Williams v. Romanowski

Filing 14

OPINION AND ORDER Denying 1 Petition for Writ of Habeas Corpus filed by Spencer Williams. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SPENCER WILLIAMS,
Petitioner,
Civil Number 14-12171
Honorable David M. Lawson

v.
KENNETH ROMANOWSKI,
Respondent.
_____________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Michigan prisoner Spencer Williams has filed a petition for a writ of habeas corpus under
28 U.S.C. § 2254 challenging his convictions for assault with intent to murder, felon in possession
of a firearm, and possession of a firearm during the commission of a felony (felony firearm), after
a bench trial in the Wayne County, Michigan circuit court. He was sentenced to concurrent prison
terms of 18 to 30 years plus a consecutive term of two years. Williams contends that the trial
evidence was insufficient to support his convictions, trial and appellate counsel were ineffective, the
prosecutor committed misconduct, the trial court failed to consider a lesser included offense, and
the bind-over decision was defective. The respondent filed an answer to the petition contending that
it should be denied because the claims lack merit and certain claims are barred by procedural default.
The Court finds that the petitioner’s claims do not warrant federal habeas relief. The Court,
therefore, will deny the petition.
I.
The petitioner’s convictions arise from the non-fatal shooting of Damon Moore outside of
Moore’s residence in Hamtramck, Michigan in October 2009. Before trial, the petitioner was
offered a plea deal in which he could plead guilty to assault with intent to murder and felony firearm

in exchange for the dismissal of other charges, coupled with a sentencing agreement of consecutive
prison terms of 11 to 20 plus two years. Against the advice of counsel, he rejected that offer and
proceeded with a bench trial.
At trial, 31-year-old victim Damon Moore testified that he and the petitioner were like
brothers. The petitioner had dated his cousin and they had known each other for 15 years. He never
had a problem with the petitioner. That changed on October 4, 2009.
That night, Moore went to a party hosted by the petitioner’s cousin, which was only a few
blocks from his house. He was at the party with the petitioner and another man named Mike and
he drank a few beers. At some point, the petitioner asked to borrow his car to go pick up some girls.
Moore let him take the car. The petitioner was gone for several hours, perhaps as long as six hours,
which upset Moore.
When the petitioner returned, the girls were in the backseat. Moore got into his car with the
petitioner, Mike, and the girls and they drove back to Moore’s house sometime after midnight.
Moore went into the house and spoke to his girlfriend. He then went back outside to park his car
in back of the house. As he drove in the alley, the petitioner with Mike and the two girls, now in
the petitioner’s car, followed him. The petitioner flashed his lights. Moore stopped his car and the
petitioner came over and retrieved something from Moore’s car. Moore and the petitioner argued
and tussled in the back of Moore’s car. Mike then grabbed Moore from behind and Moore let the
petitioner go. While Moore continued to tussle with Mike, the petitioner went back to his car.
When Moore next saw him, he was holding a gun, which Moore described as a black and woodgrain
“AK.”

-2-

The petitioner was standing about six feet away when he shot Moore in the right thigh.
Moore fell down. The petitioner walked back and forth and moved closer to Moore until he was
about five feet away. According to Moore, the petitioner looked spaced out and was saying things
like, “I’m gonna start killing mother fucker, mother fucker gonna stop disrespecting me.” The
petitioner then shot Moore again in the calf of the same leg while continuing to mutter to himself.
He then shot Moore a third time above the knee in the same leg.
Moore was surprised by the shooting and thought that the petitioner was going to kill him.
Moore also testified that the petitioner pointed the gun at his chest and tried to fire again, but it did
not fire. While the petitioner was messing with the gun, someone yelled out and threatened to call
the police. Moore yelled at them to take him to the hospital, but the petitioner, Mike, and the girls
left the scene, driving away in both cars. Moore was woozy and next remembered waking up in the
hospital. Moore underwent several surgeries and lost his right leg due to his injuries. Moore spoke
with the police, his girlfriend, and his mother at the hospital and told them that the petitioner was
the person who shot him.
Moore’s girlfriend, 27-year-old Tenisha Lewis, testified that she lived with Moore in the
house where the shooting occurred in October 4, 2009. She recalled that Moore went to a party
hosted by one of the petitioner’s relatives that day and returned home late during the early morning
hours. The petitioner’s car was at the house while Moore was at the party. She spoke with Moore
on the phone around 11:00 a.m. and then spoke to him in person when he came home around 1:00
a.m., although she was not sure of the exact time. When Moore went back outside, she got out of
bed and looked out of the window. She saw Moore get into his car and the petitioner get into his
own car. Moore pulled around to the back and the petitioner followed him. She went back to bed.

-3-

A few minutes later, she heard three gunshots. She called Moore’s brother and told him that she
heard gunshots. The police and an ambulance arrived, as did Moore’s brother. She did not see
Moore’s car outside after the shooting. When she visited Moore in the hospital, he told her who shot
him and she reported it to the police. She did not personally witness the shooting.
Hamtramck Police Officer Robert George testified that he was called to the scene of the
shooting where he found Moore lying in the alley with gunshot wounds to his leg. Moore told him
his name and then fell into unconsciousness. Moore had lost a large amount of blood and his leg
looked mangled. Officer George assisted EMS in transporting Moore to the hospital. When George
returned to the scene of the shooting, he recovered a shell casing that had been hidden in the blood
and two bullets from holes in the asphalt where Moore had been lying on the ground.
The parties stipulated to the admission of Moore’s medical records and stipulated that the
petitioner had prior felony convictions and was not eligible to possess a firearm at the time of the
shooting.
Defense counsel moved for a directed verdict; the motion was denied. The petitioner
presented an alibi defense. Defense counsel indicated that there were three potential alibi witnesses:
the petitioner’s sister, mother, and girlfriend. The petitioner’s sister was not present at trial and his
mother and girlfriend refused to testify. The petitioner, however, testified on his own behalf, stating
that he was 27 years old and admitting that he had prior convictions for theft and dishonesty and had
used aliases in the past. The petitioner acknowledged that he was Moore’s friend, that he had dated
Moore’s cousin, and that he had known him for 15 years. He also admitted that he did not have any
problems with Moore or his girlfriend. The petitioner denied being in the Detroit area when the
shooting occurred and claimed that he was in Saginaw babysitting his sister’s two children at that

-4-

time. He testified that he went to Saginaw on September 23, 2009 where he remained until his arrest
on November 13, 2009. The petitioner theorized that Moore was pinning the shooting on him
because the petitioner knew who committed the crime but refused to tell Moore. The petitioner also
testified that Moore was a gang member who had been on America’s Most Wanted and that Moore
was blaming him for the shooting because he knew about murders that Moore had committed.
The trial court found the petitioner guilty of assault with intent to commit murder, felon in
possession, and felony firearm, explaining:
In reviewing the evidence presented in this matter, I’ve considered most significantly
the testimony of Damon Moore and that testimony that I found to be important and
to be credible was Mr. Moore’s testimony that the Defendant borrowed his vehicle,
that that was at a party on October 4th, 2009, that was a family member of the
Defendant. Mr. Moore described it as his cousin’s. And that was a 2002 Cadillac
that was borrowed and the purpose of borrowing the car was that he was going to —
Mr. Williams was going to find some women to bring back to the party.
Mr. Moore testified that he drank some beers at the party and that he initially said no
to borrowing the car but eventually allowed Mr. Williams to borrow the car. And at
one point, after several hours, he called Mr. Williams and Mr. Williams indicated
he’d come back and he didn’t but he did eventually come back with two girls in the
back seat.
That eventually they left the party, went back to Mr. Moore’s house on Lumpkin and
that was also the home of Tenisha Lewis. And that Mr. Moore indicated that he went
inside and spoke to Ms. Lewis and when he came back out, he got in his vehicle and
was going to pull it around to the back of the alley where he was going to park it, but
that the lights were flashed on the car that Mr. Williams was driving. Then he
stopped and got out of the vehicle and that’s when the fight ensued. He called it a
tussle between himself and Mr. Williams. And that that tussle lasted for a short
while and that when that broke up, I think my recollection of the testimony was it
broke up in part because this individual who was identified as Mike, and say for the
record that Mr. Moore testified that he didn’t know Mike’s last name. He said he
thought it might be Mike Johnson, but wasn’t sure what his name — but Mike
grabbed him around the neck and they began to tussle and it was at that point that he
noticed that Mr. Williams had got a gun, which he identified as an AK-47, was
pointing it at him and he said that he was pointing it at the area between his stomach
and his leg and he was about six feet away pointing the gun at him.

-5-

And at that point, he says he was shot by Mr. Williams in the right thigh, at which
point, he fell to the ground, as he said, on his butt and his legs separated. And he
indicated that at that point, the Defendant was walking back and forth about five feet
away. And as he indicated in his testimony, looking spaced out and saying things
like motherfucker gonna start (as spoken) disrespecting me. And at which point, he
shot him again, this time in the lower leg, in the calf area. And again, he, Mr. Moore,
indicated that the Defendant appeared to be talking to himself and then shot him in
the leg a little above the knee and Mr. Moore indicated he thought he was going to
die. And at that point, he says he heard the Defendant say, “It’s time for
motherfuckers to die.” And at that point, the — he said the Defendant, Mr.
Williams, was pointing the gun at his chest. He tried to shoot the gun and he says
he was about five feet away and the gun wouldn’t fire. He heard some — and he said
specifically he saw him pulling on the trigger of the gun but it wouldn’t fire.
At that point he heard someone hollering, someone in the neighborhood. And Mr.
Moore says I kept telling him to take me to the hospital. At that point, he says the
Defendant and Mike and the two girls who were in the car drove away. And he was
left there bleeding profusely from his right leg. I found his testimony to be credible,
with respect to what occurred.
I also found the testimony of Tenisha Lewis to be credible. And in specific, her
testimony that Damon Moore did in fact drive a black Cadillac Deville and more
specifically what I found to be credible was that she saw Spencer Williams late that
night or early morning when Damon Moore came back. She talked with him and
then she looked out the window and she saw both Damon Moore and Spencer
Williams out in front of the house and that they then — the last she saw of them the
cars were driving around the corner and the next thing she knows, she heard the three
shots. She went out and looked in the back alley and didn’t see anything and went
back in and called Damon’s brother and then shortly after that she learned from the
police that someone had been shot and she proceeded to Detroit Receiving Hospital
where she found out in fact that it was Damon Moore that had been shot. And she
did indicate that there were three shots that she heard, which was consistent with the
testimony of Mr. Moore.
I’ll also point out that the testimony from Police Officer Robert George I found to
be credible. That in particular what I thought was interesting was that he found two
bullets in the asphalt, which would indicate to me, the consistency in terms of the
testimony from Mr. Moore that he was shot twice in the leg when he was laying
down after he had been shot the first time and fell down. So I think it adds to the
credibility and consistency of the testimony from Mr. Moore.
Now I’ve also considered the testimony of the one defense witness, that being the
Defendant himself, Mr. Williams. I find Mr. Williams’ testimony to be less than
credible. I’ve taken into consideration the fact that as indicated in his cross-6-

examination, he has used other names such as John Jackson and Robert Jackson. He
has two prior convictions that relate to theft or dishonesty: one stealing from a mall,
another regarding a sticker, an illegal sticker, that was used for his vehicle. And this
indicates to me a pattern of less than honesty in terms of his characteristics.
But perhaps what is the most compelling thing about the testimony is I tried to get
a better understanding of, in terms of — Mr. Williams’ testimony was that he was
being falsely accused by Mr. Moore because he was on America’s Most Wanted and
he was a gang member himself. But I just — I saw no connection between that and
why he’d single out Mr. Williams. He was asked specifically by the prosecution,
was there any beef between you. No, there was no beef. There was no beef between
him and Ms. Lewis [sic]. So the whole concept of just blindly picking Mr. Williams
as the person he’s going to accuse for someone else committing this terrible act to
him that nearly killed him and caused him to lose his leg, just didn’t add up and
didn’t make sense to me. And as I indicated, I found it less than credible.
I find the testimony, with respect to not only the fact that he was shot terribly three
times in the leg and left bleeding at that point, but also the testimony regarding the
fact that he attempted to shoot him in the chest and made the statement regarding that
it was time for him to die, to be credible. And it’s on that basis that I find Mr.
Williams guilty of Count 1, assault with intent to murder. Because Counts 2 and 3
were pled in the alternative, I am not ruling on those since I found him guilty of the
more serious offense of assault with intent to murder.
I also find him guilty on Count 4, weapons, firearm possession by a felon. There was
a stipulation as to a prior felony conviction.
...
I find him guilty of Count 5, felony firearm because I find that he did have
possession of an assault rifle at the time of the shooting of Mr. Moore and therefore
guilty of felony firearm.
Trial Tr. at 103-09 (Mar. 24, 2010) (some punctuation and grammar corrected for clarity). The trial
court subsequently sentenced the petitioner to the concurrent prison terms noted earlier.
The petitioner filed a direct appeal in the Michigan Court of Appeals raising claims
concerning the sufficiency of the evidence and newly-discovered evidence. The court denied relief
on those claims and affirmed his convictions. People v. Williams, No. 297732, 2011 WL 2859296
(Mich. Ct. App. July 19, 2011). The Michigan Supreme Court denied the petitioner’s application
for leave to appeal. People v. Williams, 490 Mich. 1003, 807 N.W.2d 317 (2012).
-7-

The petitioner filed a motion for relief from judgment in the trial court raising claims
concerning the sufficiency of the evidence, newly-discovered evidence, the effectiveness of trial and
appellate counsel, the conduct of the prosecutor, the failure to consider a lesser included offense, the
bind-over decision, and the validity of his sentence. The trial court denied relief, finding that the
claims that had previously been raised and denied on direct appeal were barred by Michigan Court
Rule 6.508(D)(2), the remaining claims were barred by Michigan Court Rule 6.508(D)(3) because
the petitioner failed to establish good cause for failing to raise those claims on direct appeal, and
those remaining claims also lacked merit. People v. Williams, No. 09-029211-01 (Wayne Co. Cir.
Ct. Jan. 22, 2013). The Michigan Court of Appeals denied the petitioner’s delayed application for
leave to appeal because he failed to establish entitlement to relief under Michigan Court Rule
6.508(D). People v. Williams, No. 314833 (Mich. Ct. App. Oct. 8, 2013). The Michigan Supreme
Court denied his ensuing application for leave to appeal. People v. Williams, 495 Mich. 978, 843
N.W.2d 763 (2014).
The petitioner thereafter filed his federal habeas corpus petition, in which he raises the
following claims:
I.

He was deprived of his Fifth and Fourteenth Amendment rights based upon
insufficient evidence to support the verdict.

II.

He is entitled to an evidentiary hearing or new trial based upon newlydiscovered evidence.

III.

He was deprived of his Sixth Amendment right based upon ineffective
assistance of trial counsel.

IV.

He was deprived of his Sixth Amendment right based upon ineffective
assistance of appellate counsel.

V.

He was deprived of his Fifth and Fourteenth Amendment rights based upon
prejudicial prosecutorial remarks.
-8-

VI.

He was deprived of his Fifth and Fourteenth Amendment rights based upon
the prosecutor’s and the trial court’s failure to consider the lesser included
offense of assault with intent to do great bodily harm less than murder.

VII.

He was deprived of his Fifth and Fourteenth Amendment rights based upon
the bind-over decision. The Michigan Court of Appeals abused its discretion
by denying his motion for remand to the trial court based upon new evidence.

The respondent opposes the petition contending that the claims lack merit, that certain claims are
barred by procedural default, and that habeas relief is not warranted.
The “procedural default” argument is a reference to the rule that the petitioner must preserve
properly some of his claims in state court, and the state court’s denial of those claims because he did
not follow the correct procedure to raise them is an adequate and independent ground for the denial
of relief under state law, which is not reviewable here. Coleman v. Thompson, 501 U.S. 722, 750
(1991). The Court finds it unnecessary to address this procedural question. It is not a jurisdictional
bar to review of the merits, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and “federal
courts are not required to address a procedural-default issue before deciding against the petitioner
on the merits,” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary,
520 U.S. 518, 525 (1997)). The procedural defense will not affect the outcome of this case, and it
is more efficient to proceed directly to the merits.
II.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the
standard of review federal courts must apply when considering an application for a writ of habeas
corpus raising constitutional claims, including claims of ineffective assistance of counsel. See
Wiggins v. Smith, 539 U.S. 510, 520 (2003). Because Williams filed his petition after the AEDPA’s

-9-

effective date, its standard of review applies. Under that statute, if a claim was adjudicated on the
merits in state court, a federal court may grant relief only if the state court’s adjudication “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 if the adjudication
“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)(1)-(2). “Clearly established
Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions.” White v. Woodall, --- U.S. ---, 134 S. Ct. 1697, 1702 (2014) (internal
quotation marks and citations omitted). “As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S.
86, 103 (2011).
The distinction between mere error and an objectively unreasonable application of Supreme
Court precedent creates a substantially higher threshold for obtaining relief than de novo review.
The AEDPA thus imposes a highly deferential standard for evaluating state-court rulings, and
demands that state-court decisions be “given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766,
773 (2010) (finding that the state court’s rapid declaration of a mistrial on grounds of jury deadlock
was not unreasonable even where “the jury only deliberated for four hours, its notes were arguably
ambiguous, the trial judge’s initial question to the foreperson was imprecise, and the judge neither
asked for elaboration of the foreperson’s answers nor took any other measures to confirm the
foreperson’s prediction that a unanimous verdict would not be reached” (internal quotation marks

-10-

and citations omitted)); see also Leonard v. Warden, Ohio State Penitentiary, 846 F.3d 832, 841 (6th
Cir. 2017); Dewald v. Wriggelsworth, 748 F.3d 295, 298-99 (6th Cir. 2014); Bray v. Andrews, 640
F.3d 731, 737-39 (6th Cir. 2011); Phillips v. Bradshaw, 607 F.3d 199, 205 (6th Cir. 2010); Murphy
v. Ohio, 551 F.3d 485, 493-94 (6th Cir. 2009); Rockwell v. Yukins, 341 F.3d 507, 511 (6th Cir. 2003)
(en banc). Moreover, habeas review is “limited to the record that was before the state court.”
Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
A.
The petitioner first contends that the prosecution presented insufficient evidence to support
his convictions, because it failed to present sufficient evidence of his identity as the perpetrator and
his intent to kill the victim.
It is beyond question 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). But the critical inquiry on review
of the sufficiency of the evidence to support a criminal conviction is, “whether the record evidence
could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 318 (1979). This inquiry, however, “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.” Id. at 318-19 (citation and footnote omitted).
More importantly, a federal habeas court may not overturn a state court decision that rejects
a sufficiency of the evidence claim simply because the federal court disagrees with the state court’s

-11-

resolution of that claim. Instead, a federal court may grant habeas relief only if the state court
decision was an objectively unreasonable application of the Jackson standard. Cavazos v. Smith,
565 U.S. 1, 2-3 (2011). “Because rational people can sometimes disagree, the inevitable
consequence of this settled law is that judges will sometimes encounter convictions that they believe
to be mistaken, but that they must nonetheless uphold.” Id. at 4. Indeed, for a federal habeas court
reviewing a state court conviction, “the only question under Jackson is whether that finding was so
insupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650,
---, 132 S. Ct. 2060, 2065 (2012).
Under Michigan law, the elements of assault with intent to commit murder are: “(1) an
assault, (2) with an actual intent to kill, (3) which if successful, would make the killing murder.”
Warren v. Smith, 161 F.3d 358, 361 (6th Cir. 1998) (citing Michigan law); People v. Ericksen, 288
Mich. App. 192, 195, 793 N.W.2d 120 (2010); Mich. Comp. Laws § 750.83. The elements of felon
in possession are: (1) the defendant was convicted of a felony, (2) the defendant possessed a
firearm, and (3) at the time of possession less than three or five years, depending on the underlying
felony, has passed since the defendant completed his term of incarceration, satisfied all conditions
of probation and parole, and paid all fines. People v. Perkins, 262 Mich. App. 267, 269, 686 N.W.2d
237 (2004), aff ‘d 473 Mich. 626, 703 N.W.2d 448 (2005) abrogated on other grounds by People
v. Smith-Anthony, 494 Mich. 669, 837 N.W.2d 415 (2013); Mich. Comp. Laws § 750.224f. The
elements of felony firearm are: (1) the defendant possessed a firearm, (2) during the commission
of, or an attempt to commit, a felony offense. People v. Akins, 259 Mich. App. 545, 554, 675
N.W.2d 863 (2003) (quoting People v. Avant, 235 Mich. App. 499, 505, 597 N.W.2d 864 (1999));
Mich. Comp. Laws § 750.227b.

-12-

Additionally, the prosecution must prove beyond a reasonable doubt that the defendant
committed the charged offense. People v. Oliphant, 399 Mich. 472, 489, 250 N.W.2d 443 (1976);
People v. Yost, 278 Mich. App. 341, 356, 749 N.W.2d 753 (2008); People v. Kern, 6 Mich. App.
406, 409, 149 N.W.2d 216 (1967). Direct or circumstantial evidence and reasonable inferences
arising from that evidence may constitute satisfactory proof of the elements of an offense, People
v. Nowack, 462 Mich. 392, 399-400, 614 N.W.2d 78 (2000); People v. Jolly, 442 Mich. 458, 466,
502 N.W.2d 177 (1993), including the identity of the perpetrator, Dell v. Straub, 194 F. Supp. 2d
629, 647 (E.D. Mich. 2002); Kern, 6 Mich. App. at 409, and intent or state of mind. People v.
Dumas, 454 Mich. 390, 398, 563 N.W.2d 31 (1997). The use of a lethal weapon supports an
inference of an intent to kill. People v. Turner, 62 Mich. App. 467, 470, 233 N.W.2d 617 (1975).
The Michigan Court of Appeals considered this claim on direct appeal and denied relief. The
court explained:
Defendant first claims that the evidence of his identity as the shooter was not proven
beyond a reasonable doubt. He specifically challenges Damon Moore’s
identification of defendant as the shooter and Moore’s credibility as a witness.
Identity is an essential element in every criminal prosecution. People v. Yost, 278
Mich App 341, 356; 749 NW2d 753 (2008), citing People v. Oliphant, 399 Mich
472, 489; 250 NW2d 443 (1976). The prosecution must present sufficient evidence
to prove beyond a reasonable doubt the identity of the defendant as the perpetrator
of the charged offense. People v. Kern, 6 Mich App 406, 409-410; 149 NW2d 216
(1967). Positive identification by a witness may be sufficient to support a conviction
of a crime. People v. Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000).
Further, “[t]he credibility of identification testimony is a question for the trier of fact
that we do not resolve anew.” Id.
Viewing the evidence in the light most favorable to the prosecution, there was
sufficient evidence that defendant was the perpetrator of the charged offense. Moore
testified that he knew defendant for some 15 years, and the two men were like
brothers. He asserted that, on October 4, 2009, he saw defendant holding a gun, and
defendant subsequently pointed the gun at him. Defendant was approximately six
feet from Moore. Moore testified that defendant then shot him three times in the leg.
Defendant then attempted to shoot Moore a fourth time, in the chest, but the gun
-13-

malfunctioned. On cross-examination, Moore emphasized that he was positive that
defendant was the person that pulled the trigger and shot him. Moore’s unwavering
testimony that defendant was the person who shot him was clear and positive.
Moore’s testimony, alone, is sufficient evidence to establish defendant’s
identification as the perpetrator of the crime. Davis, 241 Mich App at 700.
In light of defendant’s testimony and argument that he was not present at the time of
the shooting, defendant challenges the credibility of Moore’s testimony. The
question whether defendant was present and the perpetrator of the charged offense
was entirely dependent on resolution of the conflicting testimony offered by Moore
and defendant at trial. This resolution was wholly within the province of the trier of
fact, which plainly found Moore’s testimony more credible than defendant’s
testimony. Absent clear error, which we do not find, this Court will not interfere
with the trier of fact’s role in determining the credibility of the witnesses or the
weight of the evidence. See People v. Williams, 268 Mich App 416, 419; 707 NW2d
624 (2005). Moore’s testimony was sufficient to identify defendant as the shooter
beyond a reasonable doubt.
Second, defendant disputes the sufficiency of the evidence supporting the mens rea
element of the offense that he possessed the intent to kill Moore. “Because of the
difficulty of proving an actor’s state of mind, minimal circumstantial evidence is
sufficient to establish a defendant’s intent to kill.” People v. Unger (On Remand),
278 Mich App 210, 223; 749 NW2d 272 (2008). That is, circumstantial evidence
and reasonable inferences arising from the evidence may constitute satisfactory proof
of the elements of assault with intent to commit murder. People v. Warren, 200
Mich App 586, 588; 504 NW2d 907 (1993).
The evidence adequately established that defendant assaulted Moore with the
requisite intent to commit murder. Moore testified that defendant walked over to
defendant’s vehicle and retrieved a gun. Defendant stood in front of Moore,
approximately six feet away, and pointed the gun at Moore. Defendant then fired the
gun, shooting Moore in the right thigh. Moore collapsed to the ground. Moore
testified that defendant then walked closer to Moore and began pacing back and
forth, grumbling, “I’m gonna [sic] start killing mother fucker, mother fucker gonna
[sic] stop disrespecting me.” According to Moore, defendant shot him again in his
right calf. Defendant continued to pace back and forth and continued to mutter that
he was going to kill Moore for disrespecting him. Defendant then shot Moore a third
time in the same leg. Moore testified that defendant raised the gun and pointed it at
his chest. Defendant then uttered, “it’s time for mother fuckers to die,” and pulled the
trigger. However, the gun malfunctioned and did not discharge a fourth time.
The testimony that defendant employed a dangerous weapon like a gun to fire
multiple gunshots at Moore from close proximity, and then approached Moore to fire
an additional shot to his chest as he lay on the ground, gives rise to a reasonable
-14-

inference that defendant intended to kill Moore. People v. Davis, 216 Mich App 47,
53; 549 NW2d 1 (1996) (affirming the defendant’s assault with intent to murder
conviction on the basis of testimony that the defendant “pointed a pistol at [the
victim], warned him not to come any closer or he would kill him, and pulled the
trigger several times (but no bullets fired)”). Further, defendant’s statement, that
“it’s time for mother fuckers to die,” followed by defendant’s attempt to discharge
the gun also gives rise to a reasonable inference that defendant intended to kill
Moore. Thus, the evidence amply supported the trial court’s determination beyond
a reasonable doubt that defendant assaulted Moore with the intent to murder him.
Williams, 2011 WL 2859296 at *1-2.
This reasoning is unassailable. The court’s decision certainly is neither contrary to Supreme
Court precedent nor an unreasonable application of Supreme Court precedent or determination of
the facts. Damon Moore’s testimony, if believed, provided sufficient evidence of the petitioner’s
guilt. A victim’s testimony alone can be constitutionally sufficient to sustain a conviction. See
Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir. 2008) (citing cases). Additionally, the prosecution
presented testimony from the victim’s girlfriend which corroborated the victim’s testimony that he
was with the petitioner on the night of the shooting and contradicted the petitioner’s alibi defense.
Such evidence was sufficient to support the petitioner’s convictions.
The petitioner challenges the credibility of the witnesses and the trial court’s evaluation of
the evidence presented at trial. However, attacks on witness credibility are simply challenges to the
quality of the prosecution’s evidence, and not to the sufficiency of the evidence. Martin v. Mitchell,
280 F. 3d 594, 618 (6th Cir. 2002). An assessment of the credibility of witnesses is generally
beyond the scope of federal habeas review of sufficiency of evidence claims. Moreland v.
Bradshaw, 699 F.3d 908, 918 (6th Cir. 2012) (citing Brooks v. Tennessee, 626 F.3d 878, 899 (6th
Cir. 2010) (Daughtrey, J., concurring)).

-15-

On habeas review, a federal court does not reweigh the evidence or redetermine the
credibility of the witnesses whose demeanor was observed at trial. Marshall v. Lonberger, 459 U.S.
422, 434 (1983). It is for the fact finder to weigh the probative value of the evidence and resolve
any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). A habeas court
therefore must defer to the fact finder for its assessment of the credibility of witnesses. Matthews
v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003).
The evidence presented at trial, viewed in a light favorable to the prosecution, established
beyond a reasonable doubt that the petitioner committed the crimes of which he was convicted and
that he acted with the requisite intent. Habeas relief is not warranted on this claim.
B.
The petitioner next asserts that he is entitled to habeas relief based upon newly-discovered
evidence, consisting of a post-trial telephone conversation between the defendant and the victim on
which the victim doubted that the petitioner intended to kill him when he fired the rifle. The
Michigan Court of Appeals rejected that claim, explaining:
Defendant next argues that he is entitled to a new trial based on newly discovered
evidence. We disagree. Defendant failed to preserve this issue by moving for a new
trial in the trial court, therefore, this Court reviews this unpreserved issue for plain
error affecting substantial rights. People v. Carines, 460 Mich 750, 764; 597 NW2d
130 (1999); People v. Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008).
A new trial may be granted on the basis of newly discovered evidence if a defendant
shows that: “(1) the evidence itself, not merely its materiality, was newly discovered;
(2) the newly discovered evidence was not cumulative; (3) the party could not, using
reasonable diligence, have discovered and produced the evidence at trial; and (4) the
new evidence makes a different result probable on retrial.” People v. Cress, 468
Mich 678, 692; 664 NW2d 174 (2003) (citations and quotation marks omitted).
“However, where newly discovered evidence takes the form of recantation
testimony, it is traditionally regarded as suspect and untrustworthy.” People v.
Canter, 197 Mich App 550, 559; 496 NW2d 336 (1992). As a result, courts are
reluctant to grant new trials based on recanting testimony. Id. Additionally, newly
-16-

discovered evidence is not a ground for a new trial where it would merely be used
for impeachment purposes, People v. Davis, 199 Mich App 502, 516; 503 NW2d 457
(1993), and conflicting testimony or a question regarding the credibility of a witness
are not sufficient grounds for granting a new trial, People v. Lemmon, 456 Mich 625,
634–635; 576 NW2d 129 (1998).
The newly discovered evidence presented by defendant in this case consists of a
purported jailhouse telephone conversation between Moore and defendant. In the
conversation, Moore told defendant that defendant had not intentionally shot Moore
because defendant was not looking at Moore at the time defendant discharged the
gun. Moore’s subsequent statements do not establish that defendant is entitled to a
new trial. Moore’s statements, in the alleged jailhouse telephone conversation, are
a partial recantation of his trial testimony and are inherently suspect and
untrustworthy for three reasons. First, in light of the evidence at trial, Moore’s
statements create an incredible picture of the shooting. It is not plausible that
defendant discharged a gun multiple times towards the ground, while pacing back
and forth and without looking at where he was shooting, and coincidently shot
Moore three times in the same leg. Second, Moore’s alleged statements fail to
explain defendant’s statements during the incident regarding killing somebody.
Third, the supposition that all three shots to Moore’s leg were accidental does not
explain why defendant then took Moore’s vehicle and left him behind bleeding
profusely. It defies sense to suppose that defendant failed to notice Moore’s wounds;
otherwise, defendant would have had no reason to flee the scene of what was
supposedly an accident rather than take Moore to a hospital.
In addition to being simply incredible, Moore’s purported statements do not suggest
a different result at trial, and the fact that his purported jailhouse statements impeach
part of his testimony is insufficient. In sum, the record does not show that Moore’s
purported statements would make a different result probable on retrial, so defendant
has failed to establish plain error affecting his substantial rights.
Williams, 2011 WL 2859296 at *3-4.
This decision is neither contrary to Supreme Court precedent nor an unreasonable application
of Supreme Court precedent or determination of the facts. Claims of actual innocence based on
newly-discovered evidence “have never been held to state 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). “[F]ederal habeas courts sit to ensure that individuals
are not imprisoned in violation of the Constitution — not to correct errors of fact.” Ibid.
-17-

The Sixth Circuit has held that a free-standing claim of actual innocence based upon newly
discovered evidence does not warrant federal habeas relief. Wright v. Stegall, 247 F. App’x 709,
711 (6th Cir. 2007) (“Since the Supreme Court has declined to recognize a freestanding innocence
claim in habeas corpus, outside the death-penalty context, this court finds that [Petitioner] is not
entitled to relief under available Supreme Court precedent.”) (citing House v. Bell, 547 U.S. 518,
554-55 (2006); Herrera, 506 U.S. at 417); see also Cress v. Palmer, 484 F.3d 844, 854–55 (6th Cir.
2007); Sitto v. Lafler, 279 F. App’x 381, 381-82 (6th Cir. 2008) (affirming denial of habeas relief
on similar claim).
Moreover, the “new” evidence here does not undermine the trial evidence or cast doubt upon
the validity or accuracy of the verdict. Habeas relief is not warranted on this claim.
C.
The petitioner next asserts that he is entitled to habeas relief because pretrial and trial counsel
were ineffective. He argues that pretrial counsel failed to file pretrial motions to suppress his prior
convictions, to quash the assault with intent to murder charge, and to suppress based upon an illegal
arrest, and for advising him that he could not be convicted of assault with intent to murder. He
contends that trial counsel was ineffective by admitting his guilt during trial, failing to request a
continuance due to not being prepared, failing to investigate the victim, intimidating the alibi
witnesses, failing to request a continuance to prepare for a surprise witness, failing to raise an
intoxication defense, failing to object to the prosecutor’s conduct, failing to request a continuance
to call a medical expert, failing to file a motion for new trial based upon newly-discovered evidence,
and giving bad advice about the waiver of his jury trial rights.

-18-

A violation of the Sixth Amendment right to effective assistance of counsel is established
when an attorney’s performance was deficient and the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is deficient if
“counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. The
petitioner must show “that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. “Judicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689. The Supreme Court has “declined
to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that
the proper measure of attorney performance remains simply reasonableness under prevailing
professional norms.” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688) (internal
quotation marks omitted).
An attorney’s deficient performance is prejudicial if “counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
The petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. Unless a defendant demonstrates
both deficient performance and prejudice, “it cannot be said that the conviction resulted from a
breakdown in the adversary process that renders the result unreliable.” Id. at 687.
Success on ineffective-assistance-of-counsel claims is relatively rare, because the standard
for obtaining habeas corpus relief is “‘difficult to meet.’” White v. Woodall, 572 U.S. ---, ---, 134
S. Ct. 1697, 1702 (2014) (quoting Metrish v. Lancaster, 569 U.S. ---, ---, 133 S. Ct. 1781, 1786
(2013)). The standard is “all the more difficult” on habeas corpus review because “[t]he standards

-19-

created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem,
review is doubly so.” Richter, 562 U.S. at 105 (citations and quotation marks omitted). “[T]he
question is not whether counsel’ actions were reasonable,” but whether “there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Ibid.
On collateral review, the trial court determined that this claim lacked merit. Citing the
Strickland standard and noting the deference accorded trial counsel on matters of trial strategy, the
court concluded: “Notwithstanding the laundry list of contentions that defendant raises, the court
is simply not convinced that the performance of either of defendant’s trial attorneys was so lacking
to support a claim of ineffective assistance of counsel as established in Strickland.” Op. of Trial Ct.
at 4-7 (Jan. 22, 2013). The Michigan appellate courts denied leave to appeal.
The state courts’ denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The petitioner fails to establish that pretrial
counsel was ineffective. A motion to suppress the petitioner’s prior convictions would have been
folly because the petitioner’s false certification conviction, as a crime of theft or dishonesty, could
be used to impeach him under the Michigan Rules of Evidence, see Mich. R. Evid. 609(a)(1), and
his prior drug conviction was admissible to prove the felon in possession charge. See Coley v.
Bagley, 706 F.3d 741, 752 (6th Cir. 2014) (“Omitting meritless arguments is neither professionally
unreasonable nor prejudicial.”); United States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000).
Pretrial counsel also had no basis for moving to quash the assault with intent to murder charge in
light of the victim’s preliminary examination testimony that the petitioner shot him in the leg three
times, threatened to kill him, and attempted to shoot a fourth time while pointing the gun at his chest.
See Prelim. Exam. Tr. pp. 16-26 (Nov. 25, 2009). The petitioner also provides no facts to support

-20-

his argument that pretrial counsel had a basis to challenge the legality of his arrest. It is well-settled
that conclusory allegations, without evidentiary support, are insufficient to warrant habeas relief.
See Cross v. Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007); Workman v. Bell, 178 F.3d 759, 771
(6th Cir. 1998) (conclusory allegations of ineffective assistance of counsel do not justify habeas
relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions and
conclusory allegations do not provide sufficient basis for an evidentiary hearing in habeas
proceedings). Moreover, the petitioner has not shown that any of the pretrial motions would have
been successful. Therefore, he has not carried his burden of showing that prejudice resulted from
pretrial counsel’s conduct in this regard.
The petitioner asserts that pretrial counsel told him that he could not be convicted of assault
with intent to murder because he shot the victim below the waist (in the leg) and that, based upon
such advice, he rejected the plea offer, which included a sentencing cap. However, the petitioner
has not offered evidence that any such conversation even occurred. Moreover, the record indicates
that pretrial counsel was replaced by trial counsel more than 30 days before trial, see Motion Tr. at.
3 (Feb. 18, 2010), that trial counsel and the parties discussed the plea offer on the record, see Trial
Tr. at 3-6 (Mar. 24, 2010), and that trial counsel and the petitioner’s family thought the offer was
a good one, but the petitioner nonetheless maintained his innocence and rejected it. Ibid. The
petitioner has not argued that his trial lawyer gave him bad advice on his prospects of acquittal or
that he gave the petitioner bad advice. He has not shown prejudice, even assuming that pretrial
counsel misinformed him.
The petitioner also contends that trial counsel was ineffective when he admitted guilt before
trial, but that argument is belied by the record. There is no record before this Court of any such

-21-

admission by counsel in the state court. Counsel did say that he thought the prosecution’s plea offer
was a good one in light of the possible sentences the petitioner faced upon conviction. See id. at 4-6.
But that did not amount to trial evidence; the trial court is presumed to know the law and, as the trier
of fact, only to rely upon the evidence at trial in reaching a verdict. See Moreland v. Bradshaw, 699
F.3d 908, 927 (6th Cir. 2012) (citing Lambrix v. Singletary, 520 U.S. 518, 532 n.4, (1997); Smith
v. Mitchell, 348 F.3d 177, 213 (6th Cir.2003)).
The petitioner has not shown that trial counsel performed deficiently by failing to request
a continuance to prepare for trial due to a surprise witness, or to consult a medical expert. The
record indicates that counsel had at least 30 days to prepare for trial, he obtained discovery, he
reviewed the preliminary examination, and he was ready to proceed to trial. See Motion hrg at 3-4
(Feb. 18, 2010). The record does not suggest that counsel was unprepared for the one-day bench
trial or that additional preparation would have benefitted the defense. The record similarly does not
support the petitioner’s claim that a continuance was warranted due to a surprise witness. Tenisha
Lewis was on the prosecution’s witness list and was not a surprise. Furthermore, the record
indicates that trial counsel cross-examined Lewis at trial and confirmed that she did not witness the
shooting. See Trial Tr. at 60 (Mar. 24, 2010). There is no evidence here that additional preparation
would have benefitted defense counsel’s confrontation of this witness.
The petitioner has offered nothing to substantiate his argument that a continuance was
needed for a medical expert to testify about Damon Moore’s injuries. Moore testified that he was
shot three times in one leg and that the leg had to be amputated as a result. The parties stipulated
to the admission of his medical records. The extent of Moore’s injuries was not a disputed issue at
trial and the petitioner has not explained how a medical expert would have benefitted his defense.

-22-

The same can be said of the argument that trial counsel should have investigated Moore. It
is well-settled that defense counsel must conduct a reasonable investigation into the facts of a
defendant’s case, or make a reasonable determination that such investigation is unnecessary.
Wiggins, 539 U.S. at 522-23; Strickland, 466 U.S. at 691; Stewart v Wolfenbarger, 468 F.3d 338,
356 (6th Cir. 2007); Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). The duty to investigate
“includes the obligation to investigate all witnesses who may have information concerning . . . guilt
or innocence.” Towns, 395 F.3d at 258. In this case, the record reveals that trial counsel conducted
a reasonable investigation into Moore’s background by reviewing the discovery and preliminary
examination materials.

Additionally, trial counsel cross-examined Moore and included the

petitioner’s questions in doing so. The petitioner has offered not facts to show what trial counsel
would have discovered upon further investigation. His conclusory allegations are insufficient to
justify habeas relief.
The petitioner contends that trial counsel intimidated the alibi witnesses, but the record does
not show that. Rather, the record indicates that trial counsel was aware before trial of three potential
alibi witnesses: the petitioner’s sister, his girlfriend, and his mother. The petitioner’s sister did not
appear for trial, but counsel was prepared to present his girlfriend and his mother as alibi witnesses.
Both, however, refused to testify. See Trial Tr. at 6-7, 11-12, 71-72 (Mar. 24, 2010). Trial counsel
then consulted with the petitioner, who decided to testify on his own behalf in support of his alibi
defense. Id. at 72-74. There is no evidence that trial counsel improperly intimidated any witnesses.
The fact that he may have advised the potential witnesses about the dangers of perjury does not
constitute intimidation. Counsel was clearly willing to have them testify and to present an alibi
defense. The petitioner has not shown that counsel acted improperly. And the petitioner falls short

-23-

of a prejudice showing, because he has offered no evidence to show that the witnesses would have
credibly supported his alibi defense.
Based on Damon Moore’s testimony that the petitioner looked “spaced out” in the midst of
the shooting, was pacing, and was muttering about killing Moore for being disrespectful, the
petitioner believes that his lawyer should have raised an intoxication defense. But there was no
evidence that the petitioner was intoxicated. That was not a strategic error by trial counsel. See
Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (holding that lack of success from trial
counsel’s strategy does not mean that he was ineffective).
The petitioner also criticizes trial counsel’s failure to object to the prosecutor’s conduct. As
discussed later, however, the underlying misconduct claims lack merit. Therefore, the petitioner
cannot establish that trial counsel erred or that he was prejudiced by counsel’s conduct. Counsel
cannot be deemed ineffective for failing to make a meritless argument or futile objection. See Coley,
706 F.3d at 752; Steverson, 230 F.3d at 225.
The petitioner says that trial counsel was ineffective by failing to file a motion for new trial
based upon newly-discovered evidence. The record indicates that trial counsel first became aware
of the new evidence (the petitioner’s post-trial phone call with Moore) at sentencing. See Sent. Tr.
at 8 (Apr. 7, 2010). Trial counsel thus could not have filed a motion for new trial before that, and
he cannot be deemed ineffective for failing to take action without the necessary information to do
so. See Strickland, 466 U.S. at 691. Moreover, the petitioner cannot establish prejudice, because
appellate counsel raised the newly-discovered evidence issue on direct appeal and the Michigan
Court of Appeals ruled that the claim lacked merit.

-24-

Finally, the petitioner contends that trial counsel was ineffective when he advised him about
the jury trial waiver. The decision to waive a jury and proceed with a bench trial is a “classic
example of strategic trial judgment” for which Strickland requires deferential judicial scrutiny,
particularly on habeas review. See Walendzinski v. Renico, 354 F. Supp. 2d 752, 758 (E.D. Mich.
2005) (citation omitted). Trial counsel’s advice to waive a jury and proceed with a bench trial
“constitutes a conscious, tactical choice between two viable alternatives.” Ibid. Looking at the facts
of the case, trial counsel may have reasonably determined that it was in the petitioner’s best interest
to waive a jury trial and proceed with a bench trial with the hope of being convicted of a lesser
offense or being given a lesser sentence. The petitioner says that counsel advised him that he would
not go to prison if he had a bench trial and told him to lie about that promise. But once again, that
assertion is not supported by the record, which indicates that the petitioner knowingly and
voluntarily waived his jury trial right without ever mentioning counsel’s alleged promise or
improper advice. See Pretrial Hrg Tr. at 3-6 (Mer. 18, 2010). That assertion, moreover, is undercut
by counsel’s advice that the plea offer with the sentence cap amounting to 13 years was a good offer.
It is doubtful that counsel would have advised the petitioner that he would be acquitted or not
receive prison time if convicted following a bench trial. Furthermore, the petitioner has not shown
that he was prejudiced by counsel’s advice to proceed with a bench trial. There is no indication that
the trial court was biased against him or that a jury would have reached a more favorable verdict
upon hearing the same evidence presented at trial. See Willis v. Smith, 351 F.3d 741, 746 (6th Cir.
2003).
The petitioner has not shown that he was deprived of the effective assistance of counsel
before or during trial.

-25-

D.
The petitioner next asserts that he is entitled to habeas relief because appellate counsel was
ineffective by failing to raise the ineffective assistance of pretrial and trial counsel claims that he
raised in his motion for relief from judgment on direct appeal, for not filing a motion for new trial
in the trial court, and for failing to play the newly-discovered evidence recording during oral
argument on appeal.
The right to the effective assistance of counsel includes the right to the effective assistance
of appellate counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). To prevail on a
claim of ineffective assistance of appellate counsel, the petitioner ordinarily must demonstrate that
appellate counsel’s performance was deficient and that the deficient performance prejudiced the
appeal. Strickland, 466 U.S. at 687. However, it is well-established that a criminal defendant does
not have a constitutional right to have appellate counsel raise every non-frivolous issue on appeal.
See Jones v. Barnes, 463 U.S. 745, 751 (1983). The Supreme Court has explained:
For judges to second-guess reasonable professional judgments and impose on
appointed counsel a duty to raise every “colorable” claim suggested by a client
would disserve the . . . goal of vigorous and effective advocacy . . . . Nothing in the
Constitution or our interpretation of that document requires such a standard.
Id. at 754.
Strategic and tactical choices regarding which issues to pursue on appeal are “properly left
to the sound professional judgment of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th Cir.
1990). In fact, “the hallmark of effective appellate advocacy” is the “process of ‘winnowing out
weaker arguments on appeal and focusing on’ those more likely to prevail.” See Smith v. Murray,
477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). “Generally, only when ignored
issues are clearly stronger than those presented will the presumption of effective assistance of
-26-

appellate counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate
counsel may deliver deficient performance and prejudice a defendant by omitting a “dead-bang
winner,” defined as an issue which was obvious from the trial record and would have resulted in
reversal on appeal. Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).
On collateral review, the trial court denied relief on this claim, citing Jones v. Barnes as well
as the Strickland standard. Op. of Trial Ct. at 3-7 (Jan. 22, 2013).
The state courts’ denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or determination of the facts. The petitioner fails to show
that by omitting the listed claims, appellate counsel’s performance fell outside the wide range of
professionally competent assistance. Appellate counsel raised substantial claims on direct appeal,
including sufficiency of the evidence and newly-discovered evidence claims. None of the other
claims subsequently raised by the petitioner are “dead-bang winners,” as evidenced by the state trial
court’s alternative ruling that the claims lacked merit. Moreover, even if appellate counsel erred in
some fashion, the petitioner cannot show that he was prejudiced by counsel’s conduct given that the
underlying claims lack merit. For the reasons discussed earlier, that decision does not contravene
or unreasonably apply federal constitutional law. See Strickland, 466 U.S. at 687 (requiring a
showing of prejudice); Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (holding that
“[a]ppellate counsel cannot be found to be ineffective for ‘failure to raise an issue that lacks merit’”)
(quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)).
The petitioner also contends that appellate counsel was ineffective by not filing a motion for
new trial in the trial court. Although appellate counsel did not move for a new trial, he did move
in the court of appeals to remand to the trial court, but his request was denied. There is no indication

-27-

that a new trial motion would have been successful. And no prejudice is shown. The Michigan
Court of Appeals considered the merits of the newly-discovered evidence issue on plain error review
and denied relief; and this Court has found that the newly-discovered evidence claim lacks merit.
The petitioner thus cannot establish that appellate counsel was ineffective. Habeas relief is not
warranted on this claim.
E.
The petitioner next asserts that he is entitled to habeas relief due to prosecutorial misconduct.
He says that the prosecutor improperly used out-of-court statements, argued sympathy for the victim,
vouched for the victim’s credibility, used misstatements to refresh the victim’s memory, improperly
impeached him with a prior juvenile conviction and his use of aliases, and offered the victim’s
testimony about his injuries without a medical expert.
The Supreme Court has made clear that prosecutors must “refrain from improper methods
calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88 (1935). To
prevail on a claim of prosecutorial misconduct, however, a habeas petitioner must demonstrate that
the prosecutor’s conduct or remarks “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see also
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly); Parker v. Matthews, 567 U.S.
37, 45 (2012) (confirming that Donnelly/Darden is the proper standard).
On collateral review, the trial court found these issues to be unpreserved due to the
petitioner’s failure to object at trial, but considered the claims on plain error review and ruled that
they lacked merit. The court essentially found that the prosecutor’s conduct was proper, that any
errors did not rise to the level of misconduct, or that the petitioner’s allegations were conclusory and

-28-

unsupported the record. Op. of Trial Ct. at 8-10 (Jan. 22, 2013). The Michigan appellate courts
denied leave to appeal.
The state trial court correctly decided that question. The petitioner has not shown that the
prosecutor’s conduct was improper or that it rendered his trial fundamentally unfair. The petitioner
first asserts that the prosecutor improperly used an out-of-court statement by asking him on crossexamination if he remembered calling the police and saying that he wanted to turn himself in. This
was an appropriate attempt to impeach the petitioner under the Michigan Rules of Evidence. See
Mich. R. Evid. 801(d)(2)(A) (statements made by party opponents are not hearsay). Moreover, no
out-of-court statement was actually admitted into evidence.
The petitioner also asserts that the prosecutor improperly sought sympathy for the victim and
vouched for the victim’s credibility by commenting on his injuries and why he should be believed.
It is well-settled that a prosecutor may not make remarks “calculated to incite the passions and
prejudice of the jurors,” United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991), or to
encourage them to decide a case based upon their feelings instead of the evidence, Johnson v. Bell,
525 F.3d 488, 484 (6th Cir. 2008). It is also improper for a prosecutor to express her own personal
opinions as to a witness’s credibility. United States v. Young, 470 U.S. 1, 9-10 (1985); Hodge v.
Hurley, 426 F.3d 368, 378 (6th Cir. 2005); United States v. Modena, 302 F.3d 626, 634 (6th Cir.
2002). Such statements are improper because they can convey the impression that the prosecutor
has evidence not presented to the jury, which supports the charges against the defendant thereby
infringing upon the defendant’s right to be judged solely based upon the evidence presented. Also,
the prosecutor’s opinion carries with it the imprimatur of the State and may induce the jury to trust
the State’s judgment rather than its own. Young, 470 U.S. at 18-19; Cristini v. McKee, 526 F.3d

-29-

888, 901 (6th Cir. 2008); see also Wilson v. Bell, 368 F. App’x 627, 633 (6th Cir. 2010) (citing
cases). In this case, the prosecutor did not invoke sympathy for Damon Moore by commenting on
his injuries. Rather, the prosecutor’s comments were based upon the evidence and were necessary
to prove the elements of assault with intent to commit murder. The prosecutor also did not vouch
for Moore’s credibility. Rather, she argued that Moore should be believed because of the substance
of his testimony, his demeanor, and the other evidence at trial. It is well-established that a
prosecutor may argue reasonable inferences from the evidence, Byrd v. Collins, 209 F.3d 486, 535
(6th Cir. 2000), and may argue from the facts that a witness is or is not worthy of belief, Portuondo
v. Agard, 529 U.S. 61, 69 (2000). The prosecutor’s arguments were proper.
The petitioner also asserts that the prosecutor improperly used misstatements to refresh
Moore’s memory. The prosecutor’s use of a leading question involving the choice between two
street names to refresh Moore’s memory about where the shooting occurred was appropriate under
Michigan law. See Mich. R. Evid. 611(d)(1); Mich. Comp. Laws § 768.24. The question was not
a misstatement of any facts.
The petitioner next asserts that the prosecutor improperly impeached him with a ten-year-old
juvenile conviction and his use of aliases. Under Michigan law, a prosecutor may impeach a witness
with a prior conviction for theft or dishonesty. See Mich. R. Evid. 609(a)(1). The petitioner has one
such adult conviction, which was less than 10 years old at the time of trial. See Offender Tracking
Information

System

Profile,

http://mdocweb.state.mi.us/OTIS2/

otis2profile.aspx?mdocNumber=534733. The petitioner presents no support for his argument that
the prosecutor relied upon a ten-year-old juvenile conviction. Also, under Michigan law, a
prosecutor can impeach a testifying defendant’s credibility with his use of aliases. See People v.

-30-

Messenger, 561 N.W.2d 463, 468 (Mich. Ct. App. 1997) (citing Mich. R. Evid. 608 and 609). The
prosecutor thus properly impeached the petitioner with his prior conviction and his use of aliases.
Lastly, the petitioner asserts that the prosecutor improperly used Moore’s testimony about
his injuries without presenting a medical expert. Moore, however, could appropriately testify about
his own injuries and treatments because that information was within his personal knowledge and did
not involve scientific, technical, or other specialized knowledge. See Mich. R. Evid. 602.
Moreover, the parties stipulated to the admission of Moore’s medical records.
Furthermore, even if the prosecutor’s conduct were improper, the petitioner has not shown
that he was prejudiced. The fact that the trial judge was the trier of fact mitigates any possible
prejudice arising from the alleged prosecutorial misconduct. A bench trial judge is presumed to
have considered only relevant and admissible evidence in reaching his or her decision. See Harris
v. Rivera, 454 U.S. 339, 346 (1981) (per curiam ) (“In bench trials, judges routinely hear
inadmissible evidence that they are presumed to ignore when making decisions.”); United States v.
Joseph, 781 F.2d 549, 552 (6th Cir.1986) (presumption in federal criminal bench trial is that trial
judge only considered properly admitted evidence); Brown v. Pitcher, 19 F. App’x 154, 157 (6th Cir.
2001) (applying the rule in a habeas case). In this case, there is nothing in the record to rebut the
presumption that the trial court based its verdict only on the properly admitted evidence rather than
on any improper conduct or comments by the prosecutor. The petitioner fails to establish that the
prosecutor erred or that any improper conduct rendered his trial fundamentally unfair. Habeas relief
is not warranted on this claim.

-31-

F.
The petitioner next asserts that he is entitled to habeas relief because neither the prosecutor
nor the trial court properly considered the lesser offense of assault with intent to commit great bodily
harm less than murder. On collateral review, the trial court determined that this claim lacked merit.
The court discussed the elements of assault with intent to commit murder and the lesser offense of
assault with intent to do great bodily harm less than murder and found that the evidence amply
supported the greater charge and the petitioner’s conviction of that offense. Op. of Trial Ct. at 7-8
(Jan. 22, 2013). The Michigan appellate courts denied leave to appeal.
The record simply does not support this argument. First, the prosecutor included the lesser
offenses of assault with intent to do great bodily harm less than murder and assault with a dangerous
weapon as alternate charges for the trial court’s consideration during the bench trial. Second, as
discussed above, the trial court is presumed to know and follow the law. Finally, the evidence
elicited at trial was sufficient to support the charge of which the petitioner was convicted. Habeas
relief is not warranted on this claim.
G.
The petitioner asserts that he is entitled to habeas relief based upon the state court’s bindover decision. On collateral review, the trial court determined that this claim was untimely and moot
because the petitioner was convicted after a finding of guilt beyond a reasonable doubt at trial. Op.
of Trial Ct. at 10 (Jan. 22, 2013). The Michigan appellate courts denied leave to appeal.
No error resulted from that decision. The Constitution does not require a probable cause
hearing to be conducted prior to a criminal trial. See Gerstein v. Pugh, 420 U.S. 103, 119, 125 n.26
(1975). An “illegal . . . detention does not void a subsequent conviction.” Id. at 119. Therefore,

-32-

a state court’s decision to hold a person for trial does not implicate a federal constitutional right,
especially when there is sufficient evidence of the crime presented at trial to satisfy the Due Process
Clause. The bind-over decision itself invokes a question of state law, which is not cognizable on
habeas corpus review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Dorchy v. Jones, 320 F.
Supp. 2d 564, 578-79 (E.D. Mich. 2004) (denying habeas relief on petitioner’s claim there was
insufficient evidence to bind him over for trial).
Habeas relief is not warranted on this claim.
H.
Lastly, the petitioner asserts that he is entitled to habeas relief because the Michigan Court
of Appeals erred in denying his motion for a remand based upon his newly-discovered evidence.
This claim, however, is not cognizable upon habeas review. The decision about whether to grant
or deny a motion to remand in the state courts is strictly a question of state law. Hayes v. Prelesnik,
193 F. App’x 577, 584 (6th Cir. 2006). Such state law issues are not subject to federal habeas
review. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“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”); Estelle, 502 U.S. at 68 (“federal habeas corpus relief does not lie for errors of
state law” ). Habeas relief is not warranted on this claim.
III.
The state courts’ decisions in this case were not contrary to federal law, an unreasonable
application of federal law, or an unreasonable determination of the facts. The petitioner has not
established that he is presently in custody in violation of the Constitution or laws of the United
States.

-33-

Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: July 21, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 21, 2017.
s/Susan Pinkowski
SUSAN PINKOWSKI

-34-