Nobles v. McQuiggin

Filing 19

OPINION and ORDER DENYING re 16 MOTION for Evidentiary Hearing on Petitioner's Brady and Strickland Claims, DENYING 1 Petition for Writ of Habeas Corpus, DENYING 17 MOTION to conduct discovery on the Detroit Police Departmen t, the Wayne County Medical Examiner's Office, Detroit Fire/EMS Services and St. John's Hospital& GRANTING IN PART CERTIFICATE OF APPEALABILITY & GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KELLY NOBLES,
Petitioner,
v.

Civil Action No. 2:11-cv-10801
HON. PATRICK J. DUGGAN

GREG MCQUIGGIN,
Respondent.
______________________/
OPINION AND ORDER (1) DENYING PETITION FOR A
WRIT OF HABEAS CORPUS; (2) DECLINING IN PART AND GRANTING IN
PART TO ISSUE A CERTIFICATE OF APPEALABILITY; (3) GRANTING
PERMISSION FOR AN APPLICATION FOR LEAVE TO PROCEED
ON APPEAL IN FORMA PAUPERIS; AND, (4) DENYING MOTIONS
FOR EVIDENTIARY HEARING AND DISCOVERY
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254.
Petitioner Kelly Nobles is incarcerated by the Michigan Department of Corrections,
currently housed at the Chippewa Correctional Facility in Kincheloe, Michigan, where he
is serving a life sentence for first-degree murder. Petitioner also was convicted of five
counts of assault with intent to commit murder, one count of discharging a firearm toward
a building, one count of felony firearm, and one count of carrying a concealed weapon.
He was found not guilty on one count of obstruction of justice and one count of
subornation of perjury. Petitioner was convicted of the above offenses in 2002, following
a jury trial in the Circuit Court for Wayne County, Michigan. He was sentenced on June
27, 2002.

On February 28, 2011, Petitioner filed this habeas petition, pro se, challenging the
validity of his convictions. Respondent Greg McQuiggin, through the Michigan Attorney
General’s Office, filed a motion for summary judgment, arguing that the petition was not
timely under 28 U.S.C. § 2244(d)(1). On November 21, 2011, this Court issued an
opinion and order denying Respondent’s motion, concluding that Petitioner was entitled
to equitable tolling and ordering Respondent to file an answer to the petition. Nobles v.
McQuiggin, No. 2:11-cv-10801, 2011 WL 5838492, at *1-3 (E.D. Mich. Nov. 21, 2011).
Respondent filed his answer on January 20, 2012. (ECF No. 11.) Petitioner, with the
assistance of counsel, filed a reply brief on April 3, 2012.1 (ECF No. 15.)
Having reviewed the pleadings and the record, the Court concludes that Petitioner
is not being held in “violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). Therefore, the Court denies the petition. The Court declines to
issue Petitioner a certificate of appealability with respect to all but one issue raised in his
petition, but grants him permission to file an application for leave to proceed on appeal in
forma pauperis should he choose to appeal the Court’s ruling.
Petitioner also filed motions for an evidentiary hearing and discovery. (ECF Nos.
16; 17.) In light of the Court’s decision, it denies the motions.

1

On February 5, 2012, counsel entered his appearance on behalf of Petitioner and the

parties thereafter stipulated to an extension of time for the reply brief to be filed. (ECF
Nos. 13, 14.)
2

Background
The Michigan Court of Appeals summarized the facts underlying Petitioner’s
convictions and, in accordance with 28 U.S.C. § 2254(e)(1), those facts are presumed
correct on habeas review. The facts are as follows:
Defendant’s convictions arise from the December 31, 2000, shooting at the
Unique Coney Island on Gratiot near Outer Drive in Detroit. Kolby
Bohannon, his brother Rockmound Bohannon, Roderick Jeter, and
defendant drove to the Coney Island in search of some men who had fought
with Kolby Bohannon earlier that day. As Kolby Bohannon entered the
restaurant to speak with the men, Randall Hall and Ladarius Edwards, he
was struck and killed by gunfire when one of the men who accompanied
him to the Coney Island fired repeatedly into the restaurant. The
prosecution presented testimony from at least two witnesses identifying
defendant as the shooter, while defendant maintained that the decedent’s
brother was responsible for the shooting.
People v. Nobles, No. 258353, 2006 WL 1479561, at *1 (Mich. Ct. App. May 30, 2006)
(unpublished).
Petitioner raises the following five claims in his habeas petition:
(1)

His rights under the Confrontation Clause were violated when Rod
Jeter’s statement was used to identify him as the shooter;

(2)

The prosecutor committed misconduct by using Jeter’s statement
against him, by commenting on Petitioner’s Fifth Amendment right
to remain silent, and by badgering him;

(3)

The State failed to exercise due diligence in locating witness
Ladarius Edwards;

(4)

The State suppressed material exculpatory evidence; and

(5)

Trial counsel was ineffective for failing to investigate the
“nineteenth bullet casing.”

3

Respondent claims that part of Petitioner’s second claim and his fourth and fifth claims
are procedurally defaulted. The Court will address the procedural default issue first and
then the merits of Petitioner’s remaining claims.
Standard of Review for Habeas Cases
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes
the following standard of review for habeas cases. Section 2254(d) states:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law, or if the state court decides a case differently than the Supreme Court has
on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06,
120 S.Ct. 1495, 1519-20 (2000). An “unreasonable application” occurs when a state
court has applied clearly established federal law in an objectively unreasonable manner.
Id. at 409, 120 S.Ct. at 1521. Therefore, a federal habeas court may not issue a writ if it
concludes the state court applied clearly established federal law merely erroneously or
incorrectly. Id. at 411, 120 S.Ct. at 1522. The application must be unreasonable. Id.
4

The Supreme Court has explained that “[a] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041 (2003). The
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,’
and ‘demands that state-court decisions be given the benefit of the doubt.’” Renico v.
Lett, 559 U.S. 776, – , 130 S.Ct. 1855, 1862 (2010) (quoting Lindh v. Murphy, 521 U.S.
320, 333 n.7, 117 S.Ct. 2059, 2067 n.7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24, 123
S.Ct. 357, 360 (2002) (per curiam)).
“[A] state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. – , – , 131 S.Ct. 770, 786 (2011) (citing
Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 2149 (2004)). The Sixth
Circuit recently observed that “[t]his is a very high standard, which the [Supreme] Court
freely acknowledges.” Peak v. Webb, 673 F.3d 465, 472 (6th Cir. 2012). The Peak Court
suggested that Harrington holds that the review standard “is even more constricted than
AEDPA’s plain language already suggests.” Id. The Harrington Court in fact warned
“that even a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” 131 S.Ct. at 786 (citation omitted).
As the Sixth Circuit interprets Harrington, under § 2254(d) “[a] habeas court must
determine what arguments or theories supported or . . . could have supported [] the state
court’s decision; and then it must ask whether it is possible fairminded jurists could
5

disagree that those arguments or theories are inconsistent with the holding in a prior
decision of [the Supreme] Court.” Id. (internal quotation omitted). Additionally, habeas
review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563
U.S. – , – , 131 S.Ct. 1388, 1398 (2011).
Procedural Default Issue
Applicable Law
A federal court applies a three-part test to determine if a state prisoner has
procedurally defaulted his federal claims in state court. Willis v. Smith, 351 F.3d 741, 744
(6th Cir. 2003). First, there must be a firmly established, state procedural rule which is
applicable to the petitioner’s claim and the petitioner must not have complied with the
rule. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 857-58 (1991). Second, it
must fairly appear that the last state court to which the petitioner sought review relied on
the procedural rule as a basis for its decision to refuse to review his or her federal claims.
Coleman v. Thompson, 501 U.S. 722, 740, 111 S.Ct. 2546, 2560 (1991). Third, the
procedural default must be an “adequate and independent” state ground on which the state
can rely to foreclose review of a federal claim. Cnty. Court of Ulster Cnty. v. Allen, 442
U.S. 140, 148, 99 S.Ct. 2213, 2220 (1979). If those three prerequisites are met, then the
petitioner has procedurally defaulted his federal claims in state court unless he shows
“that there was cause for the default and prejudice resulting from the default, or that a
miscarriage of justice will result from enforcing the procedural default in the petitioner’s
case.” Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000) (citing Wainwright v. Sykes,
6

433 U.S. 72, 87, 90-91, 97 S. Ct. 2497 (1977)).
Petitioner’s Second Ground, In Part
Respondent argues that Petitioner’s second claim, as it relates to the prosecutor’s
question about lying to the police and referring to Petitioner as the “enforcer,” is
procedurally defaulted because Petitioner failed to timely object at trial and the state
appellate court relied on that procedural ground in declining to review the claim and
reviewed it for plain error only. The Court agrees with Respondent’s analysis. The
failure to properly raise and preserve issues in the trial court by contemporaneous
objection is a generally recognized, firmly established, independent and adequate state
law ground for refusing to review trial errors. Coleman, 501 U.S. at 75-51, 111 S. Ct. at
2565. Michigan has such a rule under which a defendant’s failure to contemporaneously
object to trial errors “leads to the claim[] being waived and reviewed solely for plain
error.” Taylor v. McKee, 649 F.3d 446, 450 (6th Cir. 2011) (citations omitted). Plain
error review by a state appellate court constitutes enforcement of a state’s
contemporaneous objection rule. Williams v. Bagley, 380 F.3d 932, 968 (6th Cir. 2004)
(citations omitted).
Petitioner did not timely object to the alleged prosecutorial misconduct at trial and
therefore failed to comply with the rule. The procedural rule was enforced by the court of
appeals, reviewing the claim for plain error only. See Nobles, 2006 WL 1479561, at *4.
Thus the Court may not consider the merits of this claim unless Petitioner demonstrates
cause for his default and prejudice resulting from the claimed error or that the Court’s
7

failure to review the claim would result in a fundamental miscarriage of justice. See
supra. Petitioner does not meet this burden.
Petitioner argues that his trial counsel’s failure to object to the prosecutor’s
conduct constituted ineffective assistance and was cause for the default. To show that
counsel was ineffective under constitutional standards, a habeas petitioner must satisfy
the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064 (1984). This test cannot be satisfied where the claims are erroneous or
meritless, as counsel is not ineffective for failing to raise frivolous claims. See Ludwig v.
United States, 162 F.3d 456, 459 (6th Cir. 1998); McQueen v. Scroggy, 99 F.3d 1302,
1328 (6th Cir. 1996) (counsel not ineffective for failing to raise erroneous claims),
overruled on other grounds by In re Abdur’Rahman, 392 F.3d 174 (6th Cir. 2004) (en
banc). Thus, the Court must determine whether the prosecutor’s comment on Petitioner’s
silence and reference to him as the “enforcer” during closing argument constituted
misconduct to which trial counsel should have objected.
In evaluating a claim of prosecutorial misconduct, “[t]he relevant question is
whether the prosecutor[’s] comments ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181,
106 S.Ct. 2464, 2471 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94
S.Ct. 1868, 1871 (1974)). Courts in the Sixth Circuit use a two-step test to determine
whether prosecutorial misconduct amounted to a denial of due process. Boyle v. Million,
201 F.3d 711, 717 (6th Cir. 2000). The court must first determine whether the
8

prosecutor’s statements were improper. Id. If the court finds one or more statements
improper, it must then “‘look to see if they were flagrant and warrant reversal.’” Id.
(quoting United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999)). Flagrancy is
determined by considering the strength of the evidence and whether the statements tended
to mislead the jury or prejudice the defendant, were isolated or part of a pattern, or were
deliberate or accidental. Id. To add, the Fifth Amendment “forbids either comment by
the prosecution on the accused’s silence or instructions by the court that such silence is
evidence of guilt.” Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233 (1965).
Griffin thus prevents a prosecutor or trial judge “from suggesting to the jury that it may
treat the defendant’s silence as substantive evidence of guilt.” Baxter v. Palmigiano, 425
U.S. 308, 319, 96 S.Ct. 1551, 1558 (1976).
In this case, during his cross-examination, Petitioner volunteered that he and his
attorney went to the police station to discuss the shooting. This colloquy followed:
[PROSECUTOR]: So you’re telling this Jury that you talked to Homicide
about the Coney Island?
[PETITIONER]: Yes.
[PROSECUTOR]: Is that your assertion?
[PETITIONER]: Yes, I talked to them.
[PROSECUTOR]: You remember you’re under oath here, sir?
[PETITIONER]: Yes.
[PROSECUTOR]: And you’re sure you don’t want to change that answer?

9

[PETITIONER]: I don’t have to change it. All the questions they asked me
that my attorney advised me to answer, I answered them. What my attorney
advised me not to answer, I did not answer.
[PROSECUTOR]: So that’s just to say now, first of all, you say, I talked to
the police on – when I turned myself in on February 7th. Now you’ve
changed it. Oh, I only answered certain things with my right to counsel?
[PETITIONER]: No, you changed it. I didn’t go in there to be quiet. I’m
quite sure that they asked me a couple of questions.
[PROSECUTOR]: Oh, your name? Other than your name? Other than
your name?
[PETITIONER]: Well, your first right is you have a right to remain silent.
My lawyer told me what to answer and what not to answer. I would rather
listen to my attorney than some police or anybody trying to lock me up. My
attorney is there to protect me and to watch me and to make sure what’s
best for me and that’s what I did.
[PROSECUTOR]: But you didn’t do anything. You sat in the car and
ducked?
[PETITIONER]: That’s right.
(5/7/02 Trial Tr. at 61-62.) The Michigan Court of Appeals concluded that these
statements by the prosecutor were not improper, stating:
After reviewing the trial record, we conclude that defendant has failed to
substantiate that the prosecutor engaged in any improper cross-examination
or argument, let alone that any misconduct prejudiced his right to a fair trial
or amounted to plain error that affected his substantial rights. * * * the
prosecutor did not improperly comment on or question defendant regarding
his constitutional right to remain silent when he [Petitioner] injected the
topic into the proceedings by his testimony.
Nobles, 2006 WL 1479561, at *4.
The Court finds that the state court’s decision is neither contrary to nor an

10

unreasonable application of Supreme Court precedent. While a prosecutor may not
ordinarily comment on a defendant’s post-arrest silence, a prosecutor may use the fact of
post-arrest silence to contradict a defendant who testifies to an exculpatory version of
events and claims to have told the police the same version upon arrest. See Gravley v.
Mills, 87 F.3d 779, 786-87 (6th Cir. 1996) (citations omitted). In such a situation, the fact
of the earlier silence is not being used to impeach the defendant’s exculpatory story, but
to challenge the defendant’s testimony as to his behavior following his arrest. Id.; see
also Doyle v. Ohio, 426 U.S. 610, 619 n.11, 96 S.Ct. 2240, 2246 n.11 (1976). “‘The
prohibition against reference to post-arrest silence does not allow the defendant to freely
and falsely create the impression that he has cooperated with police when, in fact, he has
not.’” Britt v. Howes, No. 06-CV-14751, 2009 WL 998400, at *14 (E.D. Mich. Apr. 14,
2009) (quoting Earnest v. Dorsey, 87 F.3d 1123, 1135 (10th Cir. 1996) (quoting United
States v. Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975)) (internal quotation marks
omitted).
Because the prosecutor did not improperly comment on Petitioner’s silence, trial
counsel is not ineffective for failing to object to the prosecutor’s questions. See
McQueen, 99 F.3d at 1328 (defense counsel not deemed deficient for failing to make a
futile objection or motion). Similarly, counsel was not ineffective for failing to object to
the prosecutor’s reference to Petitioner as the “enforcer” in closing arguments, as this
description was a valid inference from the testimony presented at trial. See United States
v. Jackson, 473 F.3d 660, 672 (6th Cir. 2007). Thus, ineffective assistance cannot be
11

deemed cause for Petitioner’s procedural default with respect to this claim. Where a
petitioner fails to establish cause for his procedural default, the court need not address the
issue of prejudice. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 2666 (1986);
Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983).
Petitioner also fails to show that the failure to consider the claim will result in a
fundamental miscarriage of justice, as he does not show actual innocence. See Schlup v.
Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 864 (1995) (holding that the miscarriage of
justice exception to the procedural default rule should apply only to cases where there is a
likelihood of convicting a person who is actually innocent). “‘[A]ctual innocence’ means
factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,
623, 118 S.Ct. 1604, 1611 (1998) (citation omitted). “To be credible, [a claim of actual
innocence] requires [the] petitioner to support his allegations of constitutional error with
new reliable evidence– whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence– that was not presented at trial.”
Schlup, 513 U.S. at 324, 115 S.Ct. 851. Petitioner has not done so here. In fact,
Petitioner has pointed to no new evidence that the jury was not given.
Accordingly Petitioner’s second ground as it relates to his Fifth Amendment claim
and the prosecutor’s referral to him as the “enforcer” is barred by procedural default and
does not warrant habeas relief.
Petitioner’s Fourth and Fifth Grounds
In his fourth ground in support of his request for habeas, Petitioner argues that the
12

prosecutor withheld exculpatory evidence in the form of a “nineteenth shell casing” that
was cataloged at the scene. In his fifth ground, he alleges that trial counsel was ineffective
for failing to investigate that missing evidence. Respondent argues that these claims are
procedurally defaulted because Petitioner raised them for the first time when he filed his
motion for relief from judgment with the trial court. The trial court relied on a procedural
bar in refusing to review the claims, and the state appellate courts denied relief citing
Petitioner’s failure “to meet the burden of establishing entitlement to relief under MCR
6.508(D).” People v. Nobles, No. 293121 (Mich. Ct. App. Nov. 23, 2009) (unpublished);
People v. Nobles, 486 Mich. 1046, 783 N.W.2d 381 (2010) (unpublished table decision).
With respect to the second and third elements of the procedural default rule, it was
once established in this Circuit that simply citing Michigan Court Rule 6.508(D)
constituted an adequate and independent ground. In 2010, however, the Sixth Circuit
held that Michigan’s standard orders, as stated above, were “unexplained” and
“ambiguous as to whether they refer to procedural default or denial of relief on the
merits.” Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010). Consequently, under
Guilmette, the Court now must “look through” the unexplained orders to the trial court’s
decision to determine the basis for the denial of post-conviction relief. See Ylst v.
Nunnemaker, 501 U.S. 797, 803-05, 111 S.Ct. 2590, 2594-96 (1991).
In this case, looking through the appellate order to the trial court, it is clear that the
trial court denied Petitioner relief on the basis of a procedural bar, i.e., Michigan Court
Rule 6.508(D)(3), when it stated that he had not shown good cause and actual prejudice to
13

excuse his default. Nobles, No. 01-004225-01, at 11-15. Thus the trial court– the last
state court to issue a reasoned decision on the matter– clearly invoked a procedural bar in
denying Petitioner’s claims. This procedural rule was “an adequate and independent state
ground” on which the state could rely to foreclose review. Amos v. Renico, 683 F.3d 720,
733 (6th Cir. 2012). It follows that federal habeas review of these claims is barred unless
Petitioner can meet one of the two exceptions to the procedural-default doctrine.
To establish cause for the default, Petitioner asserts that his appellate counsel was
ineffective for failing to raise these claims during his direct appeal. For the reasons that
follow, appellate counsel was not ineffective under the Strickland standard. See Whiting
v. Burt, 395 F.3d 602, 617 (6th Cir. 2005) (the Strickland standard applies as well to
claims of ineffective assistance of appellate counsel) (citation omitted).
A defendant does not have a constitutional right to have every non-frivolous issue
raised on appeal. “‘[W]innowing out weaker arguments on appeal and focusing on’ those
more likely to prevail, far from being evidence of incompetence, is the hallmark of
effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 2667
(1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3312-13 (1983)).
As the Supreme Court has observed, it is difficult to demonstrate that an appellate
attorney has violated the performance prong where the attorney presents one argument on
appeal rather than another. Smith v. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 766
(2000). In such cases, a petitioner must demonstrate that the issue not presented “was
clearly stronger than issues that counsel did present.” Id. A petitioner is required to show
14

that appellate counsel was so thoroughly ineffective that defeat was “snatched from the
jaws of victory.” United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992), cert.
denied, 508 U.S. 975 (1993). Petitioner fails to make such a showing here.
As an initial matter, when addressing Petitioner’s claim in his post-conviction
motion that evidence was withheld, the trial court found that there in fact was no
nineteenth shell casing. The trial court explained that a bullet with tag number 615282
was erroneously cataloged as a “casing.” Petitioner’s claim, therefore, was based on a
clerical error; there was no evidence withheld. As such, it would have been futile for
appellate counsel to have raised this claim. Counsel may have realized that and made a
strategic decision not to pursue the claim.
For these reasons, the Court concludes that review of Petitioner’s fourth and fifth
grounds for habeas relief also are precluded by his procedural default.
The Merits of Petitioner’s Remaining Claims
Confrontation Clause claim
In his first ground for habeas relief, Petitioner argues that the admission of Rod
Jeter’s prior statement to the police identifying Petitioner as the shooter violated his rights
under the Confrontation Clause. Jeter was unavailable for trial because he previously had
been murdered.
During his cross-examination of Petitioner, the prosecutor introduced a statement
Jeter made to the police implicating Petitioner in the shooting and the fact that the
statement was contained in Petitioner’s discovery materials to impeach Petitioner’s
15

testimony that he was unaware of any such statement. Specifically, Petitioner had said:
“Roderick Jeter to my knowledge never told Homicide that I shot no gun.” (5/7/02 Trial
Tr. at 77.) This statement followed the prosecutor’s attempts to show that Petitioner
attempted to obstruct justice and suborn perjury by trying to deter Jeter from testifying
and telling Jeter what to say if he did testify. (Id. at 70-77.) Based on this testimony, the
trial court ruled that evidence of Jeter’s statement to the police was relevant to the issue of
motive with respect to the charges of obstruction of justice and attempted subornation of
perjury. The court reasoned that once Petitioner denied knowing what Jeter would testify
to, evidence that Petitioner’s discovery materials contained a statement by Jeter to the
police and the contents of that statement were admissible to impeach Petitioner. (Id. at
86-95.)
The prosecutor thereafter introduced the contents of the statement. The trial judge
specifically instructed the jurors that they could not consider the statement as substantive
evidence of Petitioner’s guilt. (Id. at 78.) The prosecutor again referred to the statement
in his closing argument, to which Petitioner’s trial counsel again voiced objection. (Id. at
160, 164, 171-72, 180.)
The Michigan courts concluded that the admission of the statement was not error.
The court of appeals, the last court to issued a reasoned decision with respect to this
claim, reasoned:
When defendant elected to testify, he repeatedly denied that he “called Rod
Jeter a snitch,” accused Whaley [Rod Jeter’s girlfriend] of making up her
testimony to the contrary because she didn’t like defendant, and averred that
16

he left the “pine boxes” recorded message for Whaley after Jeter had died.
Based on the evidence, the prosecutor had the right to impeach defendant’s
testimony.
***
The prosecutor’s brief references to the content of Jeter’s statement to the
police, specifically that Jeter had identified defendant as the Coney Island
shooter, tended to impeach and undermine defendant’s insistence that he
had never called Jeter a snitch and had no reason to have threatened Jeter,
as Whaley testified defendant had done. Additionally, before the prosecutor
referred to the content of Jeter’s statement, the trial court instructed the jury
to consider Jeter’s statements for impeachment purposes only, and not as
substantive evidence of defendant’s guilt. Consequently, the trial court did
not abuse its discretion by allowing the prosecutor to question defendant
regarding the content of Jeter’s statement to the police for impeachment
purposes.
Nobles, 2006 WL 1479561, at *3 (citations and footnote omitted). The state court’s
determination was neither contrary to nor an unreasonable application of federal law.
The Sixth Amendment’s Confrontation Clause bars the admission of out-of-court
statements that are testimonial in nature unless the witness is unavailable and the
defendant has had a prior opportunity to cross-examine the witness. See Crawford v.
Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 1374 (2004). However, the
Confrontation Clause “does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.” Id. at 59 n.9, 124 S.Ct. at 1369 n.9
(citation omitted). The non-hearsay aspects of a testimonial statement raise no
Confrontation Clause concerns. Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078,
2081-82 (1985); see also Adams v. Holland, 168 F. App’x 17, 19-21 (6th Cir. 2005)
(same). Further, the underlying question of what is or is not hearsay evidence in a state

17

court is governed by state law. It is well-settled “that it is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.” Estelle v.
McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991). Thus, the Sixth Circuit has held
that federal habeas courts “‘must defer to a state court’s interpretation of its own rules of
evidence and procedure’ when assessing a habeas petition.” Miskel v. Karnes, 397 F.3d
446, 453 (6th Cir. 2005) (quoting Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)).
As stated by the Michigan Court of Appeals, Jeter’s statement was not offered for
the truth of the matter asserted but rather for impeachment purposes. Crawford therefore
does not bar its admission. However, even if the Court were to find that the statement
was inadmissible under federal law, it still would find habeas relief unwarranted because
any error was harmless. Alleged Confrontation Clause violations are subject to harmless
error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 681-84, 106 S.Ct. 1431, 1436
(1986) (discussing Confrontation Clause and harmless error standard).
A habeas court must assess whether an error was harmless under the standard set
forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1993), whether or not the
state appellate court recognized the error and reviewed it for harmlessness. Fry v. Pliler,
551 U.S. 112, 121-22, 127 S.Ct. 2321, 2328 (2007); see also Vasquez v. Jones, 496 F.3d
564, 574-75 (6th Cir. 2007) (same). Under this standard, relief cannot be granted unless
the constitutional error had a “substantial and injurious effect” on the result. Brecht, 507
U.S. at 638.
Here, the evidence against Petitioner was, if not overwhelming, undeniably strong,
18

and the Court would find that any error in the admission of Jeter’s statement was
harmless. Moreover, the trial court specifically instructed the jurors that it could not
consider Jeter’s statement as substantive evidence of Petitioner’s guilt. The instruction
was sufficient to mitigate any error. Michigan courts presume that juries follow their
instructions. People v. Graves, 458 Mich. 476, 485, 581 N.W.2d 229, 234 (1998).
For these reasons, this Court concludes that the Michigan court’s resolution of this
issue was neither contrary to, nor an unreasonable application of, clearly established
federal law as determined by the Supreme Court; nor was the decision based on an
unreasonable determination of the facts in light of the evidence presented. Accordingly,
Petitioner is not entitled to habeas relief on this claim.
Remainder of Petitioner’s Prosecutorial Misconduct Claim
In his second habeas claim, Petitioner also alleges that the prosecutor committed
misconduct by using Jeter’s statement and by badgering him. For the reasons discussed
in the preceding section, Petitioner’s first argument lacks merit. For the reasons that
follow, the Court finds that Petitioner’s second argument also does not warrant habeas
relief.
Prosecutors may not misrepresent the facts or assert facts never admitted into
evidence. Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000). Prosecutors may,
however, highlight inconsistencies or inadequacies in the defense, Bates v. Bell, 402 F.3d
635, 646 (6th Cir. 2005), point out the lack of evidence supporting the defense theory,
United States v. Forrest, 402 F.3d 678, 686 (6th Cir. 2005), and argue from the facts that
19

a defense witness, including a testifying defendant, is not worthy of belief. See
Portuondo v. Agard, 529 U.S. 61, 69, 120 S.Ct. 1119, 1125 (2000) (when a defendant
testifies the rules that apply to other witnesses apply to him or her as well) (citations
omitted). Thus, when a defendant voluntarily exercises his right to testify, he then
becomes subject to cross-examination “on any matter relevant to any issue in the case,
including credibility.” People v. Salimone, 265 Mich. 486, 499-500, 251 N.W.2d 594,
598-99 (1993).
The Michigan Court of Appeals concluded that the “badgering” questions posed
by the prosecutor to Petitioner on cross-examination constituted proper crossexamination. Nobles, 2006 WL 1479561, at *4 (citation omitted). The Court agrees and
concludes that the state court’s analysis is consistent with clearly established Supreme
Court precedent and constitutes a reasonable application of that law. See Donnelly, 416
U.S. at 643, 94 S.Ct. at 1871. In addition, the prosecutor’s alleged improper questions
and comments were isolated in nature, were addressed by the trial court when objected to,
and did not mislead or prejudice the jury. Moreover, the prosecutor’s conduct did not
have a substantial and injurious effect or influence on the jury’s verdict. See Brecht, 507
U.S. at 637, 113 S.Ct. at 1722; see also O’Neal v. McAninch, 513 U.S. 432, 445, 115
S.Ct. 992, 999 (1995) (habeas court should grant petition if it has “grave doubt” about
whether trial error had substantial and injurious effect or influence upon jury’s verdict).
Habeas relief is not warranted with respect to this claim either.
Res gestae claim
20

In his third habeas claim, Petitioner argues that he is entitled to a new trial because
the prosecutor failed to secure the presence of a res gestae witness, Ladarius Edwards, for
trial. Edwards was listed on the prosecutor’s witness list and had not been deleted prior
to trial. The Michigan Court of Appeals rejected Petitioner’s claim, reasoning:
The record reflects that the trial court carefully considered the content of
Edwards’s statement to the police, which contained information primarily
cumulative to other testimony at trial, before concluding that in light of the
fact that Edwards did not view the commencement of gunfire toward the
Coney Island, “[t]he failure to produce Edwards was not prejudicial to the
defendant to the extent a new trial is warranted.” (Emphasis added). Given
the trial court’s consideration of Edwards’s out-of-court statements against
the trial record, we cannot conclude that the trial court clearly erred in
making its factual findings or that the court abused its discretion in denying
defendant’s motion for a new trial. Furthermore, no further evidentiary
hearing to determine potential prejudice is required because the trial court
provided the adverse inference instruction to the jury regarding the failure
to produce Edwards, and the trial court factually concluded that defendant
had not been prejudiced by the prosecution’s failure to call Edwards, a
cumulative witness, at trial.
Nobles, 2006 WL 1479561, at *5 (citations omitted). This decision was not
unreasonable.
This claim concerns a perceived error of state law.2 It is well established that
“‘federal habeas corpus review does not lie for errors of state law,’” unless the error

2

Under Michigan law, the prosecution is not required to produce res gestae
witnesses at trial. However, if the prosecutor fails to call a listed witness and has failed to
delete that witness from its witness list, it may nonetheless be appropriate for the trial
court to instruct the jury that it could draw an adverse inference from the prosecutor’s
failure to call the witness that the witness’s testimony would have been harmful to the
State’s case. People v. Cook, 266 Mich.App. 290, 702 N.W.2d 613, 616 (Mich. Ct. App.
2005), appeal denied, 474 Mich. 946, 706 N.W.2d 200 (2005). The trial court gave such
an instruction in this case.

21

denies a petitioner fundamental fairness in the trial process. Estelle, 502 U.S. at 67, 112
S.Ct. at 480 (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102 (1990)).
The Sixth Circuit has held that Michigan’s res gestae requirement is a state law question
and not cognizable in federal habeas review. Collier v. Lafler, 419 F. App’x 555, 559
(6th Cir. 2011) (whether a prosecutor exercised due diligence in attempting to locate a res
gestae witness is outside the scope of federal habeas review).
Under federal law, there is no obligation on the part of the prosecutor to call any
particular witness unless the government has reason to believe that the testimony would
exculpate the petitioner. United States v. Bryant, 461 F.2d 912, 916 (6th Cir. 1972)
(citations omitted). The state courts’ assessment that Edwards’ testimony would not
exculpate Petitioner was not an unreasonable determination of the facts. In his statement
to the police after the shooting, Edwards indicated that did not see the shooting of the
victim and was not able to identify the men who had the guns. (See ECF No. 15 Ex. B.)
While he did say that he did not see the front seat passenger (i.e., Petitioner) exit the
vehicle, he also stated that he ran away from the front of the restaurant and into the
bathroom after the shooting began. (Id.) Thus Petitioner cannot establish that Edwards’
absence deprived him of a fair trial. Accordingly, the Court concludes that Petitioner is
not entitled to habeas relief with respect to this claim.
Petitioner’s Motions for Evidentiary Hearing and Discovery
Petitioner filed a motion seeking an evidentiary hearing in order to prove his
Strickland claim and that the prosecutor withheld evidence in regard to the nineteenth
22

shell casing.
When deciding whether to grant an evidentiary hearing, the Court is bound by the
deferential standards prescribed by § 2254. If the record refutes Petitioner’s allegations
or precludes relief, a district court is not required to hold an evidentiary hearing. Stated
differently, a habeas petitioner is not entitled to an evidentiary hearing on his or her
claims if they lack merit. See Stanford v. Parker, 266 F.3d 442, 459-60 (6th Cir. 2001);
see also Cullen, 131 S.Ct. at 1398 (review under section 2254(d)(1) is limited to the
record that was before the state court). Here, the Court found that Petitioner’s Strickland
and Brady claims were procedurally default. But even if the Court did not find that the
claims were procedurally defaulted, the record refutes Petitioner’s allegations.
Petitioner seeks to conduct discovery from the Detroit Police Department, the Fire
Department, the Wayne County Medical Examiner, and St. John’s Hospital. He is
looking for evidence of a fired nineteenth shell casing, autopsy photos, and x-ray reports.
Petitioner requested the same in the state courts and his requests were denied.
The Court concludes that additional discovery would not demonstrate that
Petitioner is entitled to habeas relief. “Rule 6 [of the Rules Governing § 2254 Cases]
embodies the principle that a court must provide discovery in a habeas proceeding only
‘where specific allegations before the court show reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to
relief.’” Bracy v. Bramley, 520 U.S. 899, 908-09, 117 S.Ct. 1793, 1799 (1997). As noted
by the trial court, the reference to a nineteenth shell casing was a clerical error, no such
23

evidence existed. The Court therefore concludes that the areas upon which Petitioner
seeks to further develop the factual record have been presented to the lower courts and
adjudicated. The purpose of Rule 6 is not to sanction fishing expeditions. See Harp v.
Curtin, No. 2:09-CV-13121, 2012 WL 368216 (E.D. Mich. Feb. 3, 2012) (citation
omitted).
For these reasons, and given the Court’s analysis of Petitioner’s claims, his
requests for an evidentiary hearing and discovery are denied.
Certificate of Appealability
A certificate of appealability may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The
district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a).
When a district court denies a habeas petition on the merits of the claims
presented, a certificate may issue if the petitioner demonstrates that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000). “A petitioner
satisfies this standard by demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El, 537
U.S. at 327. When a district court denies habeas relief on procedural grounds without
reaching the petitioner’s constitutional claims, a certificate may issue if the petitioner
shows that jurists of reason would find it debatable whether (1) the petition states a valid
24

claim of a denial of a constitutional right and (2) the district court was correct in its
procedural ruling. Slack, 529 U.S. at 484, 120 S. Ct. at 1604.
The Court concludes that Petitioner has failed to make a substantial showing of the
denial of a constitutional right with respect to all of his claims, with the exception of his
claims related to the admission of Jeter’s statement. While the Court continues to believe
that Petitioner is not entitled to a writ of habeas corpus with respect to this claim for the
reasons set forth herein, the Court believes that the issue raised in Petitioner’s application
may be “debatable among jurists of reason.” Further, given the lower standard applicable
to determining whether to grant an application for leave to proceed in forma pauperis, see
28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a), the Court finds that Petition may proceed
in forma pauperis on appeal.
Accordingly,
IT IS ORDERED, that Petitioner’s application for the writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED;
IT IS FURTHER ORDERED, that a certificate of appealability is granted only
with respect to the issue of whether Petitioner’s rights under the Confrontation Clause and
to a fair trial were violated due to the admission of Rod Jeter’s statement;
IT IS FURTHER ORDERED, that Petitioner may proceed in forma pauperis on
appeal;
IT IS FURTHER ORDERED, that Petitioner’s motions for an evidentiary
hearing and for discovery (ECF Nos. 16, 17) are DENIED AS MOOT.
25

Dated: March 26, 2013

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Deano C. Ware, Esq.
Mark G. Sands, Esq.

26