Russell v. MacLaren

Filing 23

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus; denying certificate of appealability and granting leave to proceed ifp on appeal. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TRACY RUSSELL,
Petitioner,
CASE NO. 15-10932
HONORABLE NANCY G. EDMUNDS

v.
DUNCAN MACLAREN,
Respondent.
____________________________/

OPINION AND ORDER
DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Tracy Russell has filed a pro se habeas corpus petition challenging his
convictions for aggravated stalking, Mich. Comp. Laws § 750.411i(2), and larceny in a
building, Mich. Comp. Laws § 750.360. He alleges as grounds for relief that (1) there
was insufficient evidence at trial to support his stalking conviction, (2) the trial court
erred by admitting “other acts” evidence and testimony about a personal protection
order (PPO), (3) the prosecutor committed misconduct during closing arguments, and
defense counsel was ineffective for failing to object to the misconduct, (4) the jury
instructions were deficient, and defense counsel was ineffective for failing to object to
the instructions, (5-6) the trial court erred when sentencing him, and defense counsel
was ineffective for failing to object to the errors, (7) the police failed to advise him of his
constitutional rights before interviewing him, (8) he was denied discovery materials, and
(9) the trial court erred by allowing the prosecutor to amend the dates in the charging
document. Respondent Duncan Maclaren argues in an answer to the habeas petition

that Petitioner’s claims are procedurally defaulted, not cognizable on habeas review, or
meritless.

The Court agrees that Petitioner’s claims do not warrant habeas relief.

Accordingly, the petition will be denied.
I. Background
The charges against Petitioner arose from allegations that he stole his girlfriend’s
jewelry while the two of them were living together and that he harassed the girlfriend
after she ended her relationship with him and he moved out of her home. Petitioner
was tried before a jury in Jackson County Circuit Court. The Michigan Court of Appeals
summarized the evidence at trial as follows:
Defendant telephoned the victim repeatedly and sent her scores of text
messages after she ended their relationship. The victim felt threatened by
some of defendant’s text messages, including messages in which
defendant told her he would “holler” at her; the victim believed “holler” was
defendant’s way of saying he was going to hurt her. Defendant also sent
the victim a text message in which he told her, “[c]ould put red on that
yellow sweatshirt, don't want to make a M with the people in the red truck
around. LOL. For blood and he know why, so believe it.” At the time she
received this message, the victim was wearing a yellow sweatshirt inside
her home and had not left home while wearing it. There was also a red
truck parked outside her home. The victim believed that this message
meant that defendant wanted to harm or kill her. The victim also believed
that defendant followed her when she left her home. She obtained a
personal protection order (PPO) against defendant on September 8, 2011.
Defendant continued to telephone the victim despite being present at the
hearing at which a PPO was issued that prevented him from contacting
the victim.
People v. Russell, No. 310278, 2013 WL 3239751, at *1 (Mich. Ct. App. June 27, 2013)
(unpublished).
The prosecutor maintained that Petitioner was guilty of aggravated stalking on
the basis of two different theories: (1) Petitioner violated the PPO and (2) he made a
credible threat against the complainant.

Petitioner did not testify or present any
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witnesses. His defense to the stalking charge was that the complainant never admitted
to being terrorized, frightened, intimidated, harassed, or molested, as required by the
statute. As for the larceny charge, Petitioner maintained that the prosecutor failed to
prove beyond a reasonable doubt that the jewelry in question actually existed. On
March 7, 2012, the jury found Petitioner guilty, as charged, of aggravated stalking and
larceny in a building.
The trial court sentenced Petitioner as a habitual offender to a term of two to five
years in prison for the stalking conviction and to time served (230 days) plus five years
of probation for the larceny conviction.
restitution, fines, and costs.

The court also ordered Petitioner to pay

The Michigan Court of Appeals affirmed Petitioner’s

convictions, see id., and the Michigan Supreme Court denied leave to appeal on March
28, 2014. See People v. Russell, 495 Mich. 977; 843 N.W.2d 753 (2014) (table).
On March 12, 2015, Petitioner filed his habeas petition pursuant to 28 U.S.C. §
2254. Although Respondent asserts that some of Petitioner’s claims are procedurally
defaulted, Petitioner’s claims lack substantive merit, and the Court finds it more efficient
to analyze the merits of his claims than to determine whether the claims are
procedurally defaulted.

“[F]ederal courts are not required to address a procedural-

default issue before deciding against the petitioner on the merits,” Hudson v. Jones, 351
F.3d 212, 215 (6th Cir. 2003), and a procedural-default analysis “adds nothing but
complexity to the case,” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010).
II. Standard of Review
“The statutory authority of federal courts to issue habeas corpus relief for
persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter,
562 U.S. 86, 97 (2011). “AEDPA ‘sharply limits the circumstances in which a federal
court may issue a writ of habeas corpus to a state prisoner whose claim was
“adjudicated on the merits in State court proceedings.” ’ ” Pouncy v. Palmer, 846 F.3d
144, 158 (6th Cir. 2017) (quoting Johnson v. Williams, 568 U.S. 289, __, 133 S.Ct.
1088, 1094 (2013) (quoting 28 U.S.C. § 2254(d)).
Pursuant to § 2254, the Court may not grant a state prisoner’s application for the
writ of habeas corpus unless the state court’s adjudication of the prisoner’s claims on
the merits
(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.

28 U.S.C. § 2254(d).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court
may grant the writ 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. Under the “unreasonable application”
clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court for
Part II). “[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

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clearly established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.” Id. at 411.
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court
decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam).”

Renico v. Lett, 559 U.S. 766, 773 (2010).

“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.”
Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To obtain a writ of habeas corpus from a federal court, a state prisoner must show that
the state court’s ruling on 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.” Id. at 103.
Further, “ ‘[i]n a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be presumed to be correct,’
unless rebutted by ‘clear and convincing evidence.’ ” Holland v. Rivard, 800 F.3d 224,
242 (6th Cir. 2015) (quoting 28 U.S.C. § 2254(e)(1)), cert. denied, 136 S. Ct. 1384
(2016). Finally, “review under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011).

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III. Analysis
A. Sufficiency of the Evidence
The first habeas claim alleges that the evidence at trial was insufficient to support
Petitioner’s conviction for aggravated stalking. Petitioner contends that he was arrested
for violating a PPO even though there was no PPO in effect at the time. Petitioner
further alleges that he made no credible threat to kill or inflict physical injury on the
complainant.

The Michigan Court of Appeals adjudicated Petitioner’s claim on the

merits and concluded that the evidence was sufficient for a rational jury to convict
Petitioner under both of the prosecutor’s theories.
1. Clearly Established Supreme Court Precedent
The Supreme Court has held “that the Due Process Clause [of the Fourteenth
Amendment to the United States Constitution] protects the accused against 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). Following
Winship, the critical inquiry on review of a challenge to the sufficiency of the evidence
supporting a criminal conviction is
whether the record evidence could reasonably support a finding of
guilt beyond a reasonable doubt. But 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. This familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.

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Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote
omitted) (emphases in original).
The Supreme Court has “made clear that Jackson claims face a high bar in
federal habeas proceedings because they are subject to two layers of judicial
deference.” Coleman v. Johnson, 566 U.S. 650, __, 132 S. Ct. 2060, 2062 (2012) (per
curiam). First, it is the responsibility of the trier of fact “ ‘to decide what conclusions
should be drawn from evidence admitted at trial.’ ” Id. (quoting Cavazos v. Smith, 565
U.S. 1, 2 (2011) (per curiam)).
And second, on habeas review, “a federal court may not overturn a state
court decision rejecting a sufficiency of the evidence challenge simply
because the federal court disagrees with the state court. The federal court
instead may do so only if the state court decision was ‘objectively
unreasonable.’ ”
Id. (quoting Smith, 565 U.S. at 2) (quoting Lett, 559 U.S. at 773).
2. State Law on Aggravated Stalking
The Jackson standard “must be applied with explicit reference to the substantive
elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324
n.16. The offense in question here is aggravated stalking, which “consists of the crime
of ‘stalking,’ M.C.L. § 750.411h(1)(d), and the presence of an aggravating circumstance
specified in M.C.L. § 750.411i(2).” People v. Threatt, 254 Mich. App. 504, 505; 657
N.W.2d 819, 820 (2002). “Stalking” is “a willful course of conduct involving repeated or
continuing harassment of another individual that would cause a reasonable person to
feel terrorized, frightened, intimidated, threatened, harassed, or molested and that
actually causes the victim to feel terrorized, frightened, intimidated, threatened,
harassed, or molested.” Mich. Comp. Laws § 750.411i(1)(e).
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The aggravated circumstances charged in this case were (1) the violation of a
restraining order or an injunction and (2) the making one or more credible threats
against the victim. Mich. Comp. Laws § 750.411i(2)(a) and (c). A “credible threat” is “a
threat to kill another individual or a threat to inflict physical injury upon another individual
that is made in any manner or in any context that causes the individual hearing or
receiving the threat to reasonably fear for his or her safety or the safety of another
individual.” Mich. Comp. Laws § 750.411i(1)(b).
3. Application
The evidence at Petitioner’s trial established that he violated the trial court’s PPO
by calling the complainant from jail after the PPO was signed. Petitioner contends that
the PPO was signed after his arrest, and, therefore, the stalking charge was invalid and
should have been dismissed. But he was arrested on September 7, 2011, on the basis
of his threatening behavior, not the PPO, which was signed on September 8, 2011.
Subsequently, on September 15, 2011, Petitioner called the complainant several times
from jail, thereby violating the PPO.
In addition, the preliminary examination was held on September 22, 2011, and at
that hearing, the state district court revoked Petitioner’s telephone privileges. Petitioner,
nevertheless, called the complainant four more times from jail after the preliminary
examination. The prosecutor subsequently amended the charging document to include
September 22, 2011, as one of the dates of the crime. In light of the amendment and
evidence that Petitioner called the complainant after the PPO was issued, the
prosecutor proved the first aggravating circumstance: violation of a restraining order.

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The evidence at trial also established that Petitioner made at least one credible
threat against the complainant. On a day when the complainant was wearing a yellow
sweatshirt, Petitioner sent the complainant a text message, which stated:
Could put red on that yellow sweatshirt. Didn’t want to make a mess with
those people in the red truck around. Laugh out Loud. For blood. And he
know (sic) why, so believe it.
(Trial Tr. Vol. III, at 42, Mar. 7, 2012).
The complainant interpreted this message as a specific threat to her safety. She
understood the reference to “red” to be blood and the message to mean that Petitioner
wanted her dead. And because she was at home at the time and had not been outside
in the yellow sweatshirt that day, she assumed that Petitioner was outside her window
when he sent the message. (Trial Tr. Vol. I, at 184-85, Mar. 5, 2012.) She notified the
police after she received the message, and, within approximately three hours, the police
obtained a search warrant and found Petitioner inside his apartment with a rifle within
fifteen or twenty feet of him. (Trial Tr. Vol. II, at 164-69, Mar. 6, 2012.)
At trial, the complainant described Petitioner’s conduct as “disturbing,” and she
stated that she was still scared. (Trial Tr. Vol. II, at 34-35, 37, Mar. 6, 2012.) Her
testimony and the testimony of other witnesses established the second aggravating
circumstance: a credible threat to injure a person, causing the person to fear for her
safety.
A rational juror could have concluded from the evidence taken in the light most
favorable to the prosecution that Petitioner made a credible threat against the
complainant and that he also violated a restraining order against him. Therefore, the
evidence was sufficient to sustain Petitioner’s conviction for aggravated stalking, and
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the state court’s adjudication of Petitioner’s claim on the merits was not contrary to, or
an unreasonable application of, Jackson. Although the state court did not cite Jackson
in its decision, it applied the same standard, and “a state court need not cite or even be
aware of [Supreme Court] cases” to avoid the pitfalls of § 2254(d)(1). Richter, 562 U.S.
at 98 (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). Petitioner, therefore,
has no right to relief on the basis of his challenge to the sufficiency of the evidence.
B. The Evidentiary Arguments
The second habeas claim contains two evidentiary arguments. First, Petitioner
argues that the trial court deprived him of his constitutional rights by permitting the
prosecutor to admit evidence that Petitioner had harassed Kathy Webb, a former
girlfriend. Second, Petitioner argues that the trial court erred by permitting testimony
about the PPO, because the actual PPO was not entered in evidence. The Michigan
Court of Appeals rejected both of Petitioner’s arguments.
1. Clearly Established Federal Law
Petitioner brings his evidentiary claims under the Michigan Rules of Evidence
and state case law. Errors in the application of state law, especially rulings regarding
the admission or exclusion of evidence, usually are not questioned in a federal habeas
corpus proceeding. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). A claim of
improperly admitted evidence is not part of a federal court’s review of a state conviction
because, “[i]n conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991). Petitioner’s claim lacks merit for the following
additional reasons.
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2. The “Other Acts” Evidence
Petitioner contends that the “other acts” evidence should not have been admitted
at trial because he did not stalk Ms. Webb, he had not seen her in over ten years, and
the jury was likely to assume from her testimony that he had a bad character. Petitioner
also contends that his relationship with Ms. Webb was not comparable to his
relationship with the complainant in the case for which he was on trial.
The Michigan Court of Appeals stated on review of this claim that the trial court
did not abuse its discretion by admitting the “other acts” evidence.

The Court of

Appeals stated that the evidence was admitted for a proper purpose:

to show

Petitioner’s intent and his common plan or scheme in stalking the complainant and his
former girlfriend. The Court of Appeals also stated that the evidence was relevant and
that any unfair prejudice caused by its admission was cured by the trial court’s limiting
instructions.
This Court finds no merit in Petitioner’s claim because “[t]here is no clearly
established Supreme Court precedent which holds that a state violates due process by
permitting propensity evidence in the form of other bad acts evidence.”

Bugh v.

Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Consequently, the trial court’s ruling that
the prosecutor could elicit “other acts” evidence from Ms. Webb was not contrary to, or
an unreasonable application of, any Supreme Court decision under 28 U.S.C. § 2254
(d)(1).
Furthermore, the prosecutor explained to the jury that he was admitting the
evidence only to show Petitioner’s pattern of behavior (how he became overly
possessive and abusive when women tried to end their relationships with him) and to
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rebut any defense that Petitioner repeatedly contacted the complainant because she
owed him money.

(Trial Tr. Vol. I, 97-99, Mar. 5, 2012.)

These were acceptable

reasons for admitting the evidence. See Mich. R. Evid. 404(b)(1) (stating that evidence
of other acts may be admissible to show motive, intent, or a system of doing an act).
The trial court, moreover, instructed the jurors on the proper use of the evidence.
Before Ms. Webb testified, the trial court charged the jurors not to conclude from
evidence of Petitioner’s conduct toward Ms. Webb that he had a propensity to commit
these types of acts. The court stated that the jurors could use the evidence only for
relevant purposes, such as demonstrating a particular behavior pattern or to negate
claims that Petitioner made to the police or to other individuals during the investigation.
(Trial Tr. Vol. II, at 121-22, Mar. 6, 2012.) The trial court read a similar instruction about
other “bad acts” evidence to the jury at the close of the case. (Trial Tr., Vol. III, at 66,
Mar. 7, 2012.) Given these instructions and the fact that the evidence was admissible
under state law, Petitioner’s rights to a fair trial and to due process of law were not
violated by the admission of “other acts” evidence.
3. The Alleged Violation of the Best Evidence Rule
Petitioner contends that testimony about the PPO was improper because the
PPO itself was not entered in evidence and because Michigan’s Best Evidence Rule
requires the content of a writing to be proved by the original writing. The Michigan
Court of Appeals rejected this claim because the complainant had independent
knowledge of the contents of the PPO apart from the writing and, therefore, under state
law, her testimony did not violate the rule.

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Petitioner implies that the violation of the Best Evidence Rule infringed on his
right to due process, but his claim is essentially one of state law, and “errors of state law
do not automatically become violations of due process.” Rivera v. Illinois, 556 U.S. 148,
160 (2009). A state trial court’s evidentiary error does not rise to the level of a federal
due process claim warranting habeas corpus relief unless the error was “fundamentally
unfair.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (citing McGuire, 502 U.S. at
69-70).
Here, the complainant applied for the PPO and was present at the hearing when
the state court judge ordered Petitioner not to contact her. (Trial Tr. Vol. I, at 214, 220,
Mar. 5, 2012.) Because the complainant was aware of the contents of the PPO, it was
not fundamentally unfair for her to testify about the PPO without the PPO being
admitted in evidence. Petitioner’s right to due process was not violated, and habeas
relief is not warranted on Petitioner’s evidentiary claims.
C. The Prosecutor
The third habeas claim challenges the prosecutor’s closing argument. Petitioner
contends that the prosecutor vouched for the complainant’s credibility, shifted the
burden of proof, and appealed to the jury’s sympathy. Although defense counsel did not
object to the remarks, Petitioner asserts that the failure to object amounted to ineffective
assistance.

The Michigan Court of Appeals reviewed Petitioner’s claim about the

prosecutor for “plain error” because Petitioner did not preserve his claim for appellate
review by objecting at trial.

The Court of Appeals nevertheless found no merit in

Petitioner’s claim and concluded that trial counsel was not ineffective for failing to object
to the prosecutor’s closing argument.
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1. Clearly Established Federal Law
“Claims of prosecutorial misconduct are reviewed deferentially” in a habeas case.
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004).

“[T]he touchstone of due

process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial,
not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). When
the issue is the prosecutor’s remarks during closing argument, the “clearly established
Federal law” is the Supreme Court’s decision in Darden v. Wainwright, 477 U.S. 168
(1986).

Parker v. Matthews, 567 U.S. 37, __, 132 S. Ct. 2148, 2153 (2012) (per

curiam). In Darden, the Supreme Court stated that
it “is not enough that the prosecutors’ remarks were undesirable or even
universally condemned.” Darden v. Wainwright, 699 F.2d [1031, 1036
(11th Cir. 1983)]. The relevant question is whether the prosecutors’
comments “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S.
637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Moreover, the appropriate
standard of review for such a claim on writ of habeas corpus is “the narrow
one of due process, and not the broad exercise of supervisory power.” Id.,
at 642, 94 S.Ct., at 1871.
Darden, 477 U.S. at 181; see also Leonard v. Warden, Ohio State Penitentiary, 846
F.3d 832, 852 (6th Cir. 2017) (noting that the Supreme Court’s decisions in Darden and
DeChristoforo “establish that, upon review of claims of prosecutorial misconduct in
closing arguments, the relevant question is whether the prosecutors’ comments so
infected the trial with unfairness as to make the resulting conviction a denial of due
process”) (internal quotation marks and bracket omitted).
“The prosecution necessarily has ‘wide latitude’ during closing argument to
respond to the defense’s strategies, evidence and arguments.” Bedford v. Collins, 567
F.3d 225, 233 (6th Cir. 2009) (quoting United States v. Henry, 545 F.3d 367, 377 (6th
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Cir. 2008)). The Court therefore must “analyz[e] disputed comments in the context of
the trial as a whole and recogniz[e] that inappropriate comments alone do not justify
reversal where the proceedings were ‘otherwise fair.’ ” Henry, 545 F.3d at 377 (quoting
United States v. Young, 470 U.S. 1, 11 (1985)).
Further, “[i]n deciding whether prosecutorial misconduct mandates that habeas
relief be granted, the Court must apply the harmless error standard.”

Pritchett v.

Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (citing Eberhardt v. Bordenkircher, 605 F.2d
275 (6th Cir. 1979)).

On habeas review, an error is harmless unless it had a

“‘substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)).
2. Application
The prosecutor’s disputed remark to the jury in this case reads:
I ask you to consider this evidence, consider the source, consider the fact
that there really is no opposition to this evidence, there’s nothing to
contradict its validity and its impact.
(Trial Tr. Vol. III, at 31 (Mar. 7, 2012).
Petitioner contends that this remark was an appeal to the jury’s sympathy for the
complainant and amounted to vouching for the complainant’s credibility.

Improper

vouching, however, occurs when a prosecutor expresses a personal belief in a
witness’s credibility and implies that the prosecutor has special knowledge of facts not
before the jury. United States v. Garcia, 758 F.3d 714, 723 (6th Cir. 2014) (quoting
United States v. Trujillo, 376 F.3d 593, 607 (6th Cir. 2004)). The prosecuting attorney in
Petitioner’s case did not express a personal belief in the complainant’s credibility. He
15

also did not imply that he knew something about the complainant’s credibility that was
not before the jury. And he did not incite the jurors’ passions or prejudices by appealing
to the jurors’ emotions, rather than focusing on the relevant facts, issues, and evidence.
Whether the prosecutor shifted the burden of proof is a closer question, because
his comment tended to suggest that Petitioner should have testified, produced
witnesses, or presented some evidence to refute the charges. Prosecutors may not
comment on a criminal defendant’s silence, Griffin v. California, 380 U.S. 609, 615
(1965), shift the burden of proof to the defendant, Patterson v. New York, 432 U.S. 197,
215 (1977), or suggest that the defendant has an obligation to produce evidence to
prove his innocence, Joseph v. Coyle, 469 F.3d 441, 474 (6th Cir. 2006) (quoting United
States v. Clark, 982 F.2d 965, 968-69 (6th Cir. 1993)).
Nevertheless, a prosecutor’s comments during closing arguments that the State’s
evidence was “unrefuted” and “uncontradicted” does not necessarily violate the
constitutional prohibition against commenting on the defendant’s failure to testify.
Lockett v. Ohio, 438 U.S. 586, 595 (1978). In this case, moreover, the prosecutor’s
remark was brief and isolated, and the evidence of Petitioner’s guilt was overwhelming.
Furthermore, the trial court instructed the jurors that the attorneys’ arguments were not
evidence, that the jurors should base their verdict only on the admissible evidence,
which was the testimony and exhibits, and that Petitioner did not have to testify, present
any evidence, prove his innocence, or do anything. (Trial Tr. Vol. I, at 62-63, 70, Mar. 5,
2012; Trial Tr. Vol. III, at 56-59, Mar. 7, 2012.) The court’s instructions served to correct
any improprieties in the prosecutor’s closing argument, United States v. Crosgrove, 637
F.3d 646, 664 (6th Cir. 2011), and “to dissipate any prejudice that may have been
16

caused” by the isolated remarks, United States v. Leon, 534 F.2d 667, 679 (6th Cir.
1976).
To conclude, Petitioner’s right to a fair trial was not violated by the prosecutor’s
remarks, and defense counsel was not ineffective for failing to raise a meritless issue.
Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (quoting Greer v. Mitchell, 264
F.3d 663, 676 (6th Cir. 2001)).

The Court therefore denies relief on Petitioner’s

prosecutorial-misconduct claim and the related claim about trial counsel.
D. The Jury Instructions
The fourth habeas claim alleges that the trial court failed to instruct the jury
properly on the “credible threat” element of aggravated stalking and on the word “holler.”
Petitioner contends that, if the trial court had properly instructed the jury, the jury would
have concluded that he did not threaten the complainant with death or personal injury
and, therefore, the prosecution did not prove its case beyond a reasonable doubt.
Petitioner also contends that defense counsel was ineffective for not objecting to the
jury instructions.
The Michigan Court of Appeals determined that Petitioner waived his claim about
the jury instructions by expressing satisfaction with the jury instructions as read to the
jury. The Court of Appeals rejected Petitioner’s related claim about trial counsel on the
basis that Petitioner abandoned the claim by failing to support his argument with
authority and by failing to explain how the trial court’s instructions deprived him of a fair
trial. The Court of Appeals also stated that, even if the trial court’s instruction on the
“credible threat” element was erroneous, defense counsel’s failure to object did not

17

prejudice Petitioner because there was sufficient evidence for the jury to convict him of
aggravated stalking on the alternative basis that he violated a PPO.
1. Clearly Established Federal Law
The fact that a jury instruction is incorrect under state law is not a basis for
habeas relief. McGuire, 502 U.S. at 71-72 (citing Marshall v. Lonberger, 459 U.S. 422,
438 n.6 (1983)). The only question on habeas review of jury instructions is whether the
ailing instructions infected the entire trial with such unfairness as to deprive the
petitioner of due process. Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147
(1973)). In other words, “[t]o warrant habeas relief, ‘jury instructions must not only have
been erroneous, but also, taken as a whole, so infirm that they rendered the entire trial
fundamentally unfair.’ ” Buell v. Mitchell, 274 F.3d 337, 355 (6th Cir. 2001) (quoting
Scott v. Mitchell, 209 F.3d 854, 882 (6th Cir. 2000)). “An omission, or an incomplete
instruction, is less likely to be prejudicial than a misstatement of the law.” Henderson v.
Kibbe, 431 U.S. 145, 155 (1977).
2. Application
a. The Lack of the Statutory Definition of “Credible Threat”
Petitioner contends that the trial court should have read the statutory definition of
“credible threat,” which reads:
“credible threat” means a threat to kill another individual or a threat to
inflict physical injury upon another individual that is made in any manner or
in any context that causes the individual hearing or receiving the threat to
reasonably fear for his or her safety or the safety of another individual.
Mich. Comp. Laws § 750.411i(1)(b).

18

The trial court instructed the jurors on the elements of aggravated stalking,
including the element that there had to be a credible threat against the complainant, but
the court did not define the phrase “credible threat.” (Trial Tr. Vol. III, at 64, Mar. 7,
2012.)

The prosecutor, however, stated during closing arguments that a “credible

threat” is “a realistic threat of harm to the person.” (Id. at 24.) Furthermore, even if the
trial court’s failure to read the statutory definition of “credible threat” rose to the level of a
constitutional error, there was sufficient evidence to convict Petitioner of aggravated
stalking on the prosecutor’s alternative theory: that he violated a PPO. The alleged
error, therefore, could not have a substantial and injurious effect on the jury’s verdict
and was harmless.
b. The Lack of an Instruction on “Holler”
According to the complainant, Petitioner stated in some of his messages to her
that he was going to “holler” at her. She stated that “holler” was slang and that it meant
to hurt you, check in with you, make his presence known, or make some type of contact
with you. She interpreted the comment as a threat. (Trial Tr. Vol. I, at 159-60, 200,
Mar. 5, 2012.)
Petitioner contends that the trial court should have instructed the jury on
alternative definitions of the word “holler.” The complainant, however, offered more
than one definition of the word, and her alternative definitions (to check with someone,
to make one’s presence known, or to contact someone) were not threatening.
Furthermore, any error on the part of the trial court in failing to define “holler,” was
harmless in light of other evidence that Petitioner threatened the complainant.

19

In conclusion, the trial court’s jury instructions did not render Petitioner’s trial
fundamentally unfair. It follows that trial counsel was not ineffective for failing to object
to the instructions. Therefore, Petitioner is not entitled to habeas relief on the basis of
his challenge to the jury instructions and the related claim about trial counsel.
E. The Sentence
The fifth and sixth habeas claims challenge Petitioner’s sentence.

Petitioner

alleges that the trial court erred when scoring offense variable four of the sentencing
guidelines and by sentencing him to a term of two to five years in prison for aggravated
stalking. Petitioner also alleges that defense counsel was ineffective for failing to object
to the trial court’s scoring of offense variable four and to the sentence for aggravated
stalking.
The Michigan Court of Appeals concluded that Petitioner waived his right to
appellate review of his claim about offense variable four by stating at sentencing that he
had no objection to the score. As for Petitioner’s other claims about the sentence, the
Court of Appeals determined that Petitioner did not preserve the issues for appellate
review and that Petitioner was not entitled to relief on any of those issues.

The

Michigan Court of Appeals rejected Petitioner’s claim about trial counsel because it
found no merit in Petitioner’s underlying claims about his sentence.
1. Offense Variable Four
Petitioner alleges that the trial court violated his constitutional rights by scoring
ten points for offense variable four of the state sentencing guidelines. Ten points is
appropriate if “serious psychological injury requiring professional treatment occurred to
a victim.” Mich. Comp. Laws § 777.34(1)(a). Petitioner contends that there is nothing in
20

the record to prove that the complainant suffered serious psychological injury which
required professional treatment.
This claim lacks merit, because a state court’s interpretation and application of
state sentencing laws and guidelines “is a matter of state concern only,” Howard v.
White, 76 F. App’x 52, 53 (6th Cir. 2003), and “federal habeas corpus relief does not lie
for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Although Petitioner
cites the Fifth, Sixth, Ninth, and Fourteenth Amendments to the United States
Constitution in support of his claim, he has not alleged how the scoring of offense
variable four violated his constitutional rights. His maximum sentence of five years for
aggravated stalking fell within the statutory maximum, see Mich. Comp. Laws §
750.411i(3)(a), and the severity of a sentence within the limits set by statute is not a
basis for relief in a habeas corpus proceeding. Townsend v. Burke, 334 U.S. 736, 741
(1948). “As long as the sentence remains within the statutory limits, trial courts have
historically been given wide discretion in determining ‘the type and extent of punishment
for convicted defendants.’ ”

Austin v. Jackson, 213 F.3d 298, 301 (6th Cir. 2000)

(quoting Williams v. New York, 337 U.S. 241, 245 (1949)).
Even if Petitioner’s claim were cognizable on habeas review, the complainant
apparently stated in her victim impact statement that she had “night terrors” and “panic
attacks” and was traumatized by Petitioner’s behavior. See Memorandum in Support of
Application for Writ of Habeas Corpus, at 31. This is an indication that the complainant
suffered serious psychological injury as a result of the crimes.

Petitioner himself

apologized to the complainant at his sentencing for the pain and suffering he had
caused her. (Sentencing Tr. at 13, Apr. 25, 2012.) And even though he contends that
21

no expert supported the conclusion that the complainant suffered serious psychological
injury, the statute does not require an expert opinion on the victim’s psychological injury.
The fact that the complainant may not have sought treatment also is not conclusive.
Mich. Comp. Laws § 777.34(2). The Court concludes that Petitioner’s claim about the
scoring of offense variable four lacks merit in addition to being not cognizable on
habeas review.
2. The Length of the Sentence for Aggravated Stalking
Petitioner contends that the trial court imposed an excessive sentence for
aggravated stalking. According to Petitioner, his sentence was disproportionate to the
offense and to the offender, and the trial court relied on incomplete information by failing
to consider mitigating factors, such as Petitioner’s family support, remorse, and
acceptance of responsibility.
a. Proportionality
Petitioner claims that his sentence was disproportionate, but the Michigan Court
of Appeals noted that the sentence was within the guidelines range. As such, the Court
of Appeals rejected the contention that Petitioner’s sentence was excessive. The Court
of Appeals concluded that the sentence was neither cruel, nor unusual.
The United States Supreme Court has said that the Eighth Amendment to the
United States Constitution “does not require strict proportionality between crime and
sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate'
to the crime."

Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,

concurring in part and concurring in the judgment) (quoting Solem v. Helm, 463 U.S.
277, 288 (1983)).
22

The stalking in this case occurred while the complainant was recuperating from
surgery for breast cancer. She testified that Petitioner tried to break into her home after
he moved out of the house and that her father and brother-in-law had barricaded her
doors to keep him out.

She also claimed that Petitioner’s phone calls and text

messages were so frequent that she reached the point where she could not take it
anymore. She could not eat, nor sleep, and she felt like a prisoner in her own home.
When she did leave home, she thought that Petitioner was tracking her movements,
because he would call her as soon as she pulled into her driveway. At trial, she claimed
that she was still scared. (Trial Tr. Vol. I, at 168-70, 173, 179-85, Mar. 5, 2012; Trial Tr.
Vol. II, at 19, Mar. 6, 2012.) At Petitioner’s sentencing, the complainant stated that her
cancer was nothing compared to what Petitioner had done to her (Sentencing Tr., at 15,
Apr. 25, 2012), and the trial court described Petitioner’s crime as “egregious,” because
he “terrorized [the complainant] during a very vulnerable period of her life.” (Id. at 19.)
In light of the impact that Petitioner’s crime had on the complainant, Petitioner’s
sentence of two to five years for aggravated stalking was not grossly disproportionate to
the crime. And because Petitioner had nineteen prior misdemeanor convictions (id. at
11), the sentence also was not disproportionate to the offender.
b. Mitigation Factors
Petitioner claims that the trial court failed to consider mitigating factors when
sentencing him. The Michigan Court of Appeals, however, noted that state law does not
require a trial court to consider mitigating evidence.
The United States Constitution also is not offended by a state court’s refusal to
consider mitigating factors. Lockett v. Ohio, 438 U.S. 586, 633 (1978) (Rehnquist, J.,
23

concurring in part and dissenting in part); accord Harmelin, 501 U.S. at 995 (noting that
there is no mitigation requirement “outside the capital context, because of the qualitative
difference between death and all other penalties”); United States v. Levy, 904 F.2d
1026, 1035 (6th Cir. 1990) (stating that “the Constitution does not require individualized
sentencing in non-capital cases,” and, therefore, the defendant did “not have a
constitutional right to present evidence of mitigating circumstances prior to his
sentencing”). Thus, the state court’s rejection of Petitioner’s mitigation claim was not
contrary to, or an unreasonable application of, Supreme Court precedent.
3. Defense Counsel’s Failure to Object
Petitioner asserts that defense counsel should have objected to the scoring of
offense variable four and to the trial court’s failure to consider mitigating factors. But the
sentencing claims lack merit, and “[o]itting meritless arguments is neither professionally
unreasonable nor prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013).
Therefore, defense counsel was not ineffective for failing to object to Petitioner’s
sentence.
F. Petitioner’s Statement to the Police
The seventh habeas claim alleges that Petitioner’s statement to the police was
improperly introduced in evidence because the interviewing officer did not advise him of
his constitutional rights when taking his statement. The Michigan Court of Appeals
determined that Petitioner was not in custody during the interview and, therefore, his
statement to the interviewing officer was not admitted in error.

24

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that
the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless
it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination. . . . Prior to any questioning, the
person must be warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that
he has a right to the presence of an attorney, either retained or appointed.
Id. at 444 (footnote omitted). The Supreme Court defined “custodial interrogation” as
“questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.” Id.
Detective Scott Grajewski interviewed Petitioner at the Blackman-Leoni Public
Safety Department on August 10, 2011.

He did not advise Petitioner of his

constitutional rights before questioning Petitioner, but Petitioner was not in custody at
the time. Although the interview occurred at the public safety department, Petitioner
willingly went to the public safety department at the detective’s request. (Preliminary
Examination, at 22, 25-26, Sept. 22, 2011; Trial Tr. Vol. II, at 80-81, Mar. 6, 2012.)
Petitioner left the public safety department after the interview, and he admits in his
habeas brief that he was not arrested until a few weeks later. See Memorandum in
Support of Application for Writ of Habeas Corpus, at 48.) Because Petitioner’s freedom
of movement was not restricted during the interview, he was not “in custody,” and
Miranda warnings were not required. Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
His claim lacks merit, and the state court’s rejection of the claim was not contrary to, or
an unreasonable application of, Miranda or Mathiason.

25

G. Discovery
The eighth habeas claim alleges that the trial court and prosecutor violated
Petitioner’s constitutional rights and his rights under the Michigan Court Rules by
depriving him of discovery materials that he needed to defend himself. Petitioner points
out that his attorney made several requests for discovery during the pretrial stage of his
case.
The Michigan Court of Appeals rejected Petitioner’s claim because he had no
right to discovery under state law and because he did not seek relief at trial even though
the prosecutor failed to comply with a Michigan court rule that requires timely disclosure
of information.

The Court of Appeals also rejected Petitioner’s claim that defense

counsel was ineffective for failing to request dismissal of the charges for the discovery
violations. The Court of Appeals stated that a request for dismissal on the basis of
minor discovery violations would have been meritless and that trial counsel was not
ineffective for failing to raise a meritless objection.
Like the Michigan Court of Appeals, this Court finds no merit in Petitioner’s claim
because “[t]here is no general constitutional right to discovery in a criminal case,” and
“‘the Due Process Clause has little to say regarding the amount of discovery which the
parties must be afforded. . . .’”

Weatherford v. Bursey, 429 U.S. 545, 559 (1977)

(quoting Wardius v. Oregon, 412 U.S. 470, 474 (1973)). Furthermore, the Michigan
Court of Appeals determined that Petitioner received the requested discovery items
over a month before trial, and the alleged violation of a Michigan Court Rule regarding
disclosure of information is not a basis for habeas relief. McGuire, 502 U.S. at 67–68.
To the extent that there was some delay in providing Petitioner with discovery, he has
26

not shown that he was prejudiced by the delay. The Court therefore concludes that
Petitioner’s discovery claim lacks merit and does not warrant habeas relief.
H. Amending the Criminal Information1
In his ninth and final claim, Petitioner alleges that the trial court deprived him of
his constitutional rights by allowing the prosecutor to amend the criminal information
after the preliminary examination to change the date of the charged crimes. Petitioner
contends that the trial court should have remanded the case for another preliminary
examination after the date of the crimes was amended. The Michigan Court of Appeals
stated on review of this claim that Petitioner waived appellate consideration of his claim
by withdrawing his initial objection to the amendment and expressing his approval of the
amendment.
1. Legal Framework
The Sixth Amendment to the United States Constitution guarantees a defendant
in a criminal case the right to “be informed of the nature and cause of the accusation”
against him. U.S. CONST. amend VI. Nevertheless, a charging document “which fairly
but imperfectly informs the accused of the offense for which he is to be tried does not
give rise to a constitutional issue cognizable in habeas proceedings.” Mira v. Marshall,
806 F.2d 636, 639 (6th Cir. 1986). Additionally, Michigan Court Rule 6.112(H) permits
amendments to the criminal information “before, during, or after trial . . . unless the
proposed amendment would unfairly surprise or prejudice defendant.”

Mich. Ct. R.

6.112(H). Thus,
1

In Michigan, a criminal information “advise[s] an accused of the offense with which he
is charged.” People v. Gould, 237 Mich. 156, 164; 211 N.W.2d. 346, 348 (1926).
27

[w]hen reviewing amendments to state charging documents in habeas
corpus proceedings, the federal courts focus on the questions whether the
defendant was surprised by the amendment or otherwise prejudiced in his
ability to defend himself at trial. See, e.g., Tague v. Richards, 3 F.3d 1133,
1141–42 (7th Cir.1993); Wright v. Lockhart, 854 F.2d 309, 312–13 (8th
Cir.1988).
. . .
In the absence of a “specific indication of how the amendment
prejudiced him unfairly,” [Wright, 854 F.2d at 312], a petitioner does not
establish grounds for habeas corpus relief arising from an amended
Information.
Rhea v. Jones, 622 F. Supp. 2d 562, 583–84 (W.D. Mich. 2008).
2. Application
Petitioner was arrested on September 7, 2011, and on September 8, 2011, the
state trial court entered a PPO, which prohibited Petitioner from communicating with the
complainant. On September 15, 2011, Petitioner called the complainant nine times
from jail. At the subsequent preliminary examination on September 22, 2011, the state
district court revoked Petitioner’s phone privileges due to Petitioner’s calls to the
complainant on September 15, 2011. Following the preliminary examination, Petitioner
returned to jail and called the complainant four more times.
At a subsequent pretrial hearing, the prosecutor asked the state trial court for
permission to amend the dates of the crime to include September 22, 2011.

The

prosecutor noted that aggravated stalking is a continuing offense and that Petitioner had
violated the PPO by calling the complainant from jail. Defense counsel initially objected
to the prosecutor’s request and asked the trial court to remand the case. Defense
counsel argued that the preliminary examination was conducted on the basis of different
dates for the crime and that he had received no documentation supporting the

28

prosecutor’s allegation that Petitioner called the complainant from jail on September 22,
2011.
At a later pretrial hearing on November 29, 2011, defense counsel indicated that
he had received the documentation which he previously requested, and he stated that
he did not care if the prosecution amended the dates for the crime.

The trial

commenced on March 5, 2012.
This brief summary of the pretrial stage of the case indicates that Petitioner had
adequate notice of the charges and the amended dates. He was not deprived of an
opportunity to present a defense or unfairly prejudiced by the amendment. Therefore,
Petitioner is not entitled to habeas relief. His claim is not cognizable on habeas review,
and it also lacks merit.
IV. Conclusion
Petitioner is not in custody in violation of federal law, and the state appellate
court’s rejection of his claims was not contrary to Supreme Court precedent, an
unreasonable

application

of

Supreme

Court

precedent,

or

an

unreasonable

determination of the facts. The decision clearly was not so lacking in justification that
there was an error beyond any possibility for fairminded disagreement. Accordingly, the
habeas petition is denied.
V. Certificate of Appealability
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may issue “only if the
29

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.
Reasonable jurists could not disagree with the Court’s resolution of Petitioner’s
claims, nor conclude that the issues deserve encouragement to proceed further. The
Court therefore declines to issue a certificate of appealability. Nevertheless, if Petitioner
appeals this decision, he may proceed on appeal without further authorization from this
Court because he was granted leave to proceed in forma pauperis in this Court, and an
appeal could be taken in good faith. Fed. R. App. P. 24(a)(3)(A).

s/ NANCY G. EDMUNDS
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: June 1, 2017

CERTIFICATION
I hereby certify that a copy of this order was served upon counsel/parties of
record on this 1st day of June, 2017 by Regular Mail and/or CM/ECF Notification.

s/ Carol J Bethel
Case Manager

30