Trotter v. Berghuis

Filing 32

OPINION and ORDER Denying Amended Petition for Writ of Habeas Corpus 20 and Denying Certificate of Appealability and Denying Permission to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY TROTTER,

Petitioner,

Case No. 2:13-cv-14824
Hon. Denise Page Hood

v.
MARY BERGHUIS,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING AMENDED PETITION FOR WRIT
OF HABEAS CORPUS AND , (2) DENYING CERTIFICATE OF
APPEALABILITY, AND (3) DENYING PERMISSION TO APPEAL IN
FORMA PAUPERIS
This is a habeas case brought by a Michigan prisoner under 28 U.S.C.
§ 2254. Gregory Trotter (“Petitioner”), was convicted after a jury trial in the
Wayne Circuit Court of first-degree criminal sexual conduct, MICH. COMP.
LAWS § 750.520b; kidnapping, MICH. COMP. LAWS § 750.349; second-degree
criminal sexual conduct, MICH. COMP. LAWS § 750.520c; and unarmed robbery,
MICH. COMP. LAWS § 750.350. Petitioner was sentenced to concurrent terms
for his convictions, the longest of which is a 35 to 60 year sentence for his
first-degree criminal sexual conduct conviction.
The amended petition asserts fourteen grounds for relief: (1) Petitioner
was denied a fair trial by admission of identification evidence resulting from

an unduly suggestive photograph lineupl; (2) the police violated the Fourth
Amendment by conducting a search of Petitioner’s bedroom and counsel was
ineffective for failing to raise an objection; (3) the prosecutor committed
misconduct at trial; (4) evidence related to Petitioner’s buccal swab was
improperly admitted; (5) insufficient evidence was admitted to sustain the
verdict; (6) Petitioner is actually innocent; (7) Petitioner was denied an
opportunity to take a polygraph exam; (8) the prosecutor withheld exculpatory
evidence; (9) Petitioner was denied his right to counsel at critical stages of the
proceedings; (10) Petitioner was denied the effective assistance of counsel;
(11) Petitioner’s sentence was improperly increased on account of his failure
to admit his guilt; (12) Petitioner was sentenced based on inaccurate
information; (13) the trial court improperly characterized his petition for DNA
testing as a request for successive post-conviction review; and (14) Petitioner
is entitled to DNA testing.
The Court finds that Petitioner’s claims are without merit and barred
from review by his state court procedural defaults. Therefore, the petition will
be denied. The Court will also deny Petitioner a certificate of appealability and
deny permission to appeal in forma pauperis.

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I. Background
The Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct pursuant to 28 U.S.C.
§ 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case stems from the random and violent kidnapping,
forcible rape, and robbery of a 15-year-old girl, who was held
captive for approximately three hours. The assailant did not
attempt to shield his identity during the ordeal, and the victim
identified defendant as the assailant in a photograph array and at
trial. The victim was also able to inform the police regarding the
location of the house, and the room within the house, where
defendant had taken and raped her after he had abducted the
victim from a nearby street. The owner of the house testified that
he had known defendant for about a year and that defendant had
been helping him fix up houses, including the house where the
sexual assault occurred. The home’s owner was making repairs
to the house, but not actually living there, and he testified that
defendant had a bed in the room where the assault took place.
According to the home’s owner, defendant would stay in the
house to watch it at nighttime, and he asserted that defendant
was staying at the house during the time that the kidnapping and
rape took place. Furthermore, DNA analysis of a vaginal swab
taken from the victim showed a match with defendant's DNA. A
forensic scientist for the Michigan State Police testified that the
probability of selecting a random unrelated individual in the
African-American population with the same DNA profile was one
in 4.277 quintillion people; there are approximately .77 quintillion
people in the world according to the forensic scientist. The
evidence of defendant’s guilt was overwhelming.
People v. Trotter, No. 306458, 2013 WL 116257, at *1 (Mich. Ct. App. Mar.
21, 2013).

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Following his conviction and sentence, Petitioner filed a claim of appeal
in the Michigan Court of Appeals. His brief on appeal filed by appellate
counsel raised the following claims:
I. Whether Defendant was denied due process of law by the
unduly suggestive photographic lineup and the trial court erred in
denying his motion to suppress the identification. US Const Am
XIV.
II. Whether the search was illegal as the homeowner did not have
the authority to consent to the search of Defendant’s bedroom
and counsel was ineffective for failing to move to suppress the
evidence obtained as a result of the illegal search. US Const Am
IV.
III. Whether the prosecutor denied Defendant a fair trial by stating
facts not in evidence that constituted inadmissible hearsay and by
using the complainant’s prior hearsay statements to improperly
bolster her credibility; counsel was ineffective in failing to object.
US Const Am VI; XIV.
IV. Whether Defendant must be resentenced where the trial court
penalized him at sentencing for failure to admit guilt. US Const
Am V, VI, XIV.
V. Whether Defendant was sentenced on the basis of inaccurate
information in violation of his due process rights. US Const Am
XIV.
Petitioner also filed his own supplemental pro se brief, raising an
additional two claims in the Michigan Court of Appeals:
I. Whether Defendant received a fair trial where the lack of an
evidence tag failed to make the nexus for a proper foundation of
the buccal swab alleged to have been taken from Mr. Trotter
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violated his Fourteenth Amendment right under the U.S. Const.,
Amend, XIV and the Mich. Const. Art I, § 17?
II. Whether Mr. Trotter is entitled to a new trial as he was denied
effective assistance of counsel due to defense counsel’s failure to
object to the admission of [the buccal swab] where the
prosecution produced inadequate foundational evidence to justify
its admission?
The Michigan Court of Appeals affirmed Petitioner’s convictions and
sentences in an unpublished opinion. Trotter, 2013 WL 1165257.
Petitioner subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the same claims that he raised in the
Michigan Court of Appeals. The Michigan Supreme Court denied the
application because it was not persuaded that the questions presented should
be reviewed by the Court. People v. Trotter, 834 N.W.2d 491 (Mich. 2013)
(Table).
Petitioner then filed the instant case and a motion to stay the case so
that he could return to the state courts and exhaust additional claims. The
Court granted the motion. Petitioner returned to the trial court and filed a
motion for relief from judgment, raising the following claims:
I. There was insufficient evidence to convict Defendant and his
conviction was in violation of his state and federal rights to due
process. US Const. Amend. XIV.
II. Defendant’s warrantless arrest was illegal as there was no
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probable cause and Defendant was not Mirandized. US Const,
Amends IV, XIV; Mich Const 1963, Art 1, § 11.
III. Defendant was denied his statutory right to a polygraph
examination. U.S. Const. Amends. V, VI, XIV; Mich. Const. 1963,
Art 1, § 17.
IV. The prosecution committed multiple misconducts, denying
Defendant a fair trial, including withholding exculpatory DNA test
results (newly discovered evidence). U.S. Const Am XIV.
V. Defendant was denied his right to counsel at critical stages of
prosecution. US Const Am XIV.
VI. Defendant’s US Const Amend VI and XIV rights were violated
when he was denied effective assistance of: (A) trial counsel for
various cumulative errors, and (B) appellate counsel when
obviously strong, critical issues were neglected.
VII. Defendant was deprived of his right to due process where he
is actually innocent of the crimes and sentences he stands
convicted. US Const. Amend. XIV; Mich Const 1963, Art 1, § 17.
The trial court denied the motion for relief from judgment. It found that
review of Petitioner’s new claims was barred because he failed to
demonstrate “actual prejudice” under Michigan Court Rule 6.508(D)(3). Dkt.
27-13, at 10. The court also determined that the new claims lacked merit. Id.
Petitioner then filed an application for leave to appeal in the Michigan
Court of Appeals. The Michigan Court of Appeals denied the application for
leave to appeal for failure to establish relief under Michigan Court Rule
6.508(D)(3)(a) and (b). People v. Trotter, No. 327847 (Mich. Ct. App. Aug. 13,
6

2015). Petitioner applied for leave to appeal that decision in the Michigan
Supreme Court, but it was denied under Rule 6.508(D). People v. Trotter, 880
N.W.2d 577 (Mich. 2016) (Table).
Petitioner then moved to reopen this case, raising all the claims
presented to the state courts on direct appeal an on post-conviction review.
Respondent filed the relevant part of the state court record and a responsive
pleading. Petitioner filed a reply brief, and the matter is now ready for
decision.
II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional
claims raised by a state prisoner in a habeas action if the claims were
adjudicated on the merits by the state courts. Relief is barred under this
section unless the state court adjudication was “contrary to” or resulted in an
“unreasonable application of” clearly established Supreme Court law.
“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), quoting

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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.
“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 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.” Harrington, 562 U.S. at
103 (internal quotation omitted).

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III. Analysis
A. Suggestive Identification Procedure (Claim 1)
Petitioner first claims that his trial was rendered fundamentally unfair by
the introduction of identification testimony of the victim that resulted from an
unduly suggestive photographic line up procedure. He asserts that the
individuals depicted in the photographic array were physically dissimilar to
him, and that only his photograph depicted a man with a smile. This claim was
presented to and rejected by the Michigan Court of Appeals on the merits in
Petitioner’s direction appeal. The state court adjudication was reasonable.
The use by the police of an identification procedure may at times pose
due process concerns—but it does so “only when law enforcement officers
use an identification procedure that is both suggestive and unnecessary.”
Perry v. New Hampshire, 565 U.S. 228, 238-39 (2012). Even then,
suppression of the evidence is warranted only if, on the totality of the
circumstances, “improper police conduct created a ‘substantial likelihood of
misidentification.’” Id. (quoting Neil v. Biggers, 409 U.S. 188, 201 (1972)). The
“corrupting effect of the suggestive identification” must be weighed against
factors indicating that the eyewitness identification is reliable, including “the
opportunity of the witness to view the criminal at the time of the crime, the

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witness’ degree of attention, the accuracy of his prior description of the
criminal, the level of certainty demonstrated at the confrontation, and the time
between the crime and the confrontation.” Manson v. Brathwaite, 432 U.S. 98,
114 (1977).
Here, after reciting the correct constitutional standard, the state
appellate court rejected Petitioner’s claim as follows:
“Physical differences among the lineup participants do not
necessarily render the procedure defective and are significant
only to the extent that they are apparent to the witness and
substantially distinguish the defendant from the other lineup
participants.” People v. Hornsby, 251 Mich. App. 462, 466 (2002).
Generally, physical differences affect the weight given to an
identification and not its admissibility. Id. The fact that defendant
was the only person in the array who was smiling did not
substantially distinguish him for purposes of identification, and the
other men pictured shared similar physical characteristics with
defendant. All of the men in the array, including defendant, are
African-American, have similar complexions, have short hair, have
some kind of facial hair, and appear to be around 40 to 50 years
old. The photo array did not violate defendant’s due process
rights, given that it was not so impermissibly suggestive that it
gave rise to a substantial likelihood of misidentification. People v.
Harris, 261 Mich. App. 44, 51 (2004). Moreover, even if the photo
array was unduly suggestive, the victim had an independent basis
to identify defendant in court, where she was able to observe
defendant for approximately three hours in close proximity, where
the victim never failed to identify defendant as her assailant, and
where her description of defendant was generally accurate.
People v. Gray, 457 Mich. 107, 114-1162 (1998).
Trotter, 2013 WL 1165257, at *2.

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The state court reasonably decided that the eyewitness identification
procedure did not violate his due process rights. See Yarborough v. Alvarado,
541 U.S. 652, 664 (2004) (“[E]valuating whether a rule application was
unreasonable requires considering the rule's specificity. The more general the
rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.”). A color copy of the photographic array appears at Dkt. 2714, p. 58, Pg ID 1475. As reasonably found by the state appellate court, it
depicts six individuals whose physical characteristics are similar enough so
as to avoid being unduly suggestive. While Petitioner’s photograph (No. 2)
depicts the only smiling individual, nothing about the victim’s description of the
man who raped her or his conduct during the assault would suggest that
smiling was a feature suggesting the perpetrator. Furthermore, the Court
notes that the incident spanned approximately three hours, giving the victim
a lengthy, harrowing, opportunity to view her assailant. She directed police to
the house and room where she was raped - and that is where Petitioner
stayed during the time-frame. The DNA match then cinched the case for the
prosecution. This claim was reasonably rejected by the state court.
B. Illegal Search - Failure to Object (Claim 2)
Petitioner next claims that his rights under the Fourth Amendment were

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violated when the owner of the house consented to a police search of the
house. Petitioner asserts though he did not own the home, the owner did not
have authority to consent to a search of the room the owner allowed him to
sleep in while he assisted him in refurbishing the house. Petitioner asserts
that his trial counsel was ineffective in failing to raise this claim prior to trial.
First, with respect to the Fourth Amendment claim itself, Federal courts
will not address such a claim on habeas review if the petitioner had a full and
fair opportunity to litigate the claim in state court and the presentation of the
claim was not thwarted by any failure of the state's corrective processes. See
Stone v. Powell, 428 U.S. 465, 494-95 (1976). “All that Stone v. Powell
requires is an ‘opportunity’ for full and fair consideration of the claim for
suppression; it is up to the claimant and his counsel to decide what use, if
any, is to be made of the opportunity.” Jennings v. Rees, 800 F.2d 72, 77 (6th
Cir. 1986). A court must perform two distinct inquiries when determining
whether a petitioner may raise an illegal arrest claim in a habeas action. First,
the “court must determine whether the state procedural mechanism, in the
abstract, presents the opportunity to raise a Fourth Amendment claim.
Second, the court must determine whether presentation of the claim was in
fact frustrated because of a failure of that mechanism.” Machacek v.

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Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (quoting Riley v. Gray, 674 F.2d
522 (6th Cir. 1982)).
Michigan has a procedural mechanism presenting “an adequate
opportunity for a criminal defendant to raise a Fourth Amendment claim.”
Robinson v. Jackson, 366 F. Supp. 2d 524, 527 (E.D. Mich. 2005). This
procedural mechanism is a motion to suppress, ordinarily filed before trial.
See People v. Ferguson, 135 N.W.2d 357, 358-59 (Mich. 1965) (describing
the availability of a pre-trial motion to suppress); see also People v. Harris,
291 N.W.2d 97, 99 (Mich. Ct. App. 1980) (analyzing the legality of a
warrantless search, seizure, and arrest even though raised for the first time
on appeal). Consequently, Petitioner is entitled to relief on this claim only if he
shows that he was prevented from litigating the Fourth Amendment issue by
a failure of Michigan’s procedural mechanism.
Petitioner makes no such showing. He neither alleges nor establishes
that he was precluded from challenging his arrest at the time of trial, on
appeal, or on collateral review. Petitioner’s Fourth Amendment claim is
therefore not cognizable on federal habeas review pursuant to Stone v.
Powell.
Petitioner may, however, assert that his counsel was ineffective for

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failing to raise a Fourth Amendment challenge. See Kimmelman v. Morrison,
477 U.S. 365, 382-83 (1986). The Michigan Court of Appeals rejected this
claim, essentially finding that Petitioner was not prejudiced by the failure to
raise the challenge, both because it would have failed and because of the
strong evidence of Petitioner’s guilt that was unrelated to the search of the
room:
The search did not impact the DNA or photo array evidence,
nor did it affect the home owner’s testimony identifying defendant
as the person who was using the room at the time of the
abduction and rape. Moreover, the home owner consented to the
search, and there was evidence indicating that he had, minimally,
common authority over the room, or in other words, joint access
and control, thereby providing him with the authority to consent to
the search. People v. Brown, 279 Mich. App. 116, 131 (2008).
The evidence did not suggest that defendant had exclusive use
of the room. Furthermore, under the circumstances presented, the
officer’s belief in the home owner’s authority to consent was
objectively reasonable, rendering the search constitutionally
sound.
Trotter, 2013 WL 1165257, at *2.
This decision was reasonable. No Fourth Amendment challenge was
raised because it likely would have failed. The owner of the home testified that
he had a “semi-verbal” agreement with Petitioner that Petitioner would help
him fix up houses and the owner would then help Petitioner find a house.
Petitioner stayed at the house, but at best he had minimal joint-control of the

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room where the rape occurred. See Trial Tr. 8/24/11, at 28-32, Dkt. 27-8, Pg
ID 1145-49. Trial counsel is under no duty to file meritless motions; and
therefore deficient performance cannot be proven. Knapp v. White, 296 F.
Supp.2d 766,782 (E.D. Mich.2003). The evidence of Petitioner’s guilt was
overwhelming. Even a successful suppression motion would not have altered
the outcome of the trial. The identification testimony and the DNA evidence
were obtained independently from the search. The claim is without merit.
C. Prosecutorial Misconduct (Claim 3)
Petitioner next claims that the prosecutor committed various acts of
misconduct during closing argument. He asserts that the prosecutor asserted
facts not supported by the evidence and improperly bolstered the credibility
of the victim. Petitioner does not specifically identify in his petition the
argument the prosecutor presented at closing which Petitioner claims were
improper.
To be entitled to habeas relief on a prosecutorial misconduct claim, the
petitioner must show that the prosecutor’s conduct so infected the trial so as
to render the conviction fundamentally unfair. Parker v. Matthews, 567 U.S.
37 (2012); Gillard v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006) (citing
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). If the misconduct was

15

harmless, then as a matter of law, there was no due-process violation. See
Greer v. Miller, 483 U.S. 756, 765 & n.7 (1987). In federal habeas, this means
asking whether the error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623,
637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946));
see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007).
The Michigan Court of Appeals rejected Petitioner’s claim as follows:
Next, defendant argues that he was denied a fair trial when
the prosecutor, during closing argument, stated facts not in
evidence that constituted inadmissible hearsay and when, also
during closing argument, the prosecutor improperly bolstered the
victim’s credibility by using the victim’s prior hearsay statements.
Defendant relies on a brief snippet of the prosecutor’s closing
argument. To the extent that the prosecutor made any improper
remarks, we cannot conclude, given the mountainous evidence of
guilt, that this unpreserved claim of error prejudiced defendant,
nor can it be said that defendant is actually innocent or that any
presumed error seriously affected the fairness, integrity, or public
reputation of the judicial proceedings. Carines, 460 Mich. at
763-764. Furthermore, the trial court’s cautionary instructions that
arguments and statements by counsel are not evidence and that
the jurors must only consider properly admitted evidence
alleviated any prejudicial effect of the prosecutor’s remarks.
People v. Stimage, 202 Mich. App. 28, 30 (1993).
Trotter, 2013 WL 1165257, at *3.
This decision was not unreasonable. The state appellate court’s
characterization of the evidence of Petitioner’s guilt was “mountainous.”

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Despite his protestations, there is no serious question as to his identity as the
perpetrator. The victim was able to identify Petitioner as the perpetrator and
the DNA results confirmed the victim’s identification of Petitioner. The Court’s
review of the prosecutor’s closing argument does not support Petitioner’s
claim of prosecutorial misconduct. The prosecutor summarized the victim’s
testimony and how the other evidence corroborated such testimony. The
prosecutor’s closing remarks were not particularly improper, and given the
weight of the evidence, they did not play a significant role in the outcome of
the case. Alder v. Burt, 240 F. Supp. 2d 651, 670 ( E.D. Mich. Jan. 22, 2003).
The claim was reasonably rejected by the state court.
D. Admission of Evidence - Failure to Object (Claim 4)
Petitioner next claims that the prosecutor failed to establish that the
buccal swab taken from him was the same one that was used by the Michigan
State Police lab in making the DNA comparison to the samples taken from the
victim. He further alleges that his counsel was ineffective for failing to object
to admission of the DNA identification evidence on this basis.
As the Michigan Court of Appeals found, the claim hinges on a mistaken
assumption:
Here, the prosecution established that the buccal swab used
to compile a DNA profile for defendant was the same buccal swab
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that an officer had collected from defendant in open court at his
preliminary examination. The officer testified that he collected the
buccal swab from defendant, placed the swab in an envelope,
filled out evidence tag E38394304, and gave it to another officer
in the courtroom, who then transported the envelope to the
Michigan State Police. An employee of the state police, qualified
as an expert in serology at trial, testified that she received a
sealed envelope with defendant’s buccal swab from the officer
who had transported it from the courtroom. The serology expert
testified that the buccal swab from defendant was never near the
rape kit and that everything was kept in separate sealed
containers. She did not cut part of defendant’s buccal swab for
DNA testing on the same day as she tested the rape kit for
seminal fluid. A forensic scientist with the state police, who was
qualified as an expert in DNA analysis, received a cutting from
defendant’s buccal swab and conducted a DNA analysis on it.
The DNA profile from defendant’s buccal swab matched the DNA
from the seminal fluid on the victim’s vaginal swab.
It appears that the officer who collected the buccal swab
from defendant at the preliminary examination made a mistake in
his trial testimony when he said that he labeled the swab with
evidence tag number E38394304, as this was the evidence tag
number for the rape kit. Except for this discrepancy, a complete
chain of custody for defendant’s buccal swab was established at
trial. This mistake went to the issue of weight and did not render
the DNA evidence inadmissible. Furthermore, it is highly unlikely
that the officials with the Michigan State Police mixed up
defendant’s buccal swab and the victim’s rape kit, as defendant
seems to imply. The envelope with defendant’s buccal swab
contained only that swab, and the victim’s rape kit contained two
buccal swabs, one vaginal swab, two vaginal smears, one
microscopic vaginal swab, two rectal smears, and a bag labeled
undergarments. Defendant has not shown that the admission of
the DNA evidence was improper.
Trotter, 2013 WL 1165257, at *3-4.

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The state appellate court’s factual finding that the officer made a
mistake regarding the tag number in his testimony is presumptively accurate.
correct. The habeas statute provides that, in a habeas case, “a determination
of a factual issue made by a state court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Ramonez v.
Berghuis, 490 F.3d 482, 490 (6th Cir. 2007). Petitioner has offered no
evidence, let alone clear and convincing evidence, that the factual
determination made by the Michigan Court of Appeals was incorrect. As noted
by the state court, the contents of the two envelopes in question were
markedly different. The one containing Petitioner’s known sample had a single
swab. The other one contained eight samples taken from the victim and a pair
of her undergarments. The claim is without merit since Petitioner has not
shown that state court’s finding was incorrect.
E. Failure to Admit Guilt at Sentencing (Claim 11)
Petitioner next asserts that his sentence was increased because he
maintained his innocence at the sentencing hearing. The Michigan Court of
Appeals rejected the claim as follows:
While a court may not base a sentence, even in part, on a
defendant’s refusal to admit guilt, People v. Conley, 270 Mich.
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App. 301, 314 (2006), it may consider a lack of remorse in
determining a sentence, People v. Houston, 448 Mich. 312, 323
(1995). The trial court never made any statements about
defendant refusing to admit guilt; rather, the court noted that
defendant’s “lack of remorse [was] reprehensible.” It is not even
clear that lack of remorse played a role in the sentence, where the
court appeared to be focused more on the facts of the case in
imposing sentence, noting that the victim, a 15-year-old girl, was
snatched off the streets by defendant and raped and held captive
for several hours, with DNA evidence establishing defendant’s
guilt.
Trotter, 2013 WL 1165257, at *4.
The Fifth Amendment privilege to remain silent “is fulfilled only when a
criminal defendant is guaranteed the right ‘to remain silent unless he chooses
to speak in the unfettered exercise of his own will, and to suffer no penalty .
. . for such silence.’” Estelle v. Smith, 451 U.S. 454, 468 (1981)(quoting Malloy
v. Hogan, 378 U.S. 1, 8 (1964)). And no adverse inference from a defendant’s
silence may be made at sentencing. Mitchell v. United States, 526 U.S. 314,
326 (1999). “By holding [a defendant’s] silence against [him or] her in
determining the facts of the offense at the sentencing hearing, [a court]
impose[s] an impermissible burden on the exercise of the constitutional right
against compelled self-incrimination.” Id. at 330.
As the Michigan Court of Appeals found, the trial court did not seem to
base its sentence on Petitioner’s refusal to admit guilt. C.f. Ketchings v.

20

Jackson, 365 F.3d 509 (6th Cir. 2004) (trial court violated Petitioner’s Fifth
Amendment rights where trial court sentenced Petitioner to twice the
recommended guideline range after noting that Petitioner failed to admit guilt
despite giving long allocution expressing remorse). Here, Petitioner did not
express remorse, but maintained at sentencing that the DNA evidence was
tampered with and that he was not the perpetrator. Dkt. 27-10, at 10-11. The
trial court focused on the harm caused to the victim, the Petitioner’s lack of
remorse, and his prior conduct with drug-addicted women. Id., at 12. These
were proper considerations. In re Cook, 551 F.3d 542, 551 (6th Cir. 2009) (“It
is well established that a defendant’s remorse-or lack thereof-is an
appropriate consideration in meting out punishment.”); United States v.
Castillo-Garcia, 205 F.3d 887, 889 (6th Cir. 2000) (lack of true remorse is
valid consideration under federal sentencing guideline providing for downward
adjustment based upon acceptance of responsibility). Lack of remorse was a
proper consideration by the trial court. However, Petitioner has not shown
that the trial court’s sentence was solely based on Petitioner’s assertion that
he was innocent.
F. Inaccurate Sentencing Information (Claim 12)
Petitioner’s next claim asserts that his sentencing guidelines were

21

scored based on inaccurate information. Specifically, he complains that the
presentence investigation report indicated that he told the probation agent
who prepared the report that two other women had accused him of rape, but
that they were crackheads who traded sex for drugs who wanted to have sex
with him.
“There is no federal constitutional right to a pre-sentence investigation
and report,” and “[t]he mere presence of hearsay or inaccurate information in
a pre-sentence report does not constitute a denial of due process.” Allen v.
Stovall, 156 F. Supp. 2d 791, 797 (E.D. Mich. 2001). A state court’s alleged
misapplication of state sentencing laws is “a matter of state concern only,” and
“federal habeas corpus does not lie for errors of state law.” Howard v. White,
76 F. App'x 52, 53 (6th Cir. 2003) (citing Estelle v. McGuire, 502 U.S. 62, 67
(1991)). Petitioner’s sentence of 35 to 60 years for his first-degree criminal
sexual conduct conviction falls within the statutory maximum of life
imprisonment for the offense, and the severity of a sentence that falls within
the limits set by statute is not a ground for habeas corpus relief. Townsend v.
Burke, 334 U.S. 736, 741 (1948).
Nevertheless, Petitioner alleges that the trial court relied on inaccurate
information at sentencing, in violation of his constitutional rights. A sentence

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violates the constitutional right to due process if it is based on “misinformation
of constitutional magnitude,” United States v. Tucker, 404 U.S. 443, 447
(1972), or on “extensively and materially false” information which the
defendant had no opportunity to correct through counsel. Townsend, 334 U.S.
at 741.
After defense counsel addressed the information regarding Petitioner’s
conduct with other women, Petitioner addressed the court and indicated only
that he never operated a crack house or traded drugs for sex. Petitioner was
given an opportunity to dispute the allegedly false information through his own
allocution and through counsel. There was no cognizable constitutional
violation. Petitioner has not demonstrated entitlement to relief on the basis of
this sentencing claim.
G. Right to DNA Testing (Claims 13 and 14)
Petitioner raises several claims asserting that he was entitled under
Michigan law to new DNA testing during his state post-conviction review
proceeding to prove his innocence.
There is no freestanding substantive due process right to DNA testing
to prove one’s innocence on post-conviction review. Dist. Attorney’s Office for
Third Judicial Dist. v. Osborne, 557 U.S. 52, 72-72 (2009). The Sixth Circuit

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has held that Michigan law governing procedures for post-conviction DNA
testing in criminal cases is more comprehensive than the state procedures
sanctioned in Osborne, and, therefore, adequately protects the due process
rights of prisoners. See In re Smith, 349 F. App’x 12, 15-16 (6th Cir. 2009).
Petitioner has failed to demonstrate entitlement to relief with respect to these
claims. Petitioner has no constitutional right to DNA testing to prove his
innocence on post-conviction review.
H. Procedural Default - (Claims 5 through 10)
Petitioner’s remaining claims (his fifth through tenth) were raised in the
state courts in his motion for relief from judgment and the appeal that
followed. Respondent contends that review of these claims is barred by
Petitioner’s failure to raise these claims in the Michigan Court of Appeals
during his appeal of right. Petitioner's remaining claims are dismissed
because they are procedurally defaulted.
When the state courts clearly and expressly rely on a valid state
procedural bar, federal habeas review is also barred unless petitioner can
demonstrate “cause” for the default and actual prejudice as a result of the
alleged constitutional violation, or can demonstrate that failure to consider the
claim will result in a “fundamental miscarriage of justice.” Coleman v.

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Thompson, 501 U.S. 722, 750-751 (1991). If a petitioner fails to show cause
for his procedural default, it is unnecessary for the court to reach the prejudice
issue. Smith v. Murray, 477 U.S. 527, 533 (1986). In an extraordinary case,
where a constitutional error has probably resulted in the conviction of one who
is actually innocent, a federal court may consider the constitutional claims
presented even in the absence of a showing of cause for procedural default.
Murray v. Carrier, 477 U.S. 478, 479-480 (1986). However, to be credible,
such a claim of innocence requires a petitioner to support the allegations of
constitutional error with new reliable evidence that was not presented at trial.
Schlup v. Delo, 513 U.S. 298, 324 (1995). “‘[A]ctual innocence’ means factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S.
614, 624 (1998).
Michigan Court Rule 6.508(D)(3) provides that a court may not grant
relief to a defendant if the motion for relief from judgment alleges grounds for
relief that 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. For purposes of a conviction following a trial, “actual
prejudice” means that “but for the alleged error, the defendant would have had
a reasonably likely chance of acquittal.” MICH. CT. R. 6.508(D)(3)(b)(I).

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The Supreme Court rejected Petitioner's post-conviction appeal
“because the defendant failed to meet the burden of establishing entitlement
to relief under MCR 6.508(D).” This order did not refer to subsection (D)(3),
and it did not mention Petitioner’s failure to raise these claims in the Michigan
Court of Appeals on direct review as the rationale for rejecting his
post-conviction claims. Because the form order citing Rule 6.508(D) is
ambiguous as to whether it refers to procedural default or a denial of
post-conviction relief on the merits, it is unexplained. See Guilmette v. Howes,
624 F.3d 286, 291 (6th Cir. 2010). This Court must “therefore look to the last
reasoned state court opinion to determine the basis for the state court's
rejection” of Petitioner’s claims. Id.
In the present case, the Michigan Court of Appeals explicitly relied on
Rule 6.508(D)(3)(a) and (b) in rejecting Petitioner’s post-conviction appeal.
Furthermore, the trial court order denying the motion for relief from judgment
also relied on Rule 6.508(D)(3). Dkt. 27-13, at 10. Therefore, the last
explained decisions clearly relied on a state procedural basis for denying
relief. As such, Petitioner’s post-conviction claims are procedurally defaulted.
See Ivory v. Jackson, 509 F.3d 284, 292-293 (6th Cir. 2007); see also Howard
v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005).

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Petitioner alleges that his procedural default should be excused
because his appellate counsel provided him with ineffective assistance and
because he is actually innocent. Petitioner, however, has not shown that
appellate counsel was ineffective. It is well established that a criminal
defendant does not have a constitutional right to have appellate counsel raise
every non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751
(1983). The Supreme Court has explained:
For judges to second-guess reasonable professional judgments
and impose on appointed counsel a duty to raise every 'colorable'
claim suggested by a client would disserve the ... goal of vigorous
and effective advocacy. ... Nothing in the Constitution or our
interpretation of that document requires such a standard.
Id. at 754.
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 hallmark of
effective appellate advocacy” is the “process of ‘winnowing out weaker
arguments on appeal and focusing on’ those more likely to prevail.” Smith v.
Murray, 477 U.S. at 536 (quoting Barnes, 463 U.S. at 751-752). “Generally,
only when ignored issues are clearly stronger than those presented will the
presumption of effective assistance of appellate counsel be overcome.”

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Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate counsel may
deliver deficient performance and prejudice a defendant by omitting a
“dead-bang winner,” which is defined as an issue which was obvious from the
trial record and would have resulted in a reversal on appeal. Meade v.
Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).
Petitioner has failed to show that appellate counsel’s performance fell
outside the wide range of professionally competent assistance by omitting his
newly-raised claims in his initial appeal. Appellate counsel filed a substantial
appellate brief which raised an number of claims that Petitioner presents as
his lead issues in the present habeas petition. Petitioner also filed his own
supplemental pro se brief that did not include these additional claims.
Petitioner has not shown that his appellate counsel’s strategy in presenting
these claims and not raising other claims was deficient or unreasonable. For
the reasons stated in Respondent’s answer to the petition for writ of habeas
corpus and the trial court’s opinion, none of the claims raised by Petitioner in
his post-conviction motion were “dead-bang winners.”

The evidence

presented against Petitioner at trial was overwhelming, and he has not shown
any probability that the result of his proceeding would have been any different
even if his claims had merit.

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Because Petitioner has not demonstrated any cause for his procedural
default, it is unnecessary for the court to reach the prejudice issue. Smith, 477
U.S. at 533. Petitioner has not presented any new reliable evidence to support
any assertion of innocence that would allow this Court to consider these
claims as a ground for a writ of habeas corpus, in spite of the procedural
default. Petitioner’s sufficiency of evidence claim is insufficient to invoke the
actual innocence doctrine to the procedural-default rule. See Malcum v. Burt,
276 F. Supp. 2d 664, 677 (E.D. Mich. 2003). As discussed above, Petitioner’s
claim that the DNA samples were somehow mishandled or mixed hinges on
a single misstatement by a police officer, and does not point to any
impropriety. Because Petitioner has not presented any new reliable evidence
that he is innocent of these crimes, a miscarriage of justice will not occur if the
court declined to review the procedurally defaulted claims on the merits. See
Welch v. Burke, 49 F. Supp. 2d 992, 1007 (E.D. Mich. 1999). In conclusion,
Petitioner is not entitled to habeas relief on his remaining claims because they
are all procedurally barred from review.
Because none of Petitioner’s claims merit relief, the petition will be
denied.

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IV. Certificate of Appealability
Before Petitioner may appeal this Court’s dispositive decision, “a circuit
justice or judge” must issue a certificate of appealability. See 28 U.S.C. §
2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).To satisfy § 2253(c)(2), 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 and
internal quotation marks omitted). The Court finds that reasonable jurists
would not debate the resolution of his claims. The Court will therefore deny a
certificate of appealability with respect all of Petitioner’s claims. Furthermore,
if Petitioner chooses to appeal the Court’s decision, he may not proceed in
forma pauperis because an appeal could not be taken in good faith. 28 U.S.C.
§ 1915(a)(3).
V. Conclusion
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a
writ of habeas corpus, 2) DENIES a certificate of appealability, and 3) DENIES

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permission to appeal in forma pauperis.
SO ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: November 30, 2017
I hereby certify that a copy of the foregoing document was served upon
counsel of record on November 30, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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