Mason v. Michigan, State of
Filing
39
OPINION and ORDER denying the Amended Habeas Corpus Petition, denying a certificate of appealability, and granting leave to appeal in forma pauperis. Signed by District Judge Arthur J. Tarnow. (McColley, N)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DE’VAUGHN DAMIEL MASON,
Petitioner,
v.
CASE NO. 2:13-cv-12126
HONORABLE ARTHUR J. TARNOW
STEVEN RIVARD,
Respondent.
______________________________/
OPINION AND ORDER DENYING THE AMENDED HABEAS CORPUS
PETITION, DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
This matter has come before the Court on petitioner De’Vaughn Damiel
Mason’s pro se amended habeas corpus petition, which challenges Petitioner’s
convictions for assault with intent to commit murder, Mich. Comp. Laws § 750.83,
possession of a firearm during the commission of a felony, second offense (“felony
firearm”), Mich. Comp. Laws § 750.227b, and felon in possession of a firearm
(“felon in possession”), Mich. Comp. Laws § 750.224f. Petitioner raises six claims
regarding his right to present a defense, the oath read to the jury, the state trial
judge’s conduct, Petitioner’s trial and appellate attorneys, and the lack of an
evidentiary hearing during post-conviction proceedings in state court.
The State
urges the Court to deny the amended petition on grounds that Petitioner did not
comply with the Court’s abeyance order and his claims are not cognizable on habeas
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review, are procedurally defaulted, or are meritless. Having reviewed the state-court
record and the parties’ pleadings, the Court concludes that Petitioner is not entitled
to relief. Accordingly, the Court will deny the amended petition on the merits.
I. Background
A. The Charges, Trial, Sentence, and Direct Appeal
Petitioner was charged with assault with intent to commit murder or assault
with intent to commit great bodily harm less than murder, felony firearm, second
offense, and felon in possession. The charges against Petitioner arose from a
shooting outside the Suite 100 nightclub in Detroit, Michigan on March 19, 2010.
Petitioner was tried before a jury in Wayne County Circuit Court. The Michigan
Court of Appeals briefly summarized the evidence trial as follows:
Several witnesses testified that defendant, who was working as a
bouncer at the nightclub, shot Albert Sadler in the arm following a
dispute involving defendant’s refusal to admit Sadler’s companions
into the nightclub without proper identification. Defendant’s theory of
defense at trial was that he was inside the nightclub at the time of the
shooting and was misidentified as the shooter.
People v. Mason, No. 300008, 2011 WL 6186955 at *1 (Mich. Ct. App. Dec. 13,
2011).
On July 16, 2010, the jury found Petitioner guilty of assault with intent to
commit murder, felony firearm, and felon in possession of a firearm. On August 6,
2010, the trial court sentenced Petitioner to five years in prison for the felony-firearm
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conviction, followed by concurrent prison terms of twenty-five to fifty years for the
assault conviction, and five to ten years for the felon-in-possession conviction.
In an appeal of right, Petitioner argued through counsel that the trial court
deprived him of his right to present a defense by limiting his questioning of
witnesses. The Michigan Court of Appeals found no merit in Petitioner’s claim and
affirmed his convictions. See id.
Petitioner raised the same issue and an additional claim about appellate
counsel in an application for leave to appeal in the Michigan Supreme Court. On
May 21, 2012, the Michigan Supreme Court denied leave to appeal because it was
not persuaded to review the questions presented to the court. See People v. Mason,
491 Mich. 920; 812 N.W.2d 745 (2012).
B. The Initial Petition and Post-Appellate Proceedings in State Court
In 2013, Petitioner filed his initial habeas corpus petition, which raised the
two claims that Petitioner presented to the Michigan Supreme Court on direct appeal:
denial of the right to present a defense and ineffective assistance of appellate
counsel. See ECF No. 9. In a motion attached to the petition, see id. at PageID.7491, Petitioner asked the Court to hold his habeas petition in abeyance while he
exhausted additional state remedies.
On April 24, 2014, the Court granted Petitioner’s motion for a stay. See ECF
No. 19. The order directed Petitioner to file a motion for relief from judgment in the
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state trial court within ninety days of the Court’s order and to file an amended
petition and a motion to re-open this case within ninety days of exhausting state
remedies if he were unsuccessful in state court. The order also closed this case for
administrative purposes.
On June 30, 2014, Petitioner filed a motion for relief from judgment in which
he argued that: (1) the trial court failed to read a proper oath to the jury; in the
alternative, defense counsel was ineffective for failing to object; (2) the trial court
assumed the prosecutor’s role and pierced the veil of impartiality; (3) trial counsel
made various mistakes and omissions; and (4) appellate counsel (a) prevented him
from raising issues in a pro se supplemental brief and (b) failed to raise issues about
trial counsel’s ineffectiveness and the trial court’s abuse of discretion. See ECF No.
27-3.
The successor trial court denied Petitioner’s motion because Petitioner had
not shown “good cause” for failing to raise the first three issues on direct appeal and
“actual prejudice” or a significant possibility that he was innocent. The successor
court also found no merit in Petitioner’s claims, including his claim about appellate
counsel. See People v. Mason, 10-003885-01-FC (Wayne Cty. Cir. Ct. Sept. 5,
2014); ECF No. 27-4.
Petitioner moved for reconsideration, see ECF No. 27-5, but the successor
court denied his motion. The court stated that it did not err in denying relief on the
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issue about the jury’s oath. The court declined to revisit the issue about the trial
judge’s questioning of witnesses, and the court stated that Petitioner had not shown
how the court erred in denying relief on the issue of trial counsel’s failure to move
to suppress photos of the crime scene. The court found the issues to be without
merit, and it concluded that Petitioner was not denied effective appellate assistance
when the issues were not presented on direct appeal. See People v. Mason, No. 10003885-01-FC (Wayne Cty. Cir. Ct. Oct. 1, 2014); ECF No. 27-6.
Petitioner appealed the trial court’s decision without success. The Michigan
Court of Appeals denied leave to appeal because Petitioner failed to establish
entitlement to relief under Michigan Court Rule 6.508(D). The Court of Appeals
stated that Petitioner alleged “grounds for relief that could have been raised
previously and he has failed to establish both good cause for failing to previously
raise the issues and actual prejudice from the irregularities alleged, and has not
established that good cause should be waived.” See People v. Mason, No. 326262
(Mich. Ct. App. May 21, 2015) (citing Mich. Ct. Rule 6.508(D)(3)(a) and (b)); ECF
No. 27-7, PageID.1172.
Petitioner then applied for leave to appeal in the Michigan Supreme Court.
On February 2, 2016, the Michigan Supreme Court denied leave to appeal for failure
to establish entitlement to relief under Michigan Court Rule 6.508(D). See People
v. Mason, 499 Mich. 856; 873 N.W.2d 315 (2016).
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C. The Amended Petition and Request to Compel Discovery
On October 20, 2017, Petitioner filed a motion to re-open this case, an
amended habeas petition, and a motion for equitable tolling of the statute of
limitations. See ECF Nos. 20-22. He argues in the amended petition that:
1.
the trial court deprived him of due process and his right to
present a defense by limiting his questioning of
prosecution witnesses;
2.
the trial court violated his right to due process by failing
to read the proper oath to the jury; alternatively, defense
counsel was ineffective for failing to object;
3.
the trial judge violated his right to a fair trial by assuming
the role of a prosecutor, questioning prosecution
witnesses, and piercing the veil of impartiality;
4.
he was denied effective assistance of counsel by counsel’s
failure to (a) advocate for him without being deflected by
conflicting considerations, (b) investigate the case (c) file
pretrial motions to suppress evidence, (d) present a
defense, and (e) object to the trial judge’s questioning of
witnesses;
5.
he was denied his constitutional right to effective appellate
counsel during the appeal of right because counsel (a)
prevented him from raising issues in a pro se supplemental
brief and (b) failed to raise issues about trial counsel’s
ineffectiveness and the trial judge’s abuse of discretion;
and
6.
the trial court erred when evaluating Petitioner’s claims
about counsel and by not recognizing the need for an
evidentiary hearing.
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See ECF No. 22 at PageID.890-910; see also ECF No. 24 (Brief in Support of
Amended Pet.). In his motion for equitable tolling, Petitioner asked the Court to
treat his amended petition as timely and to allow him to proceed. ECF No. 21,
PageID.936.
On May 21, 2018, the Court granted Petitioner’s motion to re-open his case
and allowed him to proceed with his case, despite his failure to comply with the
Court’s previous order to return to federal court within ninety days of exhausting
state remedies for new claims. See ECF No. 25. The Court declined to say whether
any of Petitioner’s claims were barred by the habeas statute of limitations. See id.
at PageID.941-942. On July 19, 2018, the State filed an answer to the amended
petition and supplemental state-court documents. See ECF Nos. 26 and 27.
Petitioner subsequently filed a motion to hold his petition in abeyance while
he attempted to obtain documents from the Detroit Police Department and the
Michigan Department of Corrections. See ECF No. 30.
On November 14, 2018,
the Court granted Petitioner’s motion, and gave Petitioner 120 days from the date of
the order to obtain the documents and to submit a reply to the State’s response to his
amended petition. See ECF No. 31.
Petitioner subsequently filed a reply to the State’s response and a motion to
conduct or compel discovery to prove his claims. His motion made a broad request
for any documents or electronic information in the Detroit Police Department’s
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custody, and a more specific request for information on any test performed on a shell
casing found at the crime scene and the results of any blood tests completed after his
trial. See ECF No. 32, PageID.1367, 1370.
The Court granted in part and denied in part Petitioner’s motion for discovery.
See ECF No. 34. The Court ordered the State to determine whether any test results
or reports existed on the blood and casing found at the crime scene. The Court
denied the motion to the extent that Petitioner sought discovery on any gunshot
residue tests. See id. at PageID.1410.
The State responded to the Court’s discovery order by indicating that its
inquiry yielded two laboratory reports from the Michigan State Police Forensic
Science Division. See ECF No. 35. Both reports address the casing in question, and
they are attached to the State’s response.
The first laboratory report was prepared by the Latent Print Unit of the State
Police Forensic Science Division. It states that a test on the casing was completed
on July 18, 2010, and that the evidence “was processed with no latent prints being
developed.” See ECF No. 35-1. The report also indicates that the evidence was
turned over to the Firearms Unit for further analysis. Id.
The second laboratory report was prepared by the Firearms and Toolmarks
Unit of the State Police Forensic Science Division on March 18, 2011. It merely
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indicates that “[t]he submitting agency will be notified if an association is made with
the NIBIN database.” See ECF No. 35-2.
D. The Statute-of-Limitations and Procedural-Default Defenses
1. The Statute of Limitations
The State argues that the amended petition is untimely because Petitioner did
not comply with the one-year statute-of-limitations found in 28 U.S.C. § 2244(d)
and because Petitioner is not entitled to equitable tolling of the limitation period.
See ECF No. 26, PageID.962-978. Petitioner objects to the State’s statute-oflimitations argument on the basis that (1) he was exhausting state remedies and (2)
serious medical issues and transfers from prison to prison caused his unintentional
delay in returning to federal court. See ECF No. 33, PageID.1380-1383, 1385.
Although Petitioner has not submitted any documentation to support the
allegations about his medical issues and institutional transfers, his trial attorney
pointed out at Petitioner’s sentencing that Petitioner suffered from several serious
health problems, including chronic asthma, diabetes, rheumatoid arthritis, and
pancreatic cancer. See 8/6/10 Sentence Tr. at 4, ECF No. 18-6, PageID.779, 790.
Defense counsel described Petitioner as “terminally ill with pancreatic cancer,” id.
at PageID.790, and disabled, id. at PageID.792, and Petitioner stated that he was “in
and out of the hospital” for dialysis. Id. at PageID.793.
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The habeas statute of limitations, moreover, is not jurisdictional, Holland v.
Florida, 560 U.S. 631, 645 (2010) (quoting Day v. McDonough, 547 U.S. 198, 205
(2006)), and Petitioner’s claims do not warrant habeas relief. The Court, therefore,
will excuse the late filing of the amended petition and the alleged failure to comply
with the habeas statute of limitations.
2. Procedural Default
The State contends that habeas claims two through four regarding the oath to
the jury, the trial judge, and trial counsel are procedurally defaulted because the
Michigan Court of Appeals was the last state court to address those claims, and it
denied relief due to Petitioner’s failure to raise the claims on direct appeal. See ECF
No. 26, PageID.945, 981-985, 991, 997. Petitioner appears to concede that at least
one of his claims is procedurally defaulted, but he argues that appellate counsel was
“cause” for his failure to raise all his claims on direct appeal.
See ECF No. 33,
PageID.1385-1386, 1390.
A procedural default ordinarily is not a jurisdictional matter, Johnson v. Lee,
136 S. Ct. 1802, 1806 (2016) (quoting Trest v. Cain, 522 U.S. 87, 89 (1997)), and a
court may bypass a procedural-default question in the interest of judicial economy
if the claim is easily resolvable against the habeas petitioner. Lambrix v. Singletary,
520 U.S. 518, 525 (1997). The Court “cut[s] to the merits” here, as a procedural-
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default analysis would only complicate this case. See Thomas v. Meko, 915 F.3d
1071, 1074 (6th Cir.), cert. denied, 139 S. Ct. 2726 (2019).
II. Standard of Review
28 U.S.C. § 2254(d) imposes the following standard of review for habeas
cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(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 proceedings.
28 U.S.C. § 2254(d). Additionally, this Court must presume the correctness of a
state court’s factual determinations. 28 U.S.C. § 2254(e)(1).
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 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
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prisoner’s case.” Id. at 409. 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. Rather,
that application must also be unreasonable.” Id. at 411.
“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)). Thus, “[o]nly an ‘objectively
unreasonable’ mistake, . . . one ‘so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement,’ slips through the needle’s eye of § 2254.” Saulsberry v.
Lee, 937 F.3d 644, 648 (6th Cir.) (quoting Richter, 562 U.S. at 103), cert. denied,
140 S. Ct. 445 (2019).
III. Discussion
A. The Right to Defend and the Questioning of Witnesses
Petitioner alleges first that the trial court deprived him of his constitutional
right to present a complete defense by limiting defense counsel’s questioning of
Sergeant Michael Jackson and Investigator James Blanks. Petitioner contends that
defense counsel was prevented from asking those witnesses about: (1) an unknown
individual who may have been the shooter; (2) the police department’s policy on
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testing for gunpowder residue; (3) DNA testing of blood swabs, as well as, the
position and location of blood drops; and (4) the results of any fingerprints on a
casing found at the scene. See ECF No. 22, PageID.890-891.
Petitioner contends that each time defense counsel attempted to cross-examine
Sergeant Jackson and Investigator Blanks on these issues, the trial court prevented
him from doing so. He claims that the limitations which the trial court placed on his
cross-examination of Jackson and Blanks invaded the jury’s role, denied him the
right to present a defense, and undermined the truth-seeking function of the trial
process. See id. at PageID.891.
The Michigan Court of Appeals adjudicated this issue on direct appeal and
concluded that the trial court gave Petitioner an opportunity to present his defense
and did not violate his right to due process. In reaching this conclusion, the Court
of Appeals noted that:
[t]he [trial] court allowed defense counsel to cross-examine the police
officers regarding the failure to conduct a gunshot residue test and the
fact that they did not receive the DNA test results or the fingerprint
analysis. Counsel was thus permitted to show the jury that the tests
were either not conducted or that the results were never received. The
trial court also gave defense counsel an opportunity to cross-examine
the prosecution’s witnesses regarding their vantage points at the time
of the shooting, and defendant called five witnesses, including himself,
to testify on his behalf. Moreover, defendant admitted two exhibits—
pictures depicting the nightclub’s foyer and back door—both
supporting the defense witnesses’ testimony.
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Mason, 2011 WL 6186955, at *3. For reasons given below, the state appellate
court’s adjudication of Petitioner’s claim on the merits was not contrary to, or an
unreasonable application of, clearly established Supreme Court precedent on the
right to present a defense.
1. Clearly Established Federal Law
The Supreme Court stated in Crane v. Kentucky, 476 U.S. 683 (1986), that,
“[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment
or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense.” Id. at 690 (citations and quotation marks omitted). Defendants
have a right to present to present testimony that is relevant, material, and vital to the
defense. See Washington v. Texas, 388 U.S. 14, 16 (1967).
“The right to present a defense, however, is not absolute.” Ferensic v. Birkett,
501 F.3d 469, 475 (6th Cir. 2007) (citing Taylor v. Illinois, 484 U.S. 400, 409 (1988),
and Michigan v. Lucas, 500 U.S. 145, 152 (1991)). The right “is subject to
reasonable restrictions,” United States v. Scheffer, 523 U.S. 303, 308 (1998), and the
exclusion of evidence is unconstitutionally arbitrary or disproportionate only if it
“infringed upon a weighty interest of the accused,” id., or “significantly undermined
fundamental elements of the defendant’s defense,” id. at 315. Trial judges may
“exclude evidence if its probative value is outweighed by certain other factors such
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as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes
v. South Carolina, 547 U.S. 319, 326 (2006). The Constitution also permits judges
to exclude evidence that is repetitive or only marginally relevant. Id. (quoting
Crane, 476 U.S. at 689).
Furthermore, “erroneous evidentiary rulings rarely constitute a violation of a
defendant’s right to present a defense.” United States v. Hardy, 586 F.3d 1040, 1044
(6th Cir. 2009) (citing Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001)). A
reviewing “court’s duty ‘is not to determine whether the exclusion of the evidence
by the trial judge was correct or incorrect under state law, but rather whether such
exclusion rendered [the] petitioner’s trial so fundamentally unfair as to constitute a
denial of federal constitutional rights.’ ” Lewis v. Wilkinson, 307 F.3d 413, 420 (6th
Cir. 2002) (quoting Logan v. Marshall, 680 F.2d 1121, 1123 (6th Cir. 1982)).
Therefore, “even if exclusion of evidence was erroneous under state law, the
constitutional right to present a defense is not abridged unless the evidence was so
material that it deprived the defendant of a fair trial.” Allen v. Howes, 599 F. Supp.
2d 857, 872 (E.D. Mich. 2009).
2. Application
a. Other Possible Suspects
Petitioner first contends that defense counsel was prevented from asking
Sergeant Jackson and Investigator Blanks about an unknown individual who may
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have been the shooter. Petitioner has not cited to the transcript on this issue, and the
Court has found nothing in the record that suggests defense counsel was prevented
from asking the police officers about other suspects. Therefore, Petitioner’s subclaim on this issue fails.
b. Gunpowder Residue Tests
Petitioner alleges next that he was prevented from asking the police officers
about the police department’s policy on gunshot residue testing.
i. Cross-Examination of Sergeant Michael Jackson
Sergeant Jackson testified on direct examination that Petitioner did not ask for
a gunpowder residue test, that the Detroit Police Department did perform gunpowder
residue tests, and that it would have been customary to conduct such a test if
Petitioner had requested one. See 7/15/10 Trial Tr., ECF No. 18-4, PageID.585.
On cross-examination, Sergeant Jackson explained what a gunpowder residue
test was and its purpose. After Jackson repeated that he would have administered
the test, if Petitioner had requested it, defense counsel asked Jackson whether it
behooved the police department to administer the test even if Petitioner did not ask
to be tested. Jackson answered the question by explaining that the decision to
administer the test depends on the investigation, the type of witnesses, and what
happened in the case. Jackson also explained that time can be a factor and that he
interviewed Petitioner about twenty-three hours after the crime. Jackson also stated
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that, even though the Detroit Police Department was still administering gunpowder
residue tests at the time, the test normally should be done within six hours of firing
a gun. See id. at PageID.586-589.
Later, on redirect examination, Sergeant Jackson reiterated that he would have
administered a gunpowder residue test if Petitioner had requested one. See id. at
PageID.599. Defense counsel then asked Jackson on re-cross examination whether
the officer in charge of a case, and not the defendant, usually makes the request for
a gunpowder residue test. See id. at PageID.600. When the prosecutor objected to
the general question, the trial court said,
You know, I don’t see why we are spending so much time with this.
He said that he didn’t conduct a test. One was not done. He said that
even the time factor was something because it was 23 hours or
something afterwards. He didn’t do it. Regardless of whether he did
or did not ask for it, it was not done. What else do we need to know
from this?
Id. at PageID.601.
Defense counsel persisted that it was important, because Sergeant Jackson
was attempting to tell the jury that defendants usually ask for the test. The trial court
then asked the prosecutor to stipulate that a defendant does not have to ask for a
gunshot residue test before the police may give test, and the prosecutor conceded
that, in some circumstances, the test may be done whether or not the defendant asks
for the test. See id. at 601-602.
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The trial court responded: “The police can do that. I think that’s what
Sergeant Jackson has said. I don’t understand what the point is. I'll give you one
more opportunity to tell me what it is you are concerned about.” Id. at PageID.602.
Defense counsel replied, “I'm fine, your Honor. You just straightened it up.” Id.
That concluded Sergeant Jackson’s testimony.
ii. Cross-Examination of Investigator James Blanks
The issue arose again during Investigator Blanks’ testimony. He testified on
direct examination that he saw no need for a gunpowder residue test because at least
eight witnesses had identified Petitioner as shooter, and identification was not an
issue. Blanks also stated that, if he had received a request for a gunpowder test, his
response would have been that the lab was closed and that evidence technicians no
longer prepared the kits needed to do the test, although it might still be done in
homicide cases. See id. at PageID.606-607.
On cross-examination, defense counsel asked Blanks whether it was the
Detroit Police Department’s policy not to do gunpowder residue tests after the
Detroit crime lab closed. Blanks answered, “No,” that was not the Department’s
policy. Id. at PageID.613. But when defense counsel attempted to ask Blanks
whether he could have administered a gunpowder residue test, the trial court said,
I’m going to cut this off right here. We have been over this ad
infinitum. There was no test done. Whatever the reason might have
been, it was not done. There is no sense in spending a great deal of
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time with explaining the what and why and why it wasn’t done. It
wasn’t done. So, that’s the end of that.
Id. at PageID.613. Defense counsel persisted, but the trial court said there was no
value in the reasons why the test was not done. See id. at PageID.614.
iii. The State Appellate Court’s Decision
The Michigan Court of Appeals concluded on review of Petitioner’s claim
that the trial court did not abuse its discretion by restricting cross-examination on
the police department’s failure to conduct a gunpowder residue test. This was a
reasonable decision, because the record demonstrates that defense counsel had an
opportunity to explore the gunpowder issue with Sergeant Jackson and Investigator
Blanks, and he established the fact that the test could have been, but was not,
administered. The reason why the test was not administered was only marginally
relevant.
The Court of Appeals also reasonably concluded that Petitioner’s right to
present a defense was not violated. The reason for not administering the gunpowder
residue test was not vital to Petitioner’s defense that he was not the shooter. The
prosecutor, moreover, stipulated that, in some circumstances, the test may be
administered even if the defendant did not ask for it.
Finally, defense counsel was able to use the police department’s failure to
administer the test as part of the defense. He stated during closing arguments that
the police had conducted a poor investigation, in part, because they did not perform
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a gunpowder residue test. Defense counsel also said that either Sergeant Jackson or
Investigator Blanks was not telling the truth because Jackson testified that the
department could have performed the test, and Blanks testified that the department
was not doing the test at the time. See id. at PageID.725-727.
Petitioner’s right to present a complete defense was not violated by the
limitations placed on his cross-examination of the police officers regarding
gunpowder residue tests. Habeas corpus relief, therefore, is not warranted on
Petitioner’s sub-claim.
c. The Location and Testing of Blood
Petitioner alleges that defense counsel was prohibited from questioning a
police officer about the location of blood found at the crime scene and DNA tests
performed on the blood. This claim arose when defense counsel asked Investigator
Blanks whether he had ordered someone to collect a swab of blood found at the
crime scene and whether he had ordered tests on the blood swab. Blanks answered
that he did order someone to collect a swab and that he submitted the blood for DNA
testing, but that he had not received the test results. See id. at PageID.620.
When defense counsel asked Blanks whether he had called the lab before trial
and requested the test results, the prosecutor objected, and the trial court questioned
the relevance of defense counsel’s inquiry. See id. at PageID.621-622. The court
also stopped any further questioning on whether Blanks had sent the blood to the
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lab, how the blood was sent, and whether Blanks had received the test results. See
id. at PageID.622. The court said:
There is nothing here in terms of . . . any blood spots or anything being
attributed to [your client]. If it’s supposedly attributed to Mr. Sadler,
we know he was shot out there, so I’m trying to understand what is the
significance of whether or not the blood or DNA would show anything,
no matter who and what.
If you do that, you have to be able to compare that blood to
somebody to get a DNA test. So, you have to start with person A and
say this is their blood. Who is it that you are suggesting the blood
belongs to? Those are the kind of questions that need to be asked
beforehand, otherwise it’s just mass confusion.
Id. at PageID.622-623.
The court then asked defense counsel whether he wished to ask Blanks
anything more. Defense counsel responded to the court’s inquiry by stating that he
wanted to ask Blanks where the blood was found. The court denied counsel
permission to ask that question. See id. at PageID.623.
The Michigan Court of Appeals concluded on review of Petitioner’s claim
that the trial court did not abuse its discretion by prohibiting questions on the DNA
testing of the blood swab. The Court of Appeals correctly pointed out that the
case presented no issue concerning the victim’s identity, and the trial
court allowed defense counsel to inquire regarding the location of the
blood in relation to where Sadler was shot. The trial court properly
determined that the DNA test results were irrelevant given that the
identity of the victim was undisputed. Moreover, the exact location of
the blood drops was irrelevant to the ultimate issue of whether
defendant committed the shooting.
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Mason, 2011 WL 6186955, at *2.
For the reasons given by the Court of Appeals, the exclusion of testimony
about the location and testing of blood did not undermine a fundamental element of
the defense, and, therefore, it did not violate Petitioner’s right to present a defense.
Evidence about the location and source of the blood was not relevant to the main
question of whether Petitioner shot the victim.
Even if evidence about the blood were relevant, the evidence technician had
already testified that he observed the blood on the sidewalk across the street from
the nightclub. See 7/14/10 Trial Tr., ECF No. 18-3, PageID.383. And defense
counsel used Investigator Blanks’ failure to obtain test results on the blood to support
the defense that Blanks’ investigation of the crime was inadequate, that the physical
evidence did not mesh with the eyewitnesses’ testimonies, and that the eyewitnesses
were lying about where the victim fell after being shot. See 7/15/10 Trial Tr., ECF
No. 18-4, PageID.718-719, 722-724. Petitioner was not deprived of his right to
present a defense, and he has no right to relief on his sub-claim about the limitations
placed on his questions about the location and testing of blood.
d. Fingerprints
Petitioner’s final sub-claim regarding his right to present a defense alleges that
defense counsel was prohibited from questioning a police officer about the results
of any fingerprint tests performed on a casing found at the crime scene. Defense
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counsel, however, was permitted to ask Investigator Blanks whether he ordered
someone to collect the casing at the crime scene and whether the casing was
preserved for fingerprints. Blanks answered that he did order someone to collect the
casing, that the casing was sent to the lab, but that the lab had not returned a report.
See 7/15/10 Trial Tr., ECF No. 18-4, PageID.615-616. When defense counsel
subsequently asked Blank for the date that he sent the casing to the lab, the
prosecutor objected, and the trial court said:
Stop for a minute. Stop for a minute. Everybody. Okay.
Let me try to be as calm as I possibly can here out of my own frustration.
We can get to this very quickly. If he sent it to the lab, did he get a
report back saying that the Defendant’s fingerprints were on that, if not,
he says no, what’s left? It is very simple. Two questions. Let’s move
on, please.
Id. at PageID.617. The court then asked Blanks whether he had received a report
indicating that Petitioner’s fingerprints were on the casing, and Blanks responded,
“No.” See id. at PageID.617-618.
Defense counsel subsequently asked Blanks whether he had contacted the lab
and asked for the report, knowing that the case was set for trial. See id. at
PageID.618. The trial court determined that counsel’s question was argumentative,
because there was no evidence that Petitioner’s fingerprints were on the casing. See
id. at PageID.618-619.
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Defense counsel, nevertheless, expressed his concern about the thoroughness
of the investigation. The trial court then said:
I have ruled that [there is] no more to be said about it. He didn’t
get the report back. There is nothing in evidence to indicate one way
or the other about any kind of fingerprints here so there is no evidence
here. The jury doesn’t have to be caught up if there are fingerprints or
not. It’s not an issue. We’re not going to get into whether the police
dotted all the I’s and crossed all the T’s unless it touches on something
that they didn’t do that is important to the case and to the evidence here.
Otherwise, let’s move on to something more pertinent. That’s it. Move
on.
Id. at PageID.619. The Michigan Court of Appeals reasonably concluded from the
record that the trial court did not abuse its discretion by prohibiting further questions
about fingerprint analysis on the casing.
The state appellate court’s additional conclusion that Petitioner was not
deprived of his right to present a defense was not an unreasonable application of
Supreme Court precedent, because the lack of any fingerprint evidence tying
Petitioner to the crime benefitted Petitioner. Additionally, the officer’s failure to
request the lab report before trial supported Petitioner’s defense that the police did
not conduct a thorough investigation. Petitioner is not entitled to relief on his subclaim about any fingerprints on the casing found at the crime scene.
3. Conclusion
Petitioner had a meaningful opportunity to present a complete defense, and
the limitations placed on defense counsel’s cross-examination of witnesses did not
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render Petitioner’s trial fundamentally unfair, because the excluded testimony was
not vital to Petitioner’s defense. The state appellate court’s rejection of Petitioner’s
right-to-defend claim was objectively reasonable; therefore, Petitioner is not entitled
to relief on his claim.
B. The Oath to the Jurors
Petitioner alleges next that the trial court violated his right to due process by
failing to read the proper oath to the jury during the court’s preliminary instructions
to the jury.
Petitioner contends that oaths to the jury are designed to protect the
fundamental right to trial by an impartial jury, but the oath in his case did not accord
with the law, and his trial attorney was constitutionally ineffective for failing to
object to the instruction. See ECF No. 22, PageID.892-894.
The disputed oath was administered to the jury following jury selection. It
reads:
Do you solemnly swear or affirm that in this action now before the
Court you will justly decide the questions submitted to you, that unless
you are discharged by the Court from further deliberations, you will
render a true verdict and that you will render your verdict only on the
evidence introduced and in accordance with the instructions of the
Court.
7/14/10 Trial Tr., ECF No. 18-3, PageID.361.
Although the jurors responded, “Yes,” Petitioner contends that the oath did
not conform to Michigan law because the phrases “so help you God” and “this you
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do under the pains and penalties of perjury” are missing from the oath.1 Petitioner
asserts that the missing phrases were mandatory requirements and that their omission
rendered the preliminary instructions constitutionally deficient, because the jury was
not informed of the serious nature of the charges or that their findings would impact
his life. According to Petitioner, the proper oath was needed to ensure that the jurors
paid attention to the evidence, observed the credibility and demeanor of the
witnesses, and conducted themselves as befits someone holding an important
Petitioner
1
relies on Mich. Comp. Laws § 768.14, which reads:
The following oath shall be administered to the jurors for the trial of all
criminal cases: “You shall well and truly try, and true deliverance
make, between the people of this state and the prisoner at bar, whom
you shall have in charge, according to the evidence and the laws of this
state; so help you God.”
The corresponding court rule states that
[t]he jury must be sworn by the clerk substantially as follows:
“Each of you do solemnly swear (or affirm) that, in this action now
before the court, you will justly decide the questions submitted to you,
that, unless you are discharged by the court from further deliberation,
you will render a true verdict, and that you will render your verdict
only on the evidence introduced and in accordance with the
instructions of the court, so help you God.”
Mich. Ct. R. 2.511(H)(1). Pursuant to Mich. Comp. Laws § 768.15, jurors must “be
allowed to make affirmation, substituting the words ‘This you do under the pains
and penalties of perjury’ instead of the words ‘so help you God.’ ”
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position. Petitioner also maintains that, without the oath, the jury had no authority
to render a verdict on his guilt or innocence. See ECF No. 22, PageID.893.
The successor trial court, however, stated in its order denying Petitioner’s
motion for relief from judgment that, “[a]lthough the oath did not specifically
include the words ‘so help you God’ or under the ‘pains and penalties of perjury,’ it
[was] nearly identical to the oath prescribed in MCR 2.511(H)(1) as well as M Crim
JI 2.1.” See ECF No. 27-4, PageID.1147. The court also stated that the oath “was
satisfactory because it required the jurors to ‘solemnly swear or affirm’ they would
‘justly decide the questions submitted’ to them, and ‘render a true verdict’ based “on
the evidence introduced and in accordance with the instruction of the Court.” Id.
The court concluded that “[t]he oath as given did not affect the defendant’s rights.”
Id.
1. Legal Framework
Defendants in criminal cases have a constitutional right to an impartial jury
and a fundamentally fair trial. See Skilling v. United States, 561 U.S. 358, 438
(2010). These rights “guarantee to criminal defendants a trial in which jurors set
aside preconceptions, disregard extrajudicial influences, and decide guilt or
innocence ‘based on the evidence presented in court.’ ” Id. (citing Irvin v. Dowd,
366 U.S. 717, 723 (1961)).
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Nevertheless, Petitioner has not cited any Supreme Court decision that
requires trial courts to administer an oath containing the phrases “so help you God”
and “this you do under the pains and penalties of perjury.” As stated in Baldwin v.
State of Kansas, 129 U.S. 52, 56 (1889), “no federal question is presented in regard
to the oath administered to the jurors of which this court can take jurisdiction,” id.
at 56, and “federal habeas applies only to convictions that offend ‘the Constitution,
laws, or treaties of the United States.’ ” Keahey v. Marquis, __ F.3d __, No. 184106, 2020 WL 6145774, at *2 (6th Cir. Oct. 20, 2020) (quoting Estelle v. McGuire,
502 U.S. 62, 68, 71–72 (1991)).
Petitioner’s assertion that, without the oath, the jury had no authority to render
a verdict is not a cognizable claim on federal habeas review. See Smith v. Sec'y,
Dep't of Corr., No. 8:13-CV-2260-T-36AEP, 2020 WL 451680, at *39 (M.D. Fla.
Mar. 25, 2020) (unpublished decision stating that the “Petitioner’s assertion that the
oath was inadequate to confer jurisdiction on the trial court because under Florida
law the bailiff was not authorized to administer an oath to a jury panel fails to present
a claim cognizable on federal habeas review”), appeal filed, No. 20-11369 (11th Cir.
Apr. 10, 2020); Dixon v. Giles, No. 1:11-CV-1112-WHA, 2015 WL 277206, at *1
(M.D. Ala. Jan. 22, 2015) (unpublished decision stating that, “[w]hether the trial
court failed to follow state procedure regarding the jury oath is a matter of state law
and is not cognizable on federal habeas corpus review”).
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2. The Instructions and Oath in Petitioner’s Case
Even if Petitioner’s claim were construed as a federal constitutional claim, the
oath read to the jurors in his case did not violate Petitioner’s constitutional rights to
a fair trial and an impartial jury. During the voir dire proceedings, the trial court
stressed the importance of having jurors who could be open-minded, fair, impartial,
and capable of deciding the case on the evidence. See 7/14/10 Trial Tr., ECF No.
18-3, PageID.264-265. The court explained that jurors decide the facts, the weight
to be assigned to the evidence, and the credibility of witnesses.
See id. at
PageID.288-289, 292-293.
Later, after swearing in the jurors, the trial court emphasized once again that
the jurors were the sole judges of the facts and that they alone would determine the
weight and value of the evidence and the credibility of witnesses. See id. at
PageID.363, 367. The court also encouraged the jurors to be alert for anything in a
witness’s words, demeanor, or behavior that might help them judge the truthfulness,
accuracy, and weight to be given the testimony. See id. at PageID.367. The court
also cautioned the jurors not to decide any issue until the entire case had been
submitted to them for deliberation. See id. at PageID.368.
Finally, at the close of the case, the trial court informed the jurors that it was
their responsibility, and not the court’s, to decide the facts, to apply the law to the
facts, to decide whether a witness was believable, and to determine whether the
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prosecution had proved Petitioner was guilty beyond a reasonable doubt. The court
charged the jurors to perform their duties fairly, and it reminded the jurors that they
had “taken an oath to return a true and just verdict based only on the evidence and
[the court’s] instructions on the law.”
See 7/16/10 Trial Tr., ECF No. 18-5,
PageID.740-741, 744.
The trial court’s instructions, taken as a whole, informed the jurors of their
duties, stressed the importance of their role in the case, and required them to be fair
and impartial. When combined with the oath that the court read to the jury, there
can be no doubt that the jurors were alerted to the seriousness of their responsibility
in deciding the case and the need to pay attention to the evidence, to observe the
witnesses carefully, and to conduct themselves as befits someone holding an
important position.
Therefore, Petitioner’s rights to a fair trial and an impartial jury were
protected, even though the oath read to the jury did not contain the phrases “so help
me God” and “this you do under the pains and penalties of perjury.” For the same
reasons, defense counsel’s failure to object to the oath did not amount to
constitutionally ineffective assistance of counsel.
C. The Trial Court’s Conduct
Petitioner alleges that the trial judge abused his discretion and violated
Petitioner’s rights to due process and a fair trial by extensively questioning
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prosecution witnesses like a prosecutor, rather than a detached and impartial judge.
Petitioner claims that the judge’s questioning denied him the right of confrontation,
his right to present a defense, and his right to have counsel in his defense. Petitioner
also contends that the judge’s conduct communicated to the jury that the judge had
an affinity for the prosecution and was biased against Petitioner. See ECF No. 22,
PageID.895-897.
The successor trial court opined on review of Petitioner’s claim that Petitioner
had failed to show the trial judge’s questions were biased, intimidating,
argumentative, prejudicial, unfair, or partial to the prosecutor. The court stated that
the trial judge’s questions were designed to clarify the testimony and that the judge’s
instruction to the jury regarding its questions cured any potential prejudice inferred
by the trial court’s statements or questions. See ECF No. 27-4, PageID.1147-1148.
Petitioner contends that the successor court was wrong, given “the massive number
of times the trial judge . . . took over the questioning of witnesses.” See ECF No.
22, PageID.897.
1. Clearly Established Federal Law
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution “requires a ‘fair trial in a fair tribunal,’ before a judge with no actual
bias against the defendant or interest in the outcome of his particular case.” Bracy
v. Gramley, 520 U.S. 899, 904–05 (1997) (quoting Withrow v. Larkin, 421 U.S. 35,
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46 (1975)). “Although the trial judge does not have to be a passive bystander, the
court should avoid interjecting itself unnecessarily into the questioning of an
important witness, particularly in a criminal case. It is not the job of the trial judge
to try the case for the government.” United States v. Stavroff, 149 F.3d 478, 482
(6th Cir. 1998).
But trial judges are not mere moderators of court proceedings. They must
govern “the trial for the purpose of assuring its proper conduct and of determining
questions of law,” Quercia v. United States, 289 U.S. 466, 469 (1933), and “exert
substantial control over the proceedings,” if necessary, to avoid sacrificing truth and
fairness. Geders v. United States, 425 U.S. 80, 87 (1976). Within limits, the judge
may . . . refuse to allow cumulative, repetitive, or irrelevant testimony, and may
control the scope of examination of witnesses.” Id. at 86-87 (internal and end
citations omitted). The judge may also “interject himself [or herself] into the trial,
speak to counsel, and question witnesses in order to clear up confusion regarding the
evidence or aid in its orderly presentation.” United States v. Powers, 500 F.3d 500,
511 (6th Cir. 2007) (citing McMillan v. Castro, 405 F.3d 405, 410 (6th Cir. 2005)).
One of the most crucial parts of the inquiry is the manner in which the trial “court
chose to interject itself; it is important that the [trial] court act with a neutral,
unbiased demeanor when addressing counsel and witnesses. The trial court should
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not continuously intervene on the side of only one of the parties.” Id. at 512
(citations omitted).
To prevail on a claim of judicial bias, the petitioner must show “there was
bias, or such a likelihood of bias or an appearance of bias that the judge was unable
to hold the balance between vindicating the interests of the court and the interests of
the accused.” Ungar v. Sarafite, 376 U.S. 575, 588 (1964).
Not establishing bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are within
the bounds of what imperfect men and women . . . sometimes display.
A judge’s ordinary efforts at courtroom administration—even a stern
and short-tempered judge’s ordinary efforts at courtroom
administration—remain immune.
Liteky v. United States, 510 U.S. 540, 555–56 (1994) (emphasis in original). Insofar
as the Confrontation Clause is concerned, “trial judges retain wide latitude . . . to
impose reasonable limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness'
safety, or interrogation that is repetitive or only marginally relevant.” Delaware v.
VanArsdall, 475 U.S. 673, 679 (1986).
2. Application
The trial judge in Petitioner’s case interjected himself into the proceedings
several times. It appears from the written record that he was impatient at times, and
one time he admitted that he was frustrated by defense counsel’s repetitious and
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irrelevant questions. See 7/15/10 Trial Tr., ECF No. 18-4, PageID.617. But most of
his comments, questions, and interruptions apparently were meant to advance the
trial, to stop the attorneys from pursuing irrelevant issues, or to clarify the issues.
This was acceptable conduct. See Powers, 500 F.3d at 512 (noting that most of the
trial court’s comments could “be construed as attempts to keep the parties focused
on the issues related specifically to the crime charged and to prevent counsel from
asking repetitive questions”); id. at 513 (stating that, “[a]lthough the court frequently
interjected with what the record suggests was an exasperated tone, the nature and
scope of the court’s comments were quite narrow; the court cautioned the parties to
move on from irrelevant areas of inquiry, refused to allow counsel to ask duplicative
questions, and sought out stipulations of undisputed facts”).
The number of times a trial court interjects itself into the proceedings should
be considered. Id. at 513. At Petitioner’s trial, the trial judge directed questions to
the following prosecution witnesses: the victim, Albert Sadler; Sadler’s girlfriend,
Ewanda George; Sadler’s mother, Regina Davey; Sadler’s cousin, Maresha Davey;
and Investigator James Blanks.
a. Albert Sadler
On the first day of trial, the judge asked Sadler:
● whether there were any other persons standing nearby when he was
shot and who else was in the immediate area (ECF No. 18-3,
PageID.415);
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● to demonstrate how close Petitioner got to him or to the van where
Sadler was standing when he was shot (id. at PageID.421);
● how close Petitioner was to the van and whether Petitioner was
standing at the driver’s side of the van next to Sadler’s girlfriend (id. at
PageID.424);
● whether he was testifying that Petitioner’s comment to Sadler and
members of Sadler’s group was not in Sadler’s statement to the police
or whether he was denying that he made the statement to the police (id.
at PageID.434);
● how many times Sadler had been to the nightclub before the night in
question, whether he had previously seen Petitioner there, the number
of times he had previously seen Petitioner there, what Petitioner was
doing at those times, whether there were other members of Sadler’s rap
group at the door when Sadler was at the door, and whether members
of any other rap groups were at the door when Sadler was there (id. at
PageID.457-458).
b. Ewanda George
On the same day, the trial judge asked Sadler’s girlfriend, Ewanda George,
whether Sadler and Sadler’s friend Darryl Lacy were wearing the same kind of
clothing on the night of the crime. See id. at PageID.467.
c. Regina Davey
On the second day of trial, the trial judge directed the following questions and
remarks to Sadler’s mother, Regina Davey:
THE COURT: Ms. Davey, you said you were on the curbside or
the passenger side of the of the van, right?
THE WITNESS: Yes.
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THE COURT: Describe that van. Is it one that has the regular
front door that you get in on the passenger seat front and it has the
sliding door in the back or just the regular kind of a door?
THE WITNESS: The sliding door on the side.
THE COURT: Had the sliding door been pulled open at the
time?
THE WITNESS: Yes.
THE COURT: So, it was open. And where were you standing
and Mr. Sadler standing in relation to where the sliding door was?
THE WITNESS: He was standing on the passenger side at the
front door, I was standing right there by the side of the sliding door.
THE COURT: Okay. And when you say that the Defendant
came across the street and he stood near Ms. George and fired the gun,
do you remember how it was fired, like, through the window? Did you
see through the window?
THE WITNESS: It was like that, the gun was tipped like that
when he shot it.
THE COURT: Like moved to the side?
THE WITNESS: The gun was too (sic) the side.
THE COURT: Rather than – I don’t know what the terms [are],
but kind of laid to the side in his hand?
THE WITNESS: Yeah.
THE COURT: What I’m asking is did he shoot over the car,
through the window?
THE WITNESS: Through the window.
7/15/10 Trial Tr., ECF No. 18-4, PageID.506-507.
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d. Maresha Davey and James Blanks
Maresha Davey was Sadler’s cousin.
The trial judge interrupted the
prosecutor’s direct examination of Ms. Davey to tell Ms. Davey to answer the
prosecutor’s question and not to elaborate on her answers. See id. at PageID.542.
Later, during the cross-examination, the trial judge questioned Ms. Davey as
follows:
Ms. Davey, just in terms of when you say, without saying feet, when
you think of yourself in the position where the Defendant was when
you say he fired the gun and where the van was, and was it, like, as
close as the court reporter, a little bit further? Can you sort of do it that
way in terms of a number of feet? From where you are, you being the
Defendant and the gun is fired, what’s the closest thing that you can see
here that would be about where the van was and Ms. George?
Id. at PageID.557. Ms. Davey then estimated the distance that Petitioner had been
from the van where Sadler was shot. See id.
The court asked Investigator James Blanks whether he received a report on
fingerprints and whether there was anything with Petitioner’s fingerprints on it. See
id. at PageID.617-618. But Blanks answered, “No,” and this testimony favored the
defense. Defense counsel, moreover, had already asked Blanks whether he received
a report on fingerprints. See id. at PageID.616.
e. The Lack of Bias or Reversible Error; Instructions to the
Jury Regarding the Trial Court’s Remarks
The trial judge’s questioning of prosecution witnesses, as described above,
was not enough to constitute reversible error. In United States v. Smith, 561 F.2d 8,
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13-14 (6th Cir. 1977), for example, the Sixth Circuit Court of Appeals found no
abuse of discretion even though the trial court posed more than two-hundred fifty
questions to witnesses over the course of a month-long trial involving complex
issues and a number of defendants. And in United States v. Lewis, 338 F.2d 137,
140–41 (6th Cir. 1964), the Sixth Circuit concluded that asking more than 1100
questions over a five-day trial was not a desirable judicial practice, but that it did not
constitute prejudicial and reversible error.
Furthermore, the trial judge in Petitioner’s case did not exhibit bias in his
questioning or interruptions. Nor did he consistently favor the prosecution. He often
ruled in favor of the defense. See, e.g., 7/15/10 Trial Tr., ECF No. 18-4, PageID.522
(overruling the prosecutor’s objection to defense counsel’s repetitive question,
because defense counsel was trying to clarify the facts); id. at PageID.565
(sustaining defense counsel’s objection to the prosecutor’s leading question and
instructing the prosecutor to have the witness clarify a fact); id. at PageID.611
(overruling the prosecutor’s objection to defense counsel’s argumentative question);
id. at PageID.655-656 (overruling the prosecutor’s objections to defense counsel’s
questioning of a defense witness); id. at PageID.664 (overruling the prosecutor’s
objection to defense counsel’s question); id. at 668 (telling the prosecutor to sit down
after she asked the trial judge to make defense counsel establish that a witness had
personal knowledge of the things being asked of him); id. at PageID.686 (overruling
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the prosecutor’s objection to Petitioner’s hearsay testimony because the testimony
was part of the res gestae and offered to show what happened in Petitioner’s
presence).
Although the trial court did become impatient and critical of defense counsel
at times, he expressed similar impatience with the prosecutor. See id. at 558 (chiding
the prosecutor for asking a question about an issue that the court had clarified
moments earlier); id. at PageID.605 (telling the prosecutor to get to the point); id. at
642 (telling the prosecutor to get to the point and move on, because the questions
were insignificant and irrelevant).
Moreover, in his preliminary instructions to the jurors, the trial judge informed
the jurors that his evidentiary rulings did not reflect any personal opinion about the
facts of the case and that the jurors should not give any weight to his rulings or to
the number of rulings on either side. The judge then stated that he might question a
witness, but if he did, his questions were not intended to reflect his opinion of the
evidence or about the case. He explained that his purpose would be to inquire about
matters that he thought the lawyers did not fully explore. See 7/14/10 Trial Tr., ECF
No. 18-3, PageID.363-364.
Finally, at the close of the case, the trial judge instructed the jurors that his
comments and questions were not evidence. See 7/16/10 Trial Tr., ECF No. 18-5,
PageID.743. The judge also said:
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[W]hen I make a comment or give an instruction, I am not trying to
influence your vote or express a personal opinion about the case. If you
believe that I have an opinion about how you should decide this case,
you must pay no attention to that opinion. You are the only judges of
the facts and you should decide this case from the evidence.
Id. at PageID.743-744.
The trial court’s intervention in Petitioner’s trial was within the range of
acceptable judicial behavior, and it did not violate Petitioner’s constitutional rights
to present a defense or to confront the witnesses against him.
Further, any
constitutional error could not have a “substantial and injurious effect or influence”
on the jury’s verdict, Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), and was
harmless, given the trial court’s instructions to the jury regarding his questions and
comments during the trial.
The state courts’ rejection of Petitioner’s claim,
therefore, was objectively reasonable, and Petitioner is not entitled to relief on the
claim.
D. Trial Counsel
Petitioner’s fourth claim alleges ineffective assistance of trial counsel.
Petitioner states that his trial attorney failed to: (1) act as an advocate, undeflected
by conflicting considerations; (2) investigate; (3) file pretrial motions to suppress
evidence; (4) present a defense; and (5) object to the trial judge’s conduct. See ECF
No. 22, PageID.898.
More specifically, Petitioner alleges that defense counsel
failed to: call a witness, who would have testified favorably for the defense; view
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photographs before stipulating to their admission; file a pretrial motion to suppress
evidence based on the lack of probable cause; and object to the oath read to the jury
and the trial judge’s questioning of witnesses. See id. at PageID.898-899. The state
successor court cited Strickland v. Washington, 466 U.S. 668 (1984), when ruling
on Petitioner’s claim and concluded that Petitioner was not deprived of effective
assistance of trial counsel. See ECF No. 27-4, PageID.1149.
1. Clearly Established Federal Law
To prevail on his claim about trial counsel, Petitioner must show that his trial
“counsel’s performance was deficient” and “that the deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687. The deficient-performance
prong “requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
Petitioner “must show that counsel’s representation fell below an objective standard
of reasonableness.” Id. at 688.
The “prejudice” prong “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. at 687.
Petitioner must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
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“The standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter, 562
U.S. at 105 (internal and end citations omitted). “When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id.
2. Application
a. Failure to Defend, Investigate, and Advocate
Petitioner alleges that defense counsel failed to present a defense or act as an
advocate, undeflected by conflicting considerations, but Petitioner has not explained
what the conflicting considerations were. Further, the record shows that defense
counsel was a tireless advocate for Petitioner.
He cross-examined all the
prosecution witnesses, tried to highlight inconsistencies in their testimony, and
implied that the witnesses had coordinated their testimonies by discussing the case
with each other.
Defense counsel also tried to show that the prosecution’s
investigation of the case was inadequate.
Petitioner alleges that defense counsel failed to investigate the case, but the
record demonstrates that defense counsel was well prepared, and Petitioner has not
pointed to any witnesses or evidence that counsel should have investigated and failed
to discover. The defense theory was that Petitioner did not possess or fire a gun
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during the incident in question and that Petitioner did not leave the nightclub during
the incident. To that end, defense counsel put Petitioner and four other witnesses on
the witness stand. Petitioner has not identified any other witnesses that defense
counsel could have called or what their testimony would have been.
b. Stipulating to Photographs before Viewing Them
Petitioner alleges that defense counsel stipulated to the admission of
photographs before viewing the evidence. The record, however, indicates that
defense counsel had an opportunity to view the photographs before they were
admitted in evidence and that he had no objection to them. See 7/14/10 Trial Tr.,
ECF No. 18-3, PageID.383-384.
Petitioner, nevertheless, contends that counsel did not discover until trial that
the evidence technician who testified about the photographs (police officer David
Andrews) was not the person who took the photographs. Officer Andrews testified
for the first time on cross-examination that he did not take the photographs. See id.,
PageID.392-393, 396-398. But this did not affect the fairness of the trial, because
Andrews responded to the crime scene, made a sketch of the crime scene, and
testified at trial that the photographs accurately represented the crime scene. See id.
at PageID.380-384.
Although one of the photographs appeared to show suspected blood in the
street, whereas Officer Andrews maintained that he saw blood on the sidewalk, see
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id. at PageID.388-90, defense counsel was able to explore this discrepancy when he
cross-examined Andrews. Andrews then conceded that he could not determine
whether a photograph depicted blood in the middle of the street or on the sidewalk
across the street from the nightclub. He also admitted that he had not noticed any
blood in the street at the time. See id. at PageID.396-397, 399-400.
In conclusion, defense counsel was able to effectively cross-examine Officer
Andrews even though counsel may not have seen the photographs before trial and
even though Andrews was not the photographer. Furthermore, the photographs
were not incriminating, because no one disputed that the victim had been shot by the
nightclub and had to be taken to the hospital for his injuries. Petitioner has failed to
show that defense counsel’s performance was deficient or prejudicial.
c. Failure to Object to the Oath and the Trial Court’s
Questions; Failure to Move to Suppress Evidence
Petitioner contends that defense counsel should have objected to the oath read
to the jury and to the trial judge’s questioning of witnesses. But the oath was
adequate and not unconstitutional. Further, Petitioner admits that defense counsel
may have been trying to placate the trial judge by not objecting to the judge’s
interventions and that any objections to the judge’s conduct could have antagonized
the judge. See ECF No. 22, PageID.899.
Petitioner’s allegation that defense counsel should have moved to suppress
evidence lacks merit, because there was no basis for filing the motion. The
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eyewitnesses’ observations provided probable cause for arresting Petitioner. In
addition, Petitioner’s custodial statement to Sergeant Jackson appears to have been
voluntary and knowing. Before the interrogation, Petitioner was advised of his
constitutional rights, and he waived his rights. He subsequently initialed the answers
that he made to Sergeant Jackson’s questions, and he signed the written statement.
See 7/15/10 Trial Tr., ECF No. 18-4, PageID.579-586.
Furthermore, there was nothing incriminating to suppress. There was no
physical evidence linking Petitioner to the crime, and in his statement to Sergeant
Jackson, Petitioner denied having a gun or shooting anyone during the incident in
question. Although he admitted to getting into a fight, he claimed that the fight
started when six to eight males tried to force their way into the club. He also claimed
that two of the men struck him with their fists several times while he was pushing
them out the door, and he denied going outside during the incident. See id. at
PageID.582-585.
Defense counsel’s performance was objectively reasonable, and any
deficiencies in counsel’s performance did not prejudice Petitioner. Accordingly, the
state courts’ rejection of Petitioner’s claim was not contrary to, or an unreasonable
objection of, Strickland, and Petitioner is not entitled to relief on his claim.
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E. Appellate Counsel
Petitioner alleges that his appellate attorney was ineffective, because the
attorney: prevented him from raising issues in a pro se supplemental brief on direct
appeal; failed to raise the issues that Petitioner presented to the successor trial court
in his motion for relief from judgment; and failed to request an evidentiary hearing.
See ECF No. 22, PageID.901-907.
The successor trial court disagreed with
Petitioner’s assessment of appellate counsel and concluded that appellate counsel
did not provide ineffective assistance. See ECF No. 27-4, PageID.1149-1151.
The proper standard for evaluating a claim about appellate counsel is the
standard enunciated in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000). To
prevail on his claim about appellate counsel, Petitioner must demonstrate (1) that his
appellate attorney acted unreasonably in failing to discover and raise non-frivolous
issues on appeal, and (2) there is a reasonable probability that he would have
prevailed on appeal if his attorney had raised the issues. Id. (citing Strickland, 466
U.S. at 687-91, 694).
“[A]n appellate advocate may deliver deficient performance and
prejudice a defendant by omitting a ‘dead-bang winner,’ even though
counsel may have presented strong but unsuccessful claims on appeal.”
United States v. Cook, 45 F.3d 388, 395 (10th Cir. 1995) (citing Page
v. United States, 884 F.2d 300, 302 (7th Cir. 1989)). A “dead-bang
winner” is an issue which was obvious from the trial record, see e.g.,
Matire v. Wainwright, 811 F.2d 1430, 1438 (11th Cir. 1987) (counsel’s
failure to raise issue which “was obvious on the record, and must have
leaped out upon even a casual reading of [the] transcript” was deficient
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performance, and one which would have resulted in a reversal on
appeal). Id.
Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003) (some punctuation
marks modified).
An appellate attorney, however, is not required to raise every non-frivolous
claim requested by his or her client if the attorney decides, as a matter of professional
judgment, not to raise the claim. Jones v. Barnes, 463 U.S. 745, 751 (1983). In fact,
the process of “ ‘winnowing out weaker arguments on appeal’ ” is “the
hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S.
527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Barnes, 463
U.S. at 751-52, 103 S.Ct. 3308). “Generally, only when ignored issues
are clearly stronger than those presented, will the presumption of
effective assistance of counsel be overcome.” Gray v. Greer, 800 F.2d
644, 646 (7th Cir. 1986).
Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002).
The claims that Petitioner alleges his appellate attorney should have raised on
appeal, or should have helped Petitioner raise in a pro se supplemental brief, are the
claims about the oath to the jury, the trial court’s questioning of prosecution
witnesses, and trial counsel. Those claims are not dead-bang winners or clearly
stronger than the claim that appellate counsel raised on direct appeal, because the
oath to the jury was adequate to protect Petitioner’s rights, the trial court’s
questioning of prosecution witnesses was acceptable judicial behavior, and trial
counsel’s performance was neither deficient, nor prejudicial. Therefore, appellate
counsel’s performance was not deficient, and his alleged failure to help Petitioner
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raise the claims did not prejudice Petitioner. Further, the state courts’ rejection of
Petitioner’s claim was not contrary to, or an unreasonable application of, Strickland
or Smith v. Robbins. Petitioner has no right to relief on his claim about appellate
counsel.
F. The Trial Court’s Denial of an Evidentiary Hearing
In his sixth and final claim, Petitioner alleges that the trial court erred on postappellate review when it failed to recognize the need for an evidentiary hearing on
Petitioner’s claims about trial and appellate counsel. Petitioner asserts that an
evidentiary hearing was necessary for him to establish the two-prong test set forth
in Strickland. See ECF No. 22, PageID.908-910.
Petitioner’s claim lacks merit, because post-conviction relief is:
further removed from the criminal trial than is discretionary direct
review. It is not part of the criminal proceeding itself, and it is in fact
considered to be civil in nature. See Fay v. Noia, 372 U.S. 391, 423–
424, 83 S.Ct. 822, 841, 9 L.Ed.2d 837 (1963). It is a collateral attack
that normally occurs only after the defendant has failed to secure relief
through direct review of his conviction.
Pennsylvania v. Finley, 481 U.S. 551, 556–57 (1987). Stated differently, “[s]tate
collateral proceedings are not constitutionally required as an adjunct to the state
criminal proceedings and serve a different and more limited purpose than either the
trial or appeal.” Murray v. Giarratano, 492 U.S. 1, 10 (1989).
The Sixth Circuit Court of Appeals, therefore, “has consistently held that
errors in post-conviction proceedings are outside the scope of federal habeas corpus
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review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (citing Kirby v. Dutton,
794 F.2d 245, 246-47 (6th Cir. 1986), and Roe v. Baker, 316 F.3d 557, 571 (6th Cir.
2002)). The reason that claims challenging state post-conviction proceedings cannot
be brought under 28 U.S.C. § 2254 is that:
“ ‘the essence of habeas corpus is an attack by a person in custody upon
the legality of that custody, and ... the traditional function of the writ is
to secure release from illegal custody.’ ” Kirby, 794 F.2d at 246
(quoting Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36
L.Ed.2d 439 (1973)). . . . A due process claim related to collateral postconviction proceedings, even if resolved in a petitioner’s favor, would
not “result [in] ... release or a reduction in ... time to be served or in any
other way affect his detention because we would not be reviewing any
matter directly pertaining to his detention.” Kirby, 794 F.2d at 247.
Id. Moreover,
it would be an unusual intrusion for federal courts to secondguess state procedures for resolving motions once they have been
presented. States are independent sovereigns, and the federal
government generally speaking should respect their choices about how
to adjudicate disputes.
. . . [Federal courts] must . . . presume that, once a federal claim comes
before a state court, the state judge will use a fair procedure to achieve
a just resolution of the claim – resolving some motions with neither an
evidentiary hearing nor an oral argument, some with an oral argument
alone, some with both.
Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013). Accordingly, Petitioner’s
challenge to the state court’s post-conviction procedures is not cognizable in this
habeas corpus action.
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IV. Conclusion
Petitioner’s claims lack merit, and the state courts’ rejection of the claims was
neither contrary to, nor an unreasonable application of, Supreme Court precedent.
Accordingly, the amended habeas corpus petition is denied.
The Court declines to grant a certificate of appealability because reasonable
jurists could not disagree with the Court’s resolution of Petitioner’s claims, nor
conclude that the issues are adequate to deserve encouragement to proceed further.
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Nevertheless, if Petitioner appeals
this decision, he may proceed in forma pauperis on appeal because an appeal could
be taken in good faith. 28 U.S.C. § 1915(a)(3).
_s/Arthur J. Tarnow_______________________
ARTHUR J. TARNOW
SENIOR UNITED STATES DISTRICT JUDGE
Dated: November 30, 2020
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