Powe v. Wolfenbarger

Filing 26

OPINION and ORDER 1) Denying Amended 1 Petition for Writ of Habeas Corpus, 2) Denying Certificate of Appealability, and 3) Granting Permission to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRANDEN POWE,
Petitioner,

Case No. 2:11-cv-11875
Hon. Denise Page Hood

HUGH WOLFENBARGER,
Respondent.
_______________________________/
OPINION AND ORDER 1) DENYING AMENDED PETITION FOR WRIT
OF HABEAS CORPUS, 2) DENYING CERTIFICATE OF
APPEALABILITY, AND 3) GRANTING PERMISSION TO APPEAL IN
FORMA PAUPERIS
This matter is before the Court on Petitioner Branden Powe’s petition
for a writ of habeas corpus filed under 28 U.S.C. § 2254. Petitioner was
convicted in the Wayne Circuit Court after a bench trial of second-degree
murder, MICH. COMP. LAWS. § 750.317, and commission of a felony with a
firearm. MICH. COMP. LAWS. § 750.227b. He was sentenced to 15-to-25 years
for the murder conviction and a consecutive two years for the felony-firearm
conviction. The amended petition raises eight claims: (1) Petitioner was
denied a fair trial by the admission of irrelevant evidence that he smoked
marijuana; (2) the trial court incorrectly scored the sentencing guidelines; (3)
Petitioner’s right to confrontation was denied by the admission of evidence

through stipulation; (4) the prosecutor committed misconduct; (5) insufficient
evidence was presented at trial to support the first-degree murder charge; (6)
newly discovered evidence establishes Petitioner’s actual innocence; (7)
Petitioner was denied the effective assistance of counsel for failing to present
medical evidence that Petitioner was unable to chase the victim; and (8)
Petitioner was denied the effective assistance of appellate counsel.
The Court finds that Petitioner’s claims are without merit. Therefore, the
petition will be denied. The Court will also deny Petitioner a certificate of
appealability, but it will grant him permission to proceed on appeal in forma
pauperis.
I. Facts and Procedural History
Petitioner’s convictions result from the shooting death of twenty-four
year old Jermaine Shaffer.
Dontaze Mosley testified at trial that he knew Shaffer from the
neighborhood, and that he knew him by his nicknames “B” and “Cripple B.”
On October 23, 2007, Shaffer asked Mosley to accompany him to his aunt’s
house to meet Petitioner. Petitioner wanted to buy marijuana from Shaffer.
Shaffer carried a black duffle bag onto the porch, and then an
SUVpulled up. Petitioner was seated in the passenger seat. Mosley stood on

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the porch and saw Petitioner and Shaffer engage in conversation. Mosley saw
Petitioner fire a gun at Shaffer. Shaffer then entered the house and stated “B
shot me.” The duffle bag was gone after the shooting.
Pertrice Woods, Shaffer’s cousin, also knew Petitioner. Petitioner would
come to her mother’s house to drink and smoke marijuana. Woods testified
that four days before the shooting, Petitioner and Shaffer were talking about
marijuana, and Petitioner said that he would “cop” some.
On the day of the shooting, Woods saw Shaffer on her mother’s porch
with a large duffle bag. As she was going to her room, she heard gunshots
and saw Petitioner reaching out of an SUV window. She then saw the SUV
pull away with Petitioner in the passenger seat. Shaffer came into the house
holding his chest. Woods shouted that “B” had shot him.
Perrisha Shaffer, another cousin of Shaffer, testified that on the date in
question she observed Shaffer and Mosley standing outside. She saw
Petitioner talking to Shaffer while sitting in the passenger seat of an SUV. She
testified that Mosley subsequently ran inside the house and told everyone to
get down because there was shooting. After the police arrived, Perrisha
stated that she gave a description of Petitioner as a person who walks with
a limp.

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Julie Perry, a physical therapist, testified that Petitioner is her patient at
Beaumont Hospital. She indicated that she helped him with physical therapy
following a surgery that makes him walk with a limp.
The parties stipulated that the medical examiner concluded that the
victim died from a single gunshot wound to the chest, and that the manner of
death was a homicide. The parties also stipulated that the decedent’s mother
identified him.
Based on this evidence Petitioner was convicted and sentenced as
indicated above. Petitioner then filed an appeal of right. His appellate counsel
filed an appellate brief raising what now form Petitioner’s first and second
habeas claims. Petitioner also filed a pro se supplemental brief raising what
now form his third, fourth, and fifth habeas claims.
The Michigan Court of Appeals affirmed in an unpublished opinion.
People v. Powe, No. 286175 (Mich. Ct. App. Nov. 17, 2009). Petitioner then
filed an application for leave to appeal in the Michigan Supreme Court, raising
all of the claims that were presented to the Michigan Court of Appeals. The
application was denied by standard order. People v. Powe, No. 140369 (Mich.
Sup. Ct. April 27, 2010).
Petitioner then filed the instant action, raising what now are his first five

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claims. Petitioner later filed a motion to amend the petition and a motion to
have the petition held in abeyance while he exhausted new claims. Dkts. 5
and 15. The Court granted the motions. Dkts. 10 and 17.
Petitioner returned to the trial court and filed a motion for relief from
judgment asserting that: (1) medical reports from an accident in 2003 left him
unable to “chase” the victim, and that trial counsel was ineffective for failing
to admit these reports at trial; (2) new evidence in the form of an affidavit from
a fellow inmate exculpated Petitioner; (3) the cumulative effect of the errors
necessitated reversal of his convictions; and (4) ineffective assistance of
appellate counsel for failing to raise the above issues on direct appeal. On
April 13, 2013, the trial court denied Petitioner’s motion for relief from
judgment, citing to both Michigan Court Rule 6.508(D)(3) and to a lack of
merit.
Petitioner filed a delayed application for leave to appeal with the
Michigan Court of Appeals. On November 14, 2013, the Michigan Court of
Appeals denied Petitioner’s delayed application for “failure to meet his burden
of establishing entitlement to relief under Rule 6.508(D).” People v. Powe, No.
317320 (Mich. Ct. App. Nov. 14, 2013). Petitioner then filed an application for
leave to appeal in the Michigan Supreme Court, but it was also denied under

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Rule 6.508(D). People v. Powe, 847 N.W.2d 622 (Mich. 2014) (table).
Petitioner then successfully moved to have this case re-opened. The
parties filed supplemental pleadings, and the case is now ready for decision.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of review
for habeas cases:
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 state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court
cases]’ or if it ‘confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless arrives at a result
different from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16

6

(2003) (per curiam), quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
“[T]he ‘unreasonable application’ prong of the statute permits a federal
habeas court to ‘grant the writ if the state court identifies the correct governing
legal principle from [the Supreme] Court but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510,
520 (2003) quoting Williams, 529 U.S. at 413. “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.86, 101 (2011), quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004). “Section 2254(d) reflects the view that
habeas corpus is a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction through appeal.
. . . As a condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 786-87 (internal quotation omitted).
To obtain relief under § 2254(d)(2), a petitioner must show an
unreasonable determination of fact and that the resulting state court decision

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was “based on” that unreasonable determination. Rice v. White, 660 F.3d
242, 250 (6th Cir. 2012). However, a federal habeas court must presume the
correctness of state court factual determinations. See 28 U.S.C. § 2254(e)(1).
A petitioner may rebut this presumption only with clear and convincing
evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
III. Analysis
A. Statute of Limitations and Procedural Default
Respondent asserts that the claims in the amended petition were
untimely filed and that review of some of Petitioner’s claims are barred by his
state court procedural defaults. The Court will nevertheless proceed directly
to the merits of Petitioner’s claims without consideration of whether they are
procedurally defaulted or time-barred because the claims lack substantive
merit and a discussion of these affirmative defenses “add nothing but
complexity to the case.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir.
2010).
B. Admission of Marijuana Use Evidence
Petitioner first asserts that he was denied a fair trial by admission of
testimony from the prosecution witnesses that he smoked marijuana. He
argues that whether he was a drug-user was not a relevant issue in the case

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and only served to cause unfair prejudice. Respondent asserts that this
unpreserved claim of error is noncognizable because it only concerns a
matter of state evidentiary law.
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). A federal court is limited in federal habeas review to deciding
whether a state court conviction violates the Constitution, laws, or treaties of
the United States. Id. Errors in the application of state law, especially rulings
regarding the admissibility of evidence, are usually not questioned by a
federal habeas court. Seymour v. Walker, 224 F. 3d 542, 552 (6th Cir. 2000).
State-court evidentiary rulings may be cognizable on habeas review
where such rulings resulted in the violation of a defendant’s due process
rights. However “[g]enerally 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.’” Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (quoting
Patterson v. New York, 432 U.S. 197, 202 (1977)).
Here, as reasonably noted by the Michigan Court of Appeals, the
prosecutor’s theory of the case was that Petitioner murdered Shaffer because

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he wanted to steal the bag of marijuana from the porch. Petitioner’s marijuana
use was a relevant fact at trial, and the admission of testimony that he was a
user did not render Petitioner’s trial fundamentally unfair in violation of due
process. This claim does not afford a basis for granting habeas relief.
C. Sentencing Guidelines
Petitioner asserts that the trial court incorrectly scored the sentencing
guidelines. Specifically, he claims that the offense variable concerning injury
to the victim was incorrectly assessed points because in every murder case
the victim has died, and so no points should be scored. Respondent asserts
that the claim is noncognizable.
Claims concerning the improper application of sentencing guidelines are
state-law claims and typically are not cognizable in habeas corpus
proceedings. See Hutto v. Davis, 454 U.S. 370, 373-74 (1982) (federal courts
normally do not review a sentence for a term of years that falls within the
limits prescribed by the state legislature); Austin v. Jackson, 213 F.3d 298,
301-02 (6th Cir. 2000) (alleged violation of state law with respect to
sentencing is not subject to federal habeas relief). A sentence may violate
due process if it is based upon material “misinformation of constitutional
magnitude.” United States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v.

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Burke, 334 U.S. 736, 741 (1948). To prevail on such a claim, the petitioner
must show (1) that the information before the sentencing court was materially
false, and (2) that the court relied on the false information in imposing the
sentence. Tucker, 404 U.S. at 447. A sentencing court demonstrates actual
reliance on misinformation when the court gives “explicit attention” to it,
“found[s]” its sentence “at least in part” on it, or gives “specific consideration”
to the information before imposing sentence. Tucker, 404 U.S. at 447.
Petitioner fails even to argue that the facts found by the court at
sentencing were either materially false or based on false information. Id.
Instead, Petitioner states only that the scoring of an offense variable was
wrong. Even accepting Petitioner’s position as true, his minimum sentence
still fell within the sentencing guidelines range. Such a claim clearly falls far
short of the sort of egregious circumstances implicating due process.
Moreover, the Michigan Court of Appeals concluded that Petitioner’s position
with regard to the calculation of variable lacked merit because the Michigan
Supreme Court had held that points should be scored for injury to the victim
in a murder case.
The Sixth Circuit repeatedly has recognized “‘that a state court’s
interpretation of state law, including one announced on direct appeal of the

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challenged conviction, binds a federal court sitting in habeas corpus.’” Stumpf
v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (quoting Bradshaw v.
Richey, 546 U.S. 74, 76 (2005)). The state court’s rejection of Petitioner’s
claim was not contrary to nor an unreasonable application of established
Supreme Court precedent.
D. Admission of Stipulated Evidence
Petitioner’s third claim asserts that his Sixth Amendment right to
confront witnesses was violated by the admission of evidence by stipulation
of the parties. At issue are the admission of reports related to the cause of
death of the victim and the lighting conditions. Petitioner notes that the parties
stipulated to reports that showed (1) that when the police arrived at the scene
Shaffer was unresponsive in the front doorway of the house and there was
blood in the area, (2) that the medical examiner found that Shaffer died as the
result of a single gunshot wound to the chest, and (3) that police noted a
nearby streetlight was in working order on the date of the shooting.
The Sixth Amendment provides 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. The admission of “testimonial” hearsay
statements — that is, out of court statements that are the functional
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equivalent of in-court testimony — violates a defendant’s Sixth Amendment
rights unless the declarant is unavailable for trial and the defendant had a
prior opportunity to cross-examine the witness. See Crawford v. Washington,
541 U.S. 36, 68 (2004).
The Supreme Court addressed the admissibility of reports prepared as
part of a criminal investigation in the absence of the author’s in-court
testimony in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308-09 (2009).
The Supreme Court concluded that lab reports were “functionally identical to
live, in-court testimony” by the analysts regarding the results of their tests —
and the defendant was therefore entitled to confront the analysts at trial. Id.
at 310-11.
There was therefore a basis for Petitioner’s trial counsel to demand the
admission of the reports through live testimony. Petitioner’s trial counsel,
however, waived any such objection by stipulating to admission of the
evidence, and the right to confrontation may be waived. Melendez-Diaz, 557
U.S. at 314 n.3 (2009). Under these circumstances, having stipulated to the
admission of the evidence, Petitioner’s challenge must be one for ineffective
assistance of counsel.
Petitioner argued in the alternative in state court that his trial counsel

13

was ineffective for agreeing to the stipulations instead of forcing the
prosecutor to present live witnesses. This argument fails. Trial counsel’s
decision to stipulate to the admission of the reports did not prejudice
Petitioner because the same evidence would have been introduced eventually
through a more lengthy process without stipulations from counsel. See Burke
v. United States, 261 F. Supp. 2d 854, 862 (E.D. Mich. 2003). Petitioner offers
no basis on which his counsel would have challenged the contents of the
reports through cross-examination of the authors. This claim is therefore
without merit.
E. Prosecutorial Misconduct
Petitioner’s next claim asserts that the prosecutor committed
misconduct. He argues that the prosecutor vouched for the credibility of
Mosley by improperly introducing his prior consistent statements given at the
preliminary examination. Petitioner also asserts that the prosecutor improperly
argued that the murder was part of a drug deal gone wrong, that a revolver
was the murder weapon, and that a single gunshot wound caused the victim’s
death.
“Claims of prosecutorial misconduct are reviewed deferentially on
habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing
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Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s
improper comments will be held to violate a criminal defendant’s constitutional
rights only if they “‘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 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). Prosecutorial misconduct will form the basis for habeas relief only if
the conduct was so egregious as to render the entire trial fundamentally unfair
based on the totality of the circumstances. Donnelly, 416 U.S. at 643-45. In
order to obtain habeas relief on a prosecutorial misconduct claim, a habeas
petitioner must show that the state court’s rejection of his prosecutorial
misconduct claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Parker v. Matthews, 132 S. Ct. 2148, 2155, 183 L.
Ed. 2d 32 (2012)(quoting Harrington, 562 U.S. at 103).
The Michigan Court of Appeals reasonably rejected Petitioner’s claims
of prosecutorial misconduct. First, it is true that the admission of Mosley’s
prior consistent testimony at the preliminary examination was likely premature,
as Petitioner had not yet challenged his credibility when the prior testimony
was presented as required by Michigan Rule of Evidence 801(d)(1)(B).

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Nevertheless, improper vouching involves comments that imply that the
prosecutor has special knowledge of facts not in front of the jury or of the
credibility and truthfulness of witnesses and their testimony. See United
States v. Francis, 170 F. 3d 546, 550 (6th Cir. 1999). While as a state-law
evidentiary issue, the prior testimony may have been prematurely admitting
and had the impact of bolstering Mosley’s credibility, it did not result in the
sort of prejudice–indicating a personal belief by the prosecutor based on
secret knowledge–to support a due process claim.
With respect to the prosecutor’s closing arguments, evidence was
presented at trial that Petitioner went to meet Shaffer for the purpose of
buying marijuana, and that Shaffer’s bag of marijuana was missing after the
shooting. Evidence was presented that there were no shell casings found at
the scene and that the victim suffered a single gunshot wound. It is improper
for a prosecutor during closing arguments to present information that has not
been introduced into evidence and that is prejudicial. Byrd v. Collins, 209 F.3d
486, 535 (6th Cir. 2000). However, prosecutors must be given leeway to
argue reasonable inferences from the evidence. Id. In the present case, there
was an evidentiary basis for the prosecutor’s challenged arguments, and
therefore his comments were not misconduct. This claim therefore does not

16

present a basis for granting habeas relief.
F. Sufficiency of the Evidence
Petitioner next argues that insufficient evidence was presented at trial
to allow the trial judge, sitting as trier of fact, to consider the charge of firstdegree murder. Specifically, Petitioner asserts that there was insufficient
evidence of premeditation and deliberation.
As an initial matter, it is not clear that the Court must address the claim
at all because Petitioner was acquitted of first-degree murder. “Some courts,
under similar facts have concluded that submission to the jury of a charge
constituted harmless error in light of petitioner’s acquittal on that charge.”
Daniels v. Burke, 83 F.3d 760, 765 n.4 (6th Cir. 1996) (citing Howard v.
United States, 389 F.2d 287, 292, 128 U.S. App. D.C. 336 (D.C. Cir. 1967);
United States v. Alexander, 471 F.2d 923, 966, 152 U.S. App. D.C. 371 (D.C.
Cir. 1972); and United States v. Dent, 477 F.2d 447, 155 U.S. App. D.C. 278
(D.C. Cir. 1973)). In light of these cases, it is difficult to describe the rejection
of Petitioner’s claim by the state court as constituting an unreasonable
adjudication of clearly established law. If clearly established law required
reversal when unsupported charges are allowed to be submitted to the finder
of fact, then the rational of these cases would be inapposite.
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To the extent Petitioner has raised a cognizable claim, the issue is
whether “there was sufficient evidence from which to conclude that petitioner
was guilty of first degree murder . . . .” Daniels, 83 F.3d at 765. If there was,
his argument fails. Id. “To establish first-degree premeditated murder, the
prosecution must prove that the defendant intentionally killed the victim and
the act of killing was deliberate and premeditated.” People v. Haywood, 209
Mich. App. 217 (1995). “Premeditation and deliberation require sufficient time
to allow the defendant to take a second look at his actions. This time interval
may be minimal.” People v. Gonzalez, 178 Mich. App. 526 (1989) (internal
citation omitted). Premeditation and deliberation may be inferred from all the
facts and circumstances, including the parties’ prior relationship, the
defendant’s actions before and after the killing, and the killing itself. Haywood,
209 Mich. App. at 231. The element of premeditation may also be inferred
from the type of weapon used, the location of the wound inflicted, and the
defendant’s own statement. People v. Berry, 198 Mich. App. 123 (1993).
Here, a rational trier of fact could have concluded from Petitioner’s
conduct and the other circumstances of the crime that Petitioner intended to
shoot Shaffer and that he had enough time to take a second look at his
actions and premeditate the shooting. Evidence was offered at trial indicating

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that Petitioner set up the meeting with Shaffer, and therefore a reasonable
inference could be made that the robbery-murder was planned beforehand.
Furthermore, there was evidence of two shots being fired. Viewed most
favorably to the prosecution, this would allow for an inference that Petitioner’s
first shot missed the victim, giving him an opportunity to take a “second look”
before he decided to shoot at the victim a second time, killing him. The trial
court did not violate Petitioner’s right to due process when it denied
Petitioner’s motion for a directed verdict of acquittal on the first-degree murder
count. Because the Michigan Court of Appeals reasonably concluded that
there was sufficient evidence of premeditation, Petitioner has no right to relief
on the basis of his challenge to the denial of his motion for a directed verdict
of acquittal.
G. Newly Discovered Evidence
Petitioner’s next claim asserts that he has newly discovered evidence
proving his innocence. He has proffered the Court evidence in the form of
multiple medical reports indicating that he was unable to run on the date of
the crime, and an affidavit from a fellow prisoner, Willie Marshall, claiming that
he saw the shooting and Petitioner was not the shooter.
An actual innocence claim does not constitute a constitutional claim in
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itself. See Herrera v. Collins, 506 U.S. 390, 404-05 (1993), cited in Schlup v.
Delo, 513 U.S. 298, 314 (1995). The Sixth Circuit has interpreted Herrera v.
Collins to hold that federal courts must not make independent determinations
of guilt or innocence in habeas cases. See Tyler v. Mitchell, 416 F.3d 500,
505 (6th Cir. 2005). The function of a federal court reviewing a habeas corpus
petition is to ensure that the petitioner is not imprisoned in violation of the
constitution, not to correct errors of fact. Herrera, 506 U.S. at 400; Wright v.
Stegall, 247 F. App’x 709, 711 (6th Cir. 2007) (“Since the Supreme Court has
declined to recognize a freestanding innocence claim in habeas corpus,
outside the death-penalty context, this court finds that [Petitioner] is not
entitled to relief under available Supreme Court precedent.”); Cress v. Palmer,
484 F.3d 844, 854-55 (6th Cir. 2007); Sitto v. Lafler, 279 F. App’x 381, 381-82
(6th Cir. 2008) (affirming denial of habeas relief on similar claim).
Even if Petitioner’s actual innocence claim were cognizable, the claim
is without merit. “[A] petitioner does not meet the threshold requirement [for
proving his actual innocence] unless he persuades the district court that, in
light of the new evidence, no juror acting reasonably, would have voted to find
him guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 329. To satisfy the
standard, a petitioner must present “‘new reliable evidence.’” House v. Bell,

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547 U.S. 518, 537 (2006). Based on all the evidence, both old and new, “the
court must make ‘a probabilistic

determination about what reasonable,

properly instructed jurors would do.’” Id. at 538 (citation omitted). “The court’s
function is not to make an independent factual determination about what likely
occurred, but rather to assess the likely impact of the evidence on reasonable
jurors.” Id.
Even if Petitioner’s claim presented a cognizable basis for relief, the
Court would reject it. The evidence presented at trial did not indicate that
there was any sort of foot-chase before the victim was shot. The witnesses
saw Petitioner seated in the passenger seat of an SUV talking with Shaffer
immediately before the shooting. There was testimony that the victim took off
running before the shooting, but there was no testimony that Petitioner
chased him. Rather, the closest thing Petitioner can point to is Mosley’s
preliminary examination testimony that Petitioner “hopped” out of the SUV
before firing. The Michigan Court of Appeals did note the possibility that
Petitioner missed with his first shot and then struck the victim with a second
shot, but even under this scenario there was no evidence of a pursuit on foot.
The evidence presented at trial and the theory of guilt offered by the
prosecutor is perfectly consistent with the proffered evidence that Petitioner

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was physically unable to chase the victim on foot.
Marshall’s affidavit is no more compelling. Marshall is a fellow prisoner
serving his own sentence. Long-delayed statements such as his are viewed
with extreme suspicion. See Milton v. Secretary, Dep’t of Corr., 347 F. App’x
528, 531-32 (11th Cir. 2009) (affidavits from fellow inmates and family
members created after trial are not sufficiently reliable evidence to support a
claim of actual innocence); see also Herrera, 506 U.S. at 423 (“It seems that,
when a prisoner’s life is at stake, he often can find someone new to vouch for
him.”). Like the state trial court, this Court is not persuaded that Petitioner’s
proffered new evidence demonstrates his actual innocence or that it merits
relief.
H. Ineffective Assistance of Trial Counsel
Petitioner next argues that he was denied the was denied the effective
assistance of counsel for his trial attorney’s failure to investigate and present
medical evidence that Petitioner was unable to chase down the victim on foot
before shooting him.
Counsel is ineffective when his performance falls below an objective
standard of reasonableness and thereby prejudices his client. See Strickland
v. Washington, 466 U.S. 668, 687-88, 691-92 (1984). To satisfy the
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performance element, a defendant must point to some action “outside the
wide range of professionally competent assistance.” Id. at 690. To satisfy the
prejudice element, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. In habeas, a reviewing
federal court must apply a doubly deferential standard of review: “[T]he
question [under § 2254(d)] is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86,
105 (2011).
For the reasons stated above, Petitioner’s counsel was not ineffective
for failing to present evidence regarding Petitioner’s medical condition at trial.
The prosecutor’s witnesses did not testify that Petitioner chased the victim
before shooting him. Accordingly, the failure to introduce medical evidence did
not result in Strickland prejudice. Furthermore there was a witness presented
at trial who testified that Petitioner had undergone surgery and walked with a
limp. There is no reasonable probability that the result of Petitioner’s trial
would have been more favorable had counsel presented the proffered
evidence at trial. This claim does not provide a basis for granting habeas

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relief.
I. Ineffective Assistance of Appellate Counsel
Petitioner asserts that he was denied the effective assistance of
appellate counsel for his appellate counsel’s failure to raise his ineffective
assistance of trial counsel claim on direct appeal. As discussed, Petitioner’s
claim of ineffective assistance of trial counsel is without merit. It is not
ineffective assistance for appellate counsel to decide not to raise meritless
claims. See Smith v. Murray, 477 U.S. 527, 536 (1986); Moore v. Mitchell, 708
F.3d 760, 776 (6th Cir. 2013) (“[A] petitioner cannot show that appellate
counsel was ineffective for failing to raise a claim on appeal if the underlying
claim itself lacks merit.”). Petitioner was not denied the effective assistance
of appellate counsel because the claims he alleges counsel should have
raised—or assisted Petitioner to better raise on his own—are all without merit.
J. Evidentiary Hearing
Petitioner seeks an evidentiary hearing on his claims of actual
innocence and ineffective assistance of counsel. No hearing is necessary
because even assuming Petitioner presented the proffered evidence at a
hearing his claims do not merit relief for the reasons stated above. Ruiz v.
Norris, 71 F.3d 1404, 1406 (8th Cir. 1995) (evidentiary hearing is unnecessary
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and not required in cases “where the petitioner’s allegations, even if true, fail
to state a claim upon which habeas relief can be granted”).
IV. Certificate of Appealability
Before Petitioner may appeal this decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate
of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When
a district court denies a habeas claim on the merits, the substantial showing
threshold is met if the petitioner demonstrates that reasonable jurists would
find the district court’s assessment of the constitutional claim debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner
satisfies this standard by demonstrating that . . . jurists could conclude the
issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this
standard, a court may not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit of the claims. Id.
at 336-37.
The Court concludes that a certificate of appealability is not warranted
in this case because reasonable jurists could not debate the Court’s
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assessment of his claims. The Court will, however, grant Petitioner permission
to appeal in forma pauperis, because an appeal would not be frivolous.
V. Conclusion
For the foregoing reasons,
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED
and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that permission to appeal in forma pauperis
is GRANTED.

s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: April 29, 2016
I hereby certify that a copy of the foregoing document was served upon
counsel of record on April 29, 2016, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager

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