Anderson v. Perry

Filing 14

OPINION AND ORDER Denying the Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KEVIN ANDERSON,
Petitioner,
v.

Case No. 15-cv-10239

MITCH PERRY,

HON. MARK A. GOLDSMITH

Respondent.
____________________________/
OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Kevin Anderson has filed a pro se petition for the writ of habeas corpus under
28 U.S.C. § 2254 (Dkt. 1) challenging his state convictions for felon in possession of a firearm
(felon in possession), Mich. Comp. Laws § 750.224f, carrying a concealed weapon without a
permit (CCW), Mich. Comp. Laws § 750.227, and possession of a firearm during the commission
of a felony (felony firearm), second offense, Mich. Comp. Laws § 750.227b. Respondent Mitch
Perry urges the Court to deny the petition on the basis that the state courts’ rejection of Petitioner’s
claims did not result in decisions that were contrary to federal law, unreasonable applications of
federal law, or unreasonable determinations of the facts. See Answer at 31 (Dkt. 10). For the
reasons stated below, the Court denies the petition for writ of habeas corpus, declines to issue a
certificate of appealability, and grants leave to proceed in forma pauperis on appeal.
I. BACKGROUND

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The charges against Petitioner arose from an incident that occurred in Detroit on May 19,
2010. Petitioner was tried before a jury in Wayne County Circuit Court where the evidence
established that,
[i]n the early morning hours of May 19, 2010, defendant admittedly chose to drive
under the influence of alcohol. In full view of two Detroit police officers, he rearended another vehicle. The officers instructed defendant to remain parked while
they talked to the other driver. Instead, defendant drove away. Another patrol
vehicle arrived on the scene and stopped defendant’s vehicle less than a mile away.
The officers noted that defendant appeared intoxicated so they removed him from
the vehicle. At that time, one officer saw a revolver sitting on the passenger seat.
Another officer conducted a pat-down search and found an empty gun holster on
defendant’s person. Defendant claimed that the car belonged to his mother and was
used by several relatives. He inexplicably denied that he was wearing a gun holster
and claimed ignorance that a gun was in the car.
People v. Anderson, No. 301012, 2012 WL 639331, at *1 (Mich. Ct. App. Feb. 28, 2012).
On September 3, 2010, the jury found Petitioner guilty, as charged, of felon in possession,
CCW, and felony firearm. The trial court sentenced Petitioner on September 15, 2010, to
concurrent terms of two to seven years in prison for the felon-in-possession and CCW convictions
and to a consecutive term of five years in prison for the felony-firearm conviction.
On appeal from his convictions, Petitioner argued through counsel that he was denied a fair
trial by the admission of prejudicial evidence that he had committed murder in the past and that he
refused a sobriety test at the time of his arrest. Appellate counsel also argued that trial counsel
was ineffective for failing to object to the evidentiary errors.
In a pro se supplemental brief, Petitioner raised arguments about his trial and appellate
attorneys. Petitioner alleged that his trial attorney was ineffective for failing to challenge the
warrantless search and seizure and the denial of a prompt arraignment. The Michigan Court of
Appeals rejected all of Petitioner’s claims and affirmed his convictions and sentences. See
Anderson, 2012 WL 639331.
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In an application for leave to appeal in the Michigan Supreme Court, Petitioner raised a
search-and-seizure claim and two issues about his statement to the police that he had previously
killed someone. On September 4, 2012, the Michigan Supreme Court denied leave to appeal
because it was not persuaded to review the issues. See People v. Anderson, 819 N.W.2d 868
(Mich. 2012) (table).
On October 15, 2012, Petitioner filed his first habeas corpus petition. See Anderson v.
Perry, No. 12-cv-14550 (E.D. Mich. Oct. 15, 2012) (Dkt. 1). Respondent moved for summary
judgment and dismissal of the petition on the basis that Petitioner had not exhausted state remedies
for any of his claims. Id. (Dkt. 10). Petitioner then moved to hold his petition in abeyance while
he exhausted state remedies for his claims. Id. (Dkt. 12). The Court granted Respondent’s motion
for summary judgment, denied Petitioner’s motion to hold his petition in abeyance, and dismissed
the petition without prejudice. Id. (Dkt. 13).
Petitioner subsequently returned to state court and filed a motion for relief from judgment
in which he raised the ineffective-assistance issues now before this Court. The trial court denied
Petitioner’s motion on the basis that the issues were raised on direct appeal and could not be relitigated in the trial court pursuant to Michigan Court Rule 6.508(D)(2). People v. Anderson, No.
10-005910-01-FH (Wayne Cty. Cir. Ct. Feb. 14, 2014). Petitioner appealed the trial court’s
decision, but the Michigan Court of Appeals denied leave to appeal because Petitioner “failed to
meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Anderson,
No. 321365 (Mich. Ct. App. June 10, 2014).1 On November 25, 2014, the Michigan Supreme

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Judge Kurtis T. Wilder, then sitting on the Court of Appeals, voted to deny leave to appeal on
the basis that Petitioner had alleged grounds for relief which he could have been raised
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Court likewise denied leave to appeal for failure to establish entitlement to relief under Rule
6.508(D). People v. Anderson, 856 N.W.2d 20 (Mich. 2014) (table).
On January 21, 2015, Petitioner returned to this Court and filed the instant habeas corpus
petition. He contends that his trial attorney was ineffective because the attorney: (i) postponed the
arraignment to suppress the fact that the arresting officers severely beat him; (ii) failed to file a
motion in limine to suppress admission of the weapon; (iii) failed to procure the videotape from
the police officers’ cruisers; (iv) failed to interview and call the driver of the other vehicle involved
in the collision; (v) advised Petitioner not to tell the truth; and (vi) failed to procure evidence that
would have proved there was a delay in the arraignment. Pet. at 26 (cm/ecf page). As noted above,
the trial court rejected these claims on the basis that the claims were raised on direct appeal, and
the State’s appellate courts denied leave to appeal the issues under Michigan Court Rule 6.508(D).
II. STANDARD OF REVIEW
Petitioner raised two of his claims about trial counsel (I.B. and I.F.) in the Michigan Court
of Appeals on direct review. As to those claims, 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:
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

previously and because he failed to establish both “good cause” for his omissions and actual
prejudice from the alleged irregularities.
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(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.
28 U.S.C. § 2254(d).
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) (internal quotation marks omitted). A “state
court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded
jurists could disagree on the correctness of the state court’s decision.” Harrington v. Richter, 562
U.S. 86, 101 (2011) (internal quotation marks omitted). The Supreme Court has emphasized “that
even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.”
Id. at 102. 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
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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, 562
U.S. at 102. 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. (internal quotation marks omitted). Thus, 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 courts, 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,
562 U.S. at 103.
The claims that Petitioner raised for the first time in his motion for relief from judgment
(I.A, I.C., I.D., and I.E.) were not adjudicated on the merits. As to those claims, “‘AEDPA’s
deferential standard of review does not apply,’” Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d
450, 460 (6th Cir. 2015) (quoting Williams v. Anderson, 460 F.3d 789, 796 (6th Cir. 2006)), cert.
denied sub nom. Cook v. Barton, 136 S. Ct. 1449 (2016), and review is de novo, Maples v. Stegall,
340 F.3d 433, 436 (6th Cir. 2003).
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III. DISCUSSION
All of Petitioner’s claims allege ineffective assistance of trial counsel. The clearly
established federal law for such claims is Strickland v. Washington, 466 U.S. 668 (1984). Cullen
v. Pinholster, 563 U.S. 170, 189 (2011). Under Strickland, a defendant must show “that counsel’s
performance was deficient” and “that the deficient performance prejudiced the defense.”
Strickland, 466 U.S. at 687. “Unless a defendant makes both showings, it cannot be said that the
conviction . . . resulted from a breakdown in the adversary process that renders the result
unreliable.” Id.
The “deficient performance” prong of the Strickland test “requires showing that counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689.
To demonstrate that counsel’s performance prejudiced the defense, a defendant must
demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. “This does not require a showing that counsel’s
actions ‘more likely than not altered the outcome,’ ” but “[t]he likelihood of a different result must
be substantial, not just conceivable.” Harrington, 562 U.S. at 111-12 (quoting Strickland, 466 U.S.
at 693). This Court finds for the following reasons that Petitioner was not deprived of effective
assistance of counsel and that the state courts’ rejection of Petitioner’s claims about trial counsel
was not contrary to, or an unreasonable application of, Strickland.
A. Postponement of the Arraignment

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Petitioner alleges that the officers who arrested him violently removed him from his vehicle
and beat him. Petitioner claims that his attorney postponed the arraignment so that he could obtain
pictures of Petitioner’s injuries and help him prove his version of the facts, but then failed to take
any pictures. According to Petitioner, postponement of the court proceedings ensured that his
injuries were not visible in court, and the refusal to document his injuries was deficient
performance, which deprived him of his right to present the defense of his choosing. Pet. at 30-31
(cm/ecf pages).
Petitioner has not established a factual predicate for his allegations that the arresting officers
beat him and that his attorney postponed the state-court proceedings to hide evidence of the physical
abuse. In the absence of a factual predicate for his ineffective-assistance claim, the claim must be
rejected. Vinson v. McLemore, 226 F. App’x 582, 585 (6th Cir. 2007). His conclusory allegations
about trial counsel fall short of establishing ineffective assistance of counsel. See Workman v. Bell,
178 F.3d 759, 771 (6th Cir. 1998) (rejecting a habeas petitioner’s claim about appellate counsel
because the petitioner provided no support for his claim and because his allegation was merely
conclusory); see also Cross v. Stovall, 238 F. App’x 32, 39–40 (6th Cir. 2007) (concluding that the
petitioner’s “ineffective assistance claim [was] doomed by the fact she [made] nothing more than
conclusory assertions about actual prejudice” and that “[h]er conclusory assertions [fell] far short
of showing actual prejudice”).
To the extent that Petitioner is asserting an independent claim of excessive force by the
police, his claim would be more appropriate in a civil rights action. He is entitled to habeas relief
only if he can show that he “is in custody in violation of the Constitution or law or treaties of the
United States.” 28 U.S.C. §§ 2241(c)(3) and 2254(a). Although “[t]he Fourth Amendment prohibits
the use of excessive force by arresting and investigating officers,” Smoak v. Hall, 460 F.3d 768,
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783 (6th Cir. 2006), Petitioner’s contention that police officers severely beat him during his arrest
does not implicate the validity of his conviction or the duration of his state-court sentence. “As
such, [his] allegations are a proper subject for a § 1983 action, but fall outside of the cognizable
core of habeas corpus relief.” Hodges v. Bell, 170 F. App’x 389, 393 (6th Cir. 2006). Habeas relief
is not warranted on Petitioner’s claim.
B. Failure to Move for Suppression of the Weapon
Petitioner alleges next that trial counsel was ineffective for failing to move to suppress the
weapon found in his vehicle. He contends that he was not intoxicated at the time of his arrest and
that there was no probable cause to search his vehicle. The Michigan Court of Appeals stated on
review of this claim that Petitioner’s warrantless arrest was legal and that trial counsel was not
ineffective for failing to raise the issue because an objection would have been meritless.
Petitioner admitted at trial that he was drunk when he rear-ended a car on the night of his
arrest. (9/3/2010 Trial Tr. at 10.) Thus, there is no merit to Petitioner’s claim that he was not
intoxicated at his arrest. And to prove that his attorney was ineffective for failing to challenge the
search of his vehicle, he must prove (1) that his Fourth Amendment claim is meritorious and (2)
there is a reasonable probability that the verdict would have been different absent the excludable
evidence. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
The Fourth Amendment ordinarily requires police officers to obtain a warrant before
conducting a search. Maryland v. Dyson, 527 U.S. 465, 466 (1999). But there are two exceptions
to this requirement:
[S]earches of vehicles, [Dyson, 527 U.S. at 466], (citing Carroll v. United States,
267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925)), and for objects in plain view,
Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334
(1993). The automobile exception allows officers to search a vehicle without a
warrant if they have “probable cause to believe that the vehicle contains evidence of
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a crime.” United States v. Smith, 510 F.3d 641, 647 (6th Cir. 2007) (citation
omitted). . . .
United States v. Galaviz, 645 F.3d 347, 355 (6th Cir. 2011). Probable cause exists when officers
view a gun in a car because this constitutes a violation of Mich. Comp. Laws § 750.227. Id. at 357.
Under the plain-view doctrine, “if police are lawfully in a position from which they
view an object, if its incriminating character is immediately apparent, and if the
officers have a lawful right of access to the object, they may seize it without a
warrant.” United States v. Herndon, 501 F.3d 683, 692 (6th Cir. 2007) (quoting
Dickerson, 508 U.S. at 375, 113 S.Ct. 2130) (quotation marks omitted).
Id. at 355. In simple terms, “objects falling in the plain view of an officer who has a right to be in
the position to have that view are subject to seizure and may be introduced in evidence.” Harris v.
United States, 390 U.S. 234, 236 (1968).
Here, police officers lawfully stopped Petitioner because he had left the scene of an accident.
See Mich. Comp. Laws § 257.617 (drivers involved in accidents). During the lawful stop and
questioning of Petitioner, an officer standing outside Petitioner’s car noticed a gun on the
passenger’s seat of the car. (9/2/10 Trial Tr. at 141-43, 146.) The gun provided probable cause to
search Petitioner’s car, Galaviz, 645 F.3d at 357, and because the gun was in plain view, the officers
were entitled to seize the gun, id. at 355. The officers were lawfully in a position from which to
view the gun, its incriminating nature was readily apparent because “it is a crime [in Michigan] to
carry a pistol in a vehicle without a firearm license,” id. at 356, and the automobile exception to the
warrant requirement provided the officers with the right of access to the gun and authority to enter
the car, id. at 357.
The search of Petitioner’s car and the seizure of the gun were lawful. Therefore, Petitioner’s
underlying Fourth Amendment claim lacks merit, and trial counsel was not ineffective for failing
to move to suppress evidence of the gun on Fourth Amendment grounds. A suppression motion
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would have been futile, and “failing to make a futile motion is neither unreasonable nor prejudicial.”
Jacobs v. Sherman, 301 F. App’x 463, 470 (6th Cir. 2008) (citing Strickland, 466 U.S. at 687).
C. Failure to Procure the Officers’ Video
Petitioner argues that trial counsel was ineffective for failing to procure the videotape of the
traffic stop because the videotape would have proved that the vehicle stop was unconstitutional.
The traffic stop, however, was lawful because, as noted above, Petitioner violated state law by
leaving the scene of an accident and disobeying an officer’s command not to leave. Thus, there
was no reason for trial counsel to obtain the videotape, and his failure to do so did not amount to
ineffective assistance.
D. Failure to Interview and Produce the Driver of the Other Vehicle
Petitioner argues next that trial counsel was ineffective for failing to interview and produce
as a defense witness the driver of the other vehicle involved in the collision. According to
Petitioner, the other driver could have proved his (Petitioner’s) version of the incident.
Defense attorneys have “a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. But “[a]
defense counsel has no obligation to call or even interview a witness whose testimony would not
have exculpated the defendant.” Millender v. Adams, 376 F.3d. 520, 527 (6th Cir. 2004) (quoting
Millender v. Adams, 187 F. Supp.2d 852, 877 (E.D. Mich. 2002) (citing Marra v. Larkins, 111 F.
Supp. 2d 575, 585 n. 13 (E.D. Pa. 2000)).
Petitioner was not charged with a traffic violation or with leaving the scene of the accident,
and he was arrested about a quarter of a mile from where the collision occurred. Therefore, it is
unlikely that the driver of the other vehicle involved in the collision would have had anything to
say in support of Petitioner’s defense to the gun charges. Petitioner merely speculates that the
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other driver would have supported his version of the facts, and a defense attorney’s failure to
pursue a defendant’s purely speculative claim does not fall below an objective standard of
reasonableness. United States v. Burwell, 83 F. Supp. 3d 6, 12 (D. D.C. 2015). As a result,
Petitioner has failed to show that trial counsel was ineffective for failing to produce the driver of
the other vehicle.
E. Advising Petitioner Not to Tell the Truth
In his fifth claim, Petitioner alleges that counsel advised him to testify in conformance with
the officers’ testimony and that he should not tell the truth on the stand because nobody would
believe him. Although the Court agrees with Petitioner that it would be unethical to encourage a
client to lie on the stand, Petitioner has not provided the Court with any evidence corroborating
the allegation that his attorney encouraged him to lie. Thus, habeas relief is not warranted on
Petitioner’s subornation-of-perjury claim. His conclusory allegations about trial counsel fall short
of establishing ineffective assistance of counsel. Workman, 178 F.3d at 771; Cross, 238 F. App’x
at 39–40.
F. Failure to Procure Evidence
In his sixth and final claim, Petitioner asserts that trial counsel was ineffective for failing
to procure evidence of (1) his meeting with a bail bondsman, (2) the date of his blood test, and (3)
additional video evidence. Petitioner asserts that these items would have proved there was a delay
in arraigning him. The Michigan Court of Appeals rejected this claim on direct review because,
in its opinion, counsel lacked a reason to object to a delayed arraignment.
This Court agrees that, even if Petitioner’s arraignment was delayed, he has not shown how
the delay prejudiced his case. As the Michigan Court of Appeals pointed out, the evidence
admitted at Petitioner’s trial was gathered contemporaneously with his arrest, and there is no
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indication in the record that any evidence was gathered during an unreasonable delay between
Petitioner’s arrest and his arraignment. Anderson, 2012 WL 639331, at *5. Thus, trial counsel
was not ineffective for failing to procure evidence to establish that there was a delay in the
arraignment.
G. Certificate of Appealability and Leave to Proceed In Form Pauperis on Appeal
Petitioner may not appeal the Court’s denial of his habeas petition unless a district or circuit
judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). 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). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327(citing Slack v. McDaniel, 529 U.S.
473, 484 (2000)). When, as here, “a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward:

The petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack, 529 U.S. at 484.
Reasonable jurists would not debate the Court’s assessment of Petitioner’s constitutional
claims, nor conclude that the issues deserve encouragement to proceed further. The Court,
therefore, declines to issue a certificate of appealability. Petitioner nevertheless may proceed in
forma pauperis on appeal because the Court granted him in forma pauperis status in this Court
(Dkt. 7), and an appeal could be taken in good faith. Fed. R. App. P. 24(a)(3)(A).
IV. CONCLUSION

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For the reasons stated above, the Court denies the petition for writ of habeas corpus (Dkt.
1), declines to issue a certificate of appealability, and grants leave to proceed in forma pauperis on
appeal.
SO ORDERED.
Dated: January 22, 2018
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 January 22, 2018.
s/Karri Sandusky
Case Manager

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