Brown v. Romanowski

Filing 13

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Granting in Part and Denying in Part Certificate of Appealability, and Granting Permission to Proceed In Forma Pauperis on Appeal. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RYAN BROWN,
Petitioner,

Case No. 13-cv-11367
Hon. Matthew F. Leitman

v.
KEN ROMANOWSKI,
Respondent.
_________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS (ECF #1), GRANTING IN PART AND DENYING IN PART
CERTIFICATE OF APPEALABILITY, AND GRANTING PERMISSION
TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Ryan Brown (“Petitioner”) is a state prisoner in the custody of the
Michigan Department of Corrections. Petitioner has filed a Petition for Writ of
Habeas Corpus (the “Petition”) challenging his state-court convictions of two
counts of delivery of 50-450 grams of cocaine in violation of M.C.L. §
333.7401(2)(a)(iii)) and two counts of delivery of less than 50 grams of cocaine in
violation of M.C.L. § 333.7401(2)(a)(iv)).

(See ECF #1.)

discussed below, the Court DENIES the Petition.

For the reasons

RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
At Petitioner’s trial, the prosecution presented evidence that Petitioner sold
cocaine to Jawad Mirza (“Mirza”), a police informant, on at least four occasions.
The evidence – including testimony by Mirza, Detective Sergeant Perry Dare
(“Sergeant Dare”), Officer Kenneth Spencer (“Officer Spencer”), and other
witnesses – is summarized as follows.
Mirza called Petitioner in September 2005 seeking to purchase one ounce of
cocaine as part of a “controlled buy” operation. (See Trial Transcript I, ECF #9-4
at 122, Pg. ID 308.)

Prior to the controlled buy, Sergeant Dare thoroughly

searched Mirza to ensure that he was not in possession of any drugs. (See Trial
Transcript II, ECF #9-5 at 271-274, Pg. ID 458-61.) Sergeant Dare then gave
Mirza $800 to buy drugs from Petitioner. (See id. at 271-75, Pg. ID 458-62.)
Wearing a hidden audio recording device, Mirza met with Petitioner and gave
Petitioner $800; Petitioner gave Mirza 28.7 grams of cocaine. (See Tr. I at 124-25,
Pg. ID 310-11; Tr. II at 275-77, Pg. ID 462-65.) Thereafter, Mirza turned over the
cocaine to Sergeant Dare. (See Tr. I at 124-25, Pg. ID 310-11.)
In November 2005, Mirza called Petitioner to arrange a second controlled
buy of two ounces of cocaine. (See id. at 127, Pg. ID 313.) Sergeant Dare again
searched Mirza prior to the controlled buy operation. (See Tr. II at 283, Pg. ID
479.) Sergeant Dare then gave Mirza $1,700 to purchase cocaine from Petitioner.
2

(See Tr. I at 128, Pg. ID 314.) Sergeant Dare also instructed Mirza to bring Officer
Spencer – who was then working undercover – with him to meet Petitioner. (See
id. at 129, Pg. ID 315.) Mirza again wore a hidden audio recording device during
the controlled buy operation. (See Tr. II at 275-76, Pg. ID 462-63.) Officer
Spencer and Mirza met Petitioner at the designated meeting spot. (See Tr. I at 129,
Pg. ID 315.) Officer Spencer remained in the car while Mirza exited the vehicle to
meet with Petitioner. (See id. at 129-32, Pg. ID 315-18.) Petitioner told Mirza that
he only had one ounce of cocaine to sell, and he sold that ounce to Mirza for $850.
(See id. at 131-32, Pg. ID 317-18.) Following the transaction, Mirza gave the one
ounce of cocaine and remaining cash to Officer Spencer. (See id. at 132, Pg. ID
318.)
Mirza conducted a third controlled buy from Petitioner in December 2005.
(See id. at 134, Pg. ID 320.) Sergeant Dare again searched Mirza and gave him
$1,700 in order to buy two ounces of cocaine. (See id. at 135, Pg. ID 321.) Mirza
again wore a hidden audio recording device. (See Tr. II at 275-76, Pg. ID 462-63.)
Officer Spencer accompanied Mirza to the location of the buy, but Officer Spencer
exited the vehicle in order to let Petitioner into the car with Mirza. (See Tr. I at
136, Pg. ID 322.) While in Mirza’s car, Petitioner used Mirza’s scale to weigh the
cocaine, and Mirza gave him the $1,700. (See id. at 138-39, Pg. ID 324-25.)

3

Petitioner gave Mirza the two ounces of cocaine. (See id.) After the sale, Mirza
gave the cocaine to Officer Spencer. (See id. at 140, Pg. ID 326.)
On January 10, 2006, Sergeant Dare decided to conduct a “buy-bust.” (See
Tr. II at 286, Pg. ID 473.) Mirza called Petitioner and arranged to buy another two
ounces of cocaine. (See Tr. I at 142, Pg. ID 328.) Mirza and Officer Spencer then
drove to Petitioner’s apartment. (See id. at 143, Pg. ID 329.) Officer Spencer
exited the vehicle in order to let Petitioner into the car with Mirza. (See id. at 146,
Pg. ID 332.) Petitioner handed drugs to Mirza, and Mirza began to weigh the
drugs. (See id. at 146-47, Pg. ID 332-33.) Officer Spencer then gave a signal to
waiting officers, and they arrested Petitioner. (See Tr. II at 228, Pg. ID 415.)
Sergeant Dare interviewed Petitioner after the arrest. (See Tr. II at 288, Pg.
ID 475.) Petitioner provided a written statement in which he admitted that he sold
cocaine to Mirza on four occasions. (See Tr. II at 296, Pg. ID 483.) Petitioner also
admitted that “a couple” of those sales were for more than 50 grams of cocaine.
(Id. at 294, Pg. ID 481.) Petitioner was then released from custody.
Petitioner was re-arrested on or about September 24, 2007 – roughly twenty
months after his original arrest. (See ECF #10 at 16, Pg. ID 842.) The reason for
Petitioner’s arrest on or about September 24, 2007, is not clear from the record.
However, it appears that on or about September 24, 2007, Petitioner was arraigned
on charges that he sold cocaine to Mirza on four occassions. (See id. at 14-15, Pg.
4

ID 840-41.) Petitioner’s trial on those charges began on February 15, 2008. (See
Tr. I at 1, Pg. ID 187.)
The audio recordings of Mirza’s transactions with Petitioner were not
available at trial. Sergeant Dare testified that he misplaced the recordings prior to
Petitioner’s trial when he moved his possessions to a new office. (See Tr. II at 276,
Pg. ID 463.)
During Petitioner’s trial, defense counsel stipulated to the admission of a
laboratory report (the “Lab Report”) prepared by Rachel Topacio (“Topacio”) of
the Oakland County Sheriff’s Office. (See Tr. II at 280, Pg. ID 467.) Petitioner’s
counsel further stipulated that if Topacio were called as a witness, she would
testify that the substance that Mirza turned over to police after the controlled buys
was cocaine. (See id.) Topacio did not testify at the trial.
During closing arguments, Petitioner’s counsel highlighted Petitioner’s
defense – that Petitioner did not sell cocaine to Mirza, but rather permitted Mirza
to use Petitioner’s scale to weigh cocaine that Mirza already had in his possession.
(See Tr. II at 346-47, Pg. ID 533-34; see also ECF #9-11 at 44, Pg. ID 760.) This
defense theory was undercut, however, by Sergeant Dare’s testimony that he
searched Mirza prior to each controlled buy to ensure that Mirza was not carrying
any drugs. (See, e.g., Tr. II at 271-274, Pg. ID 458-61; id. at 283, Pg. ID 479.)

5

The jury convicted Petitioner of the four offenses with which he was
charged.

(See Tr. II at 372-73, Pg. ID 559-60.) In his direct appeal to the

Michigan Court of Appeals, Petitioner argued that (1) his trial counsel was
ineffective for failing to request separate trials on each of the charged offenses, and
(2) his written confession was involuntary. (See ECF #9-7 at 9, Pg. ID 580.)
The Michigan Court of Appeals affirmed Petitioner’s conviction in an
unpublished opinion.

See People v. Brown, No. 284568, 2009 WL 1883978

(Mich. Ct. App. June 30, 2009). Petitioner subsequently filed an application for
leave to appeal in the Michigan Supreme Court, raising the same arguments. (See
ECF #9-8 at 3-8, Pg. ID 648-53.)

The Michigan Supreme Court denied the

application “because [the Court was] not persuaded that the questions presented
should be reviewed by th[e] Court.” See People v. Brown, 777 N.W.2d 166 (Mich.
2010) (table).
Petitioner then filed a motion for relief from judgment in the state trial court
(the “Motion for Relief from Judgment”). Petitioner sought relief on two grounds:
I. Defendant Ryan Brown was denied his due process
right to a fair trial when exculpatory audio recordings
that would have proved defendant was not the person
who sold drugs to an informant and were lost during a
20-month delay in defendant’s arrest and trial counsel
was ineffective for failing to move for dismissal on
such grounds.

6

II. Defendant Ryan Brown was denied the effective
assistance of counsel guaranteed by the Sixth and
Fourteenth Amendments of the United States
Constitution and Section Twenty of Article One of the
Michigan Constitution when trial counsel failed to
investigate and when appellate counsel failed to raise
the foregoing issue on direct appeal.
A. trial counsel was ineffective by failing to
investigate and uncover evidence in support of
defendant’s claim at a Walker hearing that his
statement was involuntarily made after he was
threatened by police that if he did not cooperate
his life and children would be taken away from
him.
B. Cause and prejudice: appellate counsel was
ineffective by failing to raise the foregoing issues
on direct appeal satisfying the good cause
requirement.
ECF #9-11 at 5, Pg. ID 721.
Petitioner later filed a Motion to Amend his Motion for Relief from
Judgment (the “Motion to Amend”). (See ECF#9-12.) Therein, Petitioner sought
to add the following additional grounds for relief:
III. The state violated the VI & XIV Amendment rights
to a speedy trial and due process by conducting the
trial more than two years after Brown’s arrest which
caused actual prejudice according to Barker v. Wingo.
A. Trial counsel has ineffective for failing to advise
of, or demand/assert defendant’s speedy trial
rights.
B. Appellate counsel was ineffective for failing to
raise these significant claims on direct appeal.
7

IV. The state violated the VI Amendment
Confrontation Clause & XIV Amendment Due
Process Clause when it admitted a lab report without
supporting testimony which rendered the entire trial
fundamentally unfair.
A. Trial counsel has ineffective for entering a
conditional stipulation/failing to object to the
error.
B. Appellate counsel was ineffective for failing to
raise these Constitutional claims on direct
appeal.
V. The state violated XIV Amendment Due Process
when it permitted Mr. Brown’s conviction on less
than proof beyond a reasonable doubt and insufficient
evidence according to Jackson v. Virginia & In re
Winship.
A. Trial counsel has ineffective for failing to move
for a directed verdict upon conclusion of the
evidence.
B. Appellate counsel was ineffective for failing to
raise these significant claims on direct appeal.
Id. at 6, Pg. ID 799.
The trial court denied the Motion for Relief from Judgment in an order dated
July 25, 2011. (See ECF #9-13.) The trial court held that the two claims in the
Motion for Relief from Judgment – i.e., the due process claim based on the twentymonth arrest delay and the ineffective assistance of counsel claim based upon
counsel’s failure to raise the arrest-delay claim and failure to uncover evidence that
Petitioner’s confession was involuntary – were procedurally barred from review
8

under Michigan Court Rule 6.508(D)(3) because Petitioner had not shown good
cause for failing to raise the claims on direct review. (See id.) The trial court did
not address the claims in Petitioner’s Motion to Amend.
Petitioner then filed an application for leave to appeal in the Michigan Court
of Appeals (the “Application”). (See ECF #9-9 at 8-26, Pg. ID 675-93.) Petitioner
noted that the trial court only considered the two claims raised in his Motion for
Relief from Judgment and did not address the three claims in the Motion to
Amend. (See id. at 12, Pg. ID 679.) Petitioner sought leave to appeal only on the
three claims in the Motion to Amend that the trial court did not address. (See id.)
The Court of Appeals denied the Application for failure to establish entitlement to
relief under M.C.R. 6.508(D). See People v. Brown, No. 307687 (Mich. Ct. App.
Sept. 7, 2012).
Petitioner sought leave to appeal the denial of the Application in the
Michigan Supreme Court. (See ECF #9-10 at 4, Pg. ID 697.) The Michigan
Supreme Court denied leave under Michigan Court Rule 6.508(D). See People v.
Brown, 829 N.W.2d 595 (Mich. 2013) (table).
Petitioner now seeks habeas relief in this Court based on the two claims that
he raised on direct appeal and three of the claims that he presented in his Motion
for Relief from Judgment and/or in the Motion to Amend. Specifically, Petitioner
seeks habeas relief on the grounds that: (1) his trial counsel was ineffective for
9

failing to move for separate trials for the different charges, (2) his statement to
police was involuntary, (3) his right to a speedy trial was violated, (4) the trial
court admitted a lab report into evidence at trial without the authoring witness’s
testimony, and (5) excluding the improperly admitted report, there was insufficient
evidence presented at trial to support Petitioner’s convictions.
GOVERNING LEGAL STANDARD
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), imposes the following standard of review for
habeas claims that were presented to a state court and were adjudicated on their
merits:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
10

Supreme Court has on a set of materially indistinguishable facts. See Williams v.
Taylor, 529 U.S. 362, 405–06 (2000). An “unreasonable application” of clearly
established federal law occurs when “a state court decision unreasonably applies
the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A
federal court may not “issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Id. at 410–11.
Indeed, the “AEDPA thus imposes a ‘highly deferential standard for
evaluating state-court rulings,’ and ‘demands that state-court decisions be given the
benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997)). “[A] state court's determination that a
claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court's decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quoting 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. at
102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to
§ 2254(d), “a habeas court must determine what arguments or theories supported or
... could have supported … the state court's decision; and then it must ask whether
it is possible fairminded jurists could disagree that those arguments or theories are
11

inconsistent with the holding in a prior decision” of the Supreme Court. Id. “[I]f
this standard is difficult to meet, that is because it was meant to be.” Id.
ANALYSIS
A. Ineffective Assistance of Trial Counsel Based on the Failure to Move to
Sever Charges
Petitioner contends that his trial counsel was ineffective for failing to move
for separate trials with respect to the four different drug charges. (See Petition at 6,
Pg. ID 7.) Petitioner argues that if his trial counsel had moved to sever the
charges, the trial court would have been required to grant the request. (See Reply
Brief, ECF #10 at 4, Pg. ID 830.) Petitioner further contends that if the charges
had been severed, the prosecution would have had insufficient evidence to convict
him on any of the charges. (See id.)
In Strickland v. Washington, the United States Supreme Court set forth a
two-part test to determine whether a criminal defendant petitioner has received the
ineffective assistance of counsel. 466 U.S. 668 (1984). First, a defendant must
show that his counsel's performance was deficient. See id. at 687. “This requires
showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, the
defendant must show “that the deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id.
12

To satisfy the performance prong of Strickland, a defendant “must identify
the acts or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment.” Id. at 690. A court's scrutiny of counsel's
performance is highly deferential. See id. at 689. “[C]ounsel is strongly presumed
to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. at 690. The burden is on the
defendant to overcome the presumption that the challenged action was sound trial
strategy. See id. at 689.
To satisfy the prejudice part of the Strickland test, a defendant must show “a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. To be a reasonable probability,
it must be sufficient to undermine confidence in the outcome. See id. “This does
not require a showing that counsel's actions ‘more likely than not altered the
outcome,’” but “[t]he likelihood of a different result must be substantial, not just
conceivable.” Harrington, 562 U.S. at 112 (quoting Strickland, 466 U.S. at 693).
“The standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. at 105
(internal and end citations omitted). “When § 2254(d) applies, the question is not
whether counsel's actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland's deferential standard.” Id.
13

On direct appeal, Petitioner argued that his counsel was ineffective for
failing to move to sever the charges, and the Michigan Court of Appeals rejected
the claim on its merits. (See ECF #9-7 at 22-27, Pg. ID 593-98). The Court of
Appeals acknowledged that if Petitioner’s counsel had moved for severance, the
trial court “would have been required to grant the motion because the offenses
were not related.”

(Id. at 1, Pg. ID 572 (citing M.C.R. 6.120(B)(1), (C)).)

Nonetheless, the Court of Appeals held that Petitioner had “not overcome the
strong presumption that the failure to request severance was a strategic decision.”
(Id. at 1-2, Pg. ID 572-73.) The Court of Appeals noted that trial counsel “may
have reasonably determined that it would have been more difficult to successfully
defend four separate prosecutions than one single prosecution, or he might have
concluded that his efforts to attack [Mirza’s] credibility would be less effective
after the initial trial because [Mirza] would be more prepared to respond to
counsel’s cross-examination.” (Id. at 2, Pg. ID 573.) The Court of Appeals also
determined that Petitioner had not shown that counsel’s failure to move for
separate trials prejudiced him, as “the prosecution would have been able to present
testimony concerning the various drug transactions at the individual trials pursuant
to [Michigan Rule of Evidence] 404(b).”

(Id.)

Thus, the Court of Appeals

concluded that Petitioner’s trial counsel was not ineffective for failing to move for
separate trials. (See id.)
14

Under the “doubly” deferential standard of review applicable here,
Harrington, 562 U.S. at 105, the state court’s denial of Petitioner’s ineffective
assistance claim was not unreasonable. Petitioner has not established that his trial
counsel’s decision to proceed on all four charges in a single trial was unsound
strategy. As the Court of Appeals correctly noted, if Petitioner had been tried
separately on each charge, the trial court would likely have permitted the
prosecution to introduce evidence of all four offenses at each trial.1 Thus, severing
the charges could have given the prosecution multiple opportunities to obtain a
conviction by presenting all of the evidence against Petitioner.

Under these

circumstances, Petitioner has not shown that his trial counsel’s performance was
deficient. Likewise, Petitioner has failed to show a reasonable probability that the
result of his separate trials would have been different if the charges had been
severed. Petitioner has thus failed to satisfy both Strickland prongs, and he is
therefore not entitled to habeas relief on this ground.

1

Michigan Rule of Evidence 404(b) is a rule of “inclusion[] rather than
exclusion[].” People v. VanderVliet, 508 N.W.2d 114, 121 (Mich. 1993)
(emphasis in original). “Evidence is inadmissible under this rule only if it is
relevant solely to the defendant’s character or criminal propensity.” People v.
Mardlin, 790 N.W.2d 607, 615 (Mich. 2010) (emphasis in original). Evidence of
each of Petitioner’s transactions with Mirza likely would have been admissible to
demonstrate modus operandi and/or to show a common plan, scheme, or system.
See, e.g., People v. Smith, 625 N.W.2d 46, 54 (“prov[ing] identity through modus
operandi, which means a method of operating or doing things,” constitutes a
permissible purpose pursuant to Rule 404(b)) (internal citations omitted).
15

B. Voluntariness of Statement to Police
Petitioner asserts that the trial court erred when it found that Petitioner
voluntarily provided his written statement to Sergeant Dare. (See Petition at 7, Pg.
ID 8.) Petitioner contends that he provided the statement involuntarily because
Sergeant Dare threatened to have Petitioner’s children taken away if Petitioner did
not sign the written statement. (See Reply Br. at 5, Pg. ID 831; see also Tr. I at 39,
Pg. ID 225.)
The Fifth Amendment privilege against compulsory self-incrimination bars
the admission of involuntary confessions. Colorado v. Connelly, 479 U.S. 157,
163-64 (1986). A confession is considered involuntary if: (1) the police extorted
the confession by means of coercive activity; (2) the coercion in question was
sufficient to overbear the will of the accused; and (3) the will of the accused was in
fact overborne “because of the coercive police activity in question.” McCall v.
Dutton, 863 F.2d 454, 459 (6th Cir.1988).
The voluntariness of a confession is a mixed question of law and fact.
Thompson v. Keohane, 516 U.S. 99, 108-11 (1995). In determining whether a
confession is voluntary, the ultimate question is “whether, under the totality of the
circumstances, the challenged confession was obtained in a manner compatible
with the requirements of the Constitution.” Miller v. Fenton, 474 U.S. 104, 112
(1985). “When a defendant claims that a confession was coerced, the government
16

bears the burden of proving by a preponderance of the evidence that the confession
was in fact voluntary.” United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999).
Petitioner challenged the voluntariness of his written statement in the trial
court. (See Tr. I at 5-47, Pg. ID 191-233.) Following an evidentiary hearing, the
trial court determined that Petitioner’s statement was not coerced. (See ECF #9-11
at 75, Pg. ID 791.) In reaching this conclusion, the trial court credited Sergeant
Dare’s testimony and declined to credit Petitioner’s testimony:
Detective Dare testified that he read Defendant his
Miranda rights. He asked Defendant if he understood
each of the rights and Defendant responded that he did.
Defendant read the form and initialed each section.
Detective Dare testified that Defendant advised that he
understood his Miranda rights and wished to waive them.
The interview lasted approximately 30 to 40 minutes.
Detective Dare testified that Defendant did not appear to
be under the influence of alcohol or controlled
substances. He did not appear to be sleep-deprived and
appeared to understand his rights. Detective Dare
testified that there were no threats or promises made to
Defendant. Detective Dare denied instructing Defendant
what to write in the statement.
Regarding Defendant’s claims of threats by the
detectives, Detective Dare denied addressing the
penalties of the charged crimes, but testified that based
on his own encounters with drug offenders, he assumed
that Defendant was aware of the penalties. Detective
Dare also denied making any statements regarding
Defendant’s children. He did note that he was aware that
Defendant had children because there was a safety issue;
specifically, when the officers arrested Defendant, the
children were unsupervised in the apartment and the
17

stove was on, but Defendant’s father later arrived to tend
to the children. Detective Dare denied making any
statements to Defendant regarding his children.
Defendant testified that the detectives made such threats
to him and that he executed the waiver form and the
statement because he was afraid. In this regard, the
Court notes that Defendant has an extensive narcoticsrelated criminal record. It is disingenuous of Defendant
to fail to recognize the consequences of his actions in this
case.
In reviewing the circumstances, the Court finds that there
is no evidence that Defendant showed a lack of
intelligence or an educational deficiency. Defendant is
29 years old. He completed a portion of the 10th grade
and has attempted to obtain his GED; he testified that he
does not intend to obtain his GED. Defendant testified
appropriately.
There is no evidence that Defendant appeared to be
sleep-deprived or under the influence of any intoxicant.
Indeed, despite Defendant’s current claim that he was
high on marijuana during the interview on January 10,
2006, he was able to testify regarding specific points of
the interview. The Court finds that Defendant was not
credible. Further, the Court finds Detective Dare to be a
credible witness. As such, the Court cannot find that the
detectives coerced, intimidated, or deceived Defendant
into waiving his rights.
Under the totality of the facts of this case, the Court
concludes that Defendant understood his rights and that
Defendant made a voluntary, knowing and intelligent
waiver of the protections afforded by Miranda.
(ECF #9-11 at 73-75, Pg. ID 789-91 (emphasis added and internal citations
omitted).)

18

Petitioner then challenged the voluntariness of his statement on direct appeal
in the Michigan Court of Appeals. (See ECF #9-7 at 28-32, Pg. ID 599-603.) The
Court of Appeals determined that the trial court did not err in finding that
Petitioner’s statement was voluntary. (See id. at 2-3, Pg. ID 22-23.)
The decision of the state court to credit Sergeant Dare’s testimony and not
Petitioner’s testimony is “presumed to be correct.” 28 U.S.C. § 2254(e)(1); see
also Ramonez v. Berghuis, 490 F.3d 482, 490-91 (6th Cir. 2007) (noting that §
2254(e)(1) standard of review applies to a state court’s credibility determinations at
a suppression hearing). Petitioner therefore bears “the burden of rebutting the
presumption of correctness by clear and convincing evidence.”
2254(e)(1).

28 U.S.C. §

Petitioner has failed to satisfy this burden. Petitioner has not any

cited specific evidence in support of his claim. (See Petition at 7, Pg. ID 8; Reply
Br. at 5-6, Pg. ID 831-32.) Instead, Petitioner simply insists that the trial court
erred in its credibility determination. That is not enough.
Petitioner has not shown that the trial court’s conclusion was contrary to
Supreme Court precedent; an unreasonable application of Supreme Court
precedent; or an unreasonable determination of the facts. Petitioner is therefore not
entitled to habeas relief on this ground.

19

C. Pre-Arrest and Pre-Trial Delays
Petitioner makes two distinct constitutional challenges to two different
periods of delay in his case. First, Petitioner argues that his due process rights
were violated by the twenty-month delay between the commission of his offenses
in late 2005 and early 2006, on one hand, and his second arrest in September 2007,
on the other hand (the “Offenses-to-Second-Arrest Delay”).2 Second, Petitioner
contends that his Sixth Amendment speedy trial right was violated by the delay
between his first arrest in January 2006 and his trial in February 2008 (the “FirstArrest-to-Trial Delay”).

In addition to these direct challenges to the delays,

Petitioner contends that he was denied effective assistance of counsel on the
grounds that his trial counsel failed to assert his speedy trial rights and that his
appellate counsel failed to challenge the delay on direct appeal. (See Petition at 9,
Pg. ID 10.)

2

As noted above, Petitioner was arrested two times: first in January 2006 and
again in September 2007. It is not clear from the record whether Petitioner’s
September 2007 arrest was primarily related to the drug offenses at issue here or
some other, separate charges. What is clear, however, is that Petitioner was
arraigned on the drug offenses on September 24, 2007, on or about the same day as
his second arrest. (See ECF #10 at 14-15, Pg. ID 840-41.) For purposes of
Petitioner’s due process claim, it is more favorable to Petitioner to use the date of
the second arrest (as opposed to the date of the first arrest) as the relevant arrest
date. Even giving that benefit to Petitioner, the due process pre-arrest delay claim
fails for the reasons explained below.
20

1. The Due Process Claim Based Upon the Offenses-to-Second-Arrest
Delay
The Due Process Clause of the Fourteenth Amendments “provides …
constitutional protection from delay” between the commission of an offense and a
suspect’s arrest or indictment. Pharm v. Hatcher, 984 F.2d 783, 785 (7th Cir.
1993); see also United States v. Brown, 498 F.3d 523, 528 (6th Cir. 2007) (citing
United States v. Marion, 404 U.S. 307, 324 (1971)) (“[D]ue-process rights protect
against oppressive delay” prior to arrest or indictment.). Petitioner argues that the
Offenses-to-Second-Arrest Delay violated his due process rights because it resulted
in the loss of the allegedly-exculpatory audio recordings. (See Petition at 9, Pg. ID
10.)
Petitioner raised this argument for the first time in his Motion for Relief
from Judgment. (See ECF #9-11 at 5, Pg. ID 721.) The state trial court held that
Petitioner failed to show good cause or prejudice for not raising the issue on direct
appeal. (See ECF #9-13 at 2, Pg. ID 822.) The Court therefore determined that
Petitioner had procedurally defaulted his claim pursuant to M.C.R. 6.508(D)(3).
(See id. at 4, Pg. ID 824.)
Respondent contends that this Court should not consider the Petitioner’s due
process claim on habeas review because the issue is procedurally defaulted. (See
ECF #8 at 44, Pg. ID 132.) However, where the merits of a habeas claim “present
a more straightforward ground for decision,” the Court may consider the merits of
21

the claim first and then address the procedural default question only if necessary.
Arias v. Hudson, 589 F.3d 315, 316 (6th Cir. 2009) (citing Lambrix v. Singletary,
520 U.S. 518, 523 (1997)). That is the case here. Accordingly, the Court will
move directly to the merits of Petitioner’s claim.
In order to prevail on his claim that the Offenses-to-Second-Arrest Delay
violated his due process rights, Petitioner must show that that delay “caused
substantial prejudice to [his] rights to a fair trial and … the delay was an
intentional device to gain tactical advantage over the accused.” Marion, 404 U.S.
at 324. “[P]roof of prejudice is generally a necessary but not sufficient element of
a due process claim, and … the due process inquiry must consider the reasons for
the delay as well as the prejudice to the accused.” United States v. Lovasco, 431
U.S. 783, 790 (1977).

“[B]oth conditions (improper reasons for delay and

prejudice) are necessary for a due-process violation.” United States v. Brown, 498
F.3d at 528. Petitioner has failed to demonstrate that either condition was satisfied
here.
First, Petitioner has presented no evidence of tactical delay by the
government. Indeed, Petitioner has not even alleged – much less offered evidence
– that the police had improper tactical motives for the Offense-to-Second-Arrest
Delay. The absence of any evidence of tactical delay is fatal to Petitioner’s due
process pre-arrest delay claim. See, e.g., id. at 528.
22

Second, Petitioner has not demonstrated that he was prejudiced by the
Offenses-to-Second-Arrest Delay.

Petitioner’s theory is that (1) the audio

recordings of his interactions with Mirza would have proven that he merely
weighed, and did not sell, any drugs and (2) he suffered prejudice when the police
lost the recordings during the delay period.

But that theory cannot be squared

with the overwhelming evidence that Petitioner was, in fact, guilty of selling drugs
to Mirza. The case against Petitioner was extremely strong: Petitioner made a
written confession; Mirza testified that he purchased cocaine from Petitioner
during the controlled buy operations; Officer Spencer was present for several of
the transactions; and Petitioner’s theory that Mirza possessed the drugs prior to the
controlled buy operations was undercut by testimony that either Sergeant Dare or
Officer Spencer searched Mirza prior to each transaction and obtained drugs from
Mirza immediately after the transactions.
The United States Court of Appeals for the Sixth Circuit and other courts of
appeals have concluded that an accused is not prejudiced by a delay where, as here,
the evidence of his guilt is exceptionally strong. That is true even if the delay
resulted in the loss of allegedly-exculpatory evidence. See, e.g., United States v.
Sylvester, 330 Fed. App’x 545, 549 (6th Cir. 2009) (accused not prejudiced by
two-and-a-half-year delay even though relative who would have allegedly provided
exculpatory testimony died prior to trial); United States v. Jones, 555 Fed. App’x
23

485, 489 (6th Cir. 2014) (“an entire universe of evidence that was available
regarding [the petitioner’s] guilt undermines his claim that he has suffered
substantial prejudice from the lost records”); Cowart v. Hargett, 16 F.3d 642, 648
(5th Cir. 1994) (approximately one-year delay that prevented the accused from
calling an allegedly-exculpatory witness was not prejudicial “in light of the
overwhelming evidence of [the accused’s] guilt”).3
Given the overwhelming evidence of Petitioner’s guilt – including
Petitioner’s voluntary, written confession and Mirza’s testimony – the Court is not
persuaded that there is a reasonable likelihood that the audio recordings would
have supported Petitioner’s defense nor changed the result of Petitioner’s trial.
Petitioner’s failure to show prejudice from the pre-arrest delay further dooms his
due process claim.
Finally, to the extent that Petitioner raises a freestanding ineffective
assistance of counsel claim in his Petition on the ground that his trial and/or
appellate counsel failed to raise a due process challenge to the Offenses-to-SecondArrest Delay, that claim is without merit.

Since Petitioner has not shown a

reasonable likelihood that the result of the state court proceedings would have been

3

See also McCline v. Epps, No. 05-89, 2008 WL 4457842, at *4 (N.D. Miss. Sept.
30, 2008) (delay not prejudicial to accused “given the overwhelming evidence of
[his] guilt – including a written statement and audiotaped confession”); Browning
v. State, 757 P.2d 351, 352 (Nev. 1988) (“In light of the overwhelming evidence of
guilt presented against [the accused] at trial, it is clear that any alleged prejudice
would not rise to the level justifying dismissal of the charged crimes.”).
24

different if his counsel had raised the due process issue, his ineffective assistance
claim fails. See Strickland, 466 U.S. at 694. Accordingly, Petitioner is not entitled
to habeas relief on any aspect of his claim.
2. The Sixth Amendment Speedy Trial Claim Based Upon the FirstArrest-to-Trial Delay
Petitioner also contends that the First-Arrest-to-Trial Delay violated his
Sixth Amendment right to a speedy trial.4 Petitioner raised this claim for the first
time in his Motion to Amend. (See ECF #9-12 at 6, Pg. ID 799.) However, the
state trial court neither reached the merits of the claim nor enforced a procedural
default. (See ECF #9-13.) Accordingly, this Court reviews the claim de novo. See
Wiggins v. Smith, 539 U.S. 510, 533-535 (2003).
The Sixth Amendment provides that “in all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. CONST. amend. VI.
An individual’s Sixth Amendment right to a speedy trial applies only after he or
she is arrested or indicted. See United States v. Brown, 498 F.3d at 527 (citing
Marion, 404 U.S. at 321); see also Edmaiston v. Neil, 452 F.2d 494, 498 (6th Cir.
1971) (Sixth Amendment speedy trial right is triggered by arrest or indictment,

4

To repeat, Petitioner was arrested twice. For purposes of Petitioner’s Sixth
Amendment speedy trial claim, it is most favorable to Petitioner to use the date of
his first arrest in January 2006. (In contrast, for purposes of Petitioner’s due
process pre-arrest delay claim, it was more favorable to Petitioner to use the date of
his second arrest.) As explained below, even when Petitioner is given that benefit,
his Sixth Amendment claim still fails.
25

whichever comes first).

To determine whether a speedy trial violation has

occurred, a reviewing court must consider the following four factors: (1) the length
of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his speedy
trial right, and (4) the prejudice to the defendant. See Barker v. Wingo, 407 U.S.
514, 530 (1972).

“[N]one of the four factors identified above [is] either a

necessary or sufficient condition to the finding of a deprivation of the right of
speedy trial.” Id. at 533. “Rather, they are related factors and must be considered
together with such other circumstances as may be relevant.” Id. Indeed, even “a
finding in the [petitioner’s] favor on each of the four Barker factors does not
necessarily warrant dismissal of the indictment, because a violation of the right to a
speedy trial arises only when the circumstances of the case are such that further
delay would endanger the values the right protects.” Brown v. Bobby, 656 F.3d
325, 337 (6th Cir. 2011).
“The first factor is a threshold requirement: [a court] only consider[s] the
remaining Barker factors if the delay is longer than one year.” United States v.
Zabawa, 719 F.3d 555, 563 (6th Cir. 2013). A delay of more than one year
between a defendant’s arrest and his trial is “uncommonly long.” United States v.
Bass, 460 F.3d 830, 836 (6th Cir. 2006). The delay between Petitioner’s first arrest
in January 2006 and his trial in 2008 exceeded one year. This factor therefore
favors Petitioner, and the Court proceeds to analyze the remaining Barker factors.
26

As to the second factor, the state appears to be at fault for the First-Arrest-toTrial Delay, but, as discussed above, Petitioner has not established that the delay
was tactical. On this record, the Court cannot conclude that the delay was anything
but negligent.

“Governmental delays motivated by bad faith, harassment, or

attempts to seek a tactical advantage weigh heavily against the government, while
neutral reasons such as negligence are weighted less heavily….” United States v.
Williams, 753 F.3d 626, 632 (6th Cir. 2014). This factor therefore weighs in favor
of Petitioner, but the Court does not accord it substantial weight.
The third factor – the Petitioner’s assertion of his speedy trial rights – does
not support Petitioner. Petitioner has not presented any evidence that he asserted
his speedy trial rights. The Court acknowledges that Petitioner could not have
demanded a speedy trial until he was formally charged in September 2007 because
prior to that time he lacked a forum in which to raise his speedy trial rights.5 Thus,
Petitioner had only a limited time – from the charges in September 2007 to trial in
February 2008 – to demand a speedy trial. But the fact remains that Petitioner

5

There is some evidence in the record that Petitioner may have been charged with
the drug offenses at the time of his first arrest in January 2006. (See ECF #10 at
15, Pg. ID 841.) However, Petitioner testified that he was not charged with the
drug offenses until he was re-arrested in September 2007. (See Tr. I at 36, Pg. ID
222.) If Petitioner had been charged with the drug offenses in January 2006, his
failure to assert his speedy trial rights would weigh more heavily against him, as he
would have had a longer time period in which to assert those rights. As explained
below, even using the September 2007 date that is more favorable to Petitioner, he
still has not shown that he asserted his speedy trial rights.
27

never made such a demand. The third factor therefore does not favor Petitioner.
However, given the narrow window of time he had to make a demand, this factor
does not weigh heavily against him.
The fourth factor – prejudice to the Petitioner – weighs in favor of
Respondent.

This factor “requires the [petitioner] to show that substantial

prejudice has resulted from the delay.” United States v. Robinson, 455 F.3d 602,
608 (6th Cir. 2006) (emphasis added). Prejudice is evaluated with respect to the
three purposes of the speedy trial right: “(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. “Of
these, the most serious is the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.” Id. Petitioner alleges
that the First-Arrest-to-Trial Delay impaired his defense because it resulted in the
loss of the potentially-exculpatory audio recordings. But, as discussed above,
Petitioner has not established that he was substantially prejudiced in light of the
overwhelming evidence against him, including his written confession, Mirza’s
testimony that he purchased cocaine from Petitioner, Officer Spencer’s testimony
that he was present for several of the transactions, and Sergeant Dare’s testimony
that he searched Mirza prior to each controlled buy.

Given the compelling

evidence of Petitioner’s guilt, Petitioner has not shown that the First-Arrest-to28

Trial Delay resulted in substantial prejudice.

See, e.g., Sylvester, Jones, and

Cowart, supra.
Weighing all of the relevant factors, the Court concludes that Petitioner has
not sufficiently established a Sixth Amendment violation. The Sixth Circuit has
recognized that the prejudice factor is “[t]he most important factor in our analysis,”
and a petitioner’s failure to establish prejudice “is sufficient to tip the balance in
favor of” the government. Bobby, 656 F.3d at 335, 337. See also United States v.
Love, 178 F.3d 1297, 1999 WL 115523, at *6-8 (no Sixth Amendment violation
when first three Barker factors favored defendant, but defendant did not show
prejudice from delay). Thus, while some of the Barker factors favor Petitioner,
Petitioner’s failure to demonstrate prejudice compels the conclusion that his Sixth
Amendment right to a speedy trial was not violated.6
D. Admission of the Lab Report
Petitioner asserts that his rights under the Confrontation Clause were
violated when the trial court admitted the Lab Report without hearing testimony
from Topacio. (See Petition at 10, Pg. ID 11.) Petitioner further contends that he
was denied effective assistance of trial counsel on the ground that his attorney

6

To the extent that Petitioner raises a freestanding ineffective assistance of
counsel claim in his Petition on the ground that his trial and/or appellate counsel
failed to invoke his Sixth Amendment speedy trial rights, that claim fails because
Petitioner has not shown that the result of the proceedings would have been
different if his counsel had raised the issue. See Wade, 785 F.3d at 1059.
29

entered into a stipulation to admit the Lab Report. (See id.) Petitioner also argues
that his appellate counsel was ineffective for failing to raise these issues on direct
appeal. (See id.)
Petitioner raised these issues for the first time in his Motion to Amend. (See
ECF #9-12 at 6, Pg. ID 799.) The state trial court neither reached the merits of the
claim nor enforced a procedural default. (See ECF #9-13.) Accordingly, this
Court reviews these claims de novo. See Wiggins, 539 U.S. at 533-535.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with the witnesses against him.”
U.S. CONST. amend. VI.

The admission of “testimonial” hearsay statements – that

is, out of court statements that are the functional equivalent of in-court testimony –
violates a defendant’s Sixth Amendment rights unless the declarant is unavailable
for trial and the defendant had a prior opportunity to cross-examine the witness.
See Crawford v. Washington, 541 U.S. 36, 68 (2004).
The Supreme Court addressed the admissibility of a laboratory report in the
absence of the author’s in-court testimony in Melendez-Diaz v. Massachusetts, 557
U.S. 305, 308-09 (2009). In that case, a state prosecutor sought to introduce
forensic laboratory reports showing that a substance seized during the defendant’s
arrest was cocaine. The state court admitted the reports without requiring the
laboratory analysts who performed the tests to testify in person. The Supreme
30

Court reversed, concluded that the reports were “functionally identical to live, incourt testimony” by the analysts regarding the results of their tests – and the
defendant was therefore entitled to confront the analysts at trial. Id. at 310-11.
Melendez-Diaz suggests that there was a basis for Petitioner’s trial counsel
to object to the admission of the Lab Report.7 Petitioner’s trial counsel, however,
waived this objection. (See Tr. at 280, Pg. ID 467 (“If this witness, Ms. Topacio,
was to come in and to testify, I would stipulate that her testimony would be that the
substance she examined was found to be cocaine.”); see also Melendez-Diaz, 557
U.S. at 314 n.3 (2009) (“The right to confrontation may, of course, be waived...”).)
Under these circumstances, having stipulated to the admission of the Lab Report,
Petitioner’s challenge to the admission of the report must be one for ineffective
assistance of counsel.
Petitioner has not shown that he is entitled to relief on the ground of
ineffective assistance of counsel.

Even if trial counsel’s stipulation to the

admission of the Lab Report was deficient representation, Petitioner has not shown
that he was prejudiced by the stipulation. Indeed, Petitioner has not presented any
evidence that the substance he sold to Mirza was not, in fact, cocaine. Nor has

7

Although Melendez-Diaz was decided after Petitioner’s trial, the Sixth Circuit
has explained Melendez-Diaz “did not provide a new or novel interpretation of the
Confrontation Clause.” See Peak v. Webb, 673 F.3d 465, 480 (6th Cir. 2012).
Rather, Melendez-Diaz “merely confirms the plain language of the Sixth
Amendment and its undisturbed interpretation by the Supreme Court.” Id.
31

presented any reason to believe that cross-examination of Topacio would have
undermined in any way the conclusions she stated in the Lab Report. Thus,
Petitioner has failed to show a reasonable likelihood that the outcome of his trial
would have had a different if he had been permitted to cross-examine Topacio.
Simply put, Petitioner has failed to show prejudice. Accordingly, Petitioner is not
entitled to relief on the ground that his trial or appellate counsel were ineffective
with respect to their handling (or non-handling, in the case of appellate counsel) of
the Lab Report.
E. Sufficiency of the Evidence
Petitioner asserts that if the Lab Report had not been admitted, the remaining
evidence would have been insufficient to sustain his convictions. (See Petition at
13, Pg. ID 13; see also Reply Br. at 11-12, Pg. ID 837-38.) This claim has no
merit. “[A] reviewing court must consider all of the evidence admitted by the trial
court, regardless of whether that evidence was admitted erroneously.” McDaniel
v. Brown, 558 U.S. 120, 131 (2010) (emphasis added); see also United States v.
Clay, 667 F.3d 689, 701 (6th Cir. 2012) (same). “Because [Petitioner’s] claim
depends on his assertion that the evidence of his guilt was insufficient without [the
Lab Report], it necessarily fails because consideration of that [document] is
required for purposes of a sufficiency-of-the-evidence evaluation.” Sanborn v.
Parker, 629 F.3d 554, 578-79 (6th Cir. 2010).
32

Moreover, and in any event, Petitioner’s sufficiency-of-the-evidence
argument mischaracterizes the record.

Petitioner asserts that without the Lab

Report, the prosecution had no evidence that the substance Petitioner sold to Mirza
was cocaine. (See Reply Br. at 11-12, Pg. ID 837.) Not true. For example,
Officer Spencer and another law enforcement officer testified that they examined
the substance Petitioner sold to Mirza and that they believed that the substance was
cocaine. (See Tr. I at 200-02, Pg. ID 387-89; Tr. II at 254, Pg. ID 441.) More
importantly, Petitioner confessed to selling cocaine to Mirza. Thus, even without
the Lab Report, the record contains sufficient evidence to support his conviction.
Finally, Petitioner asserts that his trial and appellate counsel were ineffective
for failing to raise a sufficiency-of-the-evidence claim at trial and on appeal. (See
Petition at 13, Pg. ID 13.) However, for the reasons explained above, Petitioner has
not shown that this claim has merit, and thus he failed to show that his trial or
appellate counsel erred by failing to raise it. Accordingly, Petitioner is not entitled
to relief on the ground of ineffective assistance of counsel.
CERTIFICATE OF APPEALABILITY
In order to obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right.

See 28 U.S.C. §

2253(c)(2). To demonstrate this denial, the applicant is required to show that
reasonable jurists could debate whether, or agree that, the petition should have
33

been resolved in a different manner, or that the issues presented were adequate to
deserve encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473,
483–84 (2000). “The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Rules Governing § 2254
Cases, Rule 11(a).
As discussed above, the Court believes that Petitioner is not entitled to
habeas relief on any of the claims in his Petition. However, reasonable jurists
could debate the Court’s conclusion that Petitioner is not entitled to relief based on
his claims that (1) the Offenses-to-Second-Arrest Delay violated his due process
rights, and (2) the First-Arrest-to-Trial-Delay violated his Sixth Amendment
speedy trial rights.

Therefore, the Court will grant Petitioner a certificate of

appealability solely as to these two issues.
CONCLUSION
For the reasons discussed in this Opinion and Order, IT IS HEREBY
ORDERED that the Petition for Writ of Habeas Corpus (ECF #1) is DENIED
WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability and
permission to proceed in forma pauperis on appeal is GRANTED solely as to
Petitioner’s claim that the Offenses-to-Second-Arrest Delay violated his due

34

process rights and his claim that the First-Arrest-to-Trial Delay violated his Sixth
Amendment rights. A certificate of appealability is DENIED as to all other issues.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: July 1, 2015
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on July 1, 2015, by electronic means and/or ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

35