Reese v. Larson
Filing
21
OPINION and ORDER DENYING the Petition for Writ of Habeas Corpus, DENYING a Certificate of Appealability, and GRANTING Petitioner Leave to Appeal In Forma Pauperis re 1 Petition for Writ of Habeas Corpus Signed by District Judge Denise Page Hood. (KJac)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VERDELL REESE,
Petitioner,
v.
Civil No. 2:13-CV-12366
HONORABLE DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE
JEFFREY LARSON,
Respondent.
/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA
PAUPERIS
Verdell Reese, (“Petitioner”), confined at the Carson City Correctional
Facility in Carson City, Michigan, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his convictions for voluntary
manslaughter, M.C.L.A. § 750.321, felon in possession of a firearm,
M.C.L.A. § 750.224f, and felony-firearm, M.C.L.A. § 750.227b. For the
reasons that follow, the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted following a bench trial in the Wayne County
Circuit Court. This Court recites verbatim the relevant facts relied upon by
the Michigan Supreme Court in affirming petitioner’s conviction, which are
1
presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1).
See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant, Verdell Reese, III, was charged with second-degree
murder and, alternatively, voluntary manslaughter for the April
2008 death of Leonardo Johnson. Defendant waived his right to
a jury trial and proceeded to a bench trial in the Wayne Circuit
Court.
According to testimony adduced at trial, defendant owed $2,000
to Johnson, who was so upset about the debt that he had not
spoken to defendant for approximately six months. Johnson lived
with his cousin, James Long, in Detroit. Defendant was Long’s
close friend; Long described his relationship with defendant as
being “like brothers.” Other testimony established that defendant
visited the residence that Long and Johnson shared several times
a week, even though Johnson did not like that defendant visited
with such frequency.
Long testified that on the evening of April 17–18, 2008, defendant
and a man named John Smith (also known as J.T.) arrived at the
Johnson/Long residence. After they had been at the house for a
couple of hours, defendant and another friend, D, drove to a
nearby store to purchase liquor. While defendant and D were at
the store, Lakeshia Williams, who was Johnson and Long’s
cousin, left the house with Smith and walked toward the east,
where she lived.
Williams testified that, after she left the house, she saw Johnson
approach from the east. Once Smith greeted Johnson, Williams
heard two gunshots as defendant’s car drove past them. She
heard the first gunshot come from the driver’s side of the car, but
testified that she did not know the origin of the second gunshot.
Smith placed himself between Williams and the street and, after
the second gunshot, ran back to Johnson and Long’s house.
Johnson also continued on his way to his house, while Williams
continued to her house and told her father about the gunshots she
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heard.
Although Williams did not see the ensuing encounter between
Johnson and defendant, Long did. After parking his car on the
street, defendant walked toward the house and began talking with
Long. According to Long, Johnson then approached the house
and asked, “[W]hat’s up with that [?]” to which defendant replied,
“[W]hat’s up with what?” Long testified that he then saw both
defendant and Johnson step back and flinch. Long then heard a
shot and saw muzzle fire coming from Johnson’s direction,
followed by five more shots that came from both Johnson’s and
defendant’s positions.
Once the shooting ended, Johnson ran across the street and
through a vacant lot, while defendant remained in front of the
house. A police officer responding to the shooting found
Johnson’s body facedown on the driveway of a house one block
north of the shootings. Johnson’s .40 caliber semiautomatic pistol
was nearby and contained a live round that had jammed in the
chamber. The medical examiner testified that Johnson had been
shot twice and that the fatal bullet passed through his right arm
into his chest.
Defendant had been shot in the right leg. Long and Smith drove
defendant to the hospital in defendant’s car, but not before Long
put defendant’s gun in the house. Another officer was dispatched
to the hospital where defendant was admitted and took a brief
statement from defendant. Defendant “was very vague [and] did
not want to give any information about what happened.”
However, defendant did say that “he was standing outside by the
car, heard several shots and was struck by several shots” before
being taken to the hospital. Defendant claimed to know neither
the person who fired the shots nor where the shots had come
from. He later changed his version of the events and told another
officer that the shots came from a vacant lot across the street,
although defendant again said that he could not provide a
description of the shooter. In his third statement to police,
defendant denied having seen who shot him and did not state the
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location of the shooter. However, he claimed that he did not think
he was the intended target of the shooting.
People v. Reese, 491 Mich. 127, 130-33; 815 N.W.2d 85 (Mich.
2012)(internal citations and footnotes omitted).
Petitioner’s conviction of felon in possession and felony firearm were
affirmed on appeal, but the Michigan Court of Appeals reversed his
conviction for voluntary manslaughter in an unpublished opinion. People v.
Reese, No. 292153, 2010 WL 360440,*1, 5 (Mich. Ct. App. Sept. 16,
2010).
The Michigan Supreme Court granted leave to appeal and then
reversed the grant of a new trial on the voluntary manslaughter charge,
finding that imperfect self-defense is not a freestanding defense that
mitigates murder to voluntary manslaughter. People v. Reese, 491 Mich. at
150-53.
The Michigan Supreme Court further held that the trial court judge did
not clearly err in her findings of fact in rejecting petitioner’s self-defense
claim. Reese, 491 Mich. at 155-60. Of particular relevance to petitioner’s
first claim, the Michigan Supreme Court concluded that there was sufficient
evidence for the trial judge to conclude that petitioner was the initial
aggressor in the altercation, so as to reject petitioner’s self-defense claim:
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To analyze the trial court’s conclusion that defendant was not
entitled to the justification of self-defense, we must examine its
conclusion that by firing two shots from his car at the outset of the
confrontation, defendant was the initial aggressor. The Court of
Appeals panel concluded that the trial court had erred by finding
that defendant fired two shots from his car at the outset of the
confrontation with Johnson. The panel observed that “[o]nly the
first shot was attributed to Reese based on Williams indicating
she heard the shot and assumed it was from his vehicle.” The
panel also determined that “[t]here is no testimony or evidence to
identify who fired the second shot or where it originated.”
However, Williams testified that she heard two gunshots, at least
one of them coming from the car that she testified was
defendant’s. Although Williams did not know the source of the
second gunshot, it was not clearly erroneous for the trial court to
conclude, on the basis of the logical inferences drawn from
Williams’s testimony, that defendant fired both shots from his car.
Moreover, Long’s testimony was consistent with this conclusion
because Long testified that defendant’s car arrived at his and
Johnson’s residence shortly after he heard the two gunshots from
the direction of defendant’s car. There being evidence to support
the trial court’s conclusion, the Court of Appeals erred by rejecting
the trial court’s conclusion.
People v. Reese, 491 Mich. at 156-57 (internal footnotes omitted).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Where the prosecution failed to prove that Mr. Reese was the
initial aggressor and the trial court found that Mr. Reese had a
valid self-defense claim, the trial (sic) violated due process by
failing to find Mr. Reese not guilty based on an erroneous factual
finding that Mr. Reese was the initial aggressor.
II. The trial court abused its discretion in finding that the testimony
of Mr. Smith, who arrived at Mr. Long’s home with Mr. Reese and
was with Ms. Williams as she walked home, was not relevant to
the proceedings.
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III. Petitioner was denied his Sixth Amendment right to effective
assistance of counsel when counsel failed to conduct an
adequate pre-trial investigation in the form of failing to interview
John Smith, a witness to the scene of the crime, and/or ask for an
adjournment so this witness could be located.
II. Standard of Review
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 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
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 Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
6
An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ
simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11.
The Supreme Court explained that “[A] federal court’s collateral
review of a state-court decision must be consistent with the respect due
state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). 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); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[A] state court’s
determination that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
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III. Discussion
A. Claim # 1. Petitioner’s sufficiency of evidence claim is
non-cognizable in habeas review. Alternatively, the
evidence was sufficient to rebut petitioner’s self-defense
claim.
In his first claim, petitioner argues that there was insufficient
evidence presented by the prosecutor to rebut his self-defense claim.
Petitioner’s claim is non-cognizable on habeas review. Under
Michigan law, self-defense is an affirmative defense. See People v.
Dupree, 486 Mich. 693, 704, 712; 788 N.W. 2d 399 (2010). “An
affirmative defense, like self-defense, ‘admits the crime but seeks to
excuse or justify its commission. It does not negate specific elements of
the crime.’” People v. Reese, 491 Mich. at 155, n. 76 (quoting Dupree, 486
Mich. at 704, n. 11). Although under Michigan law the prosecutor is
required to disprove a claim of self-defense, See People v. Watts, 61
Mich. App. 309, 311, 232 N.W.2d 396, 398 (1975), “[p]roof of the
nonexistence of all affirmative defenses has never been constitutionally
required....” See Smith v. United States,133 S. Ct. 714, 719 (2013)(quoting
Patterson v. New York, 432 U.S. 197, 210 (1977)). The Supreme Court
and the Court of Appeals for the Sixth Circuit have rejected the argument
that the Constitution requires the prosecution to disprove self-defense
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beyond a reasonable doubt. See Gilmore v. Taylor, 508 U.S. 333, 359
(1993)(Blackmun, J., dissenting)(“In those States in which self-defense is
an affirmative defense to murder, the Constitution does not require that the
prosecution disprove self-defense beyond a reasonable doubt”); Martin v.
Ohio, 480 U.S. 228, 233-36 (1987); see also Allen v. Redman, 858 F. 2d
1194, 1197 (6th Cir.1988)(explaining that habeas review of
sufficiency-of-the-evidence claims is limited to elements of the crimes as
defined by state law and citing Engle v. Isaac, 456 U.S. 107 (1982), and
Duffy v. Foltz, 804 F. 2d 50 (6th Cir. 1986)). Therefore, “the due process
‘sufficient evidence’ guarantee does not implicate affirmative defenses,
because proof supportive of an affirmative defense cannot detract from
proof beyond a reasonable doubt that the accused had committed the
requisite elements of the crime.” Caldwell v. Russell, 181 F. 3d 731, 740
(6th Cir. 1999). Petitioner does not challenge the sufficiency of the
evidence in support of the essential state law elements of voluntary
manslaughter; rather, he has only faulted the fact-finder’s conclusion that
he was the initial aggressor as it relates to his claim of self-defense. As
such, petitioner’s claim that the prosecutor failed to disprove his affirmative
defense is non-cognizable on habeas review. Id.; Allen v. Redman, 858 F.
9
2d at 1200.
Moreover, even if this Court were to determine that petitioner’s claim
was cognizable, he would not be entitled to habeas relief.
It is beyond question that “the Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged.”
In Re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review
of the sufficiency of the evidence to support a criminal conviction is,
“whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318
(1979). This inquiry, however, does not require a court to “ask itself
whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.” Instead, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Id. at 318-19 (internal citation and footnote
omitted)(emphasis in the original). The Jackson standard applies to bench
trials, as well as to jury trials. See e.g. U.S. v. Bronzino, 598 F. 3d 276,
278 (6th Cir. 2010).
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A federal habeas court may not overturn a state court decision that
rejects a sufficiency of the evidence claim simply because the federal
court disagrees with the state court’s resolution of that claim and may
grant habeas relief only if the state court decision was an objectively
unreasonable application of the Jackson standard. See Cavazos v. Smith,
132 S. Ct. 2, 4 (2011). “Because rational people can sometimes disagree,
the inevitable consequence of this settled law is that judges will sometimes
encounter convictions that they believe to be mistaken, but that they must
nonetheless uphold.” Id. For a federal habeas court reviewing a state
court conviction, “the only question under Jackson is whether that finding
was so insupportable as to fall below the threshold of bare rationality.”
Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).
Furthermore, on habeas review, a federal court does not reweigh the
evidence or redetermine the credibility of the witnesses whose demeanor
was observed at trial. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It
is the province of the factfinder to weigh the probative value of the
evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F. 2d
675, 679 (6 th Cir. 1992). A habeas court therefore must defer to the fact
finder for its assessment of the credibility of witnesses. Matthews v.
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Abramajtys, 319 F. 3d 780, 788 (6th Cir.2003); See also Butzman v. U.S.,
205 F. 2d 343, 349 (6th Cir. 1953)(in a bench trial, credibility of witnesses
is a question for trial judge).
Under Michigan law, to establish voluntary manslaughter, the
evidence must establish (1) that the defendant killed in the heat of
passion; (2) that the passion was caused by an adequate provocation; and
(3) that there was not a lapse of time during which a reasonable person
could control his passions. Williams v. Withrow, 328 F. Supp. 2d 735, 74849 (E.D. Mich. 2004)(citing People v. Pouncey, 437 Mich. 382, 388; 471
N.W.2d 346, 350 (1991)).
Under Michigan law, one acts lawfully in self-defense if he honestly
and reasonably believes that he is in danger of serious bodily harm or
death, as judged by the circumstances as they appeared to the defendant
at the time of the act. Blanton v. Elo, 186 F. 3d 712, 713, n. 1 (6th Cir.
1999)(citing People v. Heflin, 434 Mich. 482; 456 N.W. 2d 10 (1990)). To
be lawful self-defense, the evidence must show that: (1) the defendant
honestly and reasonably believed that he was in danger; (2) the danger
feared was death or serious bodily harm or imminent forcible sexual
penetration; (3) the action taken appeared at the time to be immediately
12
necessary; and (4) the defendant was not the initial aggressor. See
Johnigan v. Elo, 207 F. Supp. 2d 599, 608-09 (E.D. Mich. 2002)(citing
People v. Barker, 437 Mich. 161, 165; 468 N.W. 2d 492 (1991); People v.
Kemp, 202 Mich. App. 318, 322; 508 N.W.2d 184 (1993); People v.
Deason, 148 Mich. App. 27, 31; 384 N.W.2d 72 (1985)). Under Michigan
law, a defendant is not entitled to use any more force than is necessary to
defend himself. Johnigan, 207 F. Supp. 2d at 609 (citing Kemp, 202 Mich.
App. at 322). “[T]he law of self-defense is based on necessity, and a
killing or use of potentially lethal force will be condoned only when the
killing or use of potentially lethal force was the only escape from death,
serious bodily harm, or imminent forcible sexual penetration under the
circumstances.” Johnigan, 207 F. Supp. 2d at 609 (internal citation
omitted).
Although there was evidence presented that supported petitioner’s
claim of self-defense, the prosecution also presented evidence from which
a rational trier of fact could have concluded beyond a reasonable doubt
that the prosecutor had rebutted petitioner’s self-defense claim.
The evidence established that petitioner shot at the victim from the
driver’s seat of his vehicle and later exchanged words with the victim at
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the victim’s house where gun shots were exchanged. The provocation in
this case involved an initial shooting; then, according to Long, Johnson
approached the house and asked, “[W]hat’s up with that [?]” to which
defendant replied, “[W]hat’s up with what?” Long testified that he then
saw both defendant and Johnson step back and flinch, followed by an
exchange of gunfire. There was sufficient time for petitioner to “cool off” or
to regain control of his passions following the discharge of bullets from his
vehicle. Petitioner was the initial aggressor when he shot at the victim
from his vehicle and later when he sought out the victim at the victim’s
house, regardless of the fact that the victim shot first at the second
encounter. The encounters were close in time where the victim could
reasonably infer that petitioner’s presence at his house could lead to an
additional assault. Therefore, the state court did not unreasonably
determine the facts with regards to petitioner’s claim. Williams, 328 F.
Supp. 2d at 749.
Petitioner also challenges the testimony of Ms. Williams in support of
the trial court’s finding that he fired the first shots, making him the initial
aggressor.
Lakeshia Williams testified that she heard a gunshot come from
14
petitioner’s car and then a second shot. Long testified that petitioner
approached the victim at the victim’s house and that there was an
exchange of gunfire. As a result, the victim died of a gunshot wound to
the chest. This evidence was sufficient for the judge to reject petitioner’s
self-defense claim.
To the extent that petitioner challenges the credibility of the
witnesses, he would not be entitled to habeas relief. Attacks on witness
credibility are simply challenges to the quality of the prosecution’s
evidence, and not to the sufficiency of the evidence. Martin v. Mitchell, 280
F. 3d 594, 618 (6th Cir. 2002). An assessment of the credibility of
witnesses is beyond the scope of federal habeas review of sufficiency of
evidence claims. Gall v. Parker, 231 F. 3d 265, 286 (6th Cir. 2000). The
mere existence of sufficient evidence to convict therefore defeats a
petitioner’s claim. Id. When evidence in a bench trial “consists largely of
contradictory oral evidence, due regard must be accorded the trial court’s
opportunity to judge the credibility of witnesses.” Bryan v. Government of
Virgin Islands, 150 F. Supp. 2d 821, 827 (D. Virgin Islands 2001). The trial
court judge chose to credit testimony by Williams and Long and not to
believe petitioner’s version of events. This Court must defer to the trial
15
court’s finding beyond a reasonable doubt that Williams and Long were
credible. Id. at 828.
A federal court reviewing a state court conviction on habeas review
that is “faced with a record of historical facts that supports conflicting
inferences must presume—even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.” Cavazos, 132 S. Ct. at 6
(quoting Jackson v. Virginia, 443 U.S. at 326). Although there was
evidence to support petitioner’s self-defense claim and petitioner has
given interpretations to the evidence that differ from the state court’s
interpretation of the evidence, “in light of the deference to be accorded to
state-court factfinding under § 2254(e), as well as the traditional deference
accorded to the [fact-finder’s] resolution of disputed factual issues,”
petitioner is unable to show that the Michigan Supreme Court
unreasonably determined that the prosecutor disproved petitioner’s selfdefense claim. See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
Petitioner is not entitled to habeas relief on his sufficiency of the evidence
claim.
B. Claim # 2. The right to present a defense claim.
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Petitioner next alleges that the trial court judge abused her discretion
by finding the testimony of John Smith irrelevant to the proceedings.
John Smith was named as a witness prior to trial and the prosecutor
made several attempts to locate him several times to secure his testimony.
These efforts were unsuccessful. After petitioner was convicted, but prior
to sentencing, Smith was found. In a motion for a new trial, petitioner
argued that Smith’s testimony would have impeached Lakeshia Williams’
testimony. The judge rejected petitioner’s claim, finding that John Smith’s
alleged testimony would have been inconsistent with petitioner’s selfdefense claim, because Smith stated in his affidavit that he did not see
anyone shooting from a vehicle, nor did he see petitioner’s vehicle driving
down Grand Street shooting a weapon. Because Smith’s proposed
testimony would have “completely removed defendant from the entire
scene[.],” the judge essentially concluded that it would not have aided
petitioner’s self-defense claim. People v. Reese, No. 08-7283-01, * 2
(Third Circuit Court, Criminal Division, March 16, 2009).
Just as an accused has the right to confront the prosecution’s
witnesses for the purpose of challenging their testimony, he also has the
right to present his own witnesses to establish a defense. This right is a
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fundamental element of the due process of law. Washington v. Texas, 388
U.S. 14, 19 (1967); See also Crane v. Kentucky, 476 U.S. 683, 690
(1986)(“whether 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’”)(internal citations omitted). However, an accused in a criminal
case does not have an unfettered right to offer evidence that is
incompetent, privileged, or otherwise inadmissible under the standard
rules of evidence. Montana v. Egelhoff, 518 U.S. 37, 42 (1996). The
Supreme Court, in fact, has indicated its “traditional reluctance to impose
constitutional constraints on ordinary evidentiary rulings by state trial
courts.” Crane, 476 U.S. at 689. The Supreme Court gives trial court
judges “wide latitude” to exclude evidence that is repetitive, marginally
relevant, or that poses a risk of harassment, prejudice, or confusion of the
issues. Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
Finally, rules that exclude evidence from criminal trials do not violate the
right to present a defense unless they are “‘arbitrary’ or ‘disproportionate
to the purposes they are designed to serve.’” United States v. Scheffer,
18
523 U.S. 303, 308 (1998)(quoting Rock v. Arkansas, 483 U.S. 44, 56
(1987)).
Under the standard of review for habeas cases as enunciated in §
2254(d)(1), it is not enough for a habeas petitioner to show that the state
trial court’s decision to exclude potentially helpful evidence to the defense
was erroneous or incorrect. A habeas petitioner must show that the state
trial court’s decision to exclude the evidence was “an objectively
unreasonable application of clearly established Supreme Court
precedent.” See Rockwell v. Yukins, 341 F. 3d 507, 511-12 (6th Cir.
2003).
The Michigan Court of Appeals rejected petitioner’s claim finding:
Reese argues that he had a right to present a complete defense,
including the right to present witnesses in his defense. Reese,
however, was not directly denied the right to present a defense
or present a witness during trial. Rather, he was denied a new
trial to present a witness that neither party called to the stand at
trial. Additionally, while Reese cites case law regarding a
defendant’s entitlement to a new trial based on newly discovered
evidence, he does not directly claim on appeal that Smith’s
testimony constituted newly discovered evidence.
***********************************************************************
[R]eese never asserted below that he was unaware that Smith,
who was his friend and drove him to the hospital, was nearby
when the incident occurred. Rather, Reese argued below that he
had newly discovered information that Smith was not served a
subpoena to testify at trial and had he been called as a witness,
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Smith would have testified that no shots were fired from a vehicle
at the victim. While Reese argued in his second motion for a
new trial that there was newly discovered evidence and
prosecutorial misconduct, that motion did not clearly explain the
basis for his assertion. As such, Reese failed to demonstrate
that Smith’s testimony constituted newly discovered evidence.
**********************************************************************
[S]mith would testify that shots were not fired from a vehicle as
Smith and Williams walked toward Williams’s home. Accordingly,
if Smith testified as contended, his testimony would have been
contrary to Williams’s testimony that she saw Reese’s car drive
by and then heard a gunshot come from the direction of the
vehicle, thus contradicting that Reese was the aggressor.
That notwithstanding, Long also testified that he heard gunshots
just before Reese returned, from the direction that Reese came,
which Smith’s testimony would also have directly contradicted.
In that regard, Smith’s testimony is confusing as it would have
contradicted the only fact that both Williams and Long agreed on,
that there was gunfire before the exchange during which Johnson
was shot. Therefore, Reese is unable to demonstrate that
Smith’s testimony would have caused a different result.
Although not addressed by the trial court, Reese is further unable
to prove that Smith's testimony could not have been discovered
and produced at trial with reasonable diligence. There is no
indication in the record that Reese sought assistance or made
any effort to ensure Reese's presence at trial. While Reese was
prohibited by the conditions of his bond from having contact with
potential witnesses, he was not prevented from assisting his
attorney to locate Smith. As such, based on the above, Reese’s
claim that a new trial was warranted based on newly discovered
evidence lacks merit. A new trial may also be granted if the
prosecutor deliberately suppressed a witness’s identity and
statements, the information was requested by the defendant, and
“the defense could have significantly used the evidence.” Reese
argued below that Smith was never personally served, despite
the prosecution’s claim to the contrary. Reese, however, never
20
claimed that the prosecution withheld any information regarding
Smith or his statements, except for the prosecutor’s efforts to
bring Smith to trial. Reese also failed to assert that he requested
additional information regarding Smith and his testimony.
Moreover, Reese did not object to or request time or assistance
to obtain Smith’s presence at trial after being informed that the
prosecution would not call Smith as a witness. As such, relief on
this basis is not warranted.
The prosecution is required to inform the defendant which
witnesses it intends to call and exercise due diligence to produce
those witnesses at trial. Here, the prosecution’s witness list
indicates that either Smith or Williams would be called as
witnesses. Therefore, Reese was on notice that the prosecution
may not call Smith as a witness. The record further indicates that
the prosecution obtained an order for attachment for Smith “to
show cause why he should not be required to enter into a
recognizance to appear as a witness.” Therefore, there was no
reversible error by the prosecution. Because Reese has failed to
demonstrate sufficient legal grounds for a new trial, there was no
abuse of discretion by the trial court.
People v. Reese, No. 292153, 2012 WL 3020383, at * 2-3 (Mich. Ct. App.
July 24, 2012)(On Remand)(internal footnotes omitted).
Petitioner is not entitled to relief on his claim for several reasons.
First, the trial judge did not prevent petitioner from calling Smith as a
witness nor did the prosecutor withhold Smith’s identity prior to trial.
Instead, it appears that for whatever reason, defense counsel may have
decided to forego calling Smith as a witness. Petitioner cannot convert a
tactical decision not to introduce evidence into a constitutional violation of
the right to present evidence generally. See Rodriguez v. Zavaras, 42 F.
21
Supp. 2d 1059, 1150 (D. Colo. 1999); See also State v. Flood, 219 S.W.
3d 307, 318 (Tenn. 2007)(“Generally, the right to present a defense is not
denied when a defendant does not pursue a line of questioning during
cross-examination”).
Secondly, there is no clearly established federal law that the right to
present a defense gives a criminal defendant a second opportunity to
present evidence. Vinzant v. Lazaroff, 2009 WL 2412023, at *5 (S.D. Ohio
Aug. 4, 2009). “[I]t has never been held as a matter of constitutional law
that a criminal defendant has a right to a second trial even to present very
good evidence.” Id.
Finally, petitioner is not entitled to relief because Smith’s testimony
would not have been particularly relevant in supporting petitioner’s selfdefense claim, in that his testimony was inconsistent with petitioner’s own
self-defense claim. Smith stated in his affidavit that he did not see anyone
shooting from a vehicle, nor did he see petitioner’s vehicle driving down
Grand Street shooting a weapon. This Court cannot conclude that the
exclusion of Smith’s testimony was so prejudicial so as to deprive
petitioner of a fair trial. During the exchange of gunshots, Smith was
unable to testify to the source of the gunshots or to who fired first.
22
Because Smith could only testify to hearing gunshots at some point in time
coming from down the street, his testimony would have been of limited
probative value.
A federal habeas court will not disturb a state court’s exclusion of
evidence on the ground of relevancy “unless the relevance and probative
value of such evidence is so apparent and great that excluding the
evidence denies the petitioner the due process of law.” Jones v. Smith,
244 F. Supp. 2d 801, 814 (E.D. Mich. 2003)(internal citations omitted).
“The inquiry in reviewing a claim of improper exclusion of evidence is
whether the evidence was rationally connected to the crime charged and,
if its exclusion was so prejudicial as to deprive the defendant of a
fundamentally fair trial.” Id. In light of the fact that Smith’s testimony would
have in many ways been inconsistent with petitioner’s self-defense claim,
the failure to grant petitioner a new trial based on Smith’s affidavit would
not entitle petitioner to relief.
Moreover, even if Smith had testified, the trial court could have found
Williams’s testimony more credible than Smith’s, especially considering
the fact that Smith and Reese were friends, (Tr. 11/20/08, pp. 6-7),
testimony given by Williams was consistent with testimony given by Long,
23
Smith’s lack of cooperation when being summoned to trial, and the fact
that the affidavits containing contradictory information were supplied only
after petitioner’s trial. The Court concludes that denial of petitioner’s
motion for a new trial to allow Smith’s testimony was not an unreasonable
application of clearly established federal law so as to entitle petitioner to
habeas relief. Petitioner is not entitled to relief on his second claim.
C. Claim # 3. Ineffective assistance of trial counsel.
In his third claim, petitioner contends that he was denied the
effective assistance of trial counsel when counsel failed to conduct an
adequate pre-trial investigation by failing to interview or call John Smith as
a defense witness.
To show that he was denied the effective assistance of counsel
under federal constitutional standards, a defendant must satisfy a two
prong test. First, the defendant must demonstrate that, considering all of
the circumstances, counsel’s performance was so deficient that the
attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so
doing, the defendant must overcome a strong presumption that counsel’s
behavior lies within the wide range of reasonable professional assistance.
24
Id. In other words, petitioner must overcome the presumption that, under
the circumstances, the challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689. Second, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the
defendant must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “Strickland’s test for prejudice
is a demanding one. ‘The likelihood of a different result must be
substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379
(6th Cir. 2011)(quoting Harrington, 562 U.S. at 112). The Supreme
Court’s holding in Strickland places the burden on the defendant who
raises a claim of ineffective assistance of counsel, and not the state, to
show a reasonable probability that the result of the proceeding would have
been different, but for counsel’s allegedly deficient performance. See
Wong v. Belmontes, 558 U.S. 15, 27 (2009).
More importantly, on habeas review, “the question ‘is not whether a
federal court believes the state court’s determination’ under the Strickland
standard ‘was incorrect but whether that determination was
unreasonable-a substantially higher threshold.’” Knowles v. Mirzayance,
25
556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). “The pivotal question is whether the state court’s application of
the Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s standard.”
Harrington v. Richter, 562 U.S. at 101. Indeed, “because the Strickland
standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.”
Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at
664). Pursuant to the § 2254(d)(1) standard, a “doubly deferential judicial
review” applies to a Strickland claim brought by a habeas petitioner. Id.
This means that on habeas review of a state court conviction, “[A] state
court must be granted a deference and latitude that are not in operation
when the case involves review under the Strickland standard
itself.”Harrington, 562 U.S. at 101. “Surmounting Strickland’s high bar is
never an easy task.” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356,
371 (2010)).
Petitioner is not entitled to relief on his claim.
John Smith acknowledged in his affidavit that he was fearful of
coming to court, having been shot in the head. During petitioner’s motion
26
for a new trial, the prosecutor testified to the numerous attempts to secure
Smith for trial. The victim’s family informed the prosecutor that Smith
would never come to court and that they would have to drag him in. (Tr.
11/20/08, p.7). After being told Smith would not cooperate, the prosecutor
obtained a witness detainer from the trial court. (10/17/08, Pet. to Hold
Material Witness to Bail; 10/17/08, Order for Attach). Trial counsel is not
ineffective for failing to call as witnesses individuals who are unavailable or
who refuse to cooperate with counsel. See Coe v. Bell, 161 F.3d 320, 342
(6th Cir. 1998).
Even if trial counsel called Smith to testify, Smith would not
necessarily exonerate petitioner from being involved in the shooting. Both
Williams and Long testified that petitioner shot at the victim. Petitioner
now submits affidavits from Smith that not only contradict the testimony of
Williams, but also contradict the testimony of the other eyewitness, Long.
Furthermore, the affidavits also do not provide exculpatory evidence, since
Smith states in his affidavits that he did not see where the shots came
from and that they sounded like they came from down the street. Smith
arrived after the shooting between petitioner and the victim ended. He
and Long transported petitioner to the hospital. (Tr. 10/20/2008, p. 143).
27
In rejecting petitioner’s third and final claim, the Michigan Court of
Appeals found:
Smith’s testimony would have contradicted Williams’s testimony
in narrow areas. Even if Smith had testified, however, the trial
court still would have been entitled to find Williams’s testimony
credible and rely on it. Assuming arguendo that counsel erred by
failing to call Smith as a witness at trial, Reese is not entitled to
relief because, as explained above, he has failed to demonstrate
that but for the alleged error, the outcome of the proceedings
would have been different, and that the result that did occur was
fundamentally unfair or unreliable. Therefore, because Reese
cannot show prejudice, counsel was not ineffective and reversal
is not warranted.
People v. Reese, No. 292153, 2012 WL 3020383, at *4 (Mich. Ct. App.
July 24, 2012)(On Remand).
A defense counsel has no obligation to present evidence or
testimony that would not have exculpated the defendant. See Millender v.
Adams, 376 F. 3d 520, 527 (6th Cir. 2004)(internal quotation omitted).
In light of the fact that Smith’s testimony would not established that
petitioner shot the victim in self-defense, petitioner is not entitled to relief.
The trial judge, in denying petitioner’s motion for a new trial,
concluded that Smith’s testimony would have “completely removed
defendant from the entire scene[.],” and thus would not have aided
petitioner’s self-defense claim. People v. Reese, No. 08-7283-01, * 2
(Third Circuit Court, Criminal Division, March 16, 2009). The judge
28
concluded that counsel was not ineffective for failing to call Smith. Id., at *
3.
Petitioner is unable to show that he was prejudiced by counsel’s
alleged ineffectiveness in light of the fact that the same trial judge who
convicted petitioner at his bench trial found that Smith’s proposed
testimony would not have aided petitioner’s self-defense claim when it was
presented to her in petitioner’s post-trial motion for a new trial. See
Dunham v. Travis, 313 F. 3d 724, 732 (2nd Cir. 2002); See also Robinson
v. Wolfenbarger, 2006 WL 897333, *3 (E.D. Mich. April 5, 2006).
In addition, counsel did argue to the trial court judge that petitioner
should be found not guilty under a self-defense theory involving the victim
having shot first. Trial counsel also appears to have made the strategic
decision of focusing primarily on getting petitioner’s second-degree murder
charge reduced to a manslaughter verdict by using an imperfect selfdefense theory, which he was successful in doing. Counsel’s decision to
focus primarily on obtaining a reduction of the second-degree murder
charge to manslaughter by using an imperfect self-defense theory, in lieu
of utilizing a classic self-defense theory, was a valid tactical decision on
counsel’s part. See e.g. Browne v. Clarke, 38 Fed.Appx. 374, 377 (9th Cir.
29
2002). Petitioner’s third and final claim is without merit.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus.
A habeas petitioner must receive a certificate of appealability
(“COA”) in order to appeal the denial of a habeas petition for relief from
either a state or federal conviction. 1 28 U.S.C. §§ 2253(c)(1)(A), (B). A
court may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When a federal district court rejects a habeas claim on the merits, the
substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the district court's assessment of the
constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S.
473, 484-85 (2000).
This Court denies a certificate of appealability because reasonable
jurists would not find this Court’s assessment of the claims to be debatable
or wrong. See Slack v. McDaniel, 529 U.S. at 484.
1
Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254
Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a),
28 U.S.C. foll. § 2254; see also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
30
Although this Court will deny a certificate of appealability to
petitioner, the standard for granting an application for leave to proceed in
forma pauperis (IFP) is a lower standard than the standard for certificates
of appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D.
Mich. 2002)(citing United States v. Youngblood, 116 F. 3d 1113, 1115 (5th
Cir. 1997)). Whereas a certificate of appealability may only be granted if
petitioner makes a substantial showing of the denial of a constitutional
right, a court may grant IFP status if it finds that an appeal is being taken
in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a).
“Good faith” requires a showing that the issues raised are not frivolous; it
does not require a showing of probable success on the merits. Foster, 208
F. Supp. 2d at 765. Although jurists of reason would not debate this
Court’s resolution of petitioner’s claims, the issues are not frivolous;
therefore, an appeal could be taken in good faith and petitioner may
proceed in forma pauperis on appeal. Id.
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a
writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
31
DENIED.
IT IS FURTHER ORDERED that petitioner will be granted leave to
appeal in forma pauperis.
Dated: January 7, 2016
s/Denise P. Hood
HON. DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served
upon the parties and/or counsel of record on January 7, 2016, by electronic
means and/or ordinary mail.
s/K. Jackson
For Case Manager LaShawn Saulsberry
(313) 234-5014
32
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