McDaniel v. Bergh
OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus Signed by District Judge Bernard A. Friedman. (CMul)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Action No. 14-CV-12380
HON. BERNARD A. FRIEDMAN
OPINION AND ORDER DENYING THE APPLICATION FOR A WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
This matter is presently before the Court on petitioner’s application for a writ of
habeas corpus. Petitioner challenges his convictions for armed robbery, felon in possession of a
firearm, and use of a firearm during the commission of a felony. He raises these claims: the
prosecutor withheld evidence in violation of Brady, the trial court violated petitioner’s right of
confrontation, and trial counsel rendered ineffective assistance. Respondent has filed an answer
arguing that petitioner’s ineffective assistance of counsel claim is procedurally defaulted and that
all of the claims are meritless. For the following reasons, the Court shall deny the petition.
Petitioner’s convictions arise from the robbery of Tyrone O’Neal. O’Neal, a postal
worker, testified that on April 21, 2009, he was delivering mail in Detroit when he saw a person he
later identified as petitioner walking in the middle of the street. Petitioner approached O’Neal,
pointed a gun at O’Neal’s chest while demanding that O’Neal empty his pockets. O’Neal emptied
the contents of his pockets onto the ground, fled, and called 911. A few days later, O’Neal met with
a police sketch artist who created a composite picture which was distributed in the community.
Police received a tip that the person in the sketch was petitioner. On the basis of this tip, O’Neal
was shown a photographic lineup which included a photograph of petitioner. O’Neal picked
petitioner out of the lineup and identified him as the robber.
Gregory Bridges, a service representative for DTE Energy, was offered as a Rule
404(b) witness. He testified that he was also approached by a man on April 21, 2009, in Detroit. The
man pointed a gun at Bridges and told Bridges to empty the contents of his pockets. Bridges later
viewed a photographic lineup and identified petitioner as the perpetrator.
Postal Inspector Christopher Martin testified about the course of the investigation.
He created a reward poster using a copy of the police sketch of the suspect in the O’Neal robbery.
The reward poster was distributed within a six-block radius of the robbery location. Two tips were
received in response to the poster. On April 23, 2009, an anonymous tipster informed police that
someone who matched the police sketch frequently visited a home on State Fair Avenue, not far
from the location of the O’Neal robbery. Police set up surveillance of the home and ultimately
recovered a black jacket resembling one worn by the perpetrator as described by O’Neal, and a spent
shell casing from inside the home. Inspector Martin received a tip from a confidential informant on
April 29, 2009, identifying Petitioner as the robber. Petitioner was arrested on April 30. 2009.
Petitioner testified in his own defense. He denied that he was the person who robbed
O’Neal or Bridges.
Following a jury trial in Wayne County Circuit Court, petitioner was convicted of
armed robbery, felon in possession of a firearm, and use of a firearm during the commission of a
felony. On October 16, 2009, he was sentenced as a second habitual offender to 9 to 20 years’
imprisonment for the armed robbery conviction, 2 to 7-1/2 years’ imprisonment for the felon-in-
possession conviction, and 2 years’ imprisonment for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising these
claims: (i) pretrial identification procedures unduly suggestive; (ii) composite sketch improperly
admitted; (iii) ineffective assistance of counsel; (iv) prosecutorial misconduct; (v) jury instruction
error; and (vi) other act evidence improperly admitted. The Michigan Court of Appeals affirmed
petitioner’s convictions. People v. McDaniel, No. 294821, 2011 WL 519956 (Mich. Ct. App. Feb.
15, 2011). Petitioner sought leave to appeal in the Michigan Supreme Court raising the same claims
raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal.
People v. McDaniel, 490 Mich. 859 (2011).
Petitioner then filed a motion for relief from judgment in the trial court, claiming that
the prosecutor improperly withheld the name of the confidential informant, that admission of
statements by the confidential informant violated the Confrontation Clause, and that counsel was
ineffective in failing to object to this testimony. The trial court denied the motion. People v.
McDaniel, No. 09-012025 (Wayne Cty. Cir. Ct. July 16, 2012). (ECF No. 9-17). Both Michigan
appellate courts denied leave to appeal. People v. McDaniel, No. 316008 (Mich. Ct. App. Oct. 4,
2013); People v. McDaniel, 495 Mich. 949 (Mich. Feb. 28, 2014).
Petitioner then filed the instant habeas petition. He raises these claims:
Petitioner was denied due process of law and equal protection of law by
prosecution’s misconduct, violating the Brady rule of disclosure of relevant
and material evidence used against Petitioner to convict.
The trial court denied Petitioner due process by the court’s abuse of
discretion ...violating Petitioner’s right to confrontation, violating substantial
rights to a fair trial resulting in a miscarriage of justice.
Petitioner had ineffective assistance of counsel at trial by failing to make
proper objections to hearsay and failure to make appropriate motions.
Petitioner’s claims are reviewed against the standards established by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(AEDPA). The AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim (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
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceedings.
28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [United States Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from [Supreme Court] precedent.’” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “[T]he
‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court to ‘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 petitioner’s case.” Wiggins v.
Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413). However, “[i]n order for a
federal court to find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the
state court’s decision must have been more than incorrect or erroneous. . . . The state court’s
application must have been ‘objectively unreasonable.’” Id. at 520-21 (quoting Lockyer v. Andrade,
538 U.S. 63, 75 (2003)). “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)).
Section 2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice systems, not
a substitute for ordinary error correction through appeal. . . . As a
condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court's ruling on the claim being
presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.
Id. at 102-03 (internal quotation and citation omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as determined by
the Supreme Court at the time the state court renders its decision. See Williams, 529 U.S. at 412.
However, this “does not require citation of [Supreme Court] cases - indeed, it does not even require
awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). Further, “while the principles
of ‘clearly established law’ are to be determined solely by resort to Supreme Court rulings, the
decisions of lower federal courts may be instructive in assessing the reasonableness of a state court’s
resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007.
Finally, a federal habeas court must presume the correctness of state court factual
determinations, see 28 U.S.C. § 2254(e)(1), and a petitioner may rebut this presumption only with
clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Put
differently, only factual determinations that are “objectively unreasonable in light of the evidence
presented in the state-court proceeding” will be overturned. McKinney v. Ludwick, 649 F.3d 484,
488 (6th Cir. 2011).
Petitioner’s three claims for habeas corpus relief center on postal inspector
Christopher Martin’s testimony regarding a confidential informant. Inspector Martin testified that,
in response to a reward poster containing a police sketch of the suspect in O’Neal’s robbery, law
enforcement received a tip from a confidential informant identifying petitioner as the perpetrator.
Petitioner argues first that the failure to disclose the identity of the confidential informant violated
Brady v. Maryland, 373 U.S. 83, 87 (1963). He also contends that admission through Inspector
Martin of the confidential informant’s identification of him violated his rights under the
Confrontation Clause. Finally, Petitioner argues that defense counsel’s failure to object to this
testimony constituted ineffective assistance of counsel.
Claim One: Brady Violation
Postal Inspector Christopher Martin testified that he received a tip about petitioner
from a confidential informant on April 29, 2009, and that the confidential informant identified
petitioner as the perpetrator. Petitioner argues that the failure of police to release the identity of the
informant violated Brady v. Maryland, 373 U.S. 83, 87 (1963)
To demonstrate a Brady violation, (1) “[t]he evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is impeaching”; (2) “that evidence must
have been suppressed by the State, either willfully or inadvertently”; and (3) “prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). A defendant does not have to show that
“disclosure of the evidence would have ultimately led to an acquittal”; instead, he must “establish
that in the absence of the evidence he did not receive a fair trial, ‘understood as a trial resulting in
a verdict worth of confidence.’” Gumm v. Mitchell, 775 F.3d 345, 363 (6th Cir. 2014) (quoting Kyles
v. Whitley, 514 U.S. 419, 434 (1995)). The identity of an informant constitutes Brady material only
when the informant would offer exculpatory or impeaching information to the defense. Downs v.
Sec’y, Fla. Dept. of Corrs., 738 F.3d 240, 260-61 (11th Cir. 2013). See also United States v. Streit,
962 F.2d 894, 900 (9th Cir. 1992).
Petitioner raised this claim for the first time on state-court collateral review. The trial
court denied the claim in a summary fashion. Despite the lack of a reasoned opinion, the state
court’s decision is nevertheless entitled to deference under the AEDPA. See Wogenstahl v. Mitchell,
668 F.3d 307, 327 (6th Cir. 2012).
Petitioner has failed to show how revealing the identity of the informant would have
been exculpatory. The confidential informant responded to the telephone number on the police
sketch poster, which, in turn, prompted Inspector Martin to acquire additional information about
petitioner. Petitioner offers no argument, only conclusory speculation, that discovery of the identity
of the informant would have transformed this inculpatory informant-related information to
something favorable to the defense. There is simply no basis for concluding that disclosure of the
informant’s identity would have created a reasonable probability that the result of the proceeding
would have been different. Habeas relief is denied on this claim.
Claim Two: Confrontation Clause
Petitioner’s second claim alleges that the testimony of Inspector Martin regarding the
confidential informant violated his rights under the Confrontation Clause. On cross-examination,
Inspector Martin testified as follows:
I identified Christopher McDaniels through anonymous tip.
Okay. Anonymous tip.
And how did that anonymous tip come to you?
Through our National Law Enforcement Center.
Okay. And did somebody call and give you the name Christopher
McDaniel, yes or no?
Okay. Somebody called and told you that Christopher McDaniel did
the robbery, isn’t that true, sir?
And that’s the only way you got a Christopher McDaniel, isn’t that
After that, you don’t connect Mr. McDaniels [in] any way to this
robbery, any way to this incident absent an anonymous tip.
Tr. 9/24/09 at 21-22 (ECF No. 9-5, Pg. ID 200-201).
The Confrontation Clause provides: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. “[T]he
Sixth Amendment’s right of an accused to confront the witnesses against him is . . . a fundamental
right and is made obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380
U.S. 400, 403 (1965). The right to a trial by jury is based on the belief “that the evidence developed
against a defendant shall come from the witness stand in a public courtroom where there is full
judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.”
Id. at 405 (quotation marks omitted).
In this case, the testimony about the information provided by the confidential
informant was elicited by defense counsel. It appears defense counsel elicited the testimony to
highlight the lack of any physical evidence leading police to identify petitioner as a suspect. The
Confrontation Clause is not implicated when defense counsel elicits the hearsay testimony. See
United States v. McKenzie, 532 F. App’x 793, 797 (10th Cir. 2013).
The Confrontation Clause “does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted.” Crawford v. Washington, 541 U.S.
36, 59 n.9 (2004). Thus, “admission of a testimonial statement in and of itself is not enough to
trigger a violation of the Confrontation Clause. Instead, the statement must be used as hearsay – in
other words, it must be offered for the truth of the matter asserted.” United States v. Pugh, 405 F.3d
390, 399 (6th Cir. 2005). Accord United States v. Cromer, 389 F.3d 662, 676 (6th Cir. 2004). It
appears that defense counsel elicited this testimony to explain the course of the police investigation,
rather than to show that petitioner was the robber. It was not, therefore, offered to prove the truth
of the matter asserted.
Finally, even if admission of this testimony violated the Confrontation Clause, the
error was harmless. A violation of the Confrontation Clause is subject to harmless error analysis.
See Lilly v. Virginia, 527 U.S. 116, 140 (1999); Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988);
Delaware v. Van Arsdall, 475 U.S. at 681-84 (1986). On habeas review, to determine whether an
error is harmless a court must ask whether the error “had [a] substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
Factors to be considered in determining whether a Confrontation clause error was harmless under
Brecht include: “(1) ‘the importance of the witness’ testimony in the prosecution’s case,’ (2)
‘whether the testimony was cumulative,’ (3) ‘the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points,’ (4) ‘the extent of cross-examination
otherwise permitted,’ and (5) ‘the overall strength of the prosecution’s case.’” Vasquez, 496 F.3d
at 574 and 574 n.8 (6th Cir. 2007) (quoting Delaware v. Van Arsdall, 475 U.S. at 684).
The Van Arsdall factors support a finding that the admission of Inspector Martin’s
testimony about the confidential informant did not have a substantial impact on the jury’s verdict.
O’Neal identified petitioner as the person who robbed him. O’Neal viewed petitioner from a
distance of approximately seven feet, during daylight hours. He viewed petitioner for longer than
an instant. O’Neal testified that his view of petitioner’s face was unobstructed during the robbery.
O’Neal identified petitioner from a photographic line up and testified that he did so with 100%
certainty that petitioner was the robber. In addition, the DTE employee Bridges also identified the
person in the police sketch as the same person who robbed him, and identified petitioner in a
photographic lineup as the person who robbed him. He also identified petitioner at trial as the
perpetrator. Given the strength of this testimony implicating petitioner, the Court concludes that the
brief reference to the confidential informant’s tip did not have a substantial or injurious effect on the
Claim Three: Ineffective Assistance of Trial Counsel
Finally, petitioner argues that his defense counsel was ineffective in failing to move
to suppress testimony that the confidential informant’s tip led police to consider petitioner as a
suspect and ultimately led to his being placed in a photo lineup from which he was identified by two
The AEDPA “erects a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013). In the context
of an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984),
the standard is “all the more difficult” because “[t]he standards created by Strickland and § 2254(d)
are both highly deferential and when the two apply in tandem, review is doubly so.” Harrington,
562 U.S. at 105 (internal citations and quotation marks omitted). “[T]he question is not whether
counsel’s actions were reasonable,” but whether “there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id.
An ineffective assistance of counsel claim has two components. A petitioner must
show that counsel’s performance was deficient and that the deficiency prejudiced the defense. Id.
To establish deficient representation, a petitioner must demonstrate that counsel’s
representation “fell below an objective standard of reasonableness.” Id. at 688. In order to establish
prejudice, a petitioner must show that, but for the constitutionally deficient representation, there is
a “reasonable probability” that the outcome of the proceeding would have been different. Id. at 694.
“The prejudice prong of the ineffective assistance analysis subsumes the Brecht
harmless-error review.” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009). This Court already
determined that the admission of this testimony, even if in error, was harmless. Because the
admission of this evidence was harmless error, petitioner cannot satisfy Strickland’s prejudice prong.
See Bell v. Hurley, 97 F. App’x 11, 17 (6th Cir. 2004).
Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed in
a habeas matter unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule
11 of the Rules Governing Section 2254 Proceedings requires that a court “issue or deny a certificate
of appealability when it enters a final order adverse to the applicant.” A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). The substantial showing threshold is satisfied when a petitioner demonstrates “that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In this case, the Court concludes that reasonable jurists would not debate the
conclusion that the petition does not state a claim upon which habeas relief may be granted.
Therefore, the Court will deny a certificate of appealability. Accordingly,
IT IS ORDERED that the petition in this matter for a writ of habeas corpus is denied.
IT IS FURTHER ORDERED that a certificate of appealability is denied and that
petitioner may not proceed on appeal in forma pauperis.
Dated: April 6, 2017
S/ Bernard A. Friedman_________
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
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