Camel v. Palmer

Filing 13

OPINION and ORDER denying petition for writ of habeas corpus; denying a certificate of appealability and denying leave to proceed in forma pauperis on appeal. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TREVEON CAMEL,
Petitioner,
CASE NO. 2:14-CV-12591
HONORABLE NANCY G. EDMUNDS

v.
CARMEN PALMER,
Respondent.
_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Treveon Camel

(“Petitioner”) was convicted of second-degree murder, MICH. COMP. LAWS § 750.317,
carrying a concealed weapon, MICH. COMP. LAWS § 750.227, and possession of a firearm
during the commission of a felony, MICH. COMP. LAWS § 750.227b, following a jury trial in
the Saginaw County Circuit Court. He was sentenced to 25 to 40 years imprisonment on
the murder conviction, a concurrent term of two to five years imprisonment on the
concealed weapon conviction, and a consecutive term of two years imprisonment on the
felony firearm conviction in 2009.

In his petition, he raises claims concerning the

sufficiency of the evidence, the conduct of the prosecutor and the right to be free from selfincrimination, the effectiveness of trial counsel, and the effectiveness of appellate counsel.
For the reasons set forth herein, the Court denies the petition for a writ of habeas corpus.
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The Court also denies a certificate of appealability and denies leave to proceed in forma
pauperis on appeal.
II.

Facts and Procedural History
Petitioner’s convictions arise from the shooting death of 15-year-old Cquaton

Holmes during an altercation in Saginaw, Michigan in 2007. The Court adopts the
statement of facts set forth by defense counsel on direct appeal to the extent that those
facts are consistent with the record. The facts are as follows:
Michael East testified that on July 5, 2007, he was employed as a patrol
officer for the City of Saginaw. (T.T. Vol. II p. 31) He was dispatched to South
Warren and Emerson in reference to a shooting victim. (T.T. Vol. II p. 32) He
observed a person lying in a field. The person was deceased with wounds in
the arm, back, and chest. (T.T. Vol. II p. 33) He did not change the position
of the body. (T.T. Vol. II p. 36)
Dr. Kanu Virani testified and was qualified by the trial court as an expert in
forensic pathology. (T.T. Vol. II p. 41-44) He performed an autopsy on July
6, 2007 on a Cquaton Holmes. (T.T. Vol. II p. 44) There were bullet wounds
to the back and to the front on the arm. (T.T. Vol. II p. 45) There was an
entrance wound to the right side of the back. (T.T. Vol. II p. 47) The exit
wound was to the left side of the front of the chest. (T. T. Vol. II p. 48) The
cause of the death was a gunshot wound to the back and the manner of the
death was homicide. (T.T. Vol II p. 51) Dr. Virani expected the individual to
remain conscious for about 30 seconds after receiving such a wound to the
back that perforated the lungs and aorta. (T. T. Vol. II p. 52)
James Vondette was employed in the identification bureau of the Saginaw
City Police Department on July 5, 2007. (T.T. Vol. II p. 67) He was called to
the homicide scene and observed the body covered by a sheet and a large
crowd of people present. (T.T. Vol. II p. 68) The scene was taped up to keep
the people out. When the body was removed he received a small revolver
from the victim's right front pocket. (T.T. Vol. II p. 69) It was a 38 special
revolver. It was sent to the Michigan State Police crime lab for testing. (T.T.
Vol. II p. 70) He was directed to 820 Emerson. (T.T. Vol. II p. 71) He
photographed two spent fired cartridge casings. (T.T. Vol. II p. 72) He also
photographed a bicycle that he was informed belonged to the victim. (T.T.
Vol. II P. 72) The casings were also sent to the Michigan State Police Crime
Lab. (T.T. Vol. II p. 75) He searched the area and did not find anything else
of interest. (T.T. Vol. II p. 77)
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Sabrina Barnes testified that on July 5, 2007, she was at her home on 909
South Warren Street. (T.T. Vol. II B p. 3-4) She was sitting in her car in the
driveway when she heard three or four gunshots. (T.T. Vol II B p 4-5) She
then saw "Twon" running in a field towards her house. Then he spun around
and fell. She and her sister called an ambulance. She was sure that the
person she saw was Cquaion Holmes. (T.T. Vol. II B p. 6-7)
Ashley Romero testified that in the summer of 2007, she was living at 820
Emerson Street. (T.T. Vol. II B p. 10) Defendant-Appellant was her boyfriend.
(T.T. Vol II B p. 11) On July 5, 2007, Defendant-Appellant was at her home
from 3:00 that afternoon until the evening news was over. (T.T. Vol. II B p.
14) She thought he was going out to his car for his phone but he didn't return
right away. (T.T. Vol II B p. 15-17) Instead he left his car with Darquavious
Miree. (T.T. Vol. II B p. 19) She heard the car return and then she could hear
Cquaton's voice speaking loudly. She went out on the porch. (T.T. Vol. II B
p. 20-2 l) She saw Cquaton and Defendant-Appellant. (T.T. Vol. II B p. 23)
Cquaton was walking away with his bicycle. He called Defendant-Appellant
a bitch. (T.T. Vol. II B p. 25) Defendant-Appellant pulled the trigger four times
of his black semiautomatic handgun. (T.T. Vol. II B p. 26) Cquaton dropped
the bike and grabbed his let arm. (T.T. Vol. II B 27) Before shorts were fired,
he turned towards Defendant- Appellant and called him a bitch. (T.T. Vol. II
B p. 28) She did not see anything other than the bicyc;le in Cquaton's hands.
(T.T. Vol. II B p. 29) After the shots were fired, he dropped the bike and ran
to the field. (T.T. Vol. II B 29) Defendant-Appellant ran to the back of her
house. She could not see whether he had a gun. (T.T. Vol II B p. 32) He was
behind the house for thirty seconds. (T.T. Vol. II B p.33) Defendant-Appellant
then pulled out of Ms. Romero's driveway. She asked him to return her cell
phone and he tossed it out the car window on her front lawn. (T.T. Vol. II B
p. 35-36) She had never seen him carry a gun before. (T.T. Vol. II B p. 38)
Darquavious Miree testified that on July 5, 2007, he was on Emerson Street.
(T.T. Vol. II B p. 66) He saw Defendant-Appellant at Ashley Romero's house.
(T.T. Vol. II B p. 67) He asked Defendant-Appellant for a ride to the store and
he agreed to take him. (T.T. Vol. II B p. 68) They had stopped on Brown
Street on the way to the store. They saw four or five people on that street and
they talked to them. These people included Kenarious and Cquaton Holmes.
(T.T. Vol. II B p. 70) Defendant-Appellant asked Kenarious if he had stole his
radio and Cquaton took offense to this. There was an agreement that they
would meet on Emerson and fight there. (T.T. Vol. II B p. 71-72) When they
returned to Emerson they saw Cquaton riding his bicycle towards them. Mr.
Miree left to walk towards his friend's home. (T.T. Vol. II B p. 75-76) Mr.
Miree could tell Cquaton had a gun because he had his hand in his right front
pocket. (T.T. Vol. II B p. 77) Mr. Miree kept walking but continued to look
back. (T. T. Vol. II B p. 78) Cquaton got off his bike and pointed his gun at
Defendant-Appellant. (T.T. Vol. II B p. 79) He saw Defendant-Appellant wave
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off the gun. (T.T. Vol. II B p. 80) He heard Cquaton say "you think I won't
'murk' you in front of Eric's grandma's house." (T.T. Vol. II B p. 82) Then
Cquaton picked up his bicycle and walked away from Defendant-Appellant.
(T.T. Vol. II B p. 83) He had seen Defendant -Appellant brush the gun away
once or twice. (T.T. Vol. II B p. 84) He thought it was over and turned his
head, then he heard three or four shots. He dropped the bike and ran toward
the field. Mr. Miree saw him put the gun in his back pocket. The shots
sounded like they were from the same gun. (T.T. Vol. II B p 85-86) He
thought he saw Defendant-Appellant run to the back. (T.T. Vol. II B p. 89) He
saw Cquaton run to the field with blood on his shirt and he collapsed. (T.T.
Vol. II B p. 90) When he was in the car earlier that day with
Defendant-Appellant he had the gun on his lap. (T.T. Vol. II B p. 93)
Kenneth Binder testified and was recognized as an expert in latent fingerprint
examination. (T.T. Vol. III p. 3-5) He examined the two fired shell casings that
were found at the scene and was unable to locate any fingerprints. (T.T. Vol.
III p. 5-6)
Ryan Larrison testified and was recognized as an expert by the trial court in
firearm and toolmark identification. (T.T. Vol. Ill p. 7-8) He examined the two
fired shell casings. (T.T. Vol. III p. 8-9) He determined they were 9-millimeter
caliber bullets that are consistent with being manufactured by Glock. (T.T.
Vol. III p. 10) He also examined the .38 special caliber revolver. It was
operable but required a heavy trigger pull. (T.T. Vol. III p. 11-12) He did not
observe any lint in the barrel of the gun which could be an indication that it
was recently fired. (T.T. Vol. III p. 13) He was familiar with the gunshot
residue swab but it is not a test performed by the Michigan State Police labs.
(T.T. Vol. III p. 14-16)
Robert Ruth testified that on July 5, 2007, he was one of the detectives
assigned to this case. (T.T. Vol. III p. 29) He spoke with
Defendant-Appellant's mother and father. They told him they would speak to
their son. (T.T. Vol. III p. [ ]) On July 6, 2007 at about 2:45 p.m.
Defendant-Appellant turned himself in. They did not perform the GSP swab
on Cquaton Holmes. (T.T. Vol. III p. 31-32)
Pet. App. Brf., pp. 7-12. Petitioner did not testify at trial, but asserted a claim of selfdefense.
At the close of trial, the jury convicted Petitioner of second-degree murder, carrying
a concealed weapon, and felony firearm. The trial court subsequently sentenced him to

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25 to 40 years imprisonment, a concurrent term of two to five years imprisonment, and a
consecutive term of two years imprisonment.
Petitioner filed an appeal of right with the Michigan Court of Appeals raising claims
concerning the sufficiency of the evidence to submit a first-degree murder charge to the
jury/denial of directed verdict motion, the sufficiency of the evidence to support his seconddegree murder conviction, the prosecutor’s closing argument comments implicating his right
against self-incrimination, and the effectiveness of trial counsel for failing to object to those
comments. The court denied relief on those claims and affirmed his convictions. People
v. Camel, No. 290270, 2010 WL 199612 (Mich. Ct. App. Jan. 21, 2010) (unpublished).
Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which
was denied in a standard order. People v. Camel, 486 Mich. 1045, 783 N.W.2d 382 (2010).
Petitioner subsequently filed a motion for relief from judgment with the state trial
court raising claims concerning the effectiveness of trial and appellate counsel. The trial
court denied the motion. People v. Camel, No. 07-029540-FC (Saginaw Co. Cir. Ct. Sept.
30, 2011). Petitioner then filed a request for reconsideration and a supplemental motion
for relief from judgment raising additional claims concerning the effectiveness of trial and
appellate counsel, as well as a claim concerning the failure to conduct a gunshot residue
test on the victim’s hands. The trial court denied those motions. People v. Camel, No. 07029540-FC (Saginaw Co. Cir. Ct. April 2, 2012). Petitioner filed an application for leave to
appeal with the Michigan Court of Appeals, which was denied for failure to meet the burden
of establishing entitlement to relief under MCR 6.508(D). People v. Camel, No. 309059
(Mich. Ct. App. Aug. 24, 2012). Petitioner filed an application for leave to appeal with the

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Michigan Supreme Court, which was similarly denied. People v. Camel, 493 Mich. 920,
823 N.W.2d 589 (Dec. 26, 2012).
Petitioner thereafter filed his initial, undated, federal habeas petition on January 24,
2013 raising claims concerning the sufficiency of the evidence, his right against selfincrimination, and the effectiveness of trial and appellate counsel. Respondent filed an
answer to the petition on August 2, 2013 asserting that it should be denied. Petitioner,
through counsel, subsequently moved to stay the proceedings so that he could return to
state court on a second motion for relief from judgment and exhaust additional issues
concerning the effectiveness of defense counsel and the non-disclosure of evidence (based
upon a change in the law and newly-discovered evidence). The Court denied the motion
finding that Petitioner had not shown the need for a stay because only nine months of the
one-year statute of limitations applicable to federal habeas actions had expired and three
months remained. Petitioner then moved to voluntarily dismiss his petition. The Court
granted that motion and dismissed his petition without prejudice on December 12, 2013.
Petitioner thereafter moved to set aside that dismissal, reinstate his case, and waive the
exhaustion requirement. The Court denied that motion on February 5, 2014. See Camel
v. Rapelje, No. 2:13-CV-10308 (E.D. Mich.) (Edmunds, J.).
On or about June 1, 2014, Petitioner filed a second motion for relief from judgment
with the state trial court raising claims concerning his right to a public trial during jury voir
dire and a motion hearing and the effectiveness of trial counsel as to those issues, the nondisclosure of email evidence, the prosecution’s concealment of a witness, the effectiveness
of trial counsel, the non-disclosure of a plea offer, actual innocence and state impediment

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to excuse his procedure default, and the effectiveness of appellate counsel. Those
proceedings are apparently ongoing in state court.
On July 1, 2014, Petitioner filed the instant habeas petition. Respondent has filed
an answer to the petition asserting that it should be denied because certain claims are
barred by procedural default and all of the claims lack merit. Petitioner has not filed a reply
to that answer.
III.

Standard of Review
Federal law 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 –
(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 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 [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 [that] precedent.’” Mitchell v. Esparza, 540
U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06
(2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

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“[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 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); see
also Bell, 535 U.S. at 694. However, “[i]n order for a federal court 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.’” Wiggins, 539 U.S. at 520-21 (citations omitted); see also
Williams, 529 U.S. at 409. “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) (quoting Lindh, 521 U.S. at 333,
n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
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)). The Supreme Court has emphasized “that even a strong case
for relief does not mean the state court's contrary conclusion was unreasonable.” Id. (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or ... could have supported, the state
court's decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior
decision" of the Supreme Court. Id. Thus, in order to obtain habeas relief in federal court,
a state prisoner must show that the state court's rejection of his claim "was so lacking in
8

justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id; see also White v. Woodall, _ U.S.
_, 134 S. Ct. 1697, 1702 (2014). Federal judges “are required to afford state courts due
respect by overturning their decisions only when there could be no reasonable dispute that
they were wrong.” Woods v. Donald, _ U.S. _, 135 S. Ct. 1372, 1376 (2015). A habeas
petitioner cannot prevail as long as it is within the “realm of possibility” that fairminded
jurists could find the state court decision to be reasonable. Woods v. Etherton, _ U.S. _,
136 S. Ct. 1149, 1152 (2016).
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. Williams,
529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that
the Supreme Court “has held on numerous occasions that it is not ‘an unreasonable
application of clearly established Federal law’ for a state court to decline to apply a specific
legal rule that has not been squarely established by this Court”) (quoting Wright v. Van
Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71-72. Section
2254(d) “does not require a state court to give reasons before its decision can be deemed
to have been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it
“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); see also
Mitchell, 540 U.S. at 16. While the requirements of “clearly established law” are to be
determined solely by Supreme Court precedent, the decisions of lower federal courts may
9

be useful in assessing the reasonableness of the state court’s resolution of an issue.
Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d
667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal
habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with
clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
Moreover, habeas review is “limited to the record that was before the state court.” Cullen
v. Pinholster, 563 U.S. 170, 181 (2011).
IV.

Analysis
A.

Insufficient Evidence Claim

Petitioner first asserts that he is entitled to habeas relief because the prosecution
presented insufficient evidence to support his second-degree murder conviction.
Respondent contends that this claim lacks merit.
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). The question on a sufficiency of the
evidence claim is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Jackson
standard must be applied “with explicit reference to the substantive elements of the criminal
offense as defined by state law.” Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006)
(quoting Jackson, 443 U.S. at 324 n. 16).

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A federal habeas court views this standard through the framework of 28 U.S.C.
§ 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Under the AEDPA,
challenges to the sufficiency of the evidence “must survive two layers of deference to
groups who might view facts differently” than a reviewing court on habeas review – the
factfinder at trial and the state court on appellate review – as long as those determinations
are reasonable.

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).

“[I]t is the

responsibility of the jury – not the court – to decide what conclusions should be drawn from
the evidence admitted at trial.” Cavazos v. Smith, _ U.S. _, 132 S. Ct. 2, 4 (2011) (per
curiam). “A reviewing court does not re-weigh the evidence or re-determine the credibility
of the witnesses whose demeanor has been observed by the trial court.” Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422,
434 (1983)). Accordingly, the “mere existence of sufficient evidence to convict . . . defeats
a petitioner’s claim.” Matthews, 319 F.3d at 788-89.
Under Michigan law, the elements of second-degree murder are: 1) a death, (2)
caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.
MICH. COMP. LAWS § 750.317; People v. Goecke, 457 Mich. 442, 463-64, 579 N.W.2d 868
(1998) (citing People v. Bailey, 451 Mich. 657, 669, 549 N.W.2d 325 (1996)). Malice is
defined as the intent to kill, the intent to cause great bodily harm, or the intent to perform
an act in wanton and willful disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm. Id. at 464 (citing People v. Aaron, 409
Mich. 672, 728, 299 N.W.2d 304 (1980)). Malice may be inferred from evidence that a
defendant intentionally set in motion a force likely to cause death or great bodily harm.
People v. Djordjevic, 230 Mich. App. 459, 463, 584 N.W.2d 610, 612 (1998) (citing Aaron).
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Malice may also be inferred from the use of a deadly weapon. People v. Carines, 460
Mich. 750, 759, 597 N.W.2d 130 (1999). Direct or circumstantial evidence and reasonable
inferences arising from that evidence may constitute satisfactory proof of the elements of
an offense. People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993).
Relying upon the foregoing standards, the Michigan Court of Appeals considered
this claim on direct appeal and denied relief. The court explained in relevant part:
Romero testified that defendant shot Holmes as Holmes was walking away.
Similarly, Miree testified that he thought the altercation between defendant
and Holmes was over when he, Miree, turned his head and began to walk
away. While Holmes did have a .38 special revolver, it was found in his right,
front pocket. Under these circumstances, a rational trier of fact could
conclude that defendant had not acted in self-defense when shooting
Holmes. Defendant may have been enraged by the encounter, including
being called a “bitch” by Holmes. But given that Holmes had broken-off the
confrontation, had his gun in his pocket, and was walking away from the
scene with his bike, a rational jury could conclude that defendant did not act
out of impulse during a state of emotional excitement that was so intense that
he acted before he could have calmed down.
Camel, 2010 WL 199612 at *4.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The prosecution presented sufficient
evidence to establish Petitioner’s guilt of second-degree murder through the testimony of
Ashley Romero and Darquavious Miree, as well as reasonable inferences from their
testimony. The fact that the victim’s gun was in his pocket and that he was shot while
walking away from the confrontation also supports the jury’s verdict. Considered in a light
favorable to the prosecution, the trial testimony and the physical evidence was sufficient
to show that Petitioner acted with the requisite intent to support his second-degree murder
conviction.
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Petitioner challenges the inferences the jury drew from the evidence at trial.
However, it is the job of the fact-finder at trial, not a federal habeas court, to resolve
evidentiary conflicts. Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618 (6th
Cir. 2002); Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A federal habeas
corpus court faced with a record of historical facts that supports conflicting inferences must
presume - even if it does not affirmatively appear in the record - that the trier of fact
resolved any such conflicts in favor of the prosecution, and must defer to that resolution.”).
The jury’s verdict, and the Michigan Court of Appeals’ decision affirming that verdict, were
reasonable.

The evidence at trial, viewed in a light favorable to the prosecution,

established beyond a reasonable doubt that Petitioner committed second-degree murder.
Habeas relief is not warranted on this claim.
Petitioner is also not entitled to habeas relief on any claim that there was insufficient
evidence to support the submission of the first-degree murder charge to the jury and/or that
the trial court erred in denying his directed verdict motion on the first-degree murder
charge. Clearly-established Supreme Court law provides only 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 submission of a charge upon which there
is insufficient evidence violates a defendant’s constitutional rights where the defendant is
acquitted of that charge. See 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)); Aldrich v. Bock,
327 F. Supp. 2d 743, 761-62 (E.D. Mich. 2004).
The United States Court of Appeals for the Sixth Circuit has recognized that “[s]ome
courts, under similar facts have concluded that submission to the jury of a charge
13

constituted harmless error in light of petitioner’s acquittal on that charge.” Daniels v. Burke,
83 F.3d 760, 765 n. 4 (6th Cir. 1996) (citing cases); see also Johnson v. Hofbauer, 159 F.
Supp. 2d 582, 596 (E.D. Mich. 2001), but cf. Williams v. Jones, 231 F. Supp. 2d 586, 59394 (E.D. Mich. 2002) (relying upon double jeopardy case of Price v. Georgia, 398 U.S. 323,
331 (1970)). Given that Petitioner was acquitted of the first-degree murder charge and only
found guilty of the lesser offense of second-degree murder, any error in submitting the
first-degree murder charge to the jury was harmless and does not warrant habeas relief.
Additionally, to the extent that Petitioner asserts that the trial court erred in denying his
directed verdict motion under state law, he fails to state a claim for habeas relief. See King
v. Trippett, 27 F. App’x 506, 510 (6th Cir. 2001) (upholding district court’s ruling that
petitioner failed to state a habeas claim where he alleged that trial court erred in denying
directed verdict motion on armed robbery charge and he was acquitted of that charge).
Lastly, even if Petitioner states a cognizable claim as to this issue, he is not entitled
to relief. Under Michigan law, first-degree premeditated murder requires proof that the
defendant intentionally killed the victim and that the act of killing was premeditated and
deliberate. People v. Schollaert, 194 Mich. App. 158, 170, 486 N.W.2d 312 (1992).
Premeditation and deliberation require sufficient time to allow the defendant to take a
second look. Id. The time interval may be minimal – merely seconds – depending upon
the circumstances of the killing. People v. Berthiaume, 59 Mich. App. 451, 456, 229
N.W.2d 497 (1975). Premeditation and deliberation may be established by evidence of “(1)
the prior relationship of the parties; (2) the defendant’s actions before the killing; (3) the
circumstances of the killing itself; and (4) the defendant’s conduct after the homicide.”
Schollaert, 194 Mich. App. at 170.
14

The Michigan Court of Appeals considered this claim on direct appeal and denied
relief. The court explained in relevant part:
The prosecution presented sufficient evidence from which a jury could infer
that defendant had sufficient time for reflection before shooting Holmes.
Defendant's then-girlfriend, Ashley Romero, testified that she watched the
killing from the front porch of her house. According to Romero, when she
went out on her front porch, defendant and Holmes were on the sidewalk.
Romero went onto her porch after hearing Holmes cursing and yelling
outside. Romero said that she saw Holmes walking with his bike. Romero
testified that as Holmes was walking away, he called defendant a “bitch.”
According to Romero, defendant then shot Holmes.
Darquavious Miree, a friend of defendant, said that he watched defendant
and Holmes argue from across the street. According to Miree, Holmes pulled
out a gun and pointed it at defendant's head. Miree saw defendant reach for
his gun, but not pull it out. Miree testified that next he saw Holmes pick up his
bike and start to walk off with it. Miree thought the altercation was over, so
he turned his head began walking. Miree then heard gunshots, looked back
toward the house, and saw defendant holding a gun.
Romero's and Miree's versions do not directly contradict each other, so it is
possible that both scenarios are accurate. In other words, Miree witnessed
the initial confrontation outside Romero's home and then Romero saw the
actual shooting as Miree's back was to the scene. In both Romero's and
Miree's versions, however, Holmes was walking away from defendant before
he was shot. Additionally, the shots that struck Holmes were fired from
behind him and a .38 special revolver was recovered from Holmes's right,
front pocket. A rational jury could infer that defendant had an opportunity,
undisturbed by the threat of imminent harm (as the Holmes's gun was in his
pocket), to take a “second look” between forming a initial homicidal intent and
ultimately pulling his gun and shooting Holmes in the back as he walked
away from the confrontation.
Camel, 2010 WL 199612 at *1-2.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The prosecution presented sufficient
evidence of malice and premeditation and deliberation through the testimony of Ashley

15

Romero and Darquavious Miree to support submitting the first-degree murder charge to the
jury. Habeas relief is not warranted on this claim.
B.

Prosecutorial Misconduct/Self-Incrimination Claim

Petitioner next asserts that he is entitled to habeas relief because the prosecutor
engage in misconduct and violated his Fifth Amendment protection against selfincrimination during closing arguments by stating that Petitioner fled the scene after the
shooting, did not turn himself in until the next day, and did not give his gun to the police.
Respondent contends that this claim is barred by procedural default and lacks merit.
Federal habeas relief may be precluded on a claim that a petitioner has not
presented to the state courts in accordance with the state's procedural rules. Wainwright
v. Sykes, 433 U.S. 72, 85-87 (1977); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). The
doctrine of procedural default applies when a petitioner fails to comply with a state
procedural rule, the rule is actually relied upon by the state courts, and the procedural rule
is "adequate and independent." White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006);
Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005); Coleman v. Mitchell, 244 F.3d 533,
539 (6th Cir. 2001). "A procedural default does not bar consideration of a federal claim on
either direct or habeas review unless the last state court rendering a judgment in the case
‘clearly and expressly' states that its judgment rests on a state procedural bar." Harris v.
Reed, 489 U.S. 255, 263-64 (1989). The last explained state court ruling is used to make
this determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991).
The Michigan Court of Appeals rendered the last reasoned opinion on this claim.
In denying relief, the court relied upon the failure to object at trial. Camel, 2010 WL 199612
at *3.

The failure to make a contemporaneous objection is a recognized and
16

firmly-established independent and adequate state law ground for refusing to review trial
errors. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130, 138 (1999); People v.
Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557, 579 (1994); see also Coleman v.
Thompson, 501 U.S. 722, 750-51 (1991). Moreover, a state court does not waive a
procedural default by looking beyond the default to determine if there are circumstances
warranting review on the merits. Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir. 1989).
Plain error review does not constitute a waiver of state procedural default rules. Girts v.
Yanai, 501 F.3d 743, 755 (6th Cir. 2007); Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir.
2001); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000). Nor does a state court fail
to sufficiently rely upon a procedural default by ruling on the merits in the alternative.
McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). The Michigan Court of Appeals
denied relief on this claim based upon a procedural default – the failure to object at trial.
A state prisoner who fails to comply with a state's procedural rules waives the right
to federal habeas review absent a showing of cause for noncompliance and actual
prejudice resulting from the alleged constitutional violation, or a showing of a fundamental
miscarriage of justice. Coleman, 501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-85
(6th Cir. 1996). To establish cause, a petitioner must establish that some external
impediment frustrated his or her ability to comply with the state's procedural rule. Murray
v. Carrier, 477 U.S. 478, 488 (1986). A petitioner must present a substantial reason to
excuse the default. Amadeo v. Zant, 486 U.S. 214, 223 (1988). Such reasons include
interference by officials, attorney error rising to the level of ineffective assistance of
counsel, or a showing that the factual or legal basis for a claim was not reasonably
available. McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).
17

In this case, Petitioner alleges that trial counsel was ineffective as cause to excuse
this default. Petitioner, however, cannot establish that trial counsel was ineffective (so as
to establish cause), nor can he establish actual prejudice, as this claim lacks merit. As
explained by the Michigan Court of Appeals on plain error review, the prosecutor's
comment on Petitioner’s flight from the crime scene was proper. Evidence of flight is
relevant and admissible to show consciousness of guilt under Michigan law. See People
v. Goodin, 257 Mich. App. 425, 432, 668 N.W.2d 392 (2003); People v. Coleman, 210 Mich.
App. 1, 4, 532 N.W.2d 885 (1995). Although the Supreme Court has expressed skepticism
as to the probative value of evidence of flight, see Wong Sun v. United States, 371 U.S.
471, 483 n. 10 (1963), it has recognized that such evidence may be relevant to show
consciousness of guilt.

See United States v. Scheffer, 523 U.S. 303, 331 (1998)

(dissenting opinion of Stevens, J.). Federal appellate courts have also held that evidence
of flight is admissible to show consciousness of guilt. See United States v. Dillon, 870 F.2d
1125, 1126 (6th Cir. 1989); accord United States v. Glenn, 312 F.3d 58, 67 (2d Cir. 2002);
United States v. Lupino, 301 F.3d 642, 646 (8th Cir. 2002). The admission of flight
evidence is not fundamentally unfair. See, e.g., Wright v. Jamrog, No. 04-CV-71585-DT,
2005 WL 3262544, *7 (E.D. Mich. 2005) (admission of flight evidence was proper under
Michigan law and did not justify habeas relief); Dorchy v. Jones, 320 F. Supp. 2d 564, 580
(E.D. Mich. 2004), aff’d 398 F.3d 783 (6th Cir. 2005).
The prosecutor’s remark about Petitioner’s delay in turning himself in was also
proper. Under Michigan law, a prosecutor may comment on a defendant’s failure to report
a crime when doing so would have been natural if the defendant’s version of events were
true. People v. McGhee, 268 Mich. App. 600, 634-35, 709 N.W.2d 595 (2005). The
18

remark was also proper as a challenge to Petitioner’s theory of self-defense. It is wellestablished that a prosecutor may highlight inconsistencies or inadequacies in the defense,
Bates v. Bell, 402 F.3d 635, 646 (6th Cir. 2005), and point out the lack of evidence
supporting the defense theory. United States v. Forrest, 402 F.3d 678, 686 (6th Cir. 2005).
The prosecutor’s comment on the gun not being turned in was similarly proper because it
challenged the defense theory of the case.
Additionally, any potential error by the prosecutor was mitigated by the fact that the
trial court properly instructed the jury that the attorneys’ arguments were not evidence, that
the prosecutor had the burden of proof, and that Petitioner had a right not to testify at trial.
See, e.g., Knapp v. White, 296 F. Supp. 2d 766, 776 (E.D. Mich. 2003) (ruling that trial
court’s instructions defeated habeas petitioner’s claim that he was denied a fair trial based
upon improper prosecutorial argument).

Jurors are presumed to follow the court’s

instructions. See Penry v. Johnson, 532 U.S. 782, 799 (2001) (citing Richardson v. Marsh,
481 U.S. 200, 211 (1987)); United States v. Powell, 469 U.S. 57, 66 (1984) (“Jurors...take
an oath to follow the law as charged, and they are expected to follow it.”). Petitioner fails
to show that the prosecutor’s remarks were improper, that they violated his right against
self-incrimination, or that they "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, _ U.S. _, 132 S. Ct. 2148, 2153 (2012) (confirming that Donnelly/Darden is the
proper standard).
Petitioner also fails to demonstrate that a fundamental miscarriage of justice
occurred. The miscarriage of justice exception requires a showing that a constitutional
19

violation probably resulted in the conviction of one who is actually innocent. Murray v.
Carrier, 477 U.S. 478, 479-80 (1986). To be credible, such a claim requires a petitioner to
provide new, reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S.
298, 324 (1995). Moreover, actual innocence means factual innocence, not mere legal
insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). Petitioner makes no
such showing. This claim is thus barred by procedural default, lacks merit, and does not
warrant habeas relief.
C.

Ineffective Assistance of Trial Counsel Claims

Petitioner next asserts that he is entitled to habeas relief because trial counsel was
ineffective for failing to raise an imperfect self-defense claim, for failing to introduce
evidence of the victim’s violent reputation, for failing to secure a gunshot residue test of the
victim’s hands, for erroneously advising him that he could be impeached with his
suppressed statements if he testified at trial, and by referencing a duel at the preliminary
examination. Respondent contends that these claims are barred by procedural default and
that they lack merit. Petitioner first raised these issues in the state courts on postconviction collateral review and the state courts denied relief pursuant to Michigan Court
Rule 6.508(D).
As noted, federal habeas relief may be precluded on claims that a petitioner has not
presented to the state courts in accordance with the state’s procedural rules. Wainwright,
433 U.S. at 85-87. The doctrine of procedural default is applicable when a petitioner fails
to comply with a state procedural rule, the rule is actually relied upon by the state courts,
and the procedural rule is “adequate and independent.” White, 431 F.3d at 524. The last
explained state court judgment should be used to make this determination. Ylst, 501 U.S.
20

at 803-05. If the last state judgment is a silent or unexplained denial, it is presumed that
the last reviewing court relied upon the last reasoned opinion. Id.
Petitioner first presented these ineffective assistance of trial counsel claims to the
state courts in his motion for relief from judgment. The Michigan Supreme Court denied
relief pursuant to Michigan Court Rule 6.508(D), which provides, in part, that a court may
not grant relief to a defendant if the motion for relief from judgment alleges grounds for
relief which could have been raised on direct appeal, absent a showing of good cause for
the failure to raise such grounds previously and actual prejudice resulting therefrom. See
MICH. CT. R. 6.508(D)(3). The Sixth Circuit has held that the form order used by the
Michigan Supreme Court to deny leave to appeal in this case is unexplained because its
citation to Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a
procedural default or a rejection on the merits. Guilmette v. Howes, 624 F.3d 286, 291-92
(6th Cir. 2010) (en banc). Consequently, under Guilmette, the Court must “look through”
the unexplained order of the Michigan Supreme Court to the state trial court’s decision to
determine the basis for the denial of state post-conviction relief.
In this case, the state trial court denied relief on procedural grounds by ruling that
Petitioner had not shown cause and prejudice under Michigan Court Rule 6.508(D)(3) for
his failure to raise the claims on direct appeal. See Camel, Saginaw Co. Cir. Ct. No. 07029540-FC, Sept. 30, 2011 Opin. at *2-7; April 2, 2012 Opin. at *3, 5-10. The state courts
thus clearly relied upon a procedural default to deny Petitioner relief on these claims.
Accordingly, the claims are procedurally defaulted.
Again, as noted, a state prisoner who fails to comply with a state’s procedural rules
waives the right to federal habeas review absent a showing of cause for noncompliance
21

and actual prejudice resulting from the alleged constitutional violation, or a showing of a
fundamental miscarriage of justice. Coleman, 501 U.S. at 750-51; Gravley, 87 F.3d at
784-85.
Petitioner asserts ineffective assistance of appellate counsel as cause to excuse his
default. In order to establish ineffective assistance of counsel, the petitioner must show
“that counsel’s performance was deficient . . . [and] that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984); O'Hara v.
Wigginton, 24 F.3d 823, 828 (6th Cir. 1994).

In determining whether counsel’s

performance was deficient,
[t]he court must ... determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally
competent assistance .... At the same time, the court should recognize that
counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment.
Strickland, 466 U.S. at 690. Judicial scrutiny of counsel’s performance is thus “highly
deferential.” Id. at 689. The defense is prejudiced only if “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
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.
22

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 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. See Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).
Petitioner fails to show that by omitting the claims presented in his motion for relief
from judgment, appellate counsel’s performance fell outside the wide range of
professionally competent assistance. Appellate counsel raised substantial claims on direct
appeal including a directed verdict claim, a sufficiency of evidence claim, and a
prosecutorial misconduct/self-incrimination claim. None of the defaulted claims are “deadbang winners” since the trial court’s ruled that they lack merit, and given the significant
evidence of guilt presented at trial. Moreover, even if it appellate counsel erred, Petitioner
cannot show that he was prejudiced by appellate counsel’s conduct (or demonstrate
prejudice to excuse the procedural default) because the defaulted claims lack merit for the
reasons stated by the trial court in denying relief from judgment, see Camel, Saginaw Co.
Cir. Ct. No. 07-029540-FC, Sept. 30, 2011 Opin. at *2-7; April 2, 2012 Opin. at *3-10, and
as further discussed by Respondent. See Resp. Answer, pp. 62-79. Petitioner fails to
23

establish that defense counsel erred and/or that he was prejudiced by counsel’s conduct
as required by Strickland, 466 U.S. at 687.
Lastly, as previously discussed, Petitioner fails to demonstrate that a fundamental
miscarriage of justice has occurred. These ineffective assistance of trial counsel claims are
thus barred by procedural default, lack merit, and do not warrant habeas relief.
D.

Ineffective Assistance of Appellate Counsel Claim

Petitioner also raises an independent claim that appellate counsel was ineffective
for failing to raise the foregoing ineffective assistance of trial counsel claims on direct
appeal (and perhaps a claim that the police should have performed a gunshot residue test
on the victim’s hands). Respondent contends that this claim lacks merit.
The state trial court denied relief on this claim on collateral review finding that
Petitioner could not establish that appellate counsel was ineffective because the underlying
claims lacked merit. See Camel, Saginaw Co. Cir. Ct. No. 07-029540-FC, Sept. 30, 2011
Opin. at *7; April 2, 2012 Opin. at *8-10.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application thereof. The ineffective assistance of appellate counsel claim,
while not itself procedurally defaulted, nonetheless lacks merit. As discussed supra,
Petitioner fails to establish that appellate counsel was ineffective under the Strickland
standard and the defaulted claims lack merit. Appellate counsel cannot be deemed
ineffective for failing to raise issues that lack merit. Shaneberger v. Jones, 615 F.3d 448,
452 (6th Cir. 2010). Habeas relief is not warranted on this claim.
V.

Conclusion

24

For the reasons stated, the Court concludes that Petitioner is not entitled to relief on
his claims and that the petition for a writ of habeas corpus must be denied.
Before Petitioner may appeal the Court’s decision, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability
may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on the merits, the
substantial showing threshold is met if the petitioner demonstrates that reasonable jurists
would find the court’s assessment of the constitutional claim debatable or wrong. 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). When
a court denies relief on procedural grounds without addressing the merits, a certificate of
appealability should issue if it is shown that jurists of reason would find it debatable whether
the petitioner states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the court was correct in its procedural ruling. Slack,
529 U.S. at 484-85.
The Court concludes that Petitioner fails to make a substantial showing of the denial
of a constitutional right as to his habeas claims and that reasonable jurists could not debate
the correctness of the Court’s procedural rulings.

No certificate of appealability is

warranted. Nor should Petitioner be granted leave to proceed in forma pauperis on appeal
as an appeal cannot be taken in good faith. See FED. R. APP. P. 24(a).

25

Accordingly;
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED and leave
to proceed in forma pauperis on appeal is DENIED.

s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: June 13, 2016

26