Childress v. Booker
Filing
26
OPINION and ORDER denying 1 Petition for writ of habeas corpus, granting in part and denying in part a certificate of appealability, and granting permission to proceed on appeal in forma pauperis. Signed by District Judge George Caram Steeh (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT LEE CHILDRESS, JR.,
Petitioner,
Case Number 12-14511
Honorable George Caram Steeh
RAYMOND BOOKER,
Respondent.
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OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS,
GRANTING IN PART AND DENYING IN PART A CERTIFICATE OF
APPEALABILITY, AND GRANTING PERMISSION TO PROCEED ON APPEAL IN
FORMA PAUPERIS
This matter is before the Court on Petitioner Robert Childress’s petition for a writ of
habeas corpus filed under 28 U.S.C. § 2254. Petitioner was convicted in the Macomb
Circuit Court after a bench trial of larceny by false pretenses of $20,000 or more but less
than $50,000, MICH. COMP. LAWS § 750.218(5)(a). Petitioner was sentenced as a
fourth-offense habitual offender, MICH. COMP. LAWS § 769.12, to a sentence of 19-to-120
months. The petition raises nine grounds for relief: (1) Petitioner was denied his right to a
speedy trial where it took twenty-two months for the trial to be held; (2) Petitioner was
denied his right to substitute counsel; (3) Petitioner was denied the effective assistance of
trial counsel; (4) Petitioner was denied his right to confrontation because none of the
prosecutor’s witnesses had any personal knowledge that Petitioner committed a crime;
(5)The prosecutor improperly withheld exculpatory evidence about the vehicles involved
in the crime until the day of trial; (6) the trial court did not comply with the requirements for
waiver of counsel; (7) Petitioner’s jail credit was improperly calculated; (8) there was
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insufficient evidence to convict Petitioner; and (9) Petitioner was imprisoned for a debt
founded upon a legal contract that he was not obligated to repay because it was in
someone else’s name. The Court finds that Petitioner’s claims are without merit. Therefore,
the petition will be denied. The Court will grant Petitioner a certificate of appealability with
respect to his seventh claim, but deny one with respect to his other claims. The Court will
grant Petitioner permission to proceed on appeal in forma pauperis.
I. Facts and Procedural History
This Court recites verbatim 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):
Defendant’s conviction arises from his involvement in a scheme in Macomb
County in which he persuaded his girlfriend, Tomeka Gilmore, to purchase
or lease several motor vehicles in financed transactions, and then traded in
one of the vehicles for consideration after obtaining a replacement certificate
of title that falsely indicated that there was no security interest on the vehicle.
Although all purchase agreements, lease agreements, and financing
contracts were in Gilmore’s name, defendant conducted all of the
negotiations and handled all of the transactions, and he took possession of
the vehicles. Gilmore testified that she agreed to help defendant acquire the
vehicles because she trusted defendant, believed that he needed the
vehicles for his “leasing company,” and he told her that he would make all of
the lease and installment payments.
One of the purchased vehicles, a Land Rover, was financed by Capital One
Finance (“Capital One”). After a certificate of title was issued that listed
Capital One as a secured creditor, a replacement certificate of title was
obtained that listed Gilmore as the owner of the vehicle, but did not list
Capital One’s lien. Evidence indicated that the Secretary of State issued the
replacement certificate of title after it was presented with (1) a form, with
Gilmore’s signature, authorizing a “Terence Jones” to conduct business
pertaining to the Land Rover on her behalf, and (2) a separate document
indicating that the Capital One lien had been satisfied. Gilmore denied
knowledge of either document, denied knowing anyone named Terence
Jones, and claimed that the signature on the authorization form was not hers.
Defendant later used the false certificate of title to negotiate a trade-in of the
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Land Rover in exchange for a prepaid lease of a Ford Fusion from Russ
Milne Ford, and a cash difference of approximately $20,000. Russ Milne Ford
issued the check payable to Gilmore, but Gilmore gave the proceeds to
defendant when she cashed the check.
Gilmore was not charged with any crimes and testified for the prosecution at
trial. The prosecution’s theory at trial was that defendant used Gilmore, an
unsuspecting dupe, to commit acts of fraud.1 The defense theory at trial was
that any act of fraud was committed by Gilmore, who was the listed owner of
the Land Rover, the listed owner of the Ford Fusion, and the debtor to
Capital One.
___________________________________________________________
1
In 2008, defendant was convicted of larceny by conversion of property,
MCL 750.362, and making a false assignment of a motor vehicle title, MCL
257.254, for his involvement in a similar scheme with a different girlfriend in
Oakland County. This Court affirmed defendant’s convictions in that case.
People v. Childress, unpublished opinion per curiam of the Court of Appeals,
issued June 28, 2011 (Docket No. 288657).
People v. Childress, No. 299592, 2012 WL 1890181, at *1-2, (Mich. Ct. App. May 22,
2012).
Following his conviction and sentence based on this evidence, Petitioner filed a
claim of appeal in the Michigan Court of Appeals. His appointed appellate counsel filed a
brief raising the following claims:
I. The prosecutor did not make a good-faith effort to bring Defendant to trial
within 180 days according to Michigan law.
II. Defendant’s conviction was based upon insufficient evidence.
Petitioner also filed his own supplemental pro se brief which raised the following
additional claims:
I. The prosecutor did not bring Defendant to trial within 180 days as required
by Michigan law.
II. Defendant’s right to a speedy trial was violated by inordinate pre-trial
delay. This prejudiced Defendant from having a fair trial due to witness loss,
distorted and faded memories which would have been favorable to the
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defense.
III. Defendant was denied his right to counsel of choice when it denied an
adjournment of the trial for a reasonable amount of time so retained counsel
could be obtained.
IV. Defendant was denied the effective assistance of trial counsel.
V. Defendant was denied his right to confrontation when he was accused of
a crime without a complaint or affidavits from eyewitnesses who could be
cross-examined in a court of law.
VI. The prosecutor improperly suppressed information about Terrence Jones
and his criminal history and about a deal with Tomeka Gilmore not to
prosecute if she cooperated.
VII. The trial court improperly allowed Defendant to represent himself at trial
without complying with the requirements to determine if he waived his right
to counsel.
VIII. The trial court improperly denied Defendant jail credit from the time his
parole was terminated.
IX. The court erred in ordering Defendant to pay restitution without sufficient
factual basis to find Defendant was financially responsible and Capital One
was not present at trial or the restitution hearing.
X. There was insufficient evidence to convict.
The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished
opinion. People v. Childress, No. 299592, 2012 WL 1890181, at *1, (Mich. Ct. App. May
22, 2012). The Michigan Supreme Court subsequently denied Petitioner leave to appeal
this decision, finding that the issues presented did not merit review. People v. Childress,
493 Mich. 858 (2012) (table ).
II. Standard of Review
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas
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corpus only if he can show that the state court’s adjudication of his claims on the merits(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.
28 U.S.C. § 2254(d).
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 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, 176 L.
Ed. 2d 678 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Visciotti, 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
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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)). The Supreme Court has
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).
Furthermore, 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. “[I]f this
standard is difficult to meet, that is because it was meant to be.” Harrington, 131 S. Ct. at
786.
Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar
federal courts from relitigating claims that have previously been rejected in the state courts,
it preserves the authority for a federal court to grant habeas relief only “in cases where
there is no possibility fairminded jurists could disagree that the state court’s decision
conflicts with” the Supreme Court’s precedents. Id. Indeed, “Section 2254(d) reflects the
view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal
justice systems,’ not a substitute for ordinary error correction through appeal.” Id. (citing
Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)).
Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to
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 disagreement.” Id., at 786-787.
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III. Analysis
A. Speedy Trial
Petitioner’s first claim asserts that his Sixth Amendment right to a speedy trial was
violated. The Michigan Court of Appeals found that review of the claim was barred because
Petitioner had not objected to the delay of his trial on these grounds prior to trial.
Respondent asserts that the claim is barred from review and meritless.
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial." U.S. Const. Amend. VI; see also Klopfer
v. North Carolina, 386 U.S. 213 (1967) (holding that the right to a speedy trial is
incorporated through the Fourteenth Amendment and thus applies to the states). The
Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), established a four-factor test
for evaluating a Sixth Amendment speedy-trial claim: (1) length of delay; (2) the reason for
the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant.
None of these four factors is "a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial. Rather, they are related factors and must be
considered together with such other circumstances as may be relevant." Id. at 533.
Applying these factors here shows that Petitioner's speedy-trial rights were not violated.
1. Length of the delay
Petitioner was tried in April 2010, twenty-two months after he was charged in June
of 2008. The length of the delay is a threshold factor for any Sixth Amendment speedy trial
claim. United States v. Watford, 468 F.3d 891, 901 (6th Cir. 2006). "That is, if there is no
delay that is presumptively prejudicial, there is no necessity for inquiry into the other
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factors." United States v. Gardner, 488 F.3d 700, 719 (6th Cir. 2007); see also Doggett v.
United States, 505 U.S. 647, 651-52 (1992) ("Simply to trigger a speedy trial analysis, an
accused must allege that the interval between accusation and trial has crossed the
threshold dividing ordinary from 'presumptively prejudicial' delay."). Thus, this Court must
determine, at the outset, whether the delay here was "uncommonly long" or "extraordinary."
Watford, 468 F.3d at 901 (citations omitted).
Generally, a delay is presumed prejudicial and deemed sufficient to require further
analysis when it exceeds one year. Id. Furthermore, the longer the delay "stretches beyond
the bare minimum needed to trigger judicial examination of the claim," the stronger the
presumption of prejudice to the defendant from the pretrial delay. Doggett, 505 U.S. at 652.
The length of the delay is measured from the date of the indictment or the date of the
arrest, whichever is earlier. United States v. Marion, 404 U.S. 307, 320 (1971); Maples v.
Stegall, 427 F.3d 1020, 1026 (6th Cir. 2005).
Because the delay in Petitioner’s case was more than year, it necessary for the
Court to examine the other factors.
2. Reasons for the delay
In considering the reasons for delay, this Court must consider the justifications
offered by the government, as "only those periods of delay attributable to the government
or the court are relevant to [defendant's] constitutional claim." United States v. Howard, 218
F.3d 556, 564 (6th Cir. 2000). In Barker, the Supreme Court established a sliding scale of
justifications for delay:
A deliberate attempt to delay the trial in order to hamper the defense should
be weighted heavily against the government. A more neutral reason such as
negligence or overcrowded courts should be weighted less heavily but
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nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant.
Finally, a valid reason, such as a missing witness, should serve to justify
appropriate delay.
Barker, 407 U.S. at 531 (footnote omitted); see also Maples, 427 F.3d at 1026 ("In
considering this factor, we weigh some reasons more heavily than others. For instance,
government delays motivated by bad faith, harassment, or attempts to seek a tactical
advantage weigh heavily against the government, while 'more neutral' reasons such as
negligence or overcrowded dockets weigh against the state less heavily."). "The purpose
of this weighting scheme is to quantify 'whether the government or the criminal defendant
is more to blame for [the] delay.'" Watford, 468 F.3d at 902.
Here, the state record shows that the delays in Petitioner’s trial were caused by his
repeated requests to adjourn the preliminary examination, his requests for extensions of
time to file a motion to quash, his two requests for the substitute counsel, and his new
counsel’s request for time to become familiar with Petitioner’s case. The record does not
indicate that any substantial portion of the delay was caused by the prosecutor. Therefore,
this factor weighs heavily in favor of Respondent
3. Assertion of his Sixth Amendment right
The Court has found no indication in the state court record that Petitioner ever
asserted his right to a speedy trial under the Sixth Amendment prior to trial. It appears that
the first time he asserted this right was in his pro se supplemental brief during his appeal
of right. Accordingly, this factor also weighs in favor of Respondent.
4. Prejudice
In considering the final Barker prong, prejudice to Petitioner from the delay, the
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Court "must heed the Supreme Court's instruction to consider the possible prejudice
suffered by the defendant in light of the interests safeguarded by the Sixth Amendment's
speedy trial guarantee." Watford, 468 F.3d at 907 (citations omitted). "Three interests are
paramount: (i) preventing oppressive pretrial incarceration; (ii) minimizing the anxiety and
concern of the accused; and (iii) limiting the possibility that the defense will be impaired."
Id. (citations omitted). The third factor, impairment of the defense, is the most important
"'because the inability of a defendant adequately to prepare his case skews the fairness
of the entire system.'" Id. (quoting Barker, 407 U.S. at 532 and Schreane, 331 F.3d at
557-58).
Petitioner does not point to any evidence of prejudice relating to the "paramount
interests" of the Sixth Amendment. He fails to argue that he suffered any oppressive pretrial
incarceration. Furthermore, Petitioner does not argue that he suffered any anxiety or
concern during his pretrial delay or that his defense was impaired by the delay. Petitioner's
failure to allege prejudice of any kind from the delay weighs heavily against him and in favor
of the prosecutor.
Nor does Petitioner demonstrate that any delay prejudiced his defense. As noted by
Respondent, the delay was frankly for his benefit because he asked for the adjournments.
And, contrary to his assertions, there is no indication that any evidence was lost or that any
witnesses forgot anything of consequence because of the delay.
Accordingly, in balancing the Barker factors, any delay in bringing Petitioner to trial
did not deprive him of his Sixth Amendment right to a speedy trial, and he has not
demonstrated entitlement to habeas relief.
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B. Substitute Counsel
Petitioner’s second claim asserts that he was denied his right to counsel of his
choice, when on the day of trial, the trial court denied his motion to appoint substitute
counsel.
The Sixth and Fourteenth Amendments to the United States Constitution guarantee
a defendant in a criminal case the right to the assistance of counsel in his or her defense.
Faretta v. California, 422 U.S. 806, 807 (1975). "[A]n element of this right is the right of a
defendant who does not require appointed counsel to choose who will represent him."
United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). "A choice-of-counsel violation
occurs whenever the defendant's choice is wrongfully denied," id. at 150 (emphasis in
original), but the right "is circumscribed in several important respects," id. at 144. A
defendant may not demand that a court honor his or her waiver of conflict-free
representation, and trial courts have "wide latitude in balancing the right to counsel of
choice against the needs of fairness and against the demands of its calendar." Id. at 151-52
(citations omitted). Trial courts also have "an 'independent interest in ensuring that criminal
trials are conducted within the ethical standards of the profession and that legal
proceedings appear fair to all who observe them.'" Id., at 152 (quoting Wheat v. United
States, 486 U.S. 153, 160 (1988)).
When reviewing a trial court's denial of a motion to substitute counsel, courts
consider four factors:
(1) the timeliness of the motion, (2) the adequacy of the court's inquiry into
the matter, (3) the extent of the conflict between the attorney and client and
whether it was so great that it resulted in a total lack of communication
preventing an adequate defense, and (4) the balancing of these factors with
the public's interest in the prompt and efficient administration of justice.
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United States v. Vasquez, 560 F.3d 461, 466 (6th Cir. 2009). If the defendant's motion
would "necessitate a last-minute continuance, the trial judge's actions are entitled to
extraordinary deference." Id. at 467. Henness v. Bagley, 644 F.3d 308, 321 (6th Cir. 2011)
Here, determination by the Michigan Court of Appeals that the trial court properly
denied Petitioner’s third request for the appointment of substitute counsel did not result in
an unreasonable application of the governing standard. As correctly noted by the state
appellate court, the request was made on the day of trial, and the trial date had already
been substantially delayed because the court had previously adjourned several prior
proceedings at defendant’s requests. This fact alone compelled the state appellate court
to give the trial court’s decision extraordinary deference. The trial court had already
appointed substitute counsel for Petitioner, and he had more than ample time before trial
to retain new counsel. Finally, Petitioner’s counsel had two months to prepare for trial,
belying Petitioner’s claim that he required new counsel because his attorney was
unprepared. In fact, defense counsel informed the court that he was “ready” to proceed with
trial, and nothing in the record shows that he was unprepared.
Accordingly, the state court adjudication of this claim did not result in an
unreasonable application of the established standard.
C. Ineffective Assistance of Counsel
Petitioner asserts in his third claim that his counsel was ineffective at trial.
Respondent asserts that the claim was reasonably adjudicated by the Michigan Court of
Appeals.
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
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ineffective assistance of counsel. First, a petitioner must prove that counsel's performance
was deficient. This requires 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, Petitioner must identify acts that were "outside the
wide range of professionally competent assistance" in order to prove deficient performance.
Strickland, 466 U.S. 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. 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, 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." Strickland, 466 U.S. 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." Id. at 686.
The Michigan Court of Appeals rejected Petitioner’s ineffective assistance of
counsel claim as follows:
Defendant contends that he was denied the effective assistance of counsel
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at trial. Because defendant did not raise an ineffective assistance of counsel
claim in a motion for a new trial or request for an evidentiary hearing under
People v. Ginther, 390 Mich. 436, 443 (1973), this Court’s review of this issue
is limited to mistakes apparent on the record. People v. Wilson, 242
Mich.App. 350, 352 (2000). To establish ineffective assistance of counsel,
defendant must show that: (1) counsel’s performance fell below an objective
standard of reasonableness under prevailing professional norms; (2) there
is a reasonable probability that, but for counsel’s error, the result of the
proceeding would have been different; and (3) the resultant proceeding was
fundamentally unfair or unreliable. People v. Mesik (On Reconsideration),
285 Mich.App. 535, 542-543 (2009).
Defendant contends that trial counsel was ineffective for failing to challenge
his arrest as illegal and for failing to move to suppress illegally seized
evidence. An illegal arrest does not divest a court of jurisdiction over the
defendant. Porter v. Porter, 285 Mich. App. 450, 462 (2009). Similarly, “[t]he
mere fact of an illegal arrest does not per se require the suppression of
evidence.” People v. Corr, 287 Mich App 499, 508 (2010). Only evidence
recovered as a result of an illegal arrest need be suppressed. Porter, 285
Mich.App. at 462. In this case, defendant does not explain the legal bases for
his assertions that his arrest was illegal or that evidence was unlawfully
seized, nor does he identify the specific evidence that he believes was
illegally seized. Defendant’s failure to establish a factual predicate for his
argument defeats this claim of ineffective assistance of counsel. People v.
Hoag, 460 Mich. 1, 6 (1999).
Defendant also asserts that trial counsel failed to prepare for trial. “When
making a claim of defense counsel’s unpreparedness, a defendant is
required to show prejudice resulting from this alleged lack of preparation.”
People v. Caballero, 184 Mich.App. 636, 640 (1990). The defendant “must
show that his counsel’s failure to prepare for trial resulted in counsel’s
ignorance of, and hence failure to present, valuable evidence that would have
substantially benefited the defendant.” People v. Bass (On Rehearing), 223
Mich.App. 241, 253 (1997), vacated in part on other grounds 457 Mich. 866
(1998). Although defendant contends that trial counsel should have
investigated the existence of plea agreements between the prosecutor and
prosecution witnesses, and should have investigated the witnesses criminal
backgrounds, there is no indication in the record that any prosecution witness
testified pursuant to a plea agreement or had a criminal record that could
have been discovered and used at trial. Further, the record indicates that
defense counsel explored the subject of a possible agreement with the
prosecution in his cross-examination of Gilmore, asking whether any criminal
charges were brought against her, or whether she had any discussions with
the police or prosecutor in which she was told that charges would not be
brought against her if she cooperated. She denied being charged with any
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offense or having any such discussions. Without evidence that a plea
agreement actually existed or that any witness had a relevant criminal history
that could have been used at trial, defendant cannot establish this claim of
ineffective assistance of counsel. Hoag, 460 Mich. at 6. Id. Defendant also
argues that trial counsel failed to call res gestae witnesses, but, once again,
he does not identify these witnesses or indicate what testimony they could
have provided. Thus, this claim also cannot succeed.
Defendant also contends that counsel was ineffective for failing to challenge
the complaint signed by Officer Michalke. Defendant argues that the
complaint was invalid because it was not signed by an eyewitness or a police
officer with personal knowledge of the crime and because it was not
supported by an affidavit of a witness with personal knowledge. We find no
merit to this issue. An examination of the complaint reveals that it complies
with M.C.R. 6.101 and M.C.L. 764.1a. Neither the court rule nor the statute
requires that the complaint be signed by an eyewitness or a person with
personal knowledge. Rather, factual allegations in the complaint “may be
based upon personal knowledge, information and belief, or both.” M.C.L.
764.1a(3). Therefore, defense counsel was not ineffective for failing to bring
a meritless motion challenging the validity of the complaint.
Childress, No. 299592, *7-8.
Considering the deferential standard of review for claims adjudicated on the merits
in the state court, Petitioner has not demonstrated entitlement to habeas relief based on
his ineffective assistance of counsel claims. As recently explained by the Supreme Court,
Strickland establishes a high burden that is difficult to meet, made more so when the
deference required by § 2254(d)(1) is applied to review a state court's application of
Strickland:
"Surmounting Strickland's high bar is never an easy task." Padilla v.
Kentucky, 559 U.S. 356 (2010). An ineffective-assistance claim can function
as a way to escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard must be applied with
scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the
very adversary process the right to counsel is meant to serve. Strickland, 466
U.S., at 689-690. Even under de novo review, the standard for judging
counsel's representation is a most deferential one. Unlike a later reviewing
court, the attorney observed the relevant proceedings, knew of materials
outside the record, and interacted with the client, with opposing counsel, and
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with the judge. It is "all too tempting" to "second-guess counsel's assistance
after conviction or adverse sentence." Id., at 689; see also Bell v. Cone, 535
U.S. 685, 702 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The
question is whether an attorney's representation amounted to incompetence
under "prevailing professional norms," not whether it deviated from best
practices or most common custom. Strickland, 466 U.S., at 690.
Establishing that a state court's application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland
and § 2254(d) are both "highly deferential," id., at 689; Lindh v. Murphy, 521
U.S. 320, 333, n. 7 (1997), and when the two apply in tandem, review is
"doubly" so, Knowles, 556 U.S., at 123. The Strickland standard is a general
one, so the range of reasonable applications is substantial. 556 U.S., at 123.
Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d).
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.
Richter, 131 S. Ct. at 788.
The opinion of the Michigan Court of Appeals, at a minimum, presents a "reasonable
argument" that Petitioner was not denied the effective assistance of counsel. The state
appellate court recited the correct governing standard, and that it applied the standard in
a reasonably manner to Petitioner’s case based on the facts of record. Accordingly, the
Court finds that the state court's adjudication of Petitioner's ineffective assistance of
counsel claims was not contrary to, nor did it involve an unreasonable application of, the
clearly established Supreme Court standard.
D. Denial of Right to Confrontation
Petitioner’s fourth claim asserts that his rights under the Confrontation Clause were
violated because there was no “complaining witness” for him to cross-examine. This novel
claim cannot be supported by clearly established Supreme Court law.
The Confrontation Clause of the Sixth Amendment provides: "In all criminal
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prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him." U.S. Const. amend. VI. "The Sixth Amendment's right of an accused to
confront the witnesses against him is . . . a fundamental right and is made obligatory on the
States by the Fourteenth Amendment." Pointer v. Texas, 380 U.S. 400, 403 (1965). The
rights of confrontation and cross-examination "have ancient roots" which the "Court has
been zealous to protect . . . from erosion." Id., at 404-05 (internal quotation omitted). The
right to a trial by jury is predicated upon the belief "'that the 'evidence developed' against
a defendant shall come from the witness stand in a public courtroom where there is full
judicial protection of the defendant's right of confrontation, of cross examination, and of
counsel.'" Id. at 405, quoting Turner v. State of Louisiana, 379 U.S. 466, 472-73 (1965).
Here, in rejecting Petitioner’s claim, the Michigan Court of Appeals noted:
The circumstances raised by defendant do not establish a Confrontation
Clause violation. The prosecution’s case was based on the testimony of the
other participants to defendant’s transactions, the testimony of the officers
who investigated the case, and the paper trail of documentary evidence. Two
representatives of Russ Milne Ford, a victim of defendant’s fraudulent
scheme, also testified at trial. Defendant had the opportunity to confront all
witnesses who testified at trial, and defendant does not identify any
testimonial statement by a non-testifying witnesses that was presented at
trial. Defendant has failed to establish a Confrontation Clause violation and,
accordingly, has not shown plain error.
Childress, No. 299592, at *8.
This decision constituted a reasonable application of clearly established Supreme
Court law. Petitioner does not allege that his cross examination of any of the prosecution
witnesses was limited or that any testimonial hearsay evidence was admitted at trial. There
is no basis in Supreme Court law for requiring the prosecutor to present a “complaining
witness” for Petitioner to cross examine. This claim is without merit.
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E. Suppression of Exculpatory Evidence
Petitioner’s fifth habeas claim asserts that the prosecutor withheld a plea agreement
that it made with Gilmore. He also argues that the prosecutor failed to disclose the criminal
history of “Terence Jones” whose existence was never established at trial.
The Due Process Clause requires the state to disclose exculpatory evidence to the
defense. See Brady v. Maryland, 373 U.S. 83 (1963). "There are three components of a
true Brady violation: The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must have ensued."
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Thus, in order to establish a Brady claim,
the petitioner must show that: (1) evidence was suppressed by the prosecution in that it
was not known to the petitioner and not available from another source; (2) the evidence
was favorable or exculpatory; and (3) the evidence was material to the question of the
petitioner's guilt. See Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000); Luton v. Grandison,
44 F.3d 626, 628-29 (8th Cir. 1994). The petitioner bears the burden of establishing each
of these three elements. See Carter, 218 F.3d at 601. Further, although Brady requires
disclosure of exculpatory evidence, it is well established, that "Brady . . . does not require
the government to create exculpatory material that does not exist." United States v.
Sukumolachan, 610 F.2d 685, 687 (9th Cir. 1980); see also, Richards v. Solem, 693 F.2d
760, 766 (8th Cir. 1982) ("Although the state has a duty to disclose evidence, it does not
have a duty to create evidence.").
The Michigan Court of Appeals rejected this claim as follows:
Defendant argues that the prosecutor violated his duty under Brady v.
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Maryland, 373 U.S. 83, 87 (1963), to disclose exculpatory evidence.
Defendant’s failure to raise this issue in the trial court limits our review to
plain error affecting defendant’s substantial rights. Kowalski, 489 Mich. at
505-506.
A defendant has a constitutional due process right to the production of
exculpatory evidence in the possession of the prosecution regardless of
whether the defendant requests the evidence. Brady, 373 U.S. at 87; People
v. Schumacher, 276 Mich.App. 165, 176 (2007). To establish a Brady
violation, a defendant must prove “(1) that the state possessed evidence
favorable to the defendant, (2) that the defendant did not possess the
evidence and could not have obtained it with the exercise of reasonable
diligence, (3) that the prosecution suppressed the favorable evidence, and
(4) that had the evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the proceedings would have been
different.” People v. Fox, 232 Mich.App. 541, 549 (1998). “Impeachment
evidence as well as exculpatory evidence falls within the Brady rule because,
if disclosed and used effectively, such evidence ‘may make the difference
between conviction and acquittal.’” People v. Lester, 232 Mich.App. 262,
(1998), quoting United States v. Bagley, 473 U.S. 667, 676 (1985).
Defendant’s claim is based on his assertion that the prosecution failed to
disclose the existence of a plea agreement with Gilmore and failed to
disclose Terence Jones’s alleged criminal history. There is no record
evidence that a plea agreement was made with Gilmore. Gilmore was
questioned on this subject at trial and denied the existence of any
agreement. Defendant has not presented any contrary evidence indicating
that an agreement actually exists. Similarly, there is no evidence that Jones,
even if he existed, had a criminal history. Moreover, Jones was not a witness
at trial, so any criminal history would not have been relevant for
impeachment. On this record, there is no basis for finding a Brady violation.
Accordingly, defendant has not established a plain error.
Childress, No. 299592, at *9.
This constituted a reasonable application of the established constitutional standard.
There is no basis in the record for concluding that Gilmore received a plea deal in
exchange for her testimony. Therefore, Petitioner has not established that the prosecutor
suppressed any plea deal. With respect to Jones, the same thing holds true. Petitioner has
not even demonstrated that such a person exists, let alone that he has a criminal history
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that could have been used at trial. This claim is without merit.
F. Waiver of the Right to Counsel
Petitioner’s fifth claim asserts that the trial court erred when it allowed him to
proceed at trial both pro se and with the assistance of counsel, in a so-called “hybrid
representation” arrangement, without first obtaining a waiver of the right to counsel. The
Court finds that the claim is without merit only because it cannot be supported by clearly
established Supreme Court law.
The trial record does not indicate when the decision was made to allow Petitioner
to proceed with hybrid representation. On the morning of the first day of trial, the trial court
stated in response to Petitioner’s objections regarding his counsel’s preparedness: “As you
and I have discussed, you’re not really a supporting actor anyway. Your light needs to shine
and you’re going to take an active role, you’re as prepared as anybody I’ve had in here.”
T 4/20/10, p. 7. Pretrial proceedings were held on January 21 and 25, 2010, and February
25, 2010, but no transcripts of those proceedings were made. In any event, the parties
agreed that counsel was acting as more than stand-by counsel, and that Petitioner was not
warned about the dangers of self-representation. The record is also clear that Petitioner
took an active role in his own defense, including giving the opening statement, making
motions and objections, and questioning witnesses.
A criminal defendant has a right to appear pro se or by counsel, a right protected
by the Sixth Amendment to the United States Constitution. Faretta v. California, 422 U.S.
806, 807, 832 (1975). If a defendant elects to represent himself, he must be "made aware
of the dangers and disadvantages of self-representation, so that the record will establish
that 'he knows what he is doing and his choice is made with eyes open.' " Faretta, at 835.
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There is no right to "hybrid" representation that would result in simultaneous or alternating
self-representation and representation by counsel. United States v. Mosely, 810 F.2d 93,
97 (6th Cir. 1987).
Nevertheless, while a defendant does not have a constitutional right to hybrid
representation, a trial court has discretion to permit it. McKaskle v. Wiggins, 465 U.S. 168,
183 (1984). See also United States v. Mosely, 810 F.2d 93, 97-98 (6th Cir. 1987). In
McKaskle, the Court held that the defendant's right to self-representation was not violated
where the defendant vehemently objected to standby counsel's involvement prior to and
at the beginning of trial, but subsequently agreed to or acquiesced in hybrid representation.
When a court does allow hybrid representation, there is a debate among authorities
whether the defendant must be warned of the dangers and disadvantages of selfrepresentation.
Some courts have been clear that a defendant's Sixth Amendment right to counsel
is affected, and therefore must be validly waived, whenever the defendant undertakes any
of the “core functions of counsel.” See United States v. Davis, 269 F.3d 514, 519-20 (5th
Cir.2001) ( “Hybrid or no, the representation sought by [the defendant] entailed a waiver
of his Sixth Amendment right to counsel that required the safeguards specified in Faretta”);
United States v. Turnbull, 888 F.2d 636, 638 (9th Cir.1989) (“If the defendant assumes any
of the ‘core functions’ of the lawyer, however, the hybrid scheme is only acceptable if the
defendant has voluntarily waived counsel.”; See also 3 Wayne R. LaFave et al., Criminal
Procedure § 11.5(g) (1999) (“Of course, since hybrid representation is in part pro se
representation, allowing it without a proper Faretta inquiry can create constitutional
difficulties.”); Hill v. Commonwealth, 125 S.W.3d 221 (Ky.2004) (failure to hold Faretta
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hearing, to give Faretta warnings, or to make a finding that defendant's limited waiver of
counsel, to allow hybrid representation, was knowing, intelligent, and voluntary resulted in
a structural error, requiring automatic reversal of defendant's conviction); State v. Martin,
103 Ohio St.3d 385, 816 N.E.2d 227 (2004) (hybrid representation requires a waiver of the
assistance of counsel, as one of the difficulties of hybrid representation is that it cannot be
determined until after the trial whether the defendant actually received the representation
that would not require a full waiver); Parren v. State, 309 Md. 260, 523 A.2d 597 (1987)
(since there is no clear boundary line between hybrid representation and
self-representation assisted by standby counsel, and since hybrid representation is not
constitutionally recognized, trial court must conduct waiver-of-counsel inquiry as prescribed
by state rule for pro se proceedings).
Other courts, reasoning from the absence of a Sixth Amendment right to hybrid
representation, have held that no waiver is required when the court grants a request for
some slim forms of hybrid representation. See United States v. Leggett, 81 F.3d 220, 223
(D.C.Cir.1996) (holding that granting defendant's request to have defense counsel to ask
some questions suggested by the defendant, against the advice of counsel, and later
personally to ask a few questions of three prosecution witnesses after defense counsel's
examination did not require a waiver of his Sixth Amendment right to counsel); Banks v.
Horn, 271 F.3d 527, 539 (3d Cir.2001) (holding that insistence on testifying and having
certain exhibits admitted during his testimony, against advice of counsel, at most
constituted hybrid representation, and that the failure to obtain a waiver was not contrary
to clearly established precedent of the United States Supreme Court, although perhaps was
against the Sixth Amendment); People v. Jones, 53 Cal.3d 1115, 282 Cal.Rptr. 465, 811
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P.2d 757 (1991) (as there are only two types of representation, self-representation and
professional representation, hybrid representation must be deemed a form of professional
representation, with counsel retaining “complete control over the extent and nature of the
defendant's participation and all tactical and procedural decisions”; Faretta-type warnings
therefore are not required because “the defense counsel retains control over the case”
even where defendant is allowed to “actively participate”); State v. Hunter, 840 S.W.2d 850
(Mo.1992) (written waiver requirement does not apply to cases with hybrid counsel).
In Wilson v. Hurt, 29 F. App'x 324, 328 (6th Cir. 2002), the Sixth Circuit agreed with
the former line of cases and found that “a trial court must obtain a waiver of the defendant's
Sixth Amendment right to have counsel conduct the entire trial before it permits so-called
hybrid representation to proceed.” Neverless, because that case was governed by the
AEDPA, the Court denied relief, finding “we also cannot find that such a denunciation is
required by the ‘clearly established Federal law, as determined by the Supreme Court of
the United States.’ 28 U.S.C. § 2254(d)(1)”). Id.
Here, the Michigan Court of Appeals agreed with the later line of cases, and it found
that because Petitioner was proceeding with hybrid representation, no Faretta warnings
were required. If this case were before the Court on direct review, it might be bound under
Wilson to find that the absence of warnings violated Faretta. But this case is governed by
the AEDPA, and because the United States Supreme Court has not clearly held that
Faretta warnings are required in cases of hybrid representation, Petitioner has failed to
demonstrate entitlement to relief based on this claim.
G. Jail Credit
Petitioner’s next claim asserts that the sentencing court erred when it failed to award
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him credit for time served in jail between October 14, 2008, and the date of his sentencing.
Petitioner's claim with respect to jail credit is a matter of state law not cognizable on
federal habeas review. See Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003) ("[a]
state court's alleged misinterpretation of state sentencing guidelines and crediting statutes
is a matter of state concern only"); Travis v. Lockhart, 925 F.2d 1095, 1097 (8th Cir. 1991)
("[b]ecause application of presentence jail time to a subsequent sentence is legislative
grace and not a constitutional guarantee, the interpretation of state crediting statutes is a
matter of state concern and not a proper function of a federal court under its habeas corpus
jurisdiction") (internal quotation marks, citations and brackets omitted). Accordingly,
Petitioner's claim with respect to the trial judge's calculation of credit for time served is not
cognizable on federal habeas review.
H. Sufficiency of the Evidence
Petitioner asserts in his final two claims that insufficient evidence was presented at
trial to sustain his conviction for larceny by false pretenses. Specifically, Petitioner
challenges the sufficiency of the evidence offered to show that he was involved in the
fraudulent transactions when most parts of the transactions were performed by Gilmore,
and that there was no evidence offered to show that he intended to defraud the auto
dealership. Respondent asserts that the Michigan Court of Appeals decision rejecting this
claim on the merits was not objectively unreasonable.
"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
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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).
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 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. Indeed, for a federal habeas court reviewing 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).
The Michigan Court of Appeals rejected Petitioner’s claim as follows:
Defendant next argues, both through appellate counsel and in his Standard
4 brief, that the evidence was insufficient to support his conviction. This Court
reviews a challenge to the sufficiency of the evidence de novo. People v.
Kanaan, 278 Mich.App. 594, 618 (2008). To determine whether the evidence
presented at a bench trial was sufficient to support the defendant’s
conviction, this Court views the evidence in a light most favorable to the
prosecution to “determine whether a rational trier of fact could find that the
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essential elements of the crime were proven beyond a reasonable doubt.” Id.
The elements of the crime can be proved by circumstantial evidence and
reasonable inferences that can be drawn from such evidence. Id. at 619.
The elements of larceny by false pretenses are as follows:
(1) the defendant must have used a pretense or made a false
statement relating to either past or then existing facts and
circumstances, (2) at the time the pretense was used the
defendant must have known it to be false, (3) at the time the
pretense was used the defendant must have intended to
defraud someone, (4) the accuser must have relied on the
false pretense made by the defendant, (5) because of this
reliance that person must have suffered the loss of some
money or other valuable thing, and (6) the property obtained by
the defendant must have had a fair market value of over . . .
[$20,000, but less than $50,000] at the time of the crime.
People v. Lueth, 253 Mich.App. 670, 680-681 (2002).
In this case, the prosecutor presented evidence of defendant’s involvement
in the purchase or lease of several vehicles through his girlfriend, Tomeka
Gilmore. Although Gilmore was listed as the named party to the transactions
in the paperwork, the evidence indicated that it was defendant who initiated
all contact and handled all of the negotiations for the transactions. The
evidence showed that defendant was involved in the transaction in which a
Land Rover vehicle was purchased in Gilmore’s name as part of a financed
transaction in which Capital One was listed as a secured creditor on the
certificate of title, which was given to defendant. A few weeks later, a false
certificate of title to the Land Rover was obtained that omitted Capital One’s
security interest in the vehicle. The evidence established that the false
certificate of title was obtained by someone who submitted forged documents
to the Secretary of State indicating that they had been authorized to act on
behalf of Gilmore and falsely certifying the satisfaction of the Capital One
debt and the release of Capital One’s lien. The evidence further showed that
defendant used the false certificate of title to negotiate a trade-in of the Land
Rover in exchange for a prepaid lease of a Ford Fusion and a cash payment
of approximately $20,000. The auto dealership relied on the false certificate
by providing the Ford Fusion and cash payment under the belief that it was
receiving the Land Rover free of any security interest.
Defendant argues that there was insufficient evidence that he was involved
in the transactions, particularly in obtaining the false certificate of title. He
emphasizes that Gilmore was the titled owner of the Land Rover, the titled
owner of the Fusion, and the debtor to Capital One. Defendant also
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maintains that the certificate of title was valid, and that there was no evidence
that he had no knowledge of, or responsibility for, the omission of the Capital
One lien. We disagree with each of these claims. The prosecutor presented
ample evidence that defendant was the person who initiated and handled all
of the transactions culminating in the Land Rover trade-in. Gilmore testified
that defendant asked her to purchase each of the vehicles for him for his
business, and she agreed to do so because he told her that he could not do
so personally because “he had stuff in his name already.” According to
Gilmore, defendant conducted all of the negotiations for the purchase of the
Land Rover and the other vehicles, he filled out the credit applications on her
behalf, and he promised to be responsible for all payments and insurance.
Gilmore stated that she signed the purchase agreements and credit
applications at defendant’s direction, without really knowing what was going
on, because she trusted defendant and believed that he needed her help to
acquire the vehicles for his leasing business. The auto dealership
salesperson similarly testified that defendant initiated all contacts with the
dealership, and that defendant conducted all of the negotiations, even when
Gilmore was present.
Further, Gilmore testified that she gave the certificate of title for the Land
Rover to defendant, but was subsequently contacted by Capital One about
over-due payments. When she asked defendant about the payments, he told
her that he was “handling it.” Gilmore denied authorizing anyone to conduct
business with the Secretary of State on her behalf and denied that the
signature on the authorization form was her signature. She also denied
falsely reporting the release of Capital One’s lien to the Secretary of State
and denied authorizing anyone to do so. Although there was no direct
evidence that defendant was the person who obtained the false certificate of
title, the evidence showed that defendant used the false certificate to
negotiate the trade in of the Land Rover. Moreover, Gilmore’s testimony
established that defendant was aware that the Land Rover was purchased
in a financed transaction and that he knew that Gilmore was not making the
payments. Thus, the evidence allowed a rational trier of fact to find that
defendant knew that the replacement certificate of title, which omitted the
Capital One lien, was false, and that defendant knowingly used the false
certificate to fraudulently obtain the Ford Fusion and the approximate
$20,000 cash payment.
Defendant also argues that there was no evidence that he acted with intent
to defraud Russ Milne Ford, because his only intent was to help Gilmore
purchase vehicles. However, Gilmore’s testimony was sufficient to establish
that she had no personal interest in acquiring the Ford Fusion or any of the
other vehicles she purchased or leased at defendant’s instructions.
Moreover, Gilmore testified that defendant received possession of both the
Ford Fusion and the cash payment that was received for the trade-in
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differential.
Accordingly, viewed in a light most favorable to the prosecution, the evidence
was sufficient to support defendant’s conviction of larceny by false pretenses.
Kanaan, 278 Mich.App. at 618.
Childress, No. 299592, *3-5.
The Michigan Court of Appeals recited the correct governing constitutional standard
in discussing Petitioner’s claim, and its conclusion that sufficient evidence was presented
at trial to sustain Petitioner’s convictions was reasonable. Viewed most favorably to the
prosecution, the evidence showed beyond a reasonable doubt that Petitioner asked
Gilmore to purchase the vehicles and, while the financing was in her name, Petitioner
negotiated the purchases. Gilmore, unaware of Petitioner’s unlawful intent, told Petitioner
that payments were overdue, and Petitioner said he was “handling it.” The evidence thus
showed that Petitioner knew that the title for the vehicle was encumbered and so he knew
the title certificate with no encumbrance could not be valid. Nevertheless, Petitioner used
the falsified title to sell the vehicle to an unsuspecting third party. Contrary to Petitioner’s
assertion, the fact that there was not a single witness who observed every step of
Petitioner’s criminal scheme does not mean that the evidence was insufficient.
Accordingly, the state court decision did not “fall below the threshold of bare rationality” for
the jury to conclude that the prosecutor presented sufficient evidence to support each
element of the crime. Petitioner is therefore not entitled to habeas relief based on this
claim.
IV. Certificate of Appealability
Before Petitioner may appeal this decision, a certificate of appealability must issue.
See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability may
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issue “only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas claim on the merits,
the substantial showing threshold is met if the petitioner demonstrates that reasonable
jurists would find the district court’s assessment of the constitutional claim debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). In applying this standard, a court may not conduct a full merits review, but
must limit its examination to a threshold inquiry into the underlying merit of the claims. Id.
at 336-37. The Court concludes that a certificate of appealability is warranted in this case
with respect to Petitioner’s
because reasonable jurists could debate the Court’s
assessment of Petitioner’s seventh claim regarding the absence of warnings regarding selfrepresentation when a defendant is operating with hybrid-representation. Petitioner is not
entitled to a certificate of appealability with respect to any of his other claims under this
standard. The Court will grant Petitioner permission to proceed on appeal in forma pauperis
because an appeal could be taken in good faith with respect to his seventh claim.
V. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is GRANTED with
respect to Petitioner’s seventh claim, but it is DENIED with respect to his other claims.
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IT IS FURTHER ORDERED that permission to proceed on appeal in forma pauperis
is GRANTED.
Dated: May 14, 2014
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 14, 2014, by electronic and/or ordinary mail and also on
Robert Childress #25851-039, Elkton Federal Correctional
Institution, Inmate Mail/Parcels, P.O. Box 10
Lisbon, OH 44432.
s/Barbara Radke
Deputy Clerk
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