Walker v. Smith
OPINION and ORDER DENYING 1 Petition for Writ of Habeas Corpus, DECLINING to Issue a Certificate of Appealability, and GRANTING Leave to Appeal In Forma Papueris. Signed by District Judge Laurie J. Michelson. (KJac)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ROBERT DEON WALKER,
Case No. 13-13976
Honorable Laurie J. Michelson
WILLIE SMITH, Warden,
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Robert Deon Walker is currently confined in a Michigan state correctional
facility following his conviction for, among other charges, first-degree murder. Walker filed a
petition for a writ of habeas corpus pro se, arguing that he was deprived of several constitutional
rights during his jury trial. Having reviewed the Petition, the warden’s response, and the statecourt record, the Court concludes that Walker’s claims are without merit. Accordingly, the
Petition will be denied.
Walker was convicted of first-degree premeditated murder, along with several firearmsrelated charges, in the January 2010 shooting death of Glenn Coleman.
At trial, Coleman’s cousin D’Quayvion Hamilton testified that about a week before the
shooting, Coleman and Walker’s sister were involved in an altercation at a party. (R. 9-6, PID
526.) Walker’s sister patted Coleman down in an attempt to find an item on his person. (Id.)
Shortly after this, Coleman, along with Hamilton and Jovan McKinney, left the party and began
to drive away in McKinney’s girlfriend’s car. (Id.) But Walker’s sister, who was drunk at the
time, followed them out, jumped on the hood of the car and banged on the hood and windshield.
(R. 9-6, PID 527.) Coleman, who was driving, continued to back out of the parking spot, causing
Walker’s sister to fall off the car. (Id.)
At some point afterward, Walker went to Coleman’s house in Saginaw looking for him.
(R. 9-6, PID 497.) McKinney witnessed this interaction and testified about what happened at a
preliminary hearing. Because McKinney was deemed unavailable to testify at trial, the transcript
of that hearing was read into the record. (Id.) According to McKinney, he was eating pizza with
Coleman when Walker and Demetrick Mounger, who was renting a room in the house, arrived.
(R. 9-6, PID 498.) Walker was angry because he thought that Coleman had his sister’s phone. (R.
9-6, PID 498.) Standing about eight feet away, Walker drew a gun and told Coleman to empty
his pockets. (Id.) Coleman complied and stated that he did not have the phone. (R. 9-6, PID 499.)
But Walker shot at Coleman, who immediately fell to the ground. (Id.) McKinney stated that
Coleman never got up from the ground after being shot. (Id.) Walker told McKinney, “I better
not hear about this,” and left. (Id.)
Demetrick Mounger, who was available to testify at trial, stated that he knew Coleman,
McKinney, and Walker, and had been renting a room in Coleman’s house at the time of the
shooting. (R. 9-6, PID 509.) Mounger testified that he brought Walker to the house that day
because Walker wanted some marijuana. (R. 9-6, PID 510.) Mounger said he initially told
Walker to wait in the car, and upon walking into the house, saw Coleman, McKinney, and a man
known as “Big Baby.” (R. 9-6, PID 510.) Mounger said he walked into the kitchen to retrieve the
marijuana he had stored there and heard someone coming through the door. (R. 9-6, PID 511.)
Though Big Baby was blocking his view, Mounger overheard Walker accuse Coleman of
robbing his sister. (Id.) Mounger attempted to calm the situation down, but Walker pulled out a
pistol and started shooting at Coleman’s chest. (Id.) According to Mounger, after Coleman fell,
Big Baby ran toward the basement stairs, and Walker fired in his direction as well. (R. 9-6, PID
On March 16, 2011, the jury convicted Walker of first-degree murder, Michigan
Compiled Laws § 750.316(1)(a); carrying a concealed weapon, Michigan Compiled Laws
§ 750.227; discharge of firearm in a building, Michigan Compiled Laws § 750.234b; and two
counts of felony firearm, Michigan Compiled Laws § 750.227b. (R. 9-8, PID 611.) The
Michigan Court of Appeals affirmed the convictions in an unpublished opinion. People v.
Walker, No. 304113, 2012 WL 1605620 (May 8, 2012). The Michigan Supreme Court denied
leave to appeal, stating that it was “not persuaded that the questions presented should be
reviewed by this Court.” People v. Walker, 821 N.W. 2d 669 (Mich. 2012) (table). Walker filed
his Petition on September 17, 2013. (R. 1.) He seeks relief based on alleged violations of his
Fifth and Sixth Amendment trial rights, as well as his trial counsel’s alleged ineffective
assistance. (R. 1.)
II. LEGAL STANDARD
“circumscribe[s]” the standard of review that federal courts apply when considering an
application for a writ of habeas corpus raising constitutional claims. See Wiggins v. Smith, 539
U.S. 510, 520 (2003). However, “[t]he language of 28 U.S.C. § 2254(d) makes it clear that this
provision applies only when a federal claim was ‘adjudicated on the merits in State court.’”
Davis v. Rapelje, 33 F. Supp. 3d 849, 856 (E.D. Mich. 2014) (quoting Johnson v. Williams, —
U.S. —, —, 133 S. Ct. 1088, 1097, 185 L. Ed. 2d 105 (2013)); see also Brooks v. Bagley, 513
F.3d 618, 624 (6th Cir. 2008) (“We say [AEDPA] ‘potentially’ [applies] because AEDPA
deference applies only ‘with respect to any claim that was adjudicated on the merits in State
court proceedings.’” (quoting 28 U.S.C. § 2254(d)) (emphasis in original)). Therefore, the
standard of review this Court applies to each of Walker’s claims depends on whether the claim
was “adjudicated on the merits in state court[.]” Id.
“[D]etermining whether a state court’s decision resulted from an unreasonable legal or
factual conclusion does not require that there be an opinion from the state court explaining the
state court’s reasoning.” Harrington v. Richter, 562 U.S. 86, 98 (2011). “When a federal claim
has been presented to a state court and the state court has denied relief, it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.” Id.
If a claim has been decided on the merits, the Court applies AEDPA deference and will
not grant relief unless the state-court adjudication “(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.” 28 U.S.C. § 2254(d).
“When a state court does not address a claim on the merits, as when it applies a state law
procedural bar, ‘AEDPA deference’ does not apply and [the Court] will review the claim de
novo.” Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014) (citing Cullen v. Pinholster, 131 S. Ct.
1388, 1391, 179 L. Ed. 2d 557 (2011); Robinson v. Howes, 663 F.3d 819, 822–23 (6th Cir.
The state court of appeals’ determinations that some of Walker’s claims were not errors
by the trial court, that other claims constituted harmless error, and that Walker’s counsel was not
ineffective, were not unreasonable applications of the corresponding constitutional law.
Therefore, the Court will deny Walker’s Petition.
A. Sixth Amendment Confrontation
The Sixth Amendment to the United States Constitution provides, “[I]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 61 (2004), the Supreme
Court held that the Confrontation Clause bars the admission of out-of-court testimonial
statements made by an unavailable witness and offered for their truth if the defendant did not
have an opportunity to cross-examine that witness. Violations of the Confrontation Clause are
subject to harmless-error review. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
Walker says that his Sixth Amendment confrontation rights were violated at trial when
McKinney’s testimony (from the preliminary exam) was read into the record and when the report
of a non-testifying DNA expert was introduced into evidence. Because these claims implicate
different aspects of the Confrontation Clause analysis, the Court addresses them separately.
1. McKinney’s Testimony
Because the Michigan Court of Appeals addressed Walker’s claim regarding McKinney’s
availability on the merits, AEDPA deference applies.
When the prosecution seeks to introduce prior testimony that is subject to Crawford’s
limitations, a showing must be made that the witness is unavailable. A showing of unavailability
involves two parts: “First, the exception mandates that the witness’s testimony was given at
previous judicial proceedings against the same defendant which was subject to crossexamination by that defendant. Second, a witness cannot be deemed unavailable for purposes of
the exception unless the government has made a “good faith effort to obtain [his] presence at the
trial proceedings.” Hamilton v. Morgan, 474 F.3d 854, 858 (6th Cir. 2007). “A good-faith effort,
however, is not an ends-of-the-earth effort, and the lengths to which the prosecution must go to
obtain a witness generally amount to a question of reasonableness.” Pillette v. Berghuis, 408 F.
App’x 873, 881 (6th Cir. 2010).
The Michigan Court of Appeals’ opinion cited Michigan case law regarding
unavailability; however, it is clear that the court understood Walker’s claim to be for a violation
of the federal Constitution’s Confrontation Clause as well. Walker, 2012 WL 1605620, at *1
(stating that “[b]oth the United States and Michigan Constitutions provide an accused with the
right to be confronted with the witnesses against him.”). Accordingly, the Court of Appeals
addressed Walker’s Confrontation Clause claim “on the merits,” and so this Court reviews that
appellate court’s rejection of the claim for reasonableness. 28 U.S.C. § 2554(d).
The Court of Appeals addressed the claim, in relevant part, as follows:
It is clear from the record that the trial court correctly concluded that plaintiff
exercised due diligence in trying to obtain the trial testimony of McKinney.
Fink’s efforts prior to trial were thorough and he followed up on the leads he had
been provided. During trial, Gerow’s efforts resulted in his contacting McKinney,
and then Fink followed up on the lead. A bench warrant was issued, but
McKinney was not found. The efforts extended by the police to produce
McKinney satisfy any test of due diligence.
Walker, 2012 WL 1605620, at *1. There is nothing unreasonable about this finding that the state
made a good-faith effort to locate McKinney.
Prior to jury selection, the trial court heard testimony from Saginaw Police Detective
Timothy Fink, who stated that while McKinney had testified at Walker’s preliminary
examination without any issues, a subpoena issued for his trial testimony came back as
undeliverable because McKinney had apparently moved. (R. 9-4, PID 406.) Fink visited three
addresses associated with McKinney: the address listed on the subpoena, McKinney’s aunt’s
house, and another address connected to McKinney. (R. 9-4, PID 407.) He also checked the
VINELink website, which “shows people who may be in jail,” and checked with the Department
of Human Services. (Id.) Human Services had sent McKinney an unemployment check months
prior to the trial, but he had since “f[allen] off the radar.” (Id.) A resident at McKinney’s lastknown address (the subpoena address) stated that the apartment had been vacant for “a while.”
(R. 9-4, PID 408.) Fink learned from McKinney’s aunt that McKinney had possibly moved out
of state with his mother. (Id.) Fink called McKinney’s mother’s Ohio telephone number
numerous times with no response, and McKinney’s last known cell phone number was now
registered to a different person. (R. 9-4, PID 409.) The Post Office did not have a forwarding
address for McKinney. (Id.) Fink continued to search for McKinney up until the trial began, as
did Saginaw Police Detective Matthew Gerow.
Gerow was able to talk to McKinney’s mother the day before trial, and she told him she
would tell McKinney to call that afternoon. (R. 9-5, PID 448.) However, McKinney never called.
(Id.) On the day of trial, a courtroom observer approached Gerow and told him that she had
McKinney’s cell phone number. (Id.) The woman called the number, and “JoJo” (a known
nickname of McKinney’s) answered. (Id.) Gerow identified himself and told McKinney that he
needed to know whether McKinney was coming to court. (Id.) McKinney hung up. (Id. R. 9-5,
PID 448.) However, McKinney later called back and explained that he was “in fear for his family
as well as his baby’s mother’s house had been shot up because of this incident.” (Id.)
The trial court issued a bench warrant for McKinney’s arrest and instructed the officers to
keep searching for him; however, McKinney was not found. (R. 9-5, PID 449.)
The Michigan Court of Appeals, citing all of this testimony, found that the state exercised
“due diligence” in searching for McKinney. Walker, 2012 WL 1605620, at *2. Walker says that
more should have been done to “discover the location of the numbers” detectives had for
McKinney and his mother. (R. 1, PID 7.) But the Court finds that given the efforts to locate
McKinney over the course of a week (including visits to multiple addresses, inquiries to multiple
state agencies, and phone calls to McKinney’s family and friends), which continued into trial, the
Michigan Court of Appeals’ determination of due diligence was a reasonable application of the
good-faith standard. See Winn v. Renico, 175 F. App’x 728, 737 (6th Cir. 2006) (holding that
similar evidence adduced at a Michigan due diligence hearing established good faith).
Moreover, while Walker’s Petition is focused on the good-faith prong, the Court also
notes that McKinney’s preliminary-examination testimony was given at a prior proceeding
against Walker, during which Walker was present and McKinney was subjected to cross
examination by Walker’s counsel. California v. Green, 399 U.S. 149, 165–66 (1970).
Walker is not entitled to habeas relief for his claim regarding McKinney’s preliminary
2. DNA Report
Walker next disputes the admission, through Gerow’s testimony, of the contents of a
DNA lab report prepared by a nontestifying expert. The Michigan Court of Appeals applied a
procedural bar to this claim; however, Respondent argues procedural default rather than the
merits of the claim.
At trial, Gerow testified that the “Michigan State Police Crime lab” had tested DNA
samples that were taken from objects found around the house, including a cigarette and a beer
can, against samples from Coleman, McKinney, and Mounger. (R. 9-7, PID 570.) This was done
to verify that McKinney and Mounger had been at the house. (R. 9-7, PID 571.) However, there
was no indication that the “shooter” had left any DNA at the scene and it did not appear that
Walker’s DNA was ever collected for testing. (Id.) Walker’s counsel did not object during
Gerow’s testimony regarding the DNA evidence, even though there was no indication that
Gerow himself prepared the report.
Respondent contends that this claim was procedurally defaulted because of Walker’s
counsel’s failure to object. Under the doctrine of procedural default, “a federal court will not
review the merits of claims, including constitutional claims, that a state court declined to hear
because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 132 S. Ct.
1309, 1316 (2012). There is an exception, however, where a petitioner “can demonstrate cause
for the default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental miscarriage of
justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Courts in the Sixth Circuit apply a four-factor test to determine whether a claim has been
First, the court must determine whether there is such a procedural rule that is
applicable to the claim at issue and whether the petitioner did, in fact, fail to
follow it. Second, the court must decide whether the state courts actually enforced
its procedural sanction. Third, the court must decide whether the state’s
procedural forfeiture is an ‘adequate and independent’ ground on which the state
can rely to foreclose review of a federal constitutional claim. ‘This question will
usually involve an examination of the legitimate state interests behind the
procedural rule in light of the federal interest in considering federal claims.’ And,
fourth, the petitioner must demonstrate, consistent with Wainwright v. Sykes, 433
U.S. 72 (1977), that there was ‘cause’ for him to neglect the procedural rule and
that he was actually prejudiced by the alleged constitutional error.
Henderson v. Palmer, 730 F.3d 554, 559 (6th Cir. 2013) (quoting Greer v. Mitchell, 264 F.3d
663, 672–73 (6th Cir.2001)).
The first element of procedural default is satisfied. In Michigan, defendants in criminal
cases are required to preserve their claims for appeal by making an objection in the trial court.
People v. Carines, 597 N.W.2d 130, 137–39 (Mich. 1999); People v. Grant, 520 N.W.2d 123,
128 (Mich. 1994). There was no objection to Gerow’s testimony.
The second element of procedural default also is satisfied. A state appellate court’s
review for “plain error” constitutes enforcement of a state procedural rule. Hinkle v. Randle, 271
F.3d 239, 244 (6th Cir. 2001) (citing Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000)). “In
determining whether state courts have relied on a procedural rule to bar review of a claim, we
look to the last reasoned opinion of the state courts and presume that later courts enforced the bar
instead of rejecting the defaulted claim on its merits.” Id. (citing Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991)). The Michigan Court of Appeals reviewed Walker’s claim for plain error due to
his “failure to object to the testimony below[.]” Walker, 2012 WL 1605620, at *2.
The third element of procedural default is also satisfied. Here, the Court must determine
whether the procedural rule was an adequate and independent state ground for denying review of
a federal constitutional claim. “The adequacy of a state procedural bar turns on whether it is
firmly established and regularly followed; a state rule is independent if the state court actually
relies on it to preclude a merits review.” Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005)
(citing Abela v. Martin, 380 F.3d 915, 921 (6th Cir. 2004)). “[T]he procedural rule requiring
objection below to preserve an issue on appeal is both firmly established and regularly followed
by Michigan state courts[.]” Morgan v. Lafler, 452 F. App’x 637, 647 (6th Cir. 2011) (citing
Carines, 597 N.W.2d at 138–39). Here, the state court did rely on the rule to foreclose relief.
Walker, 2012 WL 1605620, at *2–3.
To summarize, Walker failed to follow a relevant state procedural rule, the last state court
to review his claim in a reasoned opinion enforced the rule, and the rule was an adequate and
independent state ground for precluding review of Walker’s claim. Therefore, federal habeas
review of Walker’s claim is barred unless he can “demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or demonstrate that failure to
consider [his] claim will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at
Walker has not presented cause for the default. In his Petition, he notes that the testimony
was allowed “with no objection from counsel.” (R. 1 at PID 11.) It is true that ineffective
assistance of counsel can constitute cause for a procedural default; however, the doctrine of
exhaustion of state remedies “generally requires that a claim of ineffective assistance be
presented to the state courts as an independent claim before it may be used to establish cause for
a procedural default.” Murray v. Carrier, 477 U.S. 478, 488–89 (1986). And Walker did not
claim that his counsel was ineffective for failing to object to the DNA results in state court.
Accordingly, the Court concludes that Petitioner has failed to established “cause” for his
procedural default. As a result, the Court need not determine whether Petitioner has established
resulting prejudice. Tolliver v. Sheets, 594 F.3d 900, 930 n.13 (6th Cir. 2010).
In addition, even if the Court were to find that Walker had not procedurally defaulted the
claim, it would not grant habeas corpus relief because the admission of the DNA test results was
harmless under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In determining whether a
Confrontation Clause violation was harmless under Brecht, the Court should consider “(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 cross examination otherwise permitted; and
(5) the overall strength of the prosecution’s case.” Jensen v. Romanowski, 590 F.3d 373, 379 (6th
Cir. 2009) (citing Van Arsdall, 475 U.S. at 684).
Applying these factors, the testimony was helpful to the prosecution in that it confirmed
that both Mounger and McKinney had been inside Coleman’s house at some point in time. But
both Mounger and McKinney testified that they were present in the house at the time of the
shooting, so that fact was already in evidence. Indeed, there was no dispute at trial over Mounger
and McKinney’s presence at the house. Further, Walker’s counsel in his closing argument used
the DNA results involving Mounger and McKinney to Walker’s advantage: he suggested that
those two men were responsible for Coleman’s death. (R. 9-8, PID 599.) Finally, Walker’s
counsel had a full opportunity to cross-examine Gerow on the subject of the DNA tests. Thus,
the Court finds that any Confrontation Clause violation was harmless.
B. Irrelevant Evidence
Walker next argues that the trial court erred when it admitted evidence of his tattoos as
relevant to show his state of mind or intent. The Michigan Court of Appeals addressed this issue
under state evidentiary law.
During trial, the prosecution sought to admit a photograph of Walker’s arms on the day
he was arrested in connection with Coleman’s death. (R. 9-7, PID 572.) Walker objected on
relevance grounds. (Id.) The prosecution argued that the tattoos showed “state of mind” and
“intent.” (Id.) The trial court overruled the objection. (Id.) The photograph depicted three tattoos
on Walker’s right forearm: “survival of the fittest,” “kill or be killed,” the initials “FB,” and “feel
my pain” with a razor blade and blood droplets. (Id.)
Although Walker raised this issue before the Michigan Court of Appeals, he did not raise
it as a federal constitutional issue. (R. 9-11, PID 683–85.) A federal habeas petitioner must first
exhaust all available remedies in state court. 28 U.S.C. § 2254(b). “To be properly exhausted,
each claim must have been ‘fairly presented’ to the state courts.” Wagner v. Smith, 581 F.3d 410,
414 (6th Cir. 2009). “Fair presentation requires that the state courts be given the opportunity to
see both the factual and legal basis for each claim.” Id. That is, “for purposes of exhausting state
remedies, a claim for relief in habeas corpus must include reference to a specific federal
constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.”
Gray v. Netherland, 518 U.S. 152, 162–63 (1996); Onifer v. Tyszkiewicz, 255 F.3d 313, 315 (6th
Cir. 2001). “Such a requirement affords state courts an opportunity to consider and correct any
violation of federal law, thus expressing respect for our dual judicial system while also
furnishing a complete record of a petitioner’s federal claim as litigated in the state system.”
Hafley v. Sowders, 902 F.2d 480, 482 (6th Cir. 1990).
The Court agrees with Respondent that Walker failed to raise the tattoo evidence claim as
a federal constitutional issue. Walker’s brief on appeal cited only the Michigan Rules of
Evidence and Michigan case law interpreting those rules. (R. 9-11, PID 684.) The Michigan
Court of Appeals opinion also analyzed the claim as a state evidentiary issue, rather than a
constitutional due process issue. Walker, 2012 WL 1605620, at *2.
Walker’s unexhausted claim also fails on the merits. See Cain v. Redman, 947 F.3d 817,
820 (6th Cir. 1991) (providing that federal habeas courts may address merits of unexhausted
claims). Errors in the application of state law, especially rulings regarding the admissibility of
evidence, will not usually be a basis for federal habeas relief. Seymour v. Walker, 224 F. 3d 542,
552 (6th Cir. 2000). “Such rulings ‘cannot rise to the level of due process violations unless they
offend some principle of justice so rooted in the traditions and conscience of our people as to
be ranked as fundamental.’” Blackshere v. MacLaren, No. 15-1904, — F.3d —, 2016 U.S. App.
LEXIS 2861, at *5 (6th Cir. Feb. 9, 2016) (marks in original, citation omitted).
The trial court’s ruling, though found to be in error by the Michigan Court of Appeals,
was not such a ruling. There was no showing that the evidence of Walker’s tattoos played any
significant role in the jury’s determination that Walker killed Coleman, not least because it was
unclear from the record how Walker’s tattoos demonstrated his state of mind in the days leading
up to Coleman’s death. As such, the Court does not find that the admission, especially in view of
all of the other evidence implicating Walker, deprived Walker of the fundamentally fair trial that
the Due Process Clause guarantees.
C. Prosecutorial Misconduct
Walker next claims that the prosecutor committed misconduct by calling D’Quayvion
Hamilton to testify and shifting the burden of proof to the defense in closing argument.
Respondent argues that both of these claims have been procedurally defaulted—the analysis for
which includes the four factors the Court discussed above.
1. Hamilton’s Testimony
Walker says that the prosecutor committed misconduct when he “attempted to commit a
fraud upon the court” by calling Hamilton to testify. The prosecutor sought Hamilton’s testimony
in order to establish motive—that “the defendant was upset with the victim over the alleged theft
of the cell phone of his sister.” (R. 9-6, PID 525.) Walker’s counsel objected on the grounds that
“[w]hat occurred a few days before between different parties is irrelevant.” (Id.) It appears that
Walker believes that Hamilton testified beyond the limited purpose announced by the prosecutor.
The Michigan Court of Appeals rejected this argument on appeal because “[t]he foundation for
defendant’s argument is lacking, as the prosecutor told the court what he had represented would
be the extent of the testimony. He did not tell the Court that Hamilton had not made any other
statements regarding the incident.” Walker, 2012 WL 1605620, at *6 n.3.
The Court finds that the state court’s determination was not an unreasonable application
of federal law. When a petitioner claims that prosecutorial misconduct has resulted in a
fundamentally unfair trial “the due process question is whether the misconduct constitutes a
failure to observe that fundamental fairness essential to the very concept of justice.” Martin v.
Foltz, 773 F.2d 711, 716 (6th Cir. 1985) (citation and internal quotation marks omitted). There is
no evidence that the prosecutor committed fraud by calling Hamilton to testify. The prosecutor
represented that Hamilton, as an eye-witness, would testify to the altercation between Coleman
and Walker’s sister without “get[ting] into what the sister said [because] [t]hat would be
considered hearsay,” and that is exactly what Hamilton did. (R. 9-6, PID 525.) Moreover, any
representation by the prosecutor as to how Hamilton was going to testify was done without the
jury or Hamilton present. (Id. ) Accordingly, Walker is not entitled to habeas relief on this claim.
2. Closing Argument
During closing argument, the prosecution attempted to discredit Walker’s defense:
“Defense . . . intimates that . . . maybe it was Mr. Mounger, Mr. McKinney, who executed the
victim . . . and now they’re making Defendant here the fall guy. First of all, has there been any
evidence of any animosity between either Mr. Mounger or Mr. McKinney and the victim, Glenn
Coleman?” (R. 9-8, PID 604.) And later, “has there been any evidence of animosity between Mr.
McKinney and the defendant?” or “any evidence at all that people on the street were saying Mr.
Mounger committed this crime?” (R. 9-8, PID 604–05.) Walker’s counsel did not object, but
Walker did raise the issue of misconduct on appeal. Walker, 2012 WL 1605620, at *3. The
Michigan Court of Appeals reviewed for plain error. Id. (citing People v. Carines, 597 N.W.2d
130 (Mich. 1999).
Michigan law requires that a criminal defendant object to prosecutorial misconduct in
order to preserve such a claim for appellate review. People v. Ullah, 550 N.W. 2d 568 (Mich. Ct.
App. 1996); see also People v. Stanaway, 521 N.W. 2d 557 (Mich. 1994). The Michigan Court
of Appeals enforced this rule by reviewing for plain error. Walker has not shown cause for the
failure to object. Where cause has not been shown, the Court need not consider whether actual
prejudice has been demonstrated. Smith v. Murray, 477 U.S. 527, 533 (1986). The Court finds
that the claim regarding the prosecutor’s statements in closing arguments has been procedurally
D. Ineffective Assistance of Counsel
Walker argues that his counsel’s performance was constitutionally ineffective in several
respects. In Strickland v. Washington, 466 U.S. 668, 687 (1984), the United States Supreme
Court set forth a two-prong test to determine whether a habeas petitioner has received ineffective
assistance of counsel. First, the petitioner must prove that counsel’s performance was
constitutionally deficient, meaning that counsel made errors so serious that he or she was not
“functioning as the ‘counsel’ guaranteed the criminal defendant by the Sixth Amendment.” Id. at
687. Second, the petitioner must establish that counsel’s “deficient performance prejudiced the
To succeed on the performance prong, Walker must identify acts that were “outside the
wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. The reviewing
court must “indulge a strong presumption” that counsel “rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.” Id. at 689–90.
Walker bears the burden of overcoming the presumption that the challenged actions were sound
trial strategy. Id. at 689. In addition, a reviewing court must not merely give defense counsel the
benefit of the doubt, but must also affirmatively entertain the range of possible reasons that
counsel may have had for proceeding as he or she did. Cullen v. Pinholster, 131 S. Ct. 1388,
To satisfy the prejudice prong, Walker 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. A reasonable probability is one that is “sufficient to
undermine confidence in the outcome.” Id.
1. Failure to Call Witnesses
Walker says that trial counsel was aware of, yet failed to call or investigate, four
witnesses who would have testified favorably for the defense. The Michigan Court of Appeals
addressed this claim on the merits. Harrington, 131 S.Ct. at 788 (“The standards created by
Strickland and [§] 2254(d) are both ‘highly deferential,’ and when the two apply in tandem,
review is ‘doubly’ so.” (internal citation omitted)).
As to two of the witnesses that counsel should have investigated or called, Rosevalt and
Kenya Crayton, the Michigan Court of Appeals found that “there was no record of what
defendant’s trial counsel knew about these potential witness[es] or how he responded if he knew.
In other words, defendant’s claim depends on facts not of record.” Walker, 2012 WL 1605620, at
*5. The Court of Appeals further found that “defendant’s self-serving representations of what the
two witnesses would have testified to” were “not sufficient to overcome the presumption that
counsel rendered effective assistance.” Id.
The Court does not find these conclusions by the Michigan Court of Appeals to be
unreasonable—there is nothing to indicate that counsel had reason to think that these two
witnesses would have had information favorable to Walker such that reasonable counsel would
have sought to interview them. See 28 U.S.C. § 2254(d)(1).
As to the other two proposed witnesses, Robert Witherspoon and Glenn Tamel, neither
were present at the shooting. Therefore, the Michigan Court of Appeals found that “there was no
evidence what would have prompted defense counsel to investigate further. The two
eyewitnesses did not place the man at the scene of the shooting or indicate that the men were
involved in the shooting, and defendant does not assert that the men knew anything related to the
shooting.” Walker, 2012 WL 1605620, at *6. This was reasonable: “defense counsel has no
obligation to call or even interview a witness whose testimony would not have exculpated the
defendant.” Millender v. Adams, 376 F.3d 520, 527 (6th Cir. 2004); see also Morgan v. Bunnell,
24 F.3d 49, 53 (9th Cir. 1994).
For these reasons, § 2254(d) bars habeas corpus relief on this claim of trial counsel’s
2. Failure to Investigate Testifying Witnesses
Walker also says that trial counsel was ineffective for failing to investigate the testifying
witness’ motivations to testify. Walker says that he had previously been involved in an
altercation with Mounger where he shot Mounger in the leg, and McKinney’s uncle and
Walker’s uncle had been in prison together and had animosity between them.
Walker raised this claim on appeal, but the Michigan Court of Appeals rejected it on the
merits: “Again, there was no evidence to indicate what defendant’s trial counsel knew of any
such evidence . . . . Moreover, it is plausible that trial counsel would not want evidence admitted
that defendant shot someone or that he stole money from an imprisoned person.” Walker, 2012
WL 1605620, at *5. Harrington, 131 S.Ct. at 788.
This was a reasonable application of Strickland. Under Strickland, a reviewing court must
“not simply . . . ‘give [the] attorney the benefit of the doubt,’ but . . . affirmatively entertain the
range of possible ‘reasons [Walker’s] counsel may have had for proceeding as they did.’” Cullen,
131 S. Ct. at 1407 (citation omitted). Here, trial counsel could have reasonably determined that
eliciting the reasons that Mounger and McKinney had to testify against Walker would have done
more harm to the jury’s perception of Walker than to Mounger and McKinney’s credibility. This
is especially so where counsel was able to elicit on cross-examination other reasons to doubt
these witness’ accounts of what happened. Counsel drew out that McKinney had potentially been
distracted at the time of the shooting and told the 911 operator that he did not know who had
done the shooting. (R. 9-6, PID 504.) And Mounger admitted on cross-examination that in his
first statement to police, he denied being at the house at the time of the shooting, instead telling
them that he had gone to the Cadillac Club. (R. 9-6, PID 515.)
For these reasons, the Michigan Court of Appeals reasonably applied Strickland in
rejecting this claim of trial counsel’s ineffectiveness. See 28 U.S.C. § 2554(d)(1).
3. Failure to Request Curative Instruction
On Mounger’s redirect examination, the prosecutor asked, “Have you been assaulted
since you gave these statements [about the shooting] to the police?” (R. 9-6, PID 524.) Walker’s
counsel objected to the line of questioning and the trial court sustained the objection: “We are
not going into that. . . . Unless you can directly tie it to the defendant. Otherwise we are not
going into it.” (R. 9-6, PID 524.) The Michigan Court of Appeals rejected Walker’s assertion
that the questions left the jury with the impression that he or his family had threatened witnesses:
“There was no evidence admitted that [Mounger] had been threatened. Further, the court
instructed the jury that the attorneys’ questions and comments were not considered as evidence.”
Walker, 2012 WL 1605620, at *6.
This finding was reasonable under § 2254(d)(1) given that the trial court instructed,
“When you discuss this case and decide on your verdict, you may only consider the evidence that
has been properly admitted in this case. . . . The lawyers’ statements and arguments are not
evidence.” (R. 9-8, PID 605–06.) A jury is presumed to follow its instructions. Weeks v.
Angelone, 528 U.S. 225, 234 (2000). Further, the trial court’s statement was that the questioning
had to stop unless it could be tied to Walker; in other words, the judge’s implication was that any
assault Mounger had experienced was not linked to Walker.
Walker is not entitled to habeas relief on this claim.
4. Failure to Object to DNA Report
As noted above, it appears from the Petition that Walker may be attempting to raise an
ineffective-assistance of counsel claim based on trial counsel’s failure to object to Gerow’s
testimony regarding the contents of the DNA report. But Walker did not raise this claim before
the Michigan Court of Appeals. However, as explained earlier, Walker cannot establish prejudice
stemming from the failure to object because the DNA evidence was ultimately helpful to his
case, as his counsel used it to suggest that McKinney and Mounger were the ones involved in the
shooting rather than Walker. Walker is not entitled to habeas relief on this claim.
E. Voluntary Manslaughter Instruction
Lastly, Walker says that the trial court erred by declining to give a voluntary
manslaughter instruction. The Michigan Court of Appeals rejected this claim as follows:
[T]he evidence indicated that the incident between defendant’s sister and
Coleman occurred the week prior to the shooting, providing time for defendant to
control his passions. Additionally, the evidence showed that during the
confrontation with defendant just before Coleman was shot, defendant was
pointing a gun at Coleman while Coleman was panicked, walking around the
room, and searching his pockets. The evidence indicated that defendant was
directing Coleman, asking him about the phone, telling him to empty his pockets,
directing him to lie on the floor. As defendant left the home, defendant instructed
McKinney not to report the shooting. The evidence did not support the giving of a
voluntary manslaughter instruction to the jury.
Walker, 2012 WL 1605620, at * 6–7.
Under Michigan law, a defendant is guilty of voluntary manslaughter if he “killed in the
heat of passion, the passion was caused by adequate provocation, and there was not a lapse of
time during which a reasonable person could control his passions.” Ruelas v. Wolfenbarger, 580
F.3d 403, 413 (6th Cir. 2009) (quoting People v. Mendoza, 664 N.W.2d 685, 693 (Mich. 2003)).
A rational view of the evidence presented at trial—especially that Walker shot Coleman days
after Coleman had an altercation with Walker’s sister—did not strongly support an instruction
for voluntary manslaughter.
Moreover, the Supreme Court has never held that the Due Process Clause requires
instructing the jury on a lesser included offense in a non-capital case. See McMullan v. Booker,
761 F.3d 662, 667 (6th Cir. 2014) (“This Court has never held that the Due Process Clause does
not require a lesser-included offense instruction in a non-capital case; we have merely
recognized that failure to deliver such an instruction in a non-capital case does not give rise to a
claim that is ‘cognizable in federal habeas corpus review.’ The lead opinion’s statement that
‘defendants do not have a constitutional right to a lesser-included-offense instruction in non21
capital cases,’ must be understood in the context—and within the confines—of the habeas case
before this Court. (Clay, J., concurring) (citation omitted)). Here, Walker was not facing a capital
conviction: in Michigan, first-degree murder carries a sentence of life imprisonment without
As such, the failure to give the instruction did not violate any federal law that has been
clearly established by the Supreme Court. § 2254(d)(1).
For the reasons set forth above, the Court will not grant Walker the relief requested in his
Petition. The Court also believes that no reasonable jurist would argue that Walker’s claims have
merit, so a certificate of appealability will not issue from this Court. See Slack v. McDaniel, 529
U.S. 473, 483–84 (2000). But if Walker nonetheless chooses to appeal, he may proceed in forma
pauperis. See 28 U.S.C. § 1915(a)(3).
Accordingly, IT IS ORDERED the Petition for Writ of Habeas Corpus (Dkt. 1) is
It is further ORDERED that a Certificate of Appealability is DENIED.
It is further ORDERED that Walker may proceed in forma pauperis on appeal.
Dated: September 20, 2016
s/Laurie J. Michelson
LAURIE J. MICHELSON
U.S. DISTRICT JUDGE
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court=s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on September 20, 2016.
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