Meade v. Smith

Filing 28

Memorandum and Order Denying Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability and Denying Petitioner's Pending Motions. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ISIAH MEADE,
Case Number: 13-CV-13903
HONORABLE AVERN COHN

Petitioner,
v.
WILLIE SMITH,
Respondent.
/

MEMORANDUM AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND
DENYING A CERTIFICATE OF APPEALABILITY
AND
DENYING PETITIONER’S PENDING MOTIONS
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Isiah Meade
(Petitioner) is a state inmate at the Carson City Correctional Facility in Carson City,
Michigan. Petitioner filed a pro se petition for a writ of habeas corpus challenging his
convictions, following a bench trial, for eight counts of first-degree criminal sexual
conduct, and three counts of third-degree criminal sexual conduct. Respondent,
through the Attorney General’s office, filed a response, arguing that Petitioner’s claims
are procedurally defaulted and/or without merit. For the reasons which follow, the
petition will be denied and a certificate of appealability will be denied. Petitioner’s
pending motions, for the appointment of counsel, to expand the record, for an
evidentiary hearing, and for accommodations in court filings, will also be denied.

II. Background
A. Facts
Petitioner’s convictions arise from the sexual assault of his daughters, M.M. and
T.M. Petitioner suffers from retinoblastoma1 and is blind. The girls’ mother, Kimberly
Bowe, has been blind from birth. M.M. and T.M. also both suffered from retinoblastoma.
T.M. was blind in both eyes; M.M. is blind in one eye. Shortly after the preliminary
examination on November 9, 2007, T.M. died as a result of complications related to the
retinoblastoma. Her preliminary examination testimony was admitted at the trial.
M.M. testified that Petitioner sexually assaulted her from approximately 1997
through 2003. When she was eight-years old, her father began teaching her and her
sister about sex. He told them that it is a father’s job to take his daughters’ virginity to
prepare them for the future. Petitioner began touching her vagina and her breasts. He
performed oral sex on her the first time when she was eight. When she was nine- or
ten-years old he taught her how to touch his penis with her hands. In 2001, Petitioner
taught M.M. how to perform oral sex on him. She testified that she performed fellatio on
him more than ten times. M.M. testified that Petitioner had vaginal intercourse with her
for the first time when she was twelve-years old. The petitioner had intercourse with her
more than ten times. In July 2003, while visiting her father at his home, she and
Petitioner fought because M.M. refused to have intercourse with him. M.M. told
Petitioner that none of her friends had the kind of relationship with their fathers that she
1

Retinoblastoma is a rare, rapidly developing cancer that develops from the
immature cells of a retina, the light-detecting tissue of the eye. It often results in
blindness of the affected eye. See http://en.wikipedia.org/wiki/Retinoblastoma (Last
visited Mar. 18, 2015).
2

had with him. Petitioner punched M.M. in the face, giving her a bloody nose. M.M. ran
across the street and called police.
The police interviewed M.M. in 2001, in response to T.M.’s report to her mother
than the petitioner had been sexually assaulting the two girls. At the time, M.M. denied
that the petitioner was assaulting her. During trial, M.M. explained that she denied the
assaults at the time because she was only twelve-years old and believed she would still
have to regularly visit petitioner.
Kimberly Bowe testified that neither of her daughters had regular visitations with
their father for the first several years of their lives. T.M.’s visitations began when she
was about six years old, and M.M.’s when she was about five years old. She first
became aware of allegations of sexual abuse in December 2001, when T.M. told her
that Petitioner had been fondling her breasts and her private parts and that she heard
sounds coming from a room with her father and sister which were not appropriate. In
response, Bowe contacted police. The police arranged for physical examinations of the
girls. It was determined that M.M.’s hymen was absent and T.M.’s was intact.
Following the December 2001, investigation, M.M. continued to have court-ordered
visits with her father because she had denied any abuse. T.M. did not see her father
again until November 2003. At that time, T.M. began having weekend visitations with
Petitioner again.
In May 2004, Bowe received a phone call from M.M., telling her that her father
had thrown her out of the house because she would not have intercourse with him.
M.M. told her mother that she was about eleven years old when her father began
abusing her. According to Bowe, this was the first time M.M. told her mother about
3

sexual abuse.
In May 2005, M.M. and T.M. were removed from Bowe’s home. According to
Bowe’s testimony, the girls were removed because Bowe had spanked T.M. with a belt.
Both girls were placed in foster case.
In late 2005, T.M.’s retinoblastoma returned and it was discovered that she had a
brain tumor. At the time, Bowe was working through a court monitored reunification
plan toward having T.M. and M.M. return to her home to live with her. The court had
ordered Petitioner not to have any contact with his daughters, including phone contact.
He was, however, having unsupervised phone calls with T.M. T.M.’s foster case
worker, Katina Jones, testified that the phone calls between T.M. and Meade were
sexual in nature and T.M. had been caught masturbating during one of these phone
calls. Nevertheless, Petitioner was permitted to have supervised visits with T.M.
beginning in August 2006, progressing to unsupervised visits commencing in August
2007. The unsupervised visits were supposed to occur in a community setting, i.e., not
in Petitioner’s home.
T.M. testified at the preliminary examination that, in August 2007, during their first
unsupervised visit, Petitioner took her to a Big Boy restaurant. He then took her to his
home. The two listened to music in the living room for a while. Petitioner then told her
to go into the bedroom. He asked her if he could touch her. She declined, but he
touched her private parts anyway. T.M. tried to resist and Petitioner became
aggressive, hitting an punching her. Petitioner then raped her. T.M. showered.
Petitioner then performed oral sex on her. T.M. also testified that her father first started
touching her in 2001, when she was eleven years old. He first had vaginal intercourse
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with her when she was thirteen years old. He also performed oral sex on her.
Sharon Adams testified that she is employed as a children’s protective services
specialist for the Michigan Department of Human Services. She was assigned to
investigate allegations that Petitioner raped T.M. in August 2007. After interviewing
several relevant witnesses, including T.M., Petitioner, M.M., Bowe, and T.M.’s foster
care worker, Adams concluded that a preponderance of evidence existed to support the
allegations of sexual abuse against T.M. In preparing a report, Adams reviewed prior
records. She found an allegation of abuse or neglect had been made against Petitioner
in 1996 and that the allegation had been denied by the agency. There was an
allegation of physical and mental abuse to T.M. and M.M. by Petitioner in 2001. After
an investigation, those allegations were denied. Three referrals were made in
December 2001, alleging that Petitioner sexually abused T.M. and M.M. All three were
rejected or denied by child protective services.
Petitioner testified in his own defense. He denied all allegations of sexual abuse.
B. Procedural History
Following a bench trial in Wayne County Circuit Court, Petitioner was convicted
of eight counts of first-degree criminal sexual conduct (six for the assaults against M.M.,
and two for the assaults against T.M.), and three counts of third-degree criminal sexual
conduct (for assaults against T.M.). On May 9, 2008, he was sentenced to 18 to 40
years’ imprisonment for each first-degree criminal sexual conduct conviction, and 10 to
15 years’ imprisonment for each third-degree criminal sexual conduct conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals. He raised
these claims through counsel: (i) insufficient evidence presented to overcome the
5

presumption of innocence; (ii) hearsay statements improperly admitted; (iii) trial court
violated due process by not allowing defense to question prosecution witnesses
regarding bias and credibility; (iv) ineffective assistance of trial counsel; and (v) case
should be remanded for amendment of judgment of sentence. He raised these
additional claims in a pro per supplemental brief: (i) due process requires vacating the
trial court’s assessment for attorney fees; and (ii) trial counsel was ineffective in failing
to object to the restitution and attorney fees. The Michigan Court of Appeals affirmed
Petitioner’s convictions. People v. Meade, Nos. 285956, 285957, 2009 WL 4981196
(Mich. Ct. App. Dec. 22, 2009).
Petitioner field an application for leave to appeal in the Michigan Supreme Court,
raising the same claims raised in the Michigan Court of Appeals. The Michigan
Supreme Court denied leave to appeal. People v. Meade, 486 Mich. 929 (Mich. May
25, 2010).
Petitioner then filed a motion for relief from judgment in the trial court, presenting
these claims: (i) appellate counsel’s ineffectiveness established cause for failing to raise
claims on direct review; (ii) trial court failed to provide any assistive devices to allow
Petitioner to assist in his own defense; (iii) trial counsel was ineffective in failing to
properly confront and cross-examine witnesses; and (iv) trial counsel was ineffective in
failing to: communicate with Petitioner; provide assistive devices; investigate; crossexamine witnesses; and preserve issues for appeal. The trial court denied the motion.
3/16/11 Opinion & Order, People v. Meade, Nos. 07-021541 & 07-021542 (Wayne
County Cir. Ct.). The Michigan Court of Appeals denied Petitioner’s application for
leave to appeal the trial court’s decisions, People v. Meade, No. 309105 (Mich. Ct. App.
6

June 25, 2013); as did the Michigan Supreme Court. People v. Meade, 832 N.W.2d
216 (Mich. June 25, 2013).
Petitioner then filed the pending habeas corpus petition. He raises these claims:
I.

The competent evidence was not sufficient to overcome the presumption
of innocence.

II.

The trial court violated Petitioner’s due process rights by improperly
admitting hearsay statements which did not qualify as excited utterances.

III.

The trial court denied Petitioner his right to due process and a fair trial by
not allowing the defense attorney to question prosecution witnesses
regarding bias and credibility.

IV.

Trial counsel was constitutionally ineffective for failing to interview, notice
and present exculpatory witnesses, and failing to object to hearsay
testimony.

V.

Ineffective assistance of appellate counsel establishes cause for failing to
raise issues in a prior appeal.

VI.

Petitioner was denied a fair trial where the court failed to provide assistive
devices which would have enabled Petitioner to assist in his own defense.

VII.

Petitioner was denied effective assistance of counsel where counsel failed
to (a) properly confront witnesses, (b) properly cross-examine witnesses,
(c) communicate with him, (d) provide assistive devices, (e) properly
investigate, (f) properly preserve issues on appeal. Appellate counsel also
failed to communicate.
III. Standard

Petitioner’s claims are reviewed against the standards established by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA). The AEDPA provides:
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 –
7

(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).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)
(quoting Williams, 529 U.S. at 413). However, “[i]n order for a federal court to find a
state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
decision must have been more than incorrect or erroneous. The state court’s
application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21
(citations omitted); see also Williams, 529 U.S. at 409. “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).
“Section 2254(d) reflects the view that habeas corpus is a guard against extreme
8

malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal. . . . As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 102-03 (internal quotation omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme
Court] cases–indeed, it does not even require awareness of [Supreme Court] cases, so
long as neither the reasoning nor the result of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established law”
are to be determined solely by resort to Supreme Court rulings, the decisions of lower
federal courts may be instructive in assessing the reasonableness of a state court’s
resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing
Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F.
Supp. 2d 354, 359 (E.D. Mich. 2002)).
Lastly, a federal habeas court must presume the correctness of state court
factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this
presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358,
360-61 (6th Cir. 1998).
IV. Discussion
9

A. Sufficiency of the Evidence
In his first habeas claim, Petitioner argues that the Michigan Court of Appeals’
decision denying his claim that insufficient evidence was presented to establish his guilt
was an unreasonable application of Jackson v. Virginia, 443 U.S. 307, 319 (1979).
“[T]he 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). On direct review, review
of a sufficiency of the evidence challenge must focus on whether “after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson,
443 U.S. at 319 (emphasis in original). In the habeas context, “[t]he Jackson standard
must be applied ‘with explicit reference to the substantive elements of the criminal
offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006)
(quoting Jackson, 443 U.S. at 324 n.16).
“Two layers of deference apply to habeas claims challenging evidentiary
sufficiency.” McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v.
Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)). First, the Court “must determine
whether, viewing the trial testimony and exhibits 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.” Brown, 567 F.3d at 205 (citing Jackson, 443 U.S. at
319)). Second, if the Court were “to conclude that a rational trier of fact could not have
found a petitioner guilty beyond a reasonable doubt, on habeas review, [the Court] must
still defer to the state appellate court’s sufficiency determination as long as it is not
10

unreasonable.” Id.
The elements of first-degree criminal sexual conduct charged under Mich. Comp.
Laws § 750.520b(1)(b) are: (1) defendant engages in sexual penetration with another
person; (2) who is at least 13 but less than 16 years of age; and (3) defendant is related
to the victim by blood or affinity to the fourth degree. Mead, 2009 WL 4981196, at *1.
The elements of third-degree criminal sexual conduct, under Mich. Comp. Laws §
750.520d(1), are: (1) sexual penetration; (2) with a person related to defendant by blood
or affinity to the third degree.
The Michigan Court of Appeals held that sufficient evidence was presented to
sustain Petitioner’s convictions as to both victims. The Michigan Court of Appeals
reasoned, in relevant part:
At trial, M.M. testified that defendant was her father, and that he engaged
in several sexual penetrations with her while she was 14 years old or
younger. She testified that defendant engaged in five specific sexual
penetrations with her while she was less than 13 years of age; thus,
defendant could have been convicted of five counts of CSC 1 pursuant to
M.C.L. 750.520b(1)(a) (sexual penetration with a victim less than 13 years
of age). She also testified that defendant engaged in four specific sexual
penetrations with her when she was 13 or 14 years of age; thus,
defendant could have been convicted of four counts of CSC 1 pursuant to
M.C.L. 750.520b(1)(b)(ii). The trier of fact may convict based on the
credibility of the victim’s testimony without further corroboration. See
People v. Jones, 193 Mich. App 551, 554; 484 N.W.2d 688 (1992), rev’d
on other grounds 443 Mich. 88 (1993). Viewing the evidence in a light
most favorable to the prosecution, we conclude that the trial court found
that the essential elements of six counts of CSC 1 with respect to M.M.
were proven beyond a reasonable doubt. Wilkens, supra at 738.
T.M. died before the instant trial commenced, and the trial court admitted
her testimony from the preliminary examination. Such testimony was
admissible under M.R.E. 804(a)(4) and (b)(1) (declarant unavailable due
to death, and declarant previously testified subject to cross-examination).
At the preliminary examination, T.M. testified that defendant engaged in
sexual intercourse with her and performed oral sex on her when she was
11

13 years old. T.M. also testified that on August 17, 2007, defendant
engaged in sexual intercourse with her and performed oral sex on her, as
well as touched inside her vagina. T.M.’s statements to other individuals
following that incident were admitted as an exception to the rule against
hearsay as excited utterances. M.R.E. 803(2). Those statements
corroborated her testimony. Further, the trial court found that the incident
report, witness statement, and medical records following that incident all
corroborated her testimony. Viewing the evidence in a light most
favorable to the prosecution, we conclude that the trial court properly
found that the essential elements of two counts of CSC 1, M.C.L.
750.520b(1)(b)(ii), and three counts of CSC 3, M.C.L. 750.520d(1)(d), with
respect to T.M. were proven beyond a reasonable doubt. Id.
Mead, 2009 WL 4981196 at *1.
Petitioner’s argument challenging the Michigan Court of Appeals’ decision rests
upon attacks on the credibility of both victims. He points to alleged inconsistencies in
their testimony and their generally irascible behavior with foster care placements. But,
on habeas review, a federal court “does not reweigh the evidence or redetermine the
credibility of the witnesses whose demeanor has been observed by the trial court.”
Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003), (citing Marshall v.
Lonberger, 459 U.S. 422, 434 (1983)). “A reviewing court ‘faced with a record of
historical facts that supports conflicting inferences must presume – even if it does not
affirmatively appear in the record – that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.’” McDaniel v. Brown, 558
U.S. 120, 133 (2010) (quoting Jackson, 443 U.S. at 326). According the state court’s
findings of fact a presumption of correctness, the Michigan Court of Appeals’ decision
easily passes scrutiny under the deferential AEDPA standard. The state court applied
the correct constitutional test, relied on facts amply supported in the record, and did not
unreasonably apply clearly established constitutional law. Petitioner is not entitled to
12

habeas relief with respect to this claim.
B. Admission of Hearsay Testimony
Petitioner’s second habeas claim argues the admission of hearsay statements
violated his due process rights and the Confrontation Clause. He challenges the
testimony of Kimberly Bowe (T.M.’s mother) and Genevieve Douglas (a group home
supervisor) recounting that, on August 18, 2007, T.M. told them that her father had
raped her the day before during an unsupervised visit. Respondent argues that this
claim is waived and procedurally defaulted.
As an initial matter, “federal courts are not required to address a
procedural-default issue before deciding against the petitioner on the merits,” Hudson v.
Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518,
525 (1997)). Application of a procedural bar would not affect the outcome of this issue.
Therefore, it is more efficient to proceed directly to the merits of Petitioner’s claim. See
Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005) (procedural default is not a
jurisdictional bar to review of the merits of an issue).
To the extent Petitioner argues that the state court incorrectly applied state rules
of evidence, this claim is not one that may be reached on federal habeas review.
Shoemaker v. Jones, — F. App’x —, 2015 WL 480233, *5 (6th Cir. Feb. 6, 2015).
Petitioner’s argument that admission of this testimony violates the Confrontation Clause
does raise a claim cognizable on habeas review.
The Confrontation Clause of the Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. The Confrontation Clause bars out-of-court
13

statements that are testimonial in nature unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness. Crawford v.
Washington, 541 U.S. 36, 68 (2004). “It is the testimonial character of the statement
that separates it from other hearsay that, while subject to traditional limitations upon
hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington,
547 U.S. 813, 821 (2006). The Confrontation Clause has no application to nontestimonial statements. Whorton v. Bockting, 549 U.S. 406, 420 (2007). To determine
whether a statement is testimonial, a court asks “‘whether the declarant intends to bear
testimony against the accused. That intent, in turn, may be determined by querying
whether a reasonable person in the declarant’s position would anticipate [her] statement
being used against the accused in investigating and prosecuting the crime.’” Berry v.
Capello, 576 F. App’x 579, 585 (6th Cir. 2014) (quoting United States v. Cromer, 389
F.3d 662, 675 (6th Cir. 2004)).
T.M.’s statements to her mother and Genevieve Douglas were not made under
circumstances where she would anticipate her statement would be used against her
father in the investigation and prosecution of a crime. The record shows that T.M.
turned to her mother the day after her unsupervised visit with her father on August 17,
2007, because she was distraught and uncertain about her future. T.M.’s mother
testified that T.M. told her that her father had raped her and had oral sex with her, and
that he threatened to kill her and her family if she told anyone. T.M. was conflicted
because she did not want her father to abuse her again, yet she also wanted to
maintain a relationship with him. Douglas testified that, the day after T.M.’s visit with
her father, T.M. was upset and agitated and asked to speak to her mother. After T.M.
14

spoke to her mother, Douglas spoke with T.M. Douglas testified that she had become
T.M.’s confidant during T.M.’s time at the group home. T.M. told Douglas that her father
had forcibly had intercourse with her and then performed cunnilingus on her.
T.M.’s statements to her mother and Douglas were not “directed at establishing
the facts of a past crime, in order to identify (or provide evidence to convict) the
perpetrator.” Davis v. Washington, 547 U.S. 813, 826 (2006). The primary purpose of
T.M.’s statements to her mother and Douglas were personal in nature; she apparently
sought counsel and comfort. These are not the sorts of “judicial-process-created
evidence of which Crawford speaks.” United States v. Manfre, 368 F.3d 832, 838 n.1
(8th Cir. 2004). See also, United States v. Franklin, 415 F.3d 537, 545 (6th Cir. 2005)
(concluding that statements were non-testimonial where witness “was privy to
[Declarant]’s statements only as his friend and confidant”); Horton v. Allen, 370 F.3d 75,
84 (1st Cir. 2004) (statements made in private conversation nontestimonial); cert.
denied, 543 U.S. 1093 (2005). Thus, Crawford is inapplicable.
Moreover, even if T.M.’s statements to Bowe and Douglas could be considered
testimonial in nature, their admission did not violate the Confrontation Clause because
T.M. was available for cross-examination at the preliminary examination. The Court of
Appeals for the Sixth Circuit has acknowledged “there is some question whether a
preliminary hearing necessarily offers an adequate prior opportunity for crossexamination for Confrontation Clause purposes.” Al-Timimi v. Jackson, 379 F. App’x.
435, 437 (6th Cir. 2010) (citing Vasquez v. Jones, 496 F.3d 564, 577 (6th Cir. 2007))
(doubting whether “the opportunity to question a witness at a preliminary examination
hearing satisfies the pre-Crawford understanding of the Confrontation Clause’s
15

guarantee of an opportunity for effective cross-examination”) (internal quotation marks
omitted). But, in California v. Green, 399 U.S. 149 (1970), the Supreme Court found no
Confrontation Clause violation where the trial court admitted a prior statement of a
witness made at a preliminary hearing. The Supreme Court found that the
circumstances of the hearing closely approximated those of a typical trial, noting that
the witness was under oath, the defendant was represented by counsel who had every
opportunity to cross-examine the witness, and “the proceedings were conducted before
a judicial tribunal equipped to provide a judicial record of the hearings.” Id. at 165. The
Supreme Court concluded “we do not find the instant preliminary hearing significantly
different from an actual trial to warrant distinguishing the two cases for purposes of the
Confrontation Clause.” Id.
Similarly, in this case, the preliminary examination closely approximated the
circumstances of a trial. T.M. testified under oath, the examination was presided over
by a judicial tribunal and a record was created, and defense counsel was given
adequate opportunity to cross-examine T.M. Indeed, counsel was made aware of the
grave turn T.M.’s health had taken at the outset of her preliminary examination
testimony. She testified that she had suffered seizures the previous week and doctors
discovered her cancer had returned. She was scheduled for surgery the day after the
preliminary examination and another surgery a week later. Defense counsel was clearly
on notice about the importance of T.M.’s preliminary examination testimony. The Court
concludes T.M. thus was subject to meaningful cross-examination, and the trial court’s
decision to admit her hearsay statements was not contrary to or an unreasonable
application of clearly established federal law.
16

Finally, even if admission of these hearsay statements violated the Confrontation
Clause, the error was harmless. A violation of the Confrontation Clause is subject to
harmless error analysis. See Lilly v. Virginia, 527 U.S. 116, 140 (1999); Coy v. Iowa,
487 U.S. 1012, 1021-22 (1988); Delaware v. Van Arsdall, 475 U.S. at 681-84 (1986).
On habeas review, to determine whether an error is harmless a court must ask whether
the error “had [a] substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). “To determine the effect of the error under Brecht,
[the court should] consider both the impact of the improperly admitted evidence and the
overall weight of the evidence presented at trial.” Peterson v. Warren, 311 Fed. App’x.
798, 805 (6th Cir. 2009) (citing Brecht, 507 U.S. at 639). Factors to be considered in
determining whether a Confrontation clause error was harmless under Brecht include:
“(1) ‘the importance of the witness’ testimony in the prosecution’s case,’ (2) ‘whether the
testimony was cumulative,’ (3) ‘the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points,’ (4) ‘the extent of crossexamination otherwise permitted,’ and (5) ‘the overall strength of the prosecution’s
case.’” Vasquez, 496 F.3d at 574 and 574 n. 8 (6th Cir. 2007) (quoting Delaware v. Van
Arsdall, 475 U.S. at 684).
The Van Arsdall factors support a finding that the admission of these statements
did not have a substantial impact on the verdict. T.M.’s hearsay statements were
merely cumulative when compared with the other evidence against Petitioner. T.M.
testified at the preliminary examination that Petitioner raped and performed cunnilingus
on her on August 17, 2007, and Petitioner had an opportunity to cross-examine her on
17

this subject. Petitioner admitted that he took T.M. back to his apartment, although the
unsupervised visit was supposed to be in the community. In addition, T.M.’s demeanor
following her visit with her father evidenced a great deal of trauma. Overall, T.M.’s
testimony was so strong such that admission of the hearsay statements did not have a
substantial and injurious effect on the verdict. Petitioner is not entitled to habeas relief
on this claim.
C. Right to Present a Defense
In his third claim, Petitioner argues that the trial court denied him his right to
present a defense when it precluded defense counsel from questioning M.M. about her
relationship with her foster parents and why she was removed from her mother's home
and precluded defense counsel from asking whether she abused all of her children not
just M.M. and T.M. Petitioner claims that this limitation denied him his ability to question
the credibility of both M.M. and Bowe. Respondent argues this claim is procedurally
defaulted. As with Petitioner’s hearsay claim discussed above, it is more efficient to
address the merits of this claim rather than to consider the question of procedural
default. Hudson, 351 F.3d at 215.
The right of a defendant to present a defense has long been recognized as “a
fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19
(1967). It is one of the “minimum essentials of a fair trial.” Chambers v. Mississippi,
410 U.S. 284, 294 (1973). While the right to present a defense is a fundamental tenet
of due process, “a defendant’s right to present evidence is not unlimited, but rather is
subject to reasonable restrictions.” United States v. Scheffer, 523 U.S. 303, 307 (1998).
Indeed, “[a] defendant’s interest in presenting . . . evidence may thus bow to
18

accommodate other legitimate interests in the criminal trial process.” Id. (internal
quotations omitted). However, the exclusion of evidence is unconstitutional where it
“infringe[s] upon a weighty interest of the accused.” Id. (citing Rock v. Arkansas, 483
U.S. 44, 58 (1987)).
The Michigan Court of Appeals held that the trial court’s limitations on crossexamination were reasonable restrictions that did not limit Petitioner’s ability to present
a defense. Mead, 2009 WL 4981196 at *3-4. The state court reasoned that M.M.’s
relationship with her foster parents, even if volatile, did not have “any tendency to make
any fact of consequence more probable in this case. . . . [I]t did not make the defense of
fabrication more likely, contrary to defendant’s arguments.” Id. at *4. With respect to
questions regarding why M.M. was removed from her mother’s residence, the Michigan
Court of Appeals held this testimony was properly excluded because there was no
evidence that M.M. had personal knowledge why she was removed. Id. In addition,
defense counsel was permitted to question Bowe and the foster care worker regarding
the girls’ removal from Bowe’s home. Id. Finally, defense counsel questioned the foster
care worker regarding Bowe’s treatment of her other children and evidence was
adduced regarding Bowe’s physical abuse of her children, including three instances
involving her other children. Id.
The limitation imposed was narrow and reasonably drawn to maintain the focus
on the conduct and charges at issue in this case. It did not substantially impair
Petitioner’s ability to challenge M.M.’s or Bowe’s credibility or expose their motives for
testifying and inconsistent testimony. See Stewart v. Wolfenbarger, 468 F.3d 338, 347
(6th Cir. 2006) ( “Where the trial court limits the extent of cross-examination, the inquiry
19

for the reviewing court is whether the jury had enough information, despite the limits
placed on otherwise permitted cross-examination, to assess the defense theory.”
(quotation omitted)). The Michigan Court of Appeals’ holding that Petitioner’s
constitutional rights were not violated was reasonable in its application of and consistent
with federal law. Accordingly, Petitioner is not entitled to relief on this ground.
D. Availability of Assistive Devices
In his sixth claim for habeas corpus relief, Petitioner argues that the trial court
erred in failing to provided him with assistive devices to enable him to assist in his own
defense. Respondent argues that his claim is procedurally defaulted.
Federal habeas relief is precluded on claims that were not presented to the state
courts in accordance with the state’s procedural rules. See Wainwright v. Sykes, 433
U.S. 72, 85-87 (1977). The doctrine of procedural default is applicable when a
petitioner fails to comply with a state procedural rule, the rule is actually relied upon by
the state courts, and the procedural rule is “independent of the federal question and
adequate to support the judgment.” Walker v. Martin, 562 U.S. 307, —, 131 S. Ct.
1120, 1127 (2011) (internal quotations omitted). Petitioner raised this claim for the first
time on collateral review in state court. The Michigan Supreme Court denied relief
pursuant to Michigan Court Rule 6.508(D), which provides, in part, that a court may not
grant relief to a defendant if the motion for relief from judgment alleges grounds for relief
which could have been raised on direct appeal, absent a showing of good cause for the
failure to raise such grounds previously and actual prejudice resulting therefrom. See
Mich. Ct. R. 6.508(D)(3). This form order used by the Michigan Supreme Court to deny
leave to appeal in this case is unexplained because its citation to Michigan Court Rule
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6.508(D) is ambiguous as to whether it refers to a procedural default or a rejection on
the merits. See Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc).
Consequently, under Guilmette, the Court must “look through” the unexplained order of
the Michigan Supreme Court to the state trial court’s decision to determine the basis for
the denial of state post-conviction relief.
The state trial court clearly denied relief on procedural grounds. The trial court
cited Michigan Court Rule 6.508(D)(3) and concluded that Petitioner could not establish
cause and prejudice because his underlying claim lacked merit and that he had not
shown that a miscarriage of justice had occurred. 3/16/11 Opinion & Order at 3.
Accordingly, this claim is procedurally defaulted, unless Petitioner can satisfy the cause
and prejudice standard or the miscarriage of justice exception.
“The ‘cause’ standard in procedural-default cases requires the petitioner to show
that ‘some objective factor external to the defense impeded counsel's efforts’ to raise a
claim in the state courts.” Wogenstahl v. Mitchell, 668 F.3d 307, 321 (6th Cir. 2012)
(quoting McCleskey v. Zant, 499 U.S. 467, 493 (1991)). “Such factors may include
interference by officials, an attorney error rising to the level of ineffective assistance of
counsel, or a showing of a factual or legal basis for a claim that was not reasonably
available.” Id. Petitioner alleges his appellate attorney’s ineffectiveness as cause to
excuse his default in failing to raise this claim on direct appeal of his convictions.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court
established a two-pronged test for determining whether a habeas petitioner has
received ineffective assistance of counsel. First, a petitioner must prove that counsel’s
performance was deficient. This “requires a showing that counsel made errors so
21

serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth
Amendment.” Id. at 687. Second, a petitioner must show that counsel’s deficient
performance prejudiced petitioner. Id.
A habeas petitioner does not have a constitutional right to have appellate counsel
raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983).
“[A]ppellate counsel who files a merits brief need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in order to maximize the
likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000).
Strategic and tactical choices regarding which issues to pursue on appeal are “properly
left to the sound professional judgment of counsel.” United States v. Perry, 908 F.2d
56, 59 (6th Cir. 1990). The prejudice standard in the context of a claimed failure to raise
issues on appeal requires a showing that there is “a reasonable probability, but for
counsel's unreasonable failure . . . he would have prevailed on his appeal.” Smith, 528
U.S. at 285. The process of “‘winnowing out weaker arguments on appeal’ ” is “the
hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986)
(quoting Barnes, 463 U.S. at 751-52). “‘[O]nly when ignored issues are clearly stronger
than those presented, will the presumption of effective assistance of [appellate] counsel
be overcome.’” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (quoting Gray v.
Greer, 800 F.2d 644, 646 (7th Cir. 1986)). To require appellate counsel to raise every
possible colorable issue “would interfere with the constitutionally protected
independence of counsel and restrict the wide latitude counsel must have in making
tactical decisions.” Strickland, 466 U.S. at 688.
Petitioner has not shown that the assistive-devices-related claim was stronger
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than those raised on appeal. The trial court, although finding this claim procedurally
barred, nevertheless addressed the merits of the claim. In a carefully reasoned,
thorough decision, the trial court held as follows:
Defendant’s first substantive argument is that the court violated his due
process and constitutional rights by failing to provide assistive devices
pursuant to Americans with Disabilities Act of 1990[] (ADA), thus
preventing him from aiding in his own defense. Defendant asserts that he
has the medical condition of retinoblastoma rendering him blind, and that
without the aid of a brail [sic] machine, an automated reading device, or a
court appointed visual impairment specialist, he was unable to view
exhibits, read discovery materials, access the jail law library materials, or
effectively communicate with counsel in written format while incarcerated
and that consequently, the jail staff would have read the confidential
communications between himself and counsel.
To begin with the ADA was enacted to protect people with disabilities from
employment discrimination and to ensure reasonably unfettered access to
services and facilities open to the public. Defendant’s reliance on the ADA
to support a violation of due process claim in a criminal matter is novel
and as applied in the instant matter, appears to be a case of first
impression; the court nevertheless finds Defendant’s argument
unpersuasive.
In order to ensure that indigent, disabled, criminal defendants are afforded
due process and access to the court, the court is required to comply with
the provisions of the ADA and specifically, make reasonable
accommodations for such defendants. Tennessee v. Lane, 541 U.S. 509,
532, 124 S. Ct. 1978, 158 L.Ed. 2d 820 (2004). Unpreserved errors are
reviewed for plain error and may not be considered on appeal unless the
error could have been decisive of the outcome, worked a miscarriage of
justice, or falls under a category of cases in which prejudice is presumed
or reversal is automatic. U.S. v. Olano, 507 U.S. 725; 113 S. Ct. 1770
(1993). See also People v. Carines, 460 Mich. 750; 597 N.W.2d 130
(1999).
To support his claim, defendant cites Memmer v. Marin County Courts,
169 F.3d 630 (1999), in which an indigent blind defendant in a civil eviction
action was afforded but rejected a court appointed Spanish language
interpreter (rather than a visual impairment specialist) to assist her during
the proceedings. Appellant requested and was granted with some
restrictions the assistance of a different individual (who did not have any
special credentials or training). It is ruling the U.S. Court of Appeals for
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the Ninth Circuit found that although courts are subject to the provisions of
the ADA, the appellant litigant did not demonstrate that the
accommodations offered by the appellee court were unreasonable. The
Ninth Circuit reasoned that no special skill was required to assist a blind
litigant other than the general ability to read and verbally communicate.
Further, the court held that in order to prevail (and recover monetary
damages) on a civil ADA claim, the appellant must produce evidence of
discriminatory intent on the part of appellee.
In the present case, the court is not convinced by defendant’s argument
and [finds] that, under the circumstances its appointment of counsel was a
reasonable accommodation in compliance with the ADA. First, Defendant
has failed to demonstrate a discriminatory intent on the part of the court.
There has been no evidence presented to indicate that the court willfully or
affirmatively committed any act or omission that would have worked
against Defendant’s interests or denied him a fair trial, nor specifically has
defendant demonstrated any discriminatory behavior on the part of the
court based on his disability. To the contrary, and despite defendant’s
allegations of ineffectiveness of counsel, defendant was provided with
court appointed counsel, who although [he] may not be a qualified
specialist for the visually impaired, was clearly in a position to apprise
defendant of any pertinent documents in the discovery or exhibits
presented at trial.
Second, under 28 C.F.R. §§ 35.135, the personal services and devices
provision of the ADA “does not require a public entity to provide to
individuals with disabilities personal services, such as wheelchairs;
individually prescribed devices, such as prescription eyeglasses or hearing
aids; readers for personal use or study; or services of a personal nature
including assistance in eating, toileting, or dressing.” All that is required
under the ADA is that a disabled person is not discriminated [against] on
the basis of that disability. Despite defendant’s claim that he was not
afforded an ability to confidentially communicate in written format with
defense counsel, there has been no showing of what confidential or
privileged communications, if any, were compromised, or that defendant
was prejudiced as a result. Although not an ideal situation defendant
indicates that he was informed about the contents of written
correspondence with the aid of jail personnel. Furthermore, access to the
jail law library is governed by jail police and is not a constitutional right.
Finally, and most important to the question of any impediment to
defendant’s right to due process, is that defendant had access to counsel,
who was in a position to communicate verbally with defendant and seek
defendant’s input regarding the evidence and the case.
Third, defendant has not demonstrated that a request for assistive devices
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was ever made during the course of the proceedings or during the trial.
The court is not clairvoyant and is not required to sua sponte offer special
accommodations in the absence of a request from a party. Additionally,
there is nothing in the record to indicate that defendant himself ever
requested or relayed to counsel a demand for assistive aids.
Furthermore, defendant fails to adequately support this claim with relevant
and applicable case law. Mitcham v Detroit, 355 Mich 185, 203; 94 NW2d
388 (1959). In the complete absence of a specific request, to anticipate
the needs of a litigant would be an onerous task for the court to engage in
beyond its mandate to adjudicate legal matters. It would be ludicrous to
assign error to a supposed court decision, when the court was never
asked to make a decision. Defendant was not denied access to the court,
was not denied access to legal counsel, was not denied a fair trial, and
was not denied due process of law. Consequently, the court finds
defendant’s denial of due process claim based on an ADA violation to be
meritless.
3/16/11 Opinion & Order at 3-6.
Petitioner has failed to rebut with “clear and convincing evidence” (indeed, with
any evidence) the state court’s factual finding that neither he nor his attorney requested
assistive devices from the trial court during the pendency of the proceedings. 28 U.S.C.
§ 2254(e)(1); Rice v. Collins, 546 U.S. 333, 338-89 (2006) (“State-court factual findings .
. . are presumed correct; the petitioner has the burden of rebutting the presumption by
‘clear and convincing evidence.”“). Petitioner has pointed to no clearly established
Supreme Court precedent requiring assistive devices in this context. Therefore, he
cannot establish that the state court’s ruling was contrary to or an unreasonable
application of clearly established Supreme Court precedent. Moreover, Petitioner’s own
cogent and voluminous filings in this court and in state court demonstrate his ability to
independently pursue his claims with the state court and this court with the resources
available to him. The record shows that Petitioner possessed a functional
understanding of the proceedings against him and an ability to consult with his lawyer
25

with a reasonable degree of understanding.
Petitioner fails to show that his claim that the trial court erred in failing to
accommodate his disability was meritorious. Therefore, appellate counsel cannot be
said to have been ineffective in failing to raise this issue on direct appeal. Thus, this
claim is procedurally defaulted and barred from review unless Petitioner can establish
that a constitutional error resulted in a fundamental miscarriage of justice. See Schlup
v. Delo, 513 U.S. 298, 321 (1995). The Supreme Court has tied the miscarriage of
justice exception to procedural default to a petitioner’s innocence. Id. To make a
showing of actual innocence, “a petitioner must show that it is more likely than not that
no reasonable juror would have found the petitioner guilty beyond a reasonable doubt.”
Id. at 327. Petitioner fails to present new, reliable evidence in light of which no
reasonable juror would have found him guilty. Therefore, this claim is procedurally
defaulted.
D. Ineffective Assistance of Counsel Claims
In his fourth and seventh habeas claims, Petitioner raises several ineffective
assistance of counsel claims. Specifically, he alleges trial counsel was ineffective in
failing to: (i) investigate and present exculpatory witnesses; (ii) object to hearsay
testimony from Katina Jones and Kimberly Bowe; (iii) properly confront witnesses; (iv)
properly cross-examine witnesses; (v) communicate with Petitioner or provide assistive
devices; (vi) properly investigate; and (vii) preserve issues for appeal.
As discussed above, to establish that he received ineffective assistance of
counsel, a petitioner must show, first, that counsel’s performance was deficient and,
second, that counsel’s deficient performance prejudiced the petitioner. Strickland, 466
26

U.S. at 687.
First, Petitioner argues that counsel was ineffective in failing to call two
witnesses, Deborah Golden and Carwell Williams. He claims he provided counsel with
their names, but counsel never contacted them. Petitioner has submitted an affidavit
from Deborah Golden in which she claims to have spoken to T.M. by telephone on
August 17, 2007, while T.M. was visiting her father. She claims T.M. was nearing the
end of her visit when they spoke and that T.M. seemed happy and content. In addition,
she states that she heard several phone calls from T.M. to her father during which T.M.
complained about her living conditions at various foster homes. She also states that
she has a recording of M.M. apologizing for making false accusations.
Petitioner has also submitted an affidavit from Carwell Williams, a retired Detroit
police officer. Williams states that he was acquainted with Petitioner and his daughters
and provided them transportation on various occasions. Neither girl ever told him that
their father assaulted them. He stated that, in particular, in the summer of 2007, he
provided Petitioner and T.M. with a ride, and that T.M. did not indicate that anything
improper happened at her father’s apartment.
The Michigan Court of Appeals held that counsel’s failure to call these witnesses
was not ineffective. The court of appeals reasoned that Golden’s testimony would have
been generally inadmissible as hearsay and Williams’ “vague testimony would have
added nothing to the defense.” Mead, 2009 WL 4981196 at *4. The Court finds the
state court’s conclusion reasonable. Even assuming neither Golden or Williams was
told of or aware of the abuse, that does not tend to show the abuse did not occur.
Neither affidavit shows that Golden or Williams had a special relationship with T.M. or
27

M.M. such that either girl would have confided in them. Indeed, Golden references her
decades-long close friendship with Petitioner, making it unlikely she would be chosen as
a confidant. Finally, even to the extent that the purported recording of M.M. apologizing
for making false accusations existed and was admissible, such a recording would have
had negligible value as M.M. admitted that she previously recanted her allegations
against Petitioner because she felt threatened by him. Habeas relief is therefore not
warranted on this allegation of ineffective assistance of counsel.
Next, Petitioner argues that counsel was ineffective in failing to object to Katina
Jones’ and Kimberly Bowe’s testimony on hearsay grounds. First, he argues that
counsel should have objected to Jones’ testimony that T.M.’s foster parent told Jones
that she believed T.M. was on the phone with Petitioner when she was caught
masturbating. The Michigan Court of Appeals held that defense counsel could have
raised a meritorious objection to this testimony, but that the error did not prejudice
Petitioner. Mead, 2009 WL 4981196 at * 5. The Court agrees. There is no indication
that the trial court's verdict was influenced by this testimony, nor did it tend to establish
an element of the crime. The state court's decision that Petitioner was not prejudiced by
counsel's failure to object was a reasonable application of Strickland. Second,
Petitioner argues that counsel should have objected to Bowe's testimony that T.M. told
her that she heard inappropriate noises coming from a room where Petitioner and M.M.
were. The Michigan Court of Appeals held that this testimony was properly admitted
because it was not offered to prove the truth of the matter asserted. Mead, 2009 WL
4981196 at *5. The testimony was offered to explain why Bowe decided to contact
authorities. Counsel cannot be judged ineffective for failing to raise a meritless
28

objection. Habeas relief is denied on this claim.
Respondent argues that Petitioner's remaining ineffective assistance of counsel
claims are procedurally defaulted. Again, it is most efficient to address the merits of
these claims. Petitioner claims counsel was ineffective in failing to review police
reports, child protective services reports, medical reports and other demonstrative
evidence with Petitioner, and, relatedly, in failing to procure reasonable
accommodations for Petitioner to review these items. The trial court denied this claim,
stating, in relevant part:
The ADA does not extend any special rights to a disabled criminal beyond
those which are afforded under the Constitution to any criminal defendant.
The court likens the instant matter to one in which a defendant is illiterate.
Counsel is simply not required to read a defendant every single page
contained in a discovery package. No measure of reasonableness would
require such a herculean task in a complex felony case. Beyond the
allegations, there has been no showing that defendant was denied access
to the court, access to his attorney, or was not afforded a fair, equitable,
and just trial. Consequently, the court finds that defense counsel’s
performance did not fall below the reasonableness standard established
under Strickland, or that defendant was prejudiced by counsel’s
performance.
3/16/11 Opinion & Order at 8-9.
This well-reasoned opinion is not contrary to or an unreasonable application of
Supreme Court precedent. As discussed above, Petitioner fails to establish any
accommodations were necessary to assist him in his defense. He does not show that
counsel was unable to discuss with him relevant evidence, documents, or Petitioner’s
defense. Other than conclusory allegations, Petitioner fails to offer any concrete
examples of defenses that were unavailable to him based upon his attorney’s alleged
failure to procure reasonable accommodations and the Court finds none in the record.
29

Petitioner's remaining ineffective assistance of counsel claims are, as the trial
court aptly described them, a "laundry list of allegations." 3/16/11 Order at 8. The trial
court concluded that these allegations failed to establish ineffective assistance of
counsel under Strickland. Petitioner's habeas petition also asserts these remaining
ineffective assistance of counsel claims in conclusory fashion. These allegations,
lacking any evidentiary support, are insufficient to establish that the state court
unreasonably applied Strickland.
E. Ineffective Assistance of Appellate Counsel Claim
Finally, Petitioner raises an ineffective assistance of counsel claim as cause to
excuse his many procedurally defaulted claims. The Court addressed the ineffective
assistance of appellate counsel raised as cause to excuse the default of Petitioner’s
assistive-devices related claim above. With respect to the remaining procedurally
defaulted claims, the Court determined that the interests of judicial economy were best
served by addressing the merits of the defaulted claims. Nevertheless, the Court will
briefly address the ineffective assistance of appellate counsel claim.
Petitioner claims that appellate counsel was ineffective in failing to raise on direct
review the claims raised in this petition but not raised on direct review. Petitioner has
failed to show that these claims were potentially meritorious. Therefore, he cannot
show that his appellate attorney was ineffective for failing to raise the claims on direct
appeal.
V. Petitioner’s Motions
As noted above, Petitioner filed multiple motions related to his petition. They are
addressed in turn below.
30

A. Motion to Appoint Counsel
Petitioner has filed a motion seeking the appointment of counsel. There exists
no constitutional right to the appointment of counsel in civil cases, and the court has
broad discretion in determining whether counsel should be appointed. Childs v.
Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (“[A]ppointment of counsel in a civil case
is . . . a matter within the discretion of the court. It is a privilege and not a right.”)
(internal quotation omitted). A habeas petitioner may obtain representation at any stage
of the case “[w]henever the United States magistrate or the court determines that the
interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). The interests of justice do
not require appointment of counsel. Rather, Petitioner has been able to fully articulate
his claims for relief in his filings absent counsel.
B. Motion for Order Directing Respondent to Expand Its Filing of Rule 5 Materials
Petitioner asks the Court to direct Respondent to file additional Rule 5 Materials.
Rules 5(c) and (d), Rules Governing Section 2254 Cases, requires the respondent to
file a copy of any prior decisions, pleadings, briefs, and transcripts relevant to the issues
presented in a habeas petition. Petitioner claims that Respondent failed to file two pretrial motions filed by Petitioner in the trial court. In ruling on the merits of the issues
raised in this petition, the Court has reviewed the state court record filed by
Respondent. The Court required no additional portions of the state court record to allow
for a fair adjudication of Petitioner’s claims. The motion must therefore be denied.
C. Motion for Evidentiary Hearing
Petitioner seeks an evidentiary hearing to develop evidence related to his claims

31

that appellate counsel was ineffective for failing to raise the denial of access to the court
claim on direct appeal, that trial counsel was ineffective in failing to call Deborah Golden
as a witness, and the evidence was insufficient to sustain his convictions.
Federal habeas review under 28 U.S.C. §2254(d) is “limited to the record that
was before the state court that adjudicated the claim on the merits.” Cullen v.
Pinholster, — U.S. —, 131 S. Ct. 1388, 1398 (2011). “[R]eview under § 2254(d)(1)
focuses on what a state court knew and did.” Id. at 1399. The Court reasoned that “[i]t
would be strange to ask federal courts to analyze whether a state court's adjudication
resulted in a decision that unreasonably applied federal law to facts not before the state
court.” Pinholster, 131 S.Ct. at 1399. “[D]istrict courts are precluded from conducting
evidentiary hearings to supplement existing state court records when a state court has
issued a decision on the merits with respect to the claim at issue.” Ballinger v.
Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013). The claims on which Petitioner seeks an
evidentiary hearing were decided on the merits by the state court. Therefore, the Court
must decide these claims based upon the existing record. The motion must be denied.
D. Motion Requesting All Orders and Opinions and All Pleadings Be Issued in
Braille or Audio Format
Finally, Petitioner requests that all orders, opinions, and pleadings be issued in
Braille or audio format to accommodate his disability. Petitioner’s many pleadings filed
in this case, not the least of which is his 34-page reply to Respondent’s answer, show
that such an accommodation is unnecessary for Petitioner to adequately pursue his
claims in this Court. The motion must be denied.
VI. Certificate of Appealability
32

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability (COA) is issued under 28 U.S.C. §2253. Rule 11 of
the Rules Governing Section 2254 Proceedings requires that the Court “must issue or
deny a certificate of appealability when it enters a final order adverse to the application.”
A COA may be issued “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 484 (2000) (citation omitted).
The Court concludes that reasonable jurists would not debate the resolution of
any of Petitioner’s claims or find that they should proceed further. Thus, a COA will be
denied.
VII. Conclusion
For the reasons stated above, the petition for a writ of habeas corpus is DENIED.
A COA is DENIED.
Petitioner’s pending motions (1) for the appointment of counsel, (2) to expand the
Rule 5 materials, (3) for an evidentiary hearing, and (4) for accommodations in court
filings are DENIED.
This case is DISMISSED.
SO ORDERED.
S/Avern Cohn
UNITED STATES DISTRICT JUDGE
Dated: March 31, 2015
33

13-13903 Meade v. Willie Smith
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, March 31, 2015, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

34