Isom v. Palmer

Filing 11

ORDER Denying 1 PETITION for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DONALD JAMAL ISOM,
Petitioner,
v.

CASE NO. 14-11479
HONORABLE SEAN F. COX

CARMEN DENISE PALMER,
Respondent.
__________________________________/
OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY,
AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

This matter has come before the Court on a pro se application for the writ of
habeas corpus under 28 U.S.C. § 2254. Petitioner Donald Jamal Isom (“Petitioner”)
challenges his convictions for: second-degree murder, Mich. Comp. Laws § 750.317;
conspiracy to commit armed robbery, Mich. Comp. Laws § 750.157a, Mich. Comp.
Laws § 750.529; attempted armed robbery, Mich. Comp. Laws § 750.92, Mich. Comp.
Laws § 750.529; felon in possession of a firearm, Mich. Comp. Laws § 750.224f;
carrying a concealed weapon (CCW), Mich. Comp. Laws § 750.227; and four counts of
possessing a firearm during the commission of a felony (felony firearm), Mich. Comp.
Laws § 750.227b. Petitioner alleges as grounds for relief allege that: (1) the trial court
erroneously denied his objections to the prosecutor’s use of peremptory challenges to
remove two African Americans from the venire; (2) there was insufficient evidence to
convict him of conspiracy to commit armed robbery; (3) there was insufficient evidence

to convict him of murder; (4) he was denied a fair trial when a police witness and the
prosecutor commented on his silence during questioning; (5) he was denied a fair trial
by the improper joinder of counts; (6) re-sentencing is required because the trial court
exceeded the sentencing guidelines without offering any explanation; (7) trial counsel
was ineffective; (8) appellate counsel was ineffective for failing to raise a claim about
trial counsel’s ineffectiveness; and (9) he is entitled to an evidentiary hearing on his
claims about trial and appellate counsel.
Respondent Carmen Denise Palmer (“Respondent”) argues in an answer to the
habeas petition that Petitioner procedurally defaulted his fourth and seventh claims and
that the state courts’ rejection of Petitioner’s claims did not result in decisions that were
contrary to federal law, unreasonable applications of federal law, or unreasonable
determinations of the facts.

The Court agrees with Respondent’s assessment of

Petitioner’s claims. Accordingly, the habeas petition will be denied.
I. Background
Petitioner was charged in Saginaw County, Michigan with one count of firstdegree (felony) murder, one count of conspiracy to commit armed robbery, two counts
of attempted robbery, one count of felon in possession of a firearm, one count of
carrying a concealed weapon, and five counts of felony firearm. The charges arose
from two incidents that occurred early on August 26, 2006.

As explained by the

Michigan Court of Appeals, the two incidents involved
the attempted robbery of Raychan Williams and the shooting death of
Darnell Eiland. The evidence at trial indicated that on the night of the
crimes, defendant and Prophet Phillips were driving around with Doretha
Ransom. The men went together to Williams’s apartment, where Phillips
tried to convince Williams to open the door by stating that he wanted to
buy drugs. When Williams refused to open the door, defendant pointed a
2

gun at him. Williams jumped away, and defendant and Phillips returned to
the car. Shortly thereafter, the three drove to another home, ostensibly to
buy drugs. Defendant and Phillips went to the house while Ransom
waited in the car. Ransom heard gunshots, and then defendant and
Phillips returned to the car. Defendant had been shot in the hand.
Defendant gave Phillips a gun, and then Phillips left. Ransom took
defendant to the hospital. While defendant was being treated, Eiland’s
body was found. When the police came to the hospital to investigate
defendant’s gunshot wound and to determine if the Eiland death was
related, defendant fled, but was apprehended shortly thereafter.
People v. Isom, No. 284857, 2010 WL 1404430, at *1 (Mich. Ct. App. Apr. 8, 2010).
Defendant did not testify, and his only witness was his sister, Detrianna Barnes.
Ms. Barnes testified that Petitioner called her from the hospital at about 10:00 a.m. on
August 26, 2006, and again about 3:00 p.m. that day. She told Petitioner to leave the
hospital because somebody was going there to kill him.
Petitioner’s defense was that he
was caught in an ambush, was not the shooter or that there was enough
reasonable doubt as to who was the shooter, that one Jamaar Bates, who
was at the scene just prior to the shooting and who subsequently
discovered the body of Mr. Eiland when he returned later that morning,
was more involved in [the] killing than what he claimed, and that Williams
and Bates implicated [Petitioner] in the murder because of some ongoing
dislike or dispute.
People v. Isom, No. 07-028598 FC 4, Op. and Order Denying Post-Appellate Relief, at 2
(Saginaw Cty. Cir. Ct. July 27, 2011), ECF No. 9-20, Pg ID 1521.
On February 14, 2008, the jury found Petitioner guilty of second-degree murder,
as a lesser-included offense of first-degree murder, and the following additional
offenses: conspiracy to commit armed robbery, one count of attempted robbery, felon
in possession of a firearm, carrying a concealed weapon, and four counts of felony
firearm. The jury acquitted Petitioner of one count of attempted robbery and the related
felony-firearm count. On March 20, 2008, the trial court sentenced Petitioner to two
3

years in prison for the felony-firearm convictions, followed by concurrent terms of sixty
to ninety years in prison for the murder and conspiracy convictions and five to ten years
in prison for the attempted-robbery, felon-in-possession, and CCW convictions.
Petitioner’s initial appellate attorney filed a motion for new trial, claiming that trial
counsel was ineffective for failing to request a jury instruction on self defense.
Petitioner subsequently wrote to the trial court and asked the court to remove counsel
from his case and strike counsel’s motion for new trial. The trial court then appointed a
different appellate attorney, who withdrew the motion for new trial and raised
Petitioner’s first six habeas claims in his appellate brief. A three-judge panel of the
Michigan Court of Appeals affirmed Petitioner’s convictions, see Isom, 2010 WL
1404430,1 and on September 9, 2010, the Michigan Supreme Court denied leave to
appeal because it was not persuaded to review the issues. See People v. Isom, 488
Mich. 854; 787 N.W.2d 488 (2010).
Petitioner subsequently filed a motion for relief from judgment in which he raised
his seventh and eighth habeas claims regarding trial and appellate counsel. He claimed
that trial counsel was ineffective for failing to present a defense of self defense, for
failing to request a jury instruction on self defense, and for failing to use or consult an
expert witness. He also asserted that appellate counsel was ineffective for failing to
raise a claim about trial counsel’s ineffectiveness.

1

Appellate Judge Elizabeth L. Gleicher concurred in the result reached by the majority,
but wrote a separate opinion to provide an alternate analysis on Petitioner’s claim about
the prosecutor’s use of peremptory challenges to strike African American veniremen.
4

The state trial court analyzed Petitioner’s motion under Michigan Court Rule
6.508(D)(3) and denied the motion.2 Although the court opined that Petitioner would
have had a reasonable chance of acquittal if trial counsel had requested a jury
instruction on self defense, the court nevertheless determined that Petitioner had not
shown “good cause” for failing to raise his self-defense issues on appeal, because he
resisted his first appellate attorney’s efforts to bring the issue before the courts. See
Isom, No. 07-028598 FC 4, Op. and Order Denying Post-Appellate Relief, at 3-4
(Saginaw Cty. Cir. Ct. July 27, 2011), ECF No. 9-20, Pg ID 1522-23.
Petitioner moved for reconsideration of the trial court’s order on the basis that his
appellate attorneys failed in their obligations and duties to assist him in bringing his selfdefense claim before the Michigan Court of Appeals. In an order denying Petitioner’s
motion, the trial court determined that there was insufficient evidence to support a claim
of self defense and, therefore, Petitioner was not entitled to such an instruction. The
trial court concluded that appellate counsel’s failure to preserve the issue for appeal
was inconsequential.

See People v. Isom, No. 07-028598 FC 4, Op. and Order

Denying Relief, at 3 (Saginaw County Cir. Ct. Apr. 2, 2012), ECF No. 9-22, Pg ID 1533.
Petitioner appealed the trial court’s decision without success. Both the Michigan
Court of Appeals and the Michigan Supreme Court denied leave to appeal for failure to
establish entitlement to relief under Rule 6.508(D). See People v. Isom, No. 312567

2

Rule 6.508(D)(3) generally prohibits a state court from granting relief from judgment if
the motion alleges non-jurisdictional grounds for relief that could have been raised on
appeal. An exception exists if the defendant demonstrates “good cause for failure to
raise such grounds on appeal” and “actual prejudice from the alleged irregularities that
support the claim for relief.” Mich. Ct. R. 6.508(D)(3)(a) and (b).
5

(Mich. Ct. App. Sept. 6, 2013); People v. Isom, 495 Mich. 947; 843 N.W.2d 505 (2014).
On April 11, 2014, Petitioner filed his habeas corpus petition in this Court.
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).
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

6

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 or her claim “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.
“ ‘In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a factual
issue made by a State court shall be presumed to be correct,’ unless rebutted by ‘clear
and convincing evidence’. 28 U.S.C. § 2254(e)(1).” Holland v. Rivard, 800 F.3d 224,
242 (6th Cir. 2015), cert. denied, 136 S. Ct. 1384 (2016).

Lastly, “review under §

2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

7

III. Discussion
A. The Prosecutor’s Use of Peremptory Challenges (claim one)
Petitioner, who is an African American, alleges that the trial court violated his
right to equal protection of the law when the court denied his objections to the
prosecutor’s use of peremptory challenges to remove two African Americans from the
venire. According to Petitioner, the prospective jurors in question (Johnny Green and
Johnnie Sewell) answered the prosecutor’s questions appropriately and indicated that
they could follow the trial judge’s instructions on the evidence and the prosecutor’s
burden of proof. Petitioner concludes that the trial court’s findings – that he did not
make a prima facie case for discrimination and that the prosecutor’s explanations were
adequate – were erroneous.
The Michigan Court of Appeals adjudicated Petitioner’s claim on the merits on
direct appeal and determined that the factual circumstances did not support Petitioner’s
claim of discrimination. The Court of Appeals deferred to the trial court’s resolution of
credibility issues and concluded that the trial court’s rulings were not clearly erroneous.
Judge Gleicher wrote a concurring opinion on the issue and likewise concluded that no
clear error existed.
1. Clearly Established Federal Law
The clearly established federal law here is Batson v. Kentucky, 476 U.S. 79
(1986).

Under Batson “and later decisions building upon Batson, parties are

constitutionally prohibited from exercising peremptory challenges to exclude jurors on
the basis of race, ethnicity, or sex.” Rivera v. Illinois, 556 U.S. 148, 153 (2009).
Batson provides a three-step process for a trial court to use in
adjudicating a claim that a peremptory challenge was based on race:
8

“ ‘First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of
race[; s]econd, if that showing has been made, the
prosecution must offer a race-neutral basis for striking the
juror in question[; and t]hird, in light of the parties’
submissions, the trial court must determine whether the
defendant has shown purposeful discrimination.’ ”
Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008) (alterations in original) (end citations
omitted).
In addition to the highly deferential standard AEDPA imposes,
Batson claims are also subject to highly deferential review. The trial
court’s decision on the ultimate question of improper discriminatory intent
is a finding of fact to be accorded “great deference.” Hernandez v. New
York, 500 U.S. 352, 364–65, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)
(plurality). “Deference is necessary because a reviewing court, which
analyzes only the transcripts from voir dire, is not as well positioned as the
trial court is to make credibility determinations.” [Miller-El v. Cockrell, 537
U.S. 322, 339 (2003)]; see also Hernandez, 500 U.S. at 365, 111 S.Ct.
1859 (“[E]valuation of the prosecutor’s state of mind based on demeanor
and credibility lies ‘peculiarly within a trial judge’s province.’ ”) quoting
[Wainwright v. Witt, 469 U.S. 412, 428 (1985)]. In addition, a Batson
claim “presents a mixed question of law and fact and ‘necessarily focuses
on the reasonableness of the decision of the state courts. . . .’ ” Braxton
[v. Gansheimer, 561 F.3d 453, 458 (6th Cr. 2009)] (quoting Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003)). The “question of ‘whether a
prosecutor intended to discriminate on the basis of race in challenging
potential jurors is, as Batson recognized, a question of historical fact.’ ”
Lancaster, 324 F.3d at 429 (quoting Hernandez, 500 U.S. at 367, 111
S.Ct. 1859). Thus, the deference given to district courts “must be modified
in the context of a § 2254 petition to give credence to § 2254(e)(1)’s
requirement that facts found by a state court be presumed correct unless
the petitioner rebuts this presumption by clear and convincing evidence.”
Braxton, 561 F.3d at 458 (citing Lancaster, 324 F.3d at 429 n.1).
Bryan v. Bobby, 843 F.3d 1099, 1110–11 (6th Cir. 2016).
2. The Facts
State appellate Judge Gleicher summarized the relevant facts as follows:
The prosecutor exercised his second peremptory challenge to excuse
Johnny Green, an African-American venireman. Defendant timely raised
9

a Batson challenge at sidebar after the prosecutor peremptorily excused a
second African-American juror, Johnnie Sewell. The trial court excused
the jury for the afternoon and, before defense counsel had articulated a
Batson [challenge], the trial court announced, “Now, I would like for [the
prosecutor] to state his nonracial reason so that I-.” The prosecutor
interjected that the defense “hasn’t made a motion. They need to make a
motion, and then I’d like some time to research the law.” The trial court
adjourned to give the parties and the court an opportunity to conduct legal
research.
When court reconvened the next morning, defense counsel explained as
follows the basis for his Batson challenge:
So in . . . his first four challenges, including six passes, two
of the jurors that were excluded were black males, and it just
– given the tenor of the exam during voir dire and given the
challenges, it certainly created an appearance for me and a
concern for me that these jurors were being excluded
because they were black males and that there was nothing
in the record that came up during the voir dire that would . . .
cause any other reason – cause me to have any other
reason to form any other belief.
The prosecutor responded that “there is no prima facie showing of a
discriminatory purpose and . . . it’s not a jury constituted on race at all.”
The prosecutor nonetheless proceeded to relate race-neutral reasons for
his exclusions of Green and Sewell. The prosecutor claimed that Sewell
seemed “confused” by the concept of circumstantial evidence, had an
eleventh grade education, and “looked confused” in general during the voir
dire. According to the prosecutor, Green “had indicated quite candidly that
as a 60-some-year-old black man raised in the south he had issues with
the police,” and also could not discern a distinction between “proof beyond
a reasonable doubt and proof beyond any shadow of a doubt.”
Isom, 2010 WL 1404430, at *6 (Gleicher, J., concurring); see also Trial Tr. Vol. I, at 10717, Feb. 5, 2008), ECF No. 9-10, Pg ID 780-90; Trial Tr. Vol. II, a.m. session, at 6-28,
Feb. 6, 2008), ECF No. 9-11, Pg ID 797-819.

10

3. Application of the Law
a. Step One
As noted above, the first step in a Batson analysis is determining whether a
prima facie case has been established.
To establish such a case, the defendant first must show that he is a
member of a cognizable racial group, and that the prosecutor has
exercised peremptory challenges to remove from the venire members of
the defendant’s race. Second, the defendant is entitled to rely on the fact,
as to which there can be no dispute, that peremptory challenges constitute
a jury selection practice that permits “those to discriminate who are of a
mind to discriminate.” Finally, the defendant must show that these facts
and any other relevant circumstances raise an inference that the
prosecutor used that practice to exclude the veniremen from the petit jury
on account of their race. This combination of factors in the empaneling of
the petit jury, as in the selection of the venire, raises the necessary
inference of purposeful discrimination.
Batson, 476 U.S. at 96 (internal citations omitted).
It was undisputed in this case that Petitioner was a member of a cognizable
racial group and that the prosecutor exercised peremptory challenges to remove
members of Petitioner’s race from the venire. (Trial Tr. Vol. II, a.m. session, at 11-12,
18, Feb. 6, 2008), ECF No. 9-11, Pg ID 802-03. The only question was whether the
relevant circumstances raised an inference that the prosecutor used a peremptory
challenge to excuse a juror on the basis of race.
The prosecutor’s denial of an impermissible motive did not satisfy his burden of
responding to a prima facie case of purposeful discrimination. United States v. Hill, 146
F.3d 337, 341 (6th Cir. 1998) (citing Purkett v. Elem, 514 U.S. 765, 769 (1995)).
Nevertheless, he explained that the victim was a black male, that every civilian witness
in the case was an African American, that some of the police officers and one of the
detectives were African Americans, and that the incident occurred in a predominantly
11

black neighborhood. Under the circumstances, the prosecutor maintained that there
would be no purpose in excluding prospective jurors simply because they were black.
(Trial Tr. Vol. II, a.m. session, at 12-13, Feb. 6, 2008), ECF No. 9-11, Pg ID 803-04.
The trial court reasonably concluded from all the relevant circumstances that
Petitioner had not made a prima facie showing that the prosecutor used a peremptory
challenge to excuse a prospective juror on the basis of race. (Id. at 18-19, Pg ID 80910.) Step one is satisfied.
b. Step Two
The trial court’s finding that Petitioner failed to establish a prima facie case of
discrimination should have been the end of the matter.

The prosecutor, however,

requested an opportunity to make a record of the reasons for his strikes, and the trial
court permitted him to proceed. The prosecutor then explained that Mr. Sewell had only
an eleventh grade education, he was confused by the notion of circumstantial evidence
and how to use it, and he appeared to have a problem understanding the prosecutor’s
questions. (Id. at 20-22, Pg ID 811-13.)
Confusion is a common race-neutral reason for striking prospective jurors.
United States v. Warren, 788 F.3d 805, 813 (8th Cir.), cert. denied, 136 S. Ct. 349
(2015). A prospective juror’s lack of education or limited education also are valid raceneutral reasons for a peremptory challenge. See United States v. Marin, 7 F.3d 679,
687 (7th Cir. 1993) (stating that “[a] juror’s lack of education has been deemed a proper
race-neutral explanation for peremptory strikes even where all members of the minority
group appear to have been struck”); see also Rivers v. City of Rochester, 856 F. Supp.
2d 620, 624 (W.D. N.Y. 2012) (rejecting a Batson claim where the reason given for the

12

strike was that the prospective juror’s limited education might prevent the person from
understanding complex medical evidence).
Regarding Johnny Green, the prosecutor stated that Mr. Green seemed to think
proof “beyond a reasonable doubt” and proof “beyond a shadow of a doubt” were the
same. The prosecutor also was troubled by the fact that Mr. Green admitted to having
issues with the police, and he thought that Mr. Green might not be able to relate to the
victims. (Trial Tr. Vol. II, a.m. session, at 22-23, Feb. 6, 2008), ECF No. 9-11, Pg ID
813-14. Although Mr. Green had said that he could set aside his personal experiences
(Trial Tr. Vol. I, at 60, Feb. 5, 2008), Pg ID 733, a negative experience with the police is
an acceptable and race-neutral reason for excusing a prospective juror.

Jordan v.

Lefevre, 206 F.3d 196, 200 (2d Cir. 2000).
The prosecutor’s explanations at step two of the Batson process did not have to
be “persuasive, or even plausible,” Elem, 514 U.S. at 767-68, and because there was
no inherent discriminatory intent in his explanations, his reasons must be deemed raceneutral. Id. (quoting Hernandez, 500 U.S. at 360). Petitioner has failed to satisfy step
two of the Batson analysis.
c. Step Three
The Supreme Court explained in Miller-El, 537 U.S. at 322, that
the critical question in determining whether a prisoner has proved
purposeful discrimination at step three is the persuasiveness of the
prosecutor’s justification for his peremptory strike.
At this stage,
“implausible or fantastic justifications may (and probably will) be found to
be pretexts for purposeful discrimination.” In that instance the issue
comes down to whether the trial court finds the prosecutor’s race-neutral
explanations to be credible. Credibility can be measured by, among other
factors, the prosecutor’s demeanor; by how reasonable, or how
improbable, the explanations are; and by whether the proffered rationale
has some basis in accepted trial strategy.
13

Id. at 338-39 (quoting Elem, 514 U.S. at 768).
“[A] state court’s finding of the absence of discriminatory intent is ‘a pure issue of
fact’ accorded significant deference[.]” Id. at 339. “Deference is necessary because a
reviewing court, which analyzes only the transcripts from voir dire, is not as well
positioned as the trial court is to make credibility determinations.” Id. “‘The credibility of
the prosecutor’s explanation goes to the heart of the equal protection analysis, and
once that has been settled, there seems nothing left to review.’ ” Id. at 340 (quoting
Hernandez, 476 U.S. at 367); see also Bryan, 843 F.3d at 1110 (stating that “[t]he
critical question here is ‘the persuasiveness of the prosecutor’s justification for his
peremptory strike – quite simply, whether the trial court finds the prosecutor’s raceneutral explanations credible or pretextual”) (quoting Miller-El, 537 U.S. at 338-39).
The prosecutor’s reasons for using peremptory challenges to excuse Mr. Green
and Mr. Sewell do not appear to be pretextual. In fact, the trial court stated at step three
of the Batson process that both Mr. Green and Mr. Sewell had expressed some
confusion about whether they could make a decision based on the court’s instructions.
The court also found it “not inconsequential” that Mr. Green apparently had trouble with
the police in the past. As to Mr. Sewell, the court stated that the verbal exchange with
him indicated he would not want to use circumstantial evidence and would, instead,
resort to his own common sensibility. For these reasons, the court denied Petitioner’s
Batson challenge, implicitly concluding that Petitioner had failed to show purposeful
discrimination in the prosecutor’s use of peremptory challenges. (Trial Tr. Vol. II, a.m.
session, at 28, Feb. 6, 2008), ECF No. 9-11, Pg ID 819.

14

The trial court’s factual finding – that there was no intentional discrimination –
was based on a reasonable determination of the facts, which Petitioner has not rebutted
with clear and convincing evidence. Therefore, this Court must defer to the state court’s
ruling

on the issue of purposeful discrimination, and to the state appellate court’s

conclusion that no Batson error occurred. Habeas relief is not warranted on Petitioner’s
first claim.
B. The Sufficiency of the Evidence (claims two and three)
Petitioner alleges next that there was insufficient evidence to convict him of
conspiracy to commit armed robbery, the related felony-firearm count, and felony
murder or second-degree murder.
1. Clearly Established Supreme Court Precedent
The Supreme Court has held “that the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S.
358, 364 (1970). Following Winship, the critical inquiry on review of a challenge to the
sufficiency of the evidence supporting a criminal conviction is
whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt. But this inquiry does not require a court to
“ask itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt.” Instead, the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. This familiar standard gives full play to
the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote
omitted) (emphases in original).
15

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.” Coleman v. Johnson, 566 U.S. 650, __, 132 S. Ct. 2060, 2062 (2012) (per
curiam). First, it is the responsibility of the trial of fact to decide what conclusions
should be drawn from the evidence admitted at trial. Id.
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 ‘objectively
unreasonable.’ ”
Id. (quoting Cavazos v. Smith, 565 U.S. 1, 3 (2011) (quoting Lett, 559 U.S. at 773)); see
also Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (stating that, because both
Jackson and AEDPA applied to the petitioner’s claim, the law commanded deference at
two levels: deference to the trier-of-fact’s verdict and deference to the state court’s
consideration of the trier-of-fact’s verdict, as dictated by AEDPA).
2. Conspiracy to Commit Armed Robbery
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. Criminal conspiracy in Michigan “is an agreement, expressed or implied, between
two or more persons to commit an unlawful or criminal act.” People v. Barajas, 198
Mich. App. 551, 553; 499 N.W.2d 396, 398 (1993).
[D]irect proof of the conspiracy is not essential; instead, proof may be
derived from the circumstances, acts, and conduct of the parties. See,
e.g., People v. Brynski, 347 Mich. 599, 81 N.W.2d 374 (1957). Inferences
may be made because such evidence sheds light on the coconspirators’
intentions
People v. Justice, 454 Mich. 334, 347; 562 N.W.2d 652, 659 (1997) (footnote omitted).

16

The predicate offense in this case was armed robbery, the elements of which are
“(1) an assault and (2) a felonious taking of property from the victim’s presence or
person (3) while the defendant is armed with a weapon.” People v. Smith, 478 Mich.
292, 319; 733 N.W.2d 351, 365 (2007). “To prove conspiracy to commit armed robbery,
the prosecution must prove that two or more people agreed to commit an armed
robbery, with the specific intent to accomplish the robbery.” People v. Solernorona, No.
299269, 2012 WL 1521444, at *4 (Mich. Ct. App. May 1, 2012) (unpublished). “The
elements of felony-firearm are that the defendant possessed a firearm during the
commission of, or the attempt to commit, a felony.” People v. Avant, 235 Mich. App.
499, 505; 597 N.W.2d 864, 869 (1999).
Petitioner alleges that the only evidence about what occurred at the Ninth Street
house came from Doretha Ransom, who said nothing about a conspiracy between
Petitioner and Phillips. Petitioner admits that there was circumstantial evidence that
both he and Phillips were armed and that they fired their weapons at the house, but he
contends that such evidence was no proof of a conspiracy to commit armed robbery.
He asserts that, virtually all the evidence of a conspiracy and intent to rob derived from
testimony about the earlier attempt to rob Williams, which was inadmissible “similar
acts” evidence.

Petitioner argues that the felony-firearm charge attached to the

conspiracy count fails because there was insufficient evidence of a conspiracy.
The Michigan Court of Appeals disagreed with Petitioner and stated that “the
record substantiate[d] the prosecutor’s theory of the case that the men engaged in a
conspiracy to rob local drug dealers on the night in question.” Isom, 2010 WL 1404430,
at *3.

The Court of Appeals stated that Petitioner’s “attempt to exclude the evidence

17

surrounding the attempt to rob Williams [was] without merit” and that the jury was
“entitled to hear the ‘complete story’ surrounding the matter in issue.”

Id. (quoting

People v. Sholl, 453 Mich. 730, 742; 556 N.W.2d 851 (1996). The Court of Appeals
concluded that “[t]here was sufficient circumstantial evidence to support the conspiracy
conviction.” Id.
This Court must defer to the Michigan Court of Appeals on the issue of whether
testimony about the attempt to rob Williams was admissible evidence. See Bradshaw v.
Richey, 546 U.S. 74, 76 (2005) (stating that “a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus”). And the record supports the state court’s conclusion
that there was sufficient circumstantial evidence to support the conspiracy conviction.
Williams testified that when Phillips tried to make Williams open the door to his
home and sell him some crack cocaine, Williams asked to see the money. Phillips then
looked at Petitioner, who was standing nearby with a gun. Petitioner pointed the gun at
Williams’ face.

Williams jumped away from the window and subsequently heard a

gunshot. (Trial Tr. Vol. II, p.m. session, at 45-61, Feb. 6, 2008), ECF No. 9-12, Pg ID
810-14.
Doretha Ranson testified that Petitioner had a gun in his waistband when she
first picked him up on the night in question. Petitioner and Phillips were talking about a
watch, and they got out of the car at 4th and Federal Streets. When the men returned
to the car, Petitioner said that “Ray” would have the watch the next day. Then the men
talked about buying some crack cocaine, and they went to a different location.
Petitioner took his gun with him, and Phillips had previously said he kept a .22 caliber

18

gun. She subsequently heard four or five gunshots. When the men returned to the car,
Petitioner said that he got shot, and he handed his gun to Phillips, who did not get in the
car. (Trial Tr. Vol. III, at 17-50, Feb. 7, 2008), ECF No. 9-13, Pg ID 951-84.
Although Ranson admitted that Petitioner and Phillips had not discussed robbing
Williams or “ripping off a drug house,” (id. at 98, Pg ID 1032), the men could have
discussed their plans in her absence. And, as the trial court recognized,
all the evidence points to the conclusion that defendant along with codefendant Prophet Phillips first attempted to rob Raychan Williams at his
home, firing gun shots in the attempt, and when that failed they decided to
rob a nearby home where Phillips had purchased drugs in the past. In the
course of that robbery either the defendant or Phillips shot and killed
Darnell Eiland.
Isom, No. 07-028598 FC 4, Op. and Order Denying Relief, at 2-3 (Saginaw Cty. Cir. Ct.,
Apr 2, 2012), ECF No. 9-22, Pg ID 1532-33.
A rational trier of fact could have concluded from the circumstantial evidence that
Petitioner and Phillips agreed to rob Williams or Eiland of drugs or money and that they
were armed at the time. Therefore, the evidence was sufficient to support Petitioner’s
conspiracy conviction and the related felony-firearm conviction. The state appellate
court’s adjudication of Petitioner’s claim was neither contrary to, nor an unreasonable
application of, Jackson. Petitioner has no right to relief on the basis of his challenge to
his conspiracy conviction and the related felony-firearm conviction.
3. Felony Murder and Second-Degree Murder
Petitioner also contends that there was insufficient evidence of felony murder.
According to him, there was insufficient evidence that he attempted to rob Eiland, that
he fired the bullet which killed Eiland, or that he aided and abetted Phillips in killing
Eiland, knowing that Phillips intended to rob or kill Eiland.
19

The Michigan Court of

Appeals disagreed with Petitioner and concluded that there was sufficient evidence to
support the second-degree murder conviction.
Petitioner was acquitted of the felony-murder charge. Consequently, the Court
will consider only whether there was sufficient evidence to sustain Petitioner’s
conviction for second-degree murder. 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). The malice
element for depraved heart murder is general mens rea.
People v. Goecke, 457 Mich. 442, 463–64; 579 N.W.2d 868, 878 (1998).

The

prosecutor’s theory was that Petitioner was guilty as the principal actor or as an aider
and abettor.
“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 (1999) (quoting
People v. Turner, 213 Mich. App. 558, 568-69; 540 N.W.2d 728, 733-34 (1995)).

20

The Michigan Court of Appeals pointed out on review of Petitioner’s claim that:
Williams testified that he woke up because individuals had knocked on his door
in the early morning. The men purportedly came to the door to purchase drugs,
but when Williams asked to see the money Phillips turned to defendant.
Defendant pointed a gun at Williams, and that the gun appeared to be .40 caliber
semiautomatic handgun. Williams did not open the door, jumped back, and
heard the sound of a gun firing. Unable to obtain drugs or money from Williams,
the two men went to another home nearby where Phillips had purchased drugs in
the past. The forensic evidence established that .40 caliber bullets were found in
this home and that defendant’s blood was spattered on the wall of the house.
Isom, 2010 WL 1404430, at *4.
The Michigan Court of Appeals concluded from this evidence that Petitioner and
Phillips “intended to act in obvious disregard of life-endangering consequences,” and
that a rational jury could have inferred from the evidence “that either [Petitioner] or
Phillips fired a .40 caliber bullet that killed Eiland.” Id. The Michigan Court of Appeals
opined that “[e]ither inference, combined with the evidence that the men had attempted
to rob Williams and that they were armed when they approached the house, was
sufficient to support the conviction for second-degree murder.” Id.
These conclusions were objectively reasonable and supported by the record
before the Court. And because the state court’s decision was not contrary to, or an
unreasonable application of, Jackson, habeas relief is not warranted on Petitioner’s
challenge to his murder conviction.
C. The Prosecutor’s Comment on Petitioner’s Silence (claim four)
Petitioner alleges next that he was denied a fair trial when police officers and the
prosecutor commented on his silence during questioning by the police at the hospital
where he was treated for his gunshot wounds. Petitioner argues that he had a right not

21

to incriminate himself and that the prosecutor should not have used his silence as
substantive evidence of guilt.
Petitioner’s claim first arose when Saginaw Police Officer Sophia Jordan testified
that she attempted to speak with Petitioner in the hospital and that “he didn’t really want
to talk to [her].” (Trial Tr. Vol. IV, at 85, Feb. 8, 2008), ECF No. 9-14, Pg ID 1189.
Petitioner said that he did not know the answer to some of her questions, and he failed
to respond to other questions. (Id. at 85-86, Pg ID 1189-90.)
Lieutenant Brian Lipe testified that he went to the hospital at Officer Jordan’s
request to take pictures of Petitioner’s gunshot wound. When he attempted to speak
with Petitioner about his condition, Petitioner’s “responses were in the form of a moan or
groan,” and “he pretty much wouldn’t talk to [Lipe] or tell [Lipe] what had happened.”
(Id. at 95, Pg ID 1199.)
Officer Addison Burton testified that, when he arrived at the hospital, Petitioner
had an intravenous line in his hand.

Shortly after Officer Burton stepped outside

Petitioner’s room to take a phone call, he noticed Petitioner standing next to him in his
hospital gown. Petitioner mumbled something, but did not say anything about needing
assistance, about being threatened, or about someone coming to get him. (Id. at 12123, Pg ID 1225-27.)
During closing arguments the prosecutor made the following comments about the
officers’ testimony and Petitioner’s unresponsiveness:
And he [Petitioner] goes into the hospital, and because he has a gunshot
wound, the police are called. Sophia Johnson comes to talk to him. What
happened? Does he say I got shot at 313 North 9th because I got
ambushed by drug dealers? No. Does he say he was minding his own
business and just trying to buy a little weed and he got shot for his
troubles? No. Does he tell Sergeant Lipe who’s there to fix – or take the
22

photographs? No. Oh sure he could have been in pain, oh sure, he could
have been medicated, all right, fine. Doesn’t have any trouble talking to
his sister at 10:00. Doesn’t have any trouble talking with her at 3:00.
When you hear this absurd story about why he fled from the hospital.
Addison Burton came. Does he tell Addison Burton this story? No. What
does he do? He wants you to believe that he got a call from his sister,
found out somebody was coming to the hospital to kill him. All right, fine.
So what’s the question there? Why? Why is somebody coming to the
hospital to kill him? More than likely, ladies and gentlemen, that never
happened at all.
(Trial Tr. Vol. VI, at 98, Feb. 13, 2008), ECF No. 9-16, Pg ID 1415. Petitioner contends
that, although the officers’ testimony alone may not have violated his constitutional right
not to have his silence used against him, the prosecutor essentially told the jury that he
had a duty to explain his injury to the officers.
1. Procedural Default
Respondent argues that Petitioner’s claim is procedurally defaulted.

In the

habeas context, a procedural default is “a critical failure to comply with state procedural
law.” Trest v. Cain, 522 U.S. 87, 89 (1997 ). “[A] federal court will not review the merits
of [a state prisoner’s] 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, 566 U.S. 1, __, 132 S. Ct. 1309, 1316 (2012).
Determining whether a habeas petitioner’s claim has been procedurally
defaulted is a four-step inquiry:
First, the court must determine that there is a state
procedural rule that is applicable to the petitioner’s claim and
that petitioner failed to comply with the rule. . . . Second, the
court must decide whether the state courts actually enforced
the state procedural sanction. . . . Third, the court must
decide whether the state procedural ground is an adequate
and independent state ground on which the state can rely to
foreclose review of a federal constitutional claim. . . . Once
23

the court determines that a state procedural rule was not
complied with and that the rule was an adequate and
independent state ground, then the petitioner must
demonstrate . . . that there was cause for him not to follow
the procedural rule and that he was actually prejudiced by
the alleged constitutional error.
Kelly v. Lazaroff, __ F.3d __, __, No. 15-3950, 2017 WL 244069, at *5 (6th Cir. Jan. 20,
2017) (quoting Stone v. Moore, 644 F.3d 342, 346 (6th Cir. 2011) (quoting Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir. 1986)).
2. Application
The state procedural rule in question here is Michigan’s contemporaneousobjection rule, which requires defendants in criminal cases to preserve their claims for
appeal by first making an objection in the trial court. See Carines, 460 Mich. at 764;
597 N.W.2d at 138 (holding that the “plain error” standard for reviewing unpreserved
claims of non-constitutional error applies to unpreserved claims of constitutional error).
Because Petitioner did not object at trial to the comments on his silence, the first
procedural-default factor is satisfied.
To determine whether the state court enforced a state procedural rule, the Court
“look[s] to the last reasoned state court decision” rejecting the claim.

Guilmette v.

Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc). “[A] procedural default does not
bar consideration of a federal claim on either direct or habeas review unless the last
state court rendering a judgment in the case clearly and expressly states that its
judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989)
(internal quotation marks omitted).
The Michigan Court of Appeals was the last state court to adjudicate Petitioner’s
claim in a reasoned opinion, and it pointed out on direct review that Petitioner “did not
24

object to the references at trial.” Isom, 2010 WL 1404430, at *4. The Court of Appeals
referred to Petitioner’s claim as “unpreserved,” and although the Court did not say that it
would review the claim “for plain error,” it did say that “[a] party may not harbor error as
an appellate parachute,” and that “a defendant may not waive objection to an issue
before the trial court and raise it as an error on appeal.” Id. The Court believes that
these remarks constituted enforcement of the contemporaneous-objection rule.
Although the Michigan Court of Appeals also addressed the merits of Petitioner’s
claim,1 this alternative holding “does not require [this Court] to disregard the state
court’s finding of procedural bar.” Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998). As
explained in Harris,
a state court need not fear reaching the merits of a federal claim in an
alternative holding. By its very definition, the adequate and independent
state ground doctrine requires the federal court to honor a state holding
that is a sufficient basis for the state court’s judgment, even when the
state court also relies on federal law. See Fox Film Corp. v. Muller, 296
U.S. 207, 210, 56 S.Ct. 183, 184, 80 L. Ed. 158 (1935). Thus, by applying
this doctrine to habeas cases, [Wainwright v.] Sykes, [433 U.S. 72 (1977)]
curtails reconsideration of the federal issue on federal habeas as long as
the state court explicitly invokes a state procedural bar rule as a separate
basis for decision. In this way, a state court may reach a federal question
without sacrificing its interests in finality, federalism, and comity.
489 U.S. at 264 n.10 (emphasis in original). The Court concludes that the second
procedural-default factor is satisfied.
The third factor is satisfied if the state procedural rule in question is 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
1

The Court of Appeals stated that “[t]he Fifth Amendment does not preclude use of a
defendant’s pre-arrest, pre-Miranda silence,” that “the prosecutor did not improperly
comment on defendant’s pre-Miranda silence, and that Petitioner’s challenge was “not
substantiated by a review of the record.” Isom, 2010 WL 1404430, at *4.
25

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)).
“Michigan’s contemporaneous-objection rule is both a well-established and
normally enforced procedural rule,” Taylor v. McKee, 649 F.3d 446, 451 (6th Cir. 2011),
and the Michigan Court of Appeals relied on the rule to preclude a full review of
Petitioner’s claim. Thus, the third factor is satisfied.
The fourth and final factor is whether Petitioner has shown “cause” for his failure
to object to the claimed errors at trial and resulting prejudice.

Petitioner has not

advanced any argument in support of a finding of “cause and prejudice.” Thus, the
“cause and prejudice” argument is abandoned. Roberts v. Carter, 337 F.3d 609, 613
(6th Cir. 2003) (citing United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000)).
In the absence of “cause and prejudice,” a habeas petitioner can proceed with a
procedurally defaulted claim only if he “demonstrate[s] that failure to consider the claim[]
will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991). “A fundamental miscarriage of justice results from the conviction of
one who is ‘actually innocent.’ ” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006)
(citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To be credible, [a claim of actual
innocence] requires [the] petitioner to support his allegations of constitutional error with
new reliable evidence – whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence – that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995).

26

Petitioner has not produced any new evidence that was not presented at trial.
Therefore, a miscarriage of justice will not occur as a result of the Court’s failure to
address the merits of his claim. All four procedural-default factors have been satisfied.
3. On the Merits
Even if Petitioner’s claim were not procedurally defaulted, the Court finds for the
following reasons that the claim has no merit. Petitioner relies on three Supreme Court
decisions to support his claim: Griffin v. California, 380 U.S. 609 (1965); Miranda v.
Arizona, 384 U.S. 436 (1966); and Doyle v. Ohio, 426 U.S. 610 (1976).
In Griffin, 380 U.S. at 615, the Supreme Court held that “the Fifth Amendment . . .
in its bearing on the States by reason of the Fourteenth Amendment, forbids . . .
comment by the prosecution on the accused’s silence . . . .” In Miranda, the Supreme
Court held, among other things, that:
the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless
it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination. . . . As for the procedural safeguards to
be employed, unless other fully effective means are devised to inform
accused persons of their right of silence and to assure a continuous
opportunity to exercise it, the following measures are required. Prior to any
questioning, the person must be warned that he has a right to remain
silent, that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney, either retained
or appointed.
Miranda, 384 U.S. at 444. Finally, in Doyle, 426 U.S. at 619, the Supreme Court held
“that the use for impeachment purposes of [a] petitioner[’s] silence, at the time of arrest
and after receiving Miranda warnings, violate[s] the Due Process Clause of the
Fourteenth Amendment.”

27

Petitioner had not been arrested and had not been advised of his constitutional
rights when the police questioned him in the hospital concerning what had happened.
Therefore, Miranda and Doyle do not apply here. And even though the Sixth Circuit has
held that “the use of a defendant’s prearrest silence as substantive evidence of guilt
violates the Fifth Amendment’s privilege against self-incrimination,” Combs v. Coyle,
205 F.3d 269, 283 (6th Cir. 2000), the Supreme Court has not addressed the
constitutionality of using a defendant’s pre-Miranda silence as substantive evidence of
guilt. Jones v. Trombley, 307 F. App’x 931, 933 (6th Cir. 2009). In fact, “the Supreme
Court has expressly declined to consider ‘whether or under what circumstances
prearrest silence may be protected by the Fifth Amendment.’ ” Bond v. McQuiggin, 506
F. App’x 493, 498 (6th Cir. 2012) (quoting Jenkins v. Anderson, 447 U.S. 231, 236 n.2
(1980)).
“[C]ircuit precedent does not constitute ‘clearly established Federal law, as
determined by the Supreme Court,’ 28 U.S.C. § 2254(d)(1). It therefore cannot form the
basis for habeas relief under AEDPA.” Parker v. Matthews, 567 U.S. 37, __, 132 S. Ct.
2148, 2155 (2012); see also Hall v. Vasbinder, 563 F.3d 222, 232 (6th Cir. 2009)
(stating that Combs v. Coyle was not controlling because it was decided under a preAEDPA, de novo standard of review). The Court concludes that Petitioner’s claim lacks
merit, in addition to being procedurally defaulted, because the state appellate court’s
rejection of his claim was not contrary to, or an unreasonable application of, any
Supreme Court decision.

28

D. Joinder of Counts (claim five)
Petitioner contends that he was denied a fair trial by the improper joinder of count
seven (attempted robbery of Williams) and count eight (the related felony-firearm
charge) with the other nine counts. Petitioner asserts that what happened to Williams at
1111 Federal Avenue was not evidence of what happened to Eiland at 313 North 9th
Street and, therefore, counts seven and eight were improperly joined with the other
counts.
Petitioner’s claim is based solely on Michigan Court Rule 6.120(B) (the standard
for joinder of offenses), Michigan Court Rule 6.120(C) (the right to separate trials for
unrelated offenses), and state-court decisions. “A federal court may not issue the writ
[of habeas corpus] on the basis of a perceived error of state law.” Pulley v. Harris, 465
U.S. 37, 41 (1984). “In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.”
Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Improper joinder does not, in itself, violate the Constitution. Rather,
misjoinder would rise to the level of a constitutional violation only if it
results in prejudice so great as to deny a defendant his Fifth Amendment
right to a fair trial.
United States v. Lane, 474 U.S. 438, 446 n.8 (1986); see also Coley v. Bagley, 706
F.3d 741, 753–54 (6th Cir. 2013) (citing Lane for the principle that “[m]isjoinder is not
per se unconstitutional, but rises to that level if it results in prejudice so great as to deny
a defendant his due process right to a fair trial”). “[A] risk of undue prejudice exists
whenever joinder of counts permits introduction of evidence of other crimes that would
otherwise be inadmissible.” Davis v. Coyle, 475 F.3d 761, 777 (6th Cir. 2007).

29

Petitioner argues that only unlawful inferences linked the incident on Federal
Avenue with the incident on North 9th Street, but, as the Michigan Court of Appeals
recognized,
it was the prosecution’s theory of the case that defendant and his
associate, Prophet Phillips, engaged in a “mission [ ] to rob drug dealers.”
In the first attempt, the drug dealer refused to open the door. Within a
short time and within a few blocks of the first attempt, a drug dealer was
killed.
Isom, 2010 WL 1404430, at *5. The Court of Appeals concluded that the offenses were
related and “a series of connected acts,” which “occurred in accordance with
defendant’s plan.” Id.
Because the two incidents were related, joining counts seven and eight with the
other charges did not violate Petitioner’s right to due process or a fair trial. Habeas
relief is not warranted on Petitioner’s fifth claim.
E. The Sentencing Guidelines (claim six)
In his sixth claim, Petitioner asserts that the trial court improperly exceeded the
sentencing guidelines for conspiracy to commit armed robbery, for attempted armed
robbery, for felon in possession of a firearm, and for carrying a concealed weapon.
Petitioner also alleges that the trial court relied on erroneous information in formulating
his sentence and thereby violated his right to a fair sentence and due process of law.
The Michigan Court of Appeals rejected Petitioner’s claim on the basis that the
sentencing guidelines had to be calculated for only the most severe crime, which was
second-degree murder. The Court of Appeals concluded that “there was no sentencing
error.” Isom, 2010 WL 1404430, at *5.

30

This Court finds no merit in Petitioner’s claim because it is based on Mich. Comp.
Laws § 769.34(3), which authorizes state courts to depart from sentencing guidelines
only “if the court has a substantial and compelling reason for that departure and states
on the record the reasons for departure.”2 “[F[ederal habeas corpus relief does not lie
for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Consequently, the
contention that the state court violated Michigan law fails to state a claim for which
habeas corpus relief may be granted. Austin v. Jackson, 213 F.3d 298, 300 (6th Cir.
2000).
Although Petitioner contends that the trial court sentenced him on the basis of
inaccurate information in violation of his constitutional right to due process of law, he
has not pointed to any factual or legal errors in scoring the offense and prior-record
variables which were used to calculate the sentencing guidelines. Instead, he simply
maintains that the trial court misunderstood the correct minimum sentencing range for
his crimes. Because this is not a cognizable claim on habeas review, the Court declines
to grant relief on Petitioner’s sentencing claim.
F. Trial Counsel (claim seven)
Petitioner claims that his trial attorney was ineffective for failing to defend the
charges against him on a theory of self defense, for failing to request a jury instruction
on self defense, and for failing to produce, or even consult, an expert witness. Although
Petitioner admits that there was no direct evidence that he acted in self defense, he
2

In 2015, the Michigan Supreme Court struck “down the requirement in MCL 769.34(3)
that a sentencing court that departs from the applicable guidelines range must articulate
a substantial and compelling reason for that departure.” See People v. Lockridge, 498
Mich. 358, 364-65; 870 N.W.2d 502, 506, cert. denied sub nom. Michigan v. Lockridge,
136 S. Ct. 590 (2015).

31

claims that the testimony at trial supported a defense of self defense. He notes that
more than one gun was fired, that he was shot multiple times in the hand, and that
Eiland was shot only one time.

Petitioner also points out that, during his opening

statement, defense counsel stated that Petitioner was caught in an ambush during the
incident (Trial Tr. Vol. II, a.m. session, at 102, Feb. 6, 2008), ECF No. 9-11, Pg ID 893,
and in his closing argument, defense counsel stated: “[I]f he went over there with the
intention to buy drugs and he’s confronted with somebody inside shooting, there’s no
rule that says he can’t defend himself . . . .” (Trial Tr. Vol. VI, at 132, Feb. 13, 2008),
ECF No. 9-16, 1424.

Petitioner claims that, in light of these comments, defense

counsel was obligated to request a jury instruction on self defense. Finally, Petitioner
claims that defense counsel should have consulted an expert witness to undermine the
state’s evidence that the murder was deliberate.
1. Procedural Default
Respondent invokes the procedural-default doctrine in response to Petitioner’s
claim.

The procedural rule in question is Michigan Court Rule 6.508(D)(3), which

generally prohibits a state court from granting relief from judgment if the defendant’s
claim could have been raised on appeal from the conviction and sentence or in a prior
motion. An exception to this rule exists when the defendant demonstrates “good cause”
for the failure to raise the claim on appeal or in a prior motion for relief from judgment
and “actual prejudice from the alleged irregularity that supports the claim for relief.”
Mich. Ct. R. 6.508(D)(3)(a) and 6.508(D)(3)(b).
Petitioner violated Rule 6.508(D)(3) by failing to assert his claim about trial
counsel on direct appeal from his conviction. The last state court to issue a reasoned

32

decision on Petitioner’s claim about trial counsel was the trial court, which clearly and
expressly relied on Rule 6.508(D)(3) to deny relief. The trial court quoted the rule and
then determined that, although Petitioner had satisfied the “actual prejudice”
requirement of the rule, he failed to satisfy the “good cause” requirement. See Isom,
No. 07-028598 FC 4, Op. and Order Denying Post-Appellate Relief, at 3-4 (Saginaw
Cty. Cir. Ct. July 27, 2011), ECF No. 9-20, Pg ID 1522-23.
Rule 6.508(D) was an adequate and independent ground on which the state
court could rely to foreclose review of Petitioner’s federal claim. Howard v. Bouchard,
405 F.3d 459, 477 (6th Cir. 2005) (citing Simpson v. Jones, 238 F.3d 399, 407-08 (6th
Cir. 2000), and Munson v. Kapture, 384 F.3d 310, 315 (6th Cir. 2004)). Therefore,
Petitioner’s claim about trial counsel is procedurally defaulted unless he can establish
“cause” for his default and resulting prejudice or that a miscarriage of justice will occur if
the Court fails to adjudicate his claim.
2. Ineffective Assistance of Appellate Counsel as “Cause”
Petitioner blames his appellate attorney for failing to raise a claim about trial
counsel on direct appeal. He claims that he informed both trial and appellate counsel
that he acted in self-defense, but neither attorney advanced the theory.
Ineffective assistance of counsel that rises to the level of a Sixth Amendment
violation is “cause” for a procedural default. Carrier, 477 U.S. at 488; see also Jalowiec
v. Bradshaw, 657 F.3d 293, 321 (6th Cir. 2011) (stating that an appellate attorney’s
failure “to raise an issue on appeal can amount to constitutionally ineffective
assistance”). But an indigent defendant has no right to have appointed counsel raise
every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). In

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fact, “[e]xperienced advocates since time beyond memory have emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one central
issue if possible, or at most on a few key issues.” Id. at 751–52.
Accordingly, ineffective assistance of appellate counsel claims are
governed by the same Strickland standard as claims of ineffective
assistance of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285, 120
S.Ct. 746, 145 L.Ed.2d 756 (2000). To prevail, [the habeas petitioner]
must show that his counsel’s performance was deficient and that he was
prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice, [the petitioner]
must demonstrate that, but for counsel’s poor performance, “there is a
reasonable probability” the result of his appeal would have been different.
Id. at 694, 104 S.Ct. 2052.
Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010).
An exhibit to Petitioner’s habeas brief consists of his second appellate attorney’s
letter to him on January 9, 2009. In his letter, appellate counsel states that he spoke
with trial counsel about trial counsel’s failure to ask for a jury instruction on self defense
and that trial counsel said he chose not to ask for the instruction because he defended
Petitioner’s case on the basis that Petitioner was not the shooter. Trial counsel thought
that he would lose credibility with the jury if he argued that Petitioner was not the
shooter and even if he was the shooter, he acted in self defense. See Petitioner’s
Memorandum of Law in Support of Pet. for Writ of Habeas Corpus, App. J
(correspondence from appellate counsel Bremer), ECF No. 5, Pg ID 155.
Appellate counsel accordingly chose not to raise an issue about trial counsel in
his appellate brief. He maintained that the state and federal courts would find trial
counsel’s strategy legitimate. Id. Appellate counsel nevertheless gave Petitioner the
option of raising the issue in a pro se supplemental brief. See Isom, No. 07-028598 FC

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4, at 5 (Saginaw Cty. Cir. Ct. July 27, 2011), ECF No. 9-20, Pg ID 1524 (quoting
appellate counsel’s June 4, 2009 letter to Petitioner).
a. Trial Counsel’s Failure to Pursue a Defense of Self Defense
To determine whether appellate counsel’s performance was deficient, the Court
looks to the underlying claim about trial counsel. Trial counsel’s decision not to request
a jury instruction on self defense and not to defend the case on that basis was a
legitimate strategy because a defense theory based on self defense would have
contradicted Petitioner’s defense that he did not shoot Darnell Eiland. It is a permissible
exercise of trial strategy not to request jury instructions on self defense when the
primary line of defense is that the defendant was not the shooter. Tinsley v. Million, 399
F.3d 796, 808 (6th Cir. 2005).
b. Trial Counsel’s Failure to Consult an Expert
Trial counsel’s decision not to consult an expert witness also was reasonable trial
strategy.

Defense counsel competently cross-examined the prosecution’s expert

witnesses, and even though Petitioner alleges that an expert could have shown that the
murder was not deliberate, the prosecutor did not have to prove that Petitioner
deliberated the murder.

For second-degree murder, it was enough to show that

Petitioner intended to do an act in wanton and wilful disregard of the likelihood that the
natural tendency of such behavior was to cause death or great bodily harm. Goecke,
457 Mich. at 464; 579 N.W.2d at 878.
Testimony that Petitioner and Phillips approached a drug house with guns and
that three guns were fired at the house demonstrated that Petitioner acted in wanton
and wilful disregard of the likelihood that the natural tendency of his behavior was to

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cause death or great bodily harm. Petitioner has not alleged what a defense expert
witness could have said or done to rebut this evidence. While it can be assumed in
some cases that counsel was ineffective for failing to consult or rely on experts, there
are
“countless ways to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a particular client in
the same way.” Rare are the situations in which the “wide latitude counsel
must have in making tactical decisions” will be limited to any one
technique or approach.
Richter, 562 U.S. at 106 (quoting Strickland, 466 U.S. at 689).
To summarize, trial counsel’s performance was not deficient.

Therefore,

appellate counsel was not ineffective for failing to raise Petitioner’s claim about trial
counsel on direct appeal.
Appellate counsel cannot be found to be ineffective for “failure to raise an
issue that lacks merit.” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001). Furthermore, the Strickland analysis “does not require an attorney
to raise every non-frivolous issue on appeal.” Caver v. Straub, 349 F.3d
340, 348–49 (6th Cir. 2003).
Shaneberger, 615 F.3d at 452. It follows that appellate counsel was not “cause” for
Petitioner’s procedural default of failing to raise his claim about trial counsel on direct
appeal.
3. Prejudice; Miscarriage of Justice
The Court need not determine whether Petitioner has carried his burden of
showing prejudice from the alleged constitutional error, because he had failed to show
“cause” for his noncompliance with Michigan Court Rule 6.508(D)(3). Smith v. Murray,
477 U.S. 527, 533 (1986). Furthermore, Petitioner has not submitted any new evidence
demonstrating that he is actually innocent of the crimes for which he is incarcerated and

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that the Court’s failure to address his claim on the merits will result in a miscarriage of
justice.
All four elements of the procedural-default doctrine are satisfied.

The Court

therefore declines to address the substantive merits of Petitioner’s claim about trial
counsel.
G. Appellate Counsel (claim eight)
Petitioner raises an independent claim about appellate attorney, stating that
appellate counsel was ineffective because he did not raise a claim about trial counsel’s
ineffectiveness. Petitioner claims that appellate counsel misapprehended the record
and failed to recognize that trial counsel asserted a defense of self defense in his
opening statement and closing argument and yet failed to request a jury instruction on
self defense. Petitioner also claims that appellate counsel impeded his ability to raise
the issue of trial counsel’s ineffectiveness in a pro se supplemental brief by asking
Petitioner for $100.00 to cover the cost of a copy of the transcript of trial.
The last state court to address this claim was the trial court on reconsideration of
its order denying Petitioner’s motion for relief from judgment. The trial court stated that,
although Petitioner’s arguments were persuasive and tended to support his claim that
appellate counsel failed to assist him in raising the self-defense issue on appeal,
Petitioner was not entitled to a jury instruction on self defense, and appellate counsel’s
failure to preserve the issue for appeal was of no consequence. See Isom, No. 07028598 FC 4, at 2-3 (Saginaw Cty. Cir. Ct. Apr. 2, 2012), ECF No. 9-22, Pg ID 1532-33.

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This Court agrees with the trial court’s determination that appellate counsel’s
performance did not prejudice Petitioner. The trial court correctly pointed out that there
was
no direct or circumstantial evidence to support a self-defense claim.
There [were] no eye-witnesses to the shooting. Defendant did not testify
and [thus, there was] no direct evidence of self-defense. Lastly, there is
no indication of a prior altercation or acts of aggression between any of
the concerned actors and the victim. To the contrary, all the evidence
points to the conclusion that Defendant along with co-defendant Prophet
Phillips first attempted to rob Raychan Williams at his home, firing gun
shots in the attempt, and when that failed they decided to rob a nearby
home where Phillips had purchased drugs in the past. In the course of
that robbery either the defendant or Phillips shot and killed Darnell Eiland.
The only mention of self-defense in this case either prior to or at trial is, . .
. two short comments of defense counsel made during his opening and
closing statements. This is hardly a sufficient basis to support giving of a
self-defense instruction . . . .
Id.

Because there was insufficient evidence to support a defense of self defense,

appellate counsel was not ineffective for failing to raise the issue on appeal.
Petitioner nevertheless contends that appellate counsel impeded his ability to
raise the issue in a pro se supplemental brief by asking him for $100.00 to cover the
cost of copying the transcript. However, as the trial court pointed out in one of its
orders, “defendant had access to or was already in possession of his former appellate
counsel’s motion for new trial [regarding trial counsel] and could have easily
incorporated the arguments made therein in any filing he decided to make.” Isom, Op.
and Order Denying Post-Appellate Relief, No. 07-028598 FC 4, at 5 (Saginaw Cty. Cir.
Ct. July 27, 2011), ECF No. 9-20, Pg ID 1524.
The Court concludes that appellate counsel’s failure to raise a claim about trial
counsel not defending the case on a theory of self defense did not constitute deficient
performance, because there was insufficient evidence that Petitioner acted in self
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defense. Furthermore, appellate counsel’s request for money to cover the cost of a
transcript did not prejudice Petitioner, because Petitioner could have raised the issue of
trial counsel’s ineffectiveness without the transcript by using his first appellate attorney’s
brief in support of the motion for new trial. Petitioner’s claim about appellate counsel
fails on the merits.
H. Evidentiary Hearing (claim nine)
In his ninth and final claim, Petitioner alleges that he is entitled to an evidentiary
hearing on his claims about trial and appellate counsel.

Petitioner claims that he

received only a cursory review of his claims in state court and that an evidentiary
hearing is necessary to ascertain why trial counsel did not request a jury instruction on
self defense, did not present a coherent defense, and did not consult an expert witness.
Petitioner claims that an evidentiary hearing also is needed to ascertain why appellate
counsel did not raise an issue about trial counsel’s ineffectiveness in his appellate brief.
This is not a substantive claim, and the Court has already denied Petitioner’s
motion for an evidentiary hearing. See Order Granting Petitioner’s Motion to Amend,
Denying Petitioner’s Motion for Appointment of Counsel, and Denying Petitioner’s
Motion for an Evidentiary Hearing, ECF No. 10. Having subsequently reviewed the
record, the Court finds that an evidentiary hearing is not needed. The Court therefore
denies Petitioner’s request for an evidentiary hearing.
IV. Conclusion
Habeas claims four and seven are procedurally defaulted, and the state courts’
adjudications of the remaining claims on the merits were not contrary to Supreme Court
precedent, an unreasonable application of Supreme Court precedent, or an

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unreasonable determination of the facts. The state-court opinions clearly 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. Denying a Certificate of Appealability;
Granting Leave to Proceed In Forma Pauperis on Appeal
Before Petitioner may appeal this Court’s decision, a district or circuit judge must
issue a certificate of appealability. 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 resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” MillerEl, 537 U.S. at 327.
Reasonable jurists could not disagree with the Court’s resolution of Petitioner’s
constitutional claims, nor conclude that the issues deserve encouragement to proceed
further. The Court therefore declines to issue a certificate of appealability. Petitioner
nevertheless may proceed in forma pauperis on appeal if he appeals this decision
because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).
Dated: February 16, 2017

s/ Sean F. Cox
Sean F. Cox
United States District Judge

I hereby certify that on February 16, 2017, the document above was served on counsel
of record via electronic means and upon Donald Isom via First Class Mail at the address

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below:
Donald Isom 304048
MICHIGAN REFORMATORY
1342 WEST MAIN STREET
IONIA, MI 48846
s/Jennifer McCoy
Case Manager

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