
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A. Prosecutor’s Charging Decision
Petitioner raises three claims relating to the prosecutor’s improper decision to
charge him with both armed robbery and bank robbery. The three claims touching on this issue
are: claim I (prosecutor’s improper charging decision); claim X (improper conviction of general
armed robbery rather than more specific bank robbery); and claim XII (state’s improper decision
that prosecutor did not abuse charging power by charging petitioner with armed and bank
robbery).
While Petitioner currently raises these claims as violations of his constitutional
rights, these are clearly claims alleging that the state courts misapplied state law (which is
discussed by the Michigan Court of Appeals). Federal courts cannot intervene on the basis of
perceived errors of state law. Wilson v. Corcoran, 562 U.S. 1, 1 (2010); Bradshaw v. Richey,
546 U.S. 74, 76 (2005); Pulley v. Harris, 465 U.S. 37, 41 (1984). Therefore, these claims are not
cognizable on habeas review.
Even if these three claims were cognizable on habeas review, they still do not
warrant habeas relief. “A prosecutor has broad discretion in deciding what charges to pursue,
and the prosecutor’s charging decisions are generally not subject to review by the courts.” Norris
v. Preselnik, No. 12-14915, 2014 WL 943096, at *20 (E.D. Mich. Mar. 11, 2014); Times v.
Woods, No. 12-CV-15550, 2013 WL 5488449, at *14 (E.D. Mich. Oct. 2, 2013) (same). “[S]o
long as the prosecutor has probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute, and what charge to file . . . generally
rests entirely in his [the prosecutor’s] discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978); United States v. Goodwin, 457 U.S. 368, 368-69 (1982); Norris, 2014 WL 943096, at
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*20 (quoting Bordenkircher, 434 U.S. at 364).
The last court to review the substance of these issues on the merits was the
Michigan Court of Appeals in its decision denying Petitioner’s direct appeal. People v. Thomas,
No. 287382, 2009 WL 3199543, at *1 (Mich. Ct. App. Oct. 6, 2009). The court denied
Petitioner’s claim for the following reasons:
On appeal, defendant argues that he should have been charged only
with bank robbery because that statute is more specific. He relies on
case law holding that where two statutes prohibit the same conduct,
the defendant must be charged under the more specific, and more
recently enacted, statute. See People v. Patterson, 212 Mich. App.
393, 394-395; 538 NW2d 29 (1995). However, if two statutes
prohibit different conduct (i.e., an additional element is required to
convict the defendant of one crime, but not the other), the prosecutor
has the discretion to charge under either statute. People v. Werner,
254 Mich. App. 528, 536-537; 659 NW2d 688 (2002); People v.
Peach, 174 Mich. App. 419, 423; 437 NW2d 9 (1989).
With respect to armed robbery and bank robbery, this Court observed
in People v. Avery, 115 Mich. App. 699, 701-702; 321 NW2d 779
(1982):
The essential elements of armed robbery consist of an assault,
a felonious taking of property from the victim’s person or
presence, and that the defendant be armed with a weapon. In
contrast, the statute on bank robbery does not require that a
defendant be armed, nor does it require an assault or felonious
taking. In addition, the statute on bank robbery requires that
there be an intent to steal from a building, bank, safe, or other
depository of money to establish a violation whereas the
statute on armed robbery requires the felonious taking to be
from a person or in his presence.
There will be times when the statute on armed robbery and
the statute on bank robbery will overlap. However, not every
violation of the statute on bank robbery will result in a
violation of the statute on armed robbery. This is not a case of
the Legislature carving out an exception to a general statute
and providing a lesser penalty for a more specific offense, in
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which case the prosecutor would have to charge the defendant
under the statute fitting the particular facts. The crimes of
armed robbery and bank robbery involve different elements
and carry the same possible sentence. [Citations omitted.]
For the reasons noted and under the facts of that case, the Avery Court
concluded the prosecutor had the discretion to charge either bank
robbery or armed robbery. Id. at 702.
Defendant attempts to distinguish Avery arguing that the Legislature
has since changed the elements of the armed robbery statute. We
disagree. Defendant notes that under the current version of MCL
750.529 an individual can be found guilty of armed robbery even if
he is no longer armed with a weapon; consequently, the rationale of
Avery no longer applies. But, while the elements for armed robbery
and bank robbery might overlap more closely than before the 2004
amendment to MCL 750.529, the crimes still have distinct elements.
Armed robbery continues to require a theft from a person while bank
robbery does not. Bank robbery can include, but does not require, an
assault. MCL 750.531. Defendant has not shown that the amended
armed robbery statute changes the outcome of the Avery analysis.
In this case, there was factual support for both charges, and because
the prosecution had the discretion to charge defendant with either
bank robbery or armed robbery, there was no plain error in charging
defendant in the alternative with both offenses.
Thomas, 2009 WL 3199543, at **1-2. The Michigan Court of Appeals’ decision is thorough and
complete, and does not improperly apply federal law to the facts of Petitioner’s case. See Bailey,
271 F.3d at 655. Here, the prosecutor had sufficient probable cause to believe that Petitioner
committed armed robbery and bank robbery. Norris, 2014 WL 943096, at *20. Moreover,
Petitioner has not shown by clear and convincing evidence that the decision of the Michigan
Court of Appeals was contrary to any Supreme Court precedent. See Lancaster, 324 F.3d at 429.
Thus, Petitioner is not entitled to habeas relief on claims I, X, or XII.
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B. Impartial Judge
In Petitioner’s claim II, he states that he was denied the right to a fair trial and due
process of the law because the trial judge was biased against him due to the knowledge he
acquired when making pre-trial decisions in Petitioner’s case. ECF No. 8 at 16. Specifically,
Petitioner states that the judge’s pre-trial knowledge of Petitioner’s criminal record, uncharged
offenses, parole status, and similar acts evidence, combined with the fact that this judge presided
over co-defendant Pettus’ guilty plea, rendered him an impartial adjudicator in this case.
Due Process requires a fair trial before a judge without actual bias against the
defendant or an interest in the outcome of his particular case. Bracy v. Gramley, 520 U.S. 899,
899 (1997); see also Railey v. Webb, 540 F.3d 393, 399 (6th Cir. 2008) (citing In re Murchison,
349 U.S. 133, 136 (1955) (“A fair trial in a fair tribunal is a basic requirement of due process.
Fairness of course requires an absence of actual bias in the trial of cases.” (emphasis added)). A
judge should be disqualified for “bias, [] a likelihood of bias[,] or [even] an appearance of bias.”
Railey, 540 F.3d at 399-400 (quoting Ungar v. Sarafite, 376 U.S. 575, 588 (1964)). This is
because “our system of law has always endeavored to prevent even the probability of unfairness.”
Id. (quoting Murchison, 349 U.S. at 136).
Notably, however, “most questions concerning a judge’s qualifications to hear a
case are not constitutional ones, because the Due Process Clause of the Fourteenth Amendment
establishes a constitutional floor, not a uniform standard.” Bracy, 520 U.S. at 904 (citing Aetna
Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986)).
[I]t is also clear that judicial disqualification based on a likelihood or
an appearance of bias is not always of constitutional significance;
indeed, “most matters relating to judicial disqualification d[o] not rise
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to a constitutional level.” Fed. Trade Comm'n v. Cement Inst., 333
U.S. 683, 702, 68 S. Ct. 793, 92 L. Ed. 1010 (1948) (citing Tumey v.
Ohio, 273 U.S. 510, 523, 47 S. Ct. 437, 71 L. Ed. 749 (1927) (“All
questions of judicial qualification may not involve constitutional
validity.”); see also Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct.
1793, 138 L. Ed. 2d 97 (1997) (“Of course, most questions
concerning a judge's qualifications to hear a case are not
constitutional ones, because the Due Process Clause ... establishes a
constitutional floor, not a uniform standard. Instead, these questions
are, in most cases, answered by common law, statute, or the
professional standards of the bench and bar.”). In only two types of
cases has the Supreme Court actually held that something less than
actual bias violates constitutional due process – (1) those cases in
which the judge “has a direct, personal, substantial pecuniary interest
in reaching a [particular] conclusion,” Tumey, 273 U.S. 523
(subsequently expanded to include even indirect pecuniary interest);
and (2) certain contempt cases, such as those in which the “judge
becomes personally embroiled with the contemnor,” Murchison, 349
U.S. at 141 (subsequently clarified to involve cases in which the
judge suffers a severe personal insult or attack from the contemnor).
The Court has also acknowledged four types of cases that, although
they present prudent grounds for disqualification as a matter of
common sense, ethics, or “legislative discretion,” generally do not
rise to a constitutional level-“matters of [1] kinship, [2] personal bias,
[3] state policy, [and][4] remoteness of interest.” Tumey, 273 U.S.
523; accord Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820, 106 S.
Ct. 1580, 89 L. Ed. 2d 823 (1986). But, in the 81 years since Tumey,
the Court has yet to expound upon this general statement regarding
the presumptive constitutional indifference to these types of issues.
Railey, 540 F.3d at 400. Summarily, for recusal to be required, a “judge’s prejudice or bias must
be personal or extrajudicial.” Horowitz v. Harry, No. 06-13770, 2009 WL 2143797, at *17 (E.D.
Mich. July 13, 2009) (quoting United States v. Jamieson, 427 F.3d 394, 405 (6th Cir. 2005)).
Personal bias is a prejudice that may arise from a source outside of the proceedings, for example.
Id.; see United States v. Hartsel, 199 F.3d 812, 820-21 (6th Cir. 1999) (“The critical test is
whether the alleged bias ‘stem[s] from an extrajudicial source and result[s] in an opinion on the
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merits on some basis other than what the judge learned from his participation in the case.’”
(citations omitted)).
Here, Petitioner claims that the trial judge was biased because he presided over
Petitioner’s pre-trial hearings (which included information pertaining to uncharged robberies and
similar bad acts) and Pettus’ guilty plea. However, this information was acquired during court
proceedings and was not obtained by outside sources. Moreover, Petitioner has not demonstrated
that the acquired information made the judge biased against him. As the trial court noted in its
decision denying Petitioner’s motion for relief from judgment, the other acts evidence was
properly admitted and was not improperly relied upon by the trial judge. ECF No. 18-16 at 7-8.
For example, the summary of the judge’s verdict does not indicate that he weighed this
information heavily (or at all). ECF No. 18-8; see ECF No. 18-16 at 7-8. Instead, the trial judge
appeared to have relied most heavily on the credibility of the witnesses rather than Petitioner’s
prior acts. ECF No. 18-8 at 11-17; see Hartsel, 199 F.3d at 820-21 (noting the question of bias
comes from whether the information gathered is from hearings or extrajudicial sources).
As a result, Petitioner has not shown that the judge was biased against Petitioner
or that he harbored a preconceived notion that Petitioner was guilty prior to trial. Therefore,
Petitioner’s claim II fails.
C. Breach of Court Order
Petitioner’s claim III states that he was denied due process and a fair trial when
the prosecution and defense attorney impeached Petitioner’s credibility by referencing his prior
record, imprisonment, and parole status. ECF No. 8 at 16-17. In support of this claim, Petitioner
attached the trial court’s order stating that “[u]pon oral argument, April 30, 2008[,] and the court
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being advised on the premises, It is Hereby Ordered that defendant’s prior record shall be
supressed [sic] and shall not be used for impeachment if the defendant testifies in his defense.”
ECF No. 8 at 28.
Notably, however, the extraordinary remedy of habeas corpus lies only for a
violation of the Constitution. 28 U.S.C. § 2254(a). As the Supreme Court explained in Estelle v.
McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was properly admitted or improperly
excluded under state law “is no part of the federal court’s habeas review of a state conviction
[for] it is not the province of a federal habeas court to re-examine state-court determinations on
state-law questions.” Id. at 67-68.
Rather, “[i]n conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. at 68.
State-court evidentiary rulings cannot rise to the level of due process violations unless they
offend some principle of justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quotation
omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001); Bugh v. Mitchell, 329
F.3d 496, 512 (6th Cir.), cert. denied, 540 U.S. 930 (2003). “[C]ourts have defined the category
of infractions that violate fundamental fairness very narrowly.” Bugh, 329 F.3d at 512 (internal
quotations and citations omitted).
Here, Petitioner’s claim is an evidentiary issue that is not cognizable on habeas
review. Even if it were, Petitioner has not shown that his claim has merit. For example, in
denying Petitioner’s motion for relief from judgment, the trial court stated that:
[T]he evidence of the prior robberies was probative of Defendant’s
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intent to rob the Franklin Bank, his knowledge was about the robbery,
and his scheme, plan, or system of committing the robberies. While
any relevant evidence will be damaging to some extent, People v
Mills, 450 Mich 61, 75; 537 NW2d 909 (1995), Defendant has not
shown that the evidence was unfairly prejudicial, especially given the
fact that this case was tried before the bench, rather than a jury.
People v. Wofford, 196 Mich. App 275, 282; 492 NW2d 747 (1992)
(“Unlike a jury, a judge is presumed to possess an understanding of
the law, which allows him to understand the difference between
admissible and inadmissible evidence or statements of counsel.”).
ECF No. 18-16 at 6. The prior acts Petitioner references in claim III were not used to impeach
him on the stand, but rather to show his plan or scheme for committing the robbery in question
(which refutes his impeachment allegation).
Moreover, Petitioner conceded in his motion for relief from judgment that the
“nature of the crimes for which [he] had been previously convicted of was not revealed,” and that
only his parole status was admitted during trial. ECF No. 18-13 at 43. Therefore, since Petitioner
has not shown that his prior record, imprisonment, or parole status were used to impeach him on
the stand, or used improperly, this claim fails.
D. Uncharged Similar Acts Evidence
Petitioner’s claim IV states that he was denied due process of the law and a fair
trial when the court considered “uncharged similar acts crimes as substantive proof or
constructive evidence” of Petitioner’s guilt without holding an evidentiary hearing. ECF No. 8 at
17. Petitioner did not define what the “uncharged similar acts crimes” were in his case; however,
it is reasonably likely that he is referring to the previous uncharged bank robberies (i.e., the
Farmington Hills and Keego Harbor robberies).
Here, Petitioner raises this prior acts evidence claim as a due process and fair trial
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claim under the United States Constitution; however, it is effectively a state law evidentiary
claim. Federal courts have no power to intervene on the basis of perceived error of state law.
Wilson, 562 U.S. at 1, 5; Bradshaw, 546 U.S. at 76; Pulley, 465 U.S. at 41. Consequently,
Petitioner’s claim IV is not cognizable on habeas review. Even if it were cognizable on review,
the trial court (in its denial of Petitioner’s motion for relief from judgment) determined that it
was permissible to admit the prior bad acts evidence at Petitioner’s trial:
Defendant next argues that evidence of the prior uncharged robberies
was improperly admitted at trial under MRE 404(b) . . . . Under MRE
404(b)(1), evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that the person
acted in conformity therewith. People v VanderVliet, 444 Mich 52,
62; 508 NW2d 114 (1993). Such evidence may be admissible,
however, for other purposes such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act,
knowledge, identity, or absence of mistake or accident. MRE
404(b)(1); VanderVliet, supra. “Relevant other acts evidence does not
violate Rule 404(b) unless it is offered solely to show the criminal
propensity of an individual to establish that he acted in conformity
therewith.” VanderVliet, supra at 65. Here, where the defense theory
was that Defendant did not know that Pettus intended to rob the
Franklin Bank when he drove her there, the evidence of Defendant’s
participation in previous bank robberies with Pettus was relevant to
proving his intent to commit the Franklin Bank robbery, his
knowledge about the robbery, and a scheme, plan, or system in doing
an act. Thus, the evidence of the prior robberies was relevant and was
admitted for a proper purpose.
ECF No. 18-16 at 5-6 (going on to explain that the probative value of the other acts evidence
outweighed its prejudicial nature). The trial court’s conclusions are in line with the Federal
Rules of Evidence section 404(b), even though such an evidentiary issue does not rise to a
constitutional level. FRE 404(b) (“Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith.”); see also Bey v.
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Bagley, 500 F.3d 514, 523 (6th Cir. 2007) (noting other acts evidence was properly admitted, and
petitioner’s disagreement with that is not cognizable on habeas review since it does not involve a
“constitutional dimension.”). Consequently, Petitioner’s claim IV fails.
E. Confrontation Clause
In Petitioner’s claim V, he states that he was denied a fair trial and the “right to
effectively confront, cross-examine or impeach Detective Litteracki [sic] and the Westland Police
. . . when Detective James Dziedec’s [sic] testimonial hearsay was used to interpret at length
Detective Litterack’s [sic] report and the Westland Police’s 11/24/07 accident report.” ECF No. 8
at 9, 13.
The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend VI;
Pointer v. Texas, 380 U.S. 400, 406 (1965) (noting the Confrontation Clause includes the right to
cross-examine those witnesses). Generally, this means that testimonial out-of-court statements by
witnesses are barred under the Confrontation Clause unless witnesses are unavailable and
defendants had a prior opportunity to cross-examine witnesses, regardless of whether such
statements are deemed reliable by court. Crawford v. Washington, 541 U.S. 36 (2004)
(abrogating Ohio v. Roberts, 448 U.S. 56 (1980)). Notably, however, this right is not absolute
and it may be waived. Jordan v. Warden, Lebanon Correctional Inst., 675 F.3d 586, 594 (6th
Cir. 2012) (“The Constitution guarantees only ‘an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to whatever extent, the defense
might wish.’”) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original));
see also Barber v. Page, 390 U.S. 719, 725 (1968) (“[T]his Court’s definition of a waiver [is] ‘an
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intentional relinquishment or abandonment of a known right or privilege.’”) (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)).
In general, “[t]here is a presumption against the waiver of constitutional rights . . .
and for a waiver to be effective it must be clearly established that there was ‘an intentional
relinquishment or abandonment of a known right or privilege.’” Brookhart v. Janis, 384 U.S. 1, 4
(1966) (quoting Johnson, 304 U.S. at 464). In order for a waiver to be valid, the record must
clearly show that the accused comprehends the nature of the waived right and agrees to its
waiver. Faught v. Cowan, 507 F.2d 273, 280 (6th Cir. 1974).
Here, it is clear from the record that Petitioner, through his attorney, waived his
right to confront Detective Literacki regarding his police report3:
[During recross-examination of Detective Dziedzic]
Defense Attorney: Are you going to call Litteracki [sic]?
Prosecutor: I didn’t plan on it. If you want I’d be happy to get him
here.
Defense Attorney: No. If you’re not, I’ll just question him [Detective
Dziedzic] about it.
ECF No. 18-4 at 97. In addition, Petitioner (again, through his attorney) waived his right to
confront the author of the Westland accident report when his attorney questioned Detective
Dziedzic (on recross-examination) about the accident report. ECF No. 18-4 at 118-19 (showing
that the defense attorney questioned Detective Dziedzic about the report). Consequently,
Petitioner’s Sixth Amendment right to confront the Westland police report author and Detective
3
This report was written and logged by Detective Literacki. ECF No. 8 at 30. The report states that
Detectives Dziedzic and Literacki both interviewed Keyana Pettus about the robbery. ECF No. 8 at 30-32.
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Literacki were properly waived, as clearly demonstrated through the trial transcript.
Nonetheless, even if Petitioner did not waive this right, the defense attorney’s
decision not to call Detective Literacki and the author of the Westland police report to testify was
harmless error. On habeas review, a court must assess harmlessness under the standard set forth
in Brecht v. Abrahamson, 507 U.S. 619 (1993), regardless of whether the state appellate court
recognized the error and reviewed it for harmlessness. See Hargrave v. McKee, 248 F. App’x
718, 738 (6th Cir. 2007) (citing Fry v. Pliler, 551 U.S. 112, 121-22 2328 (2007)); see also
Vasquez v. Jones, 496 F.3d 564, 574-75 (6th Cir. 2007). The Brecht standard requires the Court
to consider whether the constitutional error in the state criminal trial had a “substantial and
injurious effect” on the result. In determining whether the restriction was harmless, a court must
consider a number of factors, “‘includ[ing] the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s
case.’” Hargrave, 248 F. App’x at 728 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986)).
Here, it was harmless not to include testimony from Detective Literacki or the
Westland police report author. This is because such additional testimony would be cumulative
given Detective Dziedzic’s sufficient testimony on these two reports. Moreover, the
prosecution’s case was strong given the evidence against Petitioner, such as: Keyana Pettus’
testimony as a co-defendant; the similarities between this robbery and the previously uncharged
bank robberies (Farmington Hills and Keego Harbor); the super glue found in Petitioner’s car
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that was used to conceal Pettus’ fingerprints during the robbery (which corroborated her
testimony that Petitioner was involved in the robbery); and the fact that Petitioner fled from
police after the robbery, showing his consciousness of guilt. ECF No. 9; ECF No. 8 at 19.
Therefore, given the evidence against Petitioner, and the fact that further testimony pertaining to
Detective Literacki’s report and the Westland police report would be cumulative, it follows that
any failure to call these two witnesses was harmless (as it would not have bolstered Petitioner’s
defense). Thus, Petitioner’s Confrontation Clause claim fails.
F. Misapplication of Michigan Law
In Petitioner’s claim VI, he alleges that the trial court wrongly applied MICH.
COMP. LAW § 767.39 (aiding and abetting statute) to his case, resulting in violations of his Fifth,
Sixth, and Fourteenth Amendment rights. Specifically, Petitioner claims that the violations
stemmed from the court’s: (1) disregard of the plain language of the statute, and misapplication
of the doctrine of statutory construction, and (2) non-application of Michigan case law, which
resulted in Petitioner not knowing the nature of the charge against him and precluded him from
presenting the defense of “merely present.”
Despite Petitioner’s concerns, this claim is not cognizable on habeas review. As
previously outlined, a habeas court is “limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.” Estelle, 502 U.S. at 68. Federal courts have
no power to intervene on the basis of a perceived error of state law. Wilson, 562 U.S. at 1, 5;
Bradshaw, 546 U.S. at 76; Pulley, 465 U.S. at 41. Since Petitioner’s claim rests entirely within
the state court’s application of state law, this claim is not cognizable for habeas review.
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G. Ineffective Assistance of Counsel
In Petitioner’s claim VII, he alleges that his trial counsel was ineffective due to
several “cumulative incompetent errors,” such as: waiving a jury trial, failure to motion for
judicial recusal; failure to object to the prosecutor’s breach of the suppression “contract”; failure
to file a motion to preclude uncharged crimes, bad character evidence, and similar acts evidence
from being admitted; failure to object to multiple incidents of prosecutorial misconduct; failure
to conduct pre-trial investigations that would help in Petitioner’s defense; failure to obtain a
handwriting expert; failure to impeach Keyana Pettus; failure to object to the prosecutor’s
misrepresentation of the Farmington Hills bank robbery; failure to call parole officer Hughes as
an alibi witness for the Farmington Hills robbery that Pettus testified about; failure to present
supporting DVDs of the Pettus interrogation; use of Petitioner’s Miranda-less confession when
cross examining a state witness; use of prejudicial sexual pictures of Petitioner and Pettus; failure
to know the laws of the case (such as the “mere presence” defense); and failure to request an
instruction on the mere presence defense.
In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court
established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To
establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that
counsel’s performance fell below an objective standard of reasonableness; and (2) that counsel’s
deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair
outcome. Where counsel’s performance did not fall below an objective standard of
reasonableness, the court need not reach the question of prejudice. See United States v.
Foreman, No. 01-3892, slip op. at 8-9 (6th Cir. Mar. 25, 2003).
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A court considering a claim of ineffective assistance must “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. The defendant bears the burden of overcoming the presumption that the
challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350
U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding
that counsel’s strategic decisions were hard to attack). The court must determine whether, in
light of the circumstances as they existed at the time of counsel’s actions, “the identified acts or
omissions were outside the wide range of professionally competent assistance.” Strickland, 466
U.S. at 690. Even if a court determines that counsel’s performance was outside that range, the
defendant is not entitled to relief if counsel’s error had no effect on the judgment. Id. at 691.
Moreover, as the Supreme Court repeatedly has recognized, when a federal court
reviews a state court’s application of Strickland under § 2254(d), the deferential standard of
Strickland is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 134 S. Ct. 10, 13
(2013); Cullen v. Pinholster, 563 U.S. 170, 189-190 (2011); Premo v. Moore, 562 U.S. 115, 122
(2011). In those circumstances, the question before the habeas court is “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562
U.S. at 89; Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating that the “Supreme
Court has recently again underlined the difficulty of prevailing on a Strickland claim in the
context of habeas and AEDPA . . . .”) (citing Harrington, 562 U.S. at 102). Where a prisoner has
raised multiple claims of ineffective assistance of counsel and the state appellate courts have
neglected to address one of the claims, the habeas court’s review on the performance prong is de
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novo. See Daniel v. Curtin, 499 Fed App’x 400, 404 (6th Cir. 2012). Petitioner’s claims of
ineffective assistance of counsel fail for the following reasons.
i. Bench Trial Coercion
To the extent that Petitioner claims his counsel was ineffective for coercing him
into waiving his right to a jury trial, this claim fails. Petitioner clearly indicated on the record
before the trial court that he intended to waive his right to a jury trial:
Court: Tell us your name, sir?
Defendant: Harold Thomas.
Court: And you understand you’re the defendant in this case?
Defendant: Yes, sir.
Court: And do you understand that you have an absolute right to have
a trial by jury?
Defendant: Yes, sir.
Court: And that would mean you would have the decision in this case
rendered by 12 people who would sit in that jury box, listen to all the
evidence, argument and my instructions on the law and then would
have to decide unanimously whether or not the prosecutor had proven
you had committed the crime with which you are charged beyond a
reasonable doubt. Do you understand that?
Defendant: Yes, sir.
Court: Now you also have the right if you want to to waive the right
to have your case tried by a jury and you could have your case tried
just by me. Do you understand that?
Defendant: Yes, sir.
Court: Now I’ve been told that you want to waive your right to have
your case tried to the jury and rather have it tried by me. Is that right?
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Defendant: Yes, sir.
Court: Now has anybody threatened you in any way or made any
promises to you in any way to get you to give up your right to have
your case tried to the jury?
Defendant: No, sir.
Court: Are you doing that out of your own free will?
Defendant: Yes, sir.
Court: Now do you have any questions of me regarding your rights in
this matter?
Defendant: No, sir.
Court: Do you feel that you’ve discussed this fully and completely
with your attorney?
Defendant: Yes, sir.
Court: And you’ve taken into account any advice he may have given
you on this?
Defendant: Yes, sir.
Court: You’re satisfied with the advice he’s given you on this issue?
Defendant: Yes, sir.
ECF No. 18-3 at 4-6. The record refutes Petitioner’s contention that he was coerced into waiving
his right to a jury since he said that he was neither threatened nor promised anything if he gave
up this right. Moreover, after the above-mentioned colloquy with the trial judge, Petitioner read
into the record the “waiver of jury trial” form that indicated he voluntarily waived his right to a
jury and preferred to be tried by the judge. ECF No. 18-3 at 6. Even the trial court noted (in its
decision denying Petitioner’s motion for relief from judgment) that Petitioner “knowingly and
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voluntarily waived his right to a jury trial.” ECF No. 18-16 at 15. Therefore, despite Petitioner’s
conclusory allegation that he was coerced into waiving his right to a jury trial, the record clearly
refutes this assertion. Consequently, this ineffective assistance of counsel claim fails.
ii. Judicial Recusal
Petitioner’s next claim alleges that counsel was ineffective for failing to file a
motion to have the trial judge recuse himself from Petitioner’s case. ECF No. 8 at 18. The state
trial court addressed this issue in its denial of Petitioner’s motion for relief from judgment:
To the extent Defendant argues that defense counsel was ineffective
because he allowed Defendant to be tried by a judge that was aware
of his prior record, he has shown no error. Defendant knowingly and
voluntarily waived his right to a jury trial. Furthermore, Defendant
has not shown that the court used his parole status or criminal history
for any improper purpose. In a bench trial, it is presumed that the trial
court follows the law and understands the difference between
admissible and inadmissible evidence. People v Oliver, 170 Mich
App 38, 49; 427 NW2d 898 (1988). Unlike a jury, the trial court
possesses an understanding of the law that enables it to ignore
evidentiary errors and decide a case based solely on the evidence
properly admitted at trial. People v Taylor, 245 Mich App 293, 305;
628 NW2d 55 (2001). Defendant has not shown that defense
counsel’s representation constituted ineffective assistance of counsel.
ECF No. 18-16 at 15. An attorney’s failure to make a frivolous or meritless motion does not
constitute ineffective assistance of counsel. See Smith v. Bradshaw, 591 F.3d 517, 523 (6th Cir.
2010); O’Hara v. Brigano, 499 F.3d 492, 506 (6th Cir. 2007); Chegwidden v. Kapture, 92 F.
App’x 309, 311 (6th Cir. 2004); Harris v. United States, 204 F.3d 681, 683 (6th Cir. 2000). As
the state court eluded to above, filing a motion to recuse a judge that is presumed to be capable of
following the law and evaluating evidence would be frivolous and meritless. Consequently,
Petitioner has not demonstrated that his trial attorney’s failure to file a motion for judicial recusal
-26-
constituted deficient performance under the two-prong Strickland test. Therefore, this ineffective
assistance of counsel claim fails.
iii. Breach of Suppression Order
Next, Petitioner claims that his trial counsel was ineffective when he failed to
object to the prosecution’s (and trial court’s) breach of the suppression order that stated
Petitioner would not be impeached by his prior record, imprisonment, or parole status if he took
the stand. However, Petitioner has not provided or referred to any instances in the record where
his attorney should have objected.
Furthermore, the state trial court noted (in its decision denying Petitioner’s motion
for relief from judgment) that, “[t]he substance of Defendant’s criminal record was never
admitted into evidence or mentioned by counsel.” ECF No. 18-16 at 15. Therefore, Petitioner has
failed to show what his attorney should have objected to during trial, or that his attorney’s failure
to object prejudiced the outcome of his case.
Moreover, great deference is afforded to an attorney’s decisions relating to trial
strategy, such as choosing when to object. See Strickland, 466 U.S. at 689 (“A fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects of
hindsight.”); see, e.g., Lucas v. O’Dea, 179 F.3d 412 (6th Cir. 1999) (“‘Only in a rare case’ will a
court find ineffective assistance of counsel based upon a trial attorney’s failure to make an
objection . . . .”) (citation omitted); Butler v. Hosking, 47 F.3d 1167 (Table), 1995 WL 73132, at
*9 (6th Cir. 1995) (exemplifying that an attorney’s failure to object to allegedly unfair statements
by the prosecutor may have resulted because counsel “wanted to avoid highlighting those
comments to the jury.”); Adams v. Bell, No. 1:06-CV-629, 2009 WL 2515709, at *8 (W.D. Mich.
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Aug. 14, 2009) (“Trial counsel’s failure to object is not usually deficient performance for
purposes of an ineffective assistance of counsel claim.”) (citation omitted). Thus, since
Petitioner has not overcome “the presumption that the challenged action might be considered
sound trial strategy,” this claim fails. United States v. Balboa-Gallardo, No. 1:09-CR-225, 2012
WL 4923455, at *2 (W.D. Mich. Oct. 16, 2012) (citing Strickland, 466 U.S. at 689).
iv. Motion to Preclude Evidence
Petitioner claims that his attorney was ineffective for failing to file a motion for an
evidentiary hearing to “preclude bad man character, uncharged crimes, [and] similar act crimes
evidence.” ECF No. 8 at 18 (citing Huddleston v. United States, 485 U.S. 681, 686 (1988)
(weighing, under 404(b), whether similar acts evidence “is probative of a material issue other
than character.”)). The state trial court addressed this issue in its denial of Petitioner’s motion for
relief from judgment:
Defendant next argues that evidence of the prior uncharged robberies
was improperly admitted at trial under MRE 404(b), and that defense
counsel was ineffective for failing to object to the admission of this
evidence at trial. Under MRE 404(b)(1), evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in
order to show that the person acted in conformity therewith. People
v VanderVliet, 444 Mich 52, 62; 508 NW2d 114 (1993). Such
evidence may be admissible, however, for other purposes, such as
proof of motive, opportunity, intent, preparation, scheme, plan, or
system in doing an act, knowledge, identity, or absence of mistake or
accident. MRE 404(b)(1); VanderVliet, supra. “Relevant other acts
evidence does not violate Rule 404(b) unless it is offered solely to
show the criminal propensity of an individual to establish that he
acted in conformity therewith.” VanderVliet, supra at 65. Here, where
the defense theory was that Defendant did not know that Pettus
intended to rob the Franklin Bank when he drove her there, the
evidence of Defendant’s participation in previous bank robberies with
Pettus was relevant to proving his intent to commit the Franklin Bank
robbery, his knowledge about the robbery, and a scheme, plan, or
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system in doing an act. Thus, the evidence of the prior robberies was
relevant and was admitted for a proper purpose.
ECF No. 18-16 at 5-6. As the trial court noted, the admission of these other uncharged offenses
into evidence was appropriate since, rather than showing Petitioner’s bad character, it showed
evidence of a common plan or scheme. As such, it was not deficient performance for trial
counsel not to file a motion to exclude this information from evidence since such a motion would
be meritless. See Smith , 591 F.3d at 523; O’Hara, 499 F.3d at 506; Chegwidden, 92 F. App’x at
311; Harris, 204 F.3d at 683. Moreover, evidentiary issues are not cognizable on habeas review.
See Seymour, 224 F.3d at 552 (noting state-court evidentiary rulings are not constitutional
violations unless they meet specific criteria). Therefore, Petitioner has not shown that his counsel
was ineffective, or that he is entitled to relief on this claim, meaning this claim also fails.
v. Prosecutorial Misconduct Objections
Petitioner next claims that his counsel was ineffective when he did not object to
“multiple or cumulative instances of prosecutorial misconduct.” ECF No. 8 at 18-19. The
claims of prosecutorial conduct that Petitioner refers to are: (1) double jeopardy; (2) eliciting
false testimony from Pettus; (3) eliciting false testimony from Detective Dziedzic; (4) breach of
the suppression order; (5) misstating the date of the Farmington Hills robbery; (6) use of other
crimes evidence at trial; and (7) vouching for the credibility of the prosecutor’s witnesses. ECF
No. 8 at 21-22. This claim is similar to Petitioner’s claim VIII, wherein he alleges that he was
denied a fair trial and due process due to “cumulative prosecutorial misconduct.”4 ECF No. 8 at
4
The prosecutorial misconduct raised in claim VIII is virtually identical to the claims raised in the
ineffective assistance of counsel section: (1) double jeopardy, (2) eliciting false statements from Pettus and Detective
Dziedzic about Petitioner’s involvement in the Farmington Hills and Keego bank robberies, (3) breach of contract
agreement, (4) misstatement of the date of the Farmington Hills robbery, (5) using other crimes and “bad man
character” testimony, and (6) vouching for the credibility of the state’s witnesses. ECF No. 8 at 21-22.
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21-22. Based on the similarities of these claims, both will be discussed in this section.
Due to the nature of these two claims, the Court will first determine if the
prosecutor’s conduct was appropriate; and if it was not, the Court will then decide whether
counsel was ineffective for not objecting to the misconduct.
Allegations of prosecutorial misconduct go to the fairness of the trial rather than
the culpability of the prosecutor. Millender v. Adams, 187 F. Supp. 2d 852, 874-75 (E.D. Mich.
Feb. 8, 2002). If the prosecutor’s conduct is so egregious as to render the trial fundamentally
unfair, then Due Process has been violated. Id. (citing Serra v. Michigan Dep’t of Corrections, 4
F.3d 1348, 1355-56 (6th Cir. 1993)). To make this determination, the court must first (1) “decide
whether the challenged statements were improper,” and (2) if they were, “whether the statements
or remarks are so flagrant as to constitute a denial of due process and warrant granting a writ.” Id.
at 875. Factors to consider on habeas review are: “the degree to which the challenged remarks
had a tendency to mislead the jury and to prejudice the accused, whether they were isolated or
extensive, whether they were deliberately or accidentally placed before the jury, and . . . the
strength of the competent proof against the accused.” Id. (citing Serra, 4 F.3d at 1355-56).
Petitioner has not shown that the prosecutor acted unreasonably during trial. First,
the state courts unanimously upheld the trial court’s determination that it was not double
jeopardy to charge Petitioner with both armed robbery and bank robbery, so long as Petitioner
was only convicted of one (if any). ECF No. 18-7 at 13-15. In addition, Petitioner has not shown
that the prosecutor intentionally elicited false testimony from state witnesses. In fact, any “lies”
that Pettus, or other witnesses, allegedly told were deemed to be minor by the trial court. ECF
No. 18-16 at 13-14. Moreover, the prosecutor conceded in its brief to the Court, as well as briefs
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to the lower courts, that the date of the Farmington Hills robbery was misstated in the trial
transcript, thereby showing that the misstated date was an accident. Finally, using other acts
evidence for purposes other than impeaching Petitioner on cross-examination has already been
deemed to be permissible. Therefore, Petitioner has not shown that the prosecutor’s conduct was
so egregious as to deny him a fair trial.
In regard to his ineffective assistance of counsel claim, counsel cannot be
ineffective for failing to object to prosecutorial misconduct when there is no evidence of
prosecutorial misconduct in the first place. See Strickland, 466 U.S. at 687-91; Millender, 376
F.3d at 525. Moreover, deciding when and whether to object to incidents at trial falls within
counsel’s trial strategy. See Strickland, 466 U.S. at 689 (“A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of hindsight.”);
Balboa-Gallardo, 2012 WL 4923455, at *2 (noting that counsel’s challenged actions are
presumed to be sound trial strategy). Thus, because Petitioner has not shown that his attorney
performed deficiently by not objecting to the above-mentioned allegations of prosecutorial
misconduct, or that this failure to object prejudiced his trial, his ineffective assistance of counsel
claim fails.
vi. Pre-trial Investigations
Petitioner’s next claim is that his counsel failed to conduct several pre-trial
investigations “including potential defense[s,] favorable witnesses[,] and statutes revolving or
relevant to the defense.” ECF No. 8 at 19. Specifically, Petitioner stated that his counsel should
have: (1) used Willie Mae Hamilton as a rebuttal witness regarding the wrongly mentioned date
of the Farmington Hills robbery; and (2) called Officer Alonzi regarding the Keego Harbor bank
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robbrery.5 ECF No. 8 at 20-21.
It is well established that “[c]ounsel has 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 derives from counsel’s basic function, which is “‘to
make the adversarial testing process work in the particular case.’” Kimmelman v. Morrison, 477
U.S. 365, 384 (1986) (quoting Strickland, 466 U.S. at 690). This duty 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). “In 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. “The relevant question is not whether counsel’s choices were strategic, but whether
they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); accord Clinkscale v.
Carter, 375 F.3d 430, 443 (6th Cir. 2004). A purportedly strategic decision is not objectively
reasonable “when the attorney has failed to investigate his options and make a reasonable choice
between them.” Combs v. Coyle, 205 F.3d 269, 288 (6th Cir. 2000) (quoting Horton v. Zant, 941
F.2d 1449, 1462 (11th Cir.1991)).
In regard to Willie Mae Hamilton, Petitioner stated that this witness could have
been used to rebut the prosecution’s “contrived date of the Farmington [Hills] bank robbery.”
ECF No. 8 at 21. This vague statement does not exculpate Petitioner, nor does it cause sufficient
5
While Petitioner mentioned two other witnesses that should have been called (a handwriting expert and
Parole Officer Hughes) and DVD evidence that should have been admitted by his trial attorney, these claims are
omitted from sub-section (vi) because they are raised in separate claims brought by Petitioner under his general
ineffective assistance of counsel claim (sub-sections (vii), (xi), and (x)). ECF No. 8 at 20-21.
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doubt to undercut the prosecution’s case (especially considering that the Farmington Hills
robbery was not the offense for which Petitioner was on trial). See Millender, 376 F.3d at 527
(“A defense counsel has no obligation to call or even interview a witness whose testimony would
not have exculpated the defendant.”). Therefore, trial counsel’s failure to call Willie Mae
Hamilton as a rebuttal witness does not constitute deficient performance. Similarly, Petitioner
has not shown that he was prejudiced by counsel’s failure to call this witness. As such, this
claim fails.
To the extent that Petitioner claims his counsel was ineffective for not calling
Officer Alonzi as a witness at trial, this claim also fails. Petitioner claims that Officer Alonzi
would have testified from his report that the robbery suspect from the Keego Harbor bank
robbery did not match his description since the suspect had afro-like hair (he asserts that he has
been bald since 2004) and the suspected vehicle did not match his car. ECF No. 8 at 20. The
state trial court denied this claim in its denial of Petitioner’s motion for relief from judgment:
Defendant next argues that defense counsel was ineffective because
he failed to call Officer Alonzi as a witness. Defendant claims that
Officer Alonzi would have testified that he prepared to “be on the
lookout,” or “BOLO,” report shortly after the uncharged November
9, 2007 robbery of the National City Bank in Keego Harbor,
indicating that the robbery suspects were driving in a white Dodge
Intrepid and that the driver had “short style afro hair.” Defendant
contends that this description does not match him because he had a
silver Dodge Stratus at the time of the robbery and was bald.
Defendant has submitted a letter from Autotrakk, LLC, dated April
28, 2008, indicating that he leased a 2006 Dodge Stratus in
September 2007. He has also submitted a 2004 OTIS photograph and
a copy of a Michigan identification card with an unclear expiration
date, showing him with a bald head. In addition to arguing that
defense counsel should have called Officer Alonzi as a witness,
Defendant argues that defense counsel was ineffective for failing to
impeach Pettus with the description in the BOLO report and for
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failing to emphasize the differences between the BOLO description
and Defendant’s car and hairstyle. Where, as the prosecutor argues,
a white Dodge Intrepid easily could be mistaken for a silver Dodge
Stratus, defense counsel was not ineffective for failing to bring this
issue to the attention of the fact finder. Furthermore, the photographs
showing Defendant with a bald head are not persuasive where they
were not taken near the date in question. Defendant has not shown
that defense counsel’s failure to call Officer Alonzi deprived him of
a substantial defense. Dixon, supra at 398. Therefore, Defendant has
not shown that he was denied the effective assistance of counsel on
the basis of this issue.
ECF No. 18-16 at 11-12. The Michigan state court appropriately applied federal law to
Petitioner’s case. See Bailey, 271 F.3d at 655. Clearly, Officer Alonzi’s testimony would, at best,
provide clarification of minor discrepancies within the record. Moreover, “[t]he decision wether
to call a witness is generally a matter of trial strategy and, absent a showing of prejudice, the
failure to call a witness does not deprive a defendant of effective assistance of counsel.” Samatar
v. Clarridge, 225 Fed. App’x 366, 372 (6th Cir. 2007); see also Millender, 376 F.3d at 527
(noting that counsel is not required to call or interview a witness that would not have exculpated
the defendant). Since Petitioner has not shown that Officer Alonzi’s testimony would have
exculpated him or likely changed the outcome of his trial, he has not shown that he was
prejudiced by counsel’s decision not to call Officer Alonzi as a witness. Thus, this ineffective
assistance of counsel claim also fails.
vii. Handwriting Expert
Next, Petitioner claims that his counsel was ineffective for not calling a
handwriting expert to testify at his trial: “Failed to endorse a defense favorable expert witness . . .
[handwriting expert] who would have rebutted . . . the state’s key witness and alleged codefendant’s testimony when she testified Petitioner Thomas wrote the robbery notes [Pettus]
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gave the tellers in the uncharged similar act [of] Farmington [Hills] and the current conviction
[of the] Southfield bank robberies.” ECF No. 8 at 19. This claim also fails.
“In order to ‘present an ineffective assistance of counsel claim based on a failure
to call a witness, a defendant must make an affirmative showing as to what the missing evidence
would have been and prove the witness’ testimony would have produced a different result.’”
Walton v. United States, No. 07-10645, 2007 WL 2868696, at *5 (E.D. Mich. Sept. 27, 2007)
(quoting Malcum v. Burt, 276 F. Supp. 2d 664, 679 (E.D. Mich. 2003)). Oftentimes, “in many
criminal cases[,] trial counsel’s decision not to seek expert testimony ‘is unquestionably tactical
because such an expert might uncover evidence that further inculpates the defendant.’” Samatar,
225 Fed. App’x at 372 (quoting State v. Glover, No. CA2001-12-102, 2002 WL 31647905, at *5
(Ohio Ct. App. Nov. 25, 2002)). Moreover, “even if the wisdom of such an approach is
debatable, ‘debatable trial tactics’ do not constitute ineffective assistance of counsel.” Samatar,
225 Fed. App’x at 372 (quoting Glover, 2002 WL 31647905, at *5).
At trial, the defense attorney questioned Detective Dziedzic on cross-examination
about handwriting samples and handwriting experts, rather than calling a handwriting expert to
testify:
Defense Attorney: Did you by any chance have an opportunity to
analyze the handwriting in this case regarding the People’s Exhibit 1
[the handwritten robbery note6]?
Detective Dziedzic: I did not.
Attorney: This was never sent out to a handwriting expert to decide
whether or not either Mr. Thomas or Ms. Pettus did this note?
6
This note was referenced and admitted into evidence during the first day of trial, May 15, 2008. ECF No.
18-3 at 19-20.
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Detective: My understanding is no handwriting analysis was done in
this case.
Attorney: So if I show you – if I show you People’s Exhibit 1, you
wouldn’t know whether or not it was from Ms. Pettus or Mr. Thomas;
is that right?
Detective: That is a [sic] correct.
ECF No. 18-4 at 86. Based on this excerpt, it appears that the defense attorney’s strategy was to
show that the burden was on the prosecution to obtain a handwriting expert to evaluate the
robbery note in order to prove their theory of the case (rather than the burden being on the
defense to obtain such an expert) and to show doubt about whether Petitioner even wrote the
note. Even though this trial tactic ultimately did not work, Counsel’s performance was not
deficient. See Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight.”); see also BalboaGallardo, 2012 WL 4923455, at *2 (noting it is Petitioner’s burden to overcome the presumption
that the attorney’s actions fell within sound trial strategy). Moreover, Petitioner has not
demonstrated that a handwriting expert’s testimony would have provided a different end result in
his case (since for example, even if the handwriting expert showed that the handwriting was not
his, the note would not have exculpated him). See Walton, 2007 WL 2868696, at *5. Therefore,
because Petitioner has not shown that his attorney performed deficiently, or that this deficiency
prejudiced the outcome of his trial, this ineffective assistance of counsel claim fails.
viii. Impeaching Keyana Pettus
Petitioner claims that his attorney was ineffective when he “[f]ailed to impeach
the state’s key witness (Keyana Pet[t]us) with her conflicting . . . extrajudicial, custodial
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interrogation statements, and with her obvious motive, interest, bias to testify to the satisfaction
of the prosecution and to lie about Petitioner Thomas’ involvement in any bank robberies.” ECF
No. 8 at 19. Specifically, Petitioner believes that Pettus lied about: (1) the time and date of the
Comerica bank robbery, and (2) Petitioner picking her up from the bus stop and taking her to
Petitioner’s house on the day of the Comerica robbery (since he claims to have been at the parole
office being drug tested at that time). ECF No. 24 at 6-7. In addition, since Petitioner’s claim XI
is substantially similar to the present claim, it will be raised at this time as well: “The state trial
court’s judicial determination was an unreasonable determination in light of the evidence
presented in the state court when the trial judge determined Pettus’ inconsistent (if not
perjurious) extra-judicial statements made during police interrogation were minor when the
statements compared to Pettus’ trial testimony reflect those inconsistencies were significant.”
ECF No. 8 at 23-24.
While Petitioner believes that admission of Pettus’ interrogation statements would
have impeached her trial testimony, he has not shown that this impeachment would have changed
the outcome of his trial—meaning he was not prejudiced by his attorney’s decision not to admit
this evidence. See, e.g., Gustafson v. Burt, 467 Fed. App’x 434, 438 (6th Cir. 2012) (failing to
impeach witness was not ineffective when jury knew she was testifying on behalf of the
prosecution); Dowdy v. Sherry, No. 06-CV-10735, 2008 WL 5188827, at *8 (E.D. Mich. Dec.
10, 2008) (noting failure to impeach was not ineffective given the evidence against defendant and
other evidence that affected the witness’s credibility). The defense’s theory, as the state trial
court noted, was that “Pettus was not a credible witness and that Pettus committed the Franklin
Bank robbery without his knowledge.” ECF No. 18-16 at 13. This theory was demonstrated in
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the defense attorney’s closing argument when he stated: that Pettus was “streetwise” and knew
she could always blame Petitioner if she got caught robbing banks; that she was biased since she
received a plea agreement if she testified against Petitioner; that she was a “pathological liar;”
that she lied in the police report about her age (claiming she was eighteen but was really sixteen)
and address; and that her answers in her police interrogation were different than her courtroom
testimony. ECF No. 18-7 at 17, 20-22, 33-34; ECF No. 18-16 at 13 (showing the trial court noted
that “defense counsel argued in his closing arguments that Pettus was a “pathological liar” and
that she was “biased and not a good witness” because she was testifying against Defendant as
part of a plea bargain with the prosecutor.”). Moreover, the evidence that Petitioner argues his
defense attorney should have admitted to impeach Pettus would have been cumulative to his own
testimony. ECF No. 18-16 at 13. Therefore, Petitioner has not established that his counsel was
ineffective. Balboa-Gallardo, 2012 WL 4923455, at *2 (noting it is Petitioner’s burden to
overcome the presumption that the attorney’s actions fell within sound trial strategy).
ix. Farmington Hills Objection
Petitioner claims that his counsel was ineffective for failing to “object to the
state’s deliberate, perjurious and fraudulent misrepresentation of the date of the Farmington
[Hills] bank robbery.” ECF No. 8 at 19. Petitioner believes that this point is important because
he was at the parole office on the date of the Farmington Hills robbery. ECF No. 8 at 21. The
state trial court made the following findings in regard to the date of the Farmington Hills robbery:
Keyana Pettus testified at trial that she and Defendant robbed the
Comerica Bank in Farmington Hills on November 7, 2007. Defendant
has submitted an “Investigative Bulletin” from the Farmington Hills
Police Department, however, indicating that the Comerica Bank
robbery occurred on November 8, 2007, at approximately 12:50 p.m.,
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and the prosecution appears to concede in its brief in response to
Defendant’s motion for relief from judgment that the Comerica Bank
robbery occurred on November 8, 2007 . . . . Furthermore, while
Defendant has submitted evidence that he met with his parole officer
at some point on November 8, 2007, he has not shown the time
period of his visit. With his supplemental brief in support of his
motion for relief from judgment, Defendant submitted an e-mail
between two Michigan Department of Corrections employees that
appears to contain information regarding Defendant’s probation. The
document states, “On-Site Urine Test taken this date by MDOC
Employee JOSEPH JOHNSON. Test result Negative.” The last line
of the document states, “Last Updated by foappn1C on 11/08/07 at
8:33:00 from 10.58.36.100.” Defendant contends that this document
shows that he visited the parole officer from 8:30 until 10:58 a.m. on
November 8, 2007, and, therefore, could not have committed the
Comerica Bank robbery. While the document supports Defendant’s
claim that he visited his parole officer on November 8, 2007, the
document merely indicates that it was updated at 8:33 on November
8, 2007, and therefore Defendant must have taken a urine test
sometime before then. The document does not show that Defendant
was at the parole office from 8:33 am until 10:58 am, and therefore
it does not provide an alibi regarding Defendant’s whereabouts at the
time of the Comerica Bank robbery at approximately 12:50 p.m.
Therefore, even if the prosecutor had corrected the testimony,
Defendant has not shown that the correction would have had any
effect on the outcome of the trial.
ECF No. 18-16 at 8-9. The state court’s analysis comports with the federal rules pertaining to
ineffective assistance of counsel. Bailey, 271 F.3d at 655. The purpose of correcting the date, as
the trial court points out, was to provide him with an alibi for the date of the Farmington robbery.
However, this “alibi” likely would not have changed the outcome of his trial given that the
information contained in the documents he presented in support of this alibi were ambiguous.
Consequently, Petitioner has not established that his counsel performed deficiently, or that his
case was prejudiced from any deficient performance. See United States v. Pierce, 403 Fed.
App’x 988, 989 (6th Cir. 2010) (noting it is not ineffective assistance if counsel does not raise
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erroneous claims); see also Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) (“Counsel
was not required to raise meritless arguments to avoid a charge of ineffective assistance of
counsel.”). As such, Petitioner’s claim fails.
x. Parole Officer Hughes
In a related claim, Petitioner alleges that his counsel was ineffective by failing to
call Parole Officer Hughes as a witness during his trial in order to correct the date that the
Farmington Hills robbery occurred. ECF No. 8 at 19. The Michigan trial court considered this
claim in its denial of Petitioner’s motion for relief from judgment:
Defendant next argues that he was denied the effective assistance of
counsel due to defense counsel’s cumulative errors. Defendant first
argues that defense counsel was ineffective because he failed to
investigate and call parole officer Antoinette Hughes as an alibi
witness to show that he could not have committed the uncharged prior
robbery of Comerica Bank on November 8, 2007. “Decisions
regarding what evidence to present, whether to call witnesses, and
how to question witnesses are presumed to be matters of trial
strategy.” People v. Horn, 279 Mich App 31, 39; 755 NW2d 212
(2008). The failure to call a particular witness amounts to ineffective
assistance of counsel only if it deprives the defendant of a substantial
defense. People v. Dixon, 263 Mich App 393, 398; 688 NW2d 308
(2004). Defendant has not submitted an affidavit from Ms. Hughes
and, as explained above, Defendant has not shown the time[]frame of
his visit to his parole officer on November 8, 2007. Under these
circumstances, Defendant has not shown that the failure to call Ms.
Hughes as a witness denied him a substantial defense. Accordingly,
Defendant has not shown that defense counsel was ineffective for
failing to call Ms. Hughes as a witness, or that appellate counsel was
ineffective for failing to raise an ineffective assistance of counsel
issue on this basis on appeal.
ECF No. 18-16 at 10-11. The state court properly applied federal laws to the facts of Petitioner’s
case. Bailey, 271 F.3d at 655. As previously mentioned, the decision to call a witness is a matter
within counsel’s trial strategy that, absent a showing of prejudice, does not make counsel’s
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performance deficient. Samatar, 225 Fed. App’x at 372; see also Millender, 376 F.3d at 527
(noting that counsel is not required to call or interview a witness that would not have exculpated
the defendant). Since Petitioner’s theory for having Parole Officer Hughes testify is to have her
corroborate his whereabouts on the day of the Farmington robbery, and that theory has been
discredited by the lower court after applying appropriate law, it follows that counsel’s
performance was not deficient and it similarly did not prejudice Petitioner’s case. See Walton,
2007 WL 2868696, at *5. Therefore, this claim also fails.
xi. Supporting DVDs
Petitioner claims that counsel was ineffective for failing to present DVDs of
Pettus’ custodial interrogation as well as documents that he believes would refute the
prosecutor’s theory that he was involved in any robberies. Again, the state trial court considered
and dismissed this claim in its denial of Petitioner’s motion for relief from judgment:
Defendant next argues that defense counsel was ineffective because
he failed to have admitted into evidence a DVD of Pettus’ statement
to the police after the Franklin Bank robbery. While the DVD itself
was not admitted into evidence, a police report regarding Pettus’
interview by Detective Litteracki [sic] was admitted into evidence.
Defense counsel cross-examined Pettus regarding inconsistencies
between her trial testimony and her statement to the police and argued
that Pettus lied to the police and was not credible. The trial court
noted the inconsistencies between Pettus’ trial testimony and
statement to the police, but found that the inconsistencies were minor.
Where a police report regarding Pettus’ statement to the police was
admitted into evidence, Defendant has not shown that the failure to
introduce the DVD itself constituted ineffective assistance of counsel.
ECF No. 18-16 at 13-14. The trial court appropriately summarized the scenario surrounding the
DVDs at trial and properly applied the law of ineffective assistance of counsel to Petitioner’s
case. Bailey, 271 F.3d at 655. Defense counsel repeatedly questioned Officer Dziedzic about the
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content of the report and associated DVD interrogation of Pettus and ultimately decided that
admitting the DVD into evidence was not necessary based on the testimony stemming from the
questions about the police report. ECF No. 18-4 at 80-103. Moreover, the record implies that
counsel reviewed the videos, understood their content, and opted for another way to elicit the
content of those videos (showing he elected a trial strategy). Therefore, since Petitioner has not
shown how this evidence would exculpate him or how counsel’s failure to admit the DVDs into
evidence constituted deficient performance, this claim also fails.
xii. Miranda-less Confession
Petitioner next claims that his counsel was ineffective when he elicited testimony
from a state witness regarding a Miranda-less confession made by Petitioner that helped satisfy
the elements of the offenses for which he was charged. ECF No. 8 at 19. However, upon review
of the trial transcript, Petitioner appears to have misstated or misinterpreted his attorney’s actions
at trial. To support his position, Petitioner cited to his counsel’s cross-examination of Detective
Dzeidzic, which stated:
Defense Attorney: You indicate here that he [Petitioner] reads and
rights and he was given his Miranda warnings?
Detective Dziedzic: Yes.
Attorney: Early on?
Detective: Yes, sir.
....
Attorney: Did he sign the Miranda warnings?
Detective: No, he did not.
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....
Attorney: In fact[,] he was responding appropriately enough to say to
you that hey, I don’t want to sign the Miranda warnings?
Detective: Correct.
Attorney: But you don’t find that to be an indication that you should
stop interrogating Mr. Thomas?
Detective: I do not.
Attorney: Even when an individual in custody says they don’t want
to sign the Miranda warnings, you still want them to do the
interview?
Detective: Yes and let me explain why I say yes.
Attorney: No, I don’t want you to explain it.
....
Attorney: Your job is to interview the prospective suspect and find
out if they’re going to give you a confession or something?
Detective: Basically, yes.
Attorney: Well, he couldn’t give you a confession because he refused
to sign the Miranda warnings, right?
Detective: That’s not right.
ECF No. 18-4 at 78, 81, 88. Based on these statements, it does not appear that Petitioner’s trial
attorney elicited any testimony regarding a Miranda-less confession; rather, the crossexamination simply clarified that Petitioner refused to sign a Miranda warning despite verbally
being informed of his rights. This line of questioning does not establish any elements of either for
the charges for which Petitioner was convicted (as Petitioner argues).
Moreover, Petitioner cites Edwards v. Arizona, 451 U.S. 477 (1981) to support his
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position that his Miranda-less confession should not have been mentioned at trial. However, this
concept is not what Edwards stands for; rather, the Edwards court held that after a suspect has
been provided his Miranda warnings and then requests counsel, “a valid waiver of that right [to
counsel] cannot be established by showing only that [the suspect] responded to further policeinitiated custodial interrogation even if [the suspect] has been advised of his rights.” Edwards,
451 U.S. at 484. At no point in Petitioner’s trial was it uncovered that he requested counsel after
being told his Miranda rights. Rather, Petitioner simply indicated that he would not sign the
Miranda warnings, yet continued to talk to law enforcement.
Overall, Petitioner has not demonstrated that his attorney performed deficiently by
asking the above-mentioned questions to Detective Dziedzec on cross-examination. The line of
questioning appears to have been an attempt by Petitioner’s attorney to show police misconduct.
While this strategy may not have worked, it does not mean that counsel’s performance was
deficient. Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight.”); see also Balboa-Gallardo,
2012 WL 4923455, at *2 (noting it is Petitioner’s burden to overcome the presumption that the
attorney’s actions fell within sound trial strategy). Therefore, Petitioner’s ineffective assistance
of counsel claim fails.
xiii. Photographs
Petitioner claims that his trial counsel was ineffective when he “[p]rovided (thus
introduced) the highly prejudicial and irrelevant nude or sexual photographs of Petitioner
Thomas and Keyana Pettus thereby establishing Petitioner Thomas was at least guilty of CSC 4th
degree or 1st degree.” ECF No. 8 at 19. The photographs Petitioner is referring to were
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produced by defense counsel during discovery and then introduced during trial by the
prosecution in order to question Keyana Pettus about her relationship with Petitioner (which the
prosecutor used for her theory of the case to prove that Petitioner knew about, and was an
accomplice to, the bank robbery). ECF No. 18-5 at 18-28. Therefore, since defense counsel is
supposed to participate in the discovery process, the Court presumes Petitioner’s claim stems
from his counsel’s failure to object when the prosecutor introduced these photographs during
trial.
As previously mentioned, great deference is afforded to an attorney’s decisions
relating to trial strategy, such as choosing when to object. See, e.g., Lucas, 179 F.3d at 420
(“‘Only in a rare case’ will a court find ineffective assistance of counsel based upon a trial
attorney’s failure to make an objection . . . .”) (citation omitted); Adams, 2009 WL 2515709, at
*8 (“Trial counsel’s failure to object is not usually deficient performance for purposes of an
ineffective assistance of counsel claim.”) (citation omitted). This is because, for example, an
attorney may have chosen not to object in order to “avoid highlighting those comments.” Butler,
1995 WL 73132, at *9.
Defense counsel, in this case, may have chosen not to object because he did not
want to highlight these photographs to the judge, or because he wanted to use these photographs
to bolster the defense’s theory of the case. (that theory being that Keyana Pettus was a bad
witness and not credible given her activities of daily life). ECF No. 18-7 at 16-18, 20, 26 (noting
that during closing arguments, defense counsel called Pettus a liar, hooker, and dancer in order to
diminish her credibility). Consequently, Petitioner has not demonstrated that his attorney
performed deficiently by not objecting to the prosecutor’s introduction of these photographs
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during trial. Thus, this claim fails.
xiv. Knowledge of Case Law and the Mere Presence Jury Instruction
Petitioner’s final two ineffective assistance of counsel claims state that counsel
was ineffective: (1) by not knowing about the law that would have allowed a handwriting expert
to testify during his trial, which he believes would have ultimately allowed him to establish the
“mere presence” defense (ECF No. 8 at 19), and (2) by failing to “request an instruction on
merely presence pursuant to CJI2d 8.5" (ECF No. 8 at 20).
“Failure to request jury instructions for which there is an evidentiary basis may
constitute ineffective assistance of counsel warranting collateral relief when this failure
inadvertently loses the defendant’s only defense which had a strong likelihood of success.
Millender, 187 F. Supp. 2d at 874 (citing United States v. Span, 75 F.3d 1383, 1388-90 (9th Cir.
1996)). On the other hand, failing to request an additional instruction “is not ineffective
assistance when the evidence, the general instruction given, and counsel’s closing argument,
including his examples and stress on common sense, put the issue squarely before the jury.” Id.
(citing Weighall v. Middle, 215 F.3d 1058, 1063 (9th Cir. 2000)). In general, “there is a strong
presumption that counsel was adequate; an act or omission only meets the standard of
ineffectiveness if it was ‘outside the wide range of professionally competent assistance.’”
Walton, 2007 WL 2868696, at *5 (quoting Strickland, 466 U.S. at 690).
Petitioner has not provided any evidence to demonstrate that his attorney was
unaware of, or overlooked, law applicable to his case. In fact, upon viewing defense counsel’s
closing arguments and motions made just prior, it is clear that Petitioner’s attorney was versed in
the law of Petitioner’s case and able to argue it in Petitioner’s favor. See ECF No. 18-7 at 1-36.
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Moreover, the defense’s theory of the case essentially was “mere presence,” so Petitioner did not
suffer any prejudice by his attorney not having explicitly referred to his defense as the “mere
presence” defense. Walton, 2007 WL 2868696, at *5. Therefore, Petitioner has not demonstrated
that his counsel’s performance fell below the standard of professionally competent assistance for
purposes of ineffective assistance of counsel. As such, this claim fails.
I. Trial Transcript
Petitioner’s claim IX is that he was denied “the right to an appeal of right and the
effective assistance of appellate counsel . . . when he was denied accurate transcripts because
segments of the trial transcripts (basic tools of an appeal) were altered to reflect testimony
diverse from the actual trial testimonies, thereby constructively constituting no transcript at all.”
ECF No. 8 at 22-23.
Courts “must presume that the trial transcript accurately reflects the proceedings
in the trial court.” Williams v. Romanowski, No. 2:06-CV-12670, 2008 WL 6875005, at *43
(E.D. Mich. Jan. 29, 2008). Inaccuracies or incomplete trial transcripts are not per se denials of
the due process right to a fair appeal. Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986). To
show the denial of an appeal, “a habeas petitioner must show that prejudice, [meaning]
something more than gross speculation, resulted . . . .” Range v. Berghuis, No. 09-10945, 2015
WL 1967030, at *14 (E.D. Mich. Apr. 30, 2015).
Here, while Petitioner points to places in which he believes the trial transcript was
materially altered, it is clear upon review of the record that these changes were minor.
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Specifically, Petitioner points to four places in the transcript that were altered.7 The first
inconsistency arises from Petitioner’s exhibits 13 and 14. On document 13, it states:
A: The officer that shocked me, while the taser is in me, we on top of
the hill. He’s telling me, “Don’t move.”
Q: Right. Then what happened?
ECF No. 8 at 60. In comparison, document 14 states:
A: The officer that shocked me –
Q: Yes.
A: While the taser is in me –
Q: Yes.
A: We on top of the hill.
Q: Right.
A: He’s telling me, “Don’t move.”
Q: Right. Then what happened?
ECF No. 8 at 62. While Petitioner is correct in that these two portions of the transcript were
transcribed differently, he is incorrect in claiming that this change could have affected his direct
appeal. In fact, the three other changes in the transcript that Petitioner references were also
insignificant changes. See ECF No. 8 at 64-66 (omitting from the transcript the Judge’s
interjection asking that the question be repeated); ECF No. 8 at 68-70 (changing a “yes, sir” to a
“No, sir” in response to a date); ECF No. 8 at 72-74 (changing a “yes, sir” to a “no, sir” in
7
Petitioner noted that he has two copies of his transcript because the court reporter Gwendolyn Finley
transcribed a segment of his testimony on May 28, 2008, and then made a second transcription of the entire trial
transcript on September 12, 2008. ECF No. 8 at 22. In addition, the Court will only address these four instances
under claim IX, despite there being more instances raised, since these claims are the only ones that have specific
exhibits and citations for the Court to reference.
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response to whether the backseat of the car was down). The changes made are clearly minute and
irrelevant to the overall outcome of his case given that the content of the transcripts remained the
same.
Because Petitioner has not provided any other evidence to support his claim that
the transcripts were improperly transcribed, other than his own word, the Court must deny this
habeas claim. See Norris v. Schotten, 146 F.3d 314, 333 (6th Cir. 1998) (“Besides his own
speculations, appellant also does not present any reason why we should suspect these transcripts
to be inaccurate.”).
III.
This Court concludes that all of Petitioner’s claims are without merit. Should
Petitioner choose to appeal this action, the Court must determine whether a certificate of
appealability may be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of
appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Each issue must be considered
under the standards set forth in Slack v. McDaniel, 529 U.S. 473 (2000). Under Slack, to warrant
a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at
484. The Court examined each of Petitioner’s claims under the Slack standard and concludes
that reasonable jurists could not find that a dismissal of each of Petitioner’s claims was debatable
or wrong. Therefore, the Court denies a certificate of appealability to each issue raised.
For the same reasons the Court dismissed this action, the Court will certify that
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any appeal by Petitioner from the Court’s decision and judgment would be frivolous and not
taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24. Therefore, any
application by Petitioner for leave to proceed in forma pauperis on appeal is hereby DENIED.
In summary, Petitioner’s motion for post-conviction relief (ECF No. 1; ECF No.
8) pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE. As a
result, Petitioner’s motion for time to file a brief (ECF No. 23) and motion for an evidentiary
hearing (ECF No. 26) are denied as moot. A judgment consistent with this Opinion and Order
will be entered.
SO ORDERED.
__/s/ R. Allan Edgar_______________________
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE
Dated: 1/19/2016
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