Wise v. Berghuis
Filing
63
OPINION AND ORDER (1) DENYING 1 PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS - Signed by District Judge Paul D. Borman. (DTof)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANGELO WISE,
Petitioner,
v.
Case No. 2:13-cv-10360
Paul D. Borman
United States District Judge
MARY BERGHUIS,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY,
AND (3) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
Angelo Wise (“Petitioner”) filed this habeas case under 28 U.S.C. § 2254.
Petitioner was convicted after a jury trial in the Wayne Circuit Court of first-degree
felony-murder, MICH. COMP. LAWS § 750.316; armed robbery, MICH. COMP.
LAWS § 750.529; felon in possession of a firearm, MICH. COMP. LAWS §
750.224f; carrying a concealed weapon, MICH. COMP. LAWS § 750.227; and,
possession of a firearm during the commission of a felony, MICH. COMP. LAWS
§ 750.227b. Petitioner was sentenced to life imprisonment for the first-degree
murder conviction and lesser terms for his other offenses.
Petitioner raises thirteen claims in his habeas petition: (1) the prosecution
failed to exercise due diligence in locating a witness; (2) Petitioner was denied the
effective assistance of trial counsel; (3) the court erroneously instructed the jury; (4)
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the prosecutor committed misconduct; (5) appellate counsel was ineffective for
failing to request an evidentiary hearing; (6) appellate counsel was ineffective for
failing to raise claims on direct appeal; (7) the jury’s oath was defective; (8)
Petitioner’s sentences for carrying a concealed weapon and felon in possession of a
firearm violate double jeopardy; (9) insufficient evidence was presented at trial to
instruct the jury on the lesser offense of second-degree murder; (10) insufficient
evidence was presented to sustain Petitioner’s first-degree murder conviction; (11)
Petitioner’s jail credit was incorrectly calculated; (12) the prosecutor withheld
exculpatory evidence; and, (13) the prosecutor failed to correct false testimony.
Because all of Petitioner’s claims are without merit or barred by his state court
procedural defaults, the Court will deny the petition. The Court will also deny a
certificate of appealability and deny leave to appeal in forma pauperis.
I. BACKGROUND
The Michigan Court of Appeals summarized the underlying facts:
In the early morning hours of September 9, 2007, defendant went
to an abandoned house in the City of Detroit. Matthew McMullen and
Cordell Coleman had been selling narcotics out of the home for some
time, and defendant apparently purchased narcotics from McMullen.
Defendant, whom McMullen was familiar with from prior drug
transactions and because he resided only a few doors from McMullen’s
mother, returned to the home a second time that morning with a gun
and robbed McMullen and Coleman of their money, drugs, and other
items. During the robbery, defendant shot and killed Coleman.
People v. Wise, No. 286957, 2010 WL 364190, at *1 (Mich. Ct. App. Feb. 2, 2010).
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At Petitioner’s jury trial, Matthew McMullen testified that he and Cordell
Coleman sold drugs from the second story flat of an abandoned house in Detroit.
McMullen knew Petitioner because he was a regular customer and lived in the
neighborhood. On the date of the incident, Petitioner purchased rock cocaine from
McMullen outside of the abandoned house. Petitioner returned later in the day to
make another drug purchase. Petitioner was short one dollar to buy a five-dollar
rock, but McMullen accepted the payment along with a gold chain for five more
rocks.
Petitioner asked McMullen if he would be interested in buying a gun.
McMullen said he was, and Petitioner told him that he would return with one.
Approximately forty-five minutes later, Petitioner knocked on the door again.
McMullen and Coleman went downstairs together to let Petitioner inside. Petitioner
told McMullen that he was unable to get the gun, but he wanted to buy another rock.
As McMullen and Coleman started to head upstairs to get another rock of
cocaine, Petitioner pulled out a rusty semi-automatic handgun. He pointed the gun
at Coleman and told McMullen to give him his money or he would shoot Coleman.
McMullen hesitated, and Petitioner started to count down to show that he was
serious. McMullen and Coleman then placed money, drugs, and Petitioner’s gold
chain inside a plastic bag that Petitioner gave them. Petitioner retrieved the bag and
fired the handgun as he ran out of the house.
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McMullen and Coleman ran through the house and out of the back door. They
were heading to McMullen’s mother’s house when Coleman told McMullen that he
had been shot. McMullen saw blood coming from Coleman’s chest. He helped
Coleman to his mother’s house, but Coleman collapsed in the front yard before they
got inside. McMullen called 9-1-1.
As McMullen waited for help to arrive, Freddie Simmons, a person McMullen
knew from the neighborhood, happened to drive by in his truck. McMullen waved
him down, and Simmons agreed to drive them to the hospital. The truck ran out of
gas, however, near the Belle Isle Bridge. McMullen told Simmons to get the police
officers who were directing traffic near the bridge, but Simmons ran the other way.
McMullen ran to the officers, told them about the shooting, and asked for help. The
officers called an ambulance as McMullen ran back to Coleman, who was no longer
responsive. McMullen tried to perform CPR until the ambulance arrived. Coleman
was later declared dead at the hospital.
McMullen told the officers who arrived at the vehicle that Petitioner, who he
knew by the nickname “Dee,” shot Coleman. He told them where Petitioner lived
and described the house. McMullen subsequently identified Petitioner’s picture in a
photographic array at the police station.
Detroit Police Officer Eva Wyche testified that on the night in question she
was directing traffic at the Belle Isle Bridge when she was approached by McMullen,
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who was crying, yelling, and hollering about his friend being shot. Officer Shannon
Salisbury testified that he spoke with McMullen by the Bridge for about an hour.
McMullen described the shooter, and he gave him the shooter’s nickname and a
description and location of Petitioner’s house. Officer Ronald Hopp located
Petitioner’s house based on the information given, and Petitioner was subsequently
identified as the suspected shooter. Other police officers investigated the location of
the shooting, where they identified a blood trail leading out of the back of the house.
A bullet casing was found during a subsequent search near the front door.
Detroit Police Officer Lance Sullivan interviewed Petitioner after his arrest.
Petitioner told Sullivan that earlier on date of the incident he sold his gold chain to
McMullen. He stated that he later sold a handgun to McMullen, and he was told to
return later to collect payment for it. When Petitioner returned to the house,
McMullen still did not have the money. Petitioner claimed that McMullen then
pulled the gun on him, and during the resulting struggle for control of the gun
McMullen accidentally shot Coleman. Petitioner told Sullivan that he then ran from
the scene.
Based on this evidence, the jury found Petitioner guilty of the offenses
indicated above.
Following sentencing, Petitioner filed a claim of appeal. His brief on appeal
filed by his appellate counsel raised a single claim:
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I. Appellant is entitled to a new trial where the trial court erred in
finding due diligence as to Mr. Simmons, an endorsed witness.
Petitioner also filed a pro se supplemental brief that raised four additional
claims:
I. Trial counsel failed to perform to an objective standard and provide
effective assistance during trial preparation and investigation and
during the trial.
II. The trial court erred by not instructing the jury regarding selfdefense, manslaughter, or lost evidence.
III. The prosecutor engaged in multiple instances of prejudicial
misconduct.
IV. Appellant was denied the effective assistance of appellate counsel
for failing to request an evidentiary hearing or timely provide
transcripts for appeal.
The Michigan Court of Appeals affirmed in an unpublished opinion. People
v. Wise, No. 286957, 2010 WL 364190 (Mich. Ct. App. Feb. 2, 2010).
Petitioner subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the same claims. The Michigan Supreme Court
denied the application by form order. People v. Wise, 783 N.W.2d 344 (Mich. 2010)
(Table).
Petitioner then returned to the trial court and filed his first motion for relief
from judgment, raising the following six new claims:
I. The jury was given a defective jury oath, mandating reversal.
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II. Defendant was denied the effective assistance of appellate counsel
by his counsel’s failure to raise his double jeopardy issues.
III. Defendant’s convictions of both CCW and felon in possession and
his convictions of both felony murder and armed robbery violated
double jeopardy.
IV. There was insufficient evidence of malice element of second-degree
murder.
V. There was insufficient evidence of malice element of felony murder.
VI. Defendant was improperly denied jail credit to his life sentence, in
effect giving him an unlawful sentence of life plus 239 days.
The trial court denied the motion for relief from judgment, rejecting
Petitioner’s new claims because Petitioner did not show that the failure to raise them
on direct appeal resulted in “actual prejudice” as required by Michigan Court Rule
6.508(D)(3)(b). (ECF No. 11-10, at 5.) Petitioner appealed this order to the Michigan
Court of Appeals, but it was denied for “failure to establish entitlement to relief
under Michigan Court Rule 6.508(D).” (ECF No. 12-3.) Petitioner applied for leave
to appeal this decision in the Michigan Supreme Court. That court also denied relief
with citation to Rule 6.508(D). (ECF No. 12-4.)
Petitioner then commenced the instant action, filing his petition for writ of
habeas corpus that raised what now form his first eleven habeas claims. (ECF No.
1.) Petitioner thereafter asserted that he discovered new evidence to support a claim
that the prosecutor suppressed exculpatory evidence and failed to correct false
testimony regarding that evidence. At trial the prosecutor and police believed that a
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bullet fragment had been lost. Petitioner found evidence that it had, in fact, been sent
to and tested by the Michigan State Police with inconclusive results. Petitioner
moved to stay the petition so that he could attempt to present these claims to the state
courts. (ECF No. 21.) The Court granted the motion. (ECF No. 22.)
Petitioner then filed two additional motions for relief from judgment in the
trial court. (ECF Nos. 52-4, 52-5.) The motions raised what now form Petitioner’s
twelfth and thirteenth habeas claims. The trial court again denied post-conviction
relief with citation to Rule 6.508(D)(3)(b). (ECF No. 52-8.) Petitioner applied for
leave to appeal in the Michigan Court of Appeals, but that court denied relief because
he “failed to establish that the trial court erred in denying his motion for relief from
judgment.” (ECF No. 52-9, at 1.) Petitioner appealed to the Michigan Supreme
Court, but the court denied relief on November 29, 2017, because Petitioner “failed
to meet the burden of establishing entitlement to relief under Mich. Ct. R. 6.508(D).”
(ECF No. 52-10, at 1.)
Petitioner filed a motion to reopen this case along with his amended petition
on February 12, 2018. (ECF Nos. 36, 37.) The Court issued an order reopening the
case (ECF No. 46), the parties filed additional briefing, and the case is now ready
for decision.
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II. STANDARD OF REVIEW
28 U.S.C. § 2254(d) curtails federal habeas review of state convictions for
claims adjudicated on the merits by state courts. A habeas petitioner must generally
demonstrate that the state court adjudication was “contrary to” or “involved an
unreasonable application of” clearly established Supreme Court law. Id. A decision
is “contrary to” clearly established Supreme Court law if the state court arrives at a
conclusion opposite to that reached by the Supreme Court on a question of law or if
the state court decides a case differently than the Supreme Court has on a set of
materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
An “unreasonable application” occurs when “a state court decision unreasonably
applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409.
Under this standard, a federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Id. at
410-11. “[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)).
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III. ANALYSIS
A. Failure to Locate Witness
Petitioner’s first claim asserts that the prosecutor failed to locate and produce
a witness for trial. The Michigan Court of Appeals addressed this claim during
Petitioner’s direct appeal and rejected it as follows:
Before trial, Simmons was apparently in jail and the prosecutor
made arrangements to have Simmons brought to court to testify.
However, prior to jury selection, the prosecution informed the trial
court that Simmons was no longer in custody and that several attempts
to serve a subpoena had been unsuccessful. The trial judge thus agreed
to sign a witness detainer order, and Simmons was located and brought
to court by the police. Simmons was not called to testify that first day,
and though Simmons was ordered to return the following day, he failed
to appear.
After the trial was adjourned on the second day, Officer Sullivan,
with the assistance of witness Matthew McMullen, spent the next
several hours, until 9:00 p.m., actively trying to locate Simmons.
Additionally, both a special unit based out of the Detroit Police
Department’s Northeastern District and the Fugitive Apprehension
Team attempted to locate Simmons. All of these attempts were
unsuccessful. Even a cell phone number that the police got from
Simmons’s mother did not prove helpful when the person answering it
hung up once the police caller identified himself.
Defendant failed to prove that the trial court’s determination that
the prosecution exercised due diligence was erroneous, let alone how it
would have been a “plain or obvious” error. Defendant maintains that
the prosecution should have done more to secure the presence and
testimony of Simmons. However, due diligence is an attempt to do
everything reasonable, not everything possible, in obtaining the
presence of a witness. People v. Cummings, 171 Mich. App. 577, 585
(1988). As such, defendant failed to prove how the police efforts on
behalf of the prosecution were plainly unreasonable.
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Wise, 2010 WL 364190, at *1-2.
This decision did not contravene clearly established Supreme Court law.
Under Michigan law, a prosecutor is required to list all witnesses he intends to call
at trial. MICH. COMP. LAWS § 767.40a(1)-(2). The prosecutor must then exercise due
diligence to produce those individuals. MICH. COMP. LAWS § 767.40a(3). Federal
courts, however, do not enforce state laws in a habeas corpus proceeding. Lewis v.
Jeffers, 497 U.S. 764, 780 (1990). Instead, “a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United
States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). And federal law does not require
the prosecutor to produce all known witnesses at trial. See Collier v. Lafler, 419 F.
App’x 555, 559 (6th Cir. 2011); Johnson v. Hofbauer, 159 F. Supp. 2d 582, 601
(E.D. Mich. 2001). Accordingly, the prosecutor’s alleged lack of diligence in
producing Simmons at trial did not implicate Petitioner’s federal rights.
Nor does Petitioner’s reliance on a concept as broad as “due process” suffice
to state a federal habeas claim. Carey v. Musladin, 549 U.S. 70 (2006). “[I]f there is
no ‘clearly established Federal law, as determined by the Supreme Court’ that
supports a habeas petitioner’s legal argument, the argument must fail.” Miskel v.
Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (citations omitted).
It is worth noting that Petitioner does not allege with any specificity how
Simmons would have benefitted his defense. The record indicates that Simmons’
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involvement with the case started when McMullen asked for help transporting
Coleman to the hospital. There is no indication that he would have testified favorably
for the defense. In fact, Petitioner attaches Simmons’ police statement to his
pleadings. Simmons told police that McMullen told him that a guy from the
neighborhood shot Coleman. (ECF No. 38 Page.ID.2011.) McMullen’s statement to
Coleman, made close in time after the shooting, corroborated McMullen’s later
testimony and contradicted Petitioner’s statement that McMullen accidentally shot
Coleman. It was a fortunate turn of events for Petitioner that Simmons avoided
testifying at trial.
Petitioner’s first claim is without merit.
B. Ineffective Assistance of Counsel
Petitioner’s second claim, which he raised in the state courts on direct appeal
in his supplemental pro se brief, asserts that he was denied the effective assistance
of trial counsel for several reasons. His related fifth claim asserts that his appellate
counsel was ineffective for failing to seek an evidentiary hearing on these claims.
After reciting the familiar standard governing ineffective assistance of counsel
claims, the Michigan Court of Appeals reviewed each allegation and rejected them
on the merits:
Defendant first argues that his trial counsel was ineffective when
she failed to properly cross-examine or impeach the medical
examiner’s testimony, which supposedly differed from the examiner’s
written report. The argument is meritless. Although not introduced at
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trial, the medical examiner’s report was admitted at the preliminary
examination. The salient portion described the bullet’s path into the
victim, Cordell Coleman, as being “rightward, upward, [and]
backward.” Dr. Boguslaw Pietak testified regarding the bullet’s
trajectory as follows:
A. [I]n this particular case the wound track was from front
to back, left to right and backward....
***
Q. Okay. And in an upward fashion –
[Defense Counsel:] Objection, your Honor.
[Prosecutor:] It wasn’t upward[?]
[Defense Counsel:] This Doctor didn’t testify to upward.
He said front to back, left to right, backwards. Unless I
missed it.
Q. Did you?
A. I believe I said upward.
Q. I thought so. Okay. Well, let me ask you, was there an
upward – in this gunshot wound, the track, you described
it in an upward direction?
A. Yes, I did.
Q. And what is it made from?
A. It’s made from the point of the entrance wound to the
point where the bullet was recovered. It was higher up in
the body.
It is clear from the record that the trial testimony did not differ
from the contents of the report. At both proceedings, the path of the
bullet was ultimately described as rightward, backward, and upward.
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Dr. Pietak removed any confusion or misunderstanding at trial as to the
bullet’s path by testifying that he thought he had said “upward.” Thus,
defendant fails to show how there was any inconsistency upon which
to impeach. Furthermore, defense counsel actually did, to some extent,
successfully impeach the doctor’s testimony by getting the doctor to
admit that he could not provide an actual angle of that upward path.
Accordingly, defendant failed to show how his trial counsel failed to
perform at an objective standard of reasonableness under prevailing
professional norms.
Defendant next argues in his Standard 4 brief that his trial
counsel failed to have the medical examiner’s report admitted into
evidence. This argument is meritless as well. Decisions regarding what
evidence to present are matters of trial strategy that will not be secondguessed by this Court. People v. Rockey, 237 Mich. App. 74, 76 (1999).
Moreover, for the same reasons outlined above, the report did not differ
from Dr. Pietak’s trial testimony; thus, it would not have had the
impeaching impact that defendant appears to desire. Accordingly, trial
counsel was not ineffective in failing to get the contents of the report
before the jury.
Third, defendant argues that his trial counsel was ineffective
when she failed to object to numerous instances of prosecutorial
misconduct. Defendant’s argument can be summarized as such:
McMullen was lying on the witness stand when he described defendant
as shooting Coleman; thus, since the prosecutor was actively using and
relying on this perjured testimony, the prosecutor engaged in
misconduct. Prosecutors may not knowingly use false testimony, and
prosecutors have a duty to correct false evidence. People v. Lester, 232
Mich. App. 262, 276 (1998). However, there is nothing in the record to
suggest that McMullen lied on the witness stand and, even if he was
lying, that the prosecution knew the testimony was false. Moreover, the
fact that McMullen had not been entirely truthful when first questioned
by police was addressed at length during the trial. Therefore, counsel’s
objection would have been futile, and counsel’s failure to make a
meritless objection does not constitute ineffective assistance of counsel.
People v. Matuszak, 263 Mich. App. 42, 58 (2004).
Fourth, defendant argues that he was deprived of the effective
assistance of trial counsel when his trial counsel failed to conduct a
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thorough investigation and failed to interview Simmons and McMullen.
There is nothing in the lower court record to suggest what trial counsel
would have uncovered if a different investigation had taken place.
Similarly, there is nothing in the lower court record to suggest what an
interview with McMullen or Simmons would have yielded. Therefore,
this argument fails.
Fifth, defendant argues that his trial counsel should have called
defense witnesses. Specifically, defendant claims that Angela Smith
and Tracy Payne were two witnesses who would have established that
at 3:00 a.m., the alleged time of the shooting, defendant was with them.
Defendant’s argument fails for several reasons. First, there is nothing
in the record to support defendant’s claim of how these witnesses would
have testified. Second, counsel’s decisions regarding calling or
questioning witnesses are presumed to be matters of trial strategy.
Rockey, supra at 76. The prosecution produced a statement that
defendant made to the police where defendant admitted to getting into
a struggle with McMullen over the gun when it accidentally discharged,
shooting Coleman. It is simple enough to understand why defense
counsel would not want to call witnesses that would completely
undermine the description of the event that defendant already told the
police.
Sixth, defendant argues that trial counsel was ineffective by
failing to investigate facts surrounding the evidence classification
process of the now-closed Detroit Police Firearms Unit (DPFU). Once
again, there is nothing in the record to suggest what such an
investigation would have uncovered; therefore, defendant’s claim fails.
Moreover, there were no testing results from the DPFU that were
admitted into evidence. All that was stated was that the 0.32 caliber
casing found at the scene was consistent with being manufactured by a
company in Brazil. The same report indicated that submission of a
suspected weapon would be necessary for possible association with the
casing. Thus, even if there were some inherent or systemic flaws with
the evidence classification process used by the DPFU, they would have
been irrelevant to this case since no meaningful testing results were
derived from any DPFU testing.
***
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Appellate counsel may legitimately ignore weak or frivolous
arguments in order to focus on genuine arguments that are more likely
to succeed. See id. at 186-187. Here, the issues that defendant wanted
raised, as noted in his Standard 4 brief and addressed on appeal, supra,
Parts B-D, were not meritorious. There was little legal principle behind
all of defendant’s Standard 4 issues, including the ineffective assistance
of trial counsel claim. As such, it is clear that appellate counsel’s
decision to not pursue these other claims, including not moving for a
Ginther hearing, did not fall below an objective standard of
reasonableness.
Furthermore, defendant was not prejudiced by appellate
counsel’s failure to pursue these other claims. Even if appellate counsel
did raise these other claims, the efforts would have been unsuccessful.
In other words, failing to follow up on defendant’s Standard 4 claims,
even if characterized as falling below an objective standard of
reasonableness, did not affect the disposition of defendant’s
convictions. Defendant also mentions in his amended Standard 4 brief
that appellate counsel should have assisted him in procuring the lower
court’s transcripts. However, from defendant’s Standard 4 brief, it
appears that the transcripts were eventually provided since excerpts
were attached to his brief. As a result, defendant cannot prove that he
suffered any prejudice. Therefore, defendant’s claim of ineffective
appellate counsel assistance fails.
Wise, 2010 WL 364190, at *2-5, 8-9 (footnote omitted).
Clearly established Supreme Court law sets forth a two-part test for ineffective
assistance of counsel claims. First, the defendant must demonstrate that his counsel’s
performance was so deficient that the attorney was not functioning as “counsel”
guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687
(1984). The defendant must overcome a strong presumption that counsel’s behavior
fell within the wide range of reasonable professional assistance. 466 U.S. at 689.
Second, the defendant must show that his counsel’s deficient performance
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prejudiced his defense. To do so, he must demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” 466 U.S. at 694. A federal habeas court employs a
“doubly deferential” standard of review that gives both the state court and the
defense attorney the benefit of the doubt. Burt v. Titlow, 571 U.S. 12, 15 (2013).
The state court resolution of Petitioner’s claims reasonably applied the
Strickland standard. Petitioner’s first two allegations concern his counsel’s failure
to challenge the testimony of the medical examiner, and her failure to seek admission
of the autopsy report. Stated bluntly, there was nothing to be gained from further
cross-examination of the medical examiner or by admission of the report. The bullet
entered the front of the victim, travelled rightward, went from front to back, and
moved in an upward direction in the body. The general trajectory through the body
is described in the report as well as the testimony. While this information was
consistent with McMullen’s description of the shooting, it was also not inconsistent
with Petitioner’s statement to police that the victim was seated on the couch when
he was accidentally shot.
Petitioner indicates that an upward trajectory was more in line with
McMullen’s description of Coleman being higher on a flight of stairs from the
shooter, and therefore it needed to be challenged. But the medical examiner
conceded on cross-examination that he could not determine the position of the
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victim’s body relative to the shooter based on the wound track. (ECF No. 11-5, at
169.) Petitioner does not indicate how admission of the report or further crossexamination would have undermined in any meaningful way the prosecutor’s theory
of the case or supported his own. He has made no showing that the medical examiner
would have backed-off his upward trajectory description if pressed to do so. The
allegation was reasonably rejected by the state court.
Petitioner next asserts that his counsel failed to object to the prosecutor’s
misconduct of allowing McMullen to testify untruthfully regarding the shooting.
Prosecutors “may not knowingly present false evidence.” United States v. Fields,
763 F.3d 443, 462 (6th Cir. 2014) (citing Miller v. Pate, 386 U.S. 1 (1967)). To
prove that the prosecutor’s presentation or failure to correct false testimony violated
the Due Process Clause, a habeas petitioner must show that (1) the statement was
actually and “indisputably” false; (2) the prosecution knew it was false; and (3) the
statement was material. Rosencrantz v. Lafler, 568 F.3d 577, 583-84 (6th Cir. 2009);
Monea v. United States, 914 F.3d 414, 421 (6th Cir. 2019).
Petitioner has not satisfied this standard. The unsurprising fact that McMullen
omitted from his statement to police that he was dealing drugs out of an abandoned
house was nevertheless presented during his testimony, and he explained the obvious
reason for the omission. That omission from his police statement did not render his
trial testimony false. McMullen’s account of the incident was not contradicted by
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any of the physical evidence nor by any other indisputable fact. Petitioner points to
discrepancies and inconsistencies in McMullen’s description of the shooting. The
Court, however, is satisfied that this is more a case of imprecision in the description
of a startling event. Imprecision and equivocation in such circumstances do not
indisputably indicate falsity. And, in fact, defense counsel freely cross-examined
McMullen on any perceived inconsistencies. There is therefore no basis on which to
conclude that McMullen’s testimony was false or that the prosecutor knew it to be
false. Any objection would have been futile, and McMullen’s description of the
incident was instead competently handled through cross-examination.
Petitioner next asserts that his counsel was ineffective for failing to interview
Simmons and McMullen prior to trial. But Petitioner completely fails to specify what
facts a further or different pretrial investigation would have uncovered. He has not
pointed with particularity to anything that counsel could have done prior to trial to
alter McMullen’s testimony. Nor is it clear how counsel’s pretrial actions would
have altered Simmons’ decision to avoid testifying. Conclusory allegations of
ineffective assistance of trial counsel such as these do not state valid claims for
federal habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998).
Petitioner’s allegation that his counsel should have called an alibi witness was
also reasonably rejected by the state court. Petitioner admitted to police that he was
present at the scene of the shooting but that the victim was accidentally shot when
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McMullen and he struggled over the gun. Counsel’s decision to not present an alibi
defense in light of Petitioner’s statement placing himself at the scene was obviously
reasonable.
Petitioner’s allegation that his counsel should have brought up the well
documented problems with the firearm unit at the Detroit Police Department also
misses the mark. There was no identification between a firearm and the casing found
at the scene. In fact, there was no dispute as to which firearm fired the fatal shot. The
only question was whether it was Petitioner or McMullen that fired it. The answer
to that question was not aided by anything coming from the firearm unit. Defense
counsel did not perform deficiently by avoiding this red herring.
Because all of Petitioner’s challenges to his trial counsel are without merit, it
follows that his appellate counsel was not ineffective for failing to raise the
challenges on direct appeal, or by failing to seek an evidentiary hearing. See
Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (citing Greer v. Mitchell,
264 F.3d 663, 676 (6th Cir. 2001)).
Accordingly, Petitioner’s second and fifth claims are without merit.
C. Jury Instructions
Petitioner’s third claim asserts that the trial court erroneously instructed the
jury in three ways: (1) the trial court should have instructed the jury on the lesser
offense of manslaughter; (2) the jury should have been instructed on self-defense;
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and, (3) the court failed to give a “missing evidence” instruction with respect to the
bullet fragment recovered from the victim’s body that was thought to be lost.
After finding that Petitioner was not entitled to the lesser-offense instruction,
the Michigan Court of Appeals rejected the other two grounds for this claim as
follows:
[N]o error was introduced when a self-defense instruction was
not provided. Self-defense necessarily requires that a defendant acted
intentionally, but the circumstances justified his actions. People v.
Heflin, 434 Mich. 482, 503 (1990). The only two views of the evidence
have defendant either (1) intentionally killing Coleman during a
robbery without any justification or (2) participating in a struggle where
Coleman was unintentionally killed. Since no reasonable view of the
evidence would support a justified, intentional killing, there was no
error in failing to provide the self-defense instruction.
Defendant also maintains that he should have been given a “lost
evidence” instruction. He does not specify what instruction he believes
he should have been given. Presumably, he is referencing the
instruction that “where the prosecution fails to make reasonable efforts
to preserve material evidence, the jury may infer that the evidence
would have been favorable to defendant.” People v. Davis, 199 Mich.
App. 502, 514-515 (1993). However, this instruction is only applicable
when the prosecution acted in bad faith in failing to produce the
evidence. Id. at 515. Here, defendant offers nothing in his brief to
support a finding of bad faith on the part of the prosecution or the police
with respect to the missing bullet. The bullet was recovered during the
autopsy and was lost sometime afterward. Without any proof of bad
faith, there was no error in failing to provide this instruction.
Wise, 2010 WL 364190, at *5-6.
Trial judges have a duty to give instructions that sufficiently explain the law.
Kelly v. South Carolina, 534 U.S. 246, 256 (2002). But not every deficiency in jury
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instructions rises to the level of a constitutional violation. Middleton v. McNeil, 541
U.S. 433, 437 (2004). “[T]o warrant habeas relief, jury instructions must not only
have been erroneous, but also, taken as a whole, so infirm that they rendered the
entire trial fundamentally unfair.” Scott v. Mitchell, 209 F.3d 854, 882 (6th Cir.
2000). In making that determination, the Court must bear in mind that the Supreme
Court has defined the category of infractions that violate fundamental fairness very
narrowly. Dowling v. United States, 493 U.S. 342, 352 (1990). “An omission, or an
incomplete instruction, is less likely to be prejudicial than a misstatement of the
law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
Petitioner’s first allegation is that the jury should have been instructed on the
lesser offense of manslaughter. This claim cannot be supported by clearly
established Supreme Court law. “The Constitution does not require a lesser-included
offense instruction in non-capital cases.” Campbell v. Coyle, 260 F.3d 531, 541 (6th
Cir. 2001). Accordingly, the failure of a state court to instruct on a lesser included
or cognate offense in non-capital cases is generally “not an error of such magnitude
to be cognizable in federal habeas corpus review.” Bagby v. Sowders, 894 F.2d 792,
797 (6th Cir. 1990) (en banc); see also Scott v. Elo, 302 F.3d 598, 606 (6th Cir.
2002). This allegation of instructional error is therefore without merit.
Petitioner next asserts that the jury should have been instructed on selfdefense. No such instruction was warranted by the evidence. There were two
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versions of the incident presented to the jury. The prosecutor’s version presented a
classic robbery-murder. Petitioner’s statement, on the other hand, did involve a
struggle over the gun, but he said that it was McMullen who accidentally shot
Coleman as the two men struggled for control of the gun. (ECF No. 11-6, at 165166, 181.) There was no evidence presented that Petitioner intentionally shot
Coleman because he was defending himself. Given the evidence presented at trial,
the state court decision was reasonable.
Finally, Petitioner asserts the jury should have been given a missing evidence
instruction, directing it to presume that evidence lost by the police would have been
favorable to the defense. The evidence in question was the bullet fragment recovered
from the victim’s body, thought to have been lost sometime after the autopsy. As the
Court of Appeals found, under state law, such an instruction would have been
warranted only if the prosecutor failed to make reasonable efforts to preserve the
evidence – a showing Petitioner fails to make. But setting that aside, the bullet
fragment was not relevant to the prosecutor’s case nor to the theory of defense. Either
Petitioner committed a classic robbery-murder or Coleman was accidentally shot.
The competing theories did not require the recovery or testing of the bullet or casing.
The failure to instruct the jury on missing evidence therefore did not render
Petitioner’s trial fundamentally unfair.
Petitioner’s third claim is without merit.
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D. Prosecutorial Misconduct
Petitioner’s fourth claim asserts that the prosecutor committed various acts of
misconduct at trial. He claims that the prosecutor wrongfully: (1) informed the jury
that Petitioner pled not guilty during his opening statement; (2) manipulated the
medical examiner’s testimony; (3) elicited perjured testimony by McMullen; (4)
misleadingly combined the two sets of photographs taken of the scene; and, (5)
substituted one officer’s testimony for another who was named on the witness list.
The Michigan Court of Appeals rejected the claim on the merits as follows:
Defendant first argues that the prosecutor made improper
remarks during opening statement when the prosecutor said,
“[Defendant] has plead [sic] not guilty to those crimes.” Defendant
maintains that this statement went beyond the scope of permissible
opening statements because it was not confined to the issues in the case,
such as what evidence the prosecutor believes will be admitted during
the trial. A prosecutor’s remarks are evaluated in the context of the
evidence presented and in light of defense arguments. Rodriguez, supra
at 30. However, defendant fails to show how this statement deprived
him of a fair trial. Aside from the fact that the statement was undeniably
true, the prosecutor was merely explaining the criminal judicial process
to the jury, i.e. that juries settle disputes. He then commented that
defendant was charged with certain crimes, and defendant denied he
was guilty. In the prosecutor’s own words, “Therefore, there’s a
dispute.” There was no prosecutorial misconduct in this statement, let
alone any conduct that deprived defendant of a fair trial.
Defendant next argues that the prosecutor misled the jury when
he mischaracterized the testimony of Dr. Pietak. Specifically, defendant
claims that the prosecutor “boxed the witness” into testifying that the
trajectory of the bullet had an upward component. This argument lacks
merit as well. It is well established that “prosecutorial misconduct
cannot be predicated on good faith efforts to admit evidence.” People
v. Noble, 238 Mich. App. 647, 660 (1999). The in-court exchange was
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presented, supra, Part B. The prosecutor thought he heard Dr. Pietak
state “upward” with regard to the description of the bullet path. After
defense counsel’s objection, the prosecutor asked Dr. Pietak to clarify
if there was an upward component. Dr. Pietak thought he stated upward
previously and confirmed in now-unambiguous terms that the bullet
traveled in an upward path through Coleman’s body. Dr. Pietak then
went into more detail regarding this conclusion, explaining that the
bullet was retrieved from a “higher” location than the entrance wound.
Again, defendant has failed to show how the questioning was improper
or how it denied him a fair trial.
Defendant next argues that the prosecutor knowingly relied on
the perjured testimony of McMullen in seeking defendant’s
convictions. This issue was addressed, supra, Part B, in the context of
defendant’s claim of ineffective assistance of counsel. As noted earlier,
there was nothing on the record to suggest that McMullen lied on the
witness stand and, even if he was lying, that the prosecution knew the
testimony was false. Thus, there was no misconduct, and defendant was
not denied a fair trial.
Next, defendant argues that the prosecutor intentionally wanted
to mislead the jury by combining the photographs that were taken by
an evidence tech team at 4:20 a.m. with those that were taken by a
different evidence tech team at 4:30 p.m. Even if for some reason
various photos that were taken at the different times were commingled,
however, it is not clear how this would have confused the jury,3 nor is
it clear that the prosecutor was not using good-faith efforts to get the
evidence admitted. The jury is fully capable of looking at the exhibits
and seeing what actually is represented in the photographs without
relying on what any witness or prosecutor has to say in that regard. See
Schreiner v. American Cas. Co., 1 Mich. App. 43, 48 (1965) (stating
that jurors have the same opportunity to form opinions as witnesses
from viewing photographs). Accordingly, defendant was not denied a
fair trial, and his argument fails.
Last, defendant argues that the prosecution committed
misconduct by having Officer Brett Sojda of the Michigan State Police
testify. Once again, a prosecutor’s good-faith efforts to admit evidence
cannot constitute misconduct. Noble, supra at 660. Here, the
prosecution originally had Officer David Pauch on its witness list. But,
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at trial, the prosecutor and defense counsel stipulated to allow Officer
Sojda’s report and findings in lieu of Officer Pauch’s testimony.
Defendant has failed to show how the prosecutor was not acting in good
faith. Moreover, defendant’s stipulation waived any claim of error
regarding the appropriateness of having Officer Sojda testify. Begin v.
Michigan Bell Telephone Co., 284 Mich. App. 581 (2009). Thus,
defendant’s claim of prosecutorial misconduct fails.
---In fact, any confusion would have benefited defendant because any
discrepancy between the photos and the various testimony (that no
casing was seen or found in the morning, but the ejected casing was
discovered in the afternoon) would have added suspicion surrounding
the police conduct.
3
Wise, 2010 WL 364190, at *6-8.
To be entitled to habeas relief on a prosecutorial misconduct claim, a habeas
petitioner must show that the prosecutor’s conduct so infected the trial so as to render
the conviction fundamentally unfair. Parker v. Matthews, 567 U.S. 37 (2012);
Gillard v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006) (citing Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). If the misconduct was harmless, then as
a matter of law, there was no due-process violation. See Greer v. Miller, 483 U.S.
756, 765 & n.7 (1987). In federal habeas, this means asking whether the error “had
substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 623, 637-38 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)). The decision of the Michigan Court of
Appeals did not unreasonably apply this standard.
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First, Petitioner complains that the prosecutor informed the jury that he pled
not guilty. It is not clear how this comment was improper or prejudiced Petitioner,
especially because the prosecutor made the statement in the context of informing the
jury of his obligation to prove Petitioner’s guilty beyond a reasonable doubt:
He has plead not guilty to those crimes. Therefore, there’s a dispute. So
this process that we will undergo in the next couple of days, two, three
days, is what I’d like to call a search for the truth. That is, me as the
prosecutor, the person who’s been asked to prove his guilt beyond a
reasonable doubt, and you as the jurors, will undertake this process to
search for that truth to find the facts if they exist that rise to the level to
tell us also that you can render a verdict that Mr. Wise is guilty or not
guilty of those offenses.
(ECF No. 11-4, at 185.)
The comment, put in context, did not render Petitioner’s trial fundamentally
unfair.
Petitioner next asserts that the prosecutor manipulated the medical examiner
to testify that the trajectory of the bullet went upwards in the victim’s body. The
medical examiner initially described the bullet track as going from front to back, left
to right, and “backwards.” (ECF No. 11-5, at 161.) He said the bullet entered the
lower left lobe of the lung, hit the seventh rib, and then lodged in the muscles in the
victim’s back. Id. The prosecutor indicated by pointing his pen to confirm the
direction of the wound track. Id. When the prosecutor then asked if the medical
examiner said “upwards,” defense counsel objected, and the witness indicated that
he “believed [he] said upwards,” though he did not. Id. at 162.
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The prosecutor did not manipulate the medical examiner’s testimony. Rather,
he began to ask an additional leading question about the bullet’s trajectory, resulting
in an objection, which nevertheless elicited the clarification that the bullet travelled
upwards. Though the medical examiner had not, in fact, initially used the term
“upward,” nothing in the record suggests that the witness falsely altered his
testimony to accommodate the prosecutor. The medical examiner evidently did
conclude that there was an upwards trajectory to the wound track. In fact, the
autopsy report Petitioner claims his counsel should have admitted indicates an
upward trajectory. (See ECF No. 38, at Page.ID.2049.) This brief exchange did not
render Petitioner’s trial fundamentally unfair.
Petitioner next asserts that the prosecutor elicited perjured testimony from
McMullen. For the reasons stated above in the discussion of Petitioner’s ineffective
assistance of counsel claim, the allegation is meritless. Petitioner has completely
failed to demonstrate that the testimony in question was false.
Petitioner also asserts that the prosecutor mixed together the two sets of
photographs of the scene of the shooting that were taken on separate occasions by
different officers. Petitioner has failed to show how doing so worked to his prejudice.
When the first set of photographs was taken the bullet casing had not yet been
discovered. It was found during a later search, and the second set of photographs
showed its location. This fact was communicated to the jury during the relevant
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officers’ testimony. The jury was made aware of the fact that the first officers did
not find a casing by the door. The manner the prosecutor later discussed and used
the photographs was not misleading and did not render the trial fundamentally
unfair.
Finally, Petitioner asserts that the prosecutor listed one officer as a firearm
expert but called a different officer at trial. The officer in question, Trooper Sojda,
testified in general about how semi-automatic handguns operate, and that bullets
cannot be matched to bullet casings. (ECF No. 11-7, at 10-18.) The testimony in
question was neutral given the parties’ competing theories of the case, and it did not
benefit the prosecutor nor the defense. Again, there was no dispute at trial that the
victim was shot at the residence by a handgun originally belonging to Petitioner. The
substitution of witnesses did not work to Petitioner’s prejudice.
Accordingly, all of Petitioner’s claims of prosecutor misconduct are without
merit.
E. Procedural Default
Petitioner’s remaining claims were presented to the state courts in Petitioner’s
two motions for relief from judgment and the appeals that followed their denial.
Respondent asserts that review of these claim is procedurally barred because the
state courts denied relief based on Petitioner’s failure to comply with a procedural
rule.
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In Coleman v. Thompson, 501 U.S. 722, 750 (1991), the Supreme Court held:
In all cases in which a state prisoner has defaulted his federal claims in
state court pursuant to an independent and adequate state procedural
rule, federal habeas review of the claims is barred unless the prisoner
can demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.
If a habeas petitioner fails to show cause for his procedural default, it is
unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S.
527, 533 (1986). However, in an extraordinary case, where a constitutional error has
probably resulted in the conviction of one who is actually innocent, a federal court
may consider the constitutional claims presented even in the absence of a showing
of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986). To
be credible, such a claim of innocence requires that petitioner support the allegations
of constitutional error with new, reliable evidence that was not presented at trial.
Schlup v. Delo, 513 U.S. 298, 324 (1995).
Further, the Supreme Court has noted that “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 the procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). If the last
state court judgment contains no reasoning, but simply affirms the conviction in a
standard order, the federal habeas court must look to the last reasoned state court
judgment rejecting the federal claim and apply a presumption that later unexplained
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orders upholding the judgment or rejecting the same claim rested upon the same
ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
The Michigan Supreme Court rejected Sherman’s post-conviction appeals on
the ground that “the defendant has failed to meet the burden of establishing
entitlement to relief under MCR 6.508(D).” (ECF Nos. 12-4 and 52-10.) The
Michigan Court of Appeals likewise denied relief by unexplained orders. (ECF Nos.
12-3 and 52-9.) These orders did not refer to subsection (D)(3) of Rule 6.508, nor
did they mention Petitioner’s failure to raise his claims on direct appeal as the
rationale for rejecting the post-conviction appeal. “Because the form orders in this
case citing Rule 6.508(D) are ambiguous as to whether they refer to procedural
default or denial of relief on the merits, the orders are unexplained. We must
therefore look to the last reasoned state court opinion to determine the basis for the
state court’s rejection of [the petitioner’s] claim.” Guilmette v. Howes, 624 F.3d 286,
291 (6th Cir. 2010) (en banc).
In rejecting Petitioner’s post-conviction claims, the Wayne Circuit Court
indicated that Petitioner was not entitled to relief because he failed to demonstrate
actual prejudice resulting from the failure to raise the new issues on direct appeal, as
required by Rule 6.508(D)(3)(b). (ECF Nos. 11-10 and 52-8.) Because the trial court
issued the last explained decision, and it denied Petitioner’s post-conviction relief
based on the procedural grounds stated in Rule 6.508(D)(3)(b), Petitioner’s claims
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are procedurally defaulted pursuant to that rule. See Ivory v. Jackson, 509 F.3d 284,
292-93 (6th Cir. 2007).
Petitioner contends that his post-conviction claims are nonetheless preserved
for habeas review because his appellate counsel was ineffective. Petitioner has made
no such showing. Strategic and tactical choices regarding which issues to pursue on
appeal are “properly left to the sound professional judgment of counsel.” United
States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). “Th[e] process of winnowing out
weaker arguments on appeal and focusing on those more likely to prevail, far from
being evidence of incompetence, is the hallmark of effective appellate advocacy.”
Smith v. Murray, 477 U.S. 527, 536 (1986) (internal quotation marks and citation
omitted). “Generally, only when ignored issues are clearly stronger than those
presented will the presumption of effective assistance of appellate counsel be
overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002).
Petitioner has failed to show that appellate counsel’s performance fell outside
the wide range of professionally competent assistance by omitting the claims that
Petitioner raised for the first time in his post-conviction motions. Appellate counsel
filed a brief on appeal raising what now forms his lead habeas claim. Petitioner has
not shown that his appellate counsel’s strategy in presenting this claim and not
raising others was deficient or unreasonable. Indeed, the post-conviction claims
seem particularly weak. Contrary to Petitioner’s allegations, the jury was sufficiently
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sworn. Petitioner’s double jeopardy claim is based on an interpretation of state law
conclusively rejected by the state courts. There was ample evidence to sustain
Petitioner’s murder conviction, given that issues of credibility are for the jury, and
McMullen testified that Petitioner shot Coleman during a robbery. Finally, the jailcredit claim is mooted as a practical matter by Petitioner’s mandatory life sentence.
Because the defaulted claims were not “dead bang winners,” Sherman has failed to
establish cause for his procedural default of failing to raise them on direct review.
See McMeans v. Brigano, 228 F.3d 674, 682-83 (6th Cir. 2000). Finally, it should
be noted that Petitioner also filed a substantial pro se supplemental brief during his
appeal of right, raising four additional claims. Petitioner has not explained why he
omitted his defaulted claims from his own supplemental brief during his direct
appeal.
The two claims that Petitioner has arguably demonstrated cause for not raising
previously are his Brady claim and his final false evidence claim. In his twelfth and
related thirteenth habeas claims, Petitioner argues that the prosecution withheld the
testing of a bullet fragment (or perhaps casing) from the crime and then failed to
correct the associated incorrect trial testimony. At trial, the testimony indicated that
the recovered bullet fragment went missing. Prior to his second motion for relief
from judgment, Petitioner obtained a report from the Michigan State Police that the
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evidence had been sent to their crime lab for testing, but that the test results were
“inconclusive.”
To succeed on a suppression of evidence claim, however, Petitioner is
required to show that the “the nondisclosure [must have been] so serious that there
is a reasonable probability that the suppressed evidence would have produced a
different verdict.” Strickler v. Greene, 527 U.S. 263, 281 (1999). A “reasonable
probability” is “a probability sufficient to undermine confidence in the outcome.”
United States v. Bagley, 473 U.S. 667, 682 (1985). Petitioner fails to demonstrate
prejudice under this standard because, again, the identity of the firearm used in the
homicide was not relevant to the outcome of the trial. The dispute was whether
Petitioner shot Coleman during a robbery or whether he was accidentally shot. The
same firearm was said to have been used under both theories. Suppression, if any, of
an inconclusive lab report regarding a bullet fragment does not undermine
confidence in the outcome of the trial. The same thing applies to any “false”
testimony about testing. Petitioner was not prejudiced by the default of these claims.
Therefore, review of the claims raised in Petitioner’s two state post-conviction
review proceedings is barred by his procedural default, and he has failed to
demonstrate cause or prejudice to excuse the default.
As none of Petitioner’s claims merit relief, the petition will be denied.
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IV. CERTIFICATE OF APPEALABILITY
In order to appeal the Court’s decision, Petitioner must obtain a certificate of
appealability. 28 U.S.C. § 2253(c)(2). The applicant is required to show that
reasonable jurists could debate whether the petition should have been resolved in a
different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
A federal district court may grant or deny a certificate of appealability when the
court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900,
901 (6th Cir. 2002). Here, jurists of reason would not debate the Court’s conclusion
that Petitioner has failed to demonstrate entitlement to habeas relief with respect to
his claims because they are devoid of merit or defaulted.
Finally, Petitioner is denied permission to appeal in forma pauperis because
any appeal would be frivolous. 28 U.S.C. § 1915(a)(3).
V. CONCLUSION
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a
writ of habeas corpus, 2) DENIES a certificate of appealability, and 3) DENIES
permission to appeal in forma pauperis.
SO ORDERED.
s/Paul D. Borman
Hon. Paul D. Borman
United States District Judge
Dated: April 16, 2020
35
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