Banks v. McKee
OPINION AND ORDER DENYING Petition for Writ of Habeas Corpus 1 , DECLINING to Issue a Certificate of Appealability, and GRANTING Leave to Appeal In Forma Pauperis. Signed by District Judge Laurie J. Michelson. (KJac)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 14-cv-13566
Honorable Laurie J. Michelson
Magistrate Judge R. Steven Whalen
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS.
Petitioner Terrence Banks is currently serving a prison sentence in the Thumb
Correctional Facility in Lapeer, Michigan. He filed a pro se petition for a writ of habeas corpus
in this Court, challenging his state-court convictions for, among other offenses, assault with
intent to commit murder. Having reviewed the petition, the warden’s response, Petitioner’s reply
brief, and the state-court record, the Court finds that the state court reasonably concluded that
Petitioner’s claims of error were without merit. Therefore, the petition will be DENIED.
Although the following recitation of the facts is taken primarily from the Michigan Court
of Appeals’ opinion, see 28 U.S.C. § 2254(e)(1), it is supplemented by portions of the trial
transcript, see Wood v. Allen, 558 U.S. 290, 300 (2010) (recognizing that it is unsettled whether
the deference owed to state-court factual findings under § 2554(e)(1) applies when the state court
adjudicates a claim on the merits such that § 2254(d)(2) applies).
Petitioner’s conviction arose out of the shooting of a taxi driver in Detroit. Petitioner was
not present in the courtroom during the trial. (R. 11-8, PID 305; R. 11-9, PID 490.) The jury
heard the following evidence at trial.
On March 30, 2011, the victim, Mian Mayen, was working as a cab driver for Checker
Cab. (R. 11-9, PID 506.) At 10:00 pm, he responded to a call to pick up a customer at 4614
Stockton in Detroit. (Id.) Defense counsel stipulated that the person Mayen picked up was
Petitioner. People v. Terrence Banks, No. 308181, 2013 Mich. App. LEXIS 696, at *2 (Ct. App.
Apr. 16, 2013); (R. 11-9, PID 507). Petitioner put $20 in the deposit box and asked to be taken to
Mack and Seyburn in Detroit. Id. After Mayen began driving, Petitioner asked him where he was
from and “what’s your belief . . . what’s your religion?” (R. 11-9, PID 512.) Mayen answered
these questions and Petitioner fell silent. Banks, 2013 Mich. App. LEXIS 696, at *2.
As the cab approached Seyburn and Mack, Petitioner asked Mayen to let him out. Id.
When Mayen stopped, Petitioner fired several gun shots at him through the partition in the cab.
Id. Mayen felt pain in his back but couldn’t see where he had been hit. (R. 11-9, PID 515.)
Petitioner then fired another gunshot and demanded money—“give me my money back.” (Id.)
Mayen threw the money outside the cab and told Petitioner to “keep it.” Banks, 2013 Mich. App.
LEXIS 696, at *2. Petitioner then shot Mayen for the fourth time. Id. The bullet hit Mayen’s
back and came out of his stomach. (R. 11-9, PID 517.)
Realizing that Petitioner was not going to get out of his cab, Mayen decided “I have to go
to hospital or the police” and started driving. (R. 11-9, PID 518.) Petitioner continued firing for a
total of seven or eight shots. Banks, 2013 Mich. App. LEXIS 696, at *2. Mayen testified that he
was certain he was going to die at this point. Id. So he drove the cab at a speed of 70 miles per
hour, running several red lights in order to get the attention of the police. Id. Petitioner was still
in the car at this point, ordering Mayen to let him out and hitting the taxi partition. Id. Finally,
Mayen came upon a police vehicle at Connor and Harper, and began honking his horn, flashing
his high beams, and waving at the police in order to get their attention. Id.
In the police car were officers Ryan May and Christopher Hardwood. May was driving
the police vehicle, and he pulled over after seeing Mayen flashing his high beam lights. Id. May
noticed that Mayen was “covered with blood,” and upon shining his light into the backseat, saw
“a gentleman [with] an assault rifle and it looked like he was trying to hide it.” (R. 11-9, PID
541.) Mayen told May that the person in the backseat had shot him. Banks, 2013 Mich. App.
LEXIS 696, at *2. May told Hardwood that the person in the backseat had a gun, and Hardwood
then exited the vehicle, ran to the cab, and opened the rear door. Id. A black assault rifle fell to
the ground. Id. The officers then arrested Petitioner and searched him for additional weapons. Id.
They found a brown paper bag filled with nine millimeter ammunition (that would correspond
with the assault rifle) on Petitioner’s person. Id.; (R. 11-9, PID 544.) The officers then arrested
Petitioner. Id. Mayen survived the gunshot wounds after surgery and a hospital stay. Id.
A jury convicted Petitioner of the following offenses: assault with intent to commit
murder, Mich. Comp. Laws § 750.83; assault with intent to do great bodily harm less than
murder, Mich. Comp. Laws § 750.84; felon in possession of a firearm, Mich. Comp. Laws §
750.224f; possession of a firearm in the commission of a felony, second offense, Mich. Comp.
Laws § 750.227b. (R. 11-1, PID 126.) The jury acquitted him on a charge of armed robbery. (Id.)
Petitioner was sentenced as a fourth felony habitual offender, Mich. Comp. Laws § 769.12.
The Michigan Court of Appeals affirmed Petitioner’s convictions. Banks, 2013 Mich.
App. LEXIS 696, at *2. The Michigan Supreme Court denied leave to appeal on October 28,
2013, because it was “not persuaded that the questions presented should be reviewed by this
Court.” People v. Banks, 838 N.W.2d 165, 165 (Mich. 2013). Petitioner filed his petition in this
Court on September 9, 2014. (R. 1.) The Court granted Petitioner leave to amend his petition,
and he filed an amended petition on October 29, 2015. (R. 13.) Petitioner’s amended petition
asserts the following grounds for relief:
(1) Petitioner did not knowingly, intelligently, unequivocally or voluntarily waive
his right to counsel because he was not warned of the dangers of selfrepresentation, the trial court did not adequately inquire into petitioner’s
background, education, age or mental state, and Petitioner only asked to represent
himself because his trial counsel was unprepared;
(2) The trial judge failed to obtain a reaffirmation of petitioner’s waiver of his
right to counsel at subsequent hearings;
(3) The trial judge violated the Double Jeopardy Clause by instructing the jury on
assault with intent to commit murder and the lesser offense of assault with intent
to do great bodily harm;
(4) Petitioner’s right to confrontation was violated when the victim was permitted
to wear a hood to hide his identity at the preliminary examination;
(5) The prosecutor withheld exculpatory evidence by permitting the victim to
conceal his identity at the preliminary examination;
(6) Petitioner was constructively denied the assistance of counsel at the
preliminary examination because his counsel met with him only a few minutes
before the preliminary examination and did not object to the examining magistrate
permitting the victim to wear a hood at the preliminary examination; and
(7) The prosecutor committed misconduct.
(See R. 13.)
As a preliminary matter, Respondent argues that Petitioner filed his amended petition
after the statute of limitations expired, and therefore, claims raised for the first time in the
amended petition are time-barred. The Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L. No. 104-132, 110 Stat. 1214 (“AEDPA”) applies to all habeas petitions filed after the
Act’s effective date, April 24, 1996, and imposes a one-year limitations period. 28 U.S.C. §
2244(d)(1). This one-year limitation period does not begin to run until 90 days after the
conclusion of direct appeal. See Jimenez v. Quarterman, 555 U.S. 113, 120 (2009) (stating that a
conviction becomes final when “the time for filing a certiorari petition expires”); Lawrence v.
Florida, 549 U.S. 327, 333 (2007). Here, the Michigan Supreme Court denied leave to appeal on
October 28, 2013, and the time for seeking a writ of certiorari with the United States Supreme
Court expired on January 26, 2014. Petitioner dated his federal habeas petition on September 9,
2014. (R. 1.) Petitioner dated his amended petition October 12, 2015. (R. 13, PID 888.)
Respondent acknowledges that petitioner’s original habeas petition was timely filed. However,
Respondent says that Petitioner’s Brady1 claim, his double jeopardy claim, his error in
instructions claim, his confrontation clause claim, his ineffective assistance of counsel at the
preliminary examination claim, and his prosecutorial misconduct claim from the preliminary
examination do not relate back to the claims raised by petitioner in his original habeas petition.
When a habeas petitioner files an original petition within the one-year deadline, and later
presents new claims in an amended petition that is filed after the deadline passes, the new claims
will relate back to the date of the original petition only if the new claims share a “common core
of operative facts” with the original petition. Mayle v. Felix, 545 U.S. 644, 664 (2005). And in
this case, Petitioner did raise a double jeopardy claim, a confrontation clause claim, an
ineffective assistance of counsel claim, and a prosecutorial misconduct claim in his original
petition, even if the claims presented in his original petition were somewhat conclusory and
unsupported. And Petitioner’s Brady claim appears to be related to his confrontation clause
claim. Thus, it appears that Mayle’s test for relation back is met.
Brady v. Maryland, 373 U.S. 83, 87 (1963).
Even if the claims do not all relate back, “judicial economy sometimes dictates reaching
the merits [of a claim or claims] if the merits are easily resolvable against a petitioner while the
procedural bar issues are complicated.” Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999)
(internal citations omitted). Because the statute of limitations does not constitute a jurisdictional
bar to habeas review, a federal court can, in the interest of judicial economy, proceed to the
merits of a habeas petition. See Smith v. State of Ohio Dep’t of Rehabilitation, 463 F.3d 426,
429, n.2 (6th Cir. 2006) (quoting Trussell v. Bowersox, 447 F.3d 588, 590 (8th Cir. 2006)). This
Court need not resolve the dispute over the timeliness of the claims in the amended petition.
Assuming without deciding that the amended petition was timely, it fails on the merits. See Ahart
v. Bradshaw, 122 F. App’x 188, 192 (6th Cir. 2005).
The standard of review this Court applies to each of Petitioner’s claims depends on
whether the claim was “adjudicated on the merits in State court[.]” 28 U.S.C. § 2254(d); see also
Johnson v. Williams, 568 U.S. 289 (2013). If the Michigan Court of Appeals decided a claim “on
the merits,” AEDPA prohibits this Court from granting habeas corpus relief unless the
adjudication “(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.” See 28 U.S.C. §
2254(d). But “[w]hen a state court does not address a claim on the merits, . . . ‘AEDPA
deference’ does not apply and [this Court] will review the claim de novo.” Bies v. Sheldon, 775
F.3d 386, 395 (6th Cir. 2014).
Petitioner’s first claim concerns his issues with his appointed attorneys and his attempt to
waive his right to counsel shortly before trial. At the final pre-trial conference, Petitioner had the
following exchange with the trial court judge:
Defendant: I want to make this clear. I don’t want to have this [sic] as my
counselor no longer. I’ve have [sic] had three counselors out of this Legal Aid
Defenders firm, and neither one of them has represented me adequately, so I want
to represent myself.
The Court: You want a new lawyer?
Defendant: No. I want to represent myself.
The Court: I don’t want to let you do that. Number one, there are some serious
issues here involving—well, you’ve got two capital offenses with which you are
charged which could result in life imprisonment.
Defendant: Okay, that’s fine.
The Court: Well, it’s not fine. If you try to represent yourself you have a very
strong likelihood of losing.
Defendant: I’m willing to take that chance, sir.
The Court: You don’t even have an understanding of what you’re facing. You
know you do have—you are familiar somewhat with the criminal justice system.
You’ve been incarcerated under, I think, another name. You’ve also used—you
used both Terrence Banks and Wendell Banks?
The Court: All right. The risk that you run in representing yourself are [sic] just
too great. I don’t think—well, I don’t think you’re capable of representing
yourself in a capital case first of all. Second, you need to have legal counsel. I’m
not suppose to advise you as to how to proceed, but when you’re faced with these
kind of changes (sic), you need legal counsel.
Defendant: And that’s fine, sir. I’m a Moors National and we do have a treaty
with the United States, therefore the counsel—I can have assistance through the
The Court: For what counsel?
Defendant: From the embassy.
The Court: Where were you born?
Defendant: I was born in Michigan.
The Court: All right. Well, I know your beliefs that you claim you are a citizen of
somewhere else, but you have no diplomatic immunity, so you are subject to the
laws of this jurisdiction.
Defendant: But, I’m not a Fourteenth Amendment citizen neither.
The Court: I’m not even going to try to debate that with you because what you’re
saying is complete and utter nonsense.
Defendant: Okay, sir. That’s fine.
The Court: And you don’t even understand it, that’s why you need a lawyer.
Defendant: Excuse me, sir. All I’m asking for is to appear in propria persona.
That’s all I need for you to do is to grant me that. My risk of losing, that’s my
risk. I feel like my risk is even greater with this public defender.
The Court: All right. I can appoint someone from another office for you. But, you
know, it’s going to be a complete disaster, I’m going to tell you, if you try to
represent yourself. All this stuff about being a national and these treaties and all
that, you need to get that out of your mind.
Defendant: I’m willing to take the chance, sir.
The Court: All right. I have to appoint someone, a standby counsel.
Defendant: I’m not taking no one.
The Court: Listen to what I’m saying. You’re not even paying attention. You need
to have a standby counsel. You can represent yourself, but you need to have a
standby counsel, somebody to help you make objections with respect to the
admission of evidence. And it would—well, you have to have at least a standby
counsel. You can represent yourself, but you need standby counsel, somebody to
help you make objections with respect to the admission of evidence. You have no
background in that. You don’t even know the rules of evidence. And it would—
well, you have to have at least a standby counsel. You can represent yourself, but
you need standby counsel for technical issues. All right.
Defendant: So, could you make it a matter of the Court record that I can have
more library time over at the jail?
The Court: No. I don’t control what goes on in the jail. That’s up to the sheriff.
Defendant: You can make it a court order.
The Court: No, it’s up to the sheriff. I don’t do that. There’s no provisions for me
to order more library time for you.
(R. 11-4, PID 188–96.) Following this exchange, defendant was afforded the right to represent
On August 19, 2011, Petitioner argued two motions pro se, one challenging the trial
court’s jurisdiction and the other a motion to dismiss based on procedural grounds. (R. 11-5, PID
200.) The trial court denied both motions. On October 18, 2011, Petitioner appeared pro se at his
pretrial hearing where he rejected the prosecutor’s plea offer. (R. 11-7, PID 276.) On December
1, 2011, the first day of trial, Petitioner was removed as counsel because the trial court
determined that his in-court conduct was “a disruption in the proceedings.” (R. 11-8, PID 303.)
The trial court then appointed standby counsel to represent Petitioner for the remainder of the
The Michigan Court of Appeals addressed Petitioner’s claims as follows:
A. DEFENDANT’S WAIVER WAS UNEQUIVOCAL.
In this case, during the waiver of counsel proceeding, defendant clearly informed
the trial court that it was his desire to proceed without benefit of counsel.
Defendant stated: ‘All I’m asking for is to appear in propria persona. That’s all I
need for you to do is to grant me that. My risk of losing, that’s my risk. I feel like
my risk is even greater with this public defender.’ Later in the proceeding,
defendant clearly reaffirmed his waiver of counsel by stating to the trial court:
‘I’m not taking no one.’ On this record, there is no question that defendant’s
waiver of counsel was unequivocal.
B. DEFENDANT’S WAIVER WAS KNOWING, INTELLIGENT, AND
As previously quoted, the trial court informed defendant that he was facing a
maximum sentence of life. The trial court warned defendant that his lack of
knowledge of law, specifically the rules of evidence and how to make objections,
would make self-representation a problem for defendant. The trial court pleaded
with defendant to accept standby counsel to assist defendant in matters such as
evidentiary issues. Defendant responded by indicating he was confident that he
stood a better chance at trial by representing himself rather than request the trial
court appoint new counsel. Thus, defendant was fully apprised of the risks he
faced by choosing to represent himself and the record evidence clearly establishes
that he knowingly and voluntarily chose to accept those risks.
Banks, 2013 Mich. App. LEXIS 696, at *11–12. (The Michigan Court of Appeals also addressed
the alleged state procedural errors; specifically, a violation of Mich. Ct. R. 6.005(D) and (E), that
Petitioner raises in his amended petition. However, those claims are “not cognizable on federal
habeas review unless the state court’s ruling was so fundamentally unfair that it amounted to a
due process violation.” Hardaway v. Burt, 846 F.3d 191, 199 (6th Cir. 2017) (citing Estelle v.
McGuire, 502 U.S. 62, 67 (1991)). Further, while Banks mentioned the issue of Mich. Ct. R.
6.005 in his Petition, his brief is focused on the Sixth Amendment issue.)
Petitioner first argues that the Court should review his waiver of counsel claims de novo
because the Michigan Court of Appeals did not address the federal constitutional claims that he
raised. (R. 13, Page ID 873–75). A state court does not need to mention federal law in its
decision to entitle its adjudication to deference under AEDPA. See Williams v. Curtin, 613
F.App’x. 461, 463–65 (6th Cir 2015). “When a state court rejects a federal claim without
expressly addressing that claim, a federal habeas court must presume that the federal claim was
adjudicated on the merits” for purposes of invoking the AEDPA standard of review. Johnson v.
Williams, 133 S. Ct. 1088, 1096 (2013).
In rejecting Petitioner’s claim, the Michigan Court of Appeals began by mentioning that
“a waiver request must be unequivocal” and that the waiver had to be “knowingly, intelligently,
and voluntarily made.” Banks, 2013 Mich. App. LEXIS 696, at *10. This language mirrors the
federal constitutional requirement for a valid waiver of counsel. See Iowa v. Tovar, 541 U.S. 77,
88 (2004). This Court concludes that Petitioner’s claim was adjudicated on the merits and thus,
AEDPA’s deferential standard applies.
The Supreme Court has held that a waiver of the Sixth Amendment right to counsel is
valid only when it reflects “an intentional relinquishment or abandonment of a known right or
privilege.” Patterson v. Illinois, 487 U.S. 285, 292 (1988) (quoting Johnson v. Zerbst, 304 U.S.
458, 464 (1938)). A defendant’s waiver of his right to counsel must “be knowing, voluntary, and
intelligent.” Tovar, 541 U.S. at 88. The waiver must be “done with sufficient awareness of the
relevant circumstances.” Id. at 81 (internal quotation marks omitted). It is the criminal
defendant’s burden to prove that he or she “did not competently and intelligently waive” his or
her right to the assistance of counsel. Id. at 92.
Before a criminal defendant waives his or her right to counsel, he or she “should be made
aware of the dangers and disadvantages of self-representation,” so that the record establishes that
the defendant knows what he or she “‘is doing and his choice is made with eyes open.’” Faretta
v. California, 422 U.S. 806, 835 (1975) (quoting Adams v. United States ex rel. McCann, 317
U.S. 269, 279 (1942)). The Supreme Court, however, has not “prescribed any formula or script
to be read to a defendant who states that he elects to proceed without counsel.” Tovar, 541 U.S.
at 88. The information that a criminal defendant must have in order to make an intelligent
election “will depend on a range of case-specific factors, including the defendant’s education or
sophistication, the complex or easily grasped nature of the charge, and the stage of the
proceeding.” Id. There is no clearly established federal law, as determined by the Supreme Court,
which requires a specific colloquy to determine whether a defendant’s waiver of counsel was
made with “eyes open.” Mack v. Holt, 62 F.App’x. 577, 580 (6th Cir. 2003); see also Sullivan v.
Pitcher, 82 F.App’x. 162, 165 (6th Cir. 2003); United States v. McDowell, 814 F.2d 245, 248–49
(6th Cir. 1987).
Petitioner contends that the trial judge failed to warn him of the dangers of selfrepresentation before accepting his waiver. But the judge warned petitioner that his case involved
“serious issues” and that he was charged with two capital offenses carrying up to life
imprisonment. (R. 11-4, PID 190.) The judge warned petitioner that he had a “strong likelihood
of losing” if he represented himself. (Id. at PID 190.) The judge told petitioner that he did not
think he was capable of representing himself on a capital case. (Id.) The judge offered to appoint
another attorney for petitioner and warned him that it would be a “complete disaster” for him to
represent himself at trial. (Id. at PID 191.) In appointing standby counsel for petitioner, the judge
explained to him that he did not know the rules of evidence and had no background in making
objections. (Id. at 192.) The Michigan Court of Appeals’ rejection of this claim was thus
Petitioner next contends that the trial judge should have inquired into the level of
petitioner’s background, age, education, and mental health before accepting the waiver. As noted
above, there is no clearly established federal law concerning the scope of an inquiry by a trial
judge prior to accepting a waiver. Although the judge did not specifically ask Petitioner about the
extent of his educational background, the judge was obviously aware that Petitioner lacked a
legal education and warned him that his lack of legal training would be a disadvantage. The
judge also repeatedly told petitioner that he should continue to be represented by counsel. Under
the circumstances, it was not unreasonable for the Michigan Court of Appeals to conclude that
Petitioner’s waiver was valid. See United States v. Clark, 591 F.App’x. 367, 372 (6th Cir. 2014).
Moreover, in light of the fact that petitioner engaged in a clear and lucid colloquy with the judge,
there was no reason for the judge to question petitioner’s mental competency to waive his right
to counsel. Id.
Petitioner next claims that his waiver was not voluntary because he was faced with the
“Hobson’s Choice” between proceeding with incompetent counsel who was unprepared for trial
or representing himself.1 The Sixth Circuit recently noted that the Supreme Court has yet to
address such a claim:
Because the Supreme Court has never confronted a situation in which a defendant
decided to waive counsel due to his attorney’s lack of preparedness, we have
doubts about whether any ‘clearly established’ Supreme Court law applies
here. . . . Additionally, no Supreme Court precedent explains just how unprepared
counsel must be before a court may deem a waiver of counsel to be involuntary,
nor does any Supreme Court holding address the question whether a mistaken but
reasonable belief that counsel is unprepared suffices to render a waiver of counsel
involuntary. . . .
Pouncy v. Palmer, 846 F.3d 144, 161 (6th Cir. 2017). The Court went on to explain that Iowa v.
Tovar, 541 U.S. 77 (2004), Faretta v. Cal., 422 U.S. 806 (1975), and Johnson v. Zerbst, 304 U.S.
458 (1938) could potentially support such a claim—but only if the petitioner could prove that
“appointed counsel was actually incompetent.” Id. Similarly here, Petitioner argues that his
waiver of counsel was invalid because his attorney was unprepared. Petitioner has not made any
It does not appear that Banks raised this particular argument before the Michigan Court
of Appeals. (R. 11-12, PID 689–91.) However, Respondent has not argued that Banks failed to
exhaust any of his claims. (R. 15, PID 904.) Moreover, the Court believes that this claim is
“appropriately characterized as presenting not an independent claim, but rather emphasizing new
evidence or argumentation in support of an old claim” and therefore the state-court’s rejection of
it is entitled to AEDPA deference. Pouncy v. Palmer, 846 F.3d 144, 159 (6th Cir. 2017).
showing as to why his attorney was unprepared to proceed to trial, or that his attorney was
Finally, Petitioner argues that the judge did not obtain a right-to-counsel waiver at any of
the post-July 11 hearings. However, a valid waiver of counsel “remains in effect at subsequent
proceedings in the absence of an explicit revocation by the defendant or a change of
circumstances that would suggest that the [trial] court should make a renewed inquiry of the
defendant.” United States v. McBride, 362 F.3d 360, 367 (6th Cir. 2004); see also United States
v. Modena, 302 F.3d 626, 630–31 (6th Cir. 2002). The Court already found that the Michigan
Court of Appeals’ determination of a valid waiver was reasonable. Because there is no indication
that petitioner ever revoked that waiver, or that there were a change of circumstances warranting
revisiting the issue (see R. 13, PID 878), it was unnecessary for the judge to obtain a waiver of
counsel from petitioner at any of his subsequent hearings.
For these reasons, Petitioner is not entitled to habeas relief on his waiver of counsel
Petitioner next claims that the Double Jeopardy clause was violated because the judge did
not instruct the jury properly on the charge of assault with intent to commit murder and the lesser
included offense of assault with intent to do great bodily harm less than murder, leading to a
conviction on both charges.
The Michigan Court of Appeals rejected this claim as follows:
The trial court did not abuse its discretion or commit a double jeopardy violation
by giving jury instructions for the charges of assault with intent to commit murder
and assault with intent to do great bodily harm. In People v Cornell, 466 Mich
335, 357; 646 NW2d 127 (2002), the Michigan Supreme Court held ‘that a
requested instruction on a necessarily included lesser offense is proper if the
charged greater offense requires the jury to find a disputed factual element that is
not part of the lesser included offense and a rational view of the evidence would
support it.’ ‘The Cornell Court concluded that instructions on ‘cognate’ lesser
offenses, which contain one element or some elements not found in the greater
offense, are no longer permitted under MCL 768.32(1).’ People v Brown, 267
Mich App 141, 146; 703 NW2d 230 (2005). The specific intent to do great bodily
harm required to convict defendant of assault with intent to do great bodily harm,
is different from the specific intent to kill that is required to sustain a conviction
of assault with intent to commit murder. Id. 149–150. ‘Therefore, assault with
intent to do great bodily harm less than murder is a necessarily included lesser
offense of assault with intent to commit murder.’ Id.
As stated supra, assault with intent to do great bodily harm is a necessarily
included lesser offense of assault with intent to commit murder. Therefore,
defendant was not denied a fair trial because the trial court gave separate jury
instructions for the charges of assault with intent to commit murder and assault
with intent to do great bodily harm. The trial court listed the charges on the
verdict form as listed under the felony information. In addition, the trial court
stated, ‘The Court would interject itself if the defendant were found guilty of both
the assault with intent to murder and great bodily harm[.]’ As a result, defendant
was sentenced for his conviction of assault with intent to commit murder so that
he would not be deprived of his double jeopardy rights. Finally, defendant’s
double jeopardy claim is meritless because the trial court vacated his assault with
intent to do great bodily harm sentence. Thus, there is no violation of defendant’s
constitutional right against double jeopardy.
Banks, 2013 Mich. App. LEXIS 696 at *17–19 .
Applying AEDPA deference, the Court will not disturb the Court of Appeals’
determination. It appears that upon sentencing, the trial judge addressed the double jeopardy
issue as follows: “The second charge, assault with intent to commit great bodily harm less than
murder, you will be sentenced as a fourth habitual offender to a minimum of twenty, to a
maximum of forty years in the Michigan Department of Corrections. However, because that
conviction was based on the exact same factual occurrence and circumstances as the assault with
intent to murder, I will vacate that sentence on the second charge.” (R. 11-1, PID 650.) Thus, the
trial judge vacated sentence on the lesser-included offense, but it does not appear that the trial
judge vacated the conviction. (See also R. 11-1, PID 123 (reflecting conviction on both assault
with intent to murder and assault to do great bodily harm less than murder).)
The double jeopardy clause “affords three protections to the criminal defendant. The first
two, which are the most familiar, protect against a second prosecution for the same offense after
acquittal, and against a second prosecution for the same offense after conviction.” Jones v.
Thomas, 491 U.S. 376, 380–81 (1989) (citing Ohio v. Johnson, 467 U.S. 493, 498 (1984)). The
third, which applies here, is “the protection against ‘multiple punishments for the same offense’
imposed in a single proceeding.” Id. (citing North Carolina v. Pearce, 395 U.S. 711, 717
(1969)). This third protection does “no more than prevent the sentencing court from prescribing
greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983).
Therefore, by vacating the sentence on the lesser-included offense, the trial judge achieved the
protection afforded by the double jeopardy clause with respect to Banks’s sentence. See Jones,
491 U.S. at 382.
But in Jones, the petitioner’s conviction on the other offense had also been vacated. Id.
Banks’s was not. In Ball v. United States, 470 U.S. 856, 865 (1985), the Supreme Court
explained that a “second conviction, even if it results in no greater sentence, is an impermissible
punishment.” This is because a conviction creates “potential adverse collateral consequences that
may not be ignored[.]” Id. Thus, in the ineffective-assistance-of-counsel context, the Sixth
Circuit has held that a petitioner could show prejudice based on his counsel’s failure to challenge
a conviction on double-jeopardy grounds—“That the trial court imposed concurrent sentences
for [petitioner’s] convictions does not eliminate the prejudice that he may suffer as a result of an
erroneous conviction and sentence.” Shinholster v. Bradshaw, No. 14-3026, 2014 U.S. App.
LEXIS 24993, at *6 (6th Cir. Nov. 26, 2014). Indeed, the Supreme Court has stated, “Under
Ball, the collateral consequences of a second conviction make it as presumptively impermissible
to impose as it would be to impose any other unauthorized cumulative sentence.” Rutledge v.
United States, 517 U.S. 292, 302 (1996).
However, it does not appear that Petitioner is raising a claim pursuant to Rutledge—he is
only concerned with his “sentence.” (R. 13, PID 880.) As noted above, the Court of Appeals’
determination was reasonable as to the trial court’s decision to impose sentence for the greater,
but not the lesser, offense. Even if Petitioner were seeking to vacate his conviction, federal courts
have declined to apply Ball as “clearly established” Supreme Court case law on habeas review.
See, e.g., Tavarez v. Larkin, 814, F.3d 644, 649 (2d Cir. 2016). Further, the “concurrent
sentence” doctrine might also bar this claim as moot—given Banks’s 40-year minimum sentence
on the assault with intent to commit murder conviction, any collateral consequences from the
intent-to-commit-great-bodily-harm conviction are speculative. See Benton v. Maryland, 395
U.S. 784 (1969); Nowakowski v. New York, 835 F.3d 210, 225 (2d Cir. 2016).
Accordingly, Petitioner is not entitled to habeas relief for this claim.
Petitioner next claims that his Sixth Amendment right to confrontation was violated when
the victim was permitted to conceal his identity while testifying at the preliminary examination.
The preliminary examination occurred on May 13, 2011. (R. 11-2.) At that time, because Mayen
“ha[d] some fear of retaliation,” the trial court granted the prosecution’s request to allow him to
testify with a hood over his head. (Id. at PID 135.) The Michigan Court of Appeals addressed
this claim under plain-error review as follows:
Defendant has failed to demonstrate that the trial court violated his constitutional
right to confront an accusatory witness by allowing the victim to wear a hood
during defendant’s preliminary examination. Considering the facts, it was
reasonable for the victim to feel ‘some fear of retaliation’ after the allegations of
defendant’s gun violence. Therefore, it was not unreasonable for the court to
allow the victim to testify with a hood. In addition, defendant has failed to
demonstrate that he was not afforded the right to confront the victim during his
preliminary examination testimony. The victim was cross-examined, under oath,
in the presence of defendant by defense counsel at the preliminary examination.
Also, there is no evidence that the court was unable to observe the victim’s
demeanor. Therefore, defendant’s argument is without merit.
Banks, 2013 Mich. App. LEXIS 696, at *19–20.
Assuming de novo review, Petitioner is not entitled to relief on this claim. See Trimble v.
Bobby, 804 F.3d 767, 777 (6th Cir. 2015) (highlighting Sixth Circuit case law inconsistencies on
whether plain error review amounts to a decision on the merits warranting AEDPA deference
instead of de novo review).
The confrontation clause is satisfied when the witness testifies at trial and is subject to
unrestricted cross-examination. United States v. Owens, 484 U.S. 554, 560 (1988); see also
Crawford v. Washington, 541 U.S. 36, 59, n. 9 (2004); U.S. v. Mayberry, 540 F.3d 506, 516 (6th
Cir. 2008). Also, “the United States Supreme Court has repeatedly stated that the right to
confrontation is basically a trial right.” Peterson v. California, 604 F.3d 1166, 1169 (9th Cir.
2010) (citing cases). Thus, there is extensive case law declining to apply the confrontation right
to “various pre-and post-trial proceedings,” including preliminary examinations. United States v.
Mitchell-Hunter, 663 F.3d 45, 51 (1st Cir. 2011) (collecting cases). And Crawford v.
Washington, 541 U.S. 36 (2004) and its progeny do not alter these holdings because those cases
arose in the “context of trial.” Mitchell-Hunter, 663 F.3d at 51.
Here, it is undisputed that Mayen testified at trial without the hood, and Petitioner’s
counsel was able to cross-examine him at that time. Petitioner’s counsel was able to elicit that
Mayen had worked a fifteen hour day on the day of the shooting and question Mayen’s
recollection of how many shots were fired. (R. 11-9, PID 529–37.) Moreover, even at the
preliminary hearing, Petitioner’s counsel was able to cross-examine Mayen even though he was
wearing the hood, and Mayen identified himself by name at that time. The Court does not discern
a confrontation clause violation where a witness states his name publicly but conceals his face
during a preliminary examination, and then testifies without disguise during trial, and counsel
has the opportunity to cross-examine the witness in both instances.
Petitioner also claims that allowing the victim to wear a hood was a Brady violation
because it interfered with the prosecution’s purported duty to “ensure that the identity of the
alleged victim is known to the defendant.” (R. 11-12, PID 726.) Because it appears that the
Michigan Court of Appeals did not address this Brady issue, the Court will apply de novo
A Brady violation involves three components: (1) the evidence at issue must be favorable
to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must
have been suppressed by the state, either willfully or inadvertently; and (3) prejudice must have
ensued. Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Mayen’s identity was not suppressed
by the state—he stated his name for the record. (R. 11-2, PID 136.) And given that the victim
testified without a hood at trial, there was no prejudice to Petitioner. In sum, Petitioner was on
notice as to Mayen’s identity because Mayen identified himself for the record at the preliminary
examination, Mayen testified without the hood at trial, and there is no indication that anything
about the trial prevented a full cross-examination. See Maglaya v. Buchkoe, 515 F.2d 265, 269
(6th Cir. 1975).
For these reasons, Petitioner is not entitled to habeas relief on his claims arising from
Mayen wearing a hood at the preliminary examination.
Petitioner also claims that his attorney was ineffective because he only met with
Petitioner for a few minutes prior to the preliminary examination, and failed to object to the
concealment of Mayen’s face.
The Michigan Court of Appeals addressed this claim as follows:
First, as stated supra, permitting the victim to wear a hood during the preliminary
examination did not deprive defendant of his right to confront the prosecution’s
witness. Therefore, defense counsel was not obligated to raise a futile objection.
See Ericksen, 288 Mich App at 201. In addition, defendant has failed to show that
trial counsel’s failure to meet with defendant minutes before the preliminary
examination, and counsel’s alleged failure to inform defendant of victim’s
intention to wear a hood during the preliminary examination, would have changed
the result of the proceeding. See Russell, Mich App at (slip op at 1) (stating that a
defendant must show that, but for counsel’s deficient performance, a different
result would have been reasonably probable). There is no indication that trial
counsel habitually met with defendant only minutes prior to any other hearings.
More importantly, there is no record evidence to determine if, in fact, defendant’s
allegations are true. Therefore, defendant’s claims of ineffective assistance of
counsel are without merit.
Banks, 2013 Mich. App. LEXIS 696 at *22–23. “An ineffective assistance claim has two
components: A petitioner must show that counsel’s performance was deficient, and that the
deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To succeed on the performance prong, Petitioner must identify acts that were “outside the
wide range of professionally competent assistance.” Strickland, 466 U.S. at 690; see Cullen v.
Pinholster, 131 S. Ct. 1388, 1407 (2011). To satisfy the prejudice prong, Petitioner 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. A reasonable probability
is one that is “sufficient to undermine confidence in the outcome.” Id.
“When a state prisoner asks a federal court to set aside a sentence due to ineffective
assistance of counsel,” and a state court has already rejected the ineffective-assistance claim “on
the merits” as here, Supreme Court precedent “require[s] that the federal court use a ‘doubly
deferential’ standard of review that gives both the state court and the defense attorney the benefit
of the doubt.” Burt v. Titlow, 134 S. Ct. 10, 13 (2013); accord Harrington v. Richter, 562 U.S.
86, 105 (2011) (“The standards created by Strickland and [section] 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” (internal citation
omitted)). However, “When a state court relied only on one Strickland prong to adjudicate an
ineffective assistance of counsel claim, AEDPA deference does not apply to review of the
Strickland prong not relied upon by the state court. The unadjudicated prong is reviewed de
novo.” Rayner v. Mills, 685 F.3d 631, 638 (6th Cir. 2012).
Given that Mayen ultimately testified without the hood at trial, and given the other
overwhelming evidence of guilt in this case, the Michigan Court of Appeals reasonably
determined that even if counsel had objected, there was no reasonable probability that the
outcome of the proceeding would have been different. That is to say, the Michigan Court of
Appeals reasonably determined that there was no prejudice to Petitioner arising out of counsel’s
allegedly deficient performance.
Petitioner is not entitled to habeas relief on this claim.
Petitioner’s last claim is that he was denied a fair trial due to prosecutorial misconduct.
The Michigan Court of Appeals addressed this claim as follows:
The prosecutor did not commit prosecutorial misconduct when he asserted that
the jury could decide whether the victim’s testimony was credible. . . . .
Defendant mischaracterizes the prosecutor’s statement during his closing
argument. Defendant argues, ‘The prosecution asserted the testimony of [the
victim] was ‘The Truth’, and that no further testimony would have been needed.’
During closing argument, the prosecutor stated, ‘And to be honest, this trial could
have been shorter. I could have stopped right there because as the trier of the fact,
if you believe the testimony of [the victim], that’s enough. That’s the truth. You
decide what happened. So if you believe his testimony then that was enough.’ The
prosecutor’s statement did not reference that the victim’s testimony was ‘The
Truth,’ but argued that his testimony provided sufficient evidence of defendant’s
guilt if the jury found the victim to be credible. The prosecutor commented on the
credibility of the victim, which is proper because the victim was the prosecution’s
witness. See Thomas, 260 Mich App 455. Therefore, defendant has failed to
demonstrate that the prosecutor attempted to place the credibility of his office
behind the case or suggest that he possessed extrajudicial information. See Reed,
449 Mich at 399. Thus, defendant’s prosecutorial misconduct argument is without
Banks, 2013 Mich. App. LEXIS 696, at *23–25.
“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. Because the Michigan Court of Appeals decided the prosecutorial
misconduct claim on the merits, Petitioner must show that the state court’s rejection of his 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).
The Michigan Court of Appeals’ rejection of the prosecutorial-misconduct claim was
reasonable. The prosecutor did not argue that he had any special knowledge about the victim that
had not been presented to the jury. There was no improper vouching because the prosecutor did
not improperly “assert or imply that he drew from anything but [the victim’s] trial testimony to
argue that [he] was credible.” Cockream v. Jones, 382 F.App’x. 479, 485 (6th Cir. 2010). Indeed,
the prosecutor did even not go so far as to tell the jury they should believe Mayen—he merely
stated that if the jury credited Mayen’s testimony, that would be enough to convict. Again, he
stated: “And to be honest, this trial could have been shorter, I could have stopped right there
[after Mayen’s testimony] because as the triers of fact, if you believe the testimony of Mr.
Mayen, that’s enough. That’s the truth. You decide what happened. So if you believe his
testimony, then that was enough.” (R. 11-10, PID 591.) The prosecutor went on to point out that
there were “a number of people that are backing up the testimony of Mr. Mayen[.]” (Id. at PID
592.) Accordingly, the prosecutor merely argued that the record evidence supported Mayen’s
account of what happened, and that if the jury believed that account, they should find Petitioner
Petitioner also argues that the prosecutor committed a fraud upon the court by falsely
representing to the examining magistrate that the victim had medical complications that
prevented him from attending the preliminary examination and that on one occasion he was too
fearful to testify, thus leading to three adjournments of the preliminary examination.
The Michigan Court of Appeals declined to address this claim on direct review:
Defendant also argues that the prosecutor misrepresented the facts concerning the
victim’s availability for the preliminary examination, and thus, the trial court did
not have good cause to adjourn the preliminary examination three separate times.
The Michigan Supreme Court has held that ‘a defendant must raise the issue of a
twelve-day rule violation immediately before the commencement of the
preliminary examination. Failure to raise the issue waives appellate review on the
question.’ People v Crawford, 429 Mich 151, 168; 414 NW2d 360 (1987).
Defendant failed to raise this issue immediately before the commencement of the
preliminary examination. Therefore, the issue is waived.
Banks, 2013 Mich. App. LEXIS 696, at *25. Accordingly, Respondent argues that this claim has
been procedurally defaulted. (R. 15, PID 975.)
Even if the Court were to find that the claim was not procedurally defaulted pursuant to
Henderson v. Palmer, 730 F.3d 554, 559 (6th Cir. 2013), habeas relief would not be warranted.
Petitioner claims that he “had the records to prove” that “the statements offered by the
prosecution were clear and utter falsehood.” (R. 13, Page ID 886). However, petitioner did not
provide those records to the Michigan Court of Appeals as part of his Rule 4 Supplemental Brief
on Appeal, nor has he provided them to this Court. Habeas relief will not be granted based on
conclusory allegations of prosecutorial misconduct. See Johnson v. Renico, 314 F. Supp. 2d 700,
710 (E.D. Mich. 2004). Because petitioner’s second prosecutorial misconduct claim is
unsupported, he is not entitled to habeas relief.
For the reasons set forth above, the Court will not grant Banks the relief requested in his
amended petition. The Court also believes that no reasonable jurist would find that Banks’s
claims have merit, so a certificate of appealability will not issue from this Court. See Slack v.
McDaniel, 529 U.S. 473, 483–84 (2000). But if Banks nonetheless chooses to appeal, he may
proceed in forma pauperis. See 28 U.S.C. § 1915(a)(3).
Accordingly, IT IS ORDERED the Petition for Writ of Habeas Corpus (R. 13) is
It is further ORDERED that a Certificate of Appealability is DENIED.
It is further ORDERED that Walker may proceed in forma pauperis on appeal.
s/Laurie J. Michelson
LAURIE J. MICHELSON
U.S. DISTRICT JUDGE
Dated: July 15, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court=s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on July 15, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?