Tate v. Gidley

Filing 9

MEMORANDUM OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Granting a Certificate of Appealability and Leave to Appeal In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHAWN TATE,
Petitioner,

Civil No. 2:14-CV-12445
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
LORI GIDLEY,
Respondent,
/

OPINION AND ORDER THE DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS
Shawn Tate, (“petitioner”), confined at the Oaks Correctional Facility in
Manistee, Michigan, filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction for second-degree murder, M.C.L.A.
750.317; assault with intent to commit murder, M.C.L.A. 750.83; felon in
possession of a firearm, M.C.L.A. 750.224f; and felony-firearm, M.C.L.A.
750.227b. For the reasons that follow, the petition for writ of habeas corpus is
DENIED. The Court will issue petitioner a certificate of appealability and leave to
proceed on appeal in forma pauperis.
I. Background
Petitioner was convicted following a jury trial in the Wayne County Circuit
Court. This Court recites verbatim the relevant facts relied upon by the Michigan

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Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant’s convictions arise from the shooting death of Dwayne
Franklin Newton (the victim) outside a known drug house near the
intersection of Warren Avenue and Townsend Street on Detroit’s east
side.
Defendant was initially charged with first-degree premeditated murder,
felon-in-possession, and felony-firearm.
At the preliminary
examination, the prosecution notified the court and defense counsel of
its intent to amend the complaint to add the charge of assault with
intent to commit murder, MCL 750.83. Following the preliminary
examination, defendant was bound over to the circuit court for trial on
all charges contained in the amended complaint.
On March 10, 2010, defendant pleaded guilty to the lesser offense of
second-degree murder, MCL 750.317, and to the charge of
felony-firearm, MCL 750.224b, with the agreement that the prosecution
would seek sentences of 12 to 30 years for the murder conviction and
two years for the felony-firearm conviction. The prosecution agreed to
dismiss the remaining charges. The court accepted defendant’s pleas
and scheduled sentencing for March 24, 2010.
Defendant appeared for sentencing on March 24, 2010, and moved to
withdraw his guilty pleas. Defendant stated, “I don’t feel like I should be
taking this [plea agreement] for something I didn’t do,” and informed the
court of his belief that defense counsel had “tricked [him] into taking
these deals.” The circuit court found that setting aside defendant’s
guilty pleas would not prejudice the prosecution and therefore granted
defendant’s motion. Thereafter, defense counsel requested that the
court allow him to withdraw as defendant’s attorney, citing defendant’s
accusation that counsel had “tricked” him into pleading guilty. The
court denied defense counsel’s motion to withdraw and scheduled the
matter for trial.
Trial began on May 10, 2010. Defense counsel again requested to
withdraw and defendant requested a substitution of counsel, citing a
breakdown in the attorney-client relationship. Nonetheless, the circuit
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court denied the requests, noting that it was “the very day of trial and
so we're going to proceed.”
The evidence presented at trial established that the victim had been
present with several of his acquaintances in the living room of a drug
house at 4840 Townsend Street on the afternoon of October 15, 2009.
Defendant and another man approached the house and knocked on the
front door. Defendant had been driving his uncle’s green Ford Taurus,
which was parked outside the home. One of the victim’s acquaintances
left the living room and answered the door. Defendant asked the man
whether he could purchase marihuana and gave the man $20. The
man took the $20 into the living room and gave it to the victim. The
victim then took two bags of marihuana to the front door and handed
them to defendant. Immediately thereafter, witnesses overheard
defendant threatening the victim in a loud voice. Several witnesses in
the house then heard two or three gunshots and a general commotion
at the front door. At that point, the victim came back into the living
room, retrieved an assault rifle, and ran out of house. Witnesses
subsequently heard several more gunshots outside.
Llachone Welch, who observed the shooting from her second-floor
apartment window, saw the victim firing his assault rifle at the green
Ford Taurus as defendant drove the car in reverse from Townsend
Street onto Warren Avenue. She testified that several bullets hit the
windshield as defendant attempted to “get away” in the car. Welch
testified that defendant simultaneously fired back at the victim with a
handgun as he drove the car. According to Welch, the Ford Taurus
eventually came to a stop and defendant got out of the car and ran
away. Another witness, Brittany Pruitt, heard the gunshots, looked out
her window, and saw the green Ford Taurus come to a stop when it hit
a telephone pole. According to Pruitt, a man matching defendant’s
description then got out of the Ford Taurus and ran around the corner
toward Baldwin Street.
Once the shooting had ended, several witnesses went outside and
found the victim lying on the ground in a pool of blood, just down the
street from the drug house. One of the witnesses testified that he
removed the assault rifle that was next to the victim’s body and hid it
under a roll of carpet in the backyard. Other witnesses noticed that
there were several bullet holes in the Ford Taurus, which was parked
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across Warren Avenue. The driver’s side front door of the Ford Taurus
had been left open and defendant was no longer in the car.
Six days later, on October 21, 2009, defendant was seen running from
the police in the area of Hoyt Street and Liberal Street on the city’s
northeast side. Detroit Police Officer Michael Benton witnessed
defendant run down an alley, pull a handgun from his waistband, and
throw the gun into the yard of a vacant house. Benton and his two
partners arrested defendant, whose photograph was later identified by
one of the witnesses who had been present at the time of the shooting
on October 15, 2009. Officer Benton recovered the discarded handgun
and identified it as a 0.40–caliber semiautomatic pistol. The pistol
contained five rounds of live ammunition at the time it was recovered.
Detroit Police Officer David Andrews, an evidence technician,
responded to the area of Warren Avenue and Townsend Street on the
evening of October 15, 2009. Andrews took photographs and made a
sketch of the scene. When Andrews arrived, the victim’s body had
already been removed. However, Andrews testified that there was a
large area of blood on the sidewalk where the body had been located.
Andrews recovered several 0.45–caliber semiautomatic shell casings
from the area near the blood and discovered two 0.40–caliber shell
casings in the area as well. He also recovered one 0.40–caliber shell
casing from just inside the front door of the drug house, as well as a
0.45–caliber assault rifle, which was hidden under a roll of carpet in the
backyard. Andrews then processed the green Ford Taurus, which had
sustained extensive damage from gunfire. He located an additional
0.40–caliber shell casing and two bullet fragments inside the car. The
vehicle was photographed and impounded.
An assistant Wayne County medical examiner testified that he had
performed an autopsy on the victim’s body and that the victim had died
from a single gunshot wound to the head. The assistant medical
examiner found no evidence of close-range firing.
Detective Lieutenant Brett Sojda of the Michigan State Police, a
firearms expert, testified that he had received and examined the shell
casings that were collected from the scene on October 15, 2009. Sojda
testified that he had also examined the 0.45–caliber assault rifle that
was recovered from the backyard of the drug house and the
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0.40–caliber semiautomatic pistol that defendant was seen discarding
on October 21, 2009. Sojda identified eight of the recovered
0.45–caliber semiautomatic shell casings as having been fired from the
assault rifle in question. Sojda also identified all four of the recovered
0.40–caliber shell casings as having been fired from defendant’s
semiautomatic pistol.
The parties stipulated that defendant had been previously convicted of
a felony, that his right to carry a firearm had not been restored under
Michigan law, and that he was ineligible to carry a firearm at the time
of the shooting on October 15, 2009. Defendant did not testify and the
defense presented no witnesses of its own.
The circuit court instructed the jury on the elements of the charged
offenses of first-degree premeditated murder, assault with intent to
commit murder, felon-in-possession, and felony-firearm. With respect
to the murder charge, the court also instructed the jury on the elements
of the lesser offense of second-degree murder. Defense counsel
objected to the court’s refusal to provide a self-defense instruction to
the jury. The circuit court explained that it had found that “self-defense
[is] not a defense in this particular case” and that it would therefore not
instruct the jury in this regard. The court based its determination that
defendant had not acted in self-defense on the evidence that defendant
had been the initial aggressor when he fired at least two shots at or
near the front door of 4840 Townsend Street.
As noted previously, the jury convicted defendant of the charged
offenses of assault with intent to commit murder, MCL 750.83,
felon-in-possession, MCL 750.224f, and felony-firearm, MCL 750.227b.
The jury also convicted defendant of the lesser offense of
second-degree murder, MCL 750.317.
People v. Tate, No. 298675, 2011 WL 4375079, at *1-3 (Mich. Ct. App. Sept.
20, 2011)(internal footnotes omitted).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 491 Mich. 886;
809 N.W. 2d 589 (2012).

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Petitioner filed a post-conviction motion for relief from judgment, which was
denied. People v. Tate, No. 09-028827-FC (Third Circuit Court, Criminal Division,
Nov. 6, 2012). The Michigan appellate courts denied petitioner leave to appeal.
People v. Tate, No. 314620 (Mich.Ct.App. Sept. 23, 2013); lv. den.495 Mich. 948,
843 N.W.2d 532 (2014).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The trial court abused its discretion when it denied [Tate’s] request for
substitution of counsel and two defense requests to withdraw after the
court set aside [Tate’s] guilty plea based on [Tate’s] assertion that
counsel tricked him into pleading guilty.
II. Where the evidence of first-degree murder was insufficient, [Tate] is
entitled to a new trial where the jury was allowed to [consider] this
charge in violation of due process, which substantially decreased his
chances of acquittal.
III. The trial court violated [Tate’s] due process rights by refusing to
instruct the jury on either perfect or imperfect self-defense.
IV. Ineffective appellate counsel for failure to raise ineffective
assistance of trial counsel.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:
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–

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(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs
when “a state court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may
not “issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 410-11. “[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)(citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).

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III. Discussion
A. Claim # 1. The denial of substitute counsel claim.
Petitioner first alleges that the trial judge violated his Sixth Amendment
right to counsel by denying his request for the appointment of substitute counsel
and by denying defense counsel’s two motions to withdraw from the case.
The Michigan Court of Appeals rejected petitioner’s claim:
We perceive no abuse of discretion in the circuit court’s denial of
defense counsel’s motions to withdraw. When counsel made his first
motion to withdraw, the only evidence of a disagreement between
defendant and his attorney was defendant’s unsubstantiated
accusation that counsel had “tricked” him into pleading guilty.
Defendant did not explain how he had been tricked; nor did he raise
any other legitimate objections to counsel's performance. Defendant
merely informed the court that he did not wish to plead guilty to crimes
that he “didn’t do.” We conclude that, at the time of counsel’s first
motion, there existed insufficient reasons to permit counsel's
withdrawal from the case. Counsel then moved to withdraw once
more, this time on the first day of trial. Defense counsel again cited
defendant’s accusation that counsel had “tricked” him into entering his
initial guilty pleas. Observing that it was the “very day of trial,” that the
jury was present, and that the prosecution was ready to proceed, the
court denied counsel’s second motion to withdraw. We conclude that
permitting defense counsel to withdraw on the very day set for trial, for
less than compelling reasons, would have unnecessarily delayed the
proceedings and disrupted the judicial process.
Nor do we find any abuse of discretion in the circuit court’s refusal to
appoint substitute counsel on defendant’s motion. While we
acknowledge that defendant accused defense counsel of “trick[ing]”
him into entering his initial guilty pleas, we perceive no evidence on
the record to suggest that there existed a legitimate difference of
opinion between defendant and his appointed counsel with regard to
a fundamental issue in the case. Once defendant had withdrawn his
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guilty pleas and the matter proceeded to trial, defense counsel
demonstrated dedication and commitment to defendant’s case.
Further, our review of the record reveals that counsel was prepared
and competent to represent defendant. Among other things, counsel
secured the pretrial appointment of a private investigator to assist the
defense, aptly cross-examined the prosecution’s witnesses at trial, and
delivered a thorough closing argument to the jury. It is true that the
defense did not call any witness of its own. However, decisions about
defense strategy, including what evidence to present and which
witnesses to call, “are matters of trial strategy and disagreements with
regard to trial strategy or professional judgment do not warrant
appointment of substitute counsel.” In the end, while it is clear that
defendant was unhappy with his appointed attorney, he has provided
no concrete reasons to establish that he was entitled to the
appointment of substitute counsel. A mere allegation that a defendant
lacks confidence in his attorney, unsupported by a substantial reason,
does not amount to adequate cause for the appointment of substitute
counsel. “Likewise, a defendant’s general unhappiness with counsel's
representation is insufficient.” We find no abuse of discretion in the
circuit court's refusal to appoint substitute counsel in this case.
People v. Tate, 2011 WL 4375079, at *4 (internal citations and quotations omitted).
The Sixth Amendment right to the assistance of counsel does not
guarantee a criminal defendant that he or she will be represented by a particular
attorney. Serra v. Michigan Department of Corrections, 4 F. 3d 1348, 1351 (6th
Cir. 1993)(citing Caplin & Drysdale v. United States, 491 U.S. 617, 624 (1989)).
A criminal defendant who has the desire and the financial means to retain his
own counsel “should be afforded a fair opportunity to secure counsel of his own
choice.” Id. (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). Indeed, “[t]he
Sixth Amendment guarantees the defendant the right to be represented by an
otherwise qualified attorney whom that defendant can afford to hire, or who is
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willing to represent the defendant even though he is without funds.” U.S. v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006)(quoting Caplin & Drysdale, 491 U.S.
at 624-25). However, while a criminal defendant who can afford his or her own
attorney has a right to a chosen attorney, that right is a qualified right. Serra, 4 F.
3d at 1348 (citing to Wheat v. United States, 486 U.S. 153, 159 (1988)). Stated
differently, the right to counsel of one’s own choice is not absolute. See Wilson
v. Mintzes, 761 F. 2d 275, 280 (6th Cir. 1985). “Although a criminal defendant is
entitled to a reasonable opportunity to obtain counsel of his choice, the exercise
of this right must be balanced against the court's authority to control its docket.”
Lockett v. Arn, 740 F. 2d 407, 413 (6th Cir. 1984); See also Gonzalez-Lopez,
548 U.S. at 151-52)(“Nothing we have said today casts any doubt or places any
qualification upon our previous holdings that limit the right to counsel of choice
and recognize the authority of trial courts to establish criteria for admitting
lawyers to argue before them...We have recognized a trial court’s wide latitude in
balancing the right to counsel of choice against the needs of fairness, and
against the demands of its calendar.”)(internal citations omitted). Finally, the
right to counsel of choice may not be used to unreasonably delay a trial. See
Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981).
In reviewing a motion for substitution of counsel, a reviewing court should
consider “the timeliness of the motion; the adequacy of the [trial] court’s inquiry
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into the defendant’s complaint; and the asserted cause for that complaint,
including the extent of the conflict or breakdown in communication between
lawyer and client (and the client’s own responsibility, if any, for that conflict).”
Martel v. Clair, 132 S. Ct. 1276, 1287 (2012). “Because a trial court’s decision
on substitution is so fact-specific, it deserves deference; a reviewing court may
overturn it only for an abuse of discretion.” Id.
Petitioner argues that he was entitled to substitute counsel because a
conflict of interest arose between himself and his attorney after petitioner
accused counsel at the plea withdrawal hearing of “tricking” him into pleading
guilty to second-degree murder.
Petitioner is not entitled to relief for several reasons.
First, petitioner failed to establish good cause for substitution of counsel,
where he failed to show that the conflict between himself and his attorney was
so great that it resulted in a total lack of communication which prevented an
adequate defense. See United States v. Jennings, 83 F. 3d 145, 149 (6th Cir.
1996). Although petitioner told the trial judge at the plea withdrawal hearing that
his counsel tricked him into pleading guilty, when asked to elaborate by the
judge, the only allegation made by petitioner was that counsel warned petitioner
that he was facing life in prison if he were convicted of the original charge. (Tr.
3/24/10, p. 4). The penalty for first-degree murder, however, is a mandatory
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nonparolable life sentence. See M.C.L.A. 750.316(1). Counsel’s advice to
petitioner to plead guilty to the lesser offense of second-degree murder with a
sentence agreement of 12-30 years, so as to avoid a conviction on the firstdegree murder charge with a nonparolable life sentence, is insufficient to support
petitioner’s request to discharge and replace counsel. See e.g. United States v.
Gilliam, 384 F. App’x. 497, 499 (6th Cir. 2010). Petitioner was not entitled to
substitute counsel because his complaints against counsel involved differences
of opinion regarding strategy rather than any irreconcilable conflict or total lack of
communication. See e.g. Adams v. Smith, 280 F. Supp. 2d 704, 720 (E.D. Mich.
2003). The record in this case does not demonstrate that the disagreements
between the petitioner and his attorney rose to the level of a conflict sufficient to
justify the substitution of counsel. See United States v. Sullivan, 431 F.3d 976,
981 (6th Cir. 2005).
Secondly, the judge sufficiently inquired into the petitioner’s allegations of
ineffectiveness against counsel at the plea withdrawal hearing and on the first
day of trial. In light of the fact that there were “multiple lengthy discussions” with
petitioner and his defense counsel about their alleged conflicts, there was no
abuse of discretion in denying his motion for the trial judge to appoint a second
attorney to represent petitioner. See U.S. v. Vasquez, 560 F.3d 461, 467 (6th
Cir. 2009).
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Finally, petitioner is unable to show that he was prejudiced by the failure of
the trial court to appoint substitute counsel, in light of the fact that he received
effective assistance of counsel at trial. Vasquez, 560 F.3d at 468. “The strained
relationship” between the petitioner and his attorney was not a “complete
breakdown in communication” that prevented the petitioner from receiving an
adequate defense. Id.
The Michigan Court of Appeals’ conclusion that the trial judge’s denial of
petitioner’s motion to substitute counsel did not violate his Sixth Amendment
rights, was not an unreasonable application of federal law, and thus petitioner is
not entitled to federal habeas relief. See Henness v. Bagley, 644 F.3d 308, 322
(6th Cir. 2011).
B. Claim # 2. The insufficient evidence claim.
Petitioner claims that there was insufficient evidence of premeditation and
deliberation to support submitting the first-degree murder charge to the jury.
Petitioner was acquitted of this charge and found guilty of the lesser included
offense of second-degree murder.
“[C]learly established Supreme Court law provides that a defendant has a
right not to be convicted except upon proof of every element of a crime beyond a
reasonable doubt; the Supreme Court has never held that the submission of a
charge, upon which there is insufficient evidence, violates a defendant’s
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constitutional rights where the defendant is acquitted of that charge.” Long v.
Stovall, 450 F. Supp. 2d 746, 752 (E.D. Mich. 2006)(quoting Skrzycki v. Lafler,
347 F. Supp.2d 448, 453 (E.D. Mich. 2004) (emphasis original); See also Aldrich
v. Bock, 327 F. Supp. 2d 743, 761-62 (E.D. Mich. 2004). A number of cases
have held that the submission to a jury of a criminal charge constitutes harmless
error where the habeas petitioner is acquitted of that charge. Daniels v. Burke,
83 F. 3d 760, 765, fn. 4 (6th Cir. 1996); Long, 450 F. Supp. 2d at 752; Aldrich,
327 F. Supp. 2d at 761; Johnson v. Hofbauer, 159 F. Supp. 2d 582, 596 (E.D.
Mich. 2001); But see Williams v. Jones, 231 F. Supp. 2d 586, 593-94 (E.D.Mich.
2002)(finding this claim cognizable). In light of the fact that petitioner was
acquitted of the first-degree premeditated murder charge and only found guilty of
the lesser included offense of second-degree murder, any error in submitting the
first-degree premeditated murder charge to the jury would not entitle petitioner to
habeas relief. See King v. Trippett, 27 F. App’x. 506, 510 (6th Cir.
2001)(petitioner who alleged that the trial court improperly refused to enter a
directed verdict on his armed robbery charge, even though the jury subsequently
acquitted him on that charge, failed to state a claim sufficient for habeas corpus
relief).
Moreover, there was sufficient evidence of premeditation and deliberation
to support submitting the first-degree murder charge to the jurors. It is beyond
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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(internal citation and footnote omitted)(emphasis in the
original).
To constitute first-degree murder in Michigan, the state must establish that
a defendant’s intentional killing of another was deliberated and premeditated.
See Scott v. Elo, 302 F. 3d 598, 602 (6th Cir. 2002)(citing People v. Schollaert,
194 Mich. App. 158; 486 N.W.2d 312, 318 (1992)). The elements of
premeditation and deliberation may be inferred from the circumstances
surrounding the killing. See Johnson v. Hofbauer, 159 F. Supp. 2d at 596)(citing

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People v. Anderson, 209 Mich. App. 527, 537; 531 N. W. 2d 780 (1995)).
Premeditation may be established through evidence of the following factors:
1. the prior relationship of the parties;
2. the defendant’s actions before the killing;
3. the circumstances of the killing itself;
4. the defendant’s conduct after the homicide.
Cyars v. Hofbauer, 383 F. 3d 485, 491 (6th Cir. 2004); Anderson, 209
Mich. App. at 527.
Although the minimum time required under Michigan law to premeditate “is
incapable of exact determination, the interval between initial thought and
ultimate action should be long enough to afford a reasonable man time to
subject the nature of his response to a ‘second look.’” See Williams v. Jones,
231 F. Supp. 2d at 594-95 (quoting People v. Vail, 393 Mich. 460, 469; 227 N.W.
2d 535 (1975)). “A few seconds between the antagonistic action between the
defendant and the victim and the defendant’s decision to murder the victim may
be sufficient to create a jury question on the issue of premeditation.” Alder v.
Burt, 240 F. Supp. 2d 651, 663 (E.D. Mich. 2003). “[A]n opportunity for a
‘second look’ may occur in a matter of seconds, minutes, or hours, depending
upon the totality of the circumstances surrounding the killing.” Johnson, 159 F.
Supp. 2d at 596(quoting People v. Berthiaume, 59 Mich. App. 451, 456 (1975)).
Premeditation and deliberation may be inferred from the type of weapon used
and the location of the wounds inflicted. See People v. Berry, 198 Mich. App.
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123, 128; 497 N. W. 2d 202 (1993). Use of a lethal weapon will support an
inference of an intent to kill. Johnson, 159 F. Supp. 2d at 596 (citing People v.
Turner, 62 Mich. App. 467, 470; 233 N.W. 2d 617 (1975)). Finally, premeditation
and intent to kill may be inferred from circumstantial evidence. See DeLisle v.
Rivers, 161 F. 3d 370, 389 (6th Cir. 1998).
As the Michigan Court of Appeals noted in rejecting petitioner’s claim, See
Tate, 2011 WL 4375079, at *5, there was sufficient evidence of premeditation
and deliberation to support submitting the first-degree murder charge to the
jurors. Petitioner brought a loaded handgun to the victim’s house and verbally
threatened him. Petitioner fired several shots at the front door of the victim’s
house moments before the actual killing. Petitioner fled the scene. When police
spotted petitioner six days later, petitioner ran down an alley, pulled the murder
weapon from his waistband, and threw it into the yard of a vacant house in an
attempt to hide the gun. All of these factors were sufficient evidence of
premeditation and deliberation so as to warrant submitting the first-degree
murder charge to the jury. Petitioner is not entitled to relief on his second claim.
C. Claim # 3. The jury instruction claim.
Petitioner claims that the trial judge deprived him of a fair trial by refusing
to instruct the jurors on self-defense and imperfect self-defense.

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A defendant in a criminal trial has the right to “a meaningful opportunity to
present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984).
“[A] necessary corollary of this holding is the rule that a defendant in a criminal
trial has the right, under appropriate circumstances, to have the jury instructed
on his or her defense, for the right to present a defense would be meaningless
were a trial court completely free to ignore that defense when giving
instructions.” See Taylor v. Withrow, 288 F. 3d 846, 852 (6th Cir. 2002).
A defendant is therefore entitled to a jury instruction as to any recognized
defense for which there exists evidence sufficient for a reasonable juror to find in
his or her favor. Mathews v. United States, 485 U.S. 58, 63 (1988). A state trial
court’s failure to instruct a jury on self-defense when the instruction has been
requested and there is sufficient evidence to support such a charge violates a
criminal defendant’s rights under the Due Process Clause. Taylor, 288 F. 3d at
851.
Under Michigan law, one acts lawfully in self-defense if he or she honestly
and reasonably believes that he or she is in danger of serious bodily harm or
death, as judged by the circumstances as they appeared to the defendant at the
time of the act. Blanton v. Elo, 186 F. 3d 712, 713, n. 1 (6th Cir. 1999)(citing to
People v. Heflin, 434 Mich. 482; 456 N. W. 2d 10 (1990)). To be lawful
self-defense, the evidence must show that: (1) the defendant honestly and
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reasonably believed that he was in danger; (2) the danger feared was death or
serious bodily harm or imminent forcible sexual penetration; (3) the action taken
appeared at the time to be immediately necessary; and (4) the defendant was
not the initial aggressor. See Johnigan v. Elo, 207 F. Supp. 2d 599, 608-09 (E.D.
Mich. 2002)(citing People v. Barker, 437 Mich. 161, 165; 468 N.W. 2d 492
(1991); People v. Kemp, 202 Mich. App. 318, 322; 508 N.W.2d 184 (1993);
People v. Deason, 148 Mich. App. 27, 31; 384 N.W.2d 72 (1985)).
The trial judge declined to instruct the jurors on self-defense because
petitioner was the initial aggressor. The trial court’s refusal to instruct the jury on
the defense of self-defense did not deprive petitioner of a fair trial, in light of the
fact that petitioner initiated the confrontation. Because petitioner was not entitled
under Michigan law to assert a self-defense claim, the trial court’s failure to give
an instruction on the defense of self-defense did not deprive petitioner of his
constitutional right to due process. See e.g. Allen v. Morris, 845 F. 2d 610, 61617 (6th Cir. 1988); Melchior v. Jago, 723 F. 2d 486, 493-94 (6th Cir. 1983).
Petitioner further claims that the judge erred in failing to instruct the jurors
in imperfect self-defense, which would reduce the murder charge to voluntary
manslaughter.
At the time of petitioner’s trial, the Michigan Supreme Court had yet to
recognize the doctrine of imperfect self-defense as a defense. See People v.
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Tate v. Gidley, No. 2:14-CV-12445
Posey, 459 Mich. 960; 590 N.W. 2d 577 (1999). The Michigan Court of Appeals,
however, had recognized imperfect self-defense as a qualified defense that
could mitigate a murder charge to voluntary manslaughter. The Michigan Court
of Appeals held that the defense of imperfect self-defense was available where
the defendant would have been entitled to raise the theory of self-defense had
he or she not been the initial aggressor. See People v. Kemp, 202 Mich. App. at
323.
Recently, however, the Michigan Supreme Court held that the doctrine of
imperfect self-defense is not available as “ a freestanding defense that mitigates
a murder to manslaughter because it was not recognized as such under the
common law at the time the Legislature codified the crimes of murder and
manslaughter.” People v. Reese, 491 Mich. 127, 150; 815 N.W.2d 85 (2012).
State courts are the “ultimate expositors of state law.” Mullaney v. Wilbur,
421 U.S. 684, 691 (1975). What is essential to establish the elements of a crime
is a matter of state law. See Sanford v. Yukins, 288 F. 3d 855, 862 (6th Cir.
2002). Likewise, “[D]ue process does not require that a defendant be permitted
to present any defense he chooses. Rather, states are allowed to define the
elements of, and defenses to, state crimes. “ See Lakin v. Stine, 80 F. App’x.
368, 373 (6th Cir. 2003)(citing Apprendi v. New Jersey, 530 U.S. 466, 484-87
(2000); McMillan v. Pennsylvania, 477 U.S. 79, 84-86, (1986)). The
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Tate v. Gidley, No. 2:14-CV-12445
circumstances under which a criminal defense may be asserted is thus a
question of state law. Id.
Although at the time of petitioner’s trial the Michigan Court of Appeals had
held that the doctrine of imperfect self-defense exists as a defense to the crime
of murder, the Michigan Supreme Court has now held that imperfect selfdefense is not available as a defense to murder charges in Michigan. Because
of this change in the law, petitioner would not be entitled to habeas relief on his
claim. Habeas relief under 28 U.S.C. § 2254 “is available only to state prisoners
who currently are being held in violation of an existing constitutional right, not to
inmates who at one point might have been able to show that a since-overruled
Supreme Court or lower court precedent would have granted them relief.” Desai
v. Booker, 538 F. 3d 424, 428 (6th Cir. 2008). There is no practical remedy that
this Court can give to petitioner by granting him a new trial. The most that
petitioner could hope for is a new trial, in which he would no longer be permitted
under Michigan law to raise a defense of imperfect self-defense. Any new trial
would look identically like the old trial in the sense that the jury would again not
be instructed on imperfect self-defense, thus, the trial court’s failure to instruct on
imperfect self-defense at petitioner’s trial “is the epitome of a harmless and
therefore uncorrectable error on habeas review.” Id. (Citing Brecht v.

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Tate v. Gidley, No. 2:14-CV-12445
Abrahamson, 507 U.S. 619, 638 (1993)). Petitioner is not entitled to habeas
relief on his third claim.
D. Claim # 4. The ineffective assistance of counsel claim.
Petitioner claims that appellate counsel was ineffective for failing to raise
several ineffective assistance of trial counsel claims on direct appeal.
Respondent contends that petitioner’s fourth claim is procedurally
defaulted, because he raised it for the first time in his post-conviction motion for
relief from judgment and failed to show cause for failing to raise this claim in his
appeal of right, as well as prejudice, as required by M.C.R. 6.508(D)(3).
Petitioner could not have procedurally defaulted his ineffective assistance
of appellate counsel claim, because state post-conviction review was the first
opportunity that he had to raise this claim. See Guilmette v. Howes, 624 F. 3d
286, 291 (6th Cir. 2010). Moreover, to the extent that respondent argues that
petitioner’s underlying ineffective assistance of trial counsel claims are defaulted
pursuant to M.C.R. 6.508(D)(3), petitioner claims that his appellate counsel was
ineffective for failing to raise his claims in his appeal of right. Ineffective
assistance of counsel may establish cause for procedural default. Edwards v.
Carpenter, 529 U.S. 446, 451-52 (2000). If petitioner could show that he
received ineffective assistance of appellate counsel that rose to the level of a

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Sixth Amendment violation, it would excuse his procedural default for failing to
raise his claims on his direct appeal in the state courts. Seymour v. Walker, 224
F. 3d 542, 550 (6th Cir. 2000). Given that the cause and prejudice inquiry for the
procedural default issue merges with an analysis of the merits of petitioner’s
defaulted claims, it would be easier to consider the merits of these claims. See
Cameron v. Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004).
To show that he was denied the effective assistance of counsel under
federal constitutional standards, a defendant must satisfy a two prong test. First,
the defendant must demonstrate that, considering all of the circumstances,
counsel’s performance was so deficient that the attorney was not functioning as
the “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington,
466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong
presumption that counsel’s behavior lies within the wide range of reasonable
professional assistance. Id. In other words, petitioner must overcome the
presumption that, under the circumstances, the challenged action might be
sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must
show that such performance prejudiced his defense. Id. To demonstrate
prejudice, the defendant must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
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The Strickland standard applies as well to claims of ineffective assistance
of appellate counsel. See Whiting v. Burt, 395 F. 3d 602, 617 (6th Cir. 2005).
The Sixth Amendment guarantees a defendant the right to the effective
assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387,
396-397 (1985). However, court appointed counsel does not have a
constitutional duty to raise every nonfrivolous issue requested by a defendant.
Jones v. Barnes, 463 U.S. 745, 751 (1983).
Petitioner first claims that trial counsel was ineffective for failing to call
witnesses to support his self-defense claim. Petitioner did not mention the
names of these witnesses in his state post-conviction motion or in his habeas
petition. Petitioner also failed to attach any affidavits from any witnesses to his
state post-conviction motion or appeal briefs, nor did he provide this Court with
any affidavits from these witnesses concerning their proposed testimony and
willingness to testify on the petitioner’s behalf.
Conclusory allegations of ineffective assistance of counsel, without any
evidentiary support, do not provide a basis for habeas relief. See Workman v.
Bell, 178 F.3d 759, 771 (6th Cir. 1998). By failing to present any evidence to the
state courts in support of his ineffective assistance of claim, petitioner is not
entitled to an evidentiary hearing on his ineffective assistance of counsel claim
with this Court. See Cooey v. Coyle, 289 F. 3d 882, 893 (6th Cir. 2002)(citing 28
24

Tate v. Gidley, No. 2:14-CV-12445
U.S.C. § 2254(e)(2)(A)(ii)). Petitioner has offered, neither to the Michigan courts
nor to this Court, any evidence beyond his own assertions as to whether the
witnesses would have been able to testify and what the content of these
witnesses’ testimony would have been. In the absence of such proof, petitioner
is unable to establish that he was prejudiced by trial counsel’s failure to call
these witnesses to testify at trial, so as to support the second prong of an
ineffective assistance of trial counsel claim. See Clark v. Waller, 490 F. 3d 551,
557 (6th Cir. 2007).
Petitioner next claims that trial counsel should have filed a pre-trial motion
to dismiss the first-degree murder charge on the ground that there was
insufficient evidence of premeditation and deliberation. The evidence at trial was
similar to the evidence presented at the preliminary examination. Because there
was sufficient evidence of premeditation and deliberation presented at the
preliminary examination to bind petitioner over for trial on the first-degree murder
charge, counsel was not ineffective for failing to file a motion to quash the
information to seek a dismissal of this charge. See e.g. Dell v. Straub, 194 F.
Supp. 2d 629, 649 (E.D. Mich. 2002).
Petitioner next contends that trial counsel was ineffective for failing to
move to strike a biased juror. Before trial was to begin, one of the jurors
informed the judge that he had not realized until break that he knew “this man
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Tate v. Gidley, No. 2:14-CV-12445
from somewhere,” although he was “not sure where,” and that he might know
some of the witnesses. It is unclear from the record whether the juror was
referring to petitioner or someone else in the courtroom. He asked the judge to
read the witness list to him. The prosecutor read the witness list. The juror
responded that he knew a witness, but that she did not live in Detroit. When the
prosecutor indicated that the witness was African-American, the judge asked the
juror if this resolved the issues in his mind and he replied affirmatively. (Tr.
5/10/10, pp. 115-17).
To maintain a claim that a biased juror prejudiced him, for purposes of
maintaining an ineffective assistance of counsel claim, a habeas petitioner must
show that the juror was actually biased against him. See Hughes v. United
States, 258 F. 3d 453, 458 (6th Cir. 2001); See also Miller v. Francis, 269 F. 3d
609, 616 (6th Cir. 2001)(when a claim of ineffective assistance of counsel is
founded on a claim that counsel failed to strike a biased juror, the defendant
must show that the juror was actually biased against him). Petitioner has offered
no evidence that this juror was actually biased towards him, thus, counsel was
not ineffective for failing to move to strike this juror.
Petitioner lastly claims that trial counsel was ineffective for failing to
request an instruction on the lesser included offense of voluntary manslaughter
under an imperfect self-defense theory.
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A failure to request charges on all possible lesser included offenses may
be proper trial strategy. See Tinsley v. Million, 399 F. 3d 796, 808 (6th Cir.
2005). Because counsel may have wished to avoid this possibility, the decision
not to request lesser included offenses is not ineffective assistance of counsel.
See Lewis v. Russell, 42 F. App’x. 809, 810-11 (6th Cir. 2002)(trial counsel’s
failure during murder trial to request jury instruction on lesser-included offense of
voluntary manslaughter constituted reasonable strategic decision consistent with
defendant’s effort to seek full acquittal on basis of self-defense, and thus did not
constitute deficient performance); Edwards v. Mack, 4 F. App’x. 215, 217-18 (6th
Cir. 2001)(counsel’s waiver of jury instructions on lesser-included offenses was
not ineffective assistance, where defendant did not want jury instructed on lesser
included offenses, but instead hoped to obtain an acquittal by having jury
instructed on the murder charge only; moreover, even if counsel pursued
strategy without the defendant’s permission, it constituted a proper exercise of
counsel’s judgment to waive lesser included offense instructions).
Moreover, the Michigan Court of Appeals concluded that petitioner was
not entitled to an instruction on imperfect self-defense under Michigan law
because the evidence established that petitioner initiated the confrontation with
the victim at the front door of 4840 Townsend Street with the intent to kill or inflict
great bodily harm. People v. Tate, 2011 WL 4375079, at * 6-7. In analyzing
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Tate v. Gidley, No. 2:14-CV-12445
petitioner’s claim that counsel was ineffective for failing to request such an
instruction, this expression of state law is binding on this Court. See Strayhorn v.
Booker, 718 F. Supp. 2d 846, 870 (E.D. Mich. 2010)(internal citations omitted).
Because the imperfect self-defense instruction was inappropriate under state
law, counsel was not ineffective for failing to request such an instruction. Id;, See
also Mitzel v. Tate, 267 F. 3d 524, 538 (6th Cir.2001). Petitioner is not entitled to
habeas relief on his ineffective assistance of trial counsel claims.
Because petitioner has failed to show that his trial counsel was ineffective,
petitioner is unable to establish that appellate counsel was ineffective for failing
to raise these ineffective assistance of trial counsel claims on his appeal of right.
See e.g. Fautenberry v. Mitchell, 515 F. 3d 614, 642 (6th Cir. 2008). The Court
therefore rejects petitioner’s fourth claim.
E. A certificate of appealability.
A habeas petitioner must receive a certificate of appealability (“COA”) in
order to appeal the denial of a habeas petition for relief from either a state or
federal conviction. 1 28 U.S.C. §§ 2253(c)(1)(A), (B). A court may issue a COA
1

Effective December 1, 2009, the newly created Rule 11 of the Rules
Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll.
§ 2254, provides that “[t]he district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rule 11(a), 28
U.S.C. foll. § 2254.
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Tate v. Gidley, No. 2:14-CV-12445
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal district court rejects
a habeas claim on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the district court's
assessment of the constitutional claim debatable or wrong. See Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by
demonstrating that ... jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). In applying this standard, a district court may not conduct a full
merits review, but must limit its examination to a threshold inquiry into the
underlying merit of the petitioner's claims. Id. at 336-37.
The Court concludes that jurists of reason would find its assessment of the
constitutional claims debatable or wrong. See Slack, 529 U.S. at 484-85. Any
doubt regarding whether to grant a COA from the denial of a petition for federal
habeas relief is resolved in favor of the habeas petitioner, and the severity of the
penalty may be considered in making that determination. See Newton v. Dretke,
371 F. 3d 250, 253 (5th Cir. 2004). Any doubts regarding the issuance of a COA
in this case should be resolved in petitioner’s favor, in light of the 28-45 year
prison sentence that he is serving on the second-degree murder conviction
along with the consecutive 2 year sentence on the felony-firearm conviction.
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Tate v. Gidley, No. 2:14-CV-12445
The Court thus issues petitioner a COA. Petitioner is also granted leave to
proceed on appeal in forma pauperis, as any appeal would not be frivolous. A
court may grant in forma pauperis status if the court finds that an appeal is being
taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a); Foster v.
Ludwick, 208 F. Supp. 2d 750, 765 (E.D. Mich. 2002).

IV. CONCLUSION
For the reasons stated above, this Court concludes that Petitioner Tate is
not entitled to federal-habeas relief on the claims presented in his petition.
Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is
DENIED WITH PREJUDICE. (Dkt. # 1.)
IT IS FURTHER ORDERED that the Court issues petitioner a certificate of
appealability and leave to proceed on appeal in forma pauperis.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: October 23, 2015
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on October 23, 2015, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

30