Hickey v. Palmer

Filing 11

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KAINTE DESHAWN HICKEY,
Petitioner,
CASE NO. 2:12-CV-14635
HONORABLE ARTHUR J. TARNOW

v.
CARMEN PALMER,
Respondent.
_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner

Kainte Deshawn Hickey (“Petitioner”) was convicted of first-degree premeditated
murder, MICH. COMP. LAWS § 750.316, conspiracy to commit murder, MICH. COMP.
LAWS § 750.157a, assault with intent to commit murder, MICH. COMP. LAWS § 750.83,
felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, and possession of
firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, following a
joint jury trial with co-defendants Quonshay Douglas-Ricardo Mason and Andre Lamont
Jackson in the Wayne County Circuit Court. He was sentenced to concurrent terms of life
imprisonment without the possibility of parole on the murder and conspiracy convictions,

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a concurrent term of 23 years 9 months to 50 years imprisonment on the assault
conviction, a concurrent term of 3 years 4 months to 5 years imprisonment on the felon in
possession conviction, and a consecutive term of 2 years imprisonment on the felony
firearm conviction in 2008.
In his pleadings, Petitioner raises claims concerning the effectiveness of counsel,
the sufficiency of the evidence, the conduct of the prosecutor, the conduct of the trial
judge, and the denial of a motion for new trial based upon newly-discovered evidence.
For the reasons set forth herein, the Court finds that those claims lack merit and denies
the habeas petition. The Court also denies a certificate of appealability and denies leave
to proceed in forma pauperis on appeal.
II.

Facts and Procedural History
Petitioner’s convictions arise from a shooting incident that occurred in Detroit,

Michigan in 2007. The Michigan Court of Appeals described the relevant facts, which
are presumed correct on federal habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith,
581 F.3d 410, 413 (6th Cir. 2009), as follows:
Defendants' convictions arise from the fatal shooting of Bennie Peterson
and the nonfatal shooting of Donteau Dennis during the early morning
hours of September 28, 2007, in the city of Detroit. Defendants were tried
jointly with codefendant Andre Lamont Jackson, who was also convicted of
first-degree premeditated murder, conspiracy to commit murder, assault
with intent to commit murder, and felony-firearm.

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Dennis was the primary prosecution witness at trial. Dennis testified that he
was at the home of Bennie Peterson when defendant Mason came to the
house and invited them to participate in a planned robbery of a drug
purchaser at the Cabana Hotel. Mason told them that the purchaser would
be carrying a large sum of money. Peterson and Dennis agreed to go, and
they left with Mason in Peterson's van, with Mason driving. Codefendant
Jackson followed them in a Jeep. According to Dennis, Jackson positioned
himself in the Jeep to prevent Dennis from seeing another occupant in the
Jeep.
Instead of driving to the hotel, Mason drove to Malcolm Street, where he
instructed Dennis to purchase drugs from a drug house; informing him that
the drugs would be used as bait in the planned robbery. As Dennis began
walking toward the drug house, he noticed that Mason and Jackson had
positioned their vehicles so that Peterson's van was trapped between the
Jeep and another parked car. Hickey then approached Dennis, apparently
having come from Jackson's Jeep. Dennis owed a $50 drug debt to Hickey,
who shot Dennis. During this same time, Dennis saw Mason and Jackson
exit their vehicles carrying guns, and one or both of them fired into the van.
Peterson died from multiple gunshot wounds. Dennis was shot several
times, but fled to the backyard of a home nearby and survived.
Detroit Police Officer Frank Senter found Dennis lying in the backyard of
that home. Dennis told Senter that Hickey had shot him over a drug debt,
but did not say anything about Peterson, Mason, or Jackson. Over the next
few days, Sergeant William Anderson interviewed Dennis at the hospital.
Dennis reiterated that he was shot by Hickey, and also reported that Mason
and Jackson had killed Peterson.
After Hickey and Mason were convicted, they both filed motions for a new
trial. Mason submitted an affidavit in which he averred that he and another
man, Hosiea “Man-Man” Turner, waited outside the Cabana Hotel while
Peterson robbed a drug addict and Dennis stole a gun from the robbery
victim's car. Mason claimed that when the group reconvened on Malcolm
Street, Dennis and Peterson began arguing over the division of the robbery
proceeds and struggled over the stolen gun. According to Mason, Dennis
shot Peterson, jumped out of the van, and began to shoot at Mason and
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Turner, prompting Mason to shoot back in self-defense. Mason said that
Jackson and Hickey were not present at the time of the shooting. Turner
also submitted an affidavit that roughly corroborated Mason's version of
events. Mason sought a new trial on the ground that defense counsel was
ineffective for not calling Mason to testify to this version of events at trial.
Hickey argued that Mason's affidavit and proposed new testimony was
newly discovered evidence entitling him to a new trial. The trial court
denied Mason's motion for a new trial, noting that Mason's trial counsel
credibly testified that Mason's version of events was entirely different from
the version that he related to counsel before trial. The court also denied
Hickey's motion, concluding that Mason's proposed testimony was not
newly discovered, but rather newly available evidence which Hickey did
not attempt to secure before trial.
People v. Hickey, No. 285253, 2011 WL 801034, *1-2 (Mich. Ct. App. March 8, 2011)
(footnote omitted) (unpublished).
Following his convictions and sentencing, Petitioner filed an appeal of right with
the Michigan Court of Appeals, raising claims of insufficient evidence, prosecutorial
misconduct, trial court partiality relative to the evidentiary rulings and the jury
instructions, ineffective assistance of trial counsel for failing to object to prosecutorial
misconduct and hearsay and failing to obtain the investigative subpoena transcript, and
trial court error in denying his new trial motion based upon newly-discovered evidence.
The Michigan Court of Appeals denied relief on those claims and affirmed his
convictions. Id. Petitioner then filed an application for leave to appeal with the Michigan
Supreme Court raising the same claims, as well as claims that trial counsel was
ineffective for failing to call two alibi witnesses and appellate counsel was ineffective for
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failing to raise that issue on appeal. The court denied leave to appeal in a standard order.
People v. Hickey, 489 Mich. 993, 800 N.W.2d 88 (2011).
Petitioner, through counsel, thereafter filed his federal habeas petition. He raises
the following claims:
I.

He was denied the effective assistance of counsel.

II.

The evidence was insufficient to prove beyond a reasonable doubt
that he knowingly aided or abetted others in the murder of Bennie
Peterson or that he knew or had any role in any conspiracy to
commit murder.

III.

He was denied his Sixth and Fourteenth Amendment rights to a fair
trial and due process of law through improper argument by the
prosecutor.

IV.

The trial court’s improper conduct denied him a fair trial.

V.

The trial court erred by denying him a new trial based on newlydiscovered evidence.

Respondent filed an answer to the habeas petition contending that it should be dismissed
as a mixed petition and/or that it should be denied for lack of merit. Petitioner filed a
reply brief essentially re-asserting his claims for relief.
III.

Standard of Review
Federal law imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to

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any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim –
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceedings.

28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [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).
“[T]he ‘unreasonable 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

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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. “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, 559 U.S. 766, 773 (2010) (quoting Lindh,
521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
The United States Supreme Court has 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, 562
U.S. 86, 101 (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.
Thus, in order to obtain federal habeas relief, 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

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understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id.
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.
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, 538 U.S. at
71-72. 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, 562 U.S. at 100.
Furthermore, 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. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v.
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Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359
(E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal
habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with
clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
Moreover, habeas review is “limited to the record that was before the state court.” Cullen
v. Pinholster, 563 U.S. 170, 181 (2011).
IV.

Analysis
A.

Exhaustion

As an initial matter, Respondent contends that Petitioner’s claims of ineffective
assistance of counsel regarding the failure to call two potential alibi witnesses,
Petitioner’s sister and her fiancé, and the failure to call co-defendant Mason and Hosiea
Turner as witnesses at trial have not been properly exhausted in the state courts such that
the petition is subject to dismissal. Petitioner asserts that he properly exhausted all of his
issues in his petition and in his reply brief, but does not elaborate on the matter.
A state prisoner filing a habeas petition under 28 U.S.C. §2254 must first exhaust
state court remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state
prisoners must give the state courts one full fair opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review
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process); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). To satisfy the exhaustion
requirement, the claims must be “fairly presented” to the state courts, meaning that the
petitioner must have asserted both the factual and legal bases for the claims in the state
courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). The claims must be
presented to the state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d
365, 368 (6th Cir. 1984). For a Michigan prisoner, each issue must be raised before the
Michigan Court of Appeals and the Michigan Supreme Court to satisfy the exhaustion
requirement. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009) (citing Hafley v.
Sowders, 902 F.2d 480, 483 (6th Cir. 1990)). While the exhaustion requirement is not
jurisdictional, a "strong presumption" exists that a prisoner must exhaust available state
court remedies before seeking federal habeas review. Granberry v. Greer, 481 U.S. 129,
131, 134-35 (1987); Wagner, 581 F.3d at 415 (citing Harris v. Lafler, 553 F.3d 1028,
1031 (6th Cir. 2009)). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d
at 160.
In this case, Petitioner first raised his ineffective assistance of counsel claims
regarding the alibi witnesses and the other witnesses before the Michigan Supreme

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Court.1 Presenting new issues for the first time before a state supreme court on
discretionary review, however, does not amount to a “fair presentation” of those claims to
the state courts for exhaustion purposes. Castille v. Peoples, 489 U.S. 346, 351 (1989).
Petitioner thus failed to properly exhaust all of his claims in the state courts before
seeking federal habeas review.
The Court, however, declines to dismiss the petition on such a basis. While the
exhaustion requirement is strictly enforced, it is not a jurisdictional prerequisite for
bringing a habeas petition. Granberry v. Greer, 481 U.S. 129, 134-35 (1987); Rockwell
v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). For example, an unexhausted claim may be
addressed if pursuit of a state court remedy would be futile, see Witzke v. Withrow, 702 F.
Supp. 1338, 1348 (W.D. Mich. 1988), or if the unexhausted claim is meritless such that
addressing it would be efficient and not offend federal-state comity. See Prather v. Rees,
822 F.2d 1418, 1422 (6th Cir. 1987); see also 28 U.S.C. § 2254(b)(2) (habeas petition
may be denied on the merits despite the failure to exhaust state court remedies). The
Court finds that the interests of justice would be best served by adjudicating Petitioner’s
claims because further exhaustion in the state courts is likely to be futile and because the

1

Petitioner raised the issue of co-defendant Mason’s and Hosiea Turner’s testimony before
the Michigan Court of Appeals as part of his motion for new trial/newly-discovered evidence
claim, but did not assert that counsel was ineffective.
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claims lack merit and may be denied despite any lack of exhaustion. The Court will
therefore proceed to the merits of Petitioner’s claims.
A.

Ineffective Assistance of Counsel Claims

Petitioner first asserts that he is entitled to habeas relief because trial counsel was
ineffective for failing to raise an alibi defense, for failing to object to the prosecutor’s
mis-characterization of testimony, for failing to object to the prosecutor reading
statements into the record, for failing to secure a copy of investigative subpoena
testimony before trial, for failing to object to the prosecutor’s closing argument, for
failing to object hearsay testimony, and for failing to call exculpatory witnesses.
Respondent contends that these claims lack merit.
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to the effective assistance of counsel. 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 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.

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Counsel’s errors must have been so serious that they deprived the petitioner of a fair trial
or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts that were “outside
the wide range of professionally competent assistance.” Id. at 690. The reviewing
court’s scrutiny of counsel’s performance is highly deferential. Id. at 689. There is a
strong presumption that trial counsel 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.
As to the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. A reasonable probability is one that is sufficient
to undermine confidence in the outcome of the proceeding. 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 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
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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, 562 U.S. at 105 (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.
1.

Alibi Witnesses

Petitioner first asserts that trial counsel was ineffective for failing to call
Petitioner’s sister and her fiancé as alibi witnesses at trial. He relatedly asserts that
appellate counsel was ineffective for failing to properly raise this issue on appeal.
According to the witnesses’ affidavits, which were signed in 2011, they would have
testified that Petitioner had his car towed to their house at 1:30 a.m. on the day of the
shooting, that they went to bed and set their house alarm, and that the house alarm did not
sound until 9:00 a.m. The witnesses claim that trial counsel knew of their proposed
testimony and chose not to call them because he did not believe that their testimony was
necessary.
Well-established 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, 539 U.S. at 522-23; Strickland, 466 U.S. at
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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 at 258. 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 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 call a
known alibi witness can constitute ineffective assistance of counsel, Bigelow v. Williams,
367 F.3d 562, 570 (6th Cir. 2004), but counsel is not required to call a witness whose
credibility is questionable. Thurmond v. Carlton, 489 F. App’x 834, 840 (6th Cir. 2012).
The failure to call witnesses or present other evidence 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).
In this case, it appears that trial counsel was aware of the potential alibi witnesses
and chose not to call them at trial. The question then is whether counsel’s strategic
decision was reasonable. The Court finds that it was. Trial counsel may have reasonably
decided not to call Petitioner’s sister and her fiancé as alibi witnesses based upon several
factors. First, he may have questioned their reliability due to their familial relationship
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with Petitioner and/or had concerns about the jury’s view of their credibility. See, e.g.,
Stadler v. Berghuis, 483 F. App’x 173, 176-77 (6th Cir. 2012) (defense counsel’s decision
not to pursue an alibi defense was reasonable given his concerns about family members’
credibility). Second, he may have found that their proposed alibi testimony was imperfect
since they could only testify that Petitioner was at their home at 1:30 a.m. and that they
set their home alarm before going to bed, but could not verify with certainty that
Petitioner remained in their home at the time of the shooting. See, e.g., Moore v. Parker,
425 F.3d 250, 253-54 (6th Cir. 2005) (counsel was not ineffective for failing to call
family members as witnesses where they could not provide an airtight alibi). Third, he
may have believed that contesting the prosecution’s case and casting doubt on the
credibility of prosecution witnesses would be more effective in creating reasonable doubt
than presenting an alibi defense which would be subject to significant challenge. See,
e.g., Hale v. Davis, 512 F. App’x 516, 522 (6th Cir. 2013) (stating that sometimes it may
be “better to try to cast pervasive suspicion of doubt” by challenging the prosecution’s
case than to “strive to prove a certainty that exonerates”). To be sure, the record reflects
that counsel’s strategy was to attack the surviving victim’s credibility and create a
reasonable doubt about his version of events.
Moreover, the record indicates that trial counsel consulted with Petitioner about
whether to call defense witnesses (a witness list had been submitted) and Petitioner
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acknowledged that no witnesses would be called and that he did not want to testify on his
own behalf at trial. See 3/24/08 Trial Tr. pp. 93-94. Petitioner’s acquiescence in
counsel’s strategy, while perhaps not dispositive on this issue, surely supports a finding
that counsel’s decision not to call the witnesses was reasonable at the time it was made.
See, e.g., Turner v. Romanowski, No. 05-CV-70723-DT, 2007 WL 2875250, *12-13
(E.D. Mich. Sept. 28, 2007) (noting that petitioner personally waived right to call alibi
witness at trial and denying habeas relief on similar claim).
Petitioner fails to overcome the presumption that counsel’s conduct was sound trial
strategy. See, e.g., Roush v. Burt, 313 F. App’x 754, 761 (6th Cir. 2008) (finding no
reason to deem counsel ineffective for failing to call witness where record showed
counsel investigated that witness). The fact that 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 also fails to demonstrate that he was prejudiced by counsel’s decision
not to call the potential alibi witnesses at trial. First, the witnesses’ credibility was an
issue given their familial relationship with Petitioner. Second, the witnesses could not
provide an airtight alibi for Petitioner. Third, the surviving victim, who was familiar with
Petitioner, positively identified him at the scene, at the hospital, and at trial as one of the
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perpetrators of the crime. See Ballinger v. Prelesnik, 709 F.3d 558, 563 (6th Cir. 2013);
cert. den., _ U.S. _, 133 S. Ct. 2866 (2013) (finding that petitioner could not show that he
was prejudiced by counsel’s failure to call alibi witness where two eyewitnesses who
were familiar with him positively identified him as the perpetrator). Petitioner thus fails
to establish that trial counsel was ineffective.
With regard to appellate counsel, it is well-established that a criminal defendant
does not have a constitutional right to have appellate counsel raise every non-frivolous
issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983). The United States
Supreme Court has explained:
For judges to second-guess reasonable professional judgments and impose
on appointed counsel a duty to raise every "colorable" claim suggested by a
client would disserve the … goal of vigorous and effective advocacy ….
Nothing in the Constitution or our interpretation of that document requires
such a standard.
Id. at 754. Strategic and tactical choices regarding which issues to pursue on appeal are
“properly left to the sound professional judgment of counsel.” United States v. Perry,
908 F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate advocacy” is
the “process of ‘winnowing out weaker arguments on appeal and focusing on’ those more
likely to prevail.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones, 463 U.S. at
751-52). “Generally, only when ignored issues are clearly stronger than those presented

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will the presumption of effective assistance of appellate counsel be overcome.” Monzo v.
Edwards, 281 F.3d 568, 579 (6th Cir. 2002).
In this case, Petitioner fails to show that appellate counsel’s performance fell
outside the wide range of professionally competent assistance. Appellate counsel raised
substantial claims on direct appeal and was able to garner an evidentiary hearing on
certain issues. Such performance was strategic and reasonable. Furthermore, given the
Court’s determination that this claim lacks merit, Petitioner cannot establish that appellate
counsel was ineffective. Counsel cannot be deemed deficient for making a meritless
argument. See Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2014) (“Omitting meritless
arguments is neither professionally unreasonable nor prejudicial.”); United States v.
Steverson, 230 F.3d 221, 225 (6th Cir. 2000). Petitioner fails to establish that trial
counsel or appellate counsel were ineffective.
2.

Prosecutor’s Characterization of Testimony & Closing
Argument

Petitioner also asserts that trial counsel was ineffective for failing to object to the
prosecutor’s characterization of the number of shots inflicted upon Donteau Dennis and
for failing to object to the prosecutor’s closing argument, including the prosecutor’s
comment that defense counsel lied to the jury.

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The Michigan Court of Appeals denied relief on this claim finding that Petitioner
could not establish that trial counsel was ineffective for failing to make such objections
because the prosecutor’s conduct was either proper or not prejudicial. Hickey, 2011 WL
801034 at *8.
The state court’s denial of relief is neither contrary to Supreme Court precedent
nor an unreasonable application of federal law or the facts. Given the state court’s ruling
on the underlying prosecutorial misconduct issues and this Court’s agreement that those
claims lack merit, Petitioner cannot establish that counsel erred or that he was prejudiced
by counsel’s conduct. Defense counsel cannot be deemed ineffective for failing to make
a futile or meritless objection. Coley, 706 F.3d at 752; Steverson, 230 F.3d at 225.
Petitioner fails to demonstrate that counsel was ineffective.
3.

Prosecutor Reading Statements into the Record

Petitioner also asserts that trial counsel was ineffective for failing to object to the
prosecutor reading prior statements of witnesses Donteau Dennis and Yolanda Bishop
into the record. Petitioner alleges that those prior statements were inadmissible hearsay.
The Michigan Court of Appeals denied relief on this claim finding that even if the
statements were inadmissible, they were not prejudicial because Dennis’s statement was
cumulative to his trial testimony and Bishop’s statement (and her trial testimony) did not
reference Petitioner. Hickey, 2011 WL 801034 at *8.
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The state court’s denial of relief is neither contrary to Supreme Court precedent
nor an unreasonable application of federal law or the facts. Petitioner cannot demonstrate
that he was prejudiced by counsel’s conduct in this regard. First, the Court notes that the
admission of the statements did not violate Petitioner’s confrontation rights because
Dennis and Bishop both appeared and testified at trial. See Crawford v. Washington, 541
U.S. 36, 54 (2004) (ruling that the testimonial statement of a witness who does not appear
at trial is inadmissible unless the witness is unavailable to testify and the defendant had a
prior opportunity to cross-examine the witness). Second, as explained by the Michigan
Court of Appeals, Dennis’s statement was cumulative to his trial testimony and Bishop
did not reference Petitioner in her statement or her trial testimony. Petitioner fails to
establish that counsel was ineffective.
4.

Investigative Subpoena Testimony

Petitioner next asserts that trial counsel was ineffective for failing to obtain a copy
of Donteau Dennis’s investigative subpoena testimony before trial. Petitioner alleges that
counsel was unprepared to effectively cross-examine Dennis and other prosecution
witnesses.
The Michigan Court of Appeals denied relief on this claim finding that the
prosecution failed to disclose the information until trial, that the trial court gave the
defense attorneys the opportunity to review the material at the time of trial, and that
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Petitioner failed to explain how counsel was deficient in not obtaining it sooner and how
he was prejudiced by the untimely production. Hickey, 2011 WL 801034 at *8.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. Petitioner fails to allege facts to
show that the late disclosure of Dennis’s investigative subpoena testimony was trial
counsel’s fault, rather than the prosecutor’s, and fails to allege facts to show that he was
actually prejudiced by the late production of the information. Conclusory allegations are
insufficient to warrant federal habeas relief. See Cross v. Stovall, 238 F. App’x 32, 39-40
(6th Cir. 2007); 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 sufficient basis for an evidentiary hearing in habeas
proceedings). Petitioner thus fails to establish that counsel erred or that he was
prejudiced by counsel’s conduct.
5.

Hearsay Testimony

Petitioner next asserts that trial counsel was ineffective for failing to object to
hearsay testimony from Donteau Dennis about a prior incident in which Petitioner
approached the deceased victim, Bennie Peterson, with a gun.

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The Michigan Court of Appeals denied relief on this claim finding that counsel’s
conduct was a matter of trial strategy and was reasonable under the circumstances. The
court explained:
Hickey also argues that his trial counsel was ineffective for failing to object
to Dennis's hearsay testimony, during cross-examination by Jackson's
counsel, that he heard about a prior incident in which Hickey approached
Peterson's car with a gun. It appears from Dennis's initial testimony that he
personally observed the incident. It was not until later that Dennis clarified
that he only heard about the incident, at which point Jackson's counsel did
not pursue the issue. Hickey's counsel had no apparent basis for objecting
until the latter testimony was given. In this circumstance, the decision
whether to object was a matter of trial strategy. Counsel reasonably may
have concluded that Dennis's acknowledgment that he did not personally
observe the incident diluted any prejudicial effect, and declined to object as
a matter of strategy to avoid drawing attention to the matter. Hickey has not
overcome the presumption of sound strategy.
Hickey, 2011 WL 801034 at *8.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. Counsel had no reason to object to
Dennis’s initial testimony and may have subsequently decided not to object in order to
avoid drawing further attention to the matter and to avoid objecting during co-counsel’s
questioning of the witness. Counsel’s conduct was reasonable. Petitioner fails to
overcome the presumption that counsel’s conduct was sound trial strategy. He thus fails
to establish that counsel was ineffective.

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6.

Other Defense Witnesses

Lastly, Petitioner asserts that trial counsel was ineffective for failing to call codefendant Mason and Hosiea Turner as witnesses at trial. Petitioner, however, fails to
establish that counsel erred or that he was prejudiced by counsel’s conduct. As discussed
supra, decisions as to what evidence to present and whether to call certain witnesses are
presumed to be matters of trial strategy, Roe, 528 U.S. at 481, and the failure to call
witnesses constitutes ineffective assistance of counsel only when it deprives a defendant
of a substantial defense. Chegwidden, 92 F. App’x at 311; Hutchison, 303 F.3d at 749.
With respect to co-defendant Mason, the evidentiary hearing record indicates that
counsel believed that Mason was going to testify at trial and planned accordingly, but
Mason subsequently decided not to do so. See Evid. Hrg. Tr. pp. 35-36. At that juncture,
counsel had no right to compel Mason to testify at the defendants’ joint trial. See, e.g.,
United States v. Barber, 442 F.2d 517, 529 n. 22 (3d Cir. 1971) (noting that defendant
cannot compel co-defendant to testify whether they are tried jointly or severally); United
States v. Anton, No. 1:06-cr-00029-MP-AK, 2007 WL 881650, *5 (N.D. Fla. March 22,
2007) (stating that defendant has no right to compel co-defendant to testify at joint trial)
United States v. Alcantar, No. CR99-2016, 2000 WL 34029133, *1 (N.D. Iowa June 1,
2000) (magistrate judge’s report stating same). The trial court was also unlikely to grant
a severance so late at the end of trial – and Petitioner neither alleges nor establishes that
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any such request would have been granted. Additionally, given that Mason could have
invoked his Fifth Amendment right against self-incrimination if called to testify, defense
counsel may have reasonably determined that it would not be in Petitioner’s best interest
to try to call him as a witness. See Davis v. Lafler, 658 F.3d 525, 537-38 (6th Cir. 2011).
With respect to Turner, the record indicates that defense counsel was aware of him
at the time of trial and likely made a strategic decision not to produce him. During the
cross-examination of Donteau Dennis, counsel elicited that Dennis knew Turner.
See3/20/08 Trial Tr., p. 50. During the cross-examination of Laketha Boutire, codefendant Mason’s girlfriend, counsel elicited that Boutire saw Turner in co-defendant
Jackson’s Jeep at the deceased victim’s house on the day of the shooting, but did not see
Petitioner at that time. See 03/24/08 Trial Tr., p. 72. During closing argument, defense
counsel was then able to argue that the prosecution was aware of Turner, yet failed to
produce him despite Boutire’s claim that Turner, not Petitioner, was in co-defendant
Jackson’s Jeep. Id. at pp. 142-43. Such a strategy of challenging the prosecution’s case
and creating doubt about the investigation, rather than calling a witness who seems to
have credibility issues, was reasonable. The fact that counsel’s strategy was ultimately
unsuccessful does not mean that counsel was ineffective. See Moss, 286 F.3d at 859.
Petitioner was not deprived of a substantial defense.

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With regard to both witnesses, counsel may have also reasonably determined not
to call them as witnesses at trial due to their potential credibility issues. The evidentiary
hearing record reveals that there were discrepancies between the witnesses’ affidavits and
their own evidentiary hearing testimony, that there were inconsistencies in the witnesses’
testimony relative to each other and with co-defendant Jackson’s statement. In fact,
Mason’s own counsel testified that his post-trial version of events differed from what he
told her at the time of trial. As previously discussed, counsel is not required to call a
witness whose credibility is questionable, Thurmond, 489 F. App’x at 840, and counsel
may have reasonably decided that contesting the prosecution’s case would be more
effective in creating reasonable doubt than presenting witnesses who could be subject to
significant challenge. Hale, 512 F. App’x 522.
Lastly, as with the potential alibi witnesses, the fact that Petitioner acquiesced in
trial counsel’s decision not to call any defense witnesses supports a finding that counsel’s
decision was strategic and that it was reasonable at the time of trial. Furthermore, given
the witnesses’ credibility issues, coupled with the surviving victim’s consistent
identifications of Petitioner as one of the perpetrators, Petitioner cannot demonstrate that
he was prejudiced by counsel’s conduct. Petitioner fails to establish that he was deprived
of a substantial defense or that counsel was otherwise ineffective under the Strickland
standard. Habeas relief is not warranted on this claim.
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B.

Sufficiency of the Evidence Claim

Petitioner next asserts that he is entitled to habeas relief because the prosecution
presented insufficient evidence to support his first-degree murder and conspiracy to
commit murder convictions. Respondent contends that this claim lacks merit.
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). The question on a
sufficiency of the evidence claim 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.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). A federal habeas court views this standard through the framework of 28
U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus, under the
AEDPA, challenges to the sufficiency of the evidence “must survive two layers of
deference to groups who might view facts differently” than a reviewing court on habeas
review – the factfinder at trial and the state court on appellate review – as long as those
determinations are reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).
Furthermore, the Jackson standard must be applied “with explicit reference to the
substantive elements of the criminal offense as defined by state law.” Brown v. Palmer,
441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n. 16). “A
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reviewing court does not re-weigh the evidence or re-determine the credibility of the
witnesses whose demeanor has been observed by the trial court.” Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S.
422, 434 (1983)). Accordingly, the “mere existence of sufficient evidence to convict . . .
defeats a petitioner’s claim.” Matthews, 319 F.3d at 788-89.
Under Michigan law, first-degree premeditated murder requires proof that the
defendant intentionally killed the victim and that the killing was premeditated and
deliberate. People v. Kelly, 231 Mich. App. 627, 642, 588 N.W.2d 480 (1998); MICH.
COMP. LAWS § 750.316. Premeditation and deliberation may be established by evidence
showing: “(1) the prior relationship of the parties; (2) the defendant’s actions before the
killing; (3) the circumstances of the killing itself; and (4) the defendant’s conduct after the
homicide.” People v. Schollaert, 194 Mich. App. 158, 170, 486 N.W.2d 312 (1992); see
also People v. Abraham, 234 Mich. App. 640, 656, 599 N.W.2d 736 (1999). The
prosecution must prove beyond a reasonable doubt that the defendant committed the
charged offense. People v. Kern, 6 Mich. App. 406, 409, 149 N.W.2d 216 (1967). Direct
or circumstantial evidence and reasonable inferences arising from that evidence may
constitute satisfactory proof of the elements of an offense, People v. Jolly, 442 Mich. 458,
466, 502 N.W.2d 177 (1993), including the identity of the perpetrator, Dell v. Straub, 194
F. Supp. 2d 629, 647 (E.D. Mich. 2002); Kern, 6 Mich. App. at 409; see also People v.
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Johnson, 146 Mich. App. 429, 434, 381 N.W.2d 740 (1985), and the defendant’s intent or
state of mind. People v. Dumas, 454 Mich. 390, 398, 563 N.W.2d 31 (1997); see also
People v. Nowack, 462 Mich. 392, 402-03, 614 N.W.2d 78 (2000).
To convict a defendant under an aiding and abetting theory, the prosecution must
establish that the crime was committed by the defendant or some other person, that the
defendant performed acts or gave encouragement that aided or assisted in the commission
of the crime, and that the defendant either intended to commit the crime or knew that the
principal intended to commit the crime at the time he or she gave the aid or
encouragement. People v. Carines, 460 Mich. 750, 757-58, 597 N.W.2d 130 (1999); see
also People v. Moore, 470 Mich. 56, 679 N.W.2d 41 (2004); MICH. COMP. LAWS §
767.39. An aider and abettor’s state of mind may be inferred from all the facts and
circumstances, including a close association between the defendant and the principal, the
defendant’s participation in the planning or execution of the crime, and evidence of flight
after the crime. Carines, 460 Mich. at 757-58.
A conspiracy under Michigan law involves the mutual agreement or
understanding, express or implied, between two or more persons to commit a criminal act
or a legal act by unlawful means. See People v. Anderson, 418 Mich. 31, 36, 340 N.W.2d
634 (1983); MICH. COMP. LAWS § 750.157a. Conspiracy may be established by
circumstantial evidence and may be based on inference. People v. McKenzie, 206 Mich.
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App. 425, 428, 522 N.W.2d 661 (1994). Direct proof of agreement is not required, nor is
it necessary that a formal agreement be proven. It is sufficient if the circumstances, acts,
and conduct of the parties establish an agreement in fact. People v. Justice (after
remand), 454 Mich. 334, 347, 562 N.W.2d 652 (1997).
The Michigan Court of Appeals denied relief on this claim, explaining in relevant
part:
Hickey does not dispute that Jackson and Mason could properly be found
guilty of first-degree murder in connection with Peterson's shooting death.
Accordingly, the first element of aiding and abetting is satisfied. Further,
we disagree with Hickey's claim that the evidence was insufficient to
establish either that he assisted or encouraged Jackson or Mason in
committing the crime, or that he did not act with the intent or knowledge
that Peterson would be killed. A jury could infer from Dennis's testimony
that Jackson, Mason, and Hickey were acting in concert pursuant to a plan
whereby Mason would entice Peterson and Dennis away from Peterson's
home to a location where Hickey would kill Dennis, and Jackson and
Mason would kill Peterson. The evidence supported an inference that
Hickey was the passenger in Jackson's vehicle, and that Jackson attempted
to conceal Hickey's presence from Dennis. The evidence also showed that
Mason and Jackson parked their vehicles in a manner that prevented
Peterson from driving away and that, after Dennis left Mason's vehicle,
Hickey exited Jackson's vehicle and shot Dennis, while Mason and Jackson
exited their respective vehicles and shot Peterson who was still inside the
vehicle that Mason drove. A trier of fact could reasonably find beyond a
reasonable doubt that Hickey aided and abetted Peterson's shooting death
by shooting Dennis, thereby allowing Mason and Jackson to act without any
threat of interference from Dennis, and that Hickey acted with knowledge
of Mason's and Jackson's intent to kill Peterson. Accordingly, there was
sufficient evidence to convict Hickey of first-degree premeditated murder
under an aiding and abetting theory.

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Furthermore, Dennis's testimony describing the coordinated actions of
Hickey, Mason, and Jackson supported an inference that they were acting
pursuant to a common plan to entice both Peterson and Dennis away from
Peterson's home, and to then isolate and shoot them both. Accordingly, the
evidence was also sufficient to support Hickey's conviction of conspiracy to
commit murder.
Hickey, 2011 WL 801034 at *3-4.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The prosecution presented sufficient
evidence to establish Petitioner’s guilt of first-degree murder as an aider or abettor and
conspiracy to commit murder through the testimony of the surviving victim, Donteau
Dennis, as well as reasonable inferences from that testimony. To be sure, a victim’s
testimony alone can be constitutionally sufficient to sustain a conviction. See Tucker v.
Palmer, 541 F.3d 652, 658 (6th Cir. 2008) (citing cases). Dennis’ descriptions of
Petitioner’s actions during the incident establish his intent to aid and abet the murder of
Peterson and to act in concert with his co-defendants. Considered in a light favorable to
the prosecution, such evidence was sufficient to show that Petitioner, acting as an aider
and abettor, committed the premeditated murder with his co-defendants and that they
conspired to do so.
Petitioner challenges the inferences the jury drew from the testimony presented
during trial. However, it is the job of the fact-finder at trial, not a federal habeas court, to

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resolve evidentiary conflicts. See Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d
594, 618 (6th Cir. 2002); Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A
federal habeas corpus court faced with a record of historical facts that supports conflicting
inferences must presume - even if it does not affirmatively appear in the record - that the
trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.”). The jury’s verdict, and the Michigan Court of Appeals’ decision affirming
that verdict, were reasonable. The evidence presented at trial, viewed in a light favorable
to the prosecution, established beyond a reasonable doubt that Petitioner committed the
crimes of which he was convicted. Habeas relief is not warranted on this claim.
C.

Prosecutorial Misconduct Claim

Petitioner next asserts that he is entitled to habeas relief because the prosecutor
engaged in misconduct by mis-characterizing the evidence. Specifically, he alleges that
the prosecutor erroneously argued that Petitioner shot Donteau Dennis eight times,
improperly accused defense counsel of lying and denigrated counsel and the defense.
Respondent contends that this claim is barred by procedural default and lacks merit.
The United States Supreme Court has made clear that prosecutors must “refrain
from improper methods calculated to produce a wrongful conviction.” Berger v. United
States, 295 U.S. 78, 88 (1935). To prevail on a prosecutorial misconduct claim, however,
a habeas petitioner must demonstrate that the prosecutor’s conduct or remarks “so
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infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see also Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly); Parker v. Matthews, _ U.S. _,
132 S. Ct. 2148, 2153 (2012) (confirming that Donnelly/Darden is the proper standard).
The Michigan Court of Appeals reviewed this claim for plain error and denied
relief finding that the prosecutor’s remarks were proper and/or that they did not affect
Petitioner’s substantial rights. The court explained in relevant part:
The prosecutor did not improperly argue facts not supported by the
evidence when she asserted that Dennis had been shot eight times. Dennis
testified on direct examination that he received eight gunshot wounds.
Although defense counsel elicited on cross-examination that it was possible
that a single bullet caused more than one wound, no medical testimony
supporting this theory was presented. Because a prosecutor is permitted to
draw reasonable inferences from the facts of the case, the prosecutor
properly could rely on Dennis's testimony to argue that Dennis was shot
eight times. People v. Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007).
Accordingly, there was no plain error.
Hickey also argues that the prosecutor improperly accused defense counsel
of fabrication and improperly denigrated counsel by labeling him a liar. A
prosecutor may not personally attack defense counsel, denigrate the
defense, or question defense counsel's veracity by suggesting that counsel is
intentionally attempting to mislead the jury. People v. Watson, 245 Mich
App 572, 592; 629 NW2d 411 (2001); People v. Kennebrew, 220 Mich App
601, 607-608; 560 NW2d 354 (1996); People v. Wise, 134 Mich App 82,
101-102; 351 NW2d 255 (1984). However, a prosecutor's comments must
be considered in light of defense counsel's arguments. People v. Messenger,
221 Mich App 171, 181; 561 NW2d 463 (1997). Accordingly, a comment
that might appear improper standing alone “may not rise to an error

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requiring reversal when the prosecutor is responding to the defense
counsel's argument.” Kennebrew, 220 Mich App at 608.
Here, the prosecutor's “cheap novel” and “pure fiction” comments were
made in the context of responding to defense counsel's entirely hypothetical
theory that Dennis and Peterson were shot while trying to rob drug dealers,
and that Dennis falsely accused Hickey to conceal Dennis's own illegal
conduct. The prosecutor's comments were intended to convey that defense
counsel's theory was not supported by any evidence. Under the
circumstances, the comments did not constitute plain error.
Further, reversal is not required because of the prosecutor's statement that
defense counsel told a “bal[d]-face” lie by accusing the prosecutor of
coercing Dennis into lying by threatening to charge him with perjury. That
statement was made in response to Hickey's counsel's comments that
inaccurately tied Dennis's testimony to possible perjury charges. Although it
may have been improper to characterize defense counsel's statement as a
“bald-faced lie,” considering the context in which it was made, the
statement did not affect Hickey's substantial rights.
Hickey, 2011 WL 801034 at *4.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The prosecutor’s remarks about
Petitioner shooting Donteau Dennis eight times were based upon Dennis’s testimony that
he suffered eight gunshot wounds. It is well-established that a prosecutor may rely upon
the facts as presented through the trial testimony and may argue reasonable inferences
from the evidence. See, e.g., Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000). The
prosecutor’s characterization of defense counsel’s arguments as “pure fiction,” while
strong, was not improper. The prosecutor’s comments were made in response to defense
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counsel’s claims, to refute the defense case, and to argue that the defense theory was not
supported by the evidence. While it is inappropriate for a prosecutor to make personal
attacks on a defendant or defense counsel, United States v. Young, 470 U.S. 1, 9 (1985), a
prosecutor may highlight inconsistencies or inadequacies in the defense, Bates v. Bell,
402 F.3d 635, 646 (6th Cir. 2005), and argue the facts supporting the prosecution’s theory
and the lack of evidence supporting the defense theory. United States v. Forrest, 402
F.3d 678, 686 (6th Cir. 2005). Similarly, while the prosecutor’s remark that defense
counsel told a “bold-face lie” was perhaps uncalled for, it was made in response to
defense counsel’s accusation that the prosecutor coerced Dennis into testifying at trial.
As such, it was not entirely improper.
Moreover, to the extent that any of the prosecutor’s remarks were improper, they
were not pervasive or misleading so as to render the trial fundamentally unfair. Any
potential prejudice to Petitioner was mitigated by the fact that the trial court properly
instructed the jurors on the law, explained that the attorneys’ comments were not
evidence, and directed them not to let sympathy or prejudice influence their decision. See
Knapp v. White, 296 F. Supp. 2d 766, 776 (E.D. Mich. 2003). Jurors are presumed to
follow the court’s instructions. See Penry v. Johnson, 532 U.S. 782, 799 (2001) (citing
Richardson v. Marsh, 481 U.S. 200, 211 (1987)); United States v. Powell, 469 U.S. 57, 66
(1984) (“Jurors ... take an oath to follow the law as charged, and they are expected to
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follow it.”). Petitioner fails to establish that the prosecutor engaged in misconduct which
rendered his trial fundamentally unfair. Habeas relief is not warranted on this claim.
D.

Judicial Misconduct Claim

Petitioner next asserts that he is entitled to habeas relief because the trial court
engaged in misconduct by improperly admitting hearsay testimony and by improperly
instructing the jury about the evidence. Respondent contends that this claim lacks merit.
The Due Process Clause of the Fourteenth Amendment requires a fair trial in a fair
tribunal before a judge with no actual bias against the defendant or an interest in the
outcome of the case. Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). Judicial
misconduct claims involve two types of cases. One group addresses charges of “judicial
bias” stemming from a trial judge’s “personal interest” in the outcome of a case, usually
derived from some extrajudicial association with the cause or one of the parties. In re
Murchison, 349 U.S. 133, 136 (1955). The second group concerns charges of “judicial
misconduct” in which the trial judge is accused of conducting the proceedings in a
manner which exhibits a “deep-seated favoritism or antagonism that would make fair
judgment impossible.” Liteky v. United States, 510 U.S. 540, 555-56 (1994); see also
Alley v. Bell, 307 F.3d 380, 386 (6th Cir. 2002). Adverse rulings themselves are
generally insufficient to establish bias or prejudice. See Liteky, 510 U.S. at 555; United
States v. Hynes, 467 F.3d 951, 960 (6th Cir. 2006) (citing Liteky). A constitutional
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violation occurs only when a judge’s rulings or statements show “a predisposition so
extreme as to display clear inability to render fair judgment.” Johnson v. Bagley, 544
F.3d 592, 597 (6th Cir. 2008). In reviewing a judicial bias claim, a federal habeas court
should presume that the trial judge properly discharged his or her official duties. Johnson
v. Warren, 344 F. Supp. 2d 1081, 1093 (E.D. Mich. 2004).
The Michigan Court of Appeals denied relief on this claim finding that any error
by the trial court in admitting testimony was harmless and that any error in instructing the
jury did not pierce the veil of judicial impartiality so as to affect Petitioner’s substantial
rights. The court explained:
In the first part of this issue, Hickey challenges the trial court's admission of
Sergeant Anderson's testimony regarding Dennis's statements during a
hospital interview on September 30, a few days after the shooting.
Anderson testified that Dennis identified “Kainte” (defendant Hickey) as
the person who shot him. The trial court overruled Hickey's hearsay
objection, concluding that Dennis's statements, although hearsay, qualified
for admission as a dying declaration. We agree that the trial court erred in
admitting Dennis's hospital statements. MRE 804(b)(2) provides that a
statement is not excluded by the hearsay rule if the statement was “made by
a declarant while believing that the declarant's death was imminent,
concerning the cause or circumstances of what the declarant believed to be
impending death.” This exception is applicable only when the declarant is
unavailable. Here, Dennis was an available witness at trial. Further, there
was no foundation for a finding that Dennis believed that his death was
imminent at the time he made the statement in the hospital. Thus, as
plaintiff concedes, the trial court erred in admitting Dennis's hearsay
statements to Sergeant Anderson under the dying declaration exception to
the hearsay rule.

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Nonetheless, we agree that the error was harmless because it is not more
probable than not that the error was outcome-determinative. People v.
Elston, 462 Mich 751, 766; 614 NW2d 595 (2000). The testimony was
cumulative of Officer Senter's testimony that Dennis identified Hickey at
the crime scene as the person who shot him. It was also cumulative of
Dennis's own trial testimony identifying Hickey as the shooter, which was
subjected to extensive cross-examination by all three defendants. Under
these circumstances, the erroneous admission of Dennis's hearsay statement
at the hospital was harmless. People v. Gursky, 486 Mich 596, 620-621; 786
NW2d 579 (2010).
Hickey also contends that the trial court exhibited partiality by instructing
the jury, contrary to the evidence, that Dennis was not part of a planned
robbery. The instruction was given in response to statements by Jackson's
and Hickey's counsels in their opening statements. In his opening statement,
Hickey's counsel remarked in reference to Dennis, “What you have here is a
story and it's a simple story, but it's told by a man who you'll find out the
evidence will show is a thug, a thief, and a, robber, who has told an ever
changing story about what supposedly happened that night.” Hickey's
counsel also stated that the “sole witness by the prosecutor ... always has
said he's a stick up man.” Counsel stated that the evidence would show that
Dennis “went out there to make a drug heist robbery” that ended in the
intended victims firing back at him and his co-felons.
Sergeant Anderson later testified that although Dennis had a prior
conviction involving possession of a stolen vehicle, he had no record of any
robbery-related convictions. The trial court overruled Mason's motion to
strike Sergeant Anderson's testimony, ruling that it was admissible to
respond to defense counsels' characterizations of Dennis in their opening
statements. The trial court also commented, “Nobody was out committing
any armed robbery.” Later, during the court's jury instructions, the court
instructed the jury as follows:
You are to focus on the testimony, the evidence that was
admitted by the court. And as I explained to you in the
beginning, emotion and personalities are to be left out
completely because you deal with the facts and you must be
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objective. And the court advised you or will advise you again
that any inflammatory remarks relating to the witness in the
case as a robber, you will exclude that because that is not
evidence.
The attorneys may bring to the jury's attention any previous
convictions which involved theft, dishonesty and false
statement but even then that is only used for you to impeach
the credibility. You may consider that as it weighs on the
credibility.
But there is no evidence whatsoever that there was any
robbery committed or going to be committed. And by
referring to the witness as a robber, of course, is not evidence
in the case. Ignore it. That is inflammatory. You look at the
facts in the case because there is no evidence to sustain that.
There might be conclusions as to what certain words mean.
Conclusions have to be drawn by the jury. They cannot be
drawn by the attorneys. And you may draw whatever
conclusion you wish.
But those are merely arguments. That is not evidence and you
are not to be inflamed or incited by the use of any
inflammatory or excitable words because that is not evidence.
And, again, remember that the arguments are the beginning or
at the end is not evidence.
Because Hickey did not object to this jury instruction, any claim of
instructional error is reviewed for plain error affecting Hickey's substantial
rights. Carines, 460 Mich at 763. To the extent Hickey also argues that the
trial court's instruction implicates his constitutional right to present a
defense, because he did not raise this claim below, our review is also
limited to plain error. Id.
Although a defendant has the constitutional right to present a defense,
People v. Hayes, 421 Mich 271, 278-279; 364 NW2d 635 (1984), a trial
court has broad discretion in matters involving the conduct of trial. People
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v. Conley, 270 Mich App 301, 307; 715 NW2d 377 (2006). However, a trial
court may not pierce the veil of judicial impartiality by engaging in conduct
or making comments that might unduly influence the jury and thereby
deprive a defendant of his right to a fair and impartial trial. Id. at 308. When
a trial court engages in excessive interference in the examination of
witnesses, makes repeated rebukes and disparaging remarks to defense
counsel, or demonstrates marked impatience in the presence of the jury,
such conduct can deprive the defendant of a fair trial. People v. Conyers,
194 Mich App 395, 404; 487 NW2d 787 (1992).
We agree that it was improper for the trial court to suggest and instruct the
jury that no robbery was intended on the day of the offense. Dennis
admitted on direct examination that he agreed to go with Mason to “hit a
lick,” which referred to a robbery. This testimony indicates, as the
prosecutor acknowledged, that Dennis, at least subjectively, intended to
participate in a planned robbery. However, we disagree with Hickey's claim
that the trial court's improper comment and instruction pierced the veil of
judicial impartiality or otherwise affected Hickey's substantial rights. The
gist of the instruction was not an effort to influence the jury against Hickey
or to demonstrate partiality for Dennis, but rather to address what the trial
court believed was the defense attorney's characterization of Dennis during
opening statement as a thug, thief, robber, and “stick-up man.” The trial
court properly advised the jury that the lawyers' statements are not evidence
and that the jury must disregard inflammatory statements not supported by
any evidence. The trial court also properly observed that there was no
evidence that Hickey or the other codefendants intended to commit a
robbery, given that the evidence showed that, from their perspective, the
purported robbery was a subterfuge to lure the two victims away from
Peterson's house. In that regard, the trial court's comment and instruction
that there was no evidence that a robbery was intended was not factually
inaccurate. Against this backdrop, the trial court's conduct and instruction
did not affect Hickey's substantial rights. Further, given the defense
attorneys' characterization of Dennis in their opening statement, it was not
an abuse of discretion for the trial court to allow Sergeant Anderson to
testify that Dennis had no prior criminal record for theft-related offenses.
The testimony was responsive to an issue raised by defense counsel. See
Kennebrew, 220 Mich App at 608.
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Hickey, 2011 WL 801034 at *5-7
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. First, to the extent that Petitioner
merely challenges the trial court’s evidentiary rulings, he fails to establish judicial bias.
Adverse rulings alone are insufficient to establish bias or prejudice, see Liteky, 510 U.S.
at 555; Hynes, 467 F.3d at 960, see also Vliet v. Renico, 193 F. Supp. 2d 1010, 1016 (E.D.
Mich. 2002), and Petitioner fails to allege facts to show that the trial court exhibited any
deep-seated antagonism toward the defense or favoritism toward the prosecution in
making such rulings. Moreover, any error in admitting Dennis’s hospital statements to
the police did not render the trial fundamentally unfair and/or was harmless given that
Dennis identified Petitioner at the scene and at trial as the person who shot him.
Second, to the extent that Petitioner contests the trial court’s jury instructions, he
fails to show that the court was biased. Rather, the record indicates that the trial court
was trying to ensure that the jury properly consider the evidence and not rely upon
unsupported or disparaging characterizations of the witness by the attorneys. While the
trial court may have improperly commented on whether a robbery was intended or
occurred on the day of the shooting, the court did not pierce the veil of judicial
impartiality. Additionally, it is well-settled that for habeas relief to be warranted on the
basis of incorrect jury instructions, a petitioner must show more than that the instructions
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are undesirable, erroneous or universally condemned. Rather, taken as a whole, they
must be so infirm that they rendered the entire trial fundamentally unfair. Estelle v.
McGuire, 502 U.S. 62, 72 (1991); Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Such
was not the case here. The trial court’s robbery remarks did not concern the elements of
the offenses or implicate Petitioner’s guilt in the crime. Considered as a whole, the jury
instructions were adequate to inform the jury about the elements of the charged offenses
and the burden of proof and to protect Petitioner’s rights.
Lastly, the Court notes that the trial court instructed the jury that it should decide
the case based upon the evidence and that it was “not an advocate” and did not “have a
side.” See 3/25/08 Trial Tr., p. 3. Such an instruction mitigates the prejudicial effect of
the trial court’s improper remark. See United States v. Powers, 500 F.3d 500, 514 (6th
Cir. 2007); United States v. Johnson, 182 F. App’x 423, 434 (6th Cir. 2006). Jurors are
presumed to follow the court’s instructions. Penry, 532 U.S. at 799; Powell, 469 U.S. at
66. Petitioner fails to establish that the trial court was biased against him or that the jury
instructions otherwise rendered his trial fundamentally unfair. Habeas relief is not
warranted on this claim.
E.

Denial of Motion for New Trial Claim

Lastly, Petitioner asserts that he is entitled to habeas relief because the trial court
erred in denying his motion for new trial based upon newly-discovered evidence – the
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affidavits from co-defendant Mason and Hosiea Turner. Respondent contends that this
claim is not cognizable on habeas review and/or that it lacks merit.
The Michigan Court of Appeals denied relief on this claim finding that the
evidence, while newly available, was not newly-discovered, that Petitioner failed to show
why he was unable to produce the testimony at the time of trial, and that the evidence,
particularly Mason’s affidavit, was unreliable. Hickey, 2011 WL 801034 at *10.
The state court’s denial of relief is neither contrary to Supreme Court precedent
nor an unreasonable application of federal law or the facts. The Supreme Court has held
that states have no constitutional obligation to provide post-conviction remedies.
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Consequently, the Sixth Circuit has
consistently held that “errors in post-conviction proceedings are outside the scope of
federal habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007); see
also Cornwell v. Bradshaw, 559 F.3d 398, 411 (6th Cir. 2009) (citing Kirby v. Dutton,
794 F.2d 245, 246 (6th Cir. 1986), in ruling that federal habeas proceedings cannot be
used to challenge errors or deficiencies in state post-conviction proceedings); Greer v.
Mitchell, 264 F.3d 663, 681 (6th Cir. 2001) (“habeas corpus cannot be used to mount
challenges to a state's scheme of post-conviction relief”). Petitioner thus fails to state a
claim upon which habeas relief may be granted as to this issue.

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Furthermore, claims of actual innocence based on newly-discovered evidence
“have never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding.” Herrera
v. Collins, 506 U.S. 390, 400 (1993). “[F]ederal habeas courts sit to ensure that
individuals are not imprisoned in violation of the Constitution – not to correct errors of
fact.” Id. In House v. Bell, the United States Supreme Court declined to answer the
question left open in Herrera – whether a habeas petitioner may bring a freestanding
claim of actual innocence. See House v. Bell, 547 U.S. 518, 555 (2006) (noting that “in a
capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would
render the execution of a defendant unconstitutional and warrant federal habeas relief if
there were no state avenue open to process such a claim”).
Citing Herrera and House, the Sixth Circuit has ruled that a free-standing claim of
actual innocence based upon newly discovered evidence does not warrant federal habeas
relief. See Wright v. Stegall, 247 F. App’x 709, 711 (6th Cir. 2007) (“Since the Supreme
Court has declined to recognize a freestanding innocence claim in habeas corpus, outside
the death-penalty context, this court finds that [Petitioner] is not entitled to relief under
available Supreme Court precedent.”); Cress v. Palmer, 484 F.3d 844, 854–55 (6th Cir.
2007); see also Sitto v. Lafler, 279 F. App’x 381, 381-82 (6th Cir. 2008) (affirming denial
of habeas relief on similar claim); Thomas v. Perry, No. 2:11-CV-14363, 2013 WL
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1747799, *6 (E.D. Mich. April 23, 2013) (denying habeas relief on newly discovered
evidence claim). Petitioner fails to state a claim upon which habeas relief may be granted
as to this issue. Habeas relief is not warranted on this claim.
V.

Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to relief

on his claims and that the petition for a writ of habeas corpus must be denied.
Before Petitioner may appeal the Court’s decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a 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 constitutional 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).
Having conducted the requisite review, the Court concludes that Petitioner fails to
make a substantial showing of the denial of a constitutional right as to his claims. No
certificate of appealability is warranted. Nor should Petitioner be granted leave to
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proceed in forma pauperis on appeal as an appeal cannot be taken in good faith. See FED.
R. APP. P. 24(a).
Accordingly;
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 and
leave to proceed in forma pauperis on appeal is DENIED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: January 8, 2016
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on January 8, 2016, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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