Glover v. Woods

Filing 13

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and declining to issue a certificate of appealability or leave to appeal in forma pauperis. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMAS GLOVER,
Petitioner,

Civil No. 2:14-CV-12630
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE

v.
JEFFREY WOODS,
Respondent.
_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR
LEAVE TO APPEAL IN FORMA PAUPERIS
Thomas Glover, (“Petitioner”), presently confined at the Chippewa Correctional
Facility in Kincheloe, Michigan, filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, in which he challenges 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 possession of a firearm during the
commission of a felony (felony-firearm), M.C.L.A. § 750.227b. For the reasons that follow,
the petition for a writ of habeas corpus is DENIED.
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 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):
This case arises out of the death of Adrian Brown and the shooting of Willie
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Shears on June 26, 2010, in Detroit, Michigan. At approximately 12:30 a.m.
or 12:45 a.m., Brown; brothers, Willie and Robert Shears; and Bernard
Crump arrived at a strip club called Starvin’ Marvin’s. The four men had
driven to Starvin’ Marvin’s in two vehicles: Robert Shears and Crump were
in a black Jaguar that Crump was driving, and Willie Shears and Brown were
in Brown’s van. They parked the vehicles in valet parking. Robert Shears,
Willie Shears, and Crump then entered the club, while Brown initially
remained outside. Brown came into the club five minutes later. The men then
ordered and drank a bottle of vodka. According to the testimony, the men
were in the club somewhere between 20 minutes to about an hour. Brown
then decided that he wanted to leave. The testimony of Willie Shears, Robert
Shears, and Crump varies about what happened next.
According to Robert Shears, he and Brown walked out of the club first,
exiting through the front door. Willie Shears and Crump came out just behind
them. They stood and waited approximately 10 or 15 minutes for the valet to
bring back Brown’s van. But then someone from the valet service told them
that Brown’s van was not in the valet parking area. Brown then took his keys
from the valet.
Robert Sears testified that he then heard five or six gunshots. After hearing
the shots, Robert Shears then saw Brown fall to the ground. Robert Shears
stated that at this time Willie Shears was standing near the front entrance of
the club.
According to Robert Shears, after the shooting, although he did not believe
that Brown was alive at that point, he called out to Crump to help him put
Brown into the Jaguar. As Robert Shears was trying to get Brown into the
Jaguar, another unidentified individual approached to help, so Robert Shears
ran to look for Brown’s van. Robert Shears found the van parked in a field on
the next block. He drove to near the front entrance of the club and parked on
the street. Robert Shears then found out that Willie Shears had also been
shot, so he left to meet Willie Shears at the hospital. At the hospital, Robert
Shears learned that Brown, who was at a different hospital, was in fact dead.
According to Willie Shears, after exiting the club, they waited for Brown’s van
for approximately six or seven minutes. Willie Shears then heard nine or 10
gunshots. But he did not see where the shots were coming from at that time.
After the gunshots stopped, Willie Shears saw Brown fall. According to Willie
Shears, Brown then asked Willie and Robert Shears to put him in the Jaguar.
They rushed over to him, but Willie Shears then heard six or seven more
shots, and he was shot in the right ankle. Willie Shears testified that although
he did not see him firing the gun, at that point, he saw Glover standing
behind the Jaguar, holding a gun. Willie Shears did not see anyone else
shooting. After getting shot, Willie Shears left Brown and “hopped” back into
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the club. He then lay inside the front entrance.
Willie Shears initially testified that he did not see where Glover went after he
was shot. However, on cross-examination, he testified that he saw Glover run
to the back of the parking lot and then he heard a third series of shots. In
total, over the three series of shots, Willie Shears heard approximately 20
shots.
Willie Shears testified that he lay inside the club for approximately five or six
minutes before the police arrived. An ambulance took Willie Shears to Henry
Ford Hospital. At the hospital, Willie Shears identified a photograph of Glover
as the person who shot him.
Crump testified that when they decided to leave the club, the three men left
before him because he had ordered food and he had to wait for it.
Approximately five minutes later, Crump walked to the door with his food, and
someone at the door told him not to go outside because there was shooting
in the parking lot. Crump did not hear any shooting, so he went out the door
anyway. But after Crump got outside, he heard shooting. Crump did not see
where the shooting was coming from because he ducked when he heard the
shots. As he was ducking, however, Crump saw Willie Shears run past him,
limping on one leg as if he had been shot. According to Crump, the shooting
sounded close at first and then sounded like it moved further away. When the
shooting was further away, Crump looked up and saw Robert Shears holding
Brown and saying that Brown had been shot.
Crump testified that Robert Shears then told him to go find the van.
According to Crump, he ran around the parking lot trying to find the valet to
get the key, but the van was not in the lot. So then Crump got the Jaguar,
and he and Robert Shears tried to put Brown in it, but they were not strong
enough, so a security guard helped them. Crump testified that Robert Shears
then told him that he was going to take Willie Shears to the hospital and told
Crump to take Brown. Crump drove off and took Brown to Receiving
Hospital, which was the only hospital with which Crump was familiar. Crump
testified that while on the way to the hospital, Brown was “breathing hard.”
But at the hospital, Crump learned that Brown was dead.
When asked what Brown did for a living, Robert and Willie Shears and
Crump all testified that Brown sold drugs. However, they all denied that they
themselves sold drugs. All three men also testified that none of them had a
gun that night, and they did not see anyone in their group with a gun,
including Brown.
Roderick Williams, a reserve police officer for the Highland Park Police
Department testified that, at the time of trial, he worked for Starvin’ Marvin’s
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Corporation. Reserve Officer Williams was at Starvin’ Marvin’s on June 26,
2010, at about 1:10 a.m., to see Charles Finn, a manager at Starvin’
Marvin’s. Reserve Officer Williams entered the club through the front door.
He and Finn then went through the back door into an alley behind the club
to discuss business because it was loud inside the club. Finn testified that he
was asking Reserve Officer Williams to lead the security team at Starvin’
Marvin’s. Both men testified that the alley was not well lit.
After approximately four to 10 minutes, Reserve Officer Williams heard shots
coming from the parking lot. Reserve Officer Williams testified that he heard
three or four shots at first, and then he heard another three to five shots.
Reserve Officer Williams then saw a man with a gun in his hand running
down the alley toward him and Finn. Reserve Officer Williams, who was in
full police uniform, “yell[ed] out police.” According to Reserve Officer
Williams, the man paused and then Reserve Officer Williams saw a muzzle
flash, so he drew his firearm, yelled, “Drop your gun,” and returned fire with
his .357 caliber Sig Sauer semi-automatic pistol. Reserve Officer Williams
fired approximately three to five shots, from low to high. He believed that he
hit the person he was shooting at because the man spun around, which
happens “sometimes when you get shot[.]” The man was then was out of
sight. Reserve Officer Williams testified that he did not shoot at the man
again after he saw him spin around. Instead, Reserve Officer Williams and
Finn retreated back into the club.
Reserve Officer Williams later identified Glover as the person he had seen
running toward him. According to Reserve Officer Williams, at the time of the
incident, Glover had been wearing a white T-shirt and jeans. Reserve Officer
Williams had two guns on him that day; in addition to his .357, he also had
a .40 caliber HKP 2000 SK semi-automatic pistol, both of which he turned
over to the police.
Starvin’ Marvin’s manager, Charles Finn, testified that he also works security
at Starvin’ Marvin’s. He testified that the likelihood of someone entering the
club with a gun was slim because security personnel performed pat-down
searches on everyone entering the club, except police officers with badges.
**************************************************************************************
Michigan State Police Sergeant Reinhard Pope was qualified at trial as an
expert in firearms and tool mark identification. In this case, Sergeant Pope
initially received two firearms, 13 casings, and three fired bullets. Several
days later, he received an additional firearm. The third firearm was a .357
caliber Sig Sauer semi-automatic pistol. The parties stipulated that this gun
was taken from the yard or alley near Starvin’ Marvin’s and was associated
with Glover. Sergeant Pope testified that six of the casings came from one
firearm, which the parties stipulated was Reserve Officer Williams’ weapon.
Sergeant Pope testified that the other seven casings came from the Sig
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Sauer associated with Glover. He also identified one of the fired bullets as
having been fired from Reserve Officer Williams’ weapon. (The evidence tag
number for this bullet—E38015904—was the same evidence tag number for
the bullet recovered from Glover—E38015904.) Sergeant Pope identified one
of the other bullets, which was the one removed from Brown’s body, as
having been fired from the firearm associated with Glover. Sergeant Pope
eliminated the remaining bullet, which was damaged, from having been fired
from Reserve Officer Williams’ firearm, but he could not identify or eliminate
it as having been fired from the firearm associated with Glover.
People v. Glover, No. 302412, 2012 WL 1415122, at *1–3, 5 (Mich. Ct. App. Apr. 24, 2012).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 493 Mich. 857, 820
N.W.2d 805 (2012).
Petitioner filed a post-conviction motion for relief from judgment, which was denied
by the trial judge. People v. Glover, No. 10–008104–FC (Wayne County Cir. Ct., Feb. 14,
2014). The Michigan appellate courts denied petitioner leave to appeal. People v. Glover,
No. 321705 (Mich.Ct.App. June 18, 2014); lv. den. 858 Mich. 46 (2015).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Verdicts of guilty upon insufficient evidence constituted a denial of due
process.
II. Sentences imposed violated constitutional guarantees against cruel and/or
unusual punishment.
III. The prosecutor’s perfidious and odious mischaracterization of critical
evidence and statement undermined the defendant’s theory of self-defense,
depriving defendant of a defense and a fair trial.
IV. Defendant was denied his federal constitutional right to have the effective
assistance defense counsel pursuant to US Const AMS VI, XIV and Const
1963, Art 1, §§ 17, 20 where defense counsel failed to or did not investigate
and or admit witnesses and other evidence that would have supported the
defendant’s claim of self-defense.
V. [duplicate of Issue III].
VI. [duplicate of Issue IV].
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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–
(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)). In order to obtain
habeas relief in federal court, a state prisoner is required to show that the state court’s
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rejection of his or her claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief
as long as it is within the “realm of possibility” that fairminded jurists could find the state
court decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
A. Claim # 1. Petitioner’s sufficiency of evidence claim is non-cognizable in
habeas review. Alternatively, the evidence was sufficient to rebut petitioner’s
self-defense claim.
In his first claim, petitioner argues that there was insufficient evidence presented
by the prosecutor to rebut his self-defense claim.
Petitioner’s claim is non-cognizable on habeas review. Under Michigan law, selfdefense is an affirmative defense. See People v. Dupree, 486 Mich. 693, 704, 712; 788
N.W.2d 399 (2010). “An affirmative defense, like self-defense, ‘admits the crime but seeks
to excuse or justify its commission. It does not negate specific elements of the crime.’”
People v. Reese, 491 Mich. 127, 155, n. 76; 815 N.W.2d 85 (2012)(quoting Dupree, 486
Mich. at 704, n. 11). Although under Michigan law the prosecutor is required to disprove
a claim of self-defense, see People v. Watts, 61 Mich. App. 309, 311, 232 N.W.2d 396,
398 (1975), “[p]roof of the nonexistence of all affirmative defenses has never been
constitutionally required....” See Smith v. United States,133 S. Ct. 714, 719 (2013)(quoting
Patterson v. New York, 432 U.S. 197, 210 (1977)). The Supreme Court and the Court of
Appeals for the Sixth Circuit have rejected the argument that the Constitution requires the
prosecution to disprove self-defense beyond a reasonable doubt. See Gilmore v. Taylor,
508 U.S. 333, 359 (1993)(Blackmun, J., dissenting)(“In those States in which self-defense
is an affirmative defense to murder, the Constitution does not require that the prosecution
7

disprove self-defense beyond a reasonable doubt”); Martin v. Ohio, 480 U.S. 228, 233-36
(1987); see also Allen v. Redman, 858 F.2d 1194, 1197 (6th Cir.1988)(explaining that
habeas review of sufficiency-of-the-evidence claims is limited to elements of the crimes
as defined by state law and citing Engle v. Isaac, 456 U.S. 107 (1982), and Duffy v. Foltz,
804 F.2d 50 (6th Cir. 1986)). Therefore, “the due process ‘sufficient evidence’ guarantee
does not implicate affirmative defenses, because proof supportive of an affirmative
defense cannot detract from proof beyond a reasonable doubt that the accused had
committed the requisite elements of the crime.” Caldwell v. Russell, 181 F.3d 731, 740
(6th Cir. 1999). Petitioner does not challenge the sufficiency of the evidence in support
of the essential state law elements of second-degree murder, assault with intent to commit
murder, felon in possession of a firearm and felony-firearm, rather, “he has only faulted
the jury’s refusal to credit his proffered affirmative excuse or justification” for the killing. Id.
As such, petitioner’s claim that the prosecutor failed to disprove his affirmative defense is
non-cognizable on habeas review. Id.; Allen v. Redman, 858 F.2d at 1200.
Even if this Court were to determine that petitioner’s claim was cognizable, he
would not be entitled to habeas relief. It is beyond question that “the Due Process Clause
protects the accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is charged.” In Re Winship, 397
U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the evidence
to support a criminal conviction is, “whether the record evidence could reasonably support
a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318
(1979). This inquiry, 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
8

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).
More importantly, a federal habeas court may not overturn a state court decision
that rejects a sufficiency of the evidence claim simply because the federal court disagrees
with the state court’s resolution of that claim and may only grant habeas relief if the state
court decision was an objectively unreasonable application of the Jackson standard. See
Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “Because rational people can sometimes
disagree, the inevitable consequence of this settled law is that judges will sometimes
encounter convictions that they believe to be mistaken, but that they must nonetheless
uphold.” Id. For a federal habeas court reviewing a state court conviction, “the only
question under Jackson is whether that finding was so insupportable as to fall below the
threshold of bare rationality.” Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012).
On habeas review, a federal court does not reweigh the evidence or redetermine
the credibility of the witnesses whose demeanor was observed at trial. Marshall v.
Lonberger, 459 U.S. 422, 434 (1983). This Court did not preside over the trial and,
therefore, cannot evaluate in any way the critical credibility factors that only the jury was
in a position to do. It is the province of the factfinder to weigh the probative value of the
evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir.
1992). A habeas court must defer to the fact finder for its assessment of the credibility of
witnesses. See Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir.2003).
Under Michigan law, one acts lawfully in self-defense if he or she honestly and
9

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 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 reasonably believed that he or she 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)). Under Michigan law, a defendant is not entitled to
use any more force than is necessary to defend himself. Johnigan, 207 F. Supp. 2d at 609
(citing Kemp, 202 Mich. App. at 322). “[T]he law of self-defense is based on necessity,
and a killing or use of potentially lethal force will be condoned only when the killing or use
of potentially lethal force was the only escape from death, serious bodily harm, or
imminent forcible sexual penetration under the circumstances.” Johnigan, 207 F. Supp.
2d at 609 (internal citation omitted).
The prosecution presented evidence from which a rational trier of fact could have
concluded beyond a reasonable doubt that the prosecutor had rebutted petitioner’s selfdefense claim.
The Michigan Court of Appeals rejected petitioner’s self-defense claim as follows:
There was sufficient evidence that Glover did not honestly and reasonably
believe that his life was in imminent danger or that there was a threat of
serious bodily harm. Although Glover testified that he saw Brown and one
10

or two other people shooting at him, Robert Shears, Willie Shears, and
Crump all testified that none of them, including Brown, carried a gun. And
contrary to Glover’s suggestion, the facts that Brown sold drugs, had
multiple cellular telephones, and had a significant amount of cash do not
necessarily mean that he also had a gun. Similarly, the mere fact that
Crump and Robert Shears left the scene does not in and of itself imply that
they were armed and were seeking to dispose of their weapons.
Moreover, Willie Shears testified that he heard two series of shots and a
third series when Glover ran to the back of the parking lot. Reserve Officer
Williams similarly heard two series of shots before he saw Glover run toward
the alley with a gun and more shooting occurred. Sergeant Reinhard Pope
examined three guns, Reserve Officer Williams’ two guns and the gun
associated with Glover. All of the found casings were identified as having
come from either Reserve Officer Williams’ gun or the gun associated with
Glover. One bullet was excluded as being fired from Reserve Officer
Williams’ gun, but could not be excluded or identified as having been fired
from Glover’s gun. Glover suggests that the testimony of many of the
prosecution’s witnesses was not credible. However, “[t]he credibility of
witnesses and the weight accorded to evidence are questions for the jury,
and any conflict in the evidence must be resolved in the prosecutor’s favor.”1

Glover also claims that he was shot from behind and the prosecution failed
to prove otherwise. However, although Glover did testify that he was shot
from behind, he admitted on cross-examination that his medical records did
not confirm this assertion and that it was his own conclusion or opinion.
Reserve Officer Williams’ testimony suggested that he shot Glover from the
front and a bullet from Reserve Officer Williams’ gun was removed from
Glover. Thus, a rational trier of fact could have found that Glover was not
shot from behind as he was running away, but rather that Reserve Officer
Williams shot him from the front.
People v. Glover, 2012 WL 1415122, at *7-8.
Furthermore, Brian Schloff, a forensic scientist at the Michigan State Police forensic
crime lab testified that based on the DNA profiles obtained from the evidence, the
bloodstains from the Sig Sauer and the alley matched Glover’s DNA. People v. Glover,
2012 WL 1415122, at * 4.

1

People v. Harrison, 283 Mich.App. 374, 378; 768 N.W.2d 98 (2009).

11

The parties also stipulated that the gun was taken from the yard or alley near
Starvin’ Marvin’s and was associated with Glover. In regards to casings retrieved,
Sergeant Pope testified that six of the casings came from one firearm, which the parties
stipulated was Reserve Officer Williams’ weapon, and the other seven casings came from
the Sig Sauer associated with Glover. Sergeant Pope also identified that one of the fired
bullets that was fired from Reserve Officer Williams’ weapon, evidence tag number
E38015904, was the same evidence tag number for the bullet recovered from
Glover—E38015904. Sergeant Pope further testified that one of the other bullets, which
was the one removed from Brown’s body, had been fired from the firearm associated with
Glover. People v. Glover, 2012 WL 1415122, at * 5.
There was sufficient evidence for a rational trier of fact to conclude that the
prosecutor had proven beyond a reasonable doubt that petitioner did not act in lawful
self-defense when he shot the victim. Other than petitioner’s trial testimony, the record
is void of any evidence to support petitioner’s contention that Brown, Robert Shears, Willie
Shears or Bernard Crump were armed with a gun and that he fired in self-defense.
Furthermore, the Michigan Court of Appeals found that when a man fires a shot at
a man with the intent to kill him and shoots a bystander instead in the leg, the intent to kill
is transferred. Id. at *8. The there was also sufficient evidence to support a finding of
assault with intent to commit murder when petitioner shot Willie Shears in the ankle.
Petitioner’s sufficiency of the evidence claims are without merit.
B. Claim # 2. The sentencing claim.
Petitioner alleges that his sentence violates the constitutional prohibition against
cruel and unusual punishment.
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To the extent that petitioner argues that his sentence is disproportionate under state
law, he fails to state a claim for federal habeas relief. See Austin v. Jackson, 213 F.3d
298, 300 (6th Cir. 2000). There is also no federal constitutional right to individualized
sentencing. See United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995).
A habeas petitioner who seeks to challenge the severity of a prison sentence on
Eight Amendment grounds faces a formidable challenge. He or she may obtain relief only
by demonstrating that a state court decision contravened or misapplied “clearly
established” Supreme Court precedent. However, the Supreme Court has acknowledged
“that our precedents in this area have not been a model of clarity.”Lockyer v. Andrade, 538
U.S. 63, 72. “Indeed, in determining whether a particular sentence for a term of years can
violate the Eighth Amendment, we have not established a clear or consistent path for
courts to follow.” Id. Thus, the Supreme Court declared that the general applicability of
the proportionality standard to term-of-years sentences was clearly established, but
confessed a lack of clarity as to the factors lower courts should consider in making that
determination. Id.

The Supreme Court concluded that “the only relevant clearly

established law amenable to the ‘contrary to’ or ‘unreasonable application of’ framework
is the gross disproportionality principle, the precise contours of which are unclear,
applicable only in the ‘exceedingly rare’ and ‘extreme’ case.” Id.
In Lockyer, the Supreme Court reversed the Ninth Circuit’s grant of a writ of habeas
corpus on the ground that two twenty-five-year-to-life sentences imposed under
California’s “three strikes” law, where the triggering felony was the theft of $ 150 worth of
video tapes, violated the Cruel and Unusual Punishment Clause of the Eighth Amendment.
The Supreme Court noted that the “thicket” created by its jurisprudence consisted primarily
13

of its decisions in Solem v. Helm, 463 US. 277 (1983), Harmelin v. Michigan, 501 U.S. 957
(1991), and Rummel v. Estelle, 445 U.S. 263 (1980). The California state court observed
that the proportionality rule set forth in Solem was cast into doubt by Harmelin, and
proceeded to analyze Andrade’s sentence under the approach taken in Rummel, where
the Supreme Court rejected a claim that a life sentence imposed under Texas’ recidivist
statute was grossly disproportionate to the theft felonies that formed the predicate for the
sentence.

The California court concluded that Andrade’s sentence was not

disproportionate. The Supreme Court held that this decision was not contrary to or an
objectively unreasonable application of federal law that was clearly established by the
Supreme Court. Lockyer, 538 U.S. at 72-77.
A plurality of the Supreme Court has held that the Eighth Amendment does not
require strict proportionality between the crime and sentence. Harmelin, 501 U.S. at 965.
As the Supreme Court observed in Lockyer, it is generally recognized after Harmelin that
the Cruel and Unusual Punishment Clause of the Eighth Amendment forbids only an
extreme disparity between crime and sentence, that is, sentences that are “grossly
disproportionate” to the crime. Id. at 1001 (Kennedy, J., concurring); Coleman v. Mitchell,
268 F.3d 417, 453 (6th Cir. 2001)(citing Coker v. Georgia, 433 U.S. 584, 592 (1977));
United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991)).
“Outside the context of capital punishment, successful challenges to the
proportionality of particular sentences have been exceedingly rare.” Rummel, 445 U.S. at
272. Rummel was convicted of obtaining $ 120.75 by false pretenses, a crime punishable
by at least two years, but not more than ten years in prison. He was sentenced as a

14

recidivist to life imprisonment with the possibility of parole. His two prior felonies consisted
of fraudulent use of a credit card to obtain $ 80 worth of goods and services, a felony
punishable by two to ten years in prison; and passing a forged check for $ 28.36, a crime
punishable by two to five years in prison. The Supreme Court held that Rummel’s life
sentence under the state recidivist statute did not constitute cruel and unusual
punishment. In Harmelin, the Supreme Court upheld a life sentence without the possibility
of parole for possession of more than 650 grams of cocaine for an offender with no prior
felony convictions.
The Supreme Court overturned a life sentence in Solem on the ground that it was
significantly disproportionate to Helm’s crime and therefore prohibited by the Eighth
Amendment. However, Helm had been sentenced to life imprisonment without the
possibility of parole for uttering a “no account” check for $ 100, and his prior felonies also
were minor, nonviolent crimes. By contrast, the Supreme Court reaffirmed Rummel and
found constitutionally sufficient a sentence of twenty-five years to life imposed upon a fifth
felony conviction. Ewing v. California, 538 U.S. 11, 24-31 (2003).
In the present case, petitioner’s sentence fell within the maximum sentence set by
state law, and “a sentence within the statutory maximum set by statute generally does not
constitute ‘cruel and unusual punishment.’” United States v. Organek, 65 F.3d 60, 62 (6th
Cir. 1995)(citation omitted)(quoted with approval in Austin v. Jackson, 213 F.3d at 302).
“As long as the sentence remains within the statutory limits, trial courts have historically
been given wide discretion in determining ‘the type and extent of punishment for convicted
defendants.’” Austin, 213 F.3d at 301 (quoting Williams v. New York, 337 U.S. 241, 245

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(1949)).
In light of “the vagueness of the gross-disproportionality principle and the
admonition that the principle is “applicable only in the ‘exceedingly rare’ and ‘extreme’
case,” this Court concludes that the state courts did not unreasonably apply clearly
established law in rejecting petitioner’s proportionality claim. See Smith v. Howerton, 509
F.Appx. 476, 484 (6th Cir. 2012)(internal quotations omitted). Petitioner is not entitled to
relief on his second claim.
C. Claims ## 3 and 5. The prosecutorial misconduct claim.
The Court will consolidate Claim # 3 and Claim # 5 because they are identical.
Petitioner contends that he was denied his right to a defense and a fair trial when
the prosecutor mischaracterized critical evidence and made statements that under minded
his theory of self-defense.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v. Parker, 344 F.3d
487, 512 (6th Cir. 2003)). A prosecutor’s improper comments will be held to violate a
criminal defendant’s constitutional rights only if they “‘so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477
U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
Prosecutorial misconduct will thus form the basis for habeas relief only if the conduct was
so egregious as to render the entire trial fundamentally unfair based on the totality of the
circumstances. Donnelly v. DeChristoforo, 416 U.S. at 643-45. In order to obtain habeas

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relief on a prosecutorial misconduct claim, a habeas petitioner must show that the state
court’s rejection of his or her prosecutorial misconduct claim “was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Parker v. Matthews, 132 S. Ct. 2148, 2155
(2012)(quoting Harrington, 562 U.S. at 103).
Petitioner claims that the prosecutor mischaracterized evidence contained within
his medical records. The medical records were not entered into evidence. Therefore, the
prosecutor did not mischaracterize evidence.
Petitioner also claims that the information that the prosecutor mischaracterized
pertained to the location of the wounds, suggesting that the wounds to his front were the
cause of the wounds to his back, to supporting a finding that petitioner did not act in selfdefense. However, petitioner agreed that his medical records did not make any indication
of entrance and exit locations.
The Michigan Court of Appeals found the prosecutor did not mischaracterize the
medical records or petitioner’s testimony in connection with the gunshot wounds. The
Michigan Court of Appeals further found that petitioner had the opportunity to answer the
prosecutor’s questions and correct any errors. Glover, 2012 WL 1415122, at *10-11.
For a prosecutor’s cross-examination of a witness to rise to the level of
prosecutorial misconduct, a defendant is required to show intentional misconduct or
reckless disregard for the truth on the part of the prosecutor. United States v. Sexton, 119
F.Appx. 735, 750 (6th Cir. 2005), vacated in part on other grounds, No. 2005 WL 6011238
(6th Cir. Apr. 4, 2005). The questions posed pertaining to the gunshot wounds by the
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prosecutor to petitioner were relevant to rebut petitioner’s theory of self-defense. A
prosecutor does not commit misconduct by asking witnesses relevant questions. See
Slagle v. Bagley, 457 F.3d 501, 518 (6th Cir. 2006). Because the questions concerning
the wounds as documented in the medical report were relevant on the issue of selfdefense and petitioner’s credibility, the questions did not deprive petitioner of a fair trial.
Tan Van Le v. Prelesnik, No. 2006 WL 2620693, at *10 (W.D. Mich. Sept. 12, 2006) (“The
[Supreme ]Court has never found misconduct arising from a prosecutor’s
cross-examination on a central issue such as witness bias.”).
Finally, the jury was instructed that the lawyers’ questions were not evidence. (Tr.
12/8/2010, pp. 126-130). “[J]urors are presumed to follow their instructions.” Kansas v.
Marsh, 548 U.S. 163 (2006); Richardson v. Marsh, 481 U.S. 200, 206 (1987). Any
prosecutorial misconduct pertaining to comments made in connection to petitioner’s
medical records or trial testimony was ameliorated by the trial court’s instruction that the
lawyers’ comments and statements were not evidence. See Hamblin v. Mitchell, 354 F.3d
482, 495 (6th Cir. 2003). Furthermore, the Michigan Court of Appeals concluded that the
jury was free to accept or reject petitioner’s testimony. Glover, 2012 WL 1415122 at *13.
Petitioner is not entitled to habeas relief on his prosecutorial misconduct claims.
D. Claims ## 4 and 6. The ineffective assistance of counsel claims.
The Court will consolidate Claim # 4 and Claim # 6 because they are identical.
Petitioner contends that he was denied the effective assistance of trial counsel
when counsel failed to investigate, present evidence and witnesses, introduce Brown’s
criminal history, and object to prosecutorial misconduct.
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To show that he or she 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. The Supreme Court’s holding in Strickland places the burden on the
defendant who raises a claim of ineffective assistance of counsel, and not the state, to
show a reasonable probability that the result of the proceeding would have been different,
but for counsel’s allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15,
27 (2009).
On habeas review, “the question ‘is not whether a federal court believes the state
court’s determination’ under the Strickland standard ‘was incorrect but whether that
determination was unreasonable-a substantially higher threshold.’” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). “The pivotal question is whether the state court’s application of the Strickland

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standard was unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard.” Harrington v. Richter, 562 U.S. at 101.
Indeed, “because the Strickland standard is a general standard, a state court has even
more latitude to reasonably determine that a defendant has not satisfied that standard.”
Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to
the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a Strickland
claim brought by a habeas petitioner. Id. This means that on habeas review of a state
court conviction, “[A] state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland standard itself.”Harrington,
562 U.S. at 101. “Surmounting Strickland's high bar is never an easy task.” Id. at 105
(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner first argues that his trial counsel was ineffective for failing to investigate.
The Michigan Court of Appeals denied this claim, citing to the fact that a private
investigator went to the scene which would suggest that trial counsel did investigate.
Glover, 2012 WL 1415122 at *11.
Petitioner argues in his motion for relief from judgment (referenced in his habeas
petition) that trial counsel failed to interview state witnesses Robert Shears and Willie
Shears, thereby denying petitioner’s right to adequately cross-examine the Shears
brothers. Trial counsel’s performance did not constitute ineffective assistance of counsel
where the record shows that counsel carefully cross-examined Robert and Willie Shears
and in his closing argument emphasized the weaknesses in their testimony. See Krist v.
Foltz, 804 F.2d 944, 948-49 (6th Cir. 1986)(defense counsel was not ineffective where he

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carefully cross-examined prosecution witnesses, his cross-examination on issue of
presence of weapon developed record upon which state court reversed one of armed
robbery convictions, and in closing argument counsel emphasized inconsistencies in
testimony of various witnesses). Defense counsel did not perform ineffectively by not
more forcefully cross-examining the witnesses, particularly when the effect of further
probing is entirely speculative on petitioner’s part. See Jackson v. Bradshaw, 681 F.3d
753, 764-65 (6th Cir. 2012)(Defense counsel did not perform ineffectively by not more
forcefully pressing witness on the issue of her possible bias she may have harbored
against defendant, particularly when the effect of further probing was speculative).
Petitioner also argues in his motion for relief from judgment (referenced by his
habeas petition) that trial counsel failed to investigate the evidence technician’s report and
photos. A defense counsel has no obligation to present evidence or testimony that would
not have exculpated the defendant. See Millender v. Adams, 376 F.3d at 527 (internal
quotation omitted). The record reflects that the forensic evidence established that the
spent casings only came from two guns, Petitioner’s and Officer William’s handgun.
Presentation of the evidence technician’s report and photos would not have exonerated
petitioner.
Petitioner argues that trial counsel failed to present evidence and witnesses to
support his theory of self-defense. Petitioner contends that had counsel called his treating
doctors and witnesses at the crime scene, the outcome of the trial would have been
different.
Although the petitioner briefly mentions counsel’s failure to call his treating doctors
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and witnesses at the crime scene, which he contends should have been called on his
behalf, petitioner failed to attach any affidavits from these witnesses to his supplemental
brief, nor has he provided 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 U.S.C. § 2254(e)(2)(A)(ii)). Petitioner has failed to attach any offer of
proof or any affidavits sworn by the proposed witnesses. 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 counsel’s failure to call these witnesses to testify
at trial, so as to support the second prong of an ineffective assistance of counsel claim.
See Clark v. Waller, 490 F.3d 551, 557 (6th Cir. 2007).
Petitioner argues that trial counsel was ineffective by failing to introduce Brown’s
criminal record. The Michigan Court of Appeals found that petitioner failed to explain
under what theory Brown’s record would have been admissible or how it would have
affected the outcome of the case, since there was already testimony from Willie Shears
that Brown had gone to jail for “weed.” Glover, 2012 WL 1415122 at *12.

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A defense counsel has no obligation to present evidence or testimony that would
not have exculpated the defendant. See Millender v. Adams, 376 F.3d at 527(internal
quotation omitted). Petitioner claims that presentation of Brown’s criminal record would
have effected the outcome of his the case; however, the record contains trial testimony
pertaining to Brown’s criminal history. Because there is no evidence that Brown was
armed that night, there is no reasonable probability that presentation of Brown’s firearm
conviction contained within his criminal record would have effected the outcome of the
trial.
Petitioner next contends that counsel was ineffective for failing to object to the
prosecutor’s remarks pertaining to the gunshot wounds and petitioner’s claim of selfdefense.
To show prejudice under Strickland for failing to object to prosecutorial misconduct,
a habeas petitioner must show that but for the alleged error of his trial counsel in failing
to object to the prosecutor’s improper questions and arguments, there is a reasonable
probability that the proceeding would have been different. Hinkle v. Randle, 271 F.3d 239,
245 (6th Cir. 2001). Because this Court has already determined that the prosecutor’s
questions did not deprive petitioner of a fundamentally fair trial, petitioner is unable to
establish that he was prejudiced by counsel’s failure to object to the remarks. Slagle v.
Bagley , 457 F.3d at 528. Petitioner is not entitled to habeas relief on his fourth claim.
IV. Conclusion
The Court will deny the petition for a writ of habeas corpus with prejudice. The
Court will also deny a certificate of appealability to petitioner. In order to obtain a
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certificate of appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is
required to show that reasonable jurists could debate whether, or agree that, the petition
should have been resolved in a different manner, or that the issues presented were
adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,
483-84 (2000). “The district court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254; see also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875
(E.D. Mich. 2010).
For the reasons stated in this opinion, the Court will deny petitioner a certificate of
appealability because he has failed to make a substantial showing of the denial of a
federal constitutional right. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich.
2001). The Court will also deny petitioner leave to appeal in forma pauperis, because the
appeal would be frivolous. Id.

V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that Petitioner is Denied an evidentiary hearing.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma

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pauperis.
s/ Nancy G. Edmunds
HON. NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated:February 7, 2017
CERTIFICATION
I hereby certify that a copy of this Opinion was issued to parties and/or counsel
of record on this 7th day of February, 2017 by regular mail and/or CM/ECF Notification.
s/ Carol J Bethel
Case Manager
Date: 2/7/17

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