Rodriguez v. McKee

Filing 11

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PETER ANTONIO RODRIGUEZ,
Petitioner,
CASE NO. 2:11-CV-14903
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.

KENNETH MCKEE,
Respondent.
_______________________________/
OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT OF HABEAS
CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING
LEAVE TO APPEAL IN FORMA PAUPERIS
Peter Antonio Rodríguez, (“Petitioner”), presently incarcerated at the Newberry
Correctional Facility in Newberry, Michigan, has filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In his application, petitioner challenges his
conviction and sentence of (1) conspiracy to commit armed robbery, Mich. Comp. Laws §
750.157a, and (2) armed robbery, Mich. Comp. Laws § 750.529. For the reasons stated
below, the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted of the above offenses following a jury trial in the Jackson
County Circuit Court. This Court recites the relevant facts relied upon by the Michigan
Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
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Near midnight on the night of November 21, 2007, the day before
Thanksgiving, defendant drove Josh Lay, Antwone Russ, and Antwon
Baker to Polly’s Country Market grocery store in Jackson, Michigan.
Defendant left the three men in the parking lot of the grocery store, and
drove away. Lay, Russ and Baker entered and robbed the store while armed
with BB guns. They then left the store and walked to a parking lot of an
adjacent apartment complex, where defendant picked them up. All four men
and defendant’s daughter, Jodie Rodríguez, were arrested for armed robbery
and conspiracy to commit armed robbery. Before trial, Lay, Russ, and
Baker pleaded guilty to one count of armed robbery in exchange for their
testimony against defendant and Jodie, who were tried together. Defendant
was convicted and Jodie was acquitted.
..........................................................................................................................
There was competent testimony that Lay went to defendant’s home
approximately one hour before the robbery, where he obtained a BB gun
and back pack. Baker, Ruff and Lay each testified that defendant drove Lay
to Polly’s and picked up Ruff and Baker along the way, with Baker sitting
in the backseat with the BB gun on his lap. Ruff testified that it was
defendant’s idea to wait for them in the adjacent apartment parking lot after
the robbery. Lay’s testimony supported that defendant was aware of the
plan to rob the grocery store, and that they would use BB guns.
People v. Rodriguez, No. 290599, * 1-2 (Mich.Ct.App. June 24, 2010).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 488 Mich. 1038,
NW2d (2011); reconsideration denied, 489 Mich. 937 (2011).
Petitioner now seeks a writ of habeas corpus on the following grounds:
I. There is legally insufficient evidence in this record to support petitioners
(sic) convictions in this cause in violation of due process of law. US
CONST AM VI, XIV.
II. Several instances of prosecutorial misconduct deprived defendant of a
fair trial contrary to the due process clause of the United States
Constitution.
III. Several instances of ineffective assistance of counsel deprived
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defendant of a fair trial contrary to the due process clause of the United
States Constitution.
IV. Defendant was denied due process and a fair trial where the trial court
would not allow him to impeach a witness with a pending UDAA charge.

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 decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court has
on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06
(2000). An “unreasonable application” occurs when “a state court decision unreasonably

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applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A
federal habeas court may not “issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that
state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 130 S. Ct. 1855,
1862 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[A] state court’s determination that a
claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 131 S.
Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
III. Discussion
A. Claim # 1. Sufficiency of the Evidence.
Petitioner first contends that he should not have been convicted of armed robbery
or conspiracy to commit armed robbery because he was not involved in the planning or
commission of the robbery, did not enter the store nor take part in anything that transpired
inside the store during the robbery, and did not transport the three robbers to and from the
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store.
It is beyond question that “the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970).
But the critical inquiry on review of the sufficiency of the evidence to support a criminal
conviction is, “whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). This inquiry,
however, does not require a court to “ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.” Instead, the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Id. at 318-19(internal citation and footnote omitted)(emphasis in the
original). Circumstantial evidence alone is sufficient to support a conviction, and it is not
necessary for the evidence at trial to exclude every reasonable hypothesis except that of
guilt. Johnson v. Coyle, 200 F. 3d 987, 992 (6th Cir. 2000)(internal quotations omitted).
More importantly, a federal habeas court may not overturn a state court decision
that rejects a sufficiency of the evidence claim simply because the federal court disagrees
with the state court’s resolution of that claim. Instead, a federal court may grant habeas
relief only if the state court decision was an objectively unreasonable application of the
Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “Because rational people
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can sometimes disagree, the inevitable consequence of this settled law is that judges will
sometimes encounter convictions that they believe to be mistaken, but that they must
nonetheless uphold.” Id. In fact, the Jackson standard “is so demanding that ‘[a]
defendant who challenges the sufficiency of the evidence to sustain his conviction faces a
nearly insurmountable hurdle.’” Davis v. Lafler, 658 F. 3d 525, 534 (6th Cir.
2011)(quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)(internal
quotation marks omitted)). Therefore, for a federal habeas court reviewing the
sufficiency of evidence for a state court conviction, “the only question under Jackson is
whether that finding was so insupportable as to fall below the threshold of bare
rationality.” Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).
Finally, on habeas review, a federal court does not reweigh the evidence or
redetermine the credibility of the witnesses whose demeanor was observed at trial.
Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder to
weigh the probative value of the evidence and resolve any conflicts in testimony. Neal v.
Morris, 972 F.2d 675, 679 (6th Cir. 1992). A habeas court therefore must defer to the
fact finder for its assessment of the credibility of witnesses. Matthews v. Abramajtys, 319
F.3d 780, 788 (6th Cir.2003).
The elements of armed robbery under Michigan law are: (1) an assault, and (2) a
felonious taking of property from the victim’s presence or person, (3) while the defendant
is armed with a weapon. See O'Guin v. Foltz, 715 F. 2d 397, 400 (6th Cir. 1983).
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Under Michigan law, a conspiracy is defined as “a mutual agreement or
understanding, express or implied, between two or more persons to a commit a criminal
act.” Cameron v. Birkett, 348 F. Supp. 2d 825, 839 (E.D. Mich. 2004)(quoting People v.
Carter, 415 Mich. 558, 567; 330 N.W.2d 314 (1982)). “[A] two-fold specific intent is
required for conviction: intent to combine with others, and intent to accomplish the illegal
objective.” Carter, 415 Mich. at 568. Direct proof of an agreement is not required, nor is
proof of a formal agreement necessary. Rather, it is sufficient that the circumstances,
acts, and conduct of the parties establish an agreement. People v. Cotton, 191 Mich. App.
377, 393; 478 N. W. 2d 681 (1991). A conspiracy may be proven by circumstantial
evidence or may be based on inference. Id.
Petitioner does not contest the elements of the charged offenses but argues that
there was insufficient evidence to convict him of aiding and abetting his co-defendants in
the commission of these crimes.
To support a finding under Michigan law that a defendant aided and abetted in the
commission of a crime, the prosecutor must show that:
1. the crime charged was committed by the defendant or some other person;
2. the defendant performed acts or gave encouragement that assisted the
commission of the crime; and
3. the defendant intended the commission of the crime or had knowledge
that the principal intended its commission at the time he gave aid and
encouragement.

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Riley v. Berghuis, 481 F. 3d 315, 322 (6th Cir. 2007)(citing People v. Carines, 460
Mich. 750, 757-58; 597 N.W. 2d 130 (1999)).
In order to be guilty of aiding and abetting under Michigan law, the accused must
take some conscious action designed to make the criminal venture succeed. See Fuller v.
Anderson, 662 F. 2d 420, 424 (6th Cir. 1981). Aiding and abetting describes all forms of
assistance rendered to the perpetrator of the crime and comprehends all words or deeds
which might support, encourage, or incite the commission of the crime. People v. Turner,
213 Mich. App. 558, 568; 540 N. W. 2d 728 (1995). The quantum or amount of aid,
advice, encouragement, or counsel rendered, or the time of rendering, is not material if it
had the effect of inducing the commission of the crime. People v. Lawton; 196 Mich.
App. 341, 352; 492 N. W. 2d 810 (1992). Finally, the Michigan Supreme Court has held
that there is no language in Michigan’s aiding and abetting statute that shows an intent by
the Michigan Legislature “to abrogate the common-law theory that a defendant can be
held criminally liable as an accomplice if: (1) the defendant intends or is aware that the
principal is going to commit a specific criminal act; or (2) the criminal act committed by
the principal is an ‘incidental consequence[ ] which might reasonably be expected to
result from the intended wrong.’” People v. Robinson, 475 Mich. 1, 9; 715 N.W. 2d 44
(2006)(quoting Perkins, Criminal Law (3d ed.), pp. 741-43, 745).
To be convicted of aiding and abetting, the defendant must either possess the
required intent to commit the crime or have participated while knowing that the principal

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had the requisite intent; such intent may be inferred from circumstantial evidence. See
Long v. Stovall, 450 F. Supp. 2d 746, 753 (E.D. Mich. 2006); People v. Wilson, 196
Mich. App. 604, 614; 493 N. W. 2d 471 (1992). The intent of an aider and abettor is
satisfied by proof that he knew the principal’s intent when he gave aid or assistance to the
principal. People v. McCray, 210 Mich. App. 9, 14; 533 N. W. 2d 359 (1995). An aider
and abettor’s state of mind may be inferred from all of the facts and circumstances,
including close association between the defendant and the principal, the defendant’s
participation in the planning and execution of the crime, and evidence of flight after the
crime. Turner, 213 Mich. App. at 568-69.
Mere presence, even with knowledge that a crime is being committed, is
insufficient to establish that a defendant aided and abetted in the commission of the
offense. People v. Norris, 236 Mich. App. 411, 419-20; 600 N. W. 2d 658 (1999); Fuller
v. Anderson, 662 F. 2d at 424. “[H]owever, a claim of mere presence is not a ‘catch-all
excuse’ to defeat an inference of guilt beyond a reasonable doubt. In evaluating a ‘mere
presence’ defense, a factfinder must distinguish, based upon the totality of the
circumstances, between one who is merely present at the scene and one who is present
with criminal culpability.” See Long v. Stovall, 450 F. Supp. at 754 (internal citation
omitted). An aider and abettor who is intentionally present during the commission of a
crime may be silent during the crime’s commission, “but by his demeanor, or through
behavior and acts not directly related to the crime, provide ‘moral support’ that is
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recognizable to, and relied upon by, the principal. Such acts may be silent and may not
be overt but may still amount to more than ‘mere’ presence.” Sanford v. Yukins, 288 F. 3d
855, 862 (6th Cir. 2002). Michigan’s “broad definition” of aiding and abetting “easily
encompasses situations where the alleged aider and abettor, although silent and not
committing acts directly related to the crime, was not ‘merely’ present, but providing
emotional encouragement and support.” Id.
As the Michigan Court of Appeals indicated in rejecting petitioner’s sufficiency of
evidence claim, See Rodriguez, Slip. Op. at * 1, there was sufficient evidence presented at
trial to establish that Co-Defendant Lay went to petitioner’s house one hour before the
robbery and obtained a BB gun and backpack. Co-Defendant Antwon Baker, held his
gun on his lap while petitioner drove the car. Co-Defendants Baker, Ruff and Lay each
testified that petitioner drove Lay to the store, picking up Ruff and Baker along the way.
Furthermore, Ruff testified that it was petitioner’s idea to wait for them in the adjacent
apartment parking lot after the robbery. Id. * 2.
In light of the evidence presented in this case, the Michigan Court of Appeals did
not unreasonably apply clearly established federal law in determining that the evidence
was sufficient to convict petitioner of armed robbery and one count of conspiracy to
commit armed robbery on an aiding and abetting theory. See Brown v. Konteh, 567 F. 3d
191, 209-12 (6th Cir. 2009). In particular, “in light of the strong circumstantial evidence”
that petitioner “was involved in the planning and execution of” these crimes, “at least one
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‘rational trier of fact could have found the essential elements of the crime[s] beyond a
reasonable doubt.’” Davis v. Lafler, 658 F. 3d 525, 535 (6th Cir. 2011)(quoting Jackson
v. Virginia, 443 U.S. at 319 (additional citation omitted). Moreover, when petitioner’s
case is reviewed pursuant to the AEDPA’s “double deference” standard, this Court is
unable to state that the Michigan Court of Appeals’ decision that there was sufficient
evidence to convict petitioner of armed robbery and conspiracy was “so far out of line
with the very general standard set forth in Jackson v. Virginia as to warrant granting
[petitioner] habeas relief.” Id.
The Michigan Court of Appeals’ determination that there was sufficient evidence
to support petitioner’s convictions for armed robbery and conspiracy to commit armed
robbery was not an unreasonable application of clearly established federal law, so as to
entitle petitioner to habeas relief on his first claim. See Bradley v. Birkett, 192 Fed. Appx.
468, 480-81 (6th Cir. 2006).
B. Claim # 2. The prosecutorial misconduct claims.
Petitioner next contends that he was denied a fair trial because of prosecutorial
misconduct.
Respondent argues that petitioner’s prosecutorial misconduct claims are
procedurally defaulted because petitioner failed to preserve the issues at trial.
This Court notes that procedural default is not a jurisdictional bar to the review of
a habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). In addition,
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“[F]ederal 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)). “Judicial economy might
counsel giving the [other] question priority, for example, if it were easily resolvable
against the habeas petitioner, whereas the procedural-bar issue involved complicated
issues of state law.” Lambrix, 520 U.S. at 525. Petitioner’s third claim alleges that his
trial counsel was ineffective for failing to object to the instances of prosecutorial
misconduct alleged in his second claim. Ineffective assistance of counsel may establish
cause for procedural default. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). Given
that the cause and prejudice inquiry for the procedural default issue merges with an
analysis of the merits of petitioner’s defaulted claims, it would be easier to consider the
merits of the claims. See Cameron v. Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich.
2004).
“Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing 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 thus form the basis for habeas relief only if
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the conduct was so egregious as to render the entire trial fundamentally unfair based on
the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. at 643-45. The
Court must focus on “‘the fairness of the trial, not the culpability of the prosecutor.’”
Pritchett v. Pitcher, 117 F. 3d 959, 964 (6th Cir. 1997) (quoting Serra v. Michigan Dep't
of Corr., 4 F. 3d 1348, 1355 (6th Cir. 1993)). Thus, 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 (2012)(quoting
Harrington, 131 S. Ct., at 786–87). This is particularly so, “because the Darden standard
is a very general one, leaving courts ‘more leeway ... in reaching outcomes in
case-by-case determinations[,]’”. Id. (quoting Yarborough v. Alvarado, 541 U.S. at 664).
Petitioner first claims that the prosecutor deprived him of a fair trial by bringing to
the attention of the jury that his three co-conspirators agreed to testify in exchange for a
plea deal.
Although petitioner claims that the prosecutor improperly brought to the attention
of the jury that petitioner’s co-defendants agreed to testify in exchange for a plea deal, the
prosecutor had the right to bring out this information. “Guilty pleas may be elicited by the
prosecutor on direct examination so that the jury may assess the credibility of the
witness.” See United States v. Benson, 591 F.3d 491, 499 (6th Cir. 2010). The Michigan
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Court of Appeals also denied petitioner’s claim finding:
When an accomplice testifies, defense counsel or the prosecutor can inform
the jury that the testimony was secured by way of a favorable plea
agreement with the prosecutor. If defense counsel does not want evidence
of the plea agreement to be introduced at trial, he must object before the
prosecutor attempts to elicit the testimony from the accomplice on direct
examination. However, if defense counsel chooses not to object, and
instead cross-examines the accomplice about the plea agreement to
undermine his credibility, that defendant cannot then argue on appeal the
introduction of the plea agreement prejudiced him at trial. . . . Here, defense
counsel did not object to the testimony at issue, but instead used the plea
agreements to impeach the credibility of each accomplice on
cross-examination and during closing argument.
Rodriguez, Slip Op * 3 (internal citations omitted).
By choosing not to object to the introduction of the plea agreement and deciding to
challenge the credibility of the co-defendants, petitioner cannot now argue that
introduction of the plea agreement constituted error.
Petitioner next contends “that the prosecutor impermissibly vouched for the
credibility of Lay, Baker, and Ruff when she elicited statements from each that they were
testifying truthfully as a condition of their plea agreement.”
A prosecutor may not express a personal opinion concerning the guilt of a
defendant or the credibility of trial witnesses, because such personal assurances of guilt or
vouching for the veracity of witnesses by the prosecutor “exceeds the legitimate
advocates’ role by improperly inviting the jurors to convict the defendant on a basis other
than a neutral independent assessment of the record proof.” Caldwell v. Russell, 181 F.3d

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731, 737 (6th Cir. 1999)(internal citations omitted). The test for improper vouching for a
witness is whether the jury could reasonably believe that the prosecutor was indicating a
personal belief in the witness’ credibility. United States v. Causey, 834 F. 2d 1277, 1283
(6th Cir. 1987). “[G]enerally, improper vouching involves either blunt comments, or
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)(internal citations omitted). It is
worth noting, however, that the Sixth Circuit has never granted habeas relief for improper
vouching. Byrd v. Collins, 209 F. 3d 486, 537 and n. 43 (6th Cir. 2000). Even on direct
appeal from a federal conviction, the Sixth Circuit has held that to constitute error, a
prosecutor’s alleged misconduct of arguing his personal belief, in a witness’ credibility or
in a defendant’s guilt, must be flagrant and not isolated. See United States v. Humphrey,
287 F.3d 422, 433 (6th Cir. 2002).
The record reflects that the witnesses testified pursuant to a plea agreement. The
proposed testimony was introduced within opening argument to inform the jury as to what
the assistant prosecutor proposed to show and later reintroduced in closing argument to
show that a witness should be believed after their credibility was attacked by opposing
counsel. The prosecutor also indicated that “We stated from the very beginning this was
going to be an issue of credibility, who do you believe?” (Tr. 1/7/2009, p. 125). The
questions and comments did not amount to improper vouching, because they merely
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encompassed the terms of the co-defendants’ plea agreements with the state and the
testimony given at trial. See United States v. Trujillo, 376 F. 3d 593, 608-09 (6th Cir.
2004); See also United States v. Owens, 426 F. 3d 800, 806-07 (6th Cir. 2005).
Furthermore, the trial court admonished the jury that what the lawyers said in
closing argument was not evidence. (Tr. 1/7/2009, p. 193). The prosecutor herself
acknowledged that the jury was to use reason and common sense when looking at the
testimony from the witnesses. (Id. at 183-184). The prosecutor conceded that it was the
jury’s domain to determine the witnesses’ credibility. (Id. at 125). Finally, at the
conclusion of the closing arguments, the trial court again advised the jury that the
lawyers’ opening statements and closing arguments were not evidence. The court further
admonished the jurors to scrutinize any promises made and any reasons to tell the truth or
lie. (Id. at 195). The trial court also instructed the jurors about the factors that they should
use to evaluate the credibility of the witnesses (Id. at 125).
Any alleged vouching for the credibility of witnesses did not rise to the level of a
due process violation, in light of the fact that the jury was informed by both the
prosecutor and the judge that the prosecutor’s arguments were not evidence and the judge
instructed jury as to the factors to consider in evaluating the credibility of the witnesses’
testimony. Byrd, 209 F. 3d at 537-38. Moreover, because the prosecutor also conceded in
her closing argument that the witnesses’ credibility was for the jury to determine, any
improper vouching did not render the trial fundamentally unfair. See Shacks v. Tessmer, 9
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Fed. Appx. 344, 349-50 (6th Cir. 2001).
Moreover, as the Michigan Court of Appeals noted, when viewed in the context of
the entire closing argument, the prosecutor’s remarks on the credibility of the witnesses
were based on the evidence presented at trial and did not suggest that the prosecutor had
any special knowledge of the truth that was unknown to the jury. The prosecutor’s
remarks did not amount to improper vouching, because the prosecutor was merely
pointing out various discrepancies between the co-defendant’s testimony and petitioner’s
testimony. See U.S. v. Rankin, 1 Fed. Appx. 389, 394 (6th Cir. 2001).
Petitioner next contends that the prosecutor called Detective Timothy Schlundt for
the sole purpose of vouching for Ruff’s credibility. The record reflects that defense
counsel impeached Ruff on cross-examination when Ruff testified that he did not have a
clear memory of the events of the robbery. The prosecution then recalled Schlundt to
rehabilitate the witness. The Michigan Court of Appeals held that it was proper to recall
Detective Schlundt in order to rehabilitate Ruff’s testimony after his credibility had been
attacked by defense counsel. Rodriguez, Slip. Op. at * 4.
Although petitioner has framed his claim about Detective Schlundt’s testimony as
a prosecutorial-misconduct challenge, “it amounts in the end to a challenge to the trial
court’s decision to allow the introduction of this evidence.” Webb v. Mitchell, 586 F. 3d
383, 397 (6th Cir. 2009). The Michigan Court of Appeals determined that it was proper
for the prosecutor to recall Detective Schlundt to rehabilitate Ruff’s testimony after the
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latter’s credibility had been attacked by defense counsel. “A prosecutor may rely in good
faith on evidentiary rulings made by the state trial judge and make arguments in reliance
on those rulings.” Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008). Furthermore, 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).
Petitioner’s claim that the prosecutor improperly vouched for the credibility of the
witness by recalling Detective Timothy Schlundt to rehabilitate Ruff did not amount to
vouching for Ruff’s credibility; therefore, petitioner’s claim is not cognizable in a federal
habeas corpus proceeding. See e.g Roland v. Mintzes, 554 F. Supp. 881, 890 (E.D. Mich.
1983).
Petitioner also alleges that the prosecutor distorted the time-line testimony by
arguing that petitioner’s version of the events as they occurred was inconsistent with
other facts found in the record. Petitioner points to the following comments by the
prosecutor:
Peter Rodríguez cannot physically be in the Concord Apartments parking
lot picking up three people who admit that they had just robbed Polly’s at
12:30 when officers are on the scene at 12:22.
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(Tr. 1/7/2009, pp. 127-128).
The Michigan Court of Appeals found that the prosecutor was merely arguing
from the facts that supported her case in chief and misspoke when giving reference to the
time of petitioner’s presence in the parking lot. Rodriguez, Slip Op. at 4. The Michigan
Court of Appeals further concluded that the statement contained poor syntax, not that the
prosecutor intended to distort the timeline by alleging the store had been robbed at 12:30.
The statement should have indicated that petitioner was in the parking lot of the Concord
Apartments at 12:30 picking up his co-defendants. Id., at * 4, n. 2
Poor syntax does not constitute a distortion of the timeline. Prosecutors must be
given leeway to argue reasonable inferences from the evidence. Byrd v. Collins, 209 F. 3d
at 535.
Petitioner’s last prosecutorial misconduct claim alleges that the prosecutor
presented perjured testimony.
The deliberate deception of a court and jurors by the presentation of known and
false evidence is incompatible with the rudimentary demands of justice. Giglio v. United
States, 405 U.S. 150, 153 (1972); See also Anderson v. Jackson, 567 F. Supp. 2d 973, 981
(E.D. Mich. 2008). There is also a denial of due process when the prosecutor allows false
evidence or testimony to go uncorrected. Napue v. Illinois, 360 U.S. 264, 269
(1959)(internal citations omitted). To prevail on a claim that a conviction was obtained
by evidence that the government knew or should have known to be false, a defendant
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must show that the statements were actually false, that the statements were material, and
that the prosecutor knew they were false. Coe v. Bell, 161 F. 3d 320, 343 (6th Cir. 1998).
However, a habeas petitioner must show that a witness’ statement was “indisputably
false,” rather than misleading, to establish a claim of prosecutorial misconduct or a denial
of due process based on the knowing use of false or perjured testimony. Byrd v. Collins,
209 F. 3d at 517-18.
Mere inconsistencies in a witness’ testimony do not establish the knowing use of
false testimony by the prosecutor. Coe, 161 F. 3d at 343. Additionally, the fact that a
witness contradicts himself or herself or changes his or her story also does not establish
perjury either. Malcum v. Burt, 276 F. Supp. 2d 664, 684 (E.D. Mich. 2003)(citing
Monroe v. Smith, 197 F. Supp. 2d 753, 762 (E.D. Mich. 2001)). A habeas petition should
be granted if perjury by a government witness undermines the confidence in the outcome
of the trial. Id.
Petitioner has failed to establish that the witnesses committed perjury. Petitioner
claims that Deputy Kirk Douglas Carter and Lay provided false testimony, yet “the record
indicates that both witnesses testified consistently and nothing indicates that the
prosecutor ‘knowingly use[d] false testimony to obtain a conviction.’” Rodriguez, Slip
Op. at 4. Furthermore, Lay’s testimony that petitioner participated in the robbery is
supported by the record that petitioner was the driver and received some of the money
afterwards. Petitioner has failed to show that Carter and Lay testified falsely or that the
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Rodriguez v. McKee, 11-CV-14903

prosecutor knew that Carter and Lay had testified falsely. See Rosencrantz v. Lafler, 568
F. 3d 577, 587 (6th Cir. 2009). Petitioner is not entitled to habeas relief on his perjury
claim.
C. Claim # 3. Ineffective assistance of trial counsel.
Petitioner’s third claim alleges that he was denied the effective assistance of trial
counsel.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the defendant
must demonstrate that, considering all of the circumstances, counsel’s performance was
so deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the
defendant must overcome a strong presumption that counsel’s behavior lies within the
wide range of reasonable professional assistance. Id. In other words, petitioner must
overcome the presumption that, under the circumstances, the challenged action might be
sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that
such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant
must show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694. “Strickland’s test for prejudice is a demanding one. ‘The likelihood of a different
result must be substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379
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(6th Cir. 2011)(quoting Harrington, 131 S. Ct. at 792). The Supreme Court’s holding in
Strickland places the burden on the defendant who raises a claim of ineffective assistance
of counsel, and not the state, to show a reasonable probability that the result of the
proceeding would have been different, but for counsel’s allegedly deficient performance.
See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
Petitioner first claims that trial counsel was ineffective for failing to object to the
instances of prosecutorial misconduct that he raised in his second claim.
To show prejudice under Strickland for failing to object to prosecutorial
misconduct, a habeas petitioner must show that but for the alleged error of his trial
counsel in failing to object to the prosecutor’s improper questions and arguments, there is
a reasonable probability that the proceeding would have been different. Hinkle v. Randle,
271 F. 3d 239, 245 (6th Cir. 2001). Because the Court has already determined that the
prosecutor’s comments did not deprive petitioner of a fundamentally fair trial, petitioner
is unable to establish that he was prejudiced by counsel’s failure to object to these
remarks. See Slagle v. Bagley, 457 F. 3d 501, 528 (6th Cir. 2006).
Petitioner next contends that trial counsel was ineffective for failing to investigate
the time line as to the police officers’ arrival at the crime scene and their subsequent
investigation procedures, or whether Josh Lay had four driving citations.
Petitioner failed to provide any evidence either to the state courts or to this Court
to establish that any of this evidence would have been exculpatory. Conclusory
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Rodriguez v. McKee, 11-CV-14903

allegations of ineffective assistance of counsel, without any evidentiary support, do not
provide a basis for habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998).
By failing to present any evidence to the state courts in support of his ineffective
assistance of claim, petitioner is not entitled to relief on his ineffective assistance of
counsel claim with this Court. See Cooey v. Coyle, 289 F. 3d 882, 893 (6th Cir.
2002)(citing 28 U.S.C. § 2254(e)(2)(A)(ii)).
Petitioner also claims that counsel was ineffective failing to argue better for
admission of UDAA charge to impeach a witness. Counsel, did, in fact, argue for the
admission of the UDAA charge, but did not prevail. Petitioner’s ineffective assistance
“relates to defense counsel’s failure to achieve substantive results rather than a failure to
file procedural motions.” Mason v. Mitchell, 320 F. 3d 604, 617 (6th Cir. 2003).
“However, Strickland’s objective standard of reasonableness does not require lawyers to
be perfect.” Id.
Finally, petitioner contends that counsel was ineffective for failing to request a
jury instruction on “mere presence” or for failing to object to the sentencing guidelines.
Although petitioner alleges counsel was ineffective for failing to object to lack of
instruction or miscoring of guidelines, the instruction was given and the guidelines were
correctly scored. Rodriguez, Slip. Op. at * 7. Trial counsel was not ineffective for failing
to raise a futile objection. See U.S. v. Johnson, 9 Fed.Appx. 373, 374 (6th Cir.
2001)(citing McQueen v. Scroggy, 99 F.3d 1302, 1328 (6th Cir. 1996)). Petitioner is not
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Rodriguez v. McKee, 11-CV-14903

entitled to habeas relief on his third claim.
D. Claim # 4. Impeachment of witness with pending UDAA charge.
Petitioner’s fourth claim alleges that he was denied a fair trial when the judge
failed to allow him to impeach a witness with a pending UDAA charge.
“[T]he Confrontation Clause guarantees only ‘an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, that the defendant might wish.’” United States v. Owens, 484 U.S. 554,
559 (1988)(internal quotations omitted). The Confrontation Clause of the Sixth
Amendment does not prevent a trial judge from imposing limits on a defense counsel’s
inquiry into potential bias of a prosecution witness; to the contrary, trial judges retain
wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits
on such cross-examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, a witness’ safety, or interrogation that is repetitive or
only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Trial counsel successfully impeached defendant Lay. He first brought out that Lay
had recruited both defendants Ruff and Baker (Tr. 1/6/2009, p. 51). Counsel then brought
out the discrepancy between what Lay had said that he had taken and what the store was
missing. ( Id. at 61-62) and that Lay failed to mention Ruff’s name when first talking to
the police. (Id. at 64). Furthermore, Petitioner claimed that Lay merely testified to what
the prosecutor wanted to hear so that he could receive a lower sentence. (Tr. 1/7/2009, p.
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Rodriguez v. McKee, 11-CV-14903

174). In light of the fact that testimony regarding a pending UDAA charge would have
been cumulative to other impeachment evidence, allowing counsel to impeach Lay with
the UDAA charge did not violate petitioner’s right to confrontation or his right to present
a defense. See Washington v. Renico, 455 F.3d 722, 728-29 (6th Cir. 2006). Petitioner is
not entitled to relief on his fourth and final claim.
IV. A Certificate of Appealability
A habeas petitioner must receive a certificate of appealability (“COA”) in order to
appeal the denial of a habeas petition for relief from either a state or federal conviction. 1
28 U.S.C. § 2253(c)(1)(A), (B). A court may issue a COA “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 federal district court rejects 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 district court may not conduct a full merits review,
1

Effective December 1, 2009, the newly created Rule 11 of the Rules Governing
Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides
that “[t]he district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Rule 11(a), 28 U.S.C. foll. § 2254.
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but must limit its examination to a threshold inquiry into the underlying merit of the
petitioner’s claims. Id. at 336-37.
The Court will deny a certificate of appealability, because jurists of reason would
not find the Court’s resolution of the claims to be debatable.
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP) is a
lower standard than the standard for certificates of appealability. See Foster v. Ludwick,
208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v. Youngblood, 116 F.
3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of appealability may only be
granted if petitioner makes a substantial showing of the denial of a constitutional right , a
court may grant IFP status if it finds that an appeal is being taken in good faith. Id. at 76465; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a). “Good faith” requires a showing that the
issues raised are not frivolous; it does not require a showing of probable success on the
merits. Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not debate this
Court’s resolution of Petitioner’s claims, the issues are not frivolous; therefore, an appeal
could be taken in good faith and Petitioner may proceed in forma pauperis on appeal. Id.
V. Conclusion
For the reasons stated above, this Court concludes that Petitioner Rodríguez is not
entitled to federal-habeas relief on the claims presented in his petition.

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Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is
DENIED WITH PREJUDICE. (Dkt.# 1).
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be granted leave to appeal in
forma pauperis.

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: May 27, 2014
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on May 27, 2014, by electronic and/or ordinary mail.
s/Catherine A. Pickles
Judicial Assistant

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