Perry v. Woods
OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability. Signed by District Judge Denise Page Hood. (Monda, H)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
BASIL PERRY, #261718,
CASE NO. 2:12-CV-10885
HONORABLE DENISE PAGE HOOD
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
Michigan prisoner Basil Perry (“Petitioner”) has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. §2254 asserting that he is being held in violation of
his constitutional rights. Petitioner was convicted of four counts of third-degree criminal
sexual conduct, MICH. COMP. LAWS § 750.520d(1)(a), and one count of child sexually
abusive activity, MICH. COMP. LAWS § 750.145c(2), following a jury trial in the Monroe
County Circuit Court. He was sentenced as a third habitual offender, MICH. COMP. LAWS
§ 769.11, to concurrent terms of 10 to 30 years imprisonment on the criminal sexual
conduct convictions and 10 to 40 years imprisonment on the child sexually abusive activity
conviction in 2006. In his pleadings, he raises claims concerning the trial court’s denial of
his motion for relief from judgment and the effectiveness of trial and appellate counsel.
Respondent has filed an answer to the petition contending that it should be denied. For the
reasons stated herein, the Court concludes that Petitioner’s claims lack merit and denies
the petition. The Court also denies a certificate of appealability.
Facts and Procedural History
Petitioner’s convictions arise from his sexual activities and picture-taking with two
teenage girls in Luna Pier, Michigan in 2004. At trial in 2006, former Luna Pier police
officer Dean Ansel testified that he responded to a call from Petitioner’s son, Blake Perry
(“Blake”), at their residence in October, 2004. When he arrived, Blake gave him sexually
explicit photographs depicting Petitioner and two teenage girls and asked to be taken to the
police station. Ansel took Blake to the police station and the photographs were tagged and
put in the evidence locker. The matter was eventually referred to the Michigan State
Police. Ansel did not further investigate the matter, although he did speak with Magdelena
Sanchez who came looking for Blake that day and with Petitioner by phone that evening.
Tara Stout (“Tara”), age 19, testified that she first met Petitioner around March, 2004
when he was dating one of her friends and that she introduced him to her cousin, “MR.”
Tara identified several photographs depicting herself, MR, and Petitioner and said that they
were taken in Petitioner’s bedroom. In those photographs, Tara and MR are nude and
Petitioner is wearing shorts, but no shirt. Petitioner took the photographs of the girls and
either she or MR took the photographs with Petitioner. A few photographs were taken in
the Monroe Rite Aid parking lot when Petitioner first bought the camera.
Tara stopped seeing Petitioner around July, 2004 after he bought her a car, although
she did not have a driver’s license. The last time she saw Petitioner was when he met her
and MR on the road to change a tire. Tara no longer had the car and believed that it was
either stolen or retrieved by Petitioner when she was in Taylor, Michigan. Tara said that
she had copies of the photographs for a period of time, but she thought they were in the
car when it was taken.
Tara testified that she engaged in sex with Petitioner three times in 2004 when she
was 17 years old. She was also present when Petitioner had regular sex and oral sex with
MR – at the time when the photographs were taken. She did not believe that MR saw
Petitioner again after they met him on the road.
On cross-examination, Tara testified that Petitioner asked her to care for his son
after she met him. She asked Petitioner to buy her the car, but never reported it stolen
because it was not in her name and she did not have a license. Tara said that she had sex
with Petitioner after he had broken up with her friend. She introduced MR to Petitioner
because MR’s parents had kicked her out, MR was a call girl and needed money, and
Petitioner had money. Tara never felt threatened by Petitioner. Tara testified that she
engaged in sexual activity with Petitioner and MR at his home when no one else was there.
She said that she had engaged in such activity with MR before but had never taken
photographs or videotapes previously. She denied that the photographs were taken at a
motel in Ohio. She said that Petitioner bought her the car because she and MR agreed to
have a threesome with him. Tara admitted that she used Petitioner to get a car and that
MR used him for money and a place to stay. MR took care of Petitioner’s son while he was
at work. Tara admitted that they were drinking when the threesome occurred. Afterward,
one of Petitioner’s friends came over with a case of beer.
Tara’s mother and MR’s aunt, Tammy Redding, testified that she met Petitioner
when he came to her apartment looking for the girls in August, 2004. She told him that
they did not live there. When Petitioner asked how old MR was, Redding told him that MR
was 15 years old. Petitioner said that was not what the girls had told him.
MR testified that she met Petitioner while visiting her cousin Tara at a friend’s
apartment in Monroe. She also went to Petitioner’s house with him and Tara. When
Petitioner asked her how old she was, she lied and told him she was 17 years old even
though she was only 15 years old. MR reviewed the photographs and identified the people
in them as herself, Tara, and Petitioner. She said that the photographs were taken at
Petitioner’s house in Luna Pier and at a drug store in Monroe. The photographs were taken
with Petitioner’s camera and he had the film developed at the store. The three of them took
turns posing and taking the photographs in the summer of 2004. MR also testified that she
had vaginal, digital, and oral sex with Petitioner during that same time period when she was
only 15 years old.
MR further testified that she stayed in the Monroe area, at Tara’s friend’s apartment
and Petitioner’s house, most of that summer. She and Tara left the area in late August or
early September, 2004. MR said that she and Tara had a copy of the photographs after
they were first developed, but Petitioner took them back some time before the car was
taken. MR said that she told Petitioner and other people that she was 17 years old
because she wanted to be older. She acknowledged that she never reported Petitioner’s
actions to the police. At the time of trial, she lived with her father in River Rouge, Michigan.
On cross-examination, MR admitted that Tara introduced her to Petitioner because
she (MR) was running the streets and did not have a place to stay. She thought that she
first met Petitioner in June, 2004 and that it was a few weeks before a dance recital that
they attended together. At one point, MR spoke to a social services employee about caring
for Petitioner’s son. She told the woman that she was 17 years old, but she could not
produce identification. As to the photographs, MR said that they were drinking at the time,
but she knew what she was doing. She confirmed that she did not report her activities with
Petitioner to the police. She also admitted that she had sex with other men to get money
and that she told them that she was 17 or 18 years old. She did not take photographs or
videotapes with them.
MR confirmed that she had sex with Petitioner at his house, that Tara was present,
and that the photographs were taken in July, 2004. MR recalled being in juvenile detention,
but could not recall if they took the photographs before or after that time. She said that she
and Tara saw Petitioner a few times after she got out of detention, but stopped once they
got the car. She remembered seeing Petitioner when they had a flat tire near the
campground. MR was not sure if Petitioner’s son was living with Petitioner before she went
to the detention center, but he was afterward. MR denied knowing Magdelena Sanchez.
MR admitted that she lied to Petitioner and that she lies when dealing with other people.
On re-direct examination, MR admitted that she stayed with Petitioner and had sex with him
because he gave her “money and stuff” and she used him.
MR’s father, Robert Redding, confirmed that his daughter was born in September,
1988. He said that he did not know what his daughter was doing in 2004. He had never
met Petitioner before seeing him in court. On cross-examination, he testified that he
received a call from Tammy Redding that MR was at her house and that she did not want
her staying there. He also recalled that MR was arrested for shoplifting in the spring of
2004 and that he saw the girls at a campground.
Michigan State Police Detective-Sergeant David Meyer testified about his
investigation of the case. He obtained the photographs of the girls and Petitioner from the
Luna Pier Police Department in November, 2004. He spoke to Tammy Redding in
December, 2004, MR just before the preliminary examination, and Tara Stout just after the
exam. He interviewed Petitioner at the Monroe County Jail in November, 2004 and at the
Michigan State Police Post in December, 2004. Petitioner admitted that he was in some
of the photographs with the girls, that he took some of the photographs, and that he
developed the photographs, all in Luna Pier.
On cross-examination, Meyer testified that Petitioner was being held in the jail on
an immigration matter when he first spoke to him, that he came in voluntarily for the second
interview, that he showed Meyer the car paper signed by Tammy Redding, and that he
admitted being in the photographs. Meyer also recalled his conversations with Tara Stout
in which she admitted being in some photographs, taking some photographs, and having
sex with Petitioner at his house in Luna Pier. Meyer said that they did not search
Petitioner’s house because he relied on the girls’ statements and Petitioner’s admission
about where the photographs were taken. The issue of sexual activity between Petitioner
and MR was first brought out when MR testified at the preliminary examination. Meyer then
contacted Tara Stout and she confirmed those allegations.
Petitioner did not testify at trial. His son, Blake Perry, testified that MR was his
babysitter when he lived with his dad in Luna Pier in 2004. He thought that this was during
football season. On cross-examination, Blake testified that he called the police after he got
into a fight with MR. He initially denied giving the photographs to the police officer, but then
admitted doing so. Blake acknowledged that he is bipolar and has memory problems.
After a short deliberation, the jury found Petitioner guilty of the charged offenses.
The trial court subsequently sentenced him to the terms of imprisonment previously set
Following his convictions and sentencing, Petitioner filed an appeal of right with the
Michigan Court of Appeals raising sentencing claims. The court denied relief and affirmed
his convictions and sentences. People v. Perry, No. 270283, 2007 WL 1712959 (Mich. Ct.
App. June 14, 2007) (unpublished). Petitioner filed an application for leave to appeal with
the Michigan Supreme Court, which was denied. People v. Perry, 480 Mich. 1036, 743
N.W.2d 562 (2008).
Petitioner then filed a motion for relief from judgment with the state trial court raising
claims concerning the effectiveness of trial and appellate counsel. The trial court ordered
a Ginther hearing. People v. Perry, No. 05-34243-FH (Monroe Co. Cir. Ct. Nov. 24, 2008).
At that evidentiary hearing, Petitioner’s trial counsel, Asad Farah, testified that he began
practicing law in 1995, and that he had litigated many criminal cases, including some
criminal sexual conduct cases, before representing Petitioner. He was the third courtappointed attorney for Petitioner. He was appointed in 2005 after attorney John Landis
withdrew. Farah spoke with Landis, reviewed the file, met with Petitioner at the jail, and
communicated with him in several letters.
Farah recalled that Petitioner had mentioned witnesses who dealt with pictures or
videos, but he did not provide locations and Farah did not know where to look for them.
They also discussed Petitioner’s girlfriend, Magdelena Sanchez (“Magdelena”), and her
potential testimony that the girls were there to care for his son and she was present when
they came over. Farah told Petitioner that he thought Magdelena’s testimony would harm
his case because she was young when they began their relationship, which could show
predatory conduct in dealing with young females.
Farah also had difficulty finding
Magdelena. When he tracked her down at her mother’s house to serve a subpoena, she
ran away from him. He told Petitioner what happened, but Petitioner did not believe him.
Farah denied that Petitioner told him that Magdelena was in the local jail.
Farah also recalled Petitioner telling him about a used car dealership on Telegraph
Road, but it was out of business at the time of Farah’s representation and he did not have
anyone to contact. He checked county records and called the property owner, but no one
returned his call. Farah knew that Landis had prevailed on an evidentiary motion to admit
a videotape, but neither he nor Landis ever had the videotape. Petitioner told Farah that
it would be in his house, but by the time of trial, Petitioner had been evicted and his
belongings were gone. Farah obtained this information from the Luna Pier Police Chief.
Petitioner told him that he owned the house and had not been evicted, but Farah checked
the Register of Deeds and found no house in Petitioner’s name. He also checked on a car
that Petitioner said he owned, but it was registered to Magdelena Sanchez.
Farah testified that Petitioner claimed that the photographs were taken in Ohio, but
Farah could not recall whether he mentioned the Crown Motel. Farah admitted that he
might have referenced the Crown Motel while questioning one of the girls, but said that he
would not have asked follow up questions if he did not know what her answers would be
and he would not want to elicit damaging testimony.
Farah said that where the
photographs were taken was not so important to him because Petitioner had the
photographs at his home. Farah recalled that there were contradictions in the witnesses’
testimony. Farah testified that he called Blake Perry as a defense witness at Petitioner’s
insistence, but he was against doing so because Blake’s testimony could confirm that
Petitioner possessed the photographs at his house.
On cross-examination, Farah testified that he went to Petitioner’s house to look for
the videotape, but there was nothing there and the landlord told him that the belongings
were removed when he got the eviction. Blake Perry did not know about a videotape.
Farah did not know if the videotape actually existed and he was surprised that there was
a motion filed about a videotape that did not exist. Farah recalled questioning the girls
about their sexual activity with others and asking at least one of them about pictures or
videos. Farah did not think that the videotape would have helped the defense because the
charging statute for sex with a minor is a strict liability statute. Farah recalled discussing,
via letters, additional witnesses with Petitioner, but he was not provided with information
to locate them and he was unable to serve a subpoena on Magdelena Sanchez. He tried
to locate the state employees, but they had been fired and he could not obtain their home
addresses. Farah did not seek an adjournment, but he did not believe that other witnesses
would have benefitted the defense due to the crime’s strict liability and because he did not
have enough information to locate the witnesses. His trial strategy was to challenge the
girls’ testimony, argue constructive emancipation, and hope for jury nullification. He did not
believe that there was a good defense to the charges based upon Petitioner’s possession
of the photographs and his sexual activity with the girls, one of whom was underage.
Petitioner’s prior counsel, John Landis, testified that he was appointed to represent
Petitioner on a charge of child sexually abusive material, but the charges of criminal sexual
conduct were added after the preliminary examination. He recalled discussing a videotape
of the girls having sex with other men with Petitioner at the admissibility hearing, but he
never located the videotape. He said that Petitioner identified a man named Dave Wilson,
an Ohio resident, as a witness who would testify that the photographs were taken in Ohio.
He spoke with Detective Meyer and asked the prosecutor to track Wilson down as a res
gestae witness, but no one was able to locate him.
Landis also recalled his own
unsuccessful attempt to locate a state employee identified by Petitioner as a possible
witness. Landis said that his relationship with Petitioner deteriorated because Petitioner
believed that certain information was important and Landis disagreed due to the strict
liability of the crime. Landis’ trial strategy would have been the same as Farah’s strategy
– to argue constructive emancipation and seek jury nullification – because there was no
good defense to the charges.
Petitioner did not testify at the evidentiary hearing.
Following the hearing, the trial court denied the motion for relief from judgment
finding that neither trial counsel nor appellate counsel were ineffective. People v. Perry,
No. 05-34243-FH (Monroe Co. Cir. Ct. July 6, 2009). Petitioner filed a delayed application
for leave to appeal with the Michigan Court of Appeals, which was denied “for failure to
meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v.
Perry, No. 298966 (Mich. Ct. App. April 1, 2011) (unpublished). Petitioner filed an
application for leave to appeal with the Michigan Supreme Court, which was similarly
denied. People v. Perry, 490 Mich. 968, 806 N.W.2d 518 (2011).
Petitioner thereafter filed his federal habeas petition raising the following claims:
The trial court abused its discretion when it denied his motion for relief
His 6th Amendment constitutional right to effective
assistance of counsel was violated (where trial counsel
failed to call witnesses or seek an adjournment to locate
He was denied his right to due process and his right to
effective assistance of counsel by counsel’s failure to
produce video evidence to impeach the prosecution
witness and demonstrate an additional basis for
believing that the complainant was 18 years old.
Trial counsel’s cumulative errors resulted in a due
His 6th Amendment constitutional right to the effective assistance of
appellate counsel was violated (where appellate counsel failed to raise
the foregoing issues on direct appeal or provide him with a copy of the
Respondent has filed an answer to the petition contending that it should be denied because
the claims are barred by procedural default and/or lack of merit.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified 28
U.S.C. § 2241 et seq., provides the standard of review for federal habeas cases brought
by state prisoners. 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
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. §2254(d) (1996).
“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 [that] precedent.’” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06
(2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).
application’ prong of § 2254(d)(1) 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); see also Bell, 535 U.S. at 694.
However, “[i]n order for a federal court 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.’”
Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. 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, _
U.S. _, 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)).
The Supreme Court recently held that “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, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court emphasized “that even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S.
63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must determine what arguments
or theories supported or ... could have supported, the state court’s decision; and then it
must ask whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id.
In order to obtain habeas relief in federal court, a state prisoner must show that the state
court’s rejection of his claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
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; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)
(noting that the Supreme Court “has held on numerous occasions that it is not ‘an
unreasonable application of clearly established Federal law’ for a state court to decline to
apply a specific legal rule that has not been squarely established by this Court”) (quoting
Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer v. Andrade, 538
U.S. 63, 71-72 (2003). Section 2254(d) “does not require a state court to give reasons
before its decision can be deemed to have been ‘adjudicated on the merits.’” Harrington,
131 S. Ct. at 785. It “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); see also Mitchell, 540 U.S. at 16. While the requirements of “clearly established
law” are to be determined solely by Supreme Court precedent, the decisions of lower
federal courts may be useful in assessing the reasonableness of the state court’s
resolution of an issue. See 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.
354, 359 (E.D. Mich. 2002).
A state court’s factual determinations are presumed correct on federal habeas
review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only
with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.
1998). Habeas review is “limited to the record that was before the state court.” Cullen v.
Pinholster, _ U.S. _, 131 S. Ct. 1388, 1398 (2011).
As an initial matter, Respondent contends that Petitioner’s ineffective assistance
of trial counsel claims are barred by procedural default. It is well-settled, however, that
federal courts on habeas review “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)). The United States
Supreme Court has explained the rationale behind such a policy:
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. In this case, the procedural issues are
intertwined with the merits of Petitioner’s issues and the substantive issues are simpler to
resolve. Accordingly, the Court shall proceed to the merits of Petitioner’s claims.
State Trial Court’s Abuse of Discretion
As an initial matter, the Court notes that Petitioner is not entitled to relief on any
claim that the state trial court abused its discretion in denying his motion for relief from
judgment. Such a claim is not cognizable on habeas review because it is a state law
claim. “A trial court's abuse of discretion generally is not a basis for habeas corpus relief."
Adams v. Burt, 471 F. Supp. 2d 835, 843 (E.D. Mich. 2007) (citing Sinistaj v. Burt, 66 F.3d
804, 808 (6th Cir. 1995)). Federal habeas courts have no authority to correct perceived
errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-58 (1991); Serra v. Michigan Dep't
of Corr., 4 F.3d 1348, 1354 (6th Cir. 1993). Habeas relief is not warranted on any such
state law claim.
Effectiveness of Trial and Appellate Counsel
Petitioner asserts that he is entitled to habeas relief because trial counsel was
ineffective for failing to produce witnesses or seek an adjournment in order to locate them,
and for failing to produce a videotape to impeach a victim’s testimony and provide a basis
for believing the victim was 18 years old; and based upon trial counsel’s cumulative errors.
Petitioner relatedly asserts that appellate counsel was ineffective for failing to raise these
ineffective assistance of trial counsel issues on direct appeal and provide him with a copy
of the appellate brief.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court
set forth a two-prong test for determining whether a habeas petitioner has received the
ineffective assistance of counsel.
First, a petitioner must prove that counsel’s
performance was deficient. This requires a showing that counsel made errors so serious
that he or she was not functioning as counsel as guaranteed by the Sixth Amendment.
Strickland, 466 U.S. at 687. Second, the petitioner must establish that counsel’s deficient
performance prejudiced the defense. Counsel’s errors must have been so serious that
they deprived the petitioner of a fair trial or appeal. Id.
As to the performance prong, a petitioner must identify acts that were “outside the
wide range of professionally competent assistance” in order to prove deficient
performance. Id. at 690. The reviewing court’s scrutiny of counsel’s performance is highly
deferential. Id. at 689. Counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment. Id. at 690. The petitioner bears the burden of overcoming the presumption that
the challenged actions were sound trial strategy. Id. at 689.
To satisfy the prejudice prong under Strickland, 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.” Id. at 694. A reasonable probability is one that
is sufficient to undermine confidence in the outcome. Id. “On balance, the benchmark
for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the [proceeding] cannot be relied on
as having produced a just result.” Strickland, 466 U.S. at 686.
The Supreme Court has recently confirmed that a federal court’s consideration of
ineffective assistance of counsel claims arising from state criminal proceedings is quite
limited on habeas review due to the deference accorded trial attorneys and state appellate
courts reviewing their performance. “The standards created by Strickland and § 2254(d)
are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”
Harrington, 131 S. Ct. at 788 (internal and end citations omitted). “When § 2254(d)
applies, the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id. at 788.
Petitioner raised these issues on collateral review in the state courts and was
denied relief. The state courts’ denial of relief is neither contrary to Supreme Court
precedent nor an unreasonable application thereof.1
Petitioner first asserts that trial counsel was ineffective for failing to present
witnesses, including a man named David Wilson from Ohio, Magdelena Sanchez, and
social services workers, and/or for not seeking an adjournment to locate them. Wellestablished federal law requires that defense counsel conduct a reasonable investigation
into the facts of a defendant’s case, or make a reasonable determination that such
investigation is unnecessary. Wiggins v. Smith, 539 U.S. 510, 522-23 (2003); Strickland,
466 U.S. at 691; Stewart v Wolfenbarger, 468 F.3d 338, 356 (6th Cir. 2007); Towns v.
Smith, 395 F.3d 251, 258 (6th Cir. 2005). The duty to investigate “includes the obligation
to investigate all witnesses who may have information concerning . . . guilt or innocence.”
Towns, 395 F.3d 251 at 258.
“A purportedly strategic decision is not objectively
reasonable when the attorney has failed to investigate his options and make a reasonable
choice between them.” Id. (quoting Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991));
see also Wiggins, 539 U.S. at 526
The Court notes that it would reach the same result under a de novo standard of
That being said, decisions as to what evidence to present and whether to call
certain witnesses are presumed to be matters of trial strategy. When making such
strategic decisions, counsel’s conduct must be reasonable. Roe v. Flores-Ortega, 528
U.S. 470, 481 (2000); see also Wiggins, 539 U.S. at 522-23. The failure to present
evidence or call witnesses constitutes ineffective assistance of counsel only when it
deprives a defendant of a substantial defense. Chegwidden v. Kapture, 92 F. App’x 309,
311 (6th Cir. 2004); Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002).
Petitioner has not shown that trial counsel erred or that he was prejudiced by
counsel’s conduct. First, the record reveals that counsel was aware of these potential
witnesses and made reasonable efforts to locate them. At the evidentiary hearing, John
Landis testified that Petitioner named David Wilson as a witness who would testify that the
photographs were take in Ohio. He spoke with Detective Meyer and asked the prosecutor
to track Wilson down as a res gestae witness, but no one was able to locate him. Asad
Farah recalled Petitioner mentioning such a witness, but he did not have a location and
Farah did not know where to find him. Landis and Farah both testified about their attempts
to locate the state employees. Farah said that the employees had been fired and he could
not obtain their home addresses. As to Magdelena Sanchez, Farah testified that she was
hard to locate, that he unsuccessfully attempted to serve her with a subpoena, and that
he did not want to call her as a witness in any event because of her age and relationship
Second, Petitioner has not provided affidavits from any of the witnesses who he
believes that counsel should have called at trial. His conclusory allegations about what
those witnesses would have said are insufficient to demonstrate that counsel erred or that
he was prejudiced by counsel’s conduct. See, e.g., Cross v. Stovall, 238 F. App’x 32,
39-40 (6th Cir. 2007) (conclusory allegations are insufficient to justify habeas relief);
Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998) (conclusory allegations of ineffective
assistance of counsel do not justify habeas relief); see also Washington v. Renico, 455
F.3d 722, 733 (6th Cir. 2006) (bald assertions and conclusory allegations do not provide
a basis for evidentiary hearing on habeas review).
Third, trial counsel reasonably believed that the witnesses would not have
benefitted Petitioner’s defense. For example, Farah testified that he did not want to call
Magdelena Sanchez as a witness because she was young when Petitioner began their
relationship such that the jury could have inferred that Petitioner had a pattern of dating
young girls, which would have been detrimental to the defense. As to the social service
employees, any testimony that they did not see the girls at Petitioner’s home would not
have been exculpatory as to the charged offenses and any testimony (contradictory to the
former) that they believed MR was 17 years old or older would not have benefitted the
defense because the charged sexual conduct offenses are strict liability crimes. Even
David Wilson’s claimed testimony that the photographs were taken and developed in Ohio
would not have exonerated Petitioner of the criminal sexual conduct charges, and
Petitioner would still have been subject to a child sexually abusive activity possession
charge. Trial counsel’s conduct did not deprive Petitioner of a substantial defense.
Given the foregoing circumstances, as well as the lack of location information and
the prior delays in bringing the case to trial, counsel’s decision not to request an
adjournment to locate and/or secure the witnesses was also reasonable. Petitioner has
not shown that trial counsel was ineffective under the Strickland standard.
Petitioner also asserts that trial counsel was ineffective for failing to produce a
videotape of the girls having sex with other men. Again, Petitioner fails to establish that
counsel erred. The record reveals that trial counsel made reasonable efforts to locate the
videotape by conferring with prior counsel, by going to Petitioner’s apartment, and by
speaking to the authorities about his belongings. The videotape was simply never found.
Petitioner has not shown what more counsel could have done to successfully locate the
videotape. Petitioner also fails to establish that he was prejudiced by counsel’s conduct.
First, he has not produced the videotape to support his allegations as to its content and
relevancy. Second, any videotape of the girls having sex with other men would not have
absolved him of the charged offenses, including the criminal sexual conduct offenses
which are strict liability crimes. Petitioner has not shown that trial counsel was ineffective.
In sum, while Petitioner alleges that trial counsel failed to provide adequate
representation in several respects, such allegations are not supported by the record.
Petitioner has not alleged facts to show what more trial counsel could have done which
would have benefitted his defense or affected the outcome at trial. Counsel challenged
the prosecution’s case by cross-examining the girls about their version of events, by
getting MR to admit that she lied to Petitioner about her age, that she used him, and that
she was sexually active with other men, by claiming that the prosecution failed to prove
that Petitioner had sex with the underage MR, and by making arguments with the hope of
jury nullification. Given the photographs, the girls’ testimony, Petitioner’s admissions to
the police, and the strict liability of the criminal sexual conduct offenses, counsel’s strategy
was reasonable. Petitioner did not have a good defense to the charges. The fact that trial
counsel’s strategy was ultimately unsuccessful does not mean that counsel was
ineffective. See Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (an ineffective
assistance of counsel claim “cannot survive so long as the decisions of a defendant's trial
counsel were reasonable, even if mistaken”). Petitioner has not shown that counsel was
ineffective under the Strickland standard. More importantly, for purposes of federal
habeas review, this Court cannot conclude that the state court’s ruling to that effect is
Petitioner also asserts that he is entitled to relief based upon the cumulative effect
of trial counsel’s alleged errors. Petitioner, however, has failed to establish that trial
counsel erred in the first instance. Consequently, he cannot establish that he is entitled
to relief based upon cumulative error. Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.
2000). Moreover, “the Supreme Court has not held that distinct constitutional claims can
be cumulated to grant habeas relief.” Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002);
see also Parks v. Bobby, _ F. App’x _, 2013 WL 6038224, *5 n. 2 (6th Cir. Nov. 15, 2013)
(citing Lorraine and denying relief on trial counsel cumulative error claim); Moreland v.
Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012) (ruling that trial counsel cumulative error
claim was not cognizable and citing Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir.
2010); Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). Habeas relief is not warranted
on this basis.
Lastly, Petitioner asserts that appellate counsel was ineffective for failing to raise
the foregoing ineffective assistance of trial counsel issues on direct appeal and for failing
to provide him with a copy of the appellate brief. Given this Court’s determination that the
ineffective assistance of trial counsel claims lack merit and do not warrant relief, Petitioner
cannot establish that appellate counsel was deficient and/or that he was prejudiced by
appellate counsel’s conduct. Appellate counsel cannot be deemed ineffective for failing
to raise non-meritorious issues. Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010).
Petitioner has not shown that appellate counsel was ineffective under the Strickland
standard. Habeas relief is not warranted.
For the reasons stated, the Court concludes that Petitioner is not entitled to federal
habeas relief on his claims and the petition must be denied.
Before Petitioner may appeal this decision, a certificate of appealability must issue.
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 court denies relief on the merits, the substantial showing
threshold is met if the petitioner demonstrates that reasonable jurists would find the court’s
assessment of the claim debatable or wrong. 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 merits. Id. at 336-37. Having conducted the requisite review, the Court
concludes that Petitioner has not made a substantial showing of the denial of a
constitutional right as to his claims. A certificate of appealability is not warranted.
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: February 27, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record
on February 27, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
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