Currie v. Rapelje

Filing 20

MEMORANDUM ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS ANDDENYING A CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID CURRIE,
Petitioner,
CASE NO. 13-CV-10252
HONORABLE AVERN COHN

v.
LLOYD RAPELJE,
Respondent.
________________________________/

MEMORANDUM ORDER
DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS
AND
DENYING A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. In 2007, Michigan prisoner David
Currie (“Petitioner”) was convicted by a jury of assault with intent to murder, carjacking,
three counts of armed robbery, felon in possession of a firearm, and possession of a
firearm during the commission of a felony. He was sentenced as a third habitual
offender to concurrent terms of 35 to 70 years imprisonment on the assault, carjacking,
and armed robbery convictions, a concurrent term of 5 to 10 years imprisonment on the
felon in possession conviction, and a consecutive term of two years imprisonment on
the felony firearm conviction.
Before the Court is Petitioner’s petition, filed through counsel, for a writ of habeas
corpus. Petitioner raises claims concerning the sufficiency of the evidence, the
effectiveness of trial and appellate counsel, and the validity of his sentence.

Respondent contends that three of the claims are barred by procedural default and that
all of the claims lack merit. For the reasons that follow, the petition will be denied for
lack of merit.
II. Facts
Because Petitioner raises a sufficiency of the evidence claim, a detailed account
of the facts revealed at trial is necessary.
Petitioner’s convictions arise from a crime spree targeting motorists during the
early morning hours on April 28, 2006 in Detroit, Michigan. Four men, Petitioner, Elgie
Grays, Jason Treadwell, and Brion McConnell, were charged in the crime spree, which
involved the men posing as police officers and pulling over motorists in order to rob
them. Several motorists were assaulted and robbed and an off-duty Detroit police
officer was killed. Petitioner was tried in a joint trial before separate juries with codefendant Grays.1
The surviving victims of the crime spree testified at trial. John Feazell testified
that he was driving home from his grandmother’s house and was near the intersection
of Rutland and Dover in Detroit around 3:00 a.m. on April 28, 2006, when a silver
Honda CRV pulled in front of him and cut him off causing him to stop his vehicle. Three

1

Grays was convicted of second-degree murder (vacated), first-degree murder,
carjacking, three counts of armed robbery, assault with intent to commit murder, felon in
possession of a firearm, and possession of a firearm during the commission of a felony.
Treadwell was convicted in a separate trial of first-degree murder, assault with intent to
rob while armed, carjacking, two counts of armed robbery, assault with intent to commit
murder, felon in possession of a firearm, and possession of a firearm during the
commission of a felony. McConnell pleaded guilty to second-degree murder, two
counts of armed robbery, and possession of a firearm during the commission of a
felony.
2

black men exited the vehicle and a fourth man remained in the back passenger seat
pointing a gun out of the window. Feazell identified the older man who exited the
vehicle as Brion McConnell and identified the shorter man who exited the driver’s side of
the vehicle as Jason Treadwell. The third man who exited the passenger side of the
vehicle had braids.
The men said they were police officers, pointed guns at him, and ordered him to
exit his vehicle and put his hands up against the vehicle. They took his gold chain and
cell phone. The three man discussed whether to shoot him. Treadwell wanted to shoot
him, but the man with the braids disagreed and told Feazell to run, which he did.
Feazell ran west on Dover and when he got to Longacre, a green car with an outof-state license plate was heading north on Longacre and drove past him. When
Feazell got to Archdale, he saw the same green car parked in a driveway, along with
the silver Honda CRV, and saw the men pointing guns at the green car and yelling that
they were the police. Feazell called the police and took them to the location where he
was robbed. His vehicle was subsequently found on a nearby street.
Later that day, Feazell gave the police a statement in which he described the
men involved in the incident. His descriptions of McConnell and Treadwell were more
complete than those of the other men. Feazell attended line-ups before trial, but could
not recall any identifications. At trial, he identified Petitioner and Grays as the two men
involved in the incident with McConnell and Treadwell. Grays was the person with the
braids who told him to run. He could not recall what type of gun Grays had, but he said
that Petitioner had a chrome or nickel-plated .38 because he saw it sticking out of the

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Honda CRV window. On cross-examination, Feazell testified that he did not see the
fourth man in the back of the SUV so he could not say whether Petitioner was that man.
Marie Leinonen testified that she was driving in her red Mercury Sable in the area
of Ashton and VanBuren in Detroit around 3:00 a.m. on April 28, 2006 looking to
purchase marijuana. An SUV cut her off and four black men exited the SUV with guns.
One man fired a shot and told her to open the door. The men said they were police.
She did not think they were the police, so she put her car in reverse. Shot were fired at
her car, so she stopped and opened her door. She was hit in the head and her purse
was taken. Although Leinonen was bleeding and her car windows were shot out, she
was able to drive away and go to a gas station eight blocks away for help. She gave a
statement to police that day and indicated that only two men exited the SUV. Leinonen
testified that the four men involved in the incident were black, but she was unable to
identify any of them in a lineup or at trial.
Dewayne Smith testified that he was driving in a green Honda Accord with an
out-of-state license plate in the area of Archdale and Joy in Detroit around 3:00 a.m. on
April 28, 2006 when someone tried to flag him down, but he did not stop. He drove into
a driveway on Archdale. A minivan pulled up and armed black men exited the vehicle,
said that they were the police, and ordered him to put his hands up. The men ordered
him to turn around and one of them struck him on the head. They took his wallet and
money. He was then told to run to the corner, which he did. Smith testified that one
man was older and a different height than the other men, but he could not recall
hairstyles. He was unable to identify the perpetrators. On cross-examination, Smith

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clarified that three men exited the minivan, but he said there were three to five involved
in the incident because someone stayed in the back of the minivan.
Myra Andrews testified that she was driving with her brother in a Buick Century
near Faust and Belton in Detroit around 3:30 a.m. on April 28, 2006 when a grey Honda
truck rolled past her and cut her off while she was stopped at a stop sign. She saw four
black men in the Honda. A man with a muscular build and braids wearing a black
hoodie and a skull cap exited the passenger seat with a weapon. Andrews testified that
he looked like Grays, but she was not sure. She did not know if Petitioner was present.
Andrews backed into a driveway and drove over the sidewalk and down the street. On
cross-examination, Andrews explained that Grays looked similar to the perpetrator but
she could not say that it was him. She also admitted that she picked someone else out
of a lineup before trial.
People associated with the co-defendants also testified at trial. Felicia Walker,
who had a familial connection to Treadwell, testified that Treadwell and other men came
to her house on April 28, 2006. They stayed about 30 minutes, left, and returned about
an hour later. She did not see them, but heard the voices of Treadwell, Grays, and
Petitioner. They left and returned a second time and went into the basement. She went
to sleep and when she awoke, only Treadwell was at her house. Walker was
interviewed by police in May, 2006 and appeared pursuant to an investigative
subpoena. She told the authorities that an older man was with the other three men at
her house. She saw weapons that night, but did not see Petitioner with one. She
recalled hearing a demand for jewelry and seeing McConnell pointing a gun at someone
on the corner near her house. She also recalled hearing an argument in the basement
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and hearing Treadwell say that Grays had shot someone and hearing Grays say that he
was not the only one shooting. Walker said that she did not want to be involved in the
case, but she was threatened if she did not cooperate. She claimed that she only told
the police what they wanted to hear due to those threats.
Jessie Guiden, McConnell’s aunt, testified that she had given McConnell
permission to drive her 2006 silver Honda CRV on the night of the crime spree. She
was interviewed by the police in May, 2006, and the interview was unpleasant. She did
not sign her police statement.
Police personnel who investigated the crime spree testified at trial. Detroit police
evidence technician Lori Briggs testified that she responded to the crime scene at Joy
and Longacre at about 4:30 a.m. On Joy, she found six R & P nine millimeter casings, a
spent bullet, suspected blood, and a Sprint pocket PC. She observed a beige minivan
with bullet holes and broken windows crashed against a light pole at Joy and Southfield.
In the locked console inside the van, she recovered a Detroit police-issued Glock
firearm.
Detroit police officer Kirk Williams testified that he was in a marked squad car
with his partner during the early morning hours on April 28, 2016 when they responded
to the crime scene at Joy and Southfield and observed the crashed van with the
windows shot out. Detroit police officers Grant and Heath were down the street
standing near the body of Officer Charles Phipps, who had been shot several times and
was unresponsive. Williams found Phipps’ service weapon and his wallet the van’s
console. He observed a set of keys in the passenger seat and a set in the van’s
ignition.
6

Detroit police sergeant Kevin Reed, a firearms and toolmark identification expert,
testified that he examined casings and bullets from two different scenes, one in the area
of Joy and Longacre and the other on Faust. He found that the R & P nine millimeter
casings were all fired from the same weapon, as was the bullet recovered from the
medical examiner’s office. The two other nine millimeter bullets had been fired from a
different weapon. None of the bullets or casings had been fired from Phipps’ service
weapon.
Detroit police officer Mary Gross analyzed several items, including casings, for
fingerprints. She found usable fingerprints on a piece of paper. Detroit police officer
Donald Rem, an evidence technician, testified that he found fingerprints on the exterior
of the Honda CRV. Detroit police officer Marcia McCleary, a latent print examiner,
testified that she was able to identify one of the fingerprints as belonging to McConnell.
Fingerprints recovered from the Honda CRV did not match Petitioner.
Detroit crime lab forensic chemist William Steiner testified that eight samples
taken from inside and outside the Honda CRV tested positive for gunshot residue. He
also collected possible DNA samples on items taken from the Honda CRV and samples
from four people, including Petitioner. Cathy Carr, a DNA expert, testified that DNA
from items in the Honda CRV matched McConnell’s DNA profile and that Petitioner was
excluded.
Brion McConnell appeared at trial pursuant to an agreement with the prosecutor
in which he agreed to testify truthfully about the crime spree in exchange for a plea to a
reduced charge with a sentence of 18 to 28 years in prison. He testified that he was
with Petitioner, Grays, and Treadwell on August 28, 2006. He recalled driving to Grays’
7

house and drinking in the back seat of the Honda CRV. He said that Petitioner was
armed that night, but he did not remember what happened due to an alcohol blackout.
During his police interview, however, McConnell provided the police with sketches of
where the four men had been in the vehicle. McConnell also told the police that
Treadwell cut off a car, that Treadwell and Petitioner exited the vehicle, and that
Treadwell was shooting, but he did not know if Petitioner was shooting. McConnell said
Treadwell and Petitioner were the two men who were out of the car when Phipps was
killed. McConnell testified that he got his information on the sketch from the police and
that he told the police what they wanted to hear. He said that he did not recall who shot
at the vehicles and that he cooperated with the police to protect his son. He said that
he entered a plea agreement because everyone said that he was involved in the crime
spree.
Dr. Boguslaw Pietak, a forensic pathologist, testified that he performed the
autopsy on Charles Phipps. Dr. Pietak stated that Phipps died from nine gunshot
wounds, but he was unable to determine if more than one person or firearm was
involved in the shooting.
Petitioner’s police statement was also admitted into evidence at trial. Detroit
police officer Lance Sullivan testified that he interviewed Petitioner on May 6, 2006.
During their first meeting, he advised Petitioner of his rights, but Petitioner refused to
make a statement. Sullivan then took Petitioner for a lineup before questioning him
again. During their second meeting, Sullivan falsely told Petitioner that all but one
person picked him out of the lineup. Petitioner initially refused to make a statement, but
after about an hour, he changed his mind. Sullivan re-advised Petitioner of his rights
8

and Petitioner agreed to answer questions. Sullivan wrote out the questions and
answers and Petitioner signed the statement. The statement follows:
Q
Mr. Currie, please tell me about the incidents that occurred on the
morning of April 28, 2006, in which a man was shot and killed on Joy and
Longacre.
A
Jason [Treadwell], Brion [McConnell], and Elgie [Grays] came by
and picked me up on Dequindre around nine p.m. to ten p.m. on 4-27-06.
Brion was driving. We decided to go to the west side to Jason’s sister’s
house. Her house is on Rutland and we stopped there for about 15
minutes. After we left the sister’s house we were going down Rutland
towards Joy and we passed a car . . . that was going the other way. Jason
said turn around and get that car. Brion was still driving. He turned around
and caught the car, then blocked it off. When we stopped Brion jumped
out of the driver’s seat and Jason jumped out of the back (driver’s side). I
was in the front seat and stayed in the truck along with Elgie who was
sitting behind me on the passenger side. Big Brion held a guy at gunpoint
while Jason robbed him. I don’t know what he got. He was tussling with
him. Jason said something like ‘I should shoot your mother fucking ass.
Where’s the money at’, to the guy. I said, come on, don’t shoot him. The
guy took off running and Brion jumped in the guy’s car and drove off.
Jason jumped back in the driver’s seat and was following Brion. Brion
went a couple of blocks and stopped. He got back in the truck we were in,
driver’s side back. Jason drove for a little while to the other side of
Southfield Freeway. Jason was driving down the street and met a car
head-on causing her to stop. When the lady stopped a guy jumped out
and ran. Then big Brion and Jason jumped out to rob her and she took off
going past the truck. We didn’t get anything from her. The guy who took
off kept running. Jason started driving again and within a block or two he
stopped another vehicle. I think it was red. There was a lady in it, I think
black. I was approaching her car with my gun out. I told her to give me her
purse. She just sat there for a few seconds. Jason ran past me and swung
at her and was saying something to her. I don’t remember if she fled or
stayed in the car. Jason and Elgie started shooting at the car. Jason first.
We all ran back to the truck. Jason jumped in the driver’s seat, Brion had
stayed in the back in the driver’s side. Elgie got in the front passenger and
I was getting in the rear passenger side when Jason put the truck in
forward and punched it. It knocked me down to the ground and the back
wheel ran over my right leg. Elgie said you’re running him over. Jason put
it in reverse and ran my foot over. The door was still opened, I tried to hold
onto it, the truck dragging me scrapping by left arm, elbow and hands.

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Elgie and Jason helped me in the truck rear passenger side. I told
them to take me to the hospital but Jason said he was going to take me to
the house first. He was on Joy Road going towards Rutland. We saw a
van coming the other way and Jason said, ‘I’m going to get this mother
fucker here’. He swung the truck around and caught up to and cut off a
mini van. Jason and Elgie jumped out. Elgie went to the passenger side
and Jason went to the driver’s door. Jason opened the door and was
exchanging words with the guy. They started tussling and Jason was
pulling the guy out of the van. Jason fired at the guy at least a couple
times. When the guy came out of the van, it looked like he was going to
the ground and Jason was just shooting at his head and neck area. The
van rolled off while Jason was pulling him out. I heard some other shots
but didn’t see who was shooting. Elgie and Jason jumped back in the truck
and we went over on Rutland. I couldn’t get out on by own so Jason and
Elgie helped me in the house.
Once in the house we all went to the basement. I think I was sitting
on the bed and spitting up some blood. The other guys were talking. I
don’t recall their words. I called a female “April” to come and get me. She
came and got me in about 30 minutes and took me to the house. I was the
first to leave.”
Q

Who is Jason?

A

Jason is a guy from the neighborhood. I’ve known him, like, ten
years.

Q

Who is Elgie?

A

Another guy from the neighborhood. I’ve known him 15 years.

Q

Who is Brion?

A

He’s an older guy from the neighborhood that’s been around
awhile.

Q

Do you recall what the other guys were wearing?

A

No, not really. Brion had on a dob (hat).

Q

What type of vehicle were you in?

A

A gray Honda, four door SUV.

Q

Can you describe the weapons that everyone had?
10

A
Brion had a 44 Magnum revolver chrome. Jason had a chrome nine
millimeter automatic. Elgie had a nine millimeter black automatic. I had a
357 revolver black. Elgie’s was, like, a Tech 9.
Q

Do you know where the guns went to?

A
I gave them to Elgie. He was supposed to put them up. I don’t know
where the other ones went.
Q

Why did this happen?

A

We all needed the money.

Q

What is Jason’s sister’s name?

A.

Felicia

Q

Have you spoke to anyone since that night? (Jason, Brion, Elgie).

A

I spoke to Elgie the next day but not about what happened.

Q

Do you know where any of the items stolen that night went to?

A.

No.

Q

Is there anything else you would like to say?

A

No.

Q

Is this statement true?

A

Yes.

3/26/07, Trial Tr., pp. 10-16.
At the close of trial, the jury found Petitioner guilty of carjacking Feazell, three
counts of armed robbery for the robberies of Feazell, Leinonen, and Smith, assault with
intent to murder Leinonen, felon in possession of a firearm, and possession of a firearm
during the commission of a felony. The trial court subsequently sentenced him as set
forth above.
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III. Procedural History
Petitioner filed an appeal of right with the Michigan Court of Appeals raising a
claim that trial counsel was ineffective for failing to call him to testify at a Walker hearing
regarding the admissibility of his police statement. The court of appeals denied relief on
that claim and affirmed his convictions. People v. Currie, No. 278072 (Mich. Ct. App.
July 15, 2008) (unpublished). The Michigan Supreme Court denied leave in a standard
order. People v. Currie, 483 Mich. 887 (2009).
Petitioner then filed a motion for relief from judgment and a supplemental motion
for relief from judgment with the trial court raising claims concerning prosecutorial
misconduct, due process, the sufficiency of the evidence, the effectiveness of trial and
appellate counsel, and the validity of his sentence. The trial court denied relief on those
claims finding that Petitioner failed to establish cause and/or prejudice for his failure to
raise the claims on direct appeal under M.C.R. 6.508(D)(3) because the claims lacked
merit. People v. Currie, No. 06-008305-01 (Wayne Co. Cir. Ct. July 21, 2010, Jan. 21,
2011).2 Petitioner filed a delayed application for leave to appeal with the Michigan Court
of Appeals, which was denied “for failure to meet the burden of establishing entitlement
to relief under MCR 6.508(D).” People v. Currie, No. 305882 (Mich. Ct. App. Dec. 27,
2011). The Michigan Supreme Court similarly denied relief. People v. Currie, 493 Mich.
868 (2012) and denied reconsideration. People v. Currie, 493 Mich. 931 (2013).
Petitioner then filed the instant petition. He raises the following claims:
2

As to the claim that counsel was ineffective in failing to obtain suppression of
Petitioner’s police statement, the trial court also ruled that the claim was barred by
M.C.R. 6.508(d)(2), which precludes relief on a claim that was previously denied on
direct appeal.
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I.

His convictions for the carjacking and armed robbery of John
Feazell and the armed robbery of Dewayne Smith violate due
process and as such constituted an extreme malfunction of the
Michigan criminal justice system as there was insufficient evidence
as to each element of the charged offenses.

II.

He was denied the effective assistance of counsel when counsel’s
total performance is considered.

III.

His sentences were imposed contrary to the Fifth, Sixth, and
Fourteenth Amendments of the United States Constitution.

IV.

He is entitled to habeas relief because he was denied his right to
the effective assistance of counsel on his direct appeal.

The Court, on Petitioner’s motion, stayed and administratively closed the case to allow
him to return to the state courts to exhaust his sentencing claim based upon Alleyne v.
United States, 570 U.S. 99 (2013). (Doc. 13). Petitioner ultimately abandoned his
appeal of this claim in state court and moved to reopen this case and proceed on his
existing exhausted claims. The Court then reopened this case for further consideration.
(Doc. 19).
IV. Standard of Review
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 statute 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

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(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] 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)).

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The 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 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
15

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, 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).
16

Habeas review is also “limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
V. Discussion
A. Procedural Default
As an initial matter, Respondent contends that Petitioner’s insufficient evidence,
ineffective assistance of trial counsel, and sentencing claims that Petitioner raised in
his motion for relief from judgment (excluding the ineffective assistance of appellate
counsel claim) are barred by procedural default because he first raised those claims on
collateral review and the state courts denied relief under M.C.R. 6.508(D)(3).
Federal habeas relief may be precluded on a claim 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, 85-87 (1977); Couch v. Jabe, 951 F.2d 94, 96 (6th
Cir. 1991). The doctrine of procedural default applies 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. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005); Coleman v.
Mitchell, 244 F.3d 533, 539 (6th Cir. 2001).
Petitioner first presented his insufficient evidence, ineffective assistance of trial
counsel, and sentencing claims to the state courts in his motion for relief from
judgment. The Michigan Supreme Court and the Michigan Court of Appeals both
denied relief pursuant to M.C.R. 6.508(D), which 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
17

for the failure to raise such grounds previously and actual prejudice resulting therefrom.
Mich. Ct. R. 6.508(D)(3). The Court of Appeals for the Sixth Circuit has held that the
form orders used by the Michigan appellate courts to deny leave to appeal in this case
is unexplained because the 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" any unexplained orders of the Michigan
appellate courts to the trial court's decision to determine the basis for the denial of state
post-conviction relief.
Here, the trial court denied relief on procedural grounds by ruling that Petitioner
had not shown cause and actual prejudice under M.C.R. 6.508(D)(3) for his failure to
raise the claims on direct appeal of his convictions. See Currie, No. 06-008305-01, op.
at *9-10, suppl. order at *3. The state courts clearly relied upon a procedural default to
deny Petitioner relief on these claims. Accordingly, the claims are procedurally
defaulted.
However, because as will be explained, Petitioner’s defaulted claims lack merit,
the Court need not determine whether Petitioner has overcome his procedural default
by showing cause or prejudice or a miscarriage of justice. See Trest v. Cain, 522 U.S.
87, 89 (1997) (holding that procedural default is not a jurisdictional bar to review of a
habeas petition the merits); Hudson v. Jones, 351 F. 3d 212, 215 (6th Cir.2003)(stating
that “federal courts are not required to address a procedural-default issue before
deciding against the petitioner on the merits.”(citing Lambrix v. Singletary, 520 U.S.
518, 525 (1997)).
18

B. Merits
1. Insufficient Evidence
Petitioner first asserts that he is entitled to habeas relief because the
prosecution presented insufficient evidence to support his convictions for the carjacking
of Feazell and the armed robberies of Feazell and Smith. The Due Process Clause
“protects the accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged.” In re
Winship, 397 U.S. 358, 364 (1970). The question on a sufficiency of the evidence
claim is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
A federal habeas court views this standard through the framework of 28 U.S.C.
§ 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus, 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
19

evidence to convict . . . defeats a petitioner’s claim.” Matthews, 319 F.3d at 788-89.
Additionally, the Jackson standard must be applied “with explicit reference to the
substantive elements of the criminal offense as defined by state law.” Brown v.
Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n. 16).
Under Michigan law, the elements of carjacking are: (1) the defendant took a
motor vehicle from another person, (2) the defendant did so in the presence of that
person, a passenger, or any other person in lawful possession of the motor vehicle,
and (3) the defendant did so either by force or violence, by threat of force or violence,
or by putting the other person in fear. People v. Green, 228 Mich. App. 684, 694
(1998); MICH. COMP. LAWS § 750.529a(1). The elements of armed robbery are: (1) an
assault, (2) a felonious taking of property from the victim’s presence or person, (3)
while the defendant is armed with a weapon described in the statute. People v. Ford,
262 Mich. App. 443, 458(2004); People v. Johnson, 206 Mich. App. 122, 123 (1994);
MICH. COMP. LAWS § 750.529.
Identity is an element of every offense. People v. Yost, 278 Mich. App. 341, 356
(2008). The prosecution must prove beyond a reasonable doubt that the defendant
committed the charged offense. People v. Kern, 6 Mich. App. 406, 409 (1967). Direct
or circumstantial evidence and reasonable inferences arising from that evidence may
constitute satisfactory proof of the elements of an offense, People v. Jolly, 442 Mich.
458, 466 (1993), including the identity of the perpetrator, Kern, 6 Mich. App. at 409,
see also People v. Johnson, 146 Mich. App. 429, 434 (1985), and the defendant’s
intent or state of mind. People v. Dumas, 454 Mich. 390, 398 (1997); see also People
v. Nowack, 462 Mich. 392, 402-03 (2000).
20

Citing the Jackson standard, the trial court denied relief on this claim, explaining:
This Court disagrees with defendant’s assessment there was nothing
more than mere speculation to connect him to the robberies of Feazell
and Smith, there was sufficient evidence that Currie was an assailant in
this crime spree. Brion McConnell, a member of group participating in
this crime spree, stated that the men were looking for money that
morning. The evidence elucidated at trial placed Currie with McConnell,
Treadwell, and Grays in a Honda CRV in the neighborhood where and
when the crime spree occurred. In addition, Feazell testified that Currie
pointed a gun at him from the passenger side of the CRV during the
robbery and carjacking. Thus, this Court concludes that there was
sufficient evidence to convict Currie for his participation in this crime
spree for both carjacking and armed robbery.
Currie, No. 06-008305-01, suppl. order at *2.
This decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.3 The testimony at trial, an
reasonable inferences therefrom, provided sufficient evidence of Petitioner’s guilt of the
offenses. John Feazell testified that three men exited the vehicle to rob him and a
fourth man stayed in the car and pointed a gun out of the window. Feazell initially
testified that Petitioner was one of the men involved in the incident, although he later
said that he could not say if Petitioner was the fourth man in the back of the vehicle.
Dewayne Smith could not identify the perpetrators, but he described the vehicle and
the men involved in the incident, indicating that three men exited the vehicle while one
stayed inside the vehicle. The testimony from all of the surviving victims of the crime
spree showed that the incidents occurred within a certain area and within a short period
of time. Although Brion McConnell testified that blacked out and did not remember
what happened that night, he recalled driving to Grays’ house in the silver Honda CRV.
3

The Court would reach the same result under a de novo standard of review.
21

He also provided the police with a statement. In that statement, he told the police that
he was with Petitioner, Treadwell, and Grays on the night of the crime spree, that they
were armed, and that Petitioner and Treadwell wanted to get money. He provided a
sketch of where the men sat in their vehicle. Felicia Walker testified that Petitioner was
at her house with Grays, McConnell, and Treadwell on the night of the crime spree.
Additionally, Petitioner provided a statement to police in which he admitted participating
in the crime spree with the other men (although he did not discuss an active role in the
carjacking of Feazell or the armed robberies of Feazell and Smith). Petitioner also
admitted that the four men were armed and that they wanted money that night.
Such evidence, and reasonable inferences therefrom, was sufficient to establish
beyond a reasonable doubt that Petitioner participated in the carjacking of Feazell and
the armed robberies of Feazell and Smith, and that he was not merely present during
those incidents. Petitioner challenges the inferences the jury drew from the testimony
at trial and the jury’s credibility determinations. However, it is the job of the fact-finder
at trial, not a federal habeas court, to resolve such evidentiary conflicts. Cavazos, 565
U.S. at 7; Jackson, 443 U.S. at 326; Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir.
1983) (“A federal habeas corpus court faced with a record of historical facts that
supports conflicting inferences must presume - even if it does not affirmatively appear
in the record - that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.”). The jury’s verdict, and the trial court’s
decision on collateral review, were reasonable. Habeas relief is not warranted on this
claim.

22

2. Ineffective Assistance of Trial Counsel
Petitioner next asserts that he is entitled to habeas relief because trial counsel
was ineffective for failing to object to alleged prosecutorial misconduct, for failing to
object to alleged witness intimidation, for failing to object to alleged hearsay, and for
failing to properly argue for suppression of Petitioner’s police statement.
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to the effective assistance of trial counsel. To prevail on an
ineffective assistance of counsel claim, a habeas petitioner must show that counsel’s
performance was deficient and that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). As to the performance prong, a
petitioner must identify acts that were “outside the wide range of professionally
competent assistance” in order to prove deficient performance. Id. at 690. 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. The reviewing court’s scrutiny of counsel’s
performance is highly deferential. Id. at 689. To satisfy 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

23

functioning of the adversarial process that the [proceeding] cannot be relied on as
having produced a just result.” Id. at 686.
The Supreme Court has confirmed that a federal court’s consideration of an
ineffective assistance of counsel claim arising from state criminal proceedings is quite
limited on habeas review due to the deference accorded trial attorneys and state
appellate courts reviewing their performance. “The standards created by Strickland
and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is
‘doubly’ so.” Harrington, 562 U.S. at 105 (internal and end citations omitted). When §
2254(d) applies, the question is not whether counsel’s actions were reasonable.
Rather, the question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard. Id.
Petitioner first asserts that counsel was ineffective for failing to object to alleged
instances of prosecutorial misconduct, namely the prosecutor’s argument that there
was nothing wrong with the police lying to Petitioner about line-up identifications during
his interrogation, that Petitioner admitted making his police statement, and that a victim
had been dragged from his vehicle. The trial court denied relief on this claim finding
that the prosecutor’s comment on the police conduct did not deprive Petitioner of a fair
trial even if it was improper because his police statement was admissible and that the
prosecutor’s other comments were based upon reasonable inferences from the
evidence and any error would be harmless, such that counsel was not ineffective.
Currie, No. 06-008305-01, opin. at pp. 5-7.4
4

The trial court discussed the prosecutor’s conduct in the context of appellate
counsel’s effectiveness, but the same analysis holds true for trial counsel’s
24

The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.5 Counsel may have reasonably
decided not to object to the prosecutor’s statements because they were within the
bounds of acceptable conduct. The Supreme Court has stated that prosecutors must
"refrain from improper methods calculated to produce a wrongful conviction." Berger v.
United States, 295 U.S. 78, 88 (1935). To prevail on a claim of prosecutorial
misconduct, however, a habeas petitioner must demonstrate that the prosecutor's
remarks "so infected the trial with unfairness as to make the resulting conviction a
denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Darden
v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly); see also Parker v.
Matthews, 567 U.S. 37, 45 (2012) (confirming that Donnelly/Darden is the proper
standard).
In this case, the prosecutor’s arguments were not improper. The police officer’s
act of lying to Petitioner about the evidence in his case (the witness identifications)
does not rise to the level of coercive conduct that would, without more, invalidate his
Miranda waiver or his confession. See Illinois v. Perkins, 496 U.S. 292, 297 (1990)
(Miranda does not prohibit “mere strategic deception”); Frazier v. Cupp, 394 U.S. 731,
739 (1969) (police misrepresentation of facts, while relevant, was insufficient to render
an otherwise involuntary confession inadmissible); Ledbetter v. Edwards, 35 F.3d
1062, 1066-70 (6th Cir. 1994) (officer’s false statements that police had fingerprint and

effectiveness.
5

The Court would reach the same result under a de novo standard of review.
25

identification evidence implicating the suspect did not make his confession involuntary);
Terry v. Bock, 208 F. Supp. 2d 780, 790 (E.D. Mich. 2002) (determination that
petitioner had voluntarily waived his Miranda rights before making second statement
was not unreasonable even if officer falsely told him that co-defendant had made a
statement against him); see also Loza v. Mitchell, 766 F.3d 466, 480 (6th Cir. 2014)
(citing cases and ruling that state court’s decision that petitioner’s confession was
voluntary even though police falsely told him that they spoke to the victim, who was
unresponsive, was reasonable).
The prosecutor’s comment about the deceased victim being dragged from his
vehicle was based upon a reasonable inference from the evidence, including where the
body was found in relation to the location and condition of his vehicle. The same can
be said with respect to the prosecutor’s comment about Petitioner’s police statements.
While prosecutors may not misstate the evidence, United States v. Carter, 236 F.3d
777, 784 (6th Cir. 2001), or argue facts not in evidence, Abela v. Martin, 380 F.3d 915,
929 (6th Cir. 2004), they can make arguments based upon the evidence and have
“‘leeway to argue reasonable inferences from the evidence’ during closing arguments.”
United States v. Crosgrove, 637 F.3d 646, 664 (6th Cir. 2011) (quoting Byrd v. Collins,
209 F.3d 486, 535 (6th Cir. 2000)). Such was the case here. Petitioner fails to show
that the prosecutor engaged in misconduct that rendered his trial fundamentally unfair.
He thus fails to show that trial counsel erred and/or that he was prejudiced by counsel’s
conduct in this regard.
Petitioner next asserts that trial counsel was ineffective for failing to object to
alleged witness intimidation of Brion McConnell and Felicia Walker by the authorities
26

and to move to suppress their police statements. The state trial court denied relief on
this claim finding that Petitioner failed to establish that the statements were
inadmissible. Currie, No. 06-008305-01, opin. at pp. 8-9.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.6 Under federal and Michigan law,
a criminal defendant does not have standing to challenge the voluntariness of a
witness statement to the police because the privilege against self-incrimination of the
Fifth and Fourteenth Amendments is personal in nature and does not extend to third
parties called as witnesses at trial. United States v. Nobles, 422 U.S. 225, 234 (1975);
Berry v. Mintzes, 529 F. Supp. 1067, 1075 (E.D. Mich. 1981); People v. Jones, 115
Mich. App. 543, 548, 321 N.W.2d 723 (1982), aff'd 419 Mich. 577, 358 N.W.2d 837
(1984). While the Sixth Circuit once indicated that the use of a witness's coerced
testimony may violate a defendant's due process rights, see Bradford v. Johnson, 476
F.2d 66 (6th Cir. 1973) (state's knowing use of coercion testimony obtained by torture,
threats and abuse of witness violated due process), the Supreme Court has not so
ruled. See Samuel v. Frank, 526 F.3d 566, 569 (7th Cir. 2008) (sexual assault victim's
police statement was admissible even though the police told her she would not get her
baby back if she did not cooperate); see also Johnson v. Bell, 525 F.3d 466, 479-81
(6th Cir. 2008) (distinguishing Webb v. Texas, 409 U.S. 95 (1972), and Washington v.
Texas, 388 U.S. 14 (1967), and denying relief on a claim that authorities coerced a
witness into providing favorable prosecution testimony).

6

The Court would reach the same result under a de novo standard of review.
27

Moreover, when faced with possible witness coercion, courts have not relied
upon the exclusionary rule, but have instead considered the defendant’s ability to
cross-examine the witness about the alleged improper conduct as a matter of due
process. See Williams v. Woodford, 384 F.3d 567, 596 (9th Cir. 2004) (“There is no
due process violation when a witness who previously was illegally interrogated is
‘subject to cross-examination at trial through which the jury could assess the witness's
credibility.”); Wilcox v. Ford, 813 F.2d 1140, 1149 (11th Cir.1987) (defendant’s due
process rights are not violated when police act improperly in questioning a witness if
the conduct is “not so extreme that it violates a sense of fundamental fairness,
shocking to universal justice” and the defendant is able to cross-examine the witness
about the police conduct); Taylor v. Renico, 2008 WL 2745129, *11-12 (E.D. Mich.
2008) (finding Wilcox persuasive).
Given the foregoing case law, counsel may have reasonably determined that the
witnesses’ statements were admissible and that the best strategy was to challenge
their testimony on cross-examination and have them describe the allegedly improper
police conduct in order to case doubt on the police investigation and to create
sympathy for the defense. Counsel cannot be ineffective for failing to make a futile or
meritless 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), and the Court will not secondguess counsel’s sound trial strategy. Petitioner fails to establish that trial counsel erred
and/or that he was prejudiced by counsel’s conduct.

28

Petitioner also asserts that counsel was ineffective for failing to object to alleged
hearsay on confrontational grounds when the prosecutor introduced transcripts of
testimony from the investigative subpoena hearing in which Felicia Walker testified that
she heard Treadwell say that Grays shot someone and that she heard Grays say that
he was not the only one shooting, which included transcripts of the previous
prosecutor’s statements to Walker about her testimony. The state trial court denied
relief on this claim finding that Petitioner failed to show that the ruling on the admission
of the evidence was erroneous. Currie, No. 06-008305-01, opin. at pp. 7-8.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.7 First, Felicia Walker’s testimony
recounting her own prior investigate subpoena testimony is not hearsay. Under both
federal and Michigan law, a prior inconsistent statement that is made under oath is not
considered hearsay and can be used as substantive evidence. See United States v.
Ricketts, 317 F.3d 540, 544 (6th Cir. 2003) (citing FED R. EVID. 801(d)(1)(A)); People v.
Chavies, 234 Mich. App. 274, 281-84 (1999) (citing MICH. R. EVID. 801(d)(1)(A)).
Second, the use of such prior testimony did not violate the Confrontation Clause
because Walker testified at trial and was subject to cross-examination. See California
v. Green, 399 U.S. 149, 164 (1970).
Third, the admission of Walker’s statements recounting what she heard
Treadwell and Grays say did not violate the Confrontation Clause. The Confrontation
Clause guarantees a criminal defendant the right to confront the witnesses against him.

7

The Court would reach the same result under a de novo standard of review.
29

Davis v. Alaska, 415 U.S. 308, 315 (1973). 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. The Confrontation Clause is thus not implicated, and need not be
considered, when non-testimonial hearsay is at issue. Davis v. Washington, 547 U.S.
813, 823-26 (2006); 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”). Moreover, “because it is
premised on the Confrontation Clause, the Bruton rule (concerning the admissibility of
a non-testifying co-defendant’s statements) . . . does not apply to non-testimonial
statements.” United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009). Treadwell’s
and Gray’s comments, as recounted by Walker, were made to their cohorts and
acquaintances, not the authorities. Petitioner thus fails to show that the admission of
the disputed evidence violated his confrontation rights or was otherwise improper.
Consequently, he fails to show that counsel erred and/or that he was prejudiced by
counsel’s conduct. As discussed supra, counsel cannot be deemed ineffective for
failing to raise a futile or meritless objection.

30

Furthermore, even if the testimony was improper, Petitioner fails to show that he
was prejudiced by its admission. Walker’s statements did not implicate Petitioner in
any shooting. Walker testified that Treadwell said that Grays shot someone and that
Grays said that he was not the only one shooting. She/they did not say that Petitioner
shot anyone and the record shows that four men participated in the crime spree.
Petitioner fails to establish that counsel was ineffective under the Strickland standard.
Lastly, Petitioner asserts that counsel was ineffective for failing to properly argue
for suppression of Petitioner’s police statement. Petitioner complains that counsel
failed to argue that his police statement should have been suppressed because the
police lied to him about witness identifications in order to get him to waive his Miranda
rights, not merely to elicit his confession. The state trial court denied relief on this
claim finding that it lacked merit, and that counsel properly sought to suppress the
statement, but the court deemed it to be admissible. Currie, No. 06-008305-01, opin.
at pp. 8-9. The court further indicated that the issue of trial counsel’s effectiveness
concerning the suppression of Petitioner’s police statement was previously addressed
on direct appeal (in the context of counsel’s decision not to have Petitioner testify at the
Walker suppression hearing) and could not be re-litigated on collateral review. Id.,
suppl. order at pp. *1-2.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.8 The record reveals that trial
counsel moved to suppress Petitioner’s police statement on several grounds, that

8

The Court would reach the same result under a de novo standard of review.
31

counsel elicited testimony showing that the police had Petitioner in custody for an
extended period of time, that Petitioner refused to make a statement for several hours,
that the police lied to him about witness identifications, and that the police discussed
the case and encouraged him to tell his version of events before he waived his Miranda
rights and made a statement, and that counsel made a plausible argument for
suppression. Counsel’s conduct was reasonable, albeit not perfect, under the
circumstances.
Petitioner asserts that counsel should have argued that the police officer’s lie
about the witness identifications called for suppression of his police statement because
the voluntariness standard for waiving Miranda rights is different (i.e. more strict) than
for making a confession. In support of his argument, Petitioner cites language in
Miranda v. Arizona, 479 U.S. 436 (1966), and Moran v. Burbine, 475 U.S. 412 (1986).
It is well-settled that a defendant's waiver of Miranda rights must be both voluntary and
knowing. Moran, 475 U.S. at 421. The waiver must be “the product of a free and
deliberate choice rather than intimidation, coercion, or deception” and “made with a full
awareness of both the nature of the right being abandoned and the consequences of
the decision to abandon it.” Id; see also Miranda, 384 U.S. at 476.
However, “[t]he test for whether a Miranda waiver is voluntary, is essentially the
same as the test for whether a confession is voluntary.” United States v. Binford, 818
F.3d 261, 271 (6th Cir. 2016); see also Colorado v. Connelly, 479 U.S. 157, 169-70
(1986) (“There is obviously no reason to require more in the way of a ‘voluntariness’
inquiry in the Miranda waiver context than in the Fourteenth Amendment confession
context. The sole concern of the Fifth Amendment, on which Miranda was based, is
32

governmental coercion.”). In both contexts, a court considers the totality of the
circumstances, but coercive police activity is a “necessary predicate” to the finding that
the waiver or the confession is involuntary within the meaning of Due Process Clause.
Connelly, 479 U.S. at 167-68. A court must determine if: (1) the police activity was
objectively coercive; (2) the coercion in question was sufficient to overbear the
defendant's will; and (3) the alleged police misconduct was the crucial motivating factor
in the defendant's decision to make a statement. Binford, 818 F.3d at 271 (citing
United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999)); see also McCall v. Dutton,
863 F.2d 454, 459 (6th Cir. 1988).
“Not every deception by the police amounts to coercion or even impropriety.”
Hall v. Beckstrom, 563 F. App’x 338, 351 (6th Cir. 2014) (quoting Harris v. Hatfield, 21
F.3d 427, 1994 WL 95926, *3 (6th Cir. 1994)) (unpublished). As discussed supra,
Miranda does not prohibit “mere strategic deception,” Perkins, 496 U.S. at 297, and the
police officer’s act of lying to Petitioner about the evidence in his case (the witness
identifications) does not rise to the level of coercive conduct that would, without more,
invalidate his Miranda waiver or his confession. See Frazier, 394 U.S. at 739;
Ledbetter, 35 F.3d at 1066-70; Terry, 208 F. Supp. 2d at 790; see also Loza, 766 F.3d
at 480. “A defendant’s will is not overborne simply because he is led to believe that the
government’s knowledge of his guilt is greater than it actually is.” Ledbetter, 35 F.3d at
1070. Given such legal precedent, Petitioner fails to show that counsel erred by failing
to assert additional case law in support of the suppression motion and/or that the result
of the proceeding would have been different had counsel done so. Petitioner thus fails

33

to establish that counsel was ineffective under the Strickland standard with respect to
the suppression issue. Habeas relief is not warranted on this claim.
3. Sentencing Claim
Petitioner also asserts that he is entitled to habeas relief because the trial court
sentenced him in violation of his Fifth, Sixth, and Fourteenth Amendment rights.
Petitioner relies upon the United States Supreme Court’s decisions in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013).
A sentence imposed within the statutory limits is generally not subject to federal
habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F.
Supp. 2d 788, 797 (E.D. Mich. 1999). Claims which arise out of a trial court's
sentencing decision are not cognizable upon habeas review unless the petitioner can
show that the sentence imposed exceeded the statutory limits or is wholly unauthorized
by law. Lucey v. Lavigne, 185 F. Supp. 2d 741, 745 (E.D. Mich. 2001). Petitioner's
sentences are within the statutory maximums for his offenses and his third habitual
offender status. See MICH. COMP. LAWS §§ 750.83, 750.529a(1), 750.529, § 750.224f,
750.227b, 769.11. Consequently, these sentences are insulated from habeas review
absent a federal constitutional violation.
Here, the trial court denied relief on this claim on collateral review in 2011
(before Apprendi was decided) finding that Petitioner’s sentence was within the
sentencing guidelines and that his argument had no merit. Currie, No. 06-008305-01,
suppl. order at *2. According to Petitioner’s counsel, the trial court also denied relief on
the merits of Petitioner’s sentencing claim on collateral review (while this case was

34

stayed) but the parties have not supplemented the record before this Court with that
decision.
In any event, the state court’s denial of relief is neither contrary to Supreme
Court precedent that existed at that time nor an unreasonable application of then
existing federal law or the facts.9 In Apprendi, the Supreme Court held that, "[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Apprendi, 530 U .S. at 490. In Alleyne, the Supreme
Court extended Apprendi to mandatory minimum sentences, ruling that any fact that
increases a mandatory minimum sentence is an “element” of the offense that must be
submitted to the jury and proven beyond a reasonable doubt. Alleyne, 570 U.S. at
111-12.
In People v. Lockridge, 498 Mich. 358 (2015), the Michigan Supreme Court held
that, under Alleyne, the Michigan sentencing guidelines violate the Sixth Amendment
because the guidelines "require judicial fact-finding beyond facts admitted by the
defendant or found by the jury to score offense variables that mandatorily increase the
floor of the guidelines minimum sentence range." Lockridge, 870 N.W.2d at 506. The
court’s remedy was to make the guidelines advisory only. Id. at 520-21. Recently, the
Sixth Circuit issued a decision agreeing with Lockridge and ruling that Alleyne clearly
established that Michigan's pre-Lockridge mandatory minimum sentencing guidelines
scheme violated the Sixth Amendment. Robinson v. Woods, No. 16-2067, 901 F.3d

9

The Court would reach the same result under a de novo standard of review.
35

710, *716-17 (6th Cir. 2018). The Sixth Circuit explained that "[a]t bottom, Michigan's
sentencing regime violated Alleyne's prohibition on the use of judge-found facts to
increase mandatory minimum sentences." Id. at *716. This Court is bound by the
Sixth Circuit's decision.
Apprendi and Alleyne, however, are not applicable in this case. First, Petitioner
neither alleges nor establishes that his sentences exceed the statutory maximums.
Consequently, Apprendi has no bearing on his sentence. Second, Petitioner was
sentenced in 2007 and his direct appeals concluded in 2009, well before Alleyne was
decided in 2013. Alleyne was thus not clearly established law before Petitioner's
convictions and sentences became final. Id. at *714-15 (citing Supreme Court cases
which hold that Supreme Court decisions apply to pending criminal cases including
those which are on direct appeal or not yet final); see also Greene v. Fisher, 565 U.S.
34, 37 (2011). Alleyne is not retroactively applicable to cases on collateral review. See
In re Mazzio, 756 F.3d 487, 491 (6th Cir. 2014). And Lockridge is a state court
decision, which does not constitute clearly established federal law as required to obtain
federal habeas relief. See, e.g., Woods v. Donald, 135 S. Ct. at 1376. Petitioner is
therefore not entitled to relief on any claim based upon Apprendi or Alleyne.10
To the extent that Petitioner generally alleges that his sentences violate due
process, he is also not entitled to relief. Petitioner provides no facts or relevant legal
argument demonstrating why his sentences violate his due process rights. Conclusory

10

Moreover, Petitioner failed to exhaust his Alleyne claim in state court when he
abandoned his appeal during his second collateral review proceedings (while this case
was stayed). Thus, the claim is also unexhausted and procedurally defaulted.
36

allegations are insufficient to warrant federal habeas relief. See Cross v. Stovall, 238
F. App'x 32, 39-40 (6th Cir. 2007); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998)
(conclusory allegations of ineffective assistance of counsel do not justify habeas relief);
see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions and
conclusory allegations do not provide sufficient basis for an evidentiary hearing in
habeas proceedings). Habeas relief is not warranted on this claim.
4. Ineffective Assistance of Appellate Counsel
Lastly, Petitioner raises an independent claim that he is entitled to habeas relief
because appellate counsel was ineffective for failing to raise the collateral review
issues on direct appeal. Respondent contends that this claim lacks merit. The trial
court denied relief on this claim finding that the underlying collateral review claims
lacked merit such that appellate counsel was not deficient. Currie, No. 06-008305-01,
op. at *7-9, suppl. order at *2-3.
The state court's decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The ineffective assistance of
appellate counsel claims, while not themselves procedurally defaulted, nonetheless
lack merit. As discussed supra, Petitioner fails to establish that appellate counsel erred
by failing to raise the defaulted claims on direct appeal and the defaulted claims lack
merit. Appellate counsel cannot be deemed ineffective for failing to raise issues that
lack merit. Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (citing Greer v.
Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Habeas relief is not warranted on this
claim.
VI. Conclusion
37

For the reasons stated above, Petitioner is not entitled to habeas relief on his
claims. Accordingly, the petition is DENIED. Further, jurists of reason would not find
the Court’s ruling debatable. Accordingly, the Court DENIES a certificate of
appealability under 28 U.S.C. § 2253(c)(1)(a).11 See Slack v. McDaniel, 529 U.S. 473,
484-85 (2000).
This case is DISMISSED.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 3/21/2019
Detroit, Michigan

11

“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), 28
U.S.C. foll. § 2254.
38