anderson v. Gidley

Filing 7

OPINION AND ORDER Denying Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHANNON ANDERSON,
Petitioner,
Case No. 14-cv-13856
v.
HON. MARK A. GOLDSMITH
LORI GIDLEY,
Respondent.
_________________________________/
OPINION AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE
A CERTIFICATE OF APPEALABILITY
This is a habeas case brought by a Michigan prisoner, through counsel, under 28 U.S.C. §
2254 (Dkt. 1).

Petitioner Shannon Anderson was convicted after a jury trial in the Macomb

Circuit Court of second-degree murder, Mich. Comp. Laws § 750.317; assault with intent to do
great bodily harm, Mich. Comp. Laws § 750.84; felon in possession of a firearm, Mich. Comp.
Laws § 750.224f; and commission of a felony with a firearm, Mich. Comp. Laws § 750.227b.
He was sentenced to concurrent terms of 215-to-480 months’ imprisonment for the murder
conviction, 67-to-120 months’ imprisonment for the assault conviction, 36-to-60 months’
imprisonment for the felon-in-possession conviction, and a consecutive two-year term for the
firearm conviction.
The petition raises six claims: (i) the trial court erred in admitting a witness’s prior
consistent statement, (ii) the trial court erred in excluding videotaped evidence of a witness’s
interview with the police, (iii) a police officer testified regarding Petitioner’s exercise of his right
to remain silent, (iv) the prosecutor committed misconduct during closing arguments, (v)
Petitioner was denied the effective assistance of trial counsel, and (vi) cumulative error denied
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Petitioner a fair trial.
For the reasons stated below, the Court denies the petition because the state-court
adjudication of his claims did not involve an unreasonable application of clearly established
Supreme Court law.

The Court further declines to issue a certificate of appealability.
I. BACKGROUND

Petitioner was convicted of offenses in connection with his participation in a shootout
occurring at his beauty salon.

Petitioner was tried twice. His first trial ended in a conviction

that was reversed on appeal. See People v. Anderson, No. 290688 (Mich. Ct. App. Nov. 17,
2009) (per curiam) (Dkt. 5-39).
At Petitioner’s second trial, the evidence showed that Petitioner operated the Wild Stylz
beauty salon in Eastpointe.

The shooting occurred on January 15, 2007.

It was not disputed at

trial that Petitioner shot and injured Troy Christian, and shot and killed Stanley Rhynes.
Petitioner claimed at trial that the shooting was performed in self-defense.
Christian testified that he was a longtime friend of Rhynes.
Chrysler plant.

The two worked at the same

Rhynes was a marijuana dealer, and Christian served as his middleman.

Christian and Rhynes were introduced to Petitioner in August 2006 through Petitioner’s sister,
who also worked at the plant.
Christian testified he had brokered several deals where Rhynes would buy several pounds
of marijuana from Petitioner.

On January 15, 2007, Christian testified he negotiated a purchase

of ten pounds of marijuana from Petitioner over a series of cellphone conversations. Christian
and Rhynes were supposed to meet Petitioner at a restaurant, but Petitioner directed them in the
parking lot to go to his salon.

Shortly after they entered the salon, Christian testified that

Petitioner pulled a gun from what he thought was the bag of marijuana and began to fire.
Christian ran and drew his own handgun, but he was shot in the pelvis and elbow.
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He

hid for a short time in the building and yelled for Rhynes.

When there was no response, he

returned and saw Rhynes lying face-down in a pool of blood.

Christian ran outside and yelled

for help. He then saw Petitioner and the two exchanged insults and shots.

Ballistics evidence

showed that none of the shots fired inside the salon was fired by Christian’s guns.
Employees and customers from nearby businesses heard the yells for help and gunfire,
and they saw individuals running with guns.

Petitioner fled the scene.

Christian remained in

the parking lot. When police arrived Christian told them he had a gun, that Petitioner shot him,
and that another man was shot and lying inside the salon. Police discovered over $34,000 in
cash and another pistol owned by Christian on Rhynes’s body.

Rhynes had been shot multiple

times from the same weapon in the head and chest from close range.

The gun found on

Rhynes’s body had not been fired.
Petitioner testified to a different account of the incident. He testified that he was not
meeting with Christian for a new sale, but rather to settle an outstanding debt for $30,000 from
an earlier deal.
show.

He went to a restaurant to meet with the pair, but he left when they did not

He returned to his salon and was alarmed to see Christian and Rhynes there.
Petitioner testified that Christian and Rhynes looked around in a way that made him

suspicious. Petitioner explained that he was on guard because he had been shot nine days
earlier during a robbery. He was also alarmed because Christian mentioned this prior shooting,
even though he had not told either of them about it.

Petitioner testified that when Christian and

Rhynes suddenly appeared to go for their guns, he was quicker on the draw and fired at them in
self-defense.
The jury chose to accept Christian’s testimony over Petitioner’s and found Petitioner
guilty of the offenses described above.
Following his conviction and sentence on retrial, Petitioner filed a claim of appeal in the
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Michigan Court of Appeals. His appellate brief raised the following claims:
i.

The trial court improperly allowed the prosecution to bolster
the testimony of its star witness, Troy Christian, with his
purported “prior consistent statements.” This evidentiary error
denied appellant his due process rights to a fair trial. US Const,
Am XIV; Const 1963, Art 1, §17.

ii.

The police memorialized two interviews with Troy Christian in
audio/video recordings. The trial court’s denial of the
defense-request to use these recordings, in digitized form, on
cross examination for impeachment abridged appellant
Anderson’s constitutional right to confrontation, to present a
defense, to effective assistance of counsel, and to a fair trial.

iii.

Appellant invoked his Fifth Amendment privilege to remain
silent when he hired a lawyer to arrange his voluntary
surrender for arrest. During the prosecution’s case-in-chief,
police detective Baker impermissibly commented on
Anderson’s post-arrest silence by stating “I would have loved
to have gotten an initial statement from Mr. Anderson also.” In
denying the motion for a mistrial, the trial court deprived
defendant of his due process rights to a fair trial. US Const, Am
V, XIV; Const 1963, art 1, §17.

iv.

The defense objected to admission of graphic autopsy
photographs of the deceased, as substantially more prejudicial
than probative and serving no purpose other than to inflame the
passions of the jury. In admitting the photographs, the trial
court erred and denied the due-process right to a fair trial.

v.

The cumulative effect of the prosecutor’s misconduct denied
appellant a fair trial.

vi.

Ineffective assistance of counsel denied appellant a fair trial.

vii.

The cumulative effect of error requires that appellant be
granted a new trial.

The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished
opinion.

People v. Anderson, No. 302023, 2013 WL 6124284 (Mich. Ct. App. Nov. 21, 2013).

Petitioner appealed this decision to the Michigan Supreme Court, but his application for leave to
appeal was denied by standard form order. People v. Anderson, 846 N.W.2d 397 (Mich. 2014).
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II. STANDARD OF REVIEW
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 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, 405-406 (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 411.
The Supreme Court has explained that a “federal court’s collateral review of a state-court
decision must be consistent with the respect due state courts in our federal system.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). Thus, the AEDPA “imposes a highly deferential standard for
evaluating state-court rulings, and demands that state-court decisions be given the benefit of the
doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010). A “state court’s determination that a claim
5

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, 131 S. Ct. 770, 786 (2011). The
Supreme Court has emphasized “that even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.”

Id.

Furthermore, pursuant to section 2254(d), “a

habeas court must determine what arguments or theories supported or . . . could have supported,
the state court’s decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior decision” of
the Supreme Court. Id. Habeas relief is not appropriate unless each ground that supported the
state-court’s decision is examined and found to be unreasonable under the AEDPA. See Wetzel
v. Lambert, 132 S. Ct. 1195, 1199 (2012).
“If this standard is difficult to meet, that is because it was meant to be.” Harrington, 131
S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar
federal courts from re-litigating claims that have previously been rejected in the state courts, it
preserves the authority for a federal court to grant habeas relief only “in cases where there is no
possibility fairminded jurists could disagree that the state court’s decision conflicts with” the
Supreme Court’s precedents. Id. Indeed, section 2254(d) “reflects the view that habeas corpus
is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.” Id. A “readiness to attribute error [to a state court] is
inconsistent with the presumption that state courts know and follow the law.” Woodford v.
Viscotti, 537 U.S. 19, 24 (2002). Therefore, in order to obtain habeas relief in federal court, a
state prisoner is required to 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.” Harrington, 131 S. Ct. at 786-787.
A state court’s factual determinations are presumed correct on federal habeas review. See
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28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness only with
clear and convincing evidence. Id.; Warren v. Smith, 161 F.3d 358, 360-361 (6th Cir. 1998).
Moreover, habeas review is “limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
III.

ANALYSIS

A. Admission of Christian’s Prior Consistent Statements
Petitioner’s first claim asserts that his right to confront witnesses under the Sixth
Amendment and his right to a fair trial under the Due Process Clause of the Fourteenth
Amendment were violated by admission of Christian’s February 12 statement to police while he
was in jail, offered by the prosecution to show that his trial testimony was consistent with
statements made before he had a motivation to fabricate due to his plea bargain.
Petitioner makes several arguments in support of this claim. Petitioner first argues that
the state court allowed the prior statement into evidence in violation of Michigan Rule of
Evidence 801(d)(1)(B), because Christian had a motivation to lie on February 12 even before he
had formally been offered a plea bargain.

Petitioner next asserts that the basis for allowing

admission of the statement under Rule 801(d)(1)(B) entitled him to habeas relief under
§ 2254(d)(2), because the determination that Christian had no motivation to fabricate when he
made his statement was an “unreasonable determination of the facts in light of the evidence
presented in the state court record.”

Finally, Petitioner primarily points to Tome v. United

States, 513 U.S. 150 (1995) as the source of clearly established Supreme Court law supporting
his claim.
The statement at issue is one Christian made on February 12, 2007, in an interview with
police officers at the Macomb County Jail. The statement was made before any formal plea
deal had been negotiated with Christian, but Christian testified at the preliminary examination
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that, when he gave the statement, it was his understanding that a plea deal would be made based
on what he said.

Christian was released on bond two days after he made the statement.

In his opening statement, defense counsel asserted that Christian was lying both to shift
blame away from himself and because he had obtained a favorable plea bargain. In response to
this argument, the prosecutor moved to introduce Christian’s preliminary examination testimony
and his February 12 statement as prior consistent statements to his expected trial testimony to
rebut the suggestion that Christian fabricated his testimony as a result of receiving a favorable
plea deal. The trial court excluded the preliminary examination testimony because it was made
after plea negotiations, but it allowed the February 12 statement (and any statements Christian
made at the scene) to be admitted to rebut the suggestion of fabrication in light of a plea bargain.
7/30/2010 Tr. at 7-21 (Dkt. 5-29); 8/3/2010 Tr. at 80-84 (Dkt. 5-30).
First, to the extent that Petitioner asserts that the trial court erred in admitting the disputed
testimony under the Michigan Rules of Evidence, he merely alleges a state-law violation, which
does not entitle him to federal habeas relief. See, e.g., Beach v. Moore, 343 F. App’x 7, 11 (6th
Cir. 2009). State courts are the final arbiters of state law and the federal courts will not
intervene in such matters.

Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Bradshaw v.

Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002).
Therefore, the determination of the Michigan Court of Appeals that the statement was properly
admitted under Rule 801(d)(1)(B) as a matter of state law is binding on this Court.
Petitioner asserts that he is, nevertheless, entitled to relief under § 2254(d)(2) because the
Michigan Court of Appeals made an unreasonable factual determination that Christian did not
have a motive to lie in the February 12 statement in light of his admissions at the preliminary
examination that he expected a deal would result from his statement.

Section 2254(d)(2) has

been interpreted as precluding a federal court from setting “aside reasonable state-court
8

determinations of fact in favor of its own debatable interpretation of the record[.]”

Rice v.

Collins, 546 U.S. 333, 335 (2006). That reasonable minds reviewing the record might disagree
about the factual finding does not suffice to supersede the trial court’s factual finding.

Id.

Thus, where permissible alternatives exist, the factual finding must not be disturbed. Id. at 325;
see also Miller-El v. Dretke, 545 U.S. 231, 240, (2005). This section is worded in the negative
and establishes the degree of deference afforded state court findings of fact; it does not create an
independent basis for granting habeas relief absent a valid constitutional claim.

Petitioner

offers two constitutional bases: the Confrontation Clause and the Due Process Clause.
Petitioner’s claim cannot be founded on the Confrontation Clause.

In Crawford v.

Washington, 541 U.S. 36 (2004), the Supreme Court held that the testimonial statement of a
witness who does not appear at trial is inadmissible unless the witness is unavailable to testify
and the defendant had a prior opportunity to cross-examine the witness. Testimonial statements
include preliminary hearing testimony, grand jury testimony, prior trial testimony, and
statements made during police interrogations. Id. at 54. In this case, Christian appeared and
testified at trial, and was available for cross-examination.

Petitioner had the opportunity to

question him about his September 12 statement, and he did so.

Consequently, no confrontation

violation occurred.
Nor can Petitioner’s claim be supported by the Due Process Clause.

Petitioner primarily

relies on Tome v. United States. That decision, however, merely interprets Federal Rule of
Evidence 801(d)(1)(B), which is comparable to Michigan Rule of Evidence 801(d)(1)(B).

In

Tome, the Supreme Court stated that, “[p]rior consistent statements may not be admitted to
counter all forms of impeachment or to bolster the witness merely because she has been
discredited.”

513 U.S. at 157.

Nevertheless, there is “no Supreme Court decision holding that

the improper use of a witness’s prior consistent statements violates the Constitution.” Drain v.
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Woods, 902 F. Supp. 2d 1006, 1037 (E.D. Mich. 2012). Tome simply does not purport to
create a constitutional limitation on the introduction of prior consistent statements.
Petitioner cites a number of federal court of appeals cases using open-ended standards to
determine whether the admission of evidence constitutes a due process violation, such as where
the evidence was a “crucial factor,” “highly prejudicial,” or “egregious.”

But the Supreme

Court has emphasized “circuit precedent does not constitute ‘clearly established Federal law, as
determined by the Supreme Court,’” and “[i]t therefore cannot form the basis for habeas relief
under AEDPA.”

Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per curiam).

It is

doubtful that the cited standards were derived from Supreme Court holdings and can be
considered the “clearly established” standard for purposes of § 2254(d) review. See Olson v.
Little, 604 F. App’x 387, 406 (6th Cir. 2015) (discussing how the “crucial factor” standard
derives not from the Supreme Court but from a concurrence in a 1968 Fifth Circuit opinion).
In fact, “[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due
Process Clause has limited operation. . . .

[The Supreme Court has] defined the category of

infractions that violate ‘fundamental fairness’ very narrowly.” Dowling v. United States, 493
U.S. 342, 353 (1990) (discussing whether admission of evidence violates fundamental fairness
guarantee of Due Process Clause).

Under clearly established Supreme Court law, the

application of state evidentiary rules cannot rise to the level of due process violations unless they
“offend[] some principle of justice so rooted in the traditions and conscience of our people as to
be ranked as fundamental.”

Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (citing Patterson v.

New York, 432 U.S. 197, 201-202 (1977)).

The clearly established standard for a

fundamental-fairness claim is “whether the action complained of violates those fundamental
conceptions of justice which lie at the base of our civil and political institutions and which define
the community’s sense of fair play and decency.”
10

Olson, 604 F. App’x at 406 n.17 (quoting

Dowling, 493 U.S. at 353).

Because Petitioner has not pointed to any decision of the Supreme

Court supporting the position that the admission of the Christian’s prior consistent statements
deprived Petitioner of a fundamentally fair trial under this very narrow standard, Petitioner is not
entitled to habeas relief on his claim.

See Benton v. Booker, 403 F. App'x 984, 986 (6th Cir.

2010).
B. Exclusion of Videotaped Evidence
Petitioner next argues that his rights under the Confrontation Clause were violated when
he was prohibited from using the video recording of Christian’s interview with police to impeach
him at trial.
The Confrontation Clause guarantees a criminal defendant the right to confront the
witnesses against him or her.

Davis v. Alaska, 415 U.S. 308, 315 (1973).

“Cross-examination

is the principal means by which the believability of a witness and the truth of his testimony are
tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly
harassing interrogation, the cross-examiner is not only permitted to delve into the witness's story
to test the witness's perceptions and memory, but the cross-examiner has traditionally been
allowed to impeach, i.e., discredit the witness.” Id. at 314.
however, is not absolute.

The right of cross-examination,

Trial judges “retain wide latitude insofar as the Confrontation Clause

is concerned to impose reasonable limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness's safety, or
interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986); see also Jordan v. Warden, Lebanon Corr. Inst., 675 F.3d 586, 594 (6th Cir.
2012).

As the Sixth Circuit has recently explained:
The key issue is whether the jury had enough information to assess the defense's
theory of the case despite the limits on cross-examination. So long as
cross-examination elicits adequate information to allow a jury to assess a
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witness's credibility, motives, or possible bias, the Sixth Amendment is not
compromised by a limitation on cross-examination.
United States v. Callahan, 801 F.3d 606, 624 (6th Cir. 2015).
Applying this established precedent, the Michigan Court of Appeals thoroughly
addressed the question, as follows:
Defendant next contends that the trial court abused its discretion in
holding that defendant could not impeach Christian’s trial
testimony with the digitized recordings from his police interviews
on January 17, 2007, and February 12, 2007. We disagree.
Preserved evidentiary issues are reviewed for an abuse of
discretion. Mahone, 294 Mich. App. at 212. When constitutional
issues are preserved, this Court must determine if the error was
harmless beyond a reasonable doubt. People v. Dendel, 289 Mich.
App. 445, 475; 797 N.W.2d 645 (2010). An error is harmless if it
is “clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error.” Id. If this Court
determines that the jury would have convicted defendant even
without the error, the defendant is not entitled to a new trial. See
id. at 476.
Defendant argues that the use of the recordings violated his
confrontation rights and his right to present a defense. We review
de novo a defendant’s claim that he was denied his right of
confrontation under the Sixth Amendment. People v. Nunley, 491
Mich. 686, 696-697; 821 N.W.2d 642 (2012). We also review de
novo a defendant’s claim that he was denied his constitutional right
to present a defense. People v. Unger (On Remand), 278 Mich.
App. 210, 247; 749 N.W.2d 272 (2008).
Under the Confrontation Clause, a defendant has the right “to be
confronted with the witnesses against him” US Const, Am VI; see
also Const 1963, art 1, § 20. This right allows a defendant to
cross-examine and challenge the witness’s credibility, such as by
showing that a witness is biased or that the testimony is
exaggerated or unbelievable.” Pennsylvania v. Richie, 480 U.S. 39,
51-52 (1987) [string citations omitted]. Under MRE 613(b),
extrinsic evidence of a witness’s prior inconsistent statement is
admissible if the witness is “afforded an opportunity to explain or
deny the same and the opposite party is afforded and opportunity
to interrogate the witness thereon.” However, a trial court judge
can impose reasonable limits on cross-examination to address
concerns of “harassment, prejudice, confusion of the issues, the
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witness’ safety, or interrogation that is repetitively or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986) [string citations omitted]; see also MRE 611(a); People v.
Canter, 197 Mich. App. 550, 564; 496 N.W.2d 336 (1992). In
addition, it is within the trial court’s discretion to preclude
impeachment of a witness on a collateral matter. People v.
Wofford, 196 Mich. App. 275, 281; 492 N.W.2d 747 (1992).
The trial court was within its discretion in concluding that the
digitized images of Christian’s demeanor during his police
interviews were not admissible. Christian admitted that the
majority of his January 17, 2007, statement to police was false.
Defendant argues that he should have been allowed to play the
portion of the January 17, 2007, interview where Christian is
writing on a diagram of the hair salon and showing where he,
defendant, and Rhynes were positioned in the salon. When
defendant tried to question Christian about the diagram, Christian
claimed he did not remember drawing on it. Defendant asserts that
this line of question was important because Christian’s writing on
the diagram indicates that defendant was standing between
Christian and Rhynes, which corroborates defendant’s testimony
that he was ambushed. Defendant avers that the diagram is
contrary to Christian’s testimony that defendant was facing him
and Rhynes, who were standing next to each other and against the
wall. However, Christian admitted that it looked like his signature
on the diagram. Thus, defense counsel was able to effectively
impeach Christian on this issue, and the trial court did not abuse its
discretion in precluding cumulative evidence.
Similarly, defendant effectively impeached Christian regarding his
trial testimony that Rhynes may have taken Christian’s gun from
his center console when Rhynes was looking for some change as
there were in a drive-through at a fast-food restaurant. Defense
counsel impeached Christian with a receipt from the restaurant
found in Christian’s car, which showed that cash was paid for the
order and coins were received in change.
Finally, defendant claims that the recordings could have been used
to refresh Christian’s allegedly selective memory lapses. However,
defense counsel had transcripts from the interviews that he could
have used to refresh Christian’s memory.
Anderson, 2013 WL 7124284, at *2-*3.
The state-court’s decision constituted an entirely reasonable application of clearly
established Supreme Court precedent. The jury had more than enough information to assess
13

Christian’s credibility based on the lengthy and effective avenues of cross-examination that were
allowed.

They knew he had lied about aspects of the incident to police, and they knew of his

obvious motivations for fabricating an exculpatory version of events.

Consequently,

Petitioner’s right of confrontation was not violated by this minor restriction placed on the
defense attorney’s cross-examination of Christian. More to the point, a fairminded jurist could
conclude in light of the record evidence that Petitioner’s right to confrontation was not violated.
Finally, even if the trial court erred, Petitioner is not entitled to relief. For purposes of
federal habeas review, a constitutional error that implicates trial procedures is considered
harmless if it did not have a “substantial and injurious effect or influence in determining the
jury's verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Fry v. Pliler, 551

U.S. 112, 117-118 (2007) (confirming that the Brecht standard applies in “virtually all” habeas
cases).

Confrontation errors, like other trial errors, are subject to harmless error analysis.

Arsdall, 475 U.S. at 684.
under this standard.

Van

Any error in limiting cross-examination of Christian was harmless

The jury was well aware of his credibility issues, including the

inconsistencies in his statements, his favorable plea deal, and his incentive to testify against
Petitioner. Any error, therefore, did not have a substantial impact on the result of his trial.
C. Comment on Petitioner’s Silence
Petitioner asserts that his Fourteenth Amendment right to a fair trial was violated when a
police officer gave an unresponsive answer during direct examination stating that “I would have
loved to have gotten an initial statement from Anderson also.”

8/5/2010 Tr. at 100 (Dkt. 5-32).

Petitioner claims that the prosecutor’s questioning of the officer violated Doyle v. Ohio, 426 U.S.
610 (1976).
In Doyle, the Supreme Court held that it is a violation of the Due Process Clause of the
Fourteenth Amendment for the prosecution to use a defendant’s post-arrest silence to impeach
14

exculpatory testimony given by him at trial. This rule rests on the presumption that it is
fundamentally unfair to assure a suspect that his silence would not be used against him and then
to use his silence to impeach an explanation subsequently offered at trial. Wainwright v.
Greenfield, 474 U.S. 284, 291 (1986).

The goal of Doyle is to prevent a jury from drawing

inferences of guilt from a defendant’s decision to remain silent after his arrest. Gravley v.
Mills, 87 F.3d 779 (6th Cir. 1996).
It is clear from the record that the prosecutor did not violate Petitioner’s due process
rights under Doyle. Doyle applies where a prosecutor attempts to impeach defendant’s trial
testimony by showing that he remained silent after arrest. In this case, the prosecutor did not
deliberately elicit the police officer’s answers regarding Petitioner’s decision not to make a
statement.

The question concerned Christian’s statement to police and had nothing to do with

any attempt to elicit a statement from Petitioner.

8/5/2010 Tr. at 100. After the unresponsive

remark was made by the officer, the trial court acted quickly to cure any resulting prejudice by
giving a curative instruction directing the jury to disregard the remark.
are presumed to follow the court’s instructions.
(2001).

Id. at 107-108.

Jurors

See Penry v. Johnson, 532 U.S. 782, 799

The fact Petitioner did not make a statement to police never came up again at trial and

was not used by the prosecutor to impeach his testimony.

The Court has no difficulty in

concluding that the witness’s stray remark which the jury was instructed to disregard did not
render Petitioner’s trial fundamentally unfair, and that it was nevertheless harmless.
D. Prosecutorial Misconduct and Ineffective Counsel
Petitioner’s fourth claim asserts that the prosecutor committed misconduct at trial by
arguing facts not admitted in evidence and by vouching for the credibility of Christian.
Specifically, Petitioner claims that there was no evidence presented at trial to support the
prosecutor’s argument that Rhynes was shot while lying on the ground.
15

He also asserts that the

prosecutor improperly argued that Christian had been forthcoming ever since he made his
statement at the Macomb County Jail.

Petitioner asserts in his fifth claim that his counsel was

ineffective for failing to objection to these un-objected to instances of prosecutorial misconduct.
The U.S. Supreme Court has made clear that prosecutors must “refrain from improper
methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78,
88 (1935).

To prevail on a claim of prosecutorial misconduct, a habeas petitioner must

demonstrate that the prosecutor's conduct or remarks “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.”

Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974); see also Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly);
Parker v. Matthews, 132 S. Ct. 2148, 2153 (2012) (confirming that Donnelly/Darden is the
proper standard).

“[T]he Supreme Court has clearly indicated that the state courts have

substantial breathing room when considering prosecutorial misconduct claims because
constitutional line drawing in prosecutorial misconduct cases is necessarily imprecise.”

Slagle

v. Bagley, 457 F.3d 501, 516 (6th Cir. 2006). Indeed, because “the Darden standard is a very
general one,” courts have “more leeway . . . in reaching outcomes in case-by-case
determinations.”

Parker, 132 S. Ct. at 2155.

The Michigan Court of Appeals rejected the claim on the merits as follows:
Defendant also contends that prosecutorial misconduct denied him
a fair trial. We disagree.
To preserve a claim of prosecutorial misconduct, a defendant must
“timely and specifically object[], except when an objection could
not have cured the error, or a failure to review the issue would
result in a miscarriage of justice.” People v. Callon, 256 Mich.
App. 312, 329; 662 N.W.2d 501 (2003). Defendant points to three
examples of alleged prosecutorial misconduct. In two of these
examples, defense counsel did not object. In the third example,
defense counsel objected but he did not specifically object that the
argument improperly bolstered Christian’s credibility. In fact,
defendant did not state any legal grounds for his objection.
16

Therefore, this issue is unpreserved.
An unpreserved claim of prosecutorial misconduct is reviewed for
plain error affecting substantial rights. Unger, 278 Mich. App. at
235. “Reversal is warranted only when plain error resulted in the
conviction of an actually innocent defendant or seriously affected
the fairness, integrity, or public reputation of judicial proceedings.”
Id. (internal citation omitted). An error does not require reversal
“where a curative instruction could have alleviated any prejudicial
effect.” Unger, 278 Mich. App. at 235.
A claim of prosecutorial misconduct only warrants a new trial
when the defendant “was denied a fair and impartial trial.” People
v. Brown, 279 Mich. App. 116, 134; 755 N.W.2d 664 (2008). The
defendant has the burden of showing that any error “resulted in a
miscarriage of justice.” Id. The prosecutor’s statements are
reviewed as a whole and in context with the evidence presented
and the defendant’s arguments. Brown, 279 Mich. App. at 135.
Prosecutors are generally “accorded great latitude regarding their
arguments and conduct at trial.” Unger, 278 Mich. App. at 236. It
is improper for a prosecutor to misstate the law or facts; however,
“proper jury instructions cure most errors because jurors are
presumed to follow the trial judge’s instructions.” See People v.
Masik (On Reconsideration), 285 Mich. App. 535, 542; 775
N.W.2d 857 (2009).
First defendant contends that the prosecutor improperly argued
facts not in evidence when he said that Rhynes was shot while on
the ground. This argument lacks merit. “A prosecutor may not
make a statement of fact to the jury that is unsupported by
evidence, but [he] is free to argue the evidence and any reasonable
inferences that may arise from the evidence.” People v. Ackerman,
257 Mich. App. 434, 450; 669 N.W.2d 818 (2003). The prosecutor
specifically said:
Again, at some point the defendant had shot Stanley
Rhynes as he laid [sic] on the ground. You can see from
this blood splatter which is right by the floor right here.
At some point he was shot while he was on the ground.
Blood on the floor, blood on the floor corroborates Troy
Christian’s account.
This argument was not improper; the prosecutor made a reasonable
inference from the evidence. See Ackerman, 257 Mich. App. at 450.
The evidence showed that Rhynes was shot four times. The shot that
entered Rhynes’s arm, exited, and then went through his chest
without exiting was shot from less than eight inches away. It was
17

reasonable for the prosecutor to infer that Rhynes did not remain
standing while he was shot four times—including once in his face
and once in the back of his head. In addition, three of the bullets
were fired from more than eight inches away, while the fourth was
fired from within eight inches. This evidence supports the inference
that defendant was approaching Rhynes while shooting
him—perhaps because Rhynes was lying on the ground and not
moving. Furthermore, the trial court instructed the jury that the
attorneys’ statements are not evidence.
Second, defendant asserts that the prosecutor impermissibly
bolstered Christian’s testimony by asking him a series of leading
questions on redirect examination. MRE 611(d)(1) states that
“[l]eading questions should not be used on the direct examination of
a witness except as may be necessary to develop the witness’
testimony.” We agree that the prosecution asked Christian leading
questions during part of the redirect examination. For example, the
prosecutor asked Christian, “[d]id you not tell the detectives that you
were shot from behind” and [d]id you not tell the detectives that . . .
after you had gone outside, you actually shot the Cadillac window
out?” However, a violation of this rule only warrants reversal when
“some prejudice or pattern of eliciting inadmissible testimony” is
shown. People v. Watson, 245 Mich. App. 572, 587; 629 N.W.2d
411 (2001).
First, the information elicited by the prosecutor during the
questioning at issue was admissible as a prior consistent statement
pursuant to MRE 801(d)(1)(B). Second, reversal is not required
because an objection and instruction could have cured the error. See
Unger, 278 Mich. App. at 235. For example, if defense counsel had
objected, then the prosecutor could have rephrased his questions to
be more open-ended.
Finally, defendant claims that the prosecutor improperly vouched for
Christian’s credibility when he made the following statements
during his closing argument:
[Christian’s] been very forthcoming ever since the
Macomb County jail statement which was on February
12th.
* *
*
The February 12th, 2007 jail interview. I think that
interview is extremely important because there was no
promises made [sic]. . . . The truth is that only his
statement made any sense.
18

It is improper for the prosecutor to vouch for the credibility of his
witnesses ‘“to the effect that he has some special knowledge
concerning a witness’ truthfulness.’” People v. Bennett, 290 Mich.
App. 465, 476; 802 N.W.2d 627 (2010), quoting People v. Bahoda,
448 Mich. 261, 276; 531 N.W.2d 659 (1995). The comments cited
by defendant do not indicate that the prosecutor had some special
knowledge concerning Christian’s truthfulness. The prosecutor
discussed Christian’s admittedly false statements to police before
the February 12, 2007, interview and asserted that since that
interview, Christian’s statements have been consistent. The fact
that Christian previously lied to police but was relatively consistent
in his story since the February 12, 2007, interview, was not
“special knowledge” of the prosecutor. Christian was questioned at
length about his previous statements in front of the jury. In
addition, “[a] prosecutor may fairly respond to an issue raised by
the defendant.” Brown, 279 Mich. App. at 135. The prosecutor was
responding to defendant’s assertion throughout the trial that
Christian was not a credible witness. The prosecutor did not
improperly vouch for Christian’s credibility.
Anderson, 2013 WL 7124284, at *7-*8.
This decision did not constitute an unreasonable application of the established Supreme
Court standard. The Michigan Court of Appeals reviewed Petitioner’s claims of prosecutorial
misconduct in light of the record as a whole and, and even though the state court reviewed the
alleged errors under a plain error standard, it looked first to whether the complained conduct was
improper.

If so, the state court next determined whether the improper conduct rendered

Petitioner's trial unfair. The court then found that none of the alleged errors warranted reversal.
Not all fairminded jurists would disagree with the state court’s analysis.

Indeed, the

evidence showed that Rhynes was shot multiple times from different ranges and angles.
Especially given the severity of several of the gunshot wounds, it is difficult to imagine a
scenario where some of those shots were not inflicted when he was lying down.
prosecutor’s comment amounted to a fair inference based on the evidence presented.
allegations fare no better.

The

The other

The prosecutor did not express a personal belief based on secret

knowledge that Christian was testifying truthfully.
19

See United States v. Francis, 170 F. 3d 546,

550 (6th Cir. 1999); Griffin v. Berghuis, 298 F. Supp. 2d 663, 674-675 (E.D. Mich. 2004).

It

was fair for him to argue that the jury should believe his testimony because he gave a consistent
version of events.

Finally, while the prosecutor led Christen on re-direct examination, the same

testimony could have easily been presented by way of open-ended questions. This technically
improper method would not lead every fairminded jurist to find that Petitioner’s trial was thereby
rendered fundamentally unfair.
Considering the extensive state-court analysis of Petitioner's prosecutorial misconduct
claims, Petitioner fails to establish that the state-court determination rejecting his prosecutorial
misconduct claims were contrary to, or an unreasonable application of, established U.S. Supreme
Court law. Accordingly, Petitioner is not entitled to habeas relief based on his prosecutorial
misconduct claims.
Petitioner’s related ineffective assistance of counsel claim fails along with the
prosecutorial claim.

Bradley v. Birkett, 192 F. App’x 468, 475 (6th Cir. 2006) (counsel not

ineffective for failing to object to meritless prosecutorial misconduct claim).

Therefore,

Petitioner’s fourth and fifth claims do merit a grant of habeas relief.
E. Cumulative Error
Petitioner’s sixth claim asserts that the accumulation of all the alleged errors rendered his
trial fundamentally unfair.

The state court’s denial of relief with respect to this claim is neither

contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts.
The Supreme Court “has not held that distinct constitutional claims can be cumulated to grant
habeas relief.”

Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002). Furthermore, the Sixth

Circuit has ruled that such a cumulative error claim is not cognizable on habeas review.

See

Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011) (citing Moore v. Parker, 425 F.3d 250,
256 (6th Cir. 2005)); see also Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012) (ruling
20

that trial counsel cumulative error claim was not cognizable and citing Hoffner v. Bradshaw, 622
F.3d 487, 513 (6th Cir. 2010), and Moore). Petitioner thus fails to state a claim upon which
relief may be granted as to this issue.

Moreover, given that none of his habeas claims has merit,

he cannot establish that he is entitled to relief based upon cumulative error.

Therefore, habeas

relief is not warranted on this claim.
F. Certificate of Appealability
Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue.

See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate

of appealability may issue “only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).

When a court rejects a habeas claim on the

merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable
jurists would find the district court’s assessment of the constitutional claim debatable or wrong.
See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

“A petitioner satisfies this standard by

demonstrating that . . . jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327. In applying that standard, a
district court may not conduct a full merits review, but must limit its examination to a threshold
inquiry into the underlying merit of the petitioner’s claims.

Id. at 336-337.

“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; Castro v. United
States, 310 F.3d 900, 901 (6th Cir. 2002).
Having considered the matter, the Court concludes that Petitioner has failed to make a
substantial showing of the denial of a constitutional right, and concludes that reasonable jurists
would not debate the Court’s conclusion that the petition should be denied. Accordingly, a
certificate of appealability is not warranted in this case.
21

IV.

CONCLUSION

For the reasons stated above, the Court denies the petition for a writ of habeas corpus
with prejudice and declines to issue a certificate of appealability.
SO ORDERED.
Dated: August 10, 2016
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

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 August 10, 2016.
s/Karri Sandusky
Case Manager

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