Sheffield v. Gidley
Filing
16
MEMORANDUM OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, But Granting Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALFRED JOHN SHEFFIELD,
Petitioner,
CASE NO. 14-10824
HONORABLE ARTHUR J. TARNOW
v.
LORI GIDLEY,
Respondent.
______________________________/
OPINION AND ORDER
DENYING THE HABEAS CORPUS PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This matter has come before the Court on petitioner Alfred John Sheffield’s pro se
petition for the writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his
Wayne County, Michigan conviction for second-degree murder, Mich. Comp. Laws
§750.317. Petitioner asserts that the evidence at trial was insufficient, that his sentence
was based on inaccurate information, that the prosecutor committed misconduct during
closing arguments, and that his trial and appellate attorneys were ineffective. Petitioner
also claims to have newly-discovered evidence that his young co-defendant, Arthur
Murray (“Murray”), fabricated evidence against him. Respondent Lori Gidley urges the
Court to deny the habeas petition on grounds that Petitioner’s claims are meritless, are
not cognizable on habeas review, are barred by the doctrine of procedural default, or were
waived. The Court agrees that Petitioner’s claims do not warrant habeas relief.
Accordingly, the petition will be denied.
I. Background
Petitioner was tried before a jury in Wayne County Circuit Court where the
evidence established that,
[o]n July 20, 2009, while walking his dog in an alley between Sturdevant
and Highland Streets in Highland Park, Michigan, Robert Wilson noticed a
body. Wilson immediately notified the police, who arrived at the scene and
identified the victim as Mary McCullum. McCullum was found in some
tall grass with her pants unbuttoned and unzipped. According to officers on
the scene, judging from the tracks formed in the tall grass, her body had
been dragged to the location where she was found. As police worked the
case, they eventually were told of two possible suspects, “Al” and “Ace.”1
Following a lead that defendant owned a van which matched a description
given by an anonymous source, defendant voluntarily appeared at the
Highland Park Police Station for an interview. After initially telling
detectives that he did not know the victim or anyone named Ace, he
subsequently changed his story and told police that on July 20, 2009, at
around 1:30 a.m., he drove Ace to a gas station where they met the victim.
Ace then propositioned the victim for sex. According to defendant’s
statement, he drove Ace and the victim to a location where they could “take
care of business.” After defendant left his van, he noted that people were
coming up and buying drugs from Ace, and eventually defendant asked Ace
if he was finished, and Ace responded that he thought the victim had stolen
money from him. According to defendant, he suggested that Ace search the
victim. Defendant also stated that he drove Ace and the victim to another
location. It was at this location, an alley between Highland and Sturdevant,
that defendant stopped the van and Ace dragged the victim out of the van
and beat her. According to defendant’s statement, when he confronted Ace,
Ace threatened to kill defendant. On August 14, 2009, Murray was arrested
and charged in the killing of Mary McCullum.
On August 19, 2009, police arrested defendant and impounded his van. A
second interview of defendant was conducted. Although in the first
1
“Ace” was later identified as Arthur Henry Murray. Murray pled guilty to seconddegree murder and was sentenced to 12 to 20 years’ imprisonment on February 16, 2010.
2
statement defendant had asserted that he left Ace and the victim in the
alley, to be flagged down by Ace at a different location, in his second
statement, defendant told police that he observed Ace stomp on the victim’s
head, drag her to a nearby fence and hit her with a brick. He also told
police that Ace may have used a knife from defendant’s van to stab the
victim. Defendant told police that following the killing of the victim, Ace
requested to be driven home and defendant complied.
People v. Sheffield, No. 296780, 2011 WL 2623383, at *1 (Mich. Ct. App. July 5, 2011)
(footnote in original).
The victim was five feet tall and 106 pounds. Her body was found in a deserted
area near vacant houses. She had been stabbed fourteen times in the chest and had facial
and skull fractures consistent with blunt force injury. Seminal fluid on her jacket and
biological material found under her fingernails matched Murray’s DNA. There was no
forensic evidence linking Petitioner to the crime.
The prosecutor’s theory was that Petitioner aided and abetted Murray in killing the
victim. Petitioner did not testify or present any witnesses. His defense was that Murray
was to blame for the victim’s death and that there was no connection between him and
the harm done to the victim.
On January 27, 2010, the jury found Petitioner guilty, as charged, of seconddegree murder. On February 16, 2010, the trial court sentenced Petitioner as a habitual
offender, fourth offense, to imprisonment for forty to sixty years with credit for 189 days.
Petitioner was almost fifty years old at the time.
On direct appeal, Petitioner argued through counsel that the evidence at trial was
insufficient to convict him. In a pro se supplemental brief, Petitioner raised the same
claim, as well as, claims about trial counsel and appellate counsel. The Michigan Court
3
of Appeals affirmed Petitioner’s conviction and sentence, see id., and on December 28,
2011, the Michigan Supreme Court denied leave to appeal because it was not persuaded
to review the issues. See People v. Sheffield, 490 Mich. 971; 806 N.W.2d 331 (2011).
Petitioner subsequently filed a motion for relief from judgment in which he
alleged that his sentence was based on inaccurate information, that he was entitled to a
new trial due to newly-discovered evidence, that he was deprived of effective assistance
of trial counsel at the preliminary examination, and that appellate counsel was ineffective
for failing to raise meritorious issues. The trial court denied Petitioner’s motion, and the
Michigan Court of Appeals denied leave to appeal for failure to establish entitlement to
relief under Michigan Court Rule 6.508(D). See People v. Sheffield, No. 312846 (Mich.
Ct. App. June 5, 2013). On February 5, 2014, the Michigan Supreme Court denied leave
to appeal for the same reason. See People v. Sheffield, 495 Mich. 939; 843 N.W.2d 211
(2014).
On February 21, 2014, Petitioner filed his habeas corpus petition. He asserts the
following claims as grounds for relief: (1) the prosecution failed to provide sufficient
evidence to satisfy the reasonable-doubt standard of proof; (2) his sentence was based on
inaccurate information; (3) the prosecutor violated his rights to a fair trial and due process
of law during closing arguments; (4) he is entitled to a new trial on the basis of newlydiscovered evidence that Murray fabricated evidence against him; (5) he was denied
effective assistance of trial counsel by counsel’s failure to challenge the prosecutor’s
case; (6) he was denied effective assistance of appellate counsel on direct review; and (7)
there was insubstantial evidence linking him to the murder. Respondent argues in an
4
answer to the habeas petition that some of Petitioner’s claims are procedurally defaulted,
either because Petitioner did not exhaust state remedies for the claims and no longer has
an available remedy, or because Petitioner raised the claims for the first time on state
collateral review.
A procedural default is not a jurisdictional matter, Trest v. Cain, 522 U.S.87, 89
(1997), and an analysis of whether Petitioner’s claims are procedurally defaulted “adds
nothing but complexity to the case.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir.
2010). The Court therefore proceeds directly to the merits of Petitioner’s claims, using
the following standard of review.
II. Standard of Review
“The statutory authority of federal courts to issue habeas corpus relief for persons
in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97
(2011). Pursuant to § 2254, the court may not grant a state prisoner’s application for the
writ of habeas corpus unless the state court’s adjudication of the prisoner’s claims on the
merits
(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).
5
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts. Under the “unreasonable application”
clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court for
Part II).
“[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.” Id. at 411. “AEDPA thus imposes a ‘highly deferential standard
for evaluating state-court rulings,’ Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and
‘demands that state-court decisions be given the benefit of the doubt,’ Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773
(2010).
“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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling on his claims “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 103.
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III. Analysis
A. Sufficiency of the Evidence
Petitioner’s first and seventh claims allege that the prosecutor failed to produce
sufficient evidence to support Petitioner’s conviction. Petitioner points out that there was
no forensic evidence linking him to the murder and that the prosecutor failed to establish
a motive for him to commit the crime. Petitioner also contends that there was no
evidence that he supported, encouraged, or incited the commission of the crime and that,
at most, he was merely present when Murray beat and stabbed the victim. The Michigan
Court of Appeals adjudicated Petitioner’s claim on direct review and concluded that
sufficient evidence existed to support Petitioner’s conviction.
1. Clearly Established Federal Law
The relevant question on review of the sufficiency of the evidence is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The Supreme
Court has made clear that
Jackson claims face a high bar in federal habeas proceedings because they are
subject to two layers of judicial deference. First, on direct appeal, “it is the
responsibility of the jury—not the court—to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set aside the jury’s
verdict on the ground of insufficient evidence only if no rational trier of fact could
have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, ––––, 132 S.Ct. 2, 4,
181 L.Ed.2d 311 (2011) (per curiam). And second, on habeas review, “a federal
court may not overturn a state court decision rejecting a sufficiency of the
evidence challenge simply because the federal court disagrees with the state court.
The federal court instead may do so only if the state court decision was
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‘objectively unreasonable.’ ” Ibid. (quoting Renico v. Lett, 559 U.S. 766, ––––,
130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)).
Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam).
The Jackson standard “must be applied with explicit reference to the substantive
elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16.
In Michigan,
[t]he elements of second-degree murder are: (1) a death, (2) caused by an
act of the defendant, (3) with malice, and (4) without justification or
excuse. People v. Bailey, 451 Mich. 657, 669, 549 N.W.2d 325 (1996).
Malice is defined as the intent to kill, the intent to cause great bodily harm,
or the intent to do an act in wanton and wilful disregard of the likelihood
that the natural tendency of such behavior is to cause death or great bodily
harm. People v. Aaron, 409 Mich. 672, 728, 299 N.W.2d 304 (1980).
People v. Goecke, 457 Mich. 442, 463-64; 579 N.W.2d 868, 878 (1998).
“Aiding and abetting” describes all forms of assistance rendered to the
perpetrator of a crime and comprehends all words or deeds that might
support, encourage, or incite the commission of a crime. . . . To support a
finding that a defendant aided and abetted a crime, the prosecutor must
show that (1) the crime charged was committed by the defendant or some
other person, (2) the defendant performed acts or gave encouragement that
assisted the commission of the crime, and (3) the defendant intended the
commission of the crime or had knowledge that the principal intended its
commission at the time he gave aid and encouragement. An aider and
abettor’s state of mind may be inferred from all the facts and circumstances.
Factors that may be considered include a close association between the
defendant and the principal, the defendant’s participation in the planning or
execution of the crime, and evidence of flight after the crime.
People v. Carines, 460 Mich. 750, 757-58; 597 N.W.2d 130, 135 (Mich. 1999) (quoting
People v. Turner, 213 Mich. App. 558, 568-69; 540 N.W.2d 728, 733-34 (Mich. Ct. App.
1995)).
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2. Application
A death obviously occurred, and Petitioner does not deny that Murray caused the
victim’s death or that there was no justification for the death. Instead, Petitioner argues
that he was merely present when Murray beat and stabbed the victim and that he did not
assist Murray, nor know what Murray intended to do.
The Michigan Court of Appeals determined that Petitioner’s involvement in the
crime amounted to more than “mere presence.” The Court of Appeals pointed out that,
[a]ccording to defendant’s own statement, he allowed Ace (Murray) and the
victim to have sex and use drugs in his van. At some point, Murray became
angry and accused the victim of stealing his money. Murray asked
defendant what to do, and defendant encouraged Murray to assault the
victim. Subsequently, defendant drove his van to a dark and secluded alley
where Murray beat and stabbed the victim to death in the middle of the
night. Defendant also acknowledged that the knife used by Murray came
from his van. Defendant waited while Murray stabbed the victim and
disposed of the knife. Defendant then drove Murray away from the crime
scene.
Sheffield, 2011 WL 2623383, at *2. According to the Court of Appeals, a reasonable jury
could have concluded from this evidence that Petitioner aided and abetted Murray by:
encouraging Murray to assault the victim when he told Murray to search her for the
missing money; driving Murray and the victim to a dark and secluded alley; providing
Murray with a knife that was in his van; and waiting for Murray and subsequently driving
him away from the crime scene. Id. at *3.
Petitioner’s conduct, as described above, amounted to a form of assistance. As for
the element of intent, the officer in charge of the case testified at trial that he thought
9
Petitioner knew or had reason to know Murray intended to harm the victim. When asked
to explain the basis for this conclusion, the officer said:
At the point where the money was missing and Mr. Sheffield said in his
statement that you should search her, and after the money wasn’t found,
Mr. Murray, who basically had [the victim] as a captive, said you need to
take her somewhere and he began to drive.
(Trial Tr. Vol. II at 127, Jan. 27, 2010.)
Petitioner also admitted to the police that Murray may have gotten a knife out of
Petitioner’s van and that he (Petitioner) had heard the victim plead with Murray not to
stab her anymore. (Id. at 141-43.) At a minimum, the jury could have concluded that
Petitioner intended, or knew that Murray intended, to do something in wanton and wilful
disregard of the likelihood that the natural tendency of his behavior was to cause death or
great bodily harm. In the prosecutor’s words,
when you drive someone who is being assaulted who is in a fight with
someone else over to a dark and deserted alley, you are knowingly creating
a risk of death or great bodily harm, knowing that death or great bodily
harm is the likely result of your action.
(Id. at 168.)
A rational trier of fact could have concluded from the evidence taken in the light
most favorable to the prosecution that Petitioner aided and abetted Murray in killing the
victim with malice and without justification or excuse. Therefore, the evidence was
sufficient to support Petitioner’s conviction. Furthermore, as noted above, both the jury’s
verdict and the state appellate court’s decision are entitled to deference. Johnson, 132 S.
Ct. at 2062. The Court therefore declines to grant relief on Petitioner’s challenge to the
sufficiency of the evidence.
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B. The Sentence
The second habeas claim challenges Petitioner’s sentence. Petitioner was charged
with being a habitual offender, fourth offense, due to having three prior felony
convictions. He claims that two of the three prior convictions which the trial court relied
on are invalid and, therefore, he was sentenced on the basis of inaccurate information.
A sentence violates 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 v. Burke, 334 U.S. 736, 741 (1948). One of Petitioner’s prior
convictions was a Wayne County conviction for carrying a concealed weapon (CCW) on
June 3, 2005. Petitioner claims that he was confined in the Denver (Colorado) County
Jail at the time. A second conviction relied on by the trial court was possession of
cocaine in Wayne County on or about March 8, 1994. Petitioner maintains that this
charge was reduced to a misdemeanor on March 25, 1994, and that he was sentenced to
five years on probation.
The trial court, however, stated at Petitioner’s sentencing that Petitioner had been
convicted of at least four other offenses. (Sentence Tr., at 19, Feb. 16, 2010) (emphasis
added). Defense counsel agreed that there were at least three or four prior convictions.
(Id. at 7). Defense counsel also stated that he had reviewed Petitioner’s prior convictions
with him and that Petitioner had acknowledged the convictions. (Id. at 5, 18.)
Furthermore, when Petitioner raised his sentencing claim in his motion for relief
from judgment, the trial court noted that, under Mich. Comp. Laws § 769.12, any
11
combination of three or more felonies or attempts to commit felonies can be used to
sentence a defendant as a fourth felony offender. The court concluded that Petitioner was
subject to the penalty for fourth habitual offenders.
Even if Petitioner’s allegations about the CCW and cocaine convictions are true, it
appears from the record, as summarized in the preceding two paragraphs, that he still had
a sufficient number of prior convictions to qualify as a habitual offender, fourth offense.
Moreover, this is not a case where the defendant was sentenced on the basis of
information that he had no opportunity to correct through the assistance of counsel. Cf.
Townsend, 334 U.S. at 740-41. Thus, the state court’s rejection of Petitioner’s claim was
not contrary to, or an unreasonable application of, Supreme Court precedent, and
Petitioner is not entitled to relief on the basis of his sentencing claim.
C. The Prosecutor
The third habeas claim alleges prosecutorial misconduct. Petitioner claims that the
prosecutor violated his right to a fair trial and his right to due process of law by
misleading the jury and perverting the facts during closing arguments. Petitioner blames
the prosecutor for focusing on the victim, rather than the evidence.
1. Clearly Established Federal Law
No state court addressed Petitioner’s claim in a reasoned opinion. Nevertheless,
claims of prosecutorial misconduct are reviewed deferentially in a habeas corpus
proceeding. Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004). “[T]he touchstone
of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the
trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982).
12
“The relevant question is whether the prosecutor[’s] comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’ ” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637
(1974)).
“In deciding whether prosecutorial misconduct mandates that habeas relief be
granted, the Court must apply the harmless error standard.” Pritchett v. Pitcher, 117 F.3d
959, 964 (6th Cir. 1997). “[T]he standard for determining whether habeas relief must be
granted is whether the . . . error ‘had 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)).
2. Application
Petitioner asserts that the prosecutor committed multiple errors during closing
arguments. The alleged errors consist of the prosecutor’s comments that: Petitioner and
his accomplice murdered the victim; it took two people to drag the victim to the place
where she was found; one person in the van controlled the victim, and the other person
drove the van; Petitioner said that he heard Murray and the victim fighting; Petitioner told
Murray to search and assault the victim; Petitioner said that he heard the victim getting
loud and saying she did not do anything; Petitioner stood by while Murray attacked the
victim and got rid of her body; Petitioner admitted that the knife came from his van;
Petitioner knew where the weapons were in his van; there was no reason to go to the alley
other than to continue the assault; Petitioner said Murray told him to drive there; and
Petitioner “told us they did this.” (Trial Tr. Vol. II at 154-61, 167-71, Jan. 27, 2010.)
13
Petitioner contends that these comments were misleading, perversions of the facts,
and lies. According to him, the evidence established that: Murray, not him, committed
the murder; he suggested that Murray search, not assault, the victim; there was no assault
in the van, and the victim was not controlled; he did not tell the police that the victim got
loud or angry or that he heard Murray and the victim arguing and fighting; he did not get
out of the van; he told the police that the knife may have come from his van; and he did
not tell the police that he and Murray committed the crime.
While is it true that prosecutors may not misrepresent the facts in evidence or
assert facts that were never admitted in evidence, Washington v. Hofbauer, 228 F.3d
689, 700 (6th Cir. 2000), they are allowed to argue reasonable inferences from the
evidence. Macias v. Makowski, 291 F.3d 447, 452 (6th Cir. 2002) (quoting Byrd v.
Collins, 209 F.3d 486, 535 (6th Cir. 2000)). The prosecutor’s comments in this case were
reasonable inferences from the evidence and, therefore, proper.
Even if the prosecutor’s comments were deemed improper, she informed the jurors
that they were not required to adopt what she thought were reasonable inferences. (Trial
Tr. Vol. II at 155, Jan. 27, 2010.) Additionally, the trial court instructed the jurors at the
beginning of the case, immediately before closing arguments, and during its charge to the
jury that the attorneys’ comments were not evidence. (Trial Tr. Vol. I at 97, 99, Jan. 26,
2010; Trial Tr. Vol. II at 153, 174, Jan. 27, 2010). The court explained that the attorneys’
arguments were only meant to help the jurors understand the evidence and each side’s
legal theories. (Trial Tr. Vol. II at 174, Jan. 27, 2010.) The trial court also charged the
14
jurors to rely on their collective memories if the attorneys said something about the
testimony that differed from what they recalled. (Id. at 153).
“[J]uries are presumed to follow their instructions.” Richardson v. Marsh, 481
U.S. 200, 211 (1987). Therefore, the claimed errors could not have had a “substantial
and injurious effect or influence” on the jury’s verdict and were harmless. Brecht, 507
U.S. at 623. Petitioner is not entitled to relief on his prosecutorial-misconduct claim.
D. New Evidence
Murray told the police about a month after the crime that Petitioner stabbed and
killed the victim. (Prelim. Examination Tr. Vol. I at 27, 42-49, Sept. 1, 2009.) Although
Murray did not testify at Petitioner’s trial and his statement was not read to Petitioner’s
jury, Petitioner claims that he is entitled to a new trial because Murray has recanted his
statement to the police.
In a notarized statement written about a month after Petitioner’s conviction,
Murray states that Petitioner is innocent of the murder, that Petitioner never got out of the
van when they went to the alley, and that Petitioner should be released because he was
charged with a murder that he did not commit. See Petitioner’s Reply Brief in Support of
Pet. for Habeas Corpus, ECF No. 12, Pg ID 920. In another statement, which is unsigned
and not notarized, Murray wrote that Petitioner did not participate in the murder, that
Petitioner is innocent of the murder, and that Murray “put the wrap” on Petitioner
because Petitioner wrote a statement implicating Murray and because he (Murray) was
scared and faced having his life taken away from him. (Id., Pg ID 921.)
15
Reasonable jurors “could question the credibility of this about face from another
inmate and rationally could discount his testimony as nothing more than an attempt to
keep from being ‘pegged as a rat’ for having originally identified [Petitioner] as the
[murderer].” McCray v. Vasbinder, 499 F.3d 568, 574 (6th Cir. 2007). Thus, Murray’s
recanting affidavit must be viewed with extreme suspicion. United States v. Chambers,
944 F.2d 1253, 1264 (6th Cir. 1991). The state trial court, in fact, determined on review
of Petitioner’s claim that nothing in Murray’s affidavit supported the evidence in this
case.
Furthermore, Petitioner’s claim of innocence based on newly-discovered evidence
is not “a ground for federal habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390,
400 (1993). The Court therefore declines to grant habeas relief on the basis of Murray’s
post-trial statements.
E. Trial Counsel
The fifth habeas claim alleges ineffective assistance of trial counsel. Petitioner
appears to be raising several claims about his trial attorney. On direct appeal, Petitioner
argued that trial counsel was ineffective for failing to (1) point out a discrepancy in a
detective’s testimony, (2) investigate whether the police acted in bad faith when they
searched for the knife used in the murder, and (3) request a jury instruction on accessory
after the fact. The Michigan Court of Appeals concluded on review of these claims that
trial counsel’s performance did not fall below an objective standard of reasonableness
and that Petitioner was not prejudiced by counsel’s assistance.
16
In his habeas petition, Petitioner raises an additional claim about trial counsel. He
contends that trial counsel should have called Murray as a rebuttal witness to determine
whether Murray was promised anything or was ready to tell the truth. Finally, in his
reply to Respondent’s answer to the complaint, Plaintiff alleges that trial counsel failed to
investigate and contact defense witnesses who had first-hand knowledge of the event for
which Petitioner was charged and convicted. No state court addressed these issues in a
reasoned opinion.
1. Clearly Established Federal Law
A defense attorney is constitutionally ineffective if counsel’s “performance was
deficient” and “the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). The “deficient performance” prong “requires
showing that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. “Judicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689.
The “prejudice” prong of the Strickland test “requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. at 687. The defendant must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. “This does not require a showing that counsel’s actions ‘more likely than not
altered the outcome,’” but “[t]he likelihood of a different result must be substantial, not
just conceivable.” Richter, 562 U.S. at 111-12 (quoting Strickland, 466 U.S. at 693).
17
Review under AEDPA, moreover, is “doubly deferential” when the claim at issue
is ineffective assistance of counsel,
because counsel is “strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment,” Burt v. Titlow, 571 U.S. ––––, ––––, 134 S.Ct. 10, 17, 187
L.Ed.2d 348 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 690,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); internal quotation marks omitted).
In such circumstances, federal courts are to afford “both the state court and
the defense attorney the benefit of the doubt.” Burt, supra, at ––––, 134 S.
Ct., at 13.
Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per curiam).
2. Application
a. Failure to Investigate
Petitioner asserted on appeal that trial counsel should have investigated whether
the police questioned and released him two times before arresting him. Petitioner
claimed that, if trial counsel had investigated this issue, he could have raised doubt about
a detective’s testimony at trial that Petitioner was stopped only one time.
Petitioner also argued on appeal that trial counsel was ineffective for failing to
investigate efforts made by the police to locate the knife used in the assault on the victim.
Petitioner claimed that he took Detective Paul Thomas to the field where Murray threw
the knife and that Detective Thomas could have exited the vehicle and acquired the
weapon. Petitioner also challenged Detective Lorenzo Veal’s testimony at trial that the
lot was a big back yard with garbage in it. Petitioner asserted that the lot was not a big
back yard and that there was only grass in the lot.
18
Defense attorneys have a duty “to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland, 466
U.S. at 691. Nevertheless, as the Michigan Court of Appeals pointed out on direct
appeal, Petitioner has failed to show
what evidence, if any, trial counsel’s investigation into whether the police
initiated two traffic stops on defendant, as opposed to one, would have
uncovered to support his defense. He also fails to provide an explanation of
the significance or potential prejudice arising from trial counsel’s neglect to
further investigate the effort made by the police to find the knife.
Sheffield, 2011 WL 2623383, at *4. The Court of Appeals went on to point out that
the record does not reveal that trial counsel was unprepared. Trial counsel
adequately cross-examined Detective Veal and elicited testimony regarding
the effort made by the police to recover the knife. Detective Veal stated
that he and other police officers returned to the field, a large area with
overgrown foliage covered with garbage, and were unable to find the knife.
There was no indication from the record that trial counsel lacked
preparation or familiarity with the case.
Id.
Because Petitioner failed to show any prejudice from trial counsel’s omissions, the
Court of Appeals concluded that Petitioner failed to substantiate his ineffectiveassistance-of-counsel claim. This Court agrees with the Michigan Court of Appeals that
trial counsel’s alleged failure to investigate did not fall below an objective standard of
reasonableness. Nor did counsel’s performance prejudice Petitioner.
b. Failure to Request a Jury Instruction
The other ineffectiveness issue that Petitioner raised on appeal was whether trial
counsel should have requested a jury instruction on accessory after the fact. The
Michigan Court of Appeals found no merit in this claim because Petitioner’s defense
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theory was that he had nothing to do with the crime, and an instruction on accessory after
the fact would have undermined this theory because it would have implied that Petitioner
was involved in the crime. See id. at *5.
Petitioner’s own admissions to the police, moreover, established that he assisted
Murray before the crime by suggesting that Murray search the victim and by taking
Murray and the victim to a secluded area where Murray could assault the victim without
being seen. The Court therefore concludes that trial counsel was not ineffective for
failing to request a jury instruction on accessory after the fact. The state appellate court’s
decision on this issue was objectively reasonable.
c. Failure to Call Witnesses
Petitioner’s remaining claims likewise lack merit. Although Petitioner claims that
defense counsel should have called witnesses with first-hand knowledge of the crime, he
has not named any witnesses, other than Murray, that his attorney could have called. He
admits that there were no eyewitnesses to the crime, and he has not stated what any
defense witnesses would have said if they were willing and able to testify.
As for Murray, there is no reason to believe that he would have helped Petitioner’s
defense. He told the police about a month after the crime that Petitioner killed the victim.
Although Murray subsequently signed an affidavit in which he claimed that Petitioner is
innocent of the murder, it is unlikely that he would have testified at Petitioner’s trial if he
had been asked to do so, because he chose not to sign his affidavit until after Petitioner’s
trial.
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The Court concludes for all the reasons given above that trial counsel’s omissions
did not constitute deficient performance, and Petitioner was not prejudiced by the
claimed errors. Consequently, habeas relief is not warranted on Petitioner’s claim about
trial counsel.
F. Appellate Counsel
Petitioner alleges that his appellate attorney provided ineffective assistance by not
investigating or protecting Petitioner’s rights. More specifically, Petitioner claims that
appellate counsel should have raised the issue of trial counsel’s ineffectiveness, and he
should have requested an evidentiary hearing on Petitioner’s allegation of actual
innocence. Petitioner contends that appellate counsel left out strong arguments and
presented a “far-fetched” claim with little, if any, relevant arguments.
The Michigan Court of Appeals addressed Petitioner’s claim on direct review and
concluded that Petitioner had failed to establish ineffective assistance of appellate
counsel. In reaching this conclusion, the Court of Appeals noted that Petitioner’s claim
about trial counsel lacked merit and that Petitioner was able to raise his other arguments
in his pro se brief.
1. Clearly Established Federal Law
An appellate attorney is not required to raise every non-frivolous claim requested
by his or her client if counsel decides, as a matter of professional judgment, not to raise
the claim. Jones v. Barnes, 463 U.S. 745, 751 (1983).
In fact, the process of “ ‘winnowing out weaker arguments on appeal’ ” is
“the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S.
527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Barnes, 463 U.S.
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at 751-52, 103 S.Ct. 3308). “Generally, only when ignored issues are
clearly stronger than those presented, will the presumption of effective
assistance of counsel be overcome.” Gray v. Greer, 800 F.2d 644, 646 (7th
Cir. 1986).
Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). To demonstrate that appellate
counsel was ineffective, a habeas petitioner must show (1) that his attorney acted
unreasonably in failing to discover and raise nonfrivolous issues on appeal and (2) there
is a reasonable probability that he would have prevailed on appeal if his attorney had
raised the issues. Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Strickland, 466 U.S.
at 687-91, 694).
2. Application
In his pro se brief on appeal, Petitioner raised a sufficiency-of-the-evidence claim
similar to the claim that appellate counsel raised. He has also raised that issue in two of
his habeas claims. These facts undermine Petitioner’s assertion that appellate counsel
raised a far-fetched claim on appeal.
The ignored issues, moreover, are not clearly stronger than the one counsel
presented on appeal. Petitioner’s claim about trial counsel lacks merit, and an attorney is
not ineffective for failing to raise a meritless claim.
Appellate counsel’s failure to request an evidentiary hearing on Petitioner’s claim
of actual innocence appears to have been a strategic decision, because counsel informed
Petitioner in a letter dated October 6, 2010, that newly-discovered evidence did not
necessarily entitle him to a new trial. See Petitioner’s Reply Brief in Support of Pet. for
Writ of Habeas Corpus, Ex. F, ECF No. 12, Pg ID 926. Even if appellate counsel had
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asserted a claim of actual innocence and requested an evidentiary hearing, it is unlikely
that the case would have been remanded for an evidentiary hearing, because Murray’s
affidavit is not supported by the record. Therefore, appellate counsel’s performance did
not prejudice the defense.
To summarize, Petitioner’s underlying claims lack merit, and “by definition,
appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit.”
Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). The Court therefore declines to
grant relief on Petitioner’s claim about appellate counsel. The Michigan Court of
Appeals reasonably concluded that appellate counsel was not ineffective.
IV. Conclusion
The state-court orders and opinions in this case did not result in decisions that
were contrary to Supreme Court precedent, unreasonable applications of Supreme Court
precedent, or unreasonable determinations of the facts. The orders and opinion also were
not “so lacking in justification that there was an error . . . beyond any possibility for
fairminded disagreement.” Richter, 562 U.S. at 103. The Court therefore denies the
petition for writ of habeas corpus.
V. Certificate of Appealability
Before Petitioner may appeal this Court’s decision, a certificate of appealability
must issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). 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). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s
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resolution of his constitutional claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Reasonable jurists could not disagree with the Court’s assessment of Petitioner’s
claims, nor conclude that the issues deserve encouragement to proceed further. The
Court therefore declines to issue a certificate of appealability. Petitioner nevertheless
may apply to the Court of Appeals for a certificate of appealability. He may proceed in
forma pauperis on appeal, because he was granted in forma pauperis status in this Court
and an appeal could be taken in good faith. Fed. R. App. P. 24(a)(3)(A).
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: October 3, 2016
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on October 3, 2016, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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