King v. Booker

Filing 13

OPINION AND ORDER Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KEENAN KING,
Petitioner,

Case Number: 2:11-cv-13676

v.

HON. VICTORIA A. ROBERTS

RAYMOND BOOKER,
Respondent.
/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Michigan state prisoner Keenan King filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. King is incarcerated at the Macomb Correctional Facility
in New Haven, Michigan. He challenges his convictions for two counts of armed
robbery, two counts of possession of a firearm during the commission of a felony, and
unlawful imprisonment.
The Court denies the petition.
I. Background
The Michigan Court of Appeals described the facts leading to King’s convictions
as follows:
Defendant’s convictions arose from a robbery at the home of Germaine
Overton on March 25, 2007. Three intruders entered Overton’s house
shortly after Overton, Carita Keene, and Overton’s two sons arrived home
late that night. Overton identified one of the intruders as defendant.
According to Overton, defendant and another intruder rushed at him and

knocked him to the ground. Defendant then hit Overton over the head with
a gun and knelt over him, still holding the gun. While defendant and
another man dragged Overton into the dining room and pointed a gun to his
neck, a third intruder swung a gun at Keene to hit her, but she moved out of
the way. Keene tried to escape with the two boys, but one of the intruders
stopped them in the kitchen. The gunmen held Keene and the boys on the
floor, against the wall, and demanded Keene’s jewelry and cell phone.
Defendant and his two accomplices then took Overton, Keene, and the two
boys upstairs into a bedroom. They took Overton’s jewelry and then
searched his pockets, taking approximately $800 in cash.
Police officers investigating other activity on the street observed suspicious
activity in Overton’s house and went to investigate. Officer Ralph Morgan
looked through a window and saw a person on the ground with another
person kneeling over him and holding a gun. After the police knocked at
the door, defendant gave his gun to another intruder and told Overton to get
rid of the police. Defendant then escorted Overton downstairs. The officers
eventually entered the house and arrested defendant. The other intruders
apparently escaped through an upstairs window.
People v. King, No. 279809, 2008 WL 5197086, *1 (Mich. Ct. App. Dec. 11, 2008). The
Michigan Court of Appeals’ recitation of the facts is presumed correct on habeas review.
See 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
II. Procedural History
A jury convicted King in Jackson County Circuit Court of two counts of armed
robbery, two counts of assault with intent to rob, one count of unlawful imprisonment,
and two counts of possession of a firearm during the commission of a felony. The trial
court set aside the assault with intent to rob convictions, finding them to be lesserincluded offense of armed robbery. On July 19, 2007, the trial court sentenced King to 18
to 40 years in prison for each of the armed robbery convictions and 8 to 15 years for the
unlawful imprisonment conviction, concurrent to one another and consecutively to two
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concurrent two-year terms of imprisonment for the felony-firearm convictions.
King filed an appeal of right raising these claims through counsel and in an pro per
brief:
I.

Mr. King is entitled to resentencing because he was denied effective
assistance of counsel at sentencing when substitute counsel failed to object
to the scoring of OV 7 and OV 16; alternatively the sentencing errors were
plain.

II.

The trial court violated Mr. King’s right to be free from double jeopardy
under the United States and Michigan Constitutions, where the court
convicted and sentenced Mr. King for two counts of armed robbery and two
counts of felony firearm for the same transaction.

III.

Mr. King is entitled to resentencing where the court mis-scored offense
variable 8 because the sentencing offense was unlawful imprisonment
(kidnapping) in violation of Mr. King’s state and federal due process right
to sentencing based upon accurate information.

IV.

The trial court erred in ordering defendant to pay restitution for expenses
that were not proved by a preponderance to have directly resulted from his
crime.

V.

Defendant was denied his federal and state constitutional rights to an
impartial jury drawn from a fair cross-section of the community where there
was only one African American in the array from which his jury was
selected due to the systemic exclusion of African-American residents of the
county from circuit court jury service.

VI.

Defendant was denied his right to a fair and impartial jury.

VII.

The trial court reversibly erred by failing to hold a hearing regarding the
impartiality of a juror.

The Michigan Court of Appeals affirmed King’s convictions and sentences.
People v. King, No. 279809, 2008 WL 5197086 (Mich. Ct. App. Dec. 11, 2008).
King filed an application for leave to appeal in the Michigan Supreme Court,
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raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme
Court denied leave to appeal, People v. King, 483 Mich. 980 (Mich. Apr. 28, 2009), and
denied King’s motion for reconsideration. People v. King, 484 Mich. 874 (Mich. Aug. 6,
2009).
King then filed a motion for relief from judgment in the trial court. He raised these
claims:
I.

Defendant was denied his constitutional right to the effective assistance of
counsel by his attorney’s failure to advocate for his client undeflected by
conflicting considerations, failure to investigate, failure to file pretrial
motions, failure to present any meaningful defense, and other mistakes and
omissions.

II.

Prosecutor denied defendant a fair trial by vouching for the credibility of
the witnesses, misstating the evidence, and by going outside the scope of
the case.

III.

King was denied a fair and impartial trial where the trial judge failed to
control the trial proceedings and abused his discretion by allowing the
prosecutor to vouch for the credibility of the witnesses, misstating the
evidence, and going outside the scope of the case.

IV.

Order of restitution must be vacated or modified as Mr. King had no assets
at the time of sentencing and currently has no assets and no ability to pay.
Additionally, the Michigan Department of Corrections is not adhering to the
court’s order with regards to restitution.

V.

Substitute counsel’s presence and performance at sentencing denied Mr.
King his state and federal constitutional rights to effective assistance of
counsel.

VI.

Mr. King was denied his state and federal right to the effective assistance of
counsel on appeal due to appellate counsel’s failure to raise a claim of
ineffective assistance of trial counsel in addition to the issues raised herein.

The trial court denied the motion. People v. King, No. 07-003708-FC (Jackson
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County Cir. Ct. March 5, 2010). The Michigan Court of Appeals and Michigan Supreme
Court each denied King’s applications for leave to appeal the denial of his motion for
relief from judgment. People v. King, No. 299794 (Mich. Ct. App. Nov. 18, 2010);
People v. King, 489 Mich. 971 (Mich. June 28, 2011).
King then filed this habeas petition. He raises these claims:
1.

Mr. King is entitled to resentencing because he was denied effective
assistance of counsel at sentencing when substitute counsel failed to object
to the scoring of OV 7 and OV 16; alternatively the sentencing errors were
plain.

2.

The trial court violated Mr. King’s rights to be free from double jeopardy
where the court convicted and sentenced Mr. King for two counts of felonyfirearm for the same transaction.

3.

Mr. King is entitled to resentencing where the court mis-scored offense
variable 8 because the sentencing offense was unlawful imprisonment
(kidnapping) in violation of Mr. King’s state and federal due process right
to sentencing based upon accurate information.

4.

Defendant was denied his federal and state constitutional rights to an
impartial jury drawn from a fair cross-section of the community where there
was only one African-American in the array from which his jury was
selected due to the systemic exclusion of African-American residents of the
county from circuit court jury service.

5.

Substitute counsel’s presence and performance at sentencing denied Mr.
King his state and federal constitutional rights to effective assistance of
counsel.

6.

Mr. King was denied his state and federal right to the effective assistance of
counsel on appeal due to appellate counsel’s failure to raise a claim of
ineffective assistance of trial counsel in addition to the issues raised herein.

7.

Defendant was denied his constitutional right to the effective assistance of
counsel by his attorney’s failure to advocate for his client undeflected by
conflicting considerations, failure to investigate, failure to file pretrial
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motions, failure to present any meaningful defense, and other mistakes and
omissions.
8.

Prosecutor denied defendant a fair trial by vouching for the credibility of
the witnesses, misstating the evidence, and by going outside the scope of
the case.

9.

King was denied a fair and impartial trial where the trial judge failed to
control the trial proceedings and abused his discretion by allowing the
prosecutor to vouch for the credibility of the witnesses, misstating the
evidence, and going outside the scope of the case.

10.

Order of restitution must be vacated or modified as Mr. King had no assets
at the time of sentencing and currently has no assets and no ability to pay.
Additionally, the Michigan Department of Corrections is not adhering to the
court’s order with regards to restitution.

11.

Defendant was denied his right to a fair impartial jury.

12.

The trial court reversible erred by failing to hold a hearing regarding the
impartiality of the juror.
III. Discussion
A. Standard of Review

The petitioner’s claims are reviewed against the standards established by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA). The AEDPA provides:
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

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(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 proceedings.
28 U.S.C. § 2254(d).
“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 (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). However, “[i]n order for a federal court to find a
state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
decision must have been more than incorrect or erroneous. The state court’s application
must have been ‘objectively unreasonable.’” Id. at 520-21 (citations omitted); see also
Williams, 529 U.S. at 409. “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, __ U.S. __, 131 S. Ct.
770, 789 (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
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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).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme Court]
cases – indeed, it does not even require awareness of [Supreme Court] cases, so long as
neither the reasoning nor the result of the state-court decision contradicts them.” Early v.
Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established law” are to
be determined solely by resort to Supreme Court rulings, the decisions of lower federal
courts may be instructive in assessing the reasonableness of a state court’s resolution of
an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v.
Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp. 2d 354, 359
(E.D. Mich. 2002).
Lastly, 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
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Cir. 1998).
B. Claims One and Five: Ineffective Assistance of Counsel at Sentencing
King argues that his attorney rendered ineffective assistance at sentencing in
failing to object to offense variables 7 and 16. The relevant sentencing statute directs 50
points be scored under OV 7 in cases of “aggravated physical abuse.” Mich. Comp. Laws
§ 777.37(1). Aggravated physical abuse occurs when “[a] victim was treated with
sadism, torture, or excessive brutality or conduct designed to substantially increase the
fear and anxiety a victim suffered during the offense.” Id. King further argues that the
trial court erred in scoring five points for OV 16 because this offense variable applies
only to crimes against property, not crimes against people.
To establish that he received ineffective assistance of counsel, a petitioner must
show, first, that counsel’s performance was deficient and, second, that counsel’s deficient
performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687
(1984). A petitioner may show that counsel’s performance was deficient by establishing
that counsel’s performance was “outside the wide range of professionally competent
assistance.” Id. at 689. This “requires a showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at
687.
To satisfy the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
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undermine confidence in the outcome.” Id. at 694. A court’s review of counsel’s
performance must be “highly deferential.” Id. at 689. Habeas relief may be granted only
if the state-court decision unreasonably applied the standard for evaluating
ineffective-assistance-of-counsel claims established by Strickland. Knowles v.
Mirzayance, 556 U.S. 111, 122-23 (2009). “The question is not whether a federal court
believes the state court’s determination under the Strickland standard was incorrect but
whether that determination was unreasonable – a substantially higher threshold.” Id. at
123 (internal quotation omitted).
The Michigan Court of Appeals held, on direct review, that King’s conduct was
excessively cruel, harsh, and severe, justifying the scoring of 50 points for OV 7. King,
2008 WL 5197086 at *2. The state court also held that counsel was not ineffective for
failing to object to the scoring of OV 7 because it was correctly scored. “[A] state court’s
interpretation of state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting on habeas review.” Bradshaw v. Richey, 546 U.S.
74, 76 (2005). “[S]tate courts are the ultimate expositors of state law.” Mullaney v.
Wilbur, 421 U.S. 684, 691 (1975). Given that the Michigan Court of Appeals held that
offense variable 7 was correctly scored under Michigan law, King’s attorney was not
ineffective in failing to raise a futile objection. Coley v. Bagley, 706 F.3d 741, 752 (6th
Cir. 2014) (“Omitting meritless arguments is neither professionally unreasonable nor
prejudicial.”).
King also challenges the scoring of offense variable 16. He argues that points
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should be scored for this offense variable only for crimes against property, not crimes
against people. The Michigan Court of Appeals held that the trial court erred in scoring
five points for OV 16 because armed robbery is a crime against a person, not property,
but that the error was harmless because a five-point reduction in King’s total offense
variable score would not affect the guidelines range. King, 2008 WL 5197086 at *3.
Additionally, the Michigan Court of Appeals held that because King was not prejudiced
by defense counsel’s failure to object, defense counsel was not ineffective in failing to
object. Id. This Court must defer to the state court’s interpretation of state law.
Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Because the state court found only harmless
error in the scoring of the guidelines, defense counsel was not ineffective for failing to
object to the guidelines. Habeas relief is denied on this claim.

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C. Claim Two: Double Jeopardy Violation
King argues that his convictions for two counts of armed robbery and two counts
of felony firearm violated the Double Jeopardy Clause because they arose from the same
transaction.
The Double Jeopardy Clause of the Fifth Amendment provides, “No person . . .
shall . . . be subject for the same offense to be twice put in jeopardy of life or limb.” U.S.
Const. Amend. V. This clause affords defendants protection against three basic harms:
second prosecution for the same offense after acquittal, second prosecution for the same
offense after conviction, and multiple punishments for the same offense. Brown v. Ohio,
432 U.S. 161, 165 (1977). “Because the substantive power to prescribe crimes and
determine punishments is vested with the legislature . . . , the question under the Double
Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative
intent.” Ohio v. Johnson, 467 U.S. 493, 499 (1984) (internal citations omitted). “Where .
. . a legislature specifically authorizes cumulative punishment under two statutes for the
same conduct, regardless of whether those two statutes prescribe the ‘same’ conduct, . . .
a court’s task of statutory construction is at an end and the prosecutor may seek and the
trial court or jury may impose cumulative punishment under such statutes in a single
trial.” Missouri v. Hunter, 459 U.S. 359, 368-69 (1983). In determining whether the
Michigan legislature has intended to authorize cumulative punishments in the
circumstances presented here, this Court is “bound by a state court’s determination of the
legislature’s intent.” Banner v. Davis, 886 F.2d 777, 779-80 (6th Cir. 1989); see also
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McCloud v. Deppisch, 409 F.3d 869, 874 (7th Cir. 2005) (holding that a federal court is
“bound by” state court’s interpretation of legislative intent).
The Michigan Court of Appeals has concluded that multiple armed robbery and
felony-firearm convictions do not violate the Double Jeopardy Clause because the
legislature intended to impose multiple punishments in circumstances involving multiple
victims. People v. Wakeford, 418 Mich. 95, 111-12 (Mich. Ct. App. 1983). In this case,
the Michigan Court of Appeals held that because the crimes were committed against two
different victims and each victim was robbed at gunpoint, no double jeopardy violation
occurred.
Accepting, as the Court must, the state court’s interpretation of legislative intent,
the Court finds that King’s convictions do not violate the Double Jeopardy Clause. As
evidenced by the decision in Wakeford, the Michigan courts have ruled that the Michigan
Legislature intended to impose multiple punishments where a defendant engages in
conduct that has multiple victims. The determination by the Court of Appeals is
supported by the evidence and legal authority discussed above. Thus, King was not
subjected to multiple punishments for a single criminal act, but was instead subjected to
multiple punishments for multiple criminal acts. This does not offend the Double
Jeopardy Clause. See, e.g., United States v. Redditt, 87 F. App’x 440, 447 (6th Cir. May
21, 2003) (the Double Jeopardy Clause is not violated where a defendant receives
multiple punishments for committing separate criminal acts because he or she was not
subjected to multiple sentences for the same offense). The Court denies habeas relief on this
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claim.
D. Claim Three: Scoring of Offense Variable 8 Based Upon Inaccurate Information
King claims that offense variable 8 was scored based upon inaccurate information
because, under Mich. Comp. Laws § 777.38(1)(a), no points are to be scored if the sentencing
offense is kidnapping. King argues that unlawful imprisonment is a form of kidnapping and no
points should therefore have been scored for that offense.
A sentence violates due process if it is based on “misinformation of constitutional
magnitude[,]” Roberts v. United States, 445 U.S. 552, 556 (1980), or “extensively and
materially false” information, which the defendant had no opportunity to correct. Townsend v.
Burke, 334 U.S. 736 (1948). “Townsend and its progeny are generally viewed as having
established a due process ‘requirement that a defendant be afforded the opportunity of rebutting
derogatory information demonstrably relied upon by the sentencing judge, when such
information can in fact be shown to have been materially false.’” Stewart v. Erwin, 503 F.3d
488, 495 (6th Cir. 2007) (quoting Collins v. Buchkoe, 493 F.2d 343, 345 (6th Cir. 1974)).
King disagrees with the trial court’s scoring of this offense variable, but has not shown
that the trial court relied on “extensively and materially false” information that he had no
opportunity to correct. Townsend, 334 U.S. 736, 741 (1948). The trial court’s determination of
the facts was reasonable. 28 U.S.C. § 2254(d)(2). The Michigan Court of Appeals held that the
offense variable was correctly scored under Michigan law. In addition, his sentences are within
the statutory maximum penalty for armed robbery (life) and unlawful imprisonment (15 years).
Mich. Comp. Laws § § 750.317 & 750.349b. Accordingly, no deprivation of due process
occurred, and King is not entitled to habeas relief on the basis of this claim.

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E. Claim Five: Denial of Right to Impartial Jury Drawn from Fair Cross-Section
King claims that his right to an impartial jury drawn from a fair cross-section of the
community was violated because there was only one African-American person in the array from
which his jury was selected.
The Sixth Amendment guarantees a defendant the right to a jury venire that is “designed
to represent a fair cross section of the community.” Duren v. Missouri, 439 U.S. 357, 363-64
(1979). To establish a prima facie violation of the fair-cross-section requirement, the defendant
must show:
(1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of such persons in
the community; and (3) this underrepresentation is due to systematic exclusion of
the group in the jury-selection process.
Id. at 364, citing Taylor v. Louisiana, 419 U.S. 522 (1975). “The Sixth Amendment guarantees
only the opportunity for a representative jury, not a representative jury itself.” Ambrose v.
Booker, 684 F.3d 638, 645 (6th Cir. 2012). King bears the burden of establishing each element
of the prima facie fair-cross section claim, including underrepresentation and systematic
exclusion. See Berghuis v. Smith, 559 U.S. 314, 332 (2010); Duren, 439 U.S. at 364.
King fails to establish a prima facie fair cross-section claim. He bases his claim solely on
the fact that there was a single African-American person on the jury venire from which his jury
was drawn. It is well-established that “[e]vidence of a discrepancy on a single venire panel
cannot demonstrate systematic exclusion.” Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir.
1989). See also United States v. Orange, 49 F. App’x 815, 817 (10th Cir. Oct. 18, 2002)
(holding that evidence of a discrepancy on a single venire panel is insufficient to demonstrate

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systematic exclusion); United States v. Williams, 264 F.3d 561, 568 (5th Cir. 2001).
The Michigan Court of Appeals denied King’s claim, finding that he failed to identify
“any evidence suggesting that any underrepresentation of African-Americans in his particular
jury was due to systematic exclusion.” King, 2008 WL 5197086 at *5. King has presented no
evidence that other venires did not include a fair representation of African Americans, or that the
method used to draw the jury pool was designed to exclude African Americans. Accordingly,
the Michigan Court of Appeals’s rejection of his claim was a reasonable application of Duren.

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F. Claims Six and Seven: Ineffective Assistance of Trial and Appellate Counsel
Defendant argues that he was denied his constitutional right to the effective assistance of
counsel by his attorney’s failure to: request a continuance to allow him to locate and call as
witnesses two co-defendants; impeach Germaine Overton’s testimony; or object to vague and
incorrect jury instructions.
To establish that he received ineffective assistance of counsel, a petitioner must show,
first, that counsel’s performance was deficient and, second, that counsel’s deficient performance
prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, King
argues that his attorney should have requested a continuance to allow him to locate and call as
witnesses two men, Harold James Cargill and Brack Lorenzo Rucker. King identifies these two
men as his co-defendants and claims that if they had been called to testify the outcome of his
trial would have been different because he would have presented an entirely different trial
strategy. King fails to identify what this different trial strategy would have been. In addition,
King testified for the prosecution at Cargill’s trial and admitted to joining Cargill and Rucker in
the robbery. See Cargill v. Rapelje, No. 2:11–CV–11360, 2012 WL 6808514, *2 (E.D. Mich.
Nov. 30, 2012). Thus, it is apparent that neither Cargill’s nor Rucker’s appearance at trial would
have aided the defense.
King next argues that counsel was ineffective for failing to impeach Overton’s testimony,
which, King claims, was rife with inconsistencies. King fails to identify specific areas of crossexamination that counsel failed to explore or to identify specific questions counsel should have
asked but did not. The trial transcript shows that defense counsel cross-examined Overton
regarding apparent inconsistencies in his testimony. King’s conclusory allegation that counsel

17

could have done more is insufficient to warrant habeas relief.
Finally, King argues that counsel was ineffective in failing to object to vague and
incorrect jury instructions. King’s argument, however, fails to identify which jury instructions
were inadequate or in what way the instructions were incorrect. The Court will not create an
argument for him. His conclusory claim is insufficient to warrant habeas corpus relief.
G. Claim Eight: Prosecutorial Misconduct
King argues that habeas relief should be granted because the prosecutor committed
misconduct. King contends that the prosecutor vouched for the credibility of prosecution
witnesses, misstated the evidence, and referred to evidence outside the scope of the case.
Respondent argues these claims are procedurally default. The Court finds it unnecessary to
address the question of procedural default, it is not a jurisdictional bar to review of the merits of
an issue, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal courts are not
required to address a procedural-default issue before deciding against the petitioner on the
merits,” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520
U.S. 518, 525 (1997)). Application of a procedural bar would not affect the outcome of this
issue, and it is more efficient to proceed directly to the merits.
The “clearly established Federal law” relevant to a habeas court’s review of a
prosecutorial misconduct claim is the Supreme Court’s decision in Darden v. Wainwright, 477
U.S. 168, 181 (1986). Parker v. Matthews, __ U.S.__, 132 S. Ct. 2148, 2153 (June 11, 2012). In
Darden, the Supreme Court held that a “prosecutor’s improper comments will be held to violate
the Constitution only if they ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643

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(1974)). This Court must ask whether the Michigan Court of Appeals’ decision denying King’s
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, __ U.S. at __, 132 S. Ct. at 2155, (quoting Harrington, 562 U.S. at __,
131 S. Ct. at 786-87.
King points to only one passage in the transcript to support his prosecutorial misconduct
claim. He argues that the following portion of the prosecutor’s argument was inappropriate:
Again, look at their testimony. Look at how they testified. They did not have –
Alizae did hesitate with regards to whether or not Keenan King was that person.
Kavaciae did not. He did not attempt to struggle or search for particular answers
when asked by the defense attorney questions. His credibility is – is high, and
you have to give it a significant amount of credibility especially when you
compare it with what everyone else had to say.
Tr. 6/11/07 at 327.
King raised his prosecutorial misconduct claims on collateral review. The trial court,
although finding the claim defaulted, considered the merits of the claims and found them
lacking. This Court agrees.
Prosecutors may not vouch for a witness’s credibility. Prosecutorial vouching and an
expression of personal opinion regarding the accused’s guilt “pose two dangers: such comments
can convey the impression that evidence not presented to the jury, but known to the prosecutor,
supports the charges against the defendant and can thus jeopardize the defendant’s right to be
tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion
carries with it the imprimatur of the Government and may induce the jury to trust the
Government’s judgment rather than its own view of the evidence.” United States v. Young, 470
U.S. 1, 18-19 (1985). In this case, the prosecutor’s arguments explored the evidence presented at
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trial, the demeanor of witnesses and argued that these factors supported Kavaciae’s credibility.
The prosecutor did not imply any special knowledge about Kavaciae’s veracity. He simply
argued that the evidence supported a finding that Kavaciae was credible. The argument was not
improper.
King’s argument that the prosecutor misstated evidence and went outside the scope of the
case is unsupported by any specific allegations or reference to the record. The Court finds that
the state court’s denial of these claims as vague and unsupported, is a reasonable application of
Darden.
H. Claim Nine: Trial Court Failed to Control the Proceedings
King argues that habeas relief should be granted because the trial court’s failure to
control the proceedings denied him his right to a fair trial. Specifically, he alleges that the trial
court failed to prevent the prosecutor from vouching for witnesses and failed to give a curative
instruction regarding the prosecutor’s misconduct. As discussed above, King has not shown that
the prosecutor engaged in misconduct. King also fails to specify any other way the trial court
purportedly failed to control the proceedings. This claim is without merit.
I. Claim Ten: Improper Order for Restitution
King argues that the trial court erred in directing him to pay $800 in restitution. Mich.
Comp. Laws § 780.766 provides that a “court shall order . . . that the defendant make full
restitution to any victim of the defendant’s course of conduct that gives rise to the conviction.”
King argues that the court incorrectly imposed restitution without assessing his ability to pay or
substantiating the amount of loss sustained by the victims.
Subject matter jurisdiction exists under § 2254 “‘only for claims that a person is ‘in

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custody in violation of the Constitution or laws or treaties of the United States.’” Washington v.
McQuiggin, 529 F. App’x 766, 772 (6th Cir. July 11, 2013) (quoting Dickerson v. United States,
530 U.S. 428, 439 n.3 (2000); 28 U.S.C. § 2254(a)). Restitution orders generally “fall outside
the scope of the federal habeas statute because they do not satisfy the ‘in custody’ requirement of
a cognizable habeas claim.” Id. A federal court does not obtain jurisdiction over a challenge to
a restitution order merely because the petitioner is in custody at the time he files his claim.
There must be “a nexus between the petitioner’s claim and the unlawful nature of the custody.”
Bailey v. Hill, 599 F.3d 976, 980 (9th Cir. 2010). A restitution order “falls outside . . . the
margins of habeas . . . because it is not a serious restraint on . . . liberty as to warrant habeas
relief.” McQuiggin, 2013 WL 3466439 at *5. Where a petition raises a challenge to a restitution
order, the district court must dismiss that portion of the petition for lack of subject matter
jurisdiction. Id. at *6.
The Court lacks jurisdiction to address this claim; it does not relate to King’s custody.
J. Claims Eleven and Twelve: Denial of Right to a Fair and Impartial Jury
King’s eleventh and twelfth claims concern his argument that he was denied his right to a
fair and impartial juror because a juror who admitted to having previously having had a
conversation with Overton was permitted to remain on the jury and the trial court failed to
conduct an adequate inquiry into the allegations of improper contact.1 The Michigan Court of
Appeals summarized the circumstances of the alleged impropriety as follows:
After the jurors were selected, but before they were administered their oath, the

1

Respondent argues that these claims are procedurally defaulted. In this case, the
Court finds that the interests of judicial economy are best served by addressing the merits
of King’s claims. Hudson, 351 F.3d at 215.
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prosecutor revealed that Overton had disclosed that he may have had a
conversation about the case with one of the prospective jurors. The trial court
agreed to question the juror and the following exchange occurred:
Q.

[T]he prosecutor is indicating that Mr. Overton had indicated maybe he
had spoke to you about the case?

A.

Um no, not really.

Q.

All right. You don’t recall anything about being told anything about the facts-

A.

Hum-um

Q.

-either from him or anybody else?

A.

No. Yeah, I heard about it on the streets.
***

Q.

And you’ll be able to put that out of your mind, and upon deliberating in this
matter, only consider what comes to you in the course of this trial, right?

A.

Yes.

The juror further stated that she “just heard that it had happened,” and denied
hearing any specific details. When defense counsel asked the juror whether she
had any conversation with Overton in which the robbery was mentioned, the juror
denied this. The trial court commented, “I don’t see any big problem based on
what you’ve said. She can listen to what goes on here. So we’ll proceed with the
twelve that we have.”
King, 2008 WL 5197086 at *5.
The Michigan Court of Appeals concluded that the allegations failed to show that the
juror’s impartiality was influenced by any extraneous influence:
In this case, upon inquiry by the trial court, the juror denied having a conversation
about the case with Overton, and indicated that she had only heard “on the
streets” that it had happened, but did not hear any of the details. The juror
indicated that she could set aside what little she had heard and decide the case
only on the evidence presented at trial. In light of the juror’s responses, there is
no basis for concluding that the juror’s prior exposure to information would cloud
her impartiality, or that there is a real and substantial possibility that the jury’s
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verdict was tainted by extraneous influences. Further, we are satisfied that the
trial court made an appropriate inquiry. Both parties were apparently satisfied
with the juror’s responses and did not request any further inquiry. Accordingly,
the trial court’s failure to declare a mistrial or investigate the matter further was
not plain error.
King, 2008 WL 5197086 at *6.
The Sixth Amendment right to trial by jury encompasses the right to a fair trial by a panel
of impartial jurors. Irvin v. Dowd, 366 U.S. 717 (1961). The right to due process, however, does
not necessarily require a new trial in every instance in which a juror is potentially biased. Smith
v. Phillips, 455 U.S. 209, 217 (1982). Rather, “[d]ue process means a jury capable and willing to
decide the case solely on the evidence before it, and a trial judge ever watchful to prevent
prejudicial occurrences and to determine the effect of such occurrences when they happen.” Id.
“As a matter of law, clearly established Supreme Court precedent requires that a criminal
defendant be afforded the right to confront the evidence and the witnesses against him, and the
right to a jury that considers only the evidence presented at trial.” Doan v. Brigano, 237 F.3d
722, 733 n.7 (6th Cir. 2001) (citations omitted), overruled on other grounds by Wiggins v. Smith,
539 U.S. 510 (2003). “Thus, under clearly established federal law, jury exposure to extrinsic
evidence or other extraneous influence violates a defendant’s Sixth Amendment rights, . . . and a
state court decision that conflicts with this rule may justify habeas relief under the standard set
forth in the AEDPA.” Fletcher v. McKee, No. 08-1240, 2009 WL 4755293, *3 (6th Cir. Dec. 11,
2009).
The right to an impartial jury imposes on the trial judge the duty to investigate allegations
of external jury influences. Remmer v. United States, 347 U.S. 227, 229-230 (1954). The Sixth
Circuit Court of Appeals has held that a Remmer hearing is required “in all cases involving an

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unauthorized communication with a juror or the jury from an outside source that presents a
likelihood of affecting the verdict.” United States v. Rigsby, 45 F.3d 120, 123 (6th Cir. 1995).
See also Nevers v. Killinger, 169 F.3d 352, 373 (6th Cir.1999) ("When a trial court is presented
with evidence that an extrinsic influence has reached the jury which has a reasonable potential
for tainting that jury, due process requires that the trial court take steps to determine what the
effect of such extraneous information actually was on that jury."); overruled on other grounds by
Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000). Absent an outside influence on a juror or the
jury, the need for a Remmer hearing does not arise. United States v. Frost, 125 F.3d 346, 377
(6th Cir. 1997).
The record shows that after the trial court learned about Overton’s alleged contact with a
juror, the trial court questioned that juror individually. The juror denied discussing the case with
Overton and said that she could and would decide based upon the evidence presented in court. A
juror’s statements regarding his or her own impartiality may be given great weight by a trial
court judge in determining impartiality because “surely one who is trying as an honest man to
live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a
certain matter.” Remmer, 347 U.S. at 217 n.7 (internal quotation omitted). The trial court
credited the juror’s testimony that she would not be influenced by any extraneous contact. King
has failed to present any evidence or argument which would rebut the presumption that the state
court’s finding was correct. In addition, King failed to show the state court’s inquiry lacked
breadth and depth. The prosecutor and defense counsel were present at the hearing. The

juror was placed under oath before to being questioned. The trial court inquired about the
juror’s alleged contact with Overton and the juror’s ability to consider only the evidence
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presented at trial. King fails to show any deficiencies in the inquiry. This Court cannot
say that the state court’s handling of the matter was contrary to or an unreasonable
application of Supreme Court precedent; habeas relief is denied.
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of
the Rules Governing Section 2254 Proceedings now requires that the Court “must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.”
A COA may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(citation omitted). The Court concludes that reasonable jurists would not debate the
conclusion that the petition fails to state a claim upon which habeas corpus relief should
be granted. Therefore, the Court denies a certificate of appealability.
V. Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus and a certificate
of appealability are DENIED; this matter is DISMISSED WITH PREJUDICE.
IT IS ORDERED.

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S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: June 10, 2014
The undersigned certifies that a copy of this
document was served on the attorneys of record
and Kennan King by electronic means or U.S.
Mail on June 10, 2014.
S/Carol A. Pinegar
Deputy Clerk

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