Phillips v. Hoffner

Filing 9

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY D. PHILLIPS,
Petitioner,

Civil No. 2:15-CV-10245
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE

v.
BONITA HOFFNER,
Respondent.
_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR
LEAVE TO APPEAL IN FORMA PAUPERIS
Anthony D. Phillips, (“Petitioner”), presently confined at the Lakeland Correctional
Facility in Coldwater, Michigan, filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, through his attorney James Sterling Lawrence, in which he challenges his
conviction for first-degree felony murder, M.C.L.A. 750.316. For the reasons that follow,
the petition for a writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted following a jury trial in the Wayne County Circuit Court.
This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals,
which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case arises from the 1987 murder of Lacey Tarver in Detroit. Tarver’s
body was discovered in his home on Piedmont (Piedmont house) on March
4, 1987. Several items were missing, including a computer, a small
television, a VCR, a cassette player, Tarver’s wallet, the keys to Tarver’s car,
and a stereo system. A basement window in the rear of the house was
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broken and appeared to be the intruder’s point of entry. There was blood on
the wall beneath the window and on some of the broken pieces of glass,
indicating that the intruder cut himself while entering.
The prosecution introduced evidence regarding the facts and circumstances
surrounding the murder. Tarver and Carmen Allen, f/k/a Carmen Phillips,
dated and were engaged for about four years. They lived together in the
Piedmont house. Allen’s daughter from a previous relationship also lived in
the home. Tarver and Allen ended their relationship around Thanksgiving of
1986 and she subsequently moved out.
Defendant is Allen’s brother. Allen also has a brother named Robert, or
“Bobby.” Allen testified that defendant, her mother, and her sister came over
to the Piedmont house frequently when she and Tarver lived there together.
Bobby visited less often. About a year before Allen and defendant broke up,
someone broke into the Piedmont house. After the break-in, Allen’s brother
Bobby was not welcome at the house.
Allen testified that she did not know of any problems between Tarver and
defendant; defendant was welcome in her home. Defendant and her father
did all the plumbing, painting, and other work around the house. When Allen
returned to Tarver’s house about two weeks after their break-up to retrieve
some of her belongings, defendant went with her to help. Allen testified that
the week Tarver was murdered, she sent defendant to Tarver’s house to
retrieve a stove hood that Tarver did not want.
Erica Ridley, Tarver’s daughter, was 11 years old when her father was killed.
She recalled that her father was supposed to attend a birthday party for her
great-aunt on Saturday, February 28, 1987, but he never arrived at the party.
The family called Tarver’s house all day but was unable to contact him.
Debbie Moorer, Tarver’s girlfriend at the time, was the last person to see
Tarver alive; she was at his house on Thursday, February 26, 1987. After
Moorer had not heard from Tarver for a few days, she left a note with
Tarver’s brother, Edgar Tarver. Edgar found the note in his mailbox in the
early morning hours of March 4, 1987, and he went to Tarver’s house to
check on him. When Edgar arrived, he noticed that Tarver’s car was in the
driveway and there were lights on inside the house.
Edgar walked around the back of the house and saw that a basement
window was broken. The back door was locked, but the front door was not.
Inside, the house was in disarray and appeared as if someone ransacked the
home. The lights in the hallway and kitchen were on. Edgar called for Tarver
but got no response. He went further into the house and saw Tarver’s feet
sticking out of the northeast bedroom. Edgar then saw Tarver leaning
against the wall with lots of blood all around him. Tarver appeared to be
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dead. He was still wearing a jacket. Edgar called his wife, who called the
police. Edgar also noticed that some things were missing from the house,
including some electronics and Tarver’s wallet and car keys.
On March 4, 1987, Dr. Marilee Frasier conducted an autopsy on Tarver. Dr.
Frasier died before the 2010 trial, so Deputy Chief Medical Examiner Cheryl
Loewe testified with the assistance of Dr. Frasier’s records from the autopsy.
Referencing Dr. Frasier’s records, Dr. Loewe testified regarding the manner
in which Tarver died. Specifically, she explained that Tarver suffered multiple
blows to the head that were consistent with blows inflicted by both the head
and claw end of a hammer. Tarver had a fractured left eye socket; there
were no signs of defensive injuries on his hands or arms. Dr. Loewe testified
that there was no way to tell when Tarver was actually killed, but she
estimated that he was probably killed a few days before March 4, 1987,
based on the degree of rigor mortis and lack of decomposition.
Sergeant James A. Bivens from the Detroit Police Department (DPD)
Homicide Section was part of the initial investigative team that responded to
the murder scene at 11318 Piedmont. He arrived there at approximately
2:30 a.m. on March 4, 1987, and found Tarver sitting on the floor, slumped
against the wall. Sergeant Bivens noticed blunt force injury near Tarver’s left
ear, a puncture wound on the right side of his neck and lacerations to his
right ear. A rear basement window showed evidence of forced entry.
Someone removed the outer storm window and placed it on the ground. In
the bathroom, a Band–Aid box was on the sink and the peeled strips of a
Band–Aid (the part that is peeled off before applying the Band–Aid) were on
the floor.
Officer Carl Kimber, an evidence technician, worked the crime scene at the
Piedmont house. He collected items with suspected blood on them, took
samples of blood from the walls and other immovable objects, and dusted for
fingerprints.
The window in the basement bathroom was broken. There was glass on the
floor in the basement bathroom, indicating that the window was broken from
the outside. The southeast bedroom, right across the hall from Tarver’s
body, appeared ransacked. Items were on the floor and drawers were pulled
out of the nightstand.
Paula Lytle, who worked as a senior forensic serologist in the DPD Crime
Lab in 1987, tested the items that Office Kimber collected for blood and blood
type. Lytle testified that she tested blood samples from defendant and Tarver
and determined that they both had type O blood. Lytle testified that a piece
of broken glass found beneath the broken basement window tested positive
for blood. At one point, it appeared Lytle testified that she wrote “type B”
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somewhere on or near the item, but she testified that her test results were
inconclusive with respect to the blood on the glass and she could not
determine the blood type. In addition, a tissue found on the kitchen table and
a blue checkbook found inside a dresser drawer in a bedroom both tested
positive for type O blood.
In 2008, police tested some of the evidence recovered from the crime scene
at the Piedmont house for DNA. Jennifer Summers, an expert in serology at
the Michigan State Police Forensic Science Division in the Biology Unit,
confirmed the presence of blood on the tissue found on the kitchen table.
Summers also confirmed the presence of blood on the blue checkbook. She
submitted a sample of both of these items to the Michigan State Police
Northville Crime Laboratory for DNA testing. Summers also confirmed that
the piece of shattered glass from the basement window contained human
blood on it. There was a very faint stain in the corner. Summers did not
send this sample for further testing because “it appeared to be such a faint
stain in concentration,” and there were other samples with stronger
bloodstains.
Catherine Maggert, an expert in DNA profiling and forensic scientist with the
crime laboratory in Northville, conducted DNA testing on the blood on the
tissue and on the checkbook. Maggert explained that to develop a DNA
profile, she assembles data from 13 different areas, or loci, of a DNA sample.
A 14th marker indicates gender. When she tested the blood on the tissue,
Maggert was able to obtain reportable data for 12 of the 13 loci. With respect
to the checkbook blood, Maggert obtained reportable data for only three of
the 13 loci, along with the gender area. The three loci with reportable data
matched the corresponding loci in the DNA profile of the tissue blood.
Maggert was also able to conclude that both DNA samples were from a male.
Maggert explained that degradation or breakdown of DNA could cause the
lack of reportable data from a locus.
Andrea Halvorson, another forensic scientist who performs DNA analysis at
the Northville crime lab, compared the DNA profiles from the tissue blood and
checkbook with a DNA profile developed from a buccal swab obtained from
defendant. With respect to the tissue blood, the 12 loci for which Maggert
was able to collect data matched the corresponding loci in defendant’s DNA.
Halvorson testified that the probability of selecting an unrelated, random,
African–American individual with 12 out of 13 loci matching the
corresponding loci in the tissue blood DNA was one in four quadrillion. With
respect to the checkbook blood, the three loci for which Maggert was able to
collect data matched the corresponding loci in defendant’s DNA. Halvorson
explained that the probability of selecting an unrelated, random,
African–American individual with the same DNA profile as the checkbook
blood was one in 211.7 people.
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On cross-examination, Halvorson testified that “the DNA from a sibling or ...
even a cousin, an uncle, something like that would be more similar. Those
DNA types would be more likely to be found in a member of your family than
they would in just a random person.” She explained that, “any sort of
comparisons to [a] related individual would be a completely different statistic,”
and she agreed that the only way to eliminate a brother is to run a
comparison test of the brother’s DNA. Halvorson agreed that she did not
receive any blood samples from defendant’s brother. However, she
explained that only identical twins have ever been found to have the same
DNA profile and she agreed that two siblings should have different DNA
profiles even though they share the same parents.
In March 1987, the DPD’s Latent Fingerprint Unit received nine photographs
of print lifts, which Officer Kimber lifted during his investigation at the
Piedmont house. Officer John Frelich compared the lifted prints with known
prints from defendant, and Fred Moore, a senior technician, verified Officer
Frelich’s work. Marci McCleary, an expert in latent fingerprint examination
and comparison and current employee of the Latent Fingerprint Unit,
reexamined the prints in 2010. She testified that of the nine print lifts
received, three were unusable because they did not have at least nine
different characteristics. A fourth print was from a Band–Aid box, found on
the sink in the bathroom on the first floor. McCleary concluded that this print
matched defendant’s left thumb; she matched 14 different identification
points between defendant’s known print and the Band–Aid box print. None
of the other prints matched defendant and there were some prints that
neither matched defendant nor Tarver.
Finally, the prosecution called Officer Charles Braxton to testify that police
seized a waist-length, black and yellow size large jacket from defendant’s
house during a search after Tarver’s murder. The jacket had two suspected
bullet holes in the left shoulder area. However, on cross-examination, Officer
Braxton clarified that he was probably just an observer during the execution
of the search warrant and that he did not remember if he actually saw the
jacket. Officer Braxton and Lytle testified that there was blood on the inside
of the jacket near the left shoulder area. Lytle testified that the jacket tested
positive for type O human blood.
During rebuttal argument, the prosecutor referenced that police seized the
jacket from defendant’s home and mentioned that it had type O blood inside.
The prosecutor argued:
Is it the deceased[’s] blood or is it the defendant’s blood? I
really can’t tell you that.
It’s possible it could be either one of those, all right.
5

It’ possible that it could very well be the defendant’s blood after
he was cut and everything, stuck his hand back in the jacket
and got it there.
Following four days of trial testimony, the jury convicted defendant and the
trial court sentenced him as set forth above. Thereafter, defendant filed a
claim of appeal in this Court and subsequently moved for a new trial, an
evidentiary hearing, and judgment notwithstanding the verdict. In his motion,
defendant raised the same issues that he now raises on appeal including his
argument that the prosecutor admitted false evidence when it introduced
evidence of the jacket at trial. Defendant attached documentation to his
motion to support his argument that police did not seize the jacket from his
residence after the murder. Specifically, a DPD laboratory technician report
indicated that the laboratory received the jacket on March 12, 1987, from
Officer Kramer. Police executed a search warrant at defendant’s home on
March 11, 1987, at 9074 Westwood. However, the search warrant return
indicated that police did not seize anything during the search. In addition,
Officer Kramer wrote a memorandum on April 16, 1987, wherein he indicated
that police did not seize anything during the search.
As noted above, at trial, the prosecution presented the testimony of Officer
Braxton to establish that police seized the jacket with blood on the inside
from defendant’s home after Tarver’s murder. Following defendant’s motion
for a new trial, the prosecution acknowledged that police did not seize the
jacket during the search warrant related to this case. Police actually seized
the jacket on September 11, 1986, in an unrelated incident before Tarver was
murdered. However, the prosecution argued that the improper introduction
of the evidence did not deny defendant a fair trial or affect the trial’s outcome.
The trial court held an evidentiary hearing on June 2, 2011. Officer Braxton
testified that he reviewed a laboratory analysis report for the jacket before
testifying at trial. The report indicated that police seized the jacket from 9074
Westwood and that the laboratory received the jacket for analysis on March
12, 1987. Based on the information in the report, Officer Braxton assumed
that police seized the jacket during the March 11, 1987 search of defendant’s
residence. Officer Braxton denied speaking with the trial prosecutor about
deceiving the jury with his testimony. He explained that he did not discuss
his testimony before trial with the prosecutor; the prosecutor just asked him
to review the laboratory report.
The trial prosecutor also testified that he thought police seized the jacket
during their execution of the search warrant on March 11, 1987 based on the
date of the search warrant and the laboratory report. The test results for the
jacket were included on the same report as the other evidence from the
Tarver murder scene. He did not discover that his assumption was incorrect
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until he read appellate counsel’s motion for a new trial. The prosecutor
testified that he did not intend to make Officer Braxton testify to something
that was not true, and if he had known the truth, he would not have
introduced the jacket evidence. Furthermore, he did not reference the jacket
in his opening statement or initial closing argument and only mentioned the
jacket during rebuttal in response to defense counsel’s closing argument.
There was nothing in the case file to indicate why Officer Kramer brought the
jacket to the lab on March 12, 1987.
As discussed in more detail below, the trial court also heard testimony
concerning defendant’s ineffective assistance of counsel claim. The trial
court denied defendant’s motion for a new trial and for judgment
notwithstanding the verdict.
People v. Phillips, No. 300533, 2013 WL 2223388, at *1–5 (Mich. Ct. App. May 21,
2013).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 495 Mich. 882, 838
N.W.2d 151 (2013).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The evidence was insufficient to convict petitioner.
II. The court denied the right of confrontation, and the due process right to
present a defense, by precluding legitimate questioning of witnesses, in
several cases made even worse by allowing the prosecutor to inquire into the
same subjects.
III. Petitioner was prejudiced by multiple confrontation violations involving
testimony by one person about the actions and findings of another that the
testifier did not personally witness.
IV. The prosecutor improperly inquired into the defense witness asking for an
attorney.
V. The prosecutor improperly subverted the presumption of innocence.
VI. The prosecutor committed misconduct, denied due process, violated
evidentiary rules, and tainted petitioner before the jury by presenting
prejudicial false evidence.
VII. Petitioner was prejudiced by ineffective assistance of counsel.
7

II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1)
resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question
of law or if the state court decides a case differently than the Supreme Court has on a set
of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
“unreasonable application” occurs when “a state court decision unreasonably applies the
law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas
court may not “issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11. “[A] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to
obtain habeas relief in federal court, a state prisoner is required to show that the state
8

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).
The Court notes that the Michigan Court of Appeals reviewed and rejected
petitioner’s second through sixth claims under a plain error standard because petitioner
failed to preserve the issues as a constitutional claim at the trial court level.1
In Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009), a panel of the Sixth Circuit
held that the AEDPA deference applies to any underlying plain-error analysis of a
procedurally defaulted claim. In a subsequent decision, the Sixth Circuit held that that
plain-error review is not equivalent to adjudication on the merits, so as to trigger AEDPA
deference. See Frazier v. Jenkins, 770 F.3d 485, 496 n. 5 (6th Cir. 2014). The Sixth
Circuit noted that “the approaches of Fleming and Frazier are in direct conflict.” Trimble
v. Bobby, 804 F.3d 767, 777 (6th Cir. 2015). When confronted by conflicting holdings of
the Sixth Circuit, this Court must follow the earlier panel’s holding until it is overruled by
the United States Supreme Court or by the Sixth Circuit sitting en banc. See Darrah v. City
of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). This Court believes that the AEDPA’s
deferential standard of review applies to these claims, even though they were reviewed

1

Respondent urges this Court to deny these claims on the ground that they are procedurally
defaulted because petitioner failed to object at trial. Petitioner argues in his seventh claim that counsel
was ineffective for failing to object. Ineffective assistance of counsel may establish cause for procedural
default. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). Given that the cause and prejudice inquiry
for the procedural default issue merges with an analysis of the merits of petitioner’s defaulted claims, it
would be easier to consider the merits of these claims. See Cameron v. Birkett, 348 F. Supp. 2d 825, 836
(E.D. Mich. 2004).

9

only for plain error.
III. Discussion
A. Claim # 1. The sufficiency of evidence claim.
Petitioner first contends that there was insufficient identity to establish his identity
as the murderer. The Michigan Court of Appeals rejected petitioner’s claim as follows:
In this case, the only issue in dispute was the identity of Tarver’s murderer.
Having reviewed the record, we conclude that the prosecutor presented
sufficient evidence that would allow a reasonable juror to find defendant
guilty of felony murder beyond a reasonable doubt. The evidence showed
that someone entered Tarver’s house by breaking a basement window.
During this process, that individual cut himself, as there was blood on the
shattered window glass. A tissue with blood on it was on the kitchen table.
Expert testimony showed that defendant’s DNA matched the DNA on the
bloody tissue on 12 of 13 loci. Defendant’s fingerprint was on a box of
Band–Aids in the bathroom, and it appeared that a Band–Aid was recently
used. The box was sitting on the bathroom sink and there were the peeled
strips from the back of the Band–Aid on the bathroom floor. In addition,
there was blood on a checkbook in the dresser drawer in the southeast
bedroom of the home. Expert testimony showed that the defendant’s DNA
matched the DNA on the checkbook on 3 of 13 loci. While any of this
evidence alone might not be sufficient to support defendant’s conviction,
taken as a whole and drawing all reasonable inferences in favor of the jury
verdict, it was sufficient. It was reasonable for the jury to infer that
defendant left the bloody tissue on the kitchen table after he cut himself
breaking into Tarver’s basement, used a Band–Aid to cover his wound, and
left his blood on the checkbook while ransacking the southeast bedroom,
either before or after killing Tarver.
Defendant argues that there was insufficient evidence because the
prosecution must negate all reasonable theories of innocence. However,
our Court has specifically rejected that proposition and instead held that
evidence is sufficient “if the prosecution proves its theory beyond a
reasonable doubt in the face of whatever contradictory evidence the
defendant may provide.” Here, the prosecution proved defendant’s guilt
beyond a reasonable doubt given the evidence presented by defendant.
People v. Phillips, 2013 WL 2223388, at *6 (internal footnotes omitted).
It is beyond question that “the Due Process Clause protects the accused against
10

conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970).
But the critical inquiry on review of the sufficiency of the evidence to support a criminal
conviction is, “whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). This inquiry
does not require a court to “ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Instead, the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
Id. at 318-19 (internal citation and footnote omitted)(emphasis in the original).
A federal habeas court may not overturn a state court decision that rejects a
sufficiency of the evidence claim simply because the federal court disagrees with the state
court’s resolution of that claim. Instead, a federal court may grant habeas relief only if the
state court decision was an objectively unreasonable application of the Jackson standard.
See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “Because rational people can sometimes
disagree, the inevitable consequence of this settled law is that judges will sometimes
encounter convictions that they believe to be mistaken, but that they must nonetheless
uphold.” Id. For a federal habeas court reviewing a state court conviction, “the only
question under Jackson is whether that finding was so insupportable as to fall below the
threshold of bare rationality.” Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).
On habeas review, a federal court does not reweigh the evidence or redetermine
the credibility of the witnesses whose demeanor was observed at trial. Marshall v.
Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder to weigh the
11

probative value of the evidence and resolve any conflicts in testimony. Neal v. Morris, 972
F.2d 675, 679 (6th Cir. 1992). A habeas court therefore must defer to the fact finder for
its assessment of the credibility of witnesses. Matthews v. Abramajtys, 319 F.3d 780, 788
(6th Cir. 2003).

The Court does not apply the reasonable doubt standard when

determining the sufficiency of evidence on habeas review. Walker v. Russell, 57 F.3d 472,
475 (6th Cir. 1995).
Under Michigan law, “[T]he identity of a defendant as the perpetrator of the crimes
charged is an element of the offense and must be proved beyond a reasonable doubt.”
Byrd v. Tessmer, 82 F.App’x. 147, 150 (6th Cir. 2003)(citing People v. Turrell, 25 Mich.
App. 646, 181 N.W.2d 655, 656 (1970)).
Circumstantial evidence alone is sufficient to support a conviction, and it is not
necessary for the evidence at trial to exclude every reasonable hypothesis except that of
guilt. Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000)(internal quotations omitted).
Identity of a defendant can be inferred through circumstantial evidence. See Dell v. Straub,
194 F. Supp. 2d 629, 648 (E.D. Mich. 2002). Eyewitness identification is not necessary
to sustain a conviction. See United States v. Brown, 408 F.3d 1049, 1051 (8th Cir. 2005);
Dell v. Straub, 194 F. Supp. 2d at 648.
In the present case, there was sufficient circumstantial evidence from which a
rational trier of fact could have concluded that petitioner murdered Mr. Tarver. The
evidence showed that the person who broke into Mr. Tarver’s house cut himself, because
there was blood on the shattered window glass. A tissue with blood on it was found on the
victim’s kitchen table. Petitioner’s DNA matched the DNA on the bloody tissue on 12 of
13 loci. Petitioner’s thumbprint was recovered from a box of Band–Aids in the bathroom.
12

It appeared to the police that a Band–Aid was recently used, because the Band-Aids box
was sitting on the bathroom sink and there were peeled strips from the back of the
Band–Aid on the bathroom floor. Police found blood on a checkbook in the dresser drawer
in the southeast bedroom of the home. Expert testimony showed that petitioner’s DNA
matched the DNA on the checkbook on 3 of 13 loci. The recovery of petitioner’s DNA and
fingerprint from several sites at the victim’s house was sufficient in and of itself to establish
petitioner’s identity as the perpetrator. See e.g. U.S. v. Seawood, 172 F.3d 986, 988 (7th
Cir. 1999). As the Michigan Court of Appeals noted, the jury could have reasonably
inferred that petitioner left the bloody tissue on the kitchen table after he cut himself
breaking into Mr. Tarver’s basement, used a Band–Aid to cover his wound, and left his
blood on the checkbook while ransacking the southeast bedroom, either before or after
murdering the victim.
Because there were multiple pieces of evidence to establish petitioner’s identity as
the perpetrator, the Michigan Court of Appeals did not unreasonably apply Jackson v.
Virginia in rejecting petitioner’s sufficiency of evidence claim. See Moreland v. Bradshaw,
699 F.3d 908, 919-21 (6th Cir. 2012). Petitioner’s first claim is without merit.
B. Claim # 2. The right to present a defense claim.
Petitioner next contends that he was denied the right to present a defense.
Just as an accused has the right to confront the prosecution’s witnesses for the
purpose of challenging their testimony, he or she also has the right to present his own
witnesses to establish a defense. This right is a fundamental element of the due process
of law. Washington v. Texas, 388 U.S. 14, 19 (1967); see also Crane v. Kentucky, 476
U.S. 683, 690 (1986)(“whether rooted directly in the Due Process Clause of the Fourteenth
13

Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity
to present a complete defense’”)(internal citations omitted). However, an accused in a
criminal case does not have an unfettered right to offer evidence that is incompetent,
privileged, or otherwise inadmissible under the standard rules of evidence. Montana v.
Egelhoff, 518 U.S. 37, 42 (1996). The Supreme Court has indicated its “traditional
reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial
courts.” Crane, 476 U.S. at 689. The Supreme Court gives trial court judges “wide
latitude” to exclude evidence that is repetitive, marginally relevant, or that poses a risk of
harassment, prejudice, or confusion of the issues. Id. (quoting Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)). Rules that exclude evidence from criminal trials do not violate
the right to present a defense unless they are “‘arbitrary’ or ‘disproportionate to the
purposes they are designed to serve.’” United States v. Scheffer, 523 U.S. 303, 308
(1998)(quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)).
Under the standard of review for habeas cases as enunciated in § 2254(d)(1), it is
not enough for a habeas petitioner to show that the state trial court’s decision to exclude
potentially helpful evidence to the defense was erroneous or incorrect.

A habeas

petitioner must show that the state trial court’s decision to exclude the evidence was “an
objectively unreasonable application of clearly established Supreme Court precedent.” See
Rockwell v. Yukins, 341 F.3d 507, 511-12 (6th Cir. 2003). Additionally, “the Supreme
Court has made it perfectly clear that the right to present a ‘complete’ defense is not an
unlimited right to ride roughshod over reasonable evidentiary restrictions.” Id. at p. 512.
Petitioner first claims that he was denied his right to present a defense because his
14

counsel was precluded from asking Officer Kimber about possible contamination of the
evidence.
Petitioner’s counsel questioned Officer Kimber in great detail about the procedures
he used when collecting evidence and the possibility that the evidence might have been
contaminated. (Tr, 8/24/10, pp. 84-89, 99-104, 106-108, 110-115, 133-136). The judge
sustained the prosecutor’s objection when counsel, after asking Kimber about what other
evidence technicians might have done with saline solution, asked him a hypothetical
question about someone touching blood or a surface with saline solution. (Id., p. 105).
Because Officer Kimber was the person who collected the evidence and there was no
basis in fact for the hypothetical, the question was irrelevant or speculative.
“The inquiry in reviewing a claim of improper exclusion of evidence is whether the
evidence was rationally connected to the crime charged and, if its exclusion was so
prejudicial as to deprive the defendant of a fundamentally fair trial.” Jones v. Smith, 244
F. Supp. 2d 801, 814 (E.D. Mich. 2003). The trial court’s decision to preclude defense
counsel from asking Officer Kimber a hypothetical question did not violate petitioner’s right
to confrontation or due process, because the evidence was only remotely relevant to raise
questions about the possibility of the contamination of the evidence. See Farley v. Lafler,
193 F.App’x. 543, 546 (6th Cir. 2006). Although “[t]he Confrontation Clause places
meaningful limits on a trial judge’s ability to exclude evidence under a state’s rules of
evidence, those limits are not relevant when the information in question has virtually no
probative value[,].” Id. at 547. Because defense counsel’s hypothetical question was
speculative, the trial court’s refusal to permit him to ask Officer Kimber the question did
not deprive petitioner of a fair trial.
15

Moreover, the judge’s ruling was not so egregious that it effectively denied
petitioner a fair trial, in light of the fact that petitioner was not completely barred from
questioning Officer Kimber about his procedures at the crime scene and the possible
contamination of the evidence. See Fleming v. Metrish, 556 F.3d at 535-36. With the
quantum of evidence on the defense theory in the record, this Court concludes that the
petitioner was afforded “a meaningful opportunity to present a complete defense.” Allen
v. Howes, 599 F. Supp. 2d 857, 873 (E.D. Mich. 2009)(citing Crane, 476 U.S. at 690
(citation and internal quotations omitted)).
Petitioner next contends that the judge prevented him from questioning Ms. Allen
about Mr. Tarver’s house cleaning habits.
As the Michigan Court of Appeals noted in rejecting petitioner’s claim, the trial judge
initially refused to permit petitioner to ask this question because he had not provided a
foundation for his questioning. People v. Phillips, 2013 WL 2223388, at *8. Excluding
evidence on the ground that the criminal defendant had failed to establish an adequate
foundation for its admission under state law does not violate a defendant’s right to present
a defense. See U.S. ex rel. Winters v. Mizell, 644 F. Supp. 782, 793 (N.D. Ill. 1986); see
also Dell v. Straub, 194 F. Supp. 2d at 644 (Requiring a defendant to lay a foundation for
the admissibility of certain evidence does not violate the Confrontation Clause). In any
event, once defense counsel demonstrated that Ms. Allen had been back to Mr. Tarver’s
house after moving out, petitioner was able to question her about the condition of Mr.
Tarver’s house during those visits. With the quantum of evidence on the defense theory
in the record, petitioner was given “a meaningful opportunity to present a complete
defense.” Allen v. Howes, 599 F. Supp. 2d at 873.
16

Petitioner next claims that the trial judge improperly prevented counsel from
questioning Ms. Allen about petitioner’s visits to Mr. Tarver’s house, in order to give an
innocent explanation why petitioner’s blood and thumbprint were recovered from the
house.
The Michigan Court of Appeals rejected this claim as follows:
In this instance, the court precluded the questioning because defendant
failed to establish that Allen had personal knowledge of how defendant’s
fingerprint got on the Band–Aid box or how a tissue with his blood got on the
kitchen table in Tarver’s house. Furthermore, defendant was able to solicit
testimony from Allen about instances when defendant was at Tarver’s house
after she and Tarver stopped dating. Allen testified that defendant helped
her move her things out of the house in December 1986 and went to
Tarver’s house to receive a stove hood the week he was murdered.
People v. Phillips, 2013 WL 2223388, at *8.
In the present case, the trial court’s decision to prevent Ms. Allen from testifying
about how petitioner’s fingerprint got on a Band-Aid box or how his blood got on the tissue
did not deprive petitioner of a fair trial, because testimony beyond Ms. Allen’s personal
knowledge would have violated M.R.E. 602 and was therefore properly excluded under
the rules of evidence. See McCullough v. Stegall, 17 F.App’x. 292, 296 (6th Cir. 2001).
Fourth, petitioner claims that the trial court precluded counsel from questioning Ms.
Allen about their brother Bobby’s drug addiction and previous arrest for robbery charges,
in order to establish that he was the actual murderer.
The Michigan Court of Appeals rejected petitioner’s claim as follows:
Here, even assuming that the court should have allowed the testimony as
evidence of motive, defendant cannot show that any error affected the
outcome of the proceedings. In this case, the jury heard evidence that
would have allowed it to conclude that Bobby committed the murder. Allen
testified that someone broke into the victim’s home sometime before the
murder and that, thereafter, Bobby was not welcome at the victim’s home.
17

People v. Phillips, 2013 WL 2223388, at *8.
In light of the fact that petitioner was able to present evidence that his brother
Bobby might have been the murderer, the trial court’s refusal to permit petitioner to
question Ms. Allen about Bobby’s drug addiction or prior arrest did not deprive petitioner
of a meaningful opportunity to present a defense. See Wynne v. Renico, 606 F.3d 867,
871 (6th Cir. 2010). Petitioner is not entitled to habeas relief on his second claim.
C. Claim # 3. The Confrontation Clause claims.
Petitioner next claims that he was denied his right of confrontation was violated
when several persons testified regarding the actions and findings of other individuals who
did not testify at trial.
Out of court statements that are testimonial in nature are barred by the Sixth
Amendment Confrontation Clause unless the witness is unavailable and the defendant has
had a prior opportunity to cross-examine the witness, regardless of whether such
statements are deemed reliable by the court. See Crawford v. Washington, 541 U.S. 36,
68-69 (2004).
Petitioner first contends that his right to confrontation was violated when Dr. Loewe
was permitted to testify about the findings from the autopsy conducted by Dr. Frasier. The
Michigan Court of Appeals agreed that Dr. Loewe’s testimony violated petitioner’s right to
confrontation but found the error to be harmless because the cause of death was not at
issue, only the identity of the murderer. People v. Phillips, 2013 WL 2223388, at *9.
Confrontation Clause violations are subject to harmless error review. See Bulls v.
Jones, 274 F.3d 329, 334 (6th Cir. 2001). In Brecht v. Abrahamson, 507 U.S. 619, 637
18

(1993), the U.S. Supreme Court held that for purposes of determining whether federal
habeas relief must be granted to a state prisoner on the ground of federal constitutional
error, the appropriate harmless error standard to apply is whether the error had a
substantial and injurious effect or influence in determining the jury’s verdict.

In

determining whether a Confrontation Clause violation is harmless under Brecht, a court
should consider the following factors: “(1) the importance of the witness’ testimony in the
prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or
absence of evidence corroborating or contradicting the testimony of the witness on
material points; (4) the extent of cross examination otherwise permitted; and (5) the overall
strength of the prosecution’s case.” See Jensen v. Romanowski, 590 F.3d 373, 379 (6th
Cir. 2009)(citing Delaware v. Van Arsdall, 475 U.S. at 684).
In the present case, the autopsy had no bearing on petitioner’s guilt because the
cause of death was not at issue, only the identity of the perpetrator, which the autopsy
shed no light on. Petitioner has failed to show that the admission of Dr. Frasier’s autopsy
report through Dr. Loewe’ s testimony had a substantial and injurious effect or influence
on the verdict. When “[V]iewed through the deferential lens of AEDPA, the state court’s
harmlessness ruling must stand” because based on the record in this case, the Michigan
Court of Appeals reasonably rejected any potential error in the admission of the autopsy
report as harmless error. See Kennedy v. Warren, 428 F.App’x. 517, 522, 523 (6th Cir.
2011).
Petitioner next contends that Marci McCleary’s testimony about the fingerprints
lifted from the crime scene violated his right of confrontation. McCleary testified that in
1987, Officers Frelich and Moore compared petitioner’s fingerprints with the prints that
19

another officer lifted at the crime scene. As the Michigan Court of Appeals noted, People
v. Phillips, 2013 WL 2223388, at *9, Ms. McCleary did not mention the results of that
comparison. Instead, Ms. McCleary did her own comparison between the fingerprints and
the prints recovered from the crime scene.
Any testimony by Officer McCleary concerning any prior fingerprint comparisons
was harmless error at most, in light of the fact that these findings were cumulative of
Officer McCleary’s testimony, who was subject to cross-examination at petitioner’s trial.
See U.S. v. Barnes, 183 F.App’x. 526, 530-31 (6th Cir. 2006).
Petitioner finally contends that Officer Braxton’s testimony regarding the jacket
recovered from petitioner’s house during an earlier raid violated his right of confrontation.
During direct examination, Officer Braxton agreed that the “file” reflected that the police
executed a search warrant at petitioner’s residence and that a jacket was seized during
the execution of that warrant and was delivered to the police crime laboratory. As the
Michigan Court of Appeals noted in rejecting petitioner’s claim, any error in Officer
Braxton’s testimony that he reviewed the file for the search warrant was offset by the fact
that he actually participated in the execution of the search warrant.

Furthermore,

petitioner’s jacket was not highly probative of petitioner’s guilt. Phillips, 2013 WL 2223388,
at *9. Officer Braxton’s testimony about the search warrant and the jacket recovered from
petitioner’s house was harmless error because the jacket did not implicate petitioner in the
murder, particularly where there was other ample evidence linking petitioner to the crime.
See e.g. U.S. v. Driver, 535 F.3d 424, 428 (6th Cir. 2008). Petitioner is not entitled to relief
on his third claim.
D. Claims # 4, 5, and 6. The prosecutorial misconduct claims.
20

Petitioner claims he was denied his right to a fair trial because of prosecutorial
misconduct.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v. Parker, 344 F. 3d
487, 512 (6th Cir. 2003)). A prosecutor’s improper comments will be held to violate a
criminal defendant’s constitutional rights only if they “‘so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477
U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
Prosecutorial misconduct will thus form the basis for habeas relief only if the conduct was
so egregious as to render the entire trial fundamentally unfair based on the totality of the
circumstances. Donnelly v. DeChristoforo, 416 U.S. at 643-45. In order to obtain habeas
relief on a prosecutorial misconduct claim, a habeas petitioner must show that the state
court’s rejection of his or her prosecutorial misconduct claim “was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Parker v. Matthews, 132 S. Ct. 2148, 2155
(2012)(quoting Harrington, 562 U.S. at 103).
In his fourth claim, petitioner contends that the prosecutor committed misconduct
when he asked Ms. Allen about the fact that she had refused to sign a statement that she
made to the police on March 11, 1987 until she spoke with a lawyer.
A prosecutor may not imply that an accused’s decision to meet with counsel, even
shortly after the incident which gives rise to the criminal charges, implies guilt.

A

prosecutor must also refrain from suggesting to the jury that a defendant hired an attorney
to generate an alibi or to get his or her “story straight”. Sizemore v. Fletcher, 921 F.2d 667,
21

671 (6th Cir. 1990)(internal citations omitted). However, the Supreme Court has never
held that a prosecutor cannot question a witness other than a defendant about whether
he or she consulted with a lawyer. Given the lack of holdings by the Supreme Court on
the issue of whether a prosecutor can question a witness about consulting with an
attorney, the Michigan Court of Appeals’ rejection of petitioner’s prosecutorial misconduct
claim was not an unreasonable application of clearly established federal law. See Wright
v. Van Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77 (2006).
In his fifth claim, petitioner contends that the prosecution improperly subverted the
presumption of innocence by arguing that “there’s no such thing as a free murder” during
his opening statement and closing argument. The Michigan Court of Appeals rejected
petitioner’s claim as follows:
Contrary to defendant’s assertions, the prosecution was merely remarking
on the long passage of time since Tarver’s murder and arguing that the jury
should not acquit simply because the murder occurred 23 years ago. The
prosecutor did not encourage the jury to convict defendant even if it did not
find him guilty beyond a reasonable doubt. Finally, any error could have
been cured by an objection and curative instruction. Indeed, the court
instructed the jury that defendant is presumed innocent and must be found
guilty beyond a reasonable doubt, and the jury is presumed to have followed
its instructions.
People v. Phillips, 2013 WL 2223388, at *11 (internal citations omitted).
Petitioner is not entitled to habeas relief because in the context of his comments,
the prosecutor did not undermine the concept of the presumption of innocence. See
Bowling v. Parker, 344 F.3d at 513. In addition, the prosecutor’s comments did not render
petitioner’s trial fundamentally unfair in light of the fact that the trial court gave the jury the
correct instruction on the presumption of innocence. See Kellogg v. Skon, 176 F.3d 447,
451 (8th Cir. 1999).
22

Petitioner next contends that the prosecutor committed misconduct by permitting
Officer Braxton to testify falsely that the jacket had been seized from petitioner’s house at
the time of the murder in 1987, when in fact it had been seized earlier in 1986.
The deliberate deception of a court and jurors by the presentation of known and
false evidence is incompatible with the rudimentary demands of justice. Giglio v. United
States, 405 U.S. 150, 153 (1972). There is also a denial of due process when the
prosecutor allows false evidence or testimony to go uncorrected. Napue v. Illinois, 360
U.S. 264, 269 (1959)(internal citations omitted). To prevail on a claim that a conviction
was obtained by evidence that the government knew or should have known to be false,
a defendant must show that the statements were actually false, that the statements were
material, and that the prosecutor knew they were false. Coe v. Bell, 161 F.3d 320, 343 (6th
Cir. 1998). A habeas petitioner must show that a witness’ statement was “indisputably
false,” rather than misleading, to establish a claim of prosecutorial misconduct or a denial
of due process based on the knowing use of false or perjured testimony. Byrd v. Collins,
209 F.3d 486, 517-18 (6th Cir. 2000). Conclusory allegations of perjury in a habeas
corpus petition must be corroborated by some factual evidence. Barnett v. United States,
439 F.2d 801, 802 (6th Cir.1971).
Petitioner is not entitled to relief on his claim because he failed to show that Officer
Braxton intentionally testified falsely about seizing the jacket from petitioner’s residence
on March 11, 1987. Officer Braxton testified at the post-trial evidentiary hearing that he
reviewed a laboratory analysis report for the jacket before testifying at trial. The report
stated that police seized the jacket from 9074 Westwood and that the laboratory received
the jacket for analysis on March 12, 1987. Officer Braxton testified that he assumed from
23

reading this report that the police seized the jacket during the March 11, 1987 search of
petitioner’s home. Officer Braxton denied that he spoke with the trial prosecutor about
deceiving the jury with his testimony. Officer Braxton denied even speaking with the
prosecutor about his proposed testimony prior to trial. The prosecutor just asked him to
review the laboratory report. The trial prosecutor testified at the post-evidentiary hearing
that he also thought that the police seized the jacket during their execution of the search
warrant on March 11, 1987 based upon on the date of the search warrant and the
laboratory report. The test results for the jacket were included on the same report as the
other evidence from the Tarver murder scene. The trial prosecutor did not learn that his
assumption was incorrect until he read appellate counsel’s motion for a new trial. The
prosecutor testified that he did not intend to make Officer Braxton testify falsely about this
matter. The trial judge, in rejecting petitioner’s post-trial motion for a new trial, found the
prosecutor’s testimony to be credible.
Petitioner is not entitled to habeas relief on his claim because he failed to show that
Officer Braxton deliberately testified falsely about the date that the jacket was seized from
petitioners home.

Petitioner’s claim also fails because he failed to show that the

prosecutor knew that Officer Braxton testified falsely about the seizure of the jacket from
petitioner’s residence on March 11, 1987. See Rosencrantz v. Lafler, 568 F.3d 577, 587
(6th Cir. 2009). Petitioner is also not entitled to relief because the jacket was not material
to petitioner’s conviction, because it was not a “crucial link” in the case against petitioner.
See e.g. Foley v. Parker, 488 F.3d 377, 392 (6th Cir. 2007). The jacket was never linked
to the murder or even to petitioner. Accordingly, petitioner is not entitled to relief on his
sixth claim.
24

E. Claim # 7. The ineffective assistance of counsel claims.
Petitioner contends that he was denied the effective assistance of trial counsel.
To show that he or she was denied the effective assistance of counsel under
federal constitutional standards, a defendant must satisfy a two prong test. First, the
defendant must demonstrate that, considering all of the circumstances, counsel’s
performance was so deficient that the attorney was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984).
In so doing, the defendant must overcome a strong presumption that counsel’s behavior
lies within the wide range of reasonable professional assistance. Id. Petitioner must
overcome the presumption that, under the circumstances, the challenged action might be
sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that
such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant
must show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
The Supreme Court’s holding in Strickland places the burden on the defendant who raises
a claim of ineffective assistance of counsel, and not the state, to show a reasonable
probability that the result of the proceeding would have been different, but for counsel’s
allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
On habeas review, “the question ‘is not whether a federal court believes the state
court’s determination’ under the Strickland standard ‘was incorrect but whether that
determination was unreasonable-a substantially higher threshold.’” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). “The pivotal question is whether the state court’s application of the Strickland
25

standard was unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard.” Harrington v. Richter, 562 U.S. at 101.
Indeed, “because the Strickland standard is a general standard, a state court has even
more latitude to reasonably determine that a defendant has not satisfied that standard.”
Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to
the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a Strickland
claim brought by a habeas petitioner. Id. This means that on habeas review of a state
court conviction, “[A] state court must be granted a deference and latitude that are not in
operation when the case involves review under the Strickland standard itself.”Harrington,
562 U.S. at 101. “Surmounting Strickland’s high bar is never an easy task.” Id. at 105
(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner first argues that his trial counsel was ineffective for failing to file a motion
to quash the information, because he claims that there was insufficient evidence to bind
him over to the circuit court for trial. As a related claim, petitioner argues that trial counsel
was ineffective for failing to move for a directed verdict.
The Michigan Court of Appeals rejected petitioner’s claim as follows:
In this case, counsel made a strategic decision not to move to quash or for
a directed verdict. This decision did not fall below an objective standard of
reasonableness. As discussed above, there was sufficient evidence to allow
a jury to conclude that defendant killed the victim including DNA and
fingerprint evidence such that motions to quash or for a directed verdict
would have been futile.
People v. Phillips, 2013 WL 2223388, at *13 (internal citation omitted).
There was sufficient evidence presented at the preliminary examination to support
petitioner’s bindover to circuit court. Accordingly, petitioner is unable to show that counsel
26

was ineffective for failing to file a motion to quash the information. See e.g. Dell v. Straub,
194 F. Supp. 2d at 649. The evidence was sufficient to prove petitioner’s identity as the
murderer, thus, counsel’s failure to move for a directed verdict did not amount to
ineffective assistance of counsel. Maupin v. Smith, 785 F.2d 135, 140 (6th Cir. 1986); see
also Hurley v. United States, 10 F.App’x. 257, 261 (6th Cir. 2001).
Petitioner next contends that trial counsel was ineffective for advising him not to
testify in his own defense. The Michigan Court of Appeals rejected this claim as follows:
At the post-conviction evidentiary hearing, counsel testified regarding why
he advised defendant not to testify. Counsel first stated that he did not have
defendant testify because of information defendant told him in privileged
conversations. He was not going to “suborn any perjury.” Second, trial
counsel said that he was concerned about defendant’s 1987 conviction for
assault with intent to do great bodily harm less than murder. Even though
the conviction was more than 10 years old and did not deal with truth or
dishonesty, counsel was worried that defendant would “open certain doors
on direct examination.” For example, defendant might actually say
something about being a nonviolent person. In addition, counsel said it
would have been “a monumental blunder” to have defendant testify because
defendant would not have been able to explain how his blood was in
Tarver’s house.
The trial court concluded that counsel did not render ineffective assistance
in advising defendant not to testify. The court reasoned that counsel’s
concern about defendant’s prior conviction might have been “overly
cautious” but was not unsound. In addition, the court reasoned that
counsel’s advice was much more nuanced than defendant claimed it was
and generally concerned the risks of defendant testifying.
“Counsel’s decision whether to call a witness is presumed to be a strategic
one for which this Court will not substitute its judgment.” The trial court
found trial counsel credible with respect to the reasoning behind his advice.
This finding was not clearly erroneous. Trial counsel’s testimony at the
evidentiary hearing showed that he had valid concerns regarding
defendant’s testimony. He did not want to “open the door” with respect to
defendant’s prior conviction and he had concerns about perjury and
defendant’ inability to explain the presence of his blood at the crime scene.
Given counsel’s legitimate concerns about defendant taking the stand,
counsel made a strategic decision to advise defendant against testifying and
27

the trial court did not clearly err in finding that counsel acted reasonably in
making that decision.
People v. Phillips, 2013 WL 2223388, at *14 (internal citations omitted).
Although the issue of ineffective assistance of counsel presents a mixed question
of law and fact, any underlying historical facts found by the state courts are presumed
correct. West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996). The presumption of correctness
also “applies to implicit findings of fact, logically deduced because of the trial court’s ability
to adjudge the witnesses’ demeanor and credibility.” Carey v. Myers, 74 F.App’x. 445, 448
(6th Cir. 2003)(citing McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996)). The trial
judge concluded that trial counsel testified credibly about his reasons for not wanting to
put petitioner on the witness stand, including his concern that petitioner would commit
perjury.

Petitioner has presented no evidence to rebut the trial judge’s credibility

determination that counsel had valid reasons for not putting petitioner on the witness
stand, particularly counsel’s belief, based on his privileged conversations with petitioner,
that his client would commit perjury. This credibility determination is buttressed by the fact
that when trial counsel was recalled to testify during the post-conviction hearing and was
ordered by the trial judge to divulge the contents of his privileged conversation with
petitioner, counsel refused to do so even though it resulted in him being held in contempt
of court and sentenced to jail. (Tr. 6/28/11, pp. 13-15).
A defendant cannot show prejudice based upon his or her counsel’s refusal to
present perjured testimony, even if such testimony might have affected the outcome of the
case. Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012). Defense counsel’s decision to
discourage petitioner from testifying was not deficient, as required to support a claim of
28

ineffective assistance of counsel, because counsel believed that he would have been
suborning perjury if petitioner had taken the witness stand. See e.g. Mann v. Ryan, 828
F.3d 1143, 1153 (9th Cir. 2016). Petitioner is not entitled to relief on this claim.
Petitioner next claims that trial counsel was ineffective for failing to object to the
Confrontation Clause errors that he alleged in Claim # 3, supra.
“The prejudice prong of the ineffective assistance analysis subsumes the Brecht
harmless-error review.” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009). This Court
already determined that the admission of this evidence was harmless error. Because the
admission of this evidence was harmless error, petitioner cannot satisfy Strickland’s
prejudice requirement. See e.g. Bell v. Hurley, 97 F.App’x. 11, 17 (6th Cir. 2004).
Petitioner next contends that trial counsel was ineffective for failing to call an expert
witness to challenge the DNA evidence.
The Michigan Court of Appeals rejected this claim as follows:
At the post-conviction evidentiary hearing, counsel testified that he retained
an independent expert, but learned that the firm’s findings were not
beneficial to his client. Counsel testified that he discussed strategies with
the independent firm for addressing the DNA evidence at trial. At trial,
counsel advanced the theory that defendant’s brother Bobby could have
been the perpetrator. Counsel explained that he did not want to have
Bobby’s DNA tested because the test could have eliminated Bobby as a
potential perpetrator, which would have ruined defendant’s defense.
The trial court concluded that counsel did not act deficiently in failing to
retain an independent DNA expert. The court found that counsel did retain
an expert who advised counsel that the DNA evidence was not favorable to
defendant.
In this case, the trial court did not clearly err in finding that counsel rendered
effective assistance with respect to his handling of the DNA evidence.
Counsel retained an independent DNA expert. When the independent
expert’s results were not favorable to his client, counsel decided not to
obtain a written report or call any expert to testify at trial. This was
29

reasonable strategy given the circumstances. Further, counsel made a
reasonable strategic decision not to have Bobby’s DNA tested given the
results could have destroyed defendant’s only defense. It is reasonable trial
strategy not to seek further testing when the results could implicate the
defendant. In sum, given all of the facts and circumstances of the case,
counsel acted reasonably with respect to his handling of the DNA evidence
and in deciding not to call an independent expert witness.
People v. Phillips, 2013 WL 2223388, at *16 (internal citation omitted).
Petitioner is not entitled to relief on his claim for several reasons.
First, trial counsel did retain an expert on DNA, but this expert advised counsel that
his findings would not be favorable to petitioner. The constitution does not require counsel
to look for more than one expert witness. “Effective assistance does not require counsel
to continue contacting experts until he found one...willing to testify against the
prosecution’s theory of the case.” Flick v. Warren, 465 F.App’x. 461 465 (6th Cir.
2012)(petitioner’s counsel in a second-degree murder prosecution was not ineffective for
failing to call an expert to challenge the science underlying Shaken Baby Syndrome, after
counsel had contacted three doctors seeking help with the case and had received
unfavorable responses from all three).
Secondly, petitioner failed to show that he has an expert witness who could
successfully challenge the prosecution’s DNA evidence. A habeas petitioner’s claim that
trial counsel was ineffective for failing to call an expert witness cannot be based on
speculation. See Keith v. Mitchell, 455 F.3d 662, 672 (6th Cir. 2006). Petitioner has
offered no evidence to this Court that there is an expert who would have impeached the
DNA evidence offered by the prosecution.
Petitioner next contends that his trial counsel should have called petitioner’s
mother and other sister to testify as defense witnesses.
30

The Michigan Court of Appeals rejected petitioner’s claim as follows:
Counsel testified that he did not call defendant’s mother as a witness
because he was able to get all of the information he needed from Allen. The
trial court concluded that counsel did not act deficiently in failing to call other
witnesses because defendant failed to demonstrate what important
testimony other witnesses would have provided.
Defendant claims that his mother and sister would have testified about
instances when defendant was at Tarver’s house after Tarver and Allen
broke up. However, Allen testified about Tarver and defendant’s friendship
and occasions when defendant visited Tarver’s house after Tarver and Allen
stopped living together. Presumably, Allen had the most knowledge of
Tarver and defendant’s relationship since she dated and lived with Tarver.
Therefore, it was reasonable for counsel to decide to call Allen as a witness
instead of defendant’s mother or sister. To the extent defendant contends
that his sister could have offered testimony about seizure of the jacket, as
discussed above, admission of the jacket evidence did not affect the
outcome of the proceedings. Therefore, defendant cannot show that there
is a reasonable probably that but for counsel’s failure to call his sister to
testify at trial, the result of the proceeding would have been different.
People v. Phillips, 2013 WL 2223388, at *16.
Petitioner was not prejudiced by counsel’s failure to call petitioner’s mother and
other sister to testify because their testimony was cumulative of Ms. Allen’s testimony.
Wong, 558 U.S. at 22-23; see also United States v. Pierce, 62 F.3d 818, 833 (6th Cir.
1995); Johnson v. Hofbauer, 159 F. Supp. 2d 582, 607 (E.D. Mich. 2001). In this case,
the jury had significant evidence presented to it in support of petitioner’s claim that he had
been a guest at Mr. Tarver’s home on multiple occasions, to support his argument that
there were innocent reasons for his thumbprint and blood to have been recovered from
the victim’s house. Because the jury was “well acquainted” with evidence that would have
supported petitioner’s argument that his blood and thumbprint were not linked to the
murder but could have been placed at the victim’s house during a prior visit, additional
evidence in support of petitioner’s defense “would have offered an insignificant benefit, if
31

any at all.” Wong, 558 U.S. at 23. Moreover, petitioner was not prejudiced by counsel’s
failure to call petitioner’s other sister to testify about the actual date that the jacket was
seized from petitioner’s house, because the jacket was not incriminating.
Petitioner next contends that trial counsel was ineffective for failing to object to the
prosecutorial misconduct he alleged in Claims # 4 and # 5. To show prejudice under
Strickland for failing to object to prosecutorial misconduct, a habeas petitioner must show
that but for the alleged error of his trial counsel in failing to object to the prosecutor’s
improper questions and arguments, there is a reasonable probability that the proceeding
would have been different. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001). Because
the Court has already determined that the prosecutor’s comments did not deprive
petitioner of a fundamentally fair trial, petitioner is unable to establish that he was
prejudiced by counsel’s failure to object to these remarks. Slagle v. Bagley , 457 F.3d 501,
528 (6th Cir. 2006).
Petitioner also argues that trial counsel failed to object to Officer Braxton’s perjured
testimony. Petitioner failed to show that Officer Braxton committed perjury, thus, counsel
was not ineffective for failing to challenge this testimony on the ground that it was perjured.
Brown v. Burt, 65 F.App’x. 939, 942 (6th Cir. 2003).
Petitioner finally contends that trial counsel was ineffective for failing to object to the
admission of blood-type evidence. The Michigan Court of Appeals rejected this claim on
the ground that this evidence was admissible. People v. Phillips, 2013 WL 2223388, at
*17.
Federal habeas courts “‘must defer to a state court’s interpretation of its own rules
of evidence and procedure’ when assessing a habeas petition.” Miskel v. Karnes, 397 F.3d
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446, 453 (6th Cir. 2005)(quoting Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)).
Because the Michigan Court of Appeals determined that most, not all, of this evidence was
admissible under Michigan law, this Court must defer to that determination in resolving
petitioner’s ineffective assistance of counsel claim. See Brooks v. Anderson, 292 F.Appx.
431, 437-38 (6th Cir. 2008). The failure to object to relevant and admissible evidence is
not ineffective assistance of counsel. See Alder v. Burt, 240 F. Supp. 2d 651, 673 (E.D.
Mich. 2003). Petitioner is not entitled to relief on this claim.
IV. Conclusion
The Court will deny the petition for a writ of habeas corpus with prejudice. The
Court will also deny a certificate of appealability to petitioner. In order to obtain a
certificate of appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is
required to show that reasonable jurists could debate whether, or agree that, the petition
should have been resolved in a different manner, or that the issues presented were
adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,
483-84 (2000). “The district court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254; see also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875
(E.D. Mich. 2010).
For the reasons stated in this opinion, the Court will deny petitioner a certificate of
appealability because he has failed to make a substantial showing of the denial of a
federal constitutional right. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich.
2001). The Court will also deny petitioner leave to appeal in forma pauperis, because the
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appeal would be frivolous. Id.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma
pauperis.
s/ Nancy G. Edmunds
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated:December 19, 2016

CERTIFICATE OF SERVICE
I hereby certify that a copy of this order was served upon the parties and/or counsel
of record on this 19th day of December, 2016 by regular U.S. mail and/or CM/ECF.
s/ Carol J Bethel
Case Manager

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