Edwards v. Curtin

Filing 14

OPINION AND ORDER DENYING THE 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 Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JULIAN LEIGH EDWARDS, #504232,
Petitioner,
v.

CASE NO. 2:13-CV-10220
HONORABLE VICTORIA A. ROBERTS

JEFFREY WOODS,
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 under 28 U.S.C. § 2254. Michigan prisoner Julian Leigh Edwards

(“Petitioner”) was convicted of first-degree murder, assault with intent to commit murder, felon in
possession of a firearm, and possession of a firearm during the commission of a felony following
a jury trial in the Wayne County Circuit Court. He was sentenced to life in prison without parole
on the murder conviction, a concurrent term of 15 to 60 years in prison on the assault conviction,
time served on the felon in possession conviction, and a consecutive term of two years in prison on
the felony firearm conviction in 2010. In his pro se pleadings, Petitioner raises claims concerning
the jury instructions, the sufficiency of the evidence, the admission of alleged hearsay and trial
counsel’s failure to object, and the effectiveness of trial counsel as to a plea offer. For the reasons
set forth, the Court denies habeas relief. The Court also denies a certificate of appealability and
denies Petitioner leave to proceed in forma pauperis on appeal.

II.

Facts and Procedural History
Petitioner’s convictions arise from a a shooting incident at an apartment in Detroit, Michigan

on May 28, 2009. The Michigan Court of Appeals described the underlying facts, which are
presumed correct on habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413
(6th Cir. 2009), as follows:
This case arises from the shooting death of Antoine Brown and gunshot injuries
suffered by Babe Franklin that occurred on May 28, 2009. On that date, defendant
was living in a one-bedroom apartment with his girlfriend, Jenae Willis, who had a
young daughter fathered by Brown during a prior relationship. Franklin testified that
Brown had been informed by Willis's sister that defendant was allegedly abusing
Brown's child and that Child Protective Services (CPS) had become involved in the
matter. Brown communicated this information to Franklin, and Brown indicated that
he wanted to talk to defendant. In numerous phone calls between Willis and Brown
on the day of the shootings, Willis told Brown that the accusations of child abuse
made against defendant were fabrications. As reflected in the testimony by Willis
and Franklin, Brown initially did not know Willis's address, and he kept calling
Willis demanding the address. Eventually, Willis's sister gave Brown the address,
and Brown asked Franklin to accompany him to the apartment. Franklin claimed that
he suggested to Brown that, if defendant was present at the apartment, they simply
talk to defendant to discover the truth before doing anything rash. Brown was
described by police as being a heavyset man, weighing between 270 and 300 pounds.
At around 9:00 p.m. on May 28, 2009, defendant returned to his apartment with his
brother Christopher Edwards (hereafter Edwards) after the two had spent the
afternoon together. Edwards indicated that defendant was acting normal and did not
appear upset about anything. Willis and her friend Ashley Scott were at the
apartment when the brothers arrived, and about five to ten minutes later there were
loud knocks on the door. According to Edwards, defendant opened the door just
slightly after first peering through the peephole, at which point Brown or Franklin
shoved the door wide open and they both barged into the apartment. Edwards
testified that defendant was not carrying any weapons when he answered the door,
nor did Edwards have knowledge of any weapons being kept in the apartment. Willis
testified that she kept a 20–gauge shotgun behind her bedroom door, which belonged
to her. Edwards claimed that, upon gaining entry to the apartment, Franklin and
Brown physically attacked defendant and that the tussle carried into the apartment's
sole bedroom. Edwards did not observe Franklin or Brown carrying any weapons,
and Edwards, fearing for his own life, immediately left the apartment. On fleeing,
Edwards heard gunshots coming from the apartment building, and he called 911 out
of concern for defendant. Edwards never witnessed the shootings inside the
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apartment. Willis also testified that she did not witness the shootings. She had been
in the bedroom sleeping at the time that Franklin and Brown burst into the apartment.
Defendant and Franklin came running into the bedroom and were fighting, and Willis
immediately got up and locked herself in a bathroom. In a statement to police, Willis
indicated that she heard defendant exclaim, “I told you all not to come up in here.”
At trial, she denied that defendant made the statement. Willis testified that she had
not informed defendant about the phone calls between her and Brown. Willis claimed
that she did not observe anyone carrying a weapon that evening, and she denied that
defendant kept any weapons in the apartment.
Defendant did not testify at trial and the only eyewitness testimony concerning the
actual shootings came from Franklin, the surviving victim. Franklin testified that
when he and Brown arrived at defendant's apartment complex, another man was
leaving the complex, which allowed them to make entry without “buzzing” in.
Franklin stated that he and Brown were not carrying any weapons, as they only
wanted to speak to defendant; Brown was calm and not irate. Once they reached
defendant's and Willis's apartment unit, Brown stood behind Franklin as Franklin
knocked on the door. When defendant started to open the door, Franklin asked for
Willis and defendant asked “who the f* * * are you?” Brown and Franklin then
entered the apartment. According to Franklin, defendant proceeded to run toward the
bedroom, carrying a shotgun. Franklin had testified at the preliminary examination
that he noticed defendant carrying the shotgun when defendant first opened the
apartment door. Brown chased defendant into the bedroom and Franklin followed
close behind. Upon entering the bedroom, Franklin observed Brown and defendant
wrestling over control of the shotgun that defendant had been carrying. Defendant's
hands were on the trigger and the barrel of the gun, while Brown's hands were
grasping the middle of the shotgun. Just moments after Franklin entered the
bedroom, the shotgun discharged, striking Franklin in the left hand and chest.
Franklin fell to the floor and then heard the shotgun discharge again, followed by a
yell from Brown. Franklin saw defendant push Brown to the floor, and then
defendant proceeded to leave the bedroom. Brown had been shot but was still alive.
Defendant, however, soon reentered the bedroom, pointed the shotgun at Brown, and
then shot him for the second time. According to Franklin, defendant pulled the
trigger again while pointing the gun at Brown, but the gun just clicked and did not
fire. Defendant then turned the shotgun on Franklin and pulled the trigger, but the
gun did not fire. Defendant instead struck Franklin a couple of times with the barrel
of the gun. Franklin was able to stand up, and he started running toward the front
door of the apartment. Franklin, however, was then shot in the back with what he
believed was a handgun based on the sound of the weapon. He slumped against a
wall in the living room and ended up on the ground next to a closet. Franklin
observed defendant return to the bedroom, and he then heard the handgun being
fired. The forensic pathologist who conducted Brown's autopsy testified that Brown
had been shot three times—a shotgun wound to the chest, a shotgun wound to the
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abdomen, and a handgun wound to the right flank. Franklin testified that defendant
then came out of the bedroom and began pacing around the apartment and ranting.
Franklin heard defendant yell, “I told you. I told you on the phone if you came over
here I was killing somebody.” Defendant then made a phone call, telling the person
on the other end of the line, “I just shot these two n* * * * *s. Get over here.”
Franklin testified that defendant proceeded to leave the premises, taking a handgun
with him but not a shotgun. Franklin then called 911. He had to step outside the
apartment in order to identify the address for the 911 operator, at which point the
police had already arrived in light of Edwards' earlier 911 call.
Willis testified that she came out of the bathroom when the gunshots ended, and she
saw defendant in the hallway and a man lying in the living room bleeding from the
chest. Willis told police in a statement that she observed defendant holding a shotgun
after she emerged from the bathroom, but at trial she denied ever seeing defendant
holding a gun. Franklin testified that he saw Willis leave the apartment and that he
believed that Willis should have recognized Franklin, given that they had met
numerous times in the past. Willis had denied recognizing Franklin in the apartment.
The police discovered Brown in a hallway in the apartment, bleeding from his chest
but still alive. No weapons were found on Brown, who later perished after being
taken by EMS to the hospital. Police testimony indicated that there was blood
everywhere in the apartment and that the place looked like a scuffle had occurred.
The police did not find any weapons on Franklin, and he informed police that he had
been shot by “Moochie,” which was defendant's nickname.
Nearly three months after the shooting, the police pulled over a car driven by
defendant. He was placed into custody for not having a license, and the police later
discovered that there was an outstanding homicide warrant for defendant's arrest.
Defendant gave police several incorrect names.
At trial, the jury, as to the issue of homicide, was instructed on the offenses of
first-degree and second-degree murder, but the court declined the prosecutor's
request for a manslaughter instruction. The trial court opined that a voluntary
manslaughter instruction would be so similar to the second-degree murder instruction
that it would cause juror confusion. The jury was instructed on self-defense, as
requested by defendant.
People v. Edwards, No. 296127, 2011 WL 1446074, *1-3 (Mich. Ct. App. April 14, 2011)
(unpublished) (footnotes omitted).
Following his convictions and sentencing, Petitioner filed an appeal of right with the
Michigan Court of Appeals raising claims concerning the jury instructions, the admission of alleged
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hearsay, and trial counsel’s failure to object to that alleged hearsay. The court denied relief on those
claims and affirmed Petitioner’s convictions. Id. at *3-8. Petitioner filed an application for leave
to appeal with the Michigan Supreme Court, which was denied in a standard order. People v.
Edwards, 490 Mich. 874, 803 N.W.2d 338 (2011).
Petitioner then filed an initial Habeas Petition with this Court raising the same claims
presented on direct appeal, as well as additional claims concerning the sufficiency of the evidence
and ineffective assistance of trial counsel relative to a plea offer. The Court determined that the new
claims were unexhausted and stayed and administratively closed the case so that Petitioner could
return to the state courts and fully exhaust his remedies.
Petitioner returned to the state trial court and filed a motion for relief from judgment raising
his unexhausted claims. The trial court denied relief in part based upon Michigan Court Rule
6.508(D)(2) and on the merits. People v. Edwards, No. 90-21356 (Wayne Co. Cir. Ct. Jan. 7, 2014).
Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals raising
the same claims. The Michigan Court of Appeals denied relief pursuant to Michigan Court Rule
6.508(D)(3) because Petitioner alleged grounds for relief which could have been raised on direct
appeal and failed to establish good cause for failing to previously raise the issues. People v.
Edwards, No. 321132 (Mich. Ct. App. May 6, 2014). Petitioner then filed an application for leave
to appeal which the Michigan Supreme Court, which was denied pursuant to Michigan Court Rule
6.508(D). People v. Edwards, 497 Mich. 981, 861 N.W.2d 26 (2015).
Petitioner thereafter moved to reopen this case and proceed on his habeas claims. The court
granted his request and reopened this case. Respondent filed an Answer to the Habeas Petition

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contending that it should be denied because the claims are procedurally defaulted and/or lack merit.
Petitioner filed a Reply to that Answer.
III.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28

U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering
habeas petitions brought by prisoners challenging their state court convictions. The AEDPA
provides in relevant part:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim-(1)

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

(2)

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

28 U.S.C. §2254(d) (1996).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts
that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)
(per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535
U.S. 685, 694 (2002).
“[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]

6

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 to find a state court’s application of [Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539
U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. “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 has emphasized “that
even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.”
Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). 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 a claim
“was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Id.; see also White v. Woodall,
_ U.S. _, 134 S. Ct. 1697, 1702 (2014). Federal judges “are required to afford state courts due

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respect by overturning their decisions only when there could be no reasonable dispute that they
were wrong.” Woods v. Donald, _ U.S. _, 135 S. Ct. 1372, 1376 (2015). A habeas petitioner
cannot prevail as long as it is within the “realm of possibility” that fairminded jurists could find the
state court decision to be reasonable. Woods v. Etherton, _ U.S. _, 136 S. Ct. 1149, 1152 (2016).
Section 2254(d)(1) limits a federal 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.
The requirements of “clearly established law” are to be determined solely by Supreme Court
precedent. Thus, “circuit precedent does not constitute ‘clearly established Federal law, as
determined by the Supreme Court,’” and “[i]t therefore cannot form the basis for habeas relief
under AEDPA.” Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam); see also Lopez v.
Smith, _ U.S. _, 135 S. Ct. 1, 2 (2014) (per curiam). The decisions of lower federal courts may be
useful in assessing the reasonableness of the state court’s decision. Stewart v. Erwin, 503 F.3d 488,

8

493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v.
Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal habeas review.
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). Habeas review is also “limited
to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
IV.

Discussion
A.

Jury Instruction Claim

Petitioner first asserts that he is entitled to habeas relief because the trial court failed to
instruct the jury on the lesser offense of voluntary manslaughter. Respondent contends that this
claim is waived, procedurally defaulted, and lacks merit.
The Michigan Court of Appeals denied relief on this claim finding that Petitioner waived
the claim by consenting to the instructions as given and not expressing agreement when the
prosecution requested a manslaughter instruction (which the trial court denied). The court further
determined that even if an error occurred, it was harmless because the jury convicted Petitioner of
first-degree murder and rejected a verdict on the lesser offense of second-degree murder. Edwards,
2011 WL 1446074 at *3-5.
Federal habeas relief may be precluded on claims that a petitioner has not presented to the
state courts in accordance with the state’s procedural rules. Wainwright v. Sykes, 433 U.S. 72, 8587 (1977). The doctrine of procedural default is applicable when a petitioner fails to comply with
a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule
is “adequate and independent.” White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006); Howard v.

9

Bouchard, 405 F.3d 459, 477 (6th Cir. 2005); Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir.
2001). “A procedural default does not bar consideration of a federal claim on either direct or
habeas review unless the last state court rendering a judgment in the case 'clearly and expressly'
states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263-64
(1989). The last explained state court judgment should be used to make this determination. Ylst
v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained
denial, it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
Here, the Michigan Court of Appeals rendered the last reasoned opinion. In denying relief
on this claim, the court relied upon a state procedural bar – Petitioner’s agreement to the jury
instructions as given – which the court found to constitute a waiver of this issue. Edwards, 2011
WL 1446074 at *4-5. The failure to make a contemporaneous objection or request is a recognized
and firmly-established independent and adequate state law ground for refusing to review trial
errors. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999); People v. Stanaway, 446
Mich. 643, 687, 521 N.W.2d 557 (1994); see also Coleman v. Thompson, 501 U.S. 722, 750-51
(1991). Moreover, a state court does not waive a procedural default by looking beyond the default
to determine if there are circumstances warranting review on the merits. Paprocki v. Foltz, 869
F.2d 281, 285 (6th Cir. 1989). Plain error review does not constitute a waiver of state procedural
default rules. Girts v. Yanai, 501 F.3d 743, 755 (6th Cir. 2007); Hinkle v. Randle, 271 F.3d 239,
244 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000). Nor does a state court
fail to sufficiently rely upon a procedural default by ruling on the merits in the alternative. McBee
v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). In this case, the Michigan Court of Appeals
denied relief based on Petitioner’s acceptance of the jury instructions, i.e., his failure to object at

10

trial.
A state prisoner who fails to comply with a state’s procedural rules waives the right to
federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting
from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice.
Coleman, 501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). Petitioner neither
alleges nor establishes cause to excuse this procedural default. A federal habeas court need not
address the issue of prejudice when a petitioner fails to establish cause to excuse a procedural
default. Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir.
1983).
Nonetheless, the Court notes that Petitioner cannot establish prejudice (or that he is
otherwise entitled to habeas relief on the merits of this claim) because, as explained by the
Michigan Court of Appeals, any error in failing to instruct the jury on manslaughter was harmless
error given that the jury convicted him of first-degree murder and rejected the lesser verdict of
second-degree murder. See Abdus-Samad v. Bell, 420 F.3d 614, 628 (6th Cir. 2005) (jury’s
decision to convict the petitioner of first-degree felony murder even though the jury was also
instructed on the lesser-included offense of second-degree murder “strongly suggests” that the trial
court’s failure to instruct the jury on the lesser offenses of voluntary and involuntary manslaughter
was at most harmless error). In other words, because the jury chose first-degree murder over
second-degree murder and rejected Petitioner’s defense, there is no basis to believe that it would
have opted for the lesser offense of voluntary manslaughter over first-degree murder. The failure
to instruct on voluntary manslaughter thus did not have had a “substantial and injurious effect or

11

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
This jury instruction claim lacks merit.
Petitioner also fails to establish that a fundamental miscarriage of justice occurred. The
miscarriage of justice exception requires a showing that a constitutional violation probably resulted
in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27
(1995). “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v.
United States, 523 U.S. 614, 624 (1998). “To be credible, [a claim of actual innocence] requires
petitioner to support his allegations of constitutional error with new reliable evidence – whether it
be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence
– that was not presented at trial.” Schlup, 513 U.S. at 324. Petitioner makes no such showing.
This claim is thus barred by procedural default, otherwise lacks merit, and does not warrant habeas
relief.
B.

Sufficiency of the Evidence Claim

Petitioner next asserts that he is entitled to habeas relief because the prosecution presented
insufficient evidence of malice to support his first-degree murder conviction. Respondent contends
that this claim is barred by procedural default and that it lacks merit.
As noted, federal habeas relief is precluded on claims that a petitioner has not presented to
the state courts in accordance with the state's procedural rules. Wainwright, 433 U.S. at 85-87. The
doctrine of procedural default is applicable when a petitioner fails to comply with a state procedural
rule, the rule is actually relied upon by the state courts, and the procedural rule is “adequate and
independent.” White, 431 F.3d at 524 ; see also Howard, 405 F.3d at 477; Coleman, 244 F.3d at
539. The last explained state court judgment should be used to make this determination. Ylst, 501

12

U.S. at 803-05. If the last state judgment is a silent or unexplained denial, it is presumed that the
last reviewing court relied upon the last reasoned opinion. Id.
Petitioner first presented this claim in his motion for relief from judgment on state collateral
review. The Michigan Supreme Court, the last state court to rule on the matter, denied leave to
appeal pursuant to Michigan Court Rule 6.508(D). That rule provides, in part, that a court may not
grant relief to a defendant if the motion for relief from judgment alleges grounds for relief which
could have been raised on direct appeal, absent a showing of good cause for the failure to raise such
grounds previously and actual prejudice resulting therefrom. MICH. CT. R. 6.508(D)(3). The
United States Court of Appeals for the Sixth Circuit has held that the form order used by the
Michigan Supreme Court to deny leave to appeal in this case is unexplained because its citation to
Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a procedural default or a
rejection on the merits. Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc).
Consequently, under Guilmette, the Court must “look through” the unexplained order of the
Michigan Supreme Court to the lower court’s decision to determine the basis for the denial of state
post-conviction relief.
The Michigan Court of Appeals denied relief on this claim on procedural grounds by
finding that Petitioner could have raised the claim on direct appeal and that he failed to establish
good cause under Michigan Court Rule 6.508(D)(3) for his failure to do so. Edwards, No. 321132
at *1. The state court thus clearly relied upon a procedural default to deny Petitioner relief on this
claim. Accordingly, this claim is procedurally defaulted.
Again, as discussed, a state prisoner who fails to comply with a state’s procedural rules
waives the right to federal habeas review absent a showing of cause for noncompliance and actual

13

prejudice resulting from the alleged constitutional violation, or a showing of a fundamental
miscarriage of justice. Coleman, 501 U.S. at 750-51; Gravley, 87 F.3d at 784-85. Petitioner neither
alleges nor establishes cause to excuse this procedural default. Consequently, this Court need not
address the issue of prejudice on habeas review. Smith, 477 U.S. at 533; Long, 722 F.2d at 289.
The Court further finds, however, that Petitioner cannot establish actual prejudice as 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 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).
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). “[I]t is the responsibility of the
jury – not the court – to decide what conclusions should be drawn from the evidence admitted at
trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). “A 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.

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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). Some time span between the initial homicidal intent and the ultimate killing is necessary
to establish premeditation and deliberation, People v. Gonzalez, 468 Mich. 636, 641, 664 N.W.2d
159 (2003), but the time required need only be long enough “to allow the defendant to take a
second look.” Schollaert, 194 Mich. App. at 170. An interval of a few seconds can be sufficient
to create a jury question on the issue of premeditation. People v. Tilley, 405 Mich. 38, 45, 273
N.W.2d 471 (1979). Premeditation and deliberation may be inferred from the type of weapon used
and the location of the wounds inflicted. People v. Berry, 198 Mich. App. 123, 128, 497 N.W.2d
202 (1993). Use of a lethal weapon supports an inference of an intent to kill. People v. Turner, 62
Mich. App. 467, 470, 233 N.W.2d 617 (1975).
Under Michigan law, “[t]he degree of provocation required to mitigate a killing from
murder to manslaughter is that which causes the defendant to act out of passion rather than reason.”
People v Tierney, 266 Mich. App. 687, 714-15, 703 N.W.2d 204 (2005). For provocation to be
adequate, it must be “that which would cause a reasonable person to lose control.” Id. at 715.
Words alone are generally inadequate provocation. People v Pouncey, 437 Mich. 382, 391, 471
N.W.2d 346 (1991). Additionally, if a defendant had a sufficient “cooling-off period,” he cannot

15

demonstrate the necessary “heat of passion” to mitigate murder to manslaughter. Id. at 392 (30
seconds was a sufficient cooling-off period).
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 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).
In this case, the prosecution presented sufficient evidence to support Petitioner’s first-degree
murder conviction. The evidence at trial indicated that Petitioner and the deceased victim, Brown,
had a dispute over Petitioner’s treatment of Brown’s child. Brown and the surviving victim,
Franklin, went to Petitioner’s apartment to discuss the matter. Franklin’s testimony indicated that
Petitioner answered the door armed with a shotgun. When Brown and Franklin pushed their way
into the apartment, Petitioner ran into the bedroom chased by Brown and followed by Franklin.
Petitioner and Brown struggled over the shotgun. During the struggle, Petitioner fired the gun
striking Franklin in the hand and chest and then striking Brown. Petitioner then left the bedroom,
returned, and unsuccessfully attempted to shoot Franklin and Brown again with the shotgun.
Petitioner struck Franklin with the butt of the gun. Franklin stood up and began to flee, but was
shot in the back with what sounded like a handgun. Franklin saw Petitioner return to the bedroom
and heard another handgun shot. Medical testimony confirmed that Brown had been shot twice
with a shotgun and once with a handgun and that he died from those wounds.
Franklin’s testimony, and reasonable inferences therefrom, provided sufficient evidence of
Petitioner’s intent to kill, as well as premeditation and deliberation, and showed that, at a minimum,

16

Petitioner had sufficient time between the initial shootings with the shotgun during the struggle and
the secondary shootings with the handgun to “cool off,” take a second look, and consider his
actions. 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).
Petitioner challenges the inferences the jury drew from the testimony presented at trial.
However, it is the job of the fact-finder at trial, not a federal habeas court, to resolve evidentiary
conflicts. 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 was reasonable. The evidence
presented at trial, viewed in a light favorable to the prosecution, established beyond a reasonable
doubt that Petitioner committed first-degree murder. This claim lacks merit.
Additionally, as discussed, Petitioner fails to establish that a fundamental miscarriage of
justice occurred as he fails to present new reliable evidence of his actual innocence. Bousley, 523
U.S. at 624; Schlup, 513 U.S. at 324-27. This claim is thus barred by procedural default, otherwise
lacks merit, and does not warrant habeas relief.
C.

Admission of Alleged Hearsay/Effectiveness of Trial Counsel Claim

Petitioner also asserts that he is entitled to habeas relief because the trial court erred in
admitting alleged hearsay testimony and because trial counsel was ineffective for failing to object
to the admission of that testimony. Respondent contends that the hearsay claim is waived and/or
procedurally defaulted and that both claims lack merit.

17

As noted, federal habeas relief is precluded on claims that a petitioner has not presented to
the state courts in accordance with the state's procedural rules. Wainwright, 433 U.S. at 85-87. The
doctrine of procedural default is applicable when a petitioner fails to comply with a state procedural
rule, the rule is actually relied upon by the state courts, and the procedural rule is “adequate and
independent.” White, 431 F.3d at 524 ; see also Howard, 405 F.3d at 477; Coleman, 244 F.3d at
539. The last explained state court judgment should be used to make this determination. Ylst, 501
U.S. at 803-05. If the last state judgment is a silent or unexplained denial, it is presumed that the
last reviewing court relied upon the last reasoned opinion. Id.
In this case, the Michigan Court of Appeals rendered the last reasoned opinion. In denying
relief on the hearsay claim, the court relied upon a state procedural bar – the failure to object at
trial. Edwards, 2011 WL 1446074 at *6.1 As discussed, the failure to make a contemporaneous
objection or request is a recognized and firmly-established independent and adequate state law
ground for refusing to review trial errors. Carines, 460 Mich. at 763; Stanaway, 446 Mich. at 687;
see also Coleman, 501 U.S. at 750-51. A state court does not waive a procedural default by looking
beyond the default to determine if there are circumstances warranting review on the merits.
Paprocki, 869 F.2d at 285. Plain error review does not constitute a waiver of state procedural
default rules. Girts, 501 F.3d at 755; Hinkle, 271 F.3d at 244; Seymour, 224 F.3d at 557. Nor does
a state court fail to sufficiently rely upon a procedural default by ruling on the merits in the
alternative. McBee, 929 F.2d at 267. In this case, the Michigan Court of Appeals denied relief
based on Petitioner’s failure to object to the alleged hearsay testimony at trial.

1

The court also noted that the issue could be seen as waived because trial counsel “spent
considerable time” cross-examining Franklin on the matter to elicit that Brown was angry with
Petitioner. Id. at n. 6.
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Again, a state prisoner who fails to comply with a state’s procedural rules waives the right
to federal habeas review absent a showing of cause for noncompliance and actual prejudice
resulting from the alleged constitutional violation, or a showing of a fundamental miscarriage of
justice. Coleman, 501 U.S. at 753; Gravley, 87 F.3d at 784-85. Petitioner alleges that trial counsel
was ineffective for failing to object to the alleged hearsay. Petitioner, however, cannot establish
that counsel erred or that he was prejudiced by counsel’s conduct so as to establish cause, nor can
he establish actual prejudice, because the underlying hearsay claim lacks merit.
Petitioner asserts that the trial court violated state law evidentiary rules, his confrontation
rights, and his due process rights by admitting Franklin’s testimony relaying Brown’s concerns
about Petitioner’s alleged abuse of Brown’s child.

A federal court may only grant habeas relief

to a person who is “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Alleged trial court errors in the application of state evidentiary law
are generally not cognizable as grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S.
62, 67–68 (1991) (“it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions”); Serra v. Michigan Dept. of Corrections, 4 F.3d 1348, 1354
(6th Cir. 1993). “Trial court errors in state procedure or evidentiary law do not rise to the level of
federal constitutional claims warranting relief in a habeas action, unless the error renders the
proceeding so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth
Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (quoting Estelle, 502 U.S. at
69-70); see also Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d
514, 519-20 (6th Cir. 2007)); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
Thus, to the extent that Petitioner contests the state court’s decision under the Michigan

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Rules of Evidence and its interpretation of state law, he is not entitled to relief. It is well-settled
that “a state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting on habeas review.” Bradshaw v. Richey, 546
U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). State courts are the final
arbiters of state law and federal courts will not intervene in such matters. Lewis v. Jeffers, 497 U.S.
764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987). Habeas relief does not lie for
perceived errors of state law. Estelle, 502 U.S. at 67-68. Petitioner fails to state a claim upon
which relief may be granted as to any state law issue.
Petitioner also fails to establish a due process violation. The admission of the disputed
testimony did not render his trial fundamentally unfair. First, the statements were not hearsay under
Michigan Rule of Evidence 801(c) given that they were not offered for the truth of the matter
asserted (that Petitioner abused Brown’s child). Rather, they were used to explain why Brown and
Franklin went to Petitioner’s apartment. Second, the statements were relevant, admissible, and not
unduly prejudicial under Michigan Rules of Evidence 401, 402, and 403 to provide the jury with
a complete picture of what led to the confrontation between Petitioner and the victims and to
provide a context for the shootings. The admission of the evidence was thus appropriate under state
law and did not deprive Petitioner of a fundamentally fair trial.
Lastly, Petitioner fails to establish a violation of his confrontation rights. The Confrontation
Clause of the Sixth Amendment guarantees a criminal defendant the right to confront the witnesses
against him. Davis v. Alaska, 415 U.S. 308, 315 (1973). The Sixth Amendment protections are not
so broad, however, as to exclude the admission of certain hearsay statements against a criminal
defendant despite his or her inability to confront the declarant at trial. Maryland v. Craig, 497 U.S.

20

836, 847-48 (1990). In Crawford v. Washington, 541 U.S. 36, 54 (2004), the Supreme Court held
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 has had a prior opportunity to cross-examine the
witness. Testimonial statements include grand jury testimony, preliminary hearing testimony, and
prior trial testimony, as well as statements made during police interrogations.

Id. at 54.

Testimonial statements do not include remarks made to family members or acquaintances, business
records, or statements made in furtherance of a conspiracy. Id. at 51-52, 56; United States v.
Martinez, 430 F.3d 317, 328-29 (6th Cir. 2005). The Confrontation Clause is not implicated, and
thus need not be considered, when non-testimonial hearsay is at issue. Davis v. Washington, 547
U.S. 813, 823-26 (2006); Desai v. Booker, 538 F.3d 424, 425-26 (6th Cir. 2008); see also Whorton
v. Bockting, 549 U.S. 406, 420 (2007) (noting that the Confrontation Clause “has no application
to such statements and therefore permits their admission even if they lack indicia of reliability”).
Such is the case here. Brown’s statements to Franklin were non-testimonial such that the
Confrontation Clause is not implicated. Accordingly, Petitioner’s hearsay claim lacks merit.
Additionally, as discussed, Petitioner fails to establish that a fundamental miscarriage of
justice occurred as he fails to present new reliable evidence of his actual innocence. Bousley, 523
U.S. at 624; Schlup, 513 U.S. at 324-27. Petitioner’s hearsay claim is thus barred by procedural
default, otherwise lacks merit, and does not warrant habeas relief.
Petitioner also raises an independent claim that trial counsel was ineffective for failing to
object to the admission of the alleged hearsay testimony at trial. 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 Supreme Court set forth a two-

21

prong test for determining whether a habeas petitioner 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. 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.
A federal court’s consideration of ineffective assistance of counsel claims arising from state
criminal proceedings is quite limited on habeas review due to the deference accorded trial attorneys
and state appellate courts reviewing their performance. “The standards created by Strickland and

22

§ 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.
Citing the Strickland standard, the Michigan Court of Appeals denied relief on this claim
because the underlying claim lacks merit. The court further explained that counsel’s decision not
to object and to instead use the testimony to support Petitioner’s self-defense claim was reasonable
trial strategy and that Petitioner failed to show that he was prejudiced by counsel’s conduct.
Edwards, 2011 WL 1446074 at *7-8.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. Given the state court’s determination, as well
as this Court’s ruling, that the underlying hearsay claim lacks merit, Petitioner cannot establish that
trial counsel erred or that he was prejudiced by counsel’s conduct. Counsel cannot be deemed
deficient for failing to make a meritless argument or a futile objection. 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). Moreover, the
Court agrees with the Michigan Court of Appeals that trial counsel’s conduct was reasonable
because the disputed testimony supported Petitioner’s self-defense claim and its admission did not
unduly prejudice the defense or affect the outcome at trial. Petitioner fails to establish that trial
counsel was ineffective under the Strickland standard. Habeas relief is not warranted on this claim.
D.

Effectiveness of Trial Counsel as to Plea Offer

Lastly, Petitioner asserts that trial counsel was ineffective for advising him to reject a plea

23

offer for voluntary manslaughter with a sentence of 10 to 20 years plus two years in prison. He
alleges that counsel did not understand the law of self-defense and advised him that she could beat
the prosecution’s case. Respondent contends that this claim is barred by procedural default and that
it lacks merit.
Again, as noted, federal habeas relief is precluded on claims that a petitioner has not
presented to the state courts in accordance with the state's procedural rules. Wainwright, 433 U.S.
at 85-87. The doctrine of procedural default is applicable when a petitioner fails to comply with
a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule
is “adequate and independent.” White, 431 F.3d at 524 ; see also Howard, 405 F.3d at 477;
Coleman, 244 F.3d at 539. The last explained state court judgment should be used to make this
determination. Ylst, 501 U.S. at 803-05. If the last state judgment is a silent or unexplained denial,
it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
Petitioner first presented this claim in his motion for relief from judgment on state collateral
review. The Michigan Supreme Court, the last state court to rule on the matter, denied leave to
appeal pursuant to Michigan Court Rule 6.508(D). That rule provides, in part, that a court may not
grant relief to a defendant if the motion for relief from judgment alleges grounds for relief which
could have been raised on direct appeal, absent a showing of good cause for the failure to raise such
grounds previously and actual prejudice resulting therefrom. MICH. CT. R. 6.508(D)(3). The form
order used by the Michigan Supreme Court to deny leave to appeal in this case is unexplained
because its citation to Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a
procedural default or a rejection on the merits. Guilmette, 624 F.3d at 291-92. Consequently,
under Guilmette, the Court must “look through” the unexplained order of the Michigan Supreme

24

Court to the lower court’s decision to determine the basis for the denial of state post-conviction
relief.
The Michigan Court of Appeals denied relief on this claim on procedural grounds by
finding that Petitioner could have raised the claim on direct appeal and that he failed to establish
good cause under Michigan Court Rule 6.508(D)(3) for his failure to do so. Edwards, No. 321132
at *1. The state court thus clearly relied upon a procedural default to deny Petitioner relief on this
claim. Accordingly, this claim is procedurally defaulted.
Again, as discussed, a state prisoner who fails to comply with a state’s procedural rules
waives the right to federal habeas review absent a showing of cause for noncompliance and actual
prejudice resulting from the alleged constitutional violation, or a showing of a fundamental
miscarriage of justice. Coleman, 501 U.S. at 750-51; Gravley, 87 F.3d at 784-85. Petitioner neither
alleges nor establishes cause to excuse this procedural default. Consequently, this Court need not
address the issue of prejudice on habeas review. Smith, 477 U.S. at 533; Long, 722 F.2d at 289.
The Court nonetheless finds that Petitioner cannot establish actual prejudice as this claim
lacks merit. As previously discussed, in Strickland v. Washington, the Supreme Court set forth a
two-prong test for determining whether a habeas petitioner has received ineffective assistance of
counsel. First, a petitioner must show that counsel’s performance was deficient. Second, the
petitioner must show that counsel’s deficient performance prejudiced the defense. Strickland, 466
U.S. at 687. The Strickland standard applies to plea negotiations, including claims involving
counsel’s advice about a plea offer. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012).
In this case, the record belies Petitioner’s claim that trial counsel advised him to reject the
plea offer. Petitioner first raised this issue in a letter to the trial court after trial but before

25

sentencing. 1/5/10 Sent. Tr., p. 3. At the sentencing hearing, defense counsel explained that the
prosecutor initially offered Petitioner a plea bargain which would have resulted in a (minimum)
sentence of 16 years plus two years in prison, which Petitioner rejected. Id. at p. 5. Trial counsel
continued to negotiate with the prosecutor. The prosecutor ultimately made a final plea offer on
the day of trial which reduced the first-degree murder charge to voluntary manslaughter with a
sentence of 10 to 15 years plus two years in prison and reduced the assault with intent to commit
murder charge to assault with intent to do great bodily harm. Id. at 6. Petitioner obviously did not
accept the plea offer. Trial counsel denied ever promising Petitioner that she would beat his case.
Id. at 13. During the discussion at the sentencing hearing, the court essentially determined that
Petitioner’s claim that counsel coerced him into rejecting the plea and going to trial was false. The
court stated in relevant part:
And I don't know why this is, but we have been able to hear, even today -- I don't
know what goes on with you guys back there in the bullpen, but we were able to
hear during the trial, counsel, the day of trial, talking with him and trying to get a
plea. So, you know, and she had to really talk loud for us to be able to hear it out
here.
So, I just want to say, I know that’s not true.
***
Now he says here, ‘I was willing to take the plea agreement that I was offered,
which was ten plus two to twenty, and the charge was going to reduce from first
degree to second degree murder. But my counsel told me that she can and will beat
it, which she is not allowed to do.’
Now, I happen to know that counsel is very -- we could hear you shouting, talking
to him back there.
So, I'm just saying, you know, I get really concerned when I see these kinds of
lies....
***
Now, you know, I’m just hearing lie after lie.
26

Id. at 3-4, 6-7, 13. Thus, contrary to Petitioner’s claim, the record indicates that trial counsel did
not promise Petitioner that she could win his case and that she was trying to convince Petitioner
to accept the prosecutor’s plea offer, not to reject it.
Petitioner offers no evidence, other than his own assertions, for his claim that trial counsel
advised him to reject the plea offer. Conclusory allegations, without evidentiary support, do not
provide a basis for habeas relief. 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 federal 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). Moreover, the decision about whether to accept
or reject a plea offer ultimately rests with the defendant, not trial counsel. Smith v. United States,
348 F.3d 545, 552 (6th Cir. 2003). Petitioner fails to show that trial counsel’s performance with
respect to the plea offer was deficient. He thus fails to establish that trial counsel was ineffective
under the Strickland standard.
Lastly, as discussed, Petitioner fails to establish that a fundamental miscarriage of justice
occurred because he fails to present new reliable evidence that he is actually, factually innocent of
the crime. Bousley, 523 U.S. at 624; Schlup, 513 U.S. at 324-27. This claim is thus barred by
procedural default, lacks merit, and does not warrant habeas relief.
V.

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

relief on his claims. Accordingly, the Court DENIES and DISMISSES WITH PREJUDICE the
Petition for a Writ of Habeas Corpus.

27

Before Petitioner may appeal the Court’s decision, a certificate of appealability (“COA”)
must issue. 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A federal court may issue a COA
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a district 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, 48485 (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). When a district court denies relief on procedural grounds, a COA should
issue if it is shown that jurists of reason would find it debatable whether the petitioner states a valid
claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484-85.
Having considered the matter, the Court concludes that Petitioner fails to make a substantial
showing of the denial of a constitutional right as to his habeas claims and that reasonable jurists
could not debate the correctness of the Court’s procedural rulings. Accordingly, the Court
DENIES a COA. The Court also DENIES Petitioner leave to proceed in forma pauperis on appeal
as an appeal cannot be taken in good faith. FED. R. APP. P. 24(a).
IT IS SO ORDERED.

S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: November 6, 2017

28