Smith v. Rivard

Filing 16

OPINION AND ORDER Denying Petition for Writ of Habeas Corpus; Declining to Issue a Certificate of Appealability; Granting Leave to Appeal In Forma Pauperis Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TYRONE SMITH,
Petitioner,
v.

Civil No. 2:14-CV-14656
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

STEVEN RIVARD,
Respondent.
/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS
Tyrone Smith, (“Petitioner”), confined at the Carson City Correctional Facility in
Carson City, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. In his pro se habeas petition, Petitioner challenges his conviction and sentence for
two counts of armed robbery, M.C.L.A. § 750.529; first-degree home invasion, M.C.L.A.
§ 750.110a(2); assault with intent to commit criminal sexual conduct involving sexual
penetration, M.C.L.A. § 750.520g(1); possession of a short-barreled shotgun or rifle,
M.C.L.A. § 750.224b; felon in possession of a firearm, M.C.L.A. § 750.224f; possession
of a firearm during the commission of a felony (felony-firearm), M.C.L.A. § 750.227b;
and assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84. For
the reasons that follow, the petition for a writ of habeas corpus is DENIED.

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I. Background
Petitioner was convicted following a jury trial in the Genesee County Circuit
Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court
of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant’s convictions arise from the assault and robbery of the 63-year-old
victim, Carrie Mance. Mance lived with Alfred Jackson, whom she had a
relationship with for 41 years. Mance went to sleep at approximately 5:00
a.m. on June 3, 2010, and left the patio door cracked open. She testified that
she woke to find defendant in her bedroom, sitting on the floor, going through
her purse. It was later discovered that Mance was missing money and a
cellular telephone. Mance testified that defendant told her to lie down when
he noticed that she was awake. Mance observed a shotgun on top of the
television in her bedroom. Defendant covered Mance’s head with the
comforter and started beating her head with his fists. Mance testified that
defendant continued to beat her, rubbed her buttocks, and penetrated her
rectum with his finger. Mance testified that she had never met or seen
defendant before the assault and robbery occurred.
Eventually, Mance was able to escape and run to the front of the apartment
where Jackson was sleeping on the couch. Defendant followed Mance and
ordered Jackson to give him money. When Jackson did not immediately
comply, defendant went through Jackson’s pockets and took his money.
Defendant pulled Mance back into the bedroom, told her to get on the bed, and
started to beat her again. Mance testified that defendant suddenly stopped
beating her and stated that he was shot. Defendant ran from the bedroom.
Mance followed defendant and observed Jackson and defendant struggling
over the shotgun. Mance saw defendant kick Jackson in the ribs. Defendant
fled the apartment with the shotgun, and Mance called 911.
Police responded to the apartment complex. Defendant was discovered lying
face down in the threshold of the door to an apartment unit in another building
that was in the same apartment complex as Mance’s apartment. Defendant
was with Larry Montgomery, who called defendant his cousin. Mance’s
cellular telephone was recovered from inside the apartment where defendant
was discovered. Montgomery directed the police to a shotgun that was in a
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bush outside of the apartment building. Montgomery was endorsed as a
witness by the prosecution, but did not appear at trial. The prosecution
informed the trial court that it could not locate Montgomery and defense
counsel requested a missing witness jury instruction. A due diligence hearing
was held, and the trial court concluded that the prosecution exercised due
diligence and denied defense counsel’s request for the instruction.
Defendant was transported to a hospital, and arrested later that day. Defendant
was interviewed by police twice, once at the hospital and once while he was
in the county jail. Defendant initially denied touching Mance, but later
admitted to touching her buttocks. Defendant claimed that Mance initiated the
contact, and he denied penetrating her rectum. Defendant admitted to stealing
Mance’s money, but claimed he did so when she was in a different room.
Defendant also admitted stealing a cellular telephone, but denied robbing
Mance and Jackson. Defendant denied bringing the shotgun into the house,
but admitted carrying it out of the house.
People v. Smith, No. 302093, * 1-3 (Mich.Ct.App. Mar. 15, 2012).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 492 Mich. 867, 819
N.W.2d 870 (2012).
Petitioner filed a post-conviction motion for relief from judgment, which was
denied. People v. Smith, No. 10-27247-FC (Genesee County Circuit Court, Oct. 23,
2013). The Michigan appellate courts denied petitioner leave to appeal. People v. Smith,
No. 319499 (Mich.Ct.App. Apr. 7, 2014); lv. den. 497 Mich. 903, 856 N.W.2d 5 (2014).
Petitioner seeks a writ of habeas corpus on the following grounds: (1) The trial
judge failed to obtain a valid waiver of counsel from Petitioner, (2) The prosecutor’s
failure to produce an endorsed res gestae witness, denying Petitioner the right to a fair
trial; (3) The reasonable doubt instruction was defective, and (4) the admission of other
acts evidence denied Petitioner a right to a fair trial.

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II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas
cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim–
(1)
resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court has
on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06
(2000). An “unreasonable application” occurs when “a state court decision unreasonably
applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A
federal habeas court may not “issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 410-11. “[A] state court’s determination
that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists

4

could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In
order to obtain habeas relief in federal court, a state prisoner is required to show that the
state court’s rejection of his or her claim “was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be
denied relief as long as it is within the “realm of possibility” that fairminded jurists could
find the state court decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149,
1152 (2016).
III. Discussion
A. Claim # 1. Denial of a right to counsel at a critical stage of the
proceedings and lack of a knowingly and intelligent waiver.
Petitioner claims that he did not knowingly and intelligently waive his right to
counsel before representing himself during portions of his trial. Petitioner claims that the
judge failed to comply with M.C.R. 6.005(D)’s requirements for obtaining a valid waiver
of counsel. Petitioner argues that his waiver was invalid because he was not sufficiently
warned of the dangers of self-representation or of the penalties for the charged offenses.
The Michigan Court of Appeals addressed the facts surrounding Petitioner’s
claim:
At the beginning of trial before the jury was selected, defendant asked the
trial court if he could cross-examine the witnesses himself. The trial court
stated that the decision should be discussed between defendant and defense
counsel. The trial court cautioned defendant regarding self-representation by
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telling defendant “just be careful, because [defense counsel] is a professional
at this; and it’s like anything else, you know, if you’ve never changed a tire,
don’t start trying to change one now, you know what I’m saying?” The trial
court also informed defendant that ultimately “the answer would have to be
yes” if defendant was sure that he wanted to cross-examine witnesses himself.
Defense counsel gave an opening statement, and then informed the trial court
that defendant had indicated he wanted to cross-examine the first witness,
Mance, himself. Defense counsel stated that he thought it was a bad idea.
The trial court asked defendant whether he wanted to cross-examine Mance
and defendant answered in the affirmative. The trial court asked defendant
if he discussed the decision with his attorney, and informed defendant that he
would be held to the same standard as a lawyer with regard to
cross-examination. After defendant affirmed that he was sure he wanted to
cross-examine Mance, the trial court stated that it would allow it. Defendant
proceeded to conduct cross-examination of Mance, and managed to impeach
her with inconsistent testimony from the preliminary examination and the
police report.
Defense counsel continued representing defendant when the prosecution
called its next witness; however, defendant conducted the cross-examination
of a police officer witness on the third day of the trial. After the prosecution
finished its direct examination of the officer, the trial court addressed
defendant and asked if he was going to be conducting the cross-examination,
and defendant answered “yes.” The trial court then stated: “We’ve done it
once before, but, sir, you understand you have the right to an attorney. You
have the right to court appointed counsel if you cannot afford an attorney; do
you understand that?” Defendant responded he did understand and that he
had elected to conduct the cross-examination. The trial court asked defendant
if he had discussed his decision with defense counsel and defendant indicated
that he had. The trial court again asked defendant if he understood what his
rights were, and defendant answered affirmatively. The trial court reminded
defendant that he could consult with defense counsel, and asked defendant if
he had any questions for defense counsel. Defendant indicated that he did not
have any questions. The trial court asked defense counsel if he felt he had
enough time to talk to defendant about his right to counsel, and defense
counsel replied that he “thinks” defendant understands. Defendant was then
permitted to cross-examine the officer. Defense counsel did not say anything
on the record during the time that defendant cross-examined either the officer
or Mance.

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Defendant also gave his own closing argument. Before the trial court allowed
him to proceed with closing, the trial court reminded defendant that he had a
right to counsel, and asked defendant if he understood his right to counsel.
Defendant answered affirmatively. The trial court reminded defendant that
defense counsel was available for guidance, and asked defendant if he had
enough time to talk to defense counsel. Defendant answered affirmatively
and again indicated he intended to conduct the closing argument. Defendant
was then permitted to make his own closing argument.
People v. Smith, No. 302093, *4-5.
The Michigan Court of Appeals ruled that the waiver of counsel was invalid
because Petitioner was inadequately informed of the dangers of self-representation, nor
was he warned of the maximum possible prison sentences or any mandatory minimum
sentences, as required by M.C.R. 6005(D). Id. at 5. The Michigan Court of Appeals then
determined that the deprivation of counsel was a nonstructural error subject to a harmless
error analysis because Petitioner was not deprived of counsel throughout the entire
proceeding, but only through portions of the trial. Id. at 5-6. The Michigan Court of
Appeals concluded that the deprivation of counsel was harmless as follows:
In this case, we conclude that the error was harmless beyond a reasonable
doubt. Defendant’s representation of himself was apparently beneficial to his
defense considering the fact that the jury was unable to reach a verdict on the
criminal sexual conduct charge and the charge was accordingly dismissed
after the trial. Further, the evidence supporting defendant’s convictions was
overwhelming. The victim specifically identified defendant as the perpetrator
and testified to his criminal conduct, defendant was located in the apartment
complex where the victim lived, and defendant admitted to being in the
victim’s apartment that night. Accordingly, in light of the fact that
defendant’s self-representation resulted in the dismissal of one of the most
serious charges against him and the overwhelming evidence of his guilt, we
conclude that the error was harmless beyond a reasonable doubt.
Accordingly, reversal is not warranted.

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Id. at 6.
Petitioner’s claim that the trial court violated the provisions of M.C.R. 6.005(D)
before accepting his waiver of counsel does not entitle him to habeas relief. It is
well-established that “federal habeas corpus relief does not lie for errors of state law.”
Estelle v. McGuire, 502 U.S. 62, 67 (1991)(quoting Lewis v. Jeffers, 497 U.S. 764, 780
(1990)). Petitioner’s claim that the trial court violated the provisions of M.C.R.
6.005(D) is non-cognizable on habeas review. See Cage v. Rapelje, No. 08–13104, 2011
WL 3518163, p. 7 (E.D. Mich. Aug. 12, 2011).
Petitioner contends that his waiver of the right to counsel was invalid because he
was not warned of the dangers of self-representation nor was he advised of the penalties
of the crimes that he was charged with prior to representing himself.
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)).
Petitioner did not waive his right to counsel. Petitioner’s trial counsel made the
opening argument and questioned several witnesses. Petitioner cross-examined two
witnesses and made the closing argument. Petitioner’s case involves a form of “hybrid
representation,” in which Petitioner continued to be represented by counsel but
conducted portions of his defense. A judge has the discretion to allow hybrid
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representation. McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). A criminal defendant
who proceeds with hybrid representation, as Petitioner did in this case, does not clearly
and unequivocally invoke his or her right to counsel and thus the Faretta warnings are
not required. See United States v. Cromer, 389 F.3d 662, 681–83 (6th Cir.2004). In the
absence of any Supreme Court precedent which requires that a defendant must be
warned of the risks of self-representation before proceeding with hybrid representation,
the trial judge’s failure to adequately warn Petitioner’s of the dangers of selfrepresentation does not entitle him to relief. See Childress v. Booker, No. 14-1676, 2015
WL 3814788, *1-2 (6th Cir. June 19, 2015).
Assuming that Petitioner was required to waive his right to counsel in order to
represent himself during portions of the trial, the waiver was valid. 1
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.” Iowa v. Tovar, 541 U.S. 77, 88 (2004). 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

1

Although the Michigan Court of Appeals found the waiver to be invalid, this Court does not need to defer
to that court’s pro-petitioner resolution because the AEDPA’s standard of review is a “precondition to the grant of
habeas relief [ ], not an entitlement to it.” See Daniels v. Lafler, 501 F.3d 735, 740 (6th Cir. 2007).

9

competently and intelligently waive” his or her right to the assistance of counsel. Id. at
92.
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. The failure of a district court in a federal criminal case to
give a particular prophylactic warning and conduct a particular inquiry in determining
whether a defendant should be permitted to waive his or her right to counsel does not in
and of itself require reversal of a conviction. See U.S. v. McDowell, 814 F.2d 245,
248-49 (6th Cir. 1987). There is no clearly established federal law, as determined by the
Supreme Court, which requires any 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)(a formal
inquiry into a defendant’s desire to proceed pro se “is not a sine qua non of
constitutional waiver”). The failure of a district court in a federal criminal case to give a
particular prophylactic warning and to conduct a specific inquiry before accepting a
waiver of counsel does not in and of itself require reversal of a conviction. McDowell,
814 F.2d at 248-49.
Petitioner contends that he was not adequately warned of the dangers of self10

representation because he was not informed by the trial judge of the special skills and
education needed for effective legal representation. At the beginning of trial, when
Petitioner indicated that he wanted to cross-examine some of the witnesses, the trial
judge warned Petitioner to “just be careful, because [defense counsel] is a professional at
this; and it’s like anything else, you know, if you’ve never changed a tire, don’t start
trying to change one now, you know what I’m saying?” When Petitioner later indicated
that he wanted to cross-examine Ms. Mance himself, his counsel on the record opined
that this was “a bad idea.” Petitioner was warned by the trial judge that he would be held
to the same standards as an attorney when he cross-examined the victim. Petitioner was
given adequate warning by the judge and his counsel about the folly of representing
himself at trial. Although the trial judge could have more thoroughly warned Petitioner
about the dangers of self-representation, in the absence of any clearly established
Supreme Court law concerning any specific colloquy about the dangers of selfrepresentation, particularly in a case of hybrid representation, Petitioner would not be
entitled to habeas relief.
Petitioner further claims that his waiver was invalid because he was not informed
of the penalties for his various crimes by the judge prior to representing himself.
In Von Moltke v. Gillies, 332 U.S. 708, 724 (1948), a plurality of four Supreme
Court justices suggested that a trial judge before accepting a waiver of the right to
counsel from a defendant should make a “penetrating and comprehensive examination of
all the circumstances” surrounding the waiver of counsel, investigating the defendant’s
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apprehension of the nature of the charges, the statutory offenses, the range of allowable
punishments, possible defenses, and all other facts “essential to a broad understanding of
the whole matter.” Although the Sixth Circuit has approvingly cited Von Moltke’ s
guidelines, see Fowler v. Collins, 253 F.3d 244, 249 (6th Cir. 2001), no Supreme Court
majority in any case has adopted those guidelines as constitutional requirements. See
Beatty v. Caruso, 64 F.App’x. 945, 950, n. 5 (6th Cir. 2003). As mentioned above, the
failure of a district court in a federal criminal case to give a particular prophylactic
warning and to conduct a specific inquiry before accepting a waiver of counsel does not
in and of itself require reversal of a conviction. McDowell, 814 F.2d at 248-49. In
addition, the Supreme Court has yet to define the phrase “range of allowable
punishments.” Akins v. Easterling, 648 F.3d 380, 399 (6th Cir. 2011). Because there is
no clearly established law that requires a court to specifically advise a habeas petitioner
of the penalties for the charged crimes before obtaining a waiver of counsel, the trial
judge’s alleged failure to warn Petitioner of the penalties he faced if convicted before
allowing him to represent himself during portions of the trial would not entitle him to
relief.
Petitioner is also not entitled to relief because he has made no showing that he
was unaware of the possible penalties for the charged crimes before he waived his right
to counsel during portions of his jury trial. Akins, 648 F.3d at 399; see Tovar, 541 U.S. at
92 (“[W]e note that [the defendant] has never claimed that he did not fully understand
the charge or the range of punishment for the crime prior to pleading guilty.”). At the
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beginning of trial, a plea offer was discussed pertaining to the maximum penalties for the
various charges, other than the first-degree criminal sexual conduct charge. (Tr.
10/26/10, pp. 4-10). Although Petitioner was not advised that he faced up to life
imprisonment if convicted of the first-degree criminal sexual conduct charge, Petitioner
failed to show that he was unaware of the penalties for this charge. See U.S. v. Kerr, 50
F.App’x. 230, 236-37 (6th Cir. 2002). The trial judge specifically advised Petitioner that
he could possibly faced a minimum sentence of 75 years if convicted of armed robbery
and the underlying charges and sentenced as an habitual offender, fourth offense, on the
armed robbery charge. (Tr. 10/26/2010, p. 7). A specific warning on the record of the
dangers and disadvantages of self-representation is not an absolute necessity in every
case if the record shows that the defendant had the requisite knowledge from other
sources. See United States v. McDowell, 814 F.2d at 248. The trial judge’s comments,
prior to voir dire, clearly advised Petitioner of the penalties that he faced if convicted.
A habeas petitioner’s mere speculation that he or she might not have waived his
or her right to counsel is insufficient to meet the burden of showing that his or her waiver
of counsel was not knowing and voluntary. Akins, 648 F.3d at 399. The record clearly
reflect that Petitioner intended to waive his right to counsel during certain portions of the
proceedings. Petitioner is not entitled to relief on his waiver of counsel claim.
B. Claim # 2. The failure to produce an endorsed res gestae witness.
Petitioner alleges that the prosecutor failed to exercise due diligence in locating
and subpoenaing an endorsed res gestae witness, Larry Montgomery, for trial and should
13

not have been excused from producing him at trial. Petitioner further contends that the
trial court judge erred in failing to give a requested adverse inference instruction to the
jury.
Federal law does not require the production of res gestae witnesses. Johnson v.
Hofbauer, 159 F. Supp. 2d 582, 601 (E.D. Mich. 2001). Michigan law’s requirement
that the prosecutors produce res gestae witnesses is simply a matter of state law whose
enforcement is beyond the scope of federal habeas review. See Collier v. Lafler, 419
F.App’x. 555, 559 (6th Cir. 2011). “[U]nder federal law, there is no obligation on the
part of the prosecutor to call any particular witness unless the government has reason to
believe that the testimony would exculpate the petitioner.” Atkins v. Foltz, 856 F.2d 192
(Table), 1988 WL 87710, *2 (6th Cir. Aug. 24, 1988)(citing to United States v. Bryant,
461 F.2d 912, 916 (6th Cir. 1972)). Thus, whether a prosecutor exercised due diligence
in attempting to locate a res gestae witness is outside the scope of federal habeas review.
Collier, 419 F.App’x. at 559.
Petitioner has offered no evidence, other than speculation, that Mr. Montgomery
would have provided exculpatory evidence. Although Petitioner claims that
Montgomery might have testified that Petitioner socialized with the victim on previous
occasions, the victim testified that she did not know Petitioner and had never
encountered him prior to when she awoke to Petitioner sitting on the floor of her
bedroom, going through her purse.
The Michigan Court of Appeals rejected Petitioner’s res gestae and related
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instructional error claims as follows:
On the fourth day of trial the prosecution informed the trial court that it was
unable to locate Montgomery, who was an endorsed witness. Defense
counsel requested a missing witness jury instruction. The prosecution
requested that the trial court conduct a due diligence hearing. The trial court
agreed, and the prosecution presented the testimony of Detective Randy
Kimes. Kimes testified that before trial, Montgomery was subpoenaed, but
failed to appear. After trial had commenced, he was assigned to locate
Montgomery and personally serve him. He began by locating through a
website previous addresses for Montgomery. Kimes then went to the most
recent addresses, but Montgomery was not present at any of them. Kimes did
speak with neighbors and showed a picture of Montgomery to them. None of
the persons Kimes questioned knew Montgomery or recognized Montgomery
from the photograph. Kimes also attempted to locate Montgomery through
a driver’s license, but he did not have a valid driver’s license. In addition,
Kimes called a cellular telephone number that he believed was
Montgomery’s. He testified that the person that answered identified himself
as someone else. Next, Kimes reported that he searched the building at the
apartment complex where defendant was found with Montgomery shortly
after the incident, but again Montgomery was not to be found there. The
prosecutor also informed the trial court that checks of local jails, the
Department of Corrections, the district court records and a search for
Montgomery using the Law Enforcement Information Network all failed to
provide any leads regarding his whereabouts.
After hearing these proofs, the trial court concluded that the prosecution
exercised due diligence because the detective obtained Montgomery’s mug
shot and went to previous locations where he lived in an effort to locate him.
Further, the trial court noted that defendant would probably have more
information regarding Montgomery’s location than law enforcement.
Accordingly, the trial court denied defendant’s request for the missing witness
instruction.
Having reviewed the evidence of due diligence presented below, we conclude
that the trial court did not abuse its discretion in finding that the prosecution
exercised due diligence. While we are troubled by the fact that no meaningful
attempts to personally serve Montgomery were commenced until after trial
had begun, we believe the record establishes that once efforts to locate
Montgomery began, the attempts to find him were comprehensive.
Consequently, the trial court’s determination that the prosecution exercised
15

due diligence was not outside the principled range of outcomes.
Further, we note that even assuming the failure to give the missing witness
jury instruction was an abuse of discretion, defendant has failed to explain
how the trial court’s refusal to give the missing witness instruction affected
the outcome of the trial. “[A] preserved, nonconstitutional error is not a
ground for reversal unless ‘after an examination of the entire cause, it shall
affirmatively appear’ that it is more probable than not that the error was
outcome determinative.” Montgomery’s testimony may have been harmful
to defendant in light of the fact that he led police to the shotgun. Moreover,
even if the jury were to have presumed that Montgomery’s testimony would
have been adverse to the prosecution, it is not more probable than not that it
would have affected the outcome of the trial given the significant evidence
establishing defendant’s guilt.
People v. Smith, No. 302093, *8 (internal citations and footnote omitted).
Petitioner failed to show that Larry Montgomery would have provided
exculpatory evidence; the prosecutor’s failure to call him to testify at Petitioner’s trial
would not entitle Petitioner to habeas relief. Furthermore, the Michigan Court of
Appeals noted that “Montgomery’s testimony may have been harmful to defendant in
light of the fact that he led police to the shotgun.” Id. at 8. Petitioner is not entitled to
relief on his endorsed witness/res gestae claim.
The Court rejects Petitioner’s related claim that the jury should have been given
the missing witness instruction.
A habeas petitioner is entitled to relief only if the defective jury instruction “so
infected the entire trial that the resulting conviction violates due process.” Cupp v.
Naughten, 414 U.S. 141, 147 (1973). A federal court may not grant habeas relief on the
ground that a jury instruction was incorrect under state law, Estelle, 502 U.S. at 71-72,

16

and “[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a
misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
A criminal defendant does not have a clearly established federal right to a missing
witness instruction. Petitioner therefore cannot obtain federal habeas relief based on the
state court’s failure to give an instruction to his jury regarding the prosecution’s failure
to produce witnesses. See Stadler v. Curtin, 682 F. Supp. 2d 807, 821-22 (E.D. Mich.
2010). Petitioner is not entitled to habeas relief on his second claim.
C. Claim # 3. The reasonable doubt instruction.
Petitioner alleges that the trial court’s reasonable doubt instruction was defective,
because it deviated from the standard reasonable doubt instruction, CJI2d 3.2(3), by
informing the jurors that they had to articulate a doubt. The instruction was not improper
where the instructions, as a whole pertaining to reasonable doubt, were adequate.
The Michigan Court of Appeals found that during voir dire the trial court stated
the following:
So a reasonable doubt is just that, a doubt based on reason and
common sense, okay. And where people get into trouble I
think with the reasonable doubt is that they’re not using their
common sense; and, if you say you have a doubt, then you
should be able to articulate from the evidence the basis for that
doubt . . . . [F]irst of all, you have a doubt of his guilt; and then,
if you have that doubt, is that doubt reasonable, is it based on
reason and common sense. And, if it is, then you articulate it.
And that’s what I consider a reasonable doubt.
After a jury panel was sworn the trial court formally instructed the jury on the
meaning of reasonable doubt. The trial court stated:

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A reasonable doubt is a fair, honest doubt growing out of the
evidence or lack of evidence. It is not merely an imaginary or
possible doubt, but a doubt based on reason and common sense.
A reasonable doubt is just that, a doubt that is reasonable after
a careful and considered evaluation of all the evidence and
circumstances in the case.
The trial court gave the jury an identical instruction on the meaning of
reasonable doubt before sending the jury to deliberate.
People v. Smith, No. 302093, *8.
Jury instructions must be read in their entirety to ensure that the instructions, read
as a whole, correctly convey the reasonable doubt concept to the jury. Ferrazza v.
Tessmer, 36 F. Supp. 2d 965, 973 (E.D. Mich. 1999). The proper inquiry for a court
reviewing a reasonable doubt instruction is not whether the jury instruction could have
been applied unconstitutionally, but whether there is a reasonable likelihood that the jury
did apply the jury instruction in an unconstitutional manner. Victor v. Nebraska, 511
U.S. 1, 6 (1994). The Due Process Clause of the Fourteenth Amendment neither
prohibits a trial court from defining reasonable doubt nor does it require it to define
reasonable doubt as a matter of course, so long as the trial court instructs the jury on the
necessity that the defendant’s guilt must be proven beyond a reasonable doubt. Victor,
511 U.S. at 5; Ferrazza, 36 F. Supp. 2d at 973.
When viewed in their entirety, the trial court’s instructions adequately informed
the jurors about the concept of reasonable doubt. Although the trial court’s statement
made during voir dire of “then you articulate it,” may seem problematic, when viewed
within the context that it was made, it appears that the trial court judge was merely
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explaining to the jurors that any doubt must be “fair, honest and reasonable,” and not
based on a fictitious or imaginary doubt. See Fluellen v. Walker, 41 F.App’x 497, 500
(2d Cir. 2002)(reasonable doubt instruction given in state murder trial, providing that
juror “would have to articulate” reason for doubts held by juror, did not violate due
process clause, even if such instruction was not encouraged and court also used allegedly
improper phrase “moral certainty” in explaining circumstantial evidence, in view of
instructions as a whole, which left no doubt that defendant had to be presumed innocent).
When viewed in the context of the instructions as a whole, the trial court’s
instruction did not lower the prosecution’s burden of proof because the instruction
merely conveyed to the jury that a reasonable doubt must be based on reason, as opposed
to fancy, whim, or conjecture. See e.g. Paluskas v. Bock, 410 F. Supp. 2d 602, 612 (E.D.
Mich. 2006). The trial judge twice instructed the jurors on the concept of reasonable
doubt and emphasized that the prosecutor bore the burden of proof, that Petitioner is
presumed innocent, and “This presumption continues throughout the trial, and entitles
the defendant to a verdict of not guilty, unless you are satisfied beyond a reasonable
doubt that he is guilty.” (Tr. 11/9/2010, pp. 81-82).
The instructions as a whole adequately informed the jurors of the reasonable
doubt concept. Petitioner is not entitled to habeas relief on his third claim. Paluskas, 410
F. Supp. 2d at 614; Ferrazza, 36 F. Supp. 2d at 976.
D. Claim # 4. Other acts evidence.
Petitioner alleges that he was denied a fair trial when the judge allowed into
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evidence other acts evidence to show a common scheme, plan or system. Petitioner
claims that the prior conviction to an offense that occurred 18 years earlier was too old to
be probative.
Petitioner’s claim that the state court violated M.R.E. 404(b) or any other
provision of state law by admitting evidence of his prior sexual acts is non-cognizable on
habeas review. See Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at
72 (Supreme Court’s habeas powers did not permit Court to reverse state court
conviction based on their belief that the state trial judge erred in ruling that prior injury
evidence was admissible as bad acts evidence under California law); Dowling v. U.S.,
493 U.S. 342, 352-53 (1990)(admission at defendant’s bank robbery trial of “similar
acts” evidence that he had subsequently been involved in a house burglary for which he
had been acquitted did not violate due process). The admission of this “prior bad acts”
or “other acts” evidence against Petitioner at his state trial does not entitle him to habeas
relief, because there is no clearly established Supreme Court law which holds that a state
violates a habeas petitioner’s due process rights by admitting propensity evidence in the
form of “prior bad acts” evidence. See Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.
2003); see also Adams v. Smith, 280 F. Supp. 2d 704, 716 (E.D. Mich. 2003). Given the
lack of holdings by the Supreme Court on the issue of whether a state court violates a
habeas petitioner’s due process rights by the admission of evidence to establish a habeas
petitioner’s propensity to commit criminal acts, the Michigan Court of Appeals’ rejection
of Petitioner’s claim was not an unreasonable application of clearly established federal
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law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S.
70, 77 (2006). Petitioner is not entitled to relief on his fourth claim.
IV. Conclusion
The Court denies the petition for a writ of habeas corpus. The Court also denies a
certificate of appealability to Petitioner. To obtain a certificate of appealability, a
prisoner must make a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that
reasonable jurists could debate whether, or agree that, the petition should have been
resolved in a different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
When a district court rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims to be debatable or wrong. Id. at 484. “The
district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. §
2254; see also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
For the reasons stated in this opinion, the Court denies Petitioner a certificate of
appealability; he failed to make a substantial showing of the denial of a federal
constitutional right. See Siebert v. Jackson, 205 F. Supp. 2d 727, 735 (E.D. Mich. 2002).
Although this Court denies a certificate of appealability, the standard for granting
an application for leave to proceed in forma pauperis (IFP) is lower than the standard for
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certificates of appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D.
Mich. 2002). While a certificate of appealability may only be granted if petitioner makes
a substantial showing of the denial of a constitutional right, a court may grant IFP status
if it finds that an appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. §
1915(a)(3); Fed. R.App.24 (a). “Good faith” requires a showing that the issues raised
are not frivolous, it does not require a showing of probable success on the merits. Foster,
208 F. Supp. 2d at 765. Although jurists of reason would not debate this Court’s
resolution of Petitioner’s claims, the issues are not frivolous; therefore, an appeal could
be taken in good faith and Petitioner may proceed in forma pauperis on appeal. Id.
V. ORDER
The Court DENIES the Petition for a Writ of Habeas Corpus and a Certificate of
Appealability.
Petitioner is GRANTED leave to appeal in forma pauperis.

S/Victoria A. Roberts
HON. VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: February 28, 2017

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