Szydlek v. Curtin

Filing 49

OPINION and ORDER (1) Denying 1 Petition for Writ of Habeas Corpus, (2) Denying Certificate of Appealability, (3) Granting Permission to Appeal In Forma Pauperis, (4) Granting 40 and 45 MOTIONS to Supplement, and (5) Denying 42 MOTION for Injunctive Relief. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JASON SZYDLEK,
Petitioner,

Case No. 12-cv-14670
Hon. Matthew F. Leitman

v.
SHAWN BREWER1,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY,
(3) GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS, (4)
GRANTING MOTIONS TO SUPPLEMENT (ECF ## 40, 45), AND (5)
DENYING MOTION FOR INJUNCTIVE RELIEF (ECF #42)
Petitioner Jason Szydlek (“Petitioner”) is a state prisoner in the custody of
the Michigan Department of Corrections. Petitioner has filed a Petition for Writ of
Habeas Corpus challenging his state-court convictions of unarmed robbery, MCL §
1

The proper respondent in a habeas case is the habeas petitioner’s custodian,
which in the case of an incarcerated habeas petitioner is the warden of the facility
where the petitioner is incarcerated. See Edwards v. Johns, 450 F. Supp. 2d 755,
757 (E.D. Mich. 2006); see also Rule 2(a), 28 U.S.C. § 2254. On August 16, 2013,
the Court entered an order in which it amended the case caption to name Jeffrey
Larson (“Larson”) as the Respondent in this matter. (See ECF #13.) Larson was
the warden of the Central Michigan Correctional Facility where Petitioner was then
incarcerated. (See id.) Since the entry of that Order, Petitioner has been
transferred to the Parnall Correctional Facility, where Shawn Brewer (“Brewer”) is
the warden. Therefore, the Court now substitutes Brewer as Respondent above.
1

750.530, unlawful imprisonment, MCL § 750.349b, and assault with intent to
commit great bodily harm less than murder, MCL § 750.84 (the “Petition”). (See
ECF ## 1, 27.)2 For the reasons discussed below, the Court denies the Petition.
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case involves charges brought against Petitioner arising out of the
assault and robbery of Daniel Mavity (“Mavity”). At trial, Mavity testified that on
the evening of March 7, 2009, his car broke down and he called Petitioner for a
ride. Mavity said that Petitioner then arrived with another man, Steve Conkle
(“Conkle”). According to Mavity, Petitioner dropped Conkle off and then drove
Mavity to Petitioner’s apartment.
Mavity testified that he and Petitioner watched television and ate, and he fell
asleep on a couch. Mavity said that sometime between 3:00 a.m. and 5:00 a.m. he
awoke and found that several items were missing from his coat: a cell phone, a
2

Petitioner initially filed the Petition on October 23, 2012. (See ECF #1.) On
March 19, 2014, Petitioner filed a motion to amend the Petition. (See ECF #27.)
By written order dated March 3, 2015, the Court granted Petitioner leave to amend
the Petition and held that “[f]or purposes of this action, the Amended Petition shall
be deemed to include the claims asserted in (1) the Original Petition (ECF #1 at Pg.
ID 1-473), and (2) the Motion to Amend (ECF #27, Pg. ID 1554-1883).” (ECF
#36 at 2, Pg. ID 1949.) In addition, on April 21, 2015, and again on June 30,
2015, Petitioner filed motions for leave to supplement the Petition. (See ECF ##
40, 45.) The Court grants Petitioner’s motions to supplement. For ease of
reference, when the Court refers to the “Petition,” it is referring to Petitioner’s
claims in his original petition (ECF #1), Petitioner’s March 19, 2014, motion to
amend (ECF #27), and his supplemental submissions (ECF ## 40, 45).
2

necklace, a bottle of muscle relaxants, and about $40.00. According to Mavity, he
then looked around the apartment and found his items on top of a dresser in
Petitioner’s bedroom. Mavity said he put his items back in his pocket and then
returned to the couch to sleep.
Mavity testified that he later awoke a second time to Petitioner punching
him in the face. Mavity said his hands and feet were then bound and he had a gym
sock stuffed into his mouth. Mavity asserted that Petitioner then began choking
Mavity until Mavity lost consciousness.
Mavity testified that Petitioner then dragged him on his stomach across
carpeting into a bathroom. Petitioner filled the bathtub and dunked Mavity’s head
in the water and demanded that Mavity give him back the items. According to
Mativy, Petitioner removed the gag, and Mavity told him the items were in his
pocket. Petitioner then dragged Mavity into a bedroom where he left him for
several hours. Eventually Petitioner returned and let Mavity leave the apartment –
without his items.
Mavity says that as he started to walk home, his appearance drew the
attention of several people. A woman who noticed Mavity called her husband,
Steve Arnold (“Arnold”), and Arnold then arrived and offered to give Mavity a
ride. Arnold testified that he drove Mavity to the home of Mavity’s cousin, Allen
3

Doyon (“Doyon”). At Doyon’s home, Mavity looked in a mirror and saw that he
had bruises on his chest, lumps on his head, two black eyes, torn corners on his
mouth, lacerations on his wrists, and a rug burn on his stomach and knees.
Arnold testified that when he picked Mavity up, Mavity’s face was bruised
and bloody, and he saw marks on Mavity’s wrists. Mavity told Arnold that he had
been beaten, robbed, and tied up, and he identified Petitioner’s apartment complex
as the location of the incident. Doyon similarly described Petitioner’s appearance
on the day of the incident. Photographs taken the day after the incident by Doyon,
and a set taken by the sheriff’s department several days after the incident, were
admitted into evidence at Petitioner’s trial. (See ECF #24-9 at 145-151, Pg. ID
1146-1152.)
Initially, Mavity refused to go to the police. He tried to recover his items
from Petitioner, but Petitioner never responded to Mavity’s requests and would not
answer his door. Mavity eventually went to the police on March 12, 2009. After
speaking with police, Mavity went to the hospital. Police officers obtained a search
warrant for Petitioner’s apartment, but officers did not find Mavity’s property at
that location.
The Oakland County Medical Examiner testified at Petitioner’s trial that the
injuries depicted in the photographs of Mavity were consistent with someone being
4

bound, gagged, dragged across a floor, punched in the face, and having their head
repeatedly forced underwater.
The defense presented several witnesses who testified about Petitioner’s
health problems in an effort to show that Petitioner was not physically capable of
assaulting Mavity as Mavity described. For example, Deneen Hawkins
(“Hawkins”) testified that she had been Petitioner’s neighbor since 2007. Hawkins
testified that Petitioner had severe back problems, and that when she took him to
doctor appointments he could barely walk. In addition, Anthony Incammicia
testified that he had known Petitioner for five to seven years, and he did not
believe that Petitioner could lift anything and had trouble walking. Finally, Sana
Atisha testified that Petitioner had severe back problems. 3
Petitioner also testified in his own defense. He testified that on the day of the
incident, he received several calls from Mavity asking for a ride. Petitioner
confirmed that he went to pick up Mavity with Conkle, but that contrary to
3

Petitioner’s trial counsel also sought to introduce testimony about Petitioner’s
history of back problems – and thus Petitioner’s inability to commit the alleged
crime – from an additional witness: a physician who treated Petitioner (Dr.
Englemann). But, as described below, Petitioner’s counsel told the court that even
though he (counsel) had worked with the prosecutor to serve Dr. Englemann with a
subpoena requiring his appearance at trial, Dr. Engelmann had ignored the
subpoena.
5

Mavity’s testimony, the three men visited locations in Detroit and White Lake
Township, and then proceeded to Conkle’s home, where the three remained for the
rest of the night. Petitioner said that when he awoke the next morning, Mavity was
gone. Petitioner said he never saw any injuries on Mavity. Petitioner further
testified that he had a large quantity of prescription pain medications in his
possession due to his back problems, and that Mavity tried to extort those
prescription medications and $500 from him.
Following closing arguments and instructions, the jury found Petitioner
guilty. Petitioner thereafter admitted to having two prior felony convictions, and he
was sentenced as an habitual felony offender to concurrent terms of incarceration
of ten to thirty years.
Following his conviction and sentence, Petitioner filed a claim of appeal in
the Michigan Court of Appeals. Petitioner was appointed three attorneys during
his appeal but each withdrew after they experienced differences with Petitioner as
to how to proceed on appeal. Petitioner’s fourth (and final) appellate counsel filed
a motion to remand with the Michigan Court of Appeals, asserting that Petitioner’s
case should be sent back to the trial court so that it could hold an evidentiary
hearing. The motion to remand claimed that an evidentiary hearing was required to
show that Petitioner’s trial counsel was ineffective for failing to investigate
6

whether Mavity lied when he denied that he and Petitioner went to locations in
Detroit and White Lake on the evening in question. The motion to remand also
sought to establish that Petitioner’s trial counsel was ineffective for failing to
secure the testimony of Dr. Engelmann, who would have testified regarding
Petitioner’s ability to assault Mavity in the way Mavity described. (See ECF #24-9
at 36-45, 51-59, Pg. ID 1037-1046, 1052-1060.) The Michigan Court of Appeals
denied the motion to remand “for failure to persuade the Court of the necessity of a
remand at this time.” (Id. at 105, Pg. ID 1106.)
Petitioner’s Appellate counsel then filed a substantive brief on appeal with
the Michigan Court of Appeals which raised the following claims:
I.

Defendant contends that he was denied the
effective assistance of trial counsel under the Sixth
Amendment and alleges counsel: (1) failed to
investigate a defense and (2) failed to call a
witness.

II.

Defendant contends that he was erroneously scored
25 points under OV 13 as to each count, and was
misscored points under OV 7, OV 8, and OV 10 on
counts one, two, and three, respectively. If true,
defendant’s guidelines range declines on each
count and he must be resentenced.

Petitioner also filed a supplemental pro se brief raising the following
additional claims:
7

I.

Defendant was denied the effective assistance of
trial counsel under the Sixth Amendment, when
counsel (1) failed to disclose conflict of interest;
(2) failed to adequately investigate; (3) failed to
move the court to suppress defendant’s prior
criminal record; (4) failed to object to improper
sentence enhancement, hearsay, hearsay within
hearsay, prosecutorial use of false testimony,
prejudicial prosecutorial questioning, and improper
prosecutorial arguments; (5) failed to call alibi
witness Steve Conkle; (6) failed to call a medical
expert witness; and (7) failed to adequately cross
examine witnesses.

II.

Defendant was erroneously scored 25 points under
OV 13 as to each count, and was misscored points
under OV 7, OV 8, and OV 10 on counts one, two,
and three, respectively, which causes defendant’s
guidelines range to decline on each count.
Defendant must be resentenced.

III.

Prosecutorial misconduct deprived defendant of a
fair trial, where (1) exculpatory evidence was
suppressed, (2) the prosecutor used false testimony
to obtain the convictions, (3) the prosecutor’s
questioning prejudiced the defense improperly, and
(4) the prosecutor made improper arguments.

IV.

The cumulative effect of errors denied defendant a
fair trial.

Petitioner’s pro se supplemental brief also sought an evidentiary hearing in
the trial court on Petitioner’s claims of ineffective assistance of counsel. (See ECF
#24-9 at 218, Pg. ID 1219.) The supplemental brief, however, did not include any

8

offers of proof to support the request for an evidentiary hearing.
The Michigan Court of Appeals affirmed Petitioner’s conviction in an
unpublished opinion. See People v. Szydlek, No. 294567, 2011 WL 1564609
(Mich. Ct. App. Apr. 26, 2011). Petitioner then filed an application for leave to
appeal in the Michigan Supreme Court. Petitioner’s application raised the same
claims he raised in the Michigan Court of Appeals and added a claim of ineffective
assistance of appellate counsel. The Michigan Supreme Court denied the
application because it was not persuaded that the questions presented should be
reviewed by the Court. See People v. Szydlek, 804 N.W.2d 332 (Mich. 2011)
(Table).
Petitioner subsequently filed several motions in the trial court seeking
various forms of relief. Specifically, Petitioner filed a “Nunc Pro Tunc Motion to
Vacate Orders to Remit Prisoner Funds for Fines, Costs, and Assessments” and a
“Motion to Amend Order to Remit Prisoner Funds for Fines, Costs, and
Assessments,” both of which were denied in July 2012.
After the trial court denied these motions, Petitioner filed an application for
leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals
denied the application for leave to appeal for “lack of merit in the grounds
presented.” People v. Szydlek, No. 311747 (Mich. Ct. App. May 10, 2013).
9

Petitioner then applied for leave to appeal this decision in the Michigan Supreme
Court, but the application was denied because the court was not persuaded that the
questions presented should be reviewed. See People v. Szydlek, 838 N.W.2d 154
(Mich. 2013) (Table).
Petitioner now seeks habeas relief in this Court based on the claims he
presented to the state courts in his supplemental pro se brief filed in the Michigan
Court of Appeals during his direct appeal and in his post-judgment motions.
Petitioner has also filed supplemental pleadings in this Court, raising additional
arguments in support of these claims, as discussed below.
GOVERNING LEGAL STANDARD
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), imposes the following standard of review for
habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim –
(1)

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

10

(2)

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

A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the United States
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. See
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application”
of clearly established federal law 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 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.
Indeed, “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 v. Murphy,
521 U.S. 320, 333 n.7 (1997)). “[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.
11

86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
United States Supreme Court has emphasized “that even a strong case for relief
does not mean the state court’s contrary conclusion was unreasonable.” Id. at 102
(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.” Id.
LEGAL ANALYSIS
I.

Ineffective Assistance of Trial Counsel
Petitioner’s first claim is comprised of seven allegations of ineffective

assistance of trial counsel. (See, e.g., ECF #1 at 9, Pg. ID 9, ECF #9 at 9, Pg. ID
505, ECF #27 at 22, Pg. ID 1575, and ECF #40.) Respondent asserts that the state
court adjudication of Petitioner’s ineffective assistance of counsel claims was not
unreasonable and relief is therefore barred under § 2254(d). The Court agrees.
In Strickland v. Washington, 466 U.S. 668 (1984), the United States
Supreme Court set forth a two-part test to determine whether a criminal defendant
12

petitioner has received the ineffective assistance of counsel. First, a defendant
must show that his counsel’s performance was deficient. See id. at 687. “This
requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. Second, the defendant must show “that the deficient performance prejudiced
the defense. This requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
To satisfy the performance prong of Strickland, a defendant “must identify
the acts or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment.” Id. at 690. A court’s scrutiny of counsel’s
performance is highly deferential. See id. at 689. “[C]ounsel is strongly presumed
to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 690. The burden is on the
defendant to overcome the presumption that the challenged action was sound trial
strategy. See id. at 689.
To satisfy the prejudice prong of the Strickland test, a defendant must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. To be a reasonable
probability, it must be sufficient to undermine confidence in the outcome. See id.
13

“This does not require a showing that counsel’s actions ‘more likely than not
altered the outcome,’” but “[t]he likelihood of a different result must be
substantial, not just conceivable.” Harrington, 562 U.S. at 112 (quoting Strickland,
466 U.S. at 693).
“The standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. 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.
A.

Petitioner’s First, Second, and Fifth Allegations of Ineffective
Assistance

Petitioner’s first allegation of ineffective assistance of counsel asserts that
his trial counsel failed to disclose a purported conflict of interest. Specifically,
Petitioner asserts that his trial attorney also worked as a prosecutor at a local
district court where Mavity had been previously prosecuted. Petitioner argues that
Mavity had been treated with leniency in these prosecutions. Petitioner’s second
allegation asserts that his counsel failed to adequately investigate Mavity’s
criminal history, which Petitioner insists could have been used to impeach
Mavity’s credibility. Finally, Petitioner’s fifth allegation asserts that his counsel

14

should have called Conkle as an alibi witness.
Petitioner raised each of these claims in his pro se supplemental brief on
appeal. The Michigan Court of Appeals reviewed and rejected them for the same
reason – there was no record evidence to support them:
Defendant argues that counsel was ineffective for not
disclosing a conflict of interest. According to defendant,
counsel did prosecutorial work for the local district court,
where Mavity had received leniency in multiple criminal
cases. There is, however, no record evidence of any
conflict of interest. Consequently, defendant has failed to
prove the factual predicate of the claim.
Defendant asserts that counsel was ineffective for failing
to adequately investigate Mavity. He claims that counsel
should have investigated Mavity’s criminal record,
extortion threats, medical records, and work records.
Again, there is no record evidence to support the claim
that counsel’s investigation was inadequate. Defendant
has failed to establish the factual predicate of the claim.
[….]
Defendant claims that counsel was ineffective for failing
to call Steve Conkle as an alibi witness. The record
contains no evidence that Conkle would testify as
defendant claims. Absent such evidence, we will not
second-guess counsel’s decision not to call Conkle as a
witness.
Szydlek, 2011 WL 1564609 at *5, 6-7 (internal citations omitted).

15

The state court’s conclusion was not unreasonable. The Strickland standard
plainly places the burden of proving defense counsel’s ineffectiveness on the
defendant, and Petitioner presented no record evidence to support his allegations to
the state courts. It was therefore not unreasonable for the Michigan Court of
Appeals to summarily reject the allegations as it did.
Under Michigan state law, when a criminal appellant wishes to raise a claim
of ineffective assistance of counsel based on facts not contained in the existing
record, he must request a so-called Ginther hearing. See People v. Ginther, 390
Mich. 436 (1973). A request for such an evidentiary hearing must be accompanied
by affidavits or other offer of proof as to the evidence the defendant wishes to
present at the hearing. MCR 7.211(C)(1). The Michigan Court Rules specifically
require that a request for an evidentiary hearing be made in a separate motion. See
id.
Here, Petitioner made no such motion in the Michigan Court of Appeals
with respect to these allegations. Instead, Petitioner stated in conclusory terms at
the end of his pro se brief that his case should be remanded for a hearing.
Petitioner’s “alternative request in [his] appellate brief for a Ginther hearing is not
a timely motion for remand as required by MCR 7.211(C)(1).” People v. Fisher,
No. 262961, 2007 WL 283799, at *2 n.2 (Mich. Ct. App. Feb. 1, 2007) (per
16

curiam); see also People v. Carter, No. 232862, 2003 WL 887594, at *4 (Mich. Ct.
App. Mar. 6, 2003) (per curiam) (Ginther hearing not properly requested when
request was made as alternative relief request in body of brief and request was
included in neither statement of appellate claims nor a properly filed motion).
Moreover, Petitioner’s pro se supplemental brief was not accompanied by
any offer of proof to support these allegations. Petitioner did not proffer any
evidence to the state courts that his defense counsel prosecuted cases in the circuit
court (or was ever employed by the State of Michigan as a county prosecutor), that
Mavity received lenient treatment, that Mavity had a criminal history that could
have been used to impeach his credibility, or that Conkle would have testified that
he was with Petitioner at the time of the incident. Petitioner’s bare request for an
evidentiary hearing at the end of his supplemental pro se brief was insufficient
under state law to warrant a hearing on his claims. See People v. Murray, No.
239287, 2003 WL 22244699, at *4 n.4 (Mich. Ct. App. Sept. 30, 2003) (per
curiam) (“MCR 7.211(C)(1)(a)(ii) specifically requires that a motion to remand
‘must be supported by affidavit or other proof regarding the facts to be established
at a hearing.’ A request to remand, presented as proposed relief in a party’s
appellate brief, must also meet this preliminary threshold before this Court will
grant relief.”); People v. Hawthorne, No. 280289, 2009 WL 454927, at *2 n.1
17

(Mich. Ct. App. Feb. 24, 2009) (per curiam). Simply put, Petitioner’s request in his
pro se brief for an evidentiary hearing did not comply with state law requirements.
Furthermore, while Petitioner has filed supplemental pleadings in this Court
to support his conflict of interest claim, (see ECF #27 at 22, Pg. ID 1575; ECF
#40) this information was not presented to the state courts. Where, as here, the
state courts adjudicated a claim on the merits, this Court cannot consider new
materials not presented to those courts. See Shoemaker v. Jones, 600 Fed. App’x
979, 983 (6th Cir. 2015) (citing Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct.
1388, 1400 n.7 (2011)). In addition, the Court notes that even if it could consider
this argument, it would not grant Petitioner habeas relief based on the alleged
conflict. Petitioner has not identified evidence in the record that supports his claim
that his trial counsel had a conflict of interest. The record shows that Petitioner’s
counsel was employed by a municipality to serve as a prosecutor in a state district
court while the charges against the Petitioner were brought by the county
prosecutor (an employee of the State of Michigan) in the state circuit court.
Finally, while Petitioner’s appellate counsel did file a motion for remand in
the Michigan Court of Appeals that was supported by an offer of proof, that motion
related to other issues, not the three grounds discussed above that Petitioner raised
in his pro se brief. Accordingly, the state appellate court’s summary rejection of
18

the allegations in Petitioner’s pro se brief for want of proof did not involve an
unreasonable application of Strickland.
B.

Petitioner’s Third Allegation of Ineffective Assistance

Petitioner’s third allegation of ineffective assistance of counsel asserts that
his trial counsel was ineffective for failing to object to the prosecutor’s use of his
prior criminal record. Petitioner argues that his trial attorney should have moved to
suppress any mention of his (Petitioner’s) prior convictions. The Michigan Court
of Appeals reviewed this claim and concluded that while the prosecutor’s use of
Petitioner’s criminal record was improper, and therefore Petitioner’s counsel
should have objected to its use, that the error nevertheless did not warrant relief:
Defendant argues that counsel was ineffective for failing
to object when the prosecutor questioned him about his
past drug activities. Although we concluded that the
prosecutor improperly questioned defendant about his
prior drug activities, counsel’s failure to object did not
prejudice defendant. Defendant fails to show that, but for
counsel’s failure to object, there is a reasonable
probability that the outcome of his trial would have been
different.
Szydlek, 2011 WL 1564609, at *5.
The state appellate court’s conclusion that the error of Petitioner’s attorney
did not warrant relief was not unreasonable. The improper questions regarding
Petitioner’s prior drug activities played a minor role at trial. The prosecutor did
19

not mention them during either his opening statement or closing argument, and he
never asked the jury to find that Petitioner was not credible because of these
activities. (See July 6, 2009, Trial Tr., ECF #24-5 at 43-48, Pg. ID 812-817; July 7,
2009, Trial Tr., ECF 24-6 at 13-22, Pg. ID 944-953.) Thus it was not unreasonable
for the state appellate court to find that Petitioner had not demonstrated sufficient
prejudice to be entitled to relief. Accordingly, the Court finds that Petitioner has
failed to demonstrate entitlement to relief on this claim.
C.

Petitioner’s Fourth Allegation of Ineffective Assistance

Petitioner’s fourth allegation of ineffective assistance of counsel is actually
comprised of several separate factual bases. Petitioner claims that his counsel
should have: (1) objected to his being sentenced as an habitual offender, (2)
objected to the admission of hearsay, (3) objected to the prosecutor’s use of false
testimony, (4) objected to prejudicial prosecutorial questioning, and (5) objected to
improper prosecutorial arguments. The Michigan Court of Appeals rejected these
allegations as follows:
Defendant contends that counsel was ineffective because
he failed to object to defendant being sentenced as an
habitual offender, third offense. Defendant claims that he
should have been sentenced as an habitual offender,
second offense, because his two prior felony convictions
were obtained under a plea agreement and, therefore,
only count as one offense. In support, defendant cites
People v. Tucker, 181 Mich. App. 246, 258-259 (1989),
20

where this Court held that prior convictions obtained
under a single plea bargain count as only one offense for
purposes of the habitual offender statutes. However,
defendant’s reliance on Tucker is misplaced. Our holding
in Tucker relied upon the Supreme Court’s decision in
People v. Stoudemire, 429 Mich. 262 (1987), which has
been overruled by People v. Gardner, 482 Mich. 41
(2008). Indeed, our holding in Tucker is inconsistent with
the Supreme Court’s holding in Gardner, 482 Mich. at
68, that “Michigan’s habitual offender laws clearly
contemplate counting each prior felony conviction
separately.” Pursuant to Gardner, the trial court properly
sentenced defendant as an habitual offender, third
offense, MCL 769.11, because defendant had two prior
convictions for delivery of a schedule four controlled
substance in 1994. Counsel was not ineffective for failing
to make a futile objection. People v. Fike, 228 Mich.
App. 178, 182 (1998).
Defendant next argues that counsel was ineffective for
not objecting to certain hearsay statements testified to by
Steve Arnold. Hearsay is “a statement, other than the one
made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the
matter asserted.” MRE 801(c). Hearsay is not admissible
unless an exception applies. MRE 802. Contrary to
defendant’s assertion, Arnold did not give testimony
about the observations of his wife. He explained that
after receiving a telephone call from his wife about
Mavity, he went to the intersection of Parview and
Andersonville. Arnold also testified that Mavity told him
that he had been tied up, beaten, and had things stolen
from him at Greens Lake Apartments. Although Mavity’s
statements were hearsay, they were admissible under
MRE 803(2) as an excited utterance. The statements
related to a startling event, and they were made while
Mavity was under the stress caused by the event. MRE
21

803(2). Counsel was not ineffective for failing to make
futile objections. Fike, 228 Mich App at 182.
Defendant next claims that counsel was ineffective for
failing to object to the prosecutor’s use of false
testimony, for failing to object when the prosecutor
questioned him about the alleged extortion note, and for
failing to object to the prosecutor’s improper arguments
during closing arguments. However, as already
concluded, the record evidence fails to establish that the
prosecutor presented any false testimony. Likewise, the
prosecutor’s questions about the alleged extortion note
were proper, as were his arguments during closing
arguments. Counsel was not ineffective for failing to
make futile objections. Fike, 228 Mich. App. at 182.
Szydlek, 2011 WL 1564609, at *6.
Thus, all of these allegations of ineffective assistance of counsel were
rejected because the underlying objection was meritless. The state court of appeals
held that Petitioner was properly sentenced under state law, that the evidence
against him was admitted properly under state evidentiary law, and that the
prosecutor had not committed misconduct. This Court will not second-guess the
state court’s determination of state law issues. See Estelle v. McGuire, 502 U.S. 62,
72 (1991). As for the prosecutorial misconduct claims, as will be discussed below,
it was not unreasonable for the state appellate court to conclude that none of those
claims have merit. Counsel's failure to make a meritless motion does not constitute
ineffective assistance of counsel. See Smith v. Bradshaw, 591 F.3d 517, 523 (6th
22

Cir. 2010). These allegations therefore do not warrant habeas relief.
D.

Petitioner’s Sixth Allegation of Ineffective Assistance

The substance of Petitioner’s sixth allegation of ineffective assistance of trial
counsel was raised in his appellate counsel’s brief as well as his supplemental pro
se brief. Petitioner argues that his trial counsel should have secured the attendance
of Dr. Engelmann at trial. Petitioner alleges that Dr. Engelmann would have
testified that Petitioner was physically incapable of assaulting Mavity as Mavity
described. The Michigan Court of Appeals rejected this claim as follows:
Defendant also claims that counsel was ineffective for
failing to make arrangements for Dr. Theodore
Engelmann, his personal physician, to testify at trial.
According to defendant, Engelmann would testify that
defendant was physically incapable of dragging Mavity.
The record evidence establishes that Engelmann was
subpoenaed by counsel to testify as a defense witness,
that Engelmann failed to appear at trial, and that the trial
court, when counsel could not guarantee that Engelmann
would appear, decided to finish the trial. Defendant fails
to specify how counsel’s actions in attempting to secure
the appearance of Engelmann were deficient. Moreover,
Engelmann’s failure to appear at trial did not deprive
defendant of a substantial defense. See People v. Daniel,
207 Mich. App. 48, 58 (1994). Three witnesses testified
that defendant suffers from back problems, is often in
pain, and has trouble walking and lifting objects.
Accordingly, the record evidence does not support the
claim that counsel was ineffective for failing to call
Engelmann as a witness.
23

Szydlek, 2011 WL 1564609, at *1.
The Michigan Court of Appeals did not unreasonably conclude that the
actions of Petitioner’s trial counsel “in attempting to secure the appearance of [Dr.]
Engelmann were [not] deficient.” Id. Petitioner’s trial counsel did seek to secure
the attendance of Dr. Engelmann at trial. In fact, an on-the-record exchange with
the trial judge establishes that Petitioner’s counsel worked with the prosecutor to
have an agent of the state serve Dr. Engelmann with a trial subpoena, and Dr.
Engelmann failed to comply. (See, e.g., July 7, 2009, Trial Tr., ECF #24-6 at 6-7,
Pg. ID 937-938.)

The Court also notes that Petitioner’s counsel did elicit

testimony from multiple other witnesses about Petitioner’s medical condition. On
such a record, it was not unreasonable for the Michigan Court of Appeals to
conclude that Petitioner’s trial counsel was not ineffective.
E.

Petitioner’s Seventh Allegation of Ineffective Assistance

Petitioner’s final allegation of ineffective assistance of trial counsel
challenges his trial attorney’s cross-examination of Mavity, police detective
MacDonald (“Detective MacDonald”), and Dr. Lgubisa Dragovic (“Dr.
Dragovic”). Petitioner argues that his trial counsel should have challenged Mavity
with his prior criminal record, asked for Mavity to produce phone records for the
stolen phone, and asked him for proof that he had prescription medication and a
24

gold necklace. Petitioner also alleges that trial counsel should have asked Mavity
and Detective MacDonald if Mavity acted as Detective MacDonald’s confidential
informant, and asked additional questions about Mavity’s first contact with police
regarding the crime. Petitioner finally suggests that counsel should have asked Dr.
Dragovic about other possible causes of Mavity’s injuries. The Michigan Court of
Appeals rejected the claims as follows:
Defendant asserts that counsel failed to adequately crossexamine Mavity, MacDonald, and Dr. Dragovic.
Decisions concerning the cross-examination of the
witnesses are a matter of trial strategy. In re Ayres, 239
Mich. App. 8, 23 (1999). A review of the record does not
establish that counsel’s cross-examination of the
witnesses was unreasonable or unsound.
Szydlek, 2011 WL 1564609, at *6.
This section in the court of appeals opinion, while short, did not reach an
unreasonable conclusion. This Court has reviewed the record. Defense counsel’s
cross-examination of these witnesses was admittedly brief. (See July 6, 2009, Trial
Tr. at 77-83, Pg. ID 846-852 (Mavity); 101-105, Pg. ID 870-874 (Detective
MacDonald); 118-125, Pg. ID 887-894 (Dr. Dragovic). But it does not follow that
the examinations fell so far below the level of effectiveness that the court of
appeals’ conclusion was unreasonable.

25

The record shows that counsel attacked Mavity on cross-examination with
the fact that Mavity waited more than four days to go to the police, though he
claimed he only waited a day and a half. Counsel also elicited denials from Mavity
that Petitioner took him to locations in White Lake and Detroit, which he later used
in closing argument. On cross-examination of Detective MacDonald, counsel had
Detective MacDonald admit that he did not perform any forensic testing at
Petitioner’s apartment, and that it was police officers who told Mavity to go to the
hospital. Counsel also obtained testimony from Dr. Dragovic on cross-examination
that Dr. Dragovic could not ascertain the age of Mavity’s injuries from the
photographs, and that one picture of Mavity suggested recent needle marks,
contrary to Mavity’s testimony that it depicted an old injury.
Though the challenges made on cross-examination of these witnesses were
brief, Petitioner’s trial counsel largely presented Petitioner’s defense through
Petitioner’s own testimony regarding the events on the date of the incident. Then,
in closing argument, counsel suggested that Mavity dealt prescription medications,
and on the night of the incident Petitioner was driving him to various locations in
Detroit and White Lake while Mavity dealt and used drugs. Counsel suggested that
Mavity knew Petitioner had large quantities of pain medications for his back
problems, and that Mavity was upset that Petitioner refused to cooperate in his
26

drug dealing. Counsel insinuated that Mavity was probably beaten up as a result of
dealing drugs after he left Petitioner and Conkle, and that Mavity placed the blame
on Petitioner in revenge for Petitioner’s refusal to cooperate. Counsel indicated
that there was no forensic evidence supporting Mavity’s account of what occurred
at Petitioner’s apartment and that Mavity waited four days to go to the police.
Counsel concluded that the case therefore came down to Mavity’s word against
Petitioner’s, and given the evidence that Mavity was a drug user and dealer, the
jury should not find his testimony credible beyond a reasonable doubt.
The Court is satisfied after review of the transcript that the decision of the
state appellate court rejecting this claim on the merits was not an unreasonable
application of the Strickland standard. The claim will therefore be denied.
II.

Prosecutorial Misconduct
Petitioner’s second habeas claim asserts four allegations of prosecutorial

misconduct. (See, e.g., ECF #1 at 12, Pg. ID 12; ECF #9 at 12, Pg. ID 508.)
Respondent contends that this claim is defaulted because the errors were not
preserved at trial.
Under the procedural default doctrine, a federal habeas court will not review
a question of federal law if a state court’s decision rests on a substantive or
procedural state law ground that is independent of the federal question and is
27

adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729
(1991). However, procedural default is not a jurisdictional bar to review of a
habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997).
Additionally, “federal courts are not required to address a procedural-default issue
before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F. 3d
212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)).
It may be more economical for the habeas court to simply review the merits of the
petitioner’s claims, “for example, if it were easily resolvable against the habeas
petitioner, whereas the procedural-bar issue involved complicated issues of state
law.” Lambrix, 520 U.S. at 525. In the present case, the Court deems it more
efficient to proceed directly to the merits, especially because Petitioner alleges that
his trial counsel was ineffective for failing to preserve these claims. Thus, the
Court will now examine each of Petitioner’s claims of prosecution misconduct in
turn.
A.

Suppression of Exculpatory Evidence

Petitioner’s first allegation of prosecutorial misconduct asserts that the
prosecutor withheld Mavity’s prior criminal history from the defense. The state
appellate court determined the claim was not preserved for review, and it also
concluded in the alternative that the claim was without merit:
28

The test for prosecutorial misconduct is whether the
defendant was denied a fair and impartial trial. People v.
Mesik (On Reconsideration), 285 Mich. App. 535, 541;
775 N.W.2d 857 (2009). Because defendant failed to
object to the alleged misconduct, we review the claims of
prosecutorial misconduct for plain error affecting
defendant’s substantial rights. People v. Cox, 468 Mich.
App. 440, 451; 709 N.W.2d 152 (2005).
Defendant first argues that the prosecutor suppressed
exculpatory evidence, e.g., Mavity’s criminal record.
However, defendant has not established that the
prosecutor improperly suppressed Mavity’s criminal
record under Brady v. Maryland, 737 U.S. 83. [String
citation omitted.] Specifically, defendant has not
demonstrated that he could not have obtained the
criminal record himself through reasonable diligence.
Szydlek, 2011 WL 1564609, at *4.
With respect to Petitioner’s allegation of prosecutorial misconduct, Brady v.
Maryland, 737 U.S. 83 (1963) provides the “clearly established federal law”
relevant to the Court’s analysis. Brady holds that the government’s failure to
disclose evidence favorable to the accused in a criminal case violates due process if
the evidence is material to guilt or sentencing. Id. at 87. Giglio v. United States,
405 U.S. 150 (1972), extends the Brady rule “to evidence which could be used to
impeach the credibility of a government witness.” United States v. Hayes, 376 F.
Supp. 2d 736, 738 (E.D. Mich. 2005) (citing Giglio, 405 at 154-155). “Evidence is
‘material’ for purposes of Brady and Giglio if ‘there is a reasonable probability
29

that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.’” United States v. Hayes, 376 F. Supp. 2d 736, 738
(E.D. Mich. 2005) (quoting Kyles v. Whitley, 514 U.S. 419, 433-434 (1995)).
The Michigan Court of Appeals’ decision did not unreasonably apply the
Brady standard. “[T]here is no Brady violation if the defendant knew or should
have known the essential facts permitting him to take advantage of the information
in question, or if the information was available to him from another source.”
Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000). This includes information that is
available from public records, including the criminal record of a witness. See
Storey v. Vasbinder, 657 F.3d 372, 380 (6th Cir. 2011). Accordingly, even if it is
true that Mavity had a criminal record that was not disclosed to the defense prior to
trial, the rejection of Petitioner’s Brady claim was not unreasonable because
Mavity’s records were publicly available.
Petitioner also presents a second basis for a Brady claim. (See ECF #27 at
25, Pg. ID 1578.) Petitioner claims that the prosecutor withheld evidence of
forensic testing performed at his apartment. In support of this contention, Petitioner
presents a letter from the prosecutor to defense counsel that notes that it was
enclosing a report from the forensic laboratory. The forensic report itself, however,
does not contain any exculpatory evidence. (See ECF #41-3.) It states simply that
30

on March 12, 2009, Lab Specialist William Foreman met with Detective
MacDonald and assisted with the investigation at Petitioner’s apartment. The
report notes that the apartment had two bedrooms, was on the second floor, was on
the south side of the building, and that there was weightlifting equipment and
construction tools inside. The report also stated that the apartment was searched
and that Detective MacDonald took photographs. Petitioner has not shown how
any of this information was exculpatory. Accordingly, even assuming the report
was suppressed, and it appears that it was not, Petitioner has not demonstrated any
entitlement to habeas relief.
B.

The Use of False Testimony

Petitioner next asserts that the prosecution committed misconduct when it
used false testimony in two instances.

First, Petitioner asserts that Detective

MacDonald lied when he testified that the police did not conduct any forensic tests
in his apartment. Second, Petitioner says that that Mavity and Doyon lied when
they testified that they knocked on Petitioner’s apartment door days after the
incident to retrieve Mavity’s property. The Michigan Court of Appeals rejected the
claims as follows:
Defendant next claims that the prosecutor improperly
presented false evidence. Prosecutors may not knowingly
present false evidence, and, if they do, they must correct
31

it. People v. Lester, 232 Mich. App. 262, 276; 591
N.W.2d 267 (1998). However, a prosecutor is not
compelled to disbelieve his own witness and correct the
witness’s testimony simply because certain testimony is
contradicted by another witness. Id. at 278-279. A
defendant is entitled to a new trial only where there is a
reasonable likelihood that false testimony could have
affected the judgment of the jury. Id. at 279-280. Here,
the prosecutor did not present any false testimony.
Nothing in the record supports defendant’s contention
that Detective MacDonald testified falsely about not
performing any testing on items taken from defendant’s
apartment. And, while Allen Doyon’s testimony was
inconsistent with Mavity’s testimony about whether they
approached defendant’s apartment days after the robbery,
the prosecutor was not compelled to disbelieve Doyon’s
testimony or correct it because of one minor
inconsistency. Moreover, the inconsistency related to a
collateral matter; whether Mavity and Doyon approached
defendant’s inconsistency related to a collateral matter;
whether Mavity and Doyon approached defendant’s
apartment was of no consequence to the issue of whether
defendant committed the charged crimes. There is no
reasonable likelihood that Doyon’s testimony affected
the judgment of the jury.
Szydlek, 2011 WL 1564609, at *4.
The Michigan Court of Appeals’ adjudication of Petitioner’s false-testimony
claims was not unreasonable. Prosecutors may not deliberately deceive a court or
jurors by presenting evidence that they know is false. See Giglio, 405 U.S. at 153.
Nor may they allow false testimony to go uncorrected when it appears. See Napue
v. Illinois, 360 U.S. 264, 269 (1959). But to prevail on a claim that the prosecutor
32

relied on false testimony, a habeas petitioner must show that (1) the testimony was
actually false, (2) the testimony was material, and (3) the prosecutor knew the
testimony was false. See Amos v. Renico, 683 F.3d 720, 728 (6th Cir. 2012); see
also Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). Mere inconsistencies in
testimony do not establish the knowing use of false testimony by the prosecutor.
See Coe, 161 F. 3d at 343. In addition, the fact that a witness contradicts himself or
herself or changes his or her story does not establish perjury. See Malcum v. Burt,
276 F. Supp. 2d 664, 684 (E.D. Mich. 2003).
Here, Detective MacDonald testified that he did not personally conduct any
forensic testing at Petitioner’s apartment. Petitioner has not shown that this
testimony was false. While a forensic evidence technician may have gone to the
apartment with MacDonald – though the letter referred to above suggested he did
not perform tests – there is no evidence that MacDonald performed any tests. With
respect to inconsistencies between Mavity and Doyon, there is no evidence that the
prosecutor knowingly presented any false testimony. Mavity and Doyon gave
somewhat different accounts of Mavity’s attempts to retrieve his property from
Petitioner prior to going to police. The presentation of both accounts was therefore
appropriate, and the Michigan Court of Appeals’ rejection of the Petitioner’s claim
of misconduct on this ground did not violate clearly established Supreme Court
33

law.
C.

Prejudicial Questioning

Petitioner asserts that the prosecutor committed misconduct during crossexamination. The Michigan Court of Appeals rejected the claim as follows:
Defendant argues that the prosecutor improperly crossexamined him about the alleged extortion note left by
Mavity and a prior conviction. With regard to the
prosecutor’s cross-examination about the alleged
extortion note, the questioning was proper. The inquiry
was responsive to defendant’s direct examination
testimony. People v. Jones, 73 Mich. App. 107, 110
(1976). The inquiry was also probative of defendant’s
credibility, which is always a material issue during trial.
People v. Mills, 450 Mich. App. 61, 72; 537 N.W.2d 909
(1995), mod. 450 Mich. 1212 (1995). With regard to the
prosecutor’s questioning of defendant about his past
involvement with illegal drugs, the questioning was
improper. Defendant did not open the door to this issue
during direct examination, and the questioning was not
proper under the rules of evidence for purposes or
impeachment, MRE 608(b); MRE 609(a), or proving
character, MRE 404(b); MRE 405(b). Nonetheless,
defendant fails to establish that the improper questioning
affected his substantial rights. Cox, 268 Mich. App. at
451.
Szydlek, 2011 WL 1564609, at *5.
Again, nothing about this decision constitutes an unreasonable application of
clearly established Supreme Court law. Petitioner has cited no authority, let alone
clearly established Supreme Court law, that supports his claim for relief.
34

And while the state appellate court concluded that the prosecutor’s
questioning about Petitioner’s prior drug activity was improper, it concluded that
this questioning did not warrant relief. Petitioner has not cited any Supreme Court
precedent that is inconsistent with the state appellate court’s ruling. Simply put,
the Michigan Court of Appeals’ conclusion that Petitioner failed to establish that
any improper questioning affected his substantial rights was not an unreasonable
application of clearly established federal law. Petitioner’s claim therefore fails
under § 2254(d).
D.

Improper Arguments

Petitioner’s final allegation of prosecutorial misconduct asserts that it was
improper for the prosecutor to ask the jury to compare Mavity’s testimony, which
was corroborated by Doyon, to Petitioner’s testimony. The state appellate court
rejected the claim as follows:
Defendant’s final prosecutorial misconduct argument is
that the prosecutor improperly argued during closing
arguments that Mavity’s testimony was corroborated by
Doyon’s testimony and that defendant had not produced
corroborating evidence, particularly the alleged extortion
note. The prosecutor’s argument that Mavity’s testimony
was corroborated by Doyon’s testimony was proper. The
prosecutor opined that defendant’s testimony was very
different from Mavity’s and argued that the jury need to
consider whose testimony was corroborated in making its
credibility determination. The prosecutor then explained
35

how Doyon’s testimony about Mavity’s injuries and
demeanor was consistent with Mavity’s testimony. A
prosecutor may comment on evidence and make
arguments about the credibility of witnesses where there
is conflicting testimony and the defendant’s guilt or
innocence depends on the veracity of the witnesses.
People v. Flanagan, 129 Mich. App. 786, 796; 342
N.W.2d 609 (1983). The prosecutor’s arguments that
defendant’s testimony was not corroborated and that the
alleged extortion not did not exist were also proper.
When a defendant advances a theory of the case as an
alternative to the theory advanced by the prosecution, a
prosecutor may point out the weakness in the defendant’s
case by commenting on the defendant’s failure to
produce corroborating evidence. People v. Fields, 450
Mich. 94, 112; 538 N.W.2d 356 (1995); People v.
Jackson, 108 Mich. App. 346, 351-352; 310 N.W.2d 238
(1981). Indeed, a prosecutor may argue that a defendant
testified untruthfully.
Szydlek, 2011 WL 1564609, at *5.
The “clearly established Federal law” relevant to the Court’s review of this
claim is the Supreme Court’s decision in Darden v. Wainwright, 477 U.S. 168, 181
(1986).

In Darden, the Supreme Court held that a “prosecutor’s improper

comments will be held to violate the Constitution only if they ‘so infected the trial
with unfairness as to make the resulting conviction a denial of due process.’”
Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). Moreover, “[a] prosecutor may comment on a defendant’s failure to call
witnesses or offer other evidence to support his factual theories so long as the
36

prosecutor’s comment does not implicate a defendant’s right not to testify.”
Skinner v. McLemore, 551 F. Supp. 2d 627, 646 (E.D. Mich. 2007). In addition, a
prosecutor may also argue from the facts that a witness is (or is not) worthy of
belief. See Portuondo v. Agard, 529 U.S. 61, 69 (2000).
The Court has reviewed the prosecutor’s closing argument. (See July 7,
2009, Trial Tr., ECF #24-6 at 13-22, 25-29, Pg. ID 944-953 956-960.) It was not
unreasonable for the Michigan Court of Appeals to conclude that the challenged
parts of the prosecutor’s closing argument did not warrant relief. Petitioner is
therefore not entitled to relief on his claim that the prosecutor made improper
remarks to the jury.
III.

Petitioner’s Claim Regarding the Juror’s Oath at Trial
According to Petitioner, the oath the jurors received at the start of his trial

did not comply with Michigan law, and accordingly, his subsequent conviction was
invalid. (See ECF #45 at 3, Pg. ID 2202.) Petitioner is not entitled to habeas relief
on this ground.
First, this Court cannot grant habeas relief for errors of state law. See Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991). Second, Petitioner has not cited any
United States Supreme Court cases that require a criminal jury to swear a specific
oath as a matter of federal constitutional law. Thus, even if the oath was defective
37

under Michigan law, petitioner is not entitled to federal habeas relief on this claim.
Finally, and in any event, the Court has reviewed the oath the jury received (see
July 6, 2009, Trial Tr., ECF #24-5 at 39, Pg. ID 808),4 and while it did not comply
word-for-word with the requirements of Michigan law (see MCL §§ 768.14,
768.15), the Court concludes the oath properly informed the jurors of their
responsibility to justly and fairly render a verdict at the conclusion of Petitioner’s
trial.

Thus, Petitioner is not entitled to relief on the basis that his jury was

improperly sworn.
IV.

Cumulative Error
Petitioner alleges that he is entitled to habeas relief because the cumulative

effect of trial errors deprived him of a fair trial and due process of law. (See, e.g.,
ECF #1 at 14, Pg. ID 14; ECF #9 at 14, Pg. ID 14.) On habeas review, a claim that
the cumulative effect of errors rendered a petitioner’s trial fundamentally unfair is
not cognizable. See Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011)
Therefore, Petitioner is not entitled to relief on this claim.

4

The jurors swore the following oath: “Do you solely swear or affirm that in this
action now before the court, you will justly decide the questions submitted to you,
and unless you are discharged by the court from further deliberation, you will
render a true verdict and that you will render your verdict only on the evidence
introduced in accordance with instructions of the court?” (July 6, 2009, Trial Tr.,
ECF #24-5 at 39, Pg. ID 808)
38

V.

State Imposition of Financial Barrier Restricting Availability of
Appellate Review
Petitioner next claims that he was denied access to the courts when the trial

court entered an order to collect attorney fees and costs following his trial. (See
ECF #27 at 7, 12, Pg. ID 1560, 1565.) Respondent notes that the federal aspects of
this claim were not presented to the state courts. Even assuming Respondent is
correct, this Court is nevertheless permitted to reach the merits of the unexhausted
claim and reject it. See 28 U.S.C. § 2254(b)(2).
Indigent criminal defendants have a constitutional right of access to the
courts. See Turner v. Safley, 482 U.S. 78, 84 (1987) (citing Johnson v. Avery, 393
U.S. 483 (1969)) (First Amendment); Pennsylvania v. Finley, 481 U.S. 551, 557
(1987) (Equal Protection Clause); Wolff v. McDonnell, 418 U.S. 539, 579 (1974)
(Due Process Clause). To satisfy the right to access to the courts, the State must
provide a prisoner with the “capability of bringing contemplated challenges to
sentences or conditions of confinement before the courts.” Lewis v. Casey, 518
U.S. 343, 354-56 (1996). Here, despite the order to collect attorney fees and costs,
Petitioner has not shown that he has been denied access to the courts. Petitioner has
been able to file pro se pleadings challenging his conviction in the state courts, and
39

he has had no difficulty filing pleadings with this Court. This claim is devoid of
merit.
To the extent Petitioner claims that the state court order of reimbursement
violates state law, the claim is not cognizable in a federal habeas action.
Because none of Petitioner’s habeas claim merit relief, the Petition will be
denied.
VI.

Petitioner’s Motion for Injunctive Relief
Petitioner’s motion for injunctive relief concerns Petitioner’s serious

medical condition, and it alleges that he is receiving inadequate care in the
Michigan Department of Corrections. (See ECF #42.) Because Petitioner’s habeas
claims are without merit, to the extent the motion seeks bond pending a grant of
habeas relief, the motion is denied as moot. If Petitioner wishes to add claims to
the Petition regarding his medical care, such claims are not cognizable in a habeas
corpus action, which concerns only the fact or duration of Petitioner’s
confinement, and not the conditions of confinement. See Preiser v. Rodriguez, 411
U.S. 475, 484 (1973).
CERTIFICATE OF APPEALABILITY
In order to obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right. See 28 U.S.C. §
40

2253(c)(2). To demonstrate this denial, the applicant is required to show that
reasonable jurists could debate whether, or agree that, the petition should have
been resolved in a different manner, or that the issues presented were adequate to
deserve encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473,
483-84 (2000). “The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Rules Governing § 2254
Cases, Rule 11(a).
As discussed above, the Court believes that Petitioner is not entitled to
habeas relief on any of the claims in his Petition. Nor does it believe that
reasonable jurists could debate whether the petition should have been resolved in a
different manner. Therefore, the Court will deny a certificate of appealability.
The Court will, however, grant permission to appeal in forma pauperis
because any appeal of this decision could be taken in good faith. 28 U.S.C. §
1915(a)(3).
CONCLUSION
Accordingly, for the reasons stated above, the Court (1) DENIES WITH
PREJUDICE the Petition for a writ of habeas corpus, (2) DENIES a certificate of
appealability, (3) GRANTS permission to appeal in forma pauperis, (4) GRANTS
Petitioner’s motions to supplement (ECF ## 40, 45), and (5) DENIES Petitioner’s
41

motion for injunctive relief (ECF #42).
IT SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 4, 2016

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on January 4, 2016, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

42