Sanford v. Stewart
OPINION and ORDER re Denying 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability or Leave to Appeal In Forma Pauperis. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 2:15-CV-11171
HONORABLE SEAN F. COX
UNITED STATES DISTRICT JUDGE
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
Celita Sanford, (“Petitioner”), presently on parole supervision with the Michigan Department
of Corrections, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, through
counsel, Valerie Newman and Robert W. Stevenson, challenging her convictions for voluntary
manslaughter, Mich. Comp. Laws, § 750.321, and felony-firearm, Mich. Comp. Laws, § 750.227b.
For the reasons stated below, the petition for a writ of habeas corpus is DENIED WITH
Petitioner was originally charged with second-degree murder and felony-firearm. Following
a jury trial in the Wayne County Circuit Court, petitioner was found guilty of the lesser included
offense of voluntary manslaughter and guilty as charged of felony-firearm. This Court recites
verbatim the relevant facts regarding petitioner’s conviction from the Michigan Court of Appeals’s
opinion, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See e.g.
Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
At trial, defendant stated that she lived with the victim for six years and had dated
him for 11 years. She testified regarding the victim’s physically abusive behavior
during their relationship. Indeed, multiple witnesses spoke of the victim’s physical
abuse of defendant. According to defendant, the victim, on the basis of previous
demands made by defendant, was supposed to move out of defendant’s house on the
day of the shooting. And after the two engaged in an argument over a party that she
refused to attend, the victim became angry, resulting in defendant’s decision to pack
his clothes. As defendant walked out of the kitchen, she heard a pop and saw some
smoke from a gun. She believed that the victim had intentionally shot at her. The
victim then tossed the gun in a bedroom and started assaulting defendant. She
explained, “I said wow. I said, what the f* *k; what the—what is wrong with you?
He didn’t say what was wrong. He started fighting me. He was fighting.”
Defendant testified that the victim began pulling her hair and that they ended up in
the bedroom as the tussle developed. At some point, the victim also started to choke
defendant, which frightened her given that she had passed out the last time he choked
her. The victim then threw defendant on the ground and started looking for his gun
that he had earlier discarded in the bedroom, but defendant found it first. Defendant
claimed that she picked up the gun and started backing away from the victim, who
then lunged toward her. Defendant heard a pop and then dropped the gun as the
victim grabbed his side. Defendant later testified regarding why she shot the victim:
I shot him because I feared for my life being that he already shot once and
then when he said, where the f* *k is his gun, and I didn’t know where it was, but
when I saw him looking through the clothes and I found it first I feared for my life
and I may not be here. It’s a lot of women that didn’t get to make it.
Well, when I found the gun and I picked it up and he was coming towards me
and I’m backing back and I’m saying, no, I was scared for my life. I didn’t know
what was going to happen when he came my way being that he had already shot
I don’t want to die. I didn’t want him to die either, but I knew at that point
it was one of us. I was already scared. He had already choked me. He had already
fought me, threw me. I had no choice but to defend myself and I was very scared
and I shot the gun.
Defendant testified that the victim’s assault on her resulted in bruises to her neck,
scratches on her face, and the loss of some hair. Defendant also testified that she did
not have an opportunity or chance to retreat once the incident began to develop.
Defense counsel argued in favor of acquittal based on self-defense.
The prosecutor focused on defendant’s statements to others after the shooting, noting
her failure to describe the incident in a manner consistent with defendant’s trial
testimony. Defendant informed one police officer that the victim initially had the
gun and dropped it, causing it to discharge in a hallway, and that she then picked up
the gun but accidently dropped it, causing it to discharge, with the bullet striking the
victim. Defendant further indicated that the victim had refused to move out of her
house despite her demands. Defendant also told the officer that she had caught the
victim cheating on her, so she had nothing to say to him and wanted him out of her
home. She informed a second officer that the victim had dropped the gun, that the
gun discharged when dropped, with a bullet hitting a wall in the hallway, and that
she subsequently picked up the gun, at which point it accidently discharged and the
victim was shot. Defendant explained that she had not pointed the gun at the victim,
nor had her hand been on the trigger. An evidence technician testified that the gun
involved in the case had to be cocked before one could pull the trigger. He also
identified a bullet mark in the hallway wall of defendant’s home, which mark was
located 31 inches above the floor. In closing argument, the prosecutor suggested that
defendant shot the victim because of his cheating and because she wanted him out
of the house. The jury acquitted defendant of the charge of second-degree murder
and instead found her guilty of voluntary manslaughter.
People v. Sanford, No. 307747, 2013 WL 5338575, at *1–2 (Mich. Ct. App. Sept. 24, 2013).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 495 Mich. 936 (2014).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The United States Constitution guarantees a criminal defendant’s right to the
effective assistance of counsel. Ms. Sanford’s defense counsel was constitutionally
deficient when she failed to investigate and present an important defense, and these
deficiencies prejudiced Ms. Sanford.
II. The United States Constitution guarantees a criminal defendant’s right to the
effective assistance of counsel. Ms. Sanford’s defense counsel was constitutionally
deficient when she failed to investigate her own witness and discover that witness’
bias, and this deficiency prejudiced Ms. Sanford.
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
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
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)). The Supreme Court
has emphasized “that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or theories
supported or...could have supported, the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision” of the Supreme Court. Id.
“[I]f this standard is difficult to meet, that is because it was meant to be.” Harrington, 562
U.S. at 102. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar
federal courts from relitigating claims that have previously been rejected in the state courts, it
preserves the authority for a federal court to grant habeas relief only “in cases where there is no
possibility fairminded jurists could disagree that the state court’s decision conflicts with” the
Supreme Court’s precedents. Id. “Section 2254(d) reflects the view that habeas corpus is a ‘guard
against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Id. at 102-03 (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5
(1979))(Stevens, J., concurring in judgment)). In order to obtain habeas relief in federal court, a
state prisoner is required to show that the state court’s rejection of his or her claim “was so lacking
in justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Id. 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).
Petitioner argues that she 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. A 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 or her 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. “Strickland’s test for
prejudice is a demanding one. ‘The likelihood of a different result must be substantial, not just
conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011)(quoting Harrington, 562 U.S.
at 112). 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 standard was unreasonable. This is different from
asking whether defense counsel’s performance fell below Strickland’s standard.” Harrington, 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)).
Because of this doubly deferential standard, the Supreme Court has indicated that:
Federal habeas courts must guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
Harrington v. Richter, 562 U.S. at 105.
In addition, a reviewing court must not merely give defense counsel the benefit of the doubt,
but must also affirmatively entertain the range of possible reasons that counsel may have had for
proceeding as he or she did. Cullen v. Pinholster, 563 U.S. 170, 196 (2011). The “[R]eliance on ‘the
harsh light of hindsight’ to cast doubt on a trial that took place” over six years ago “is precisely what
Strickland and AEDPA seek to prevent.” Harrington v. Richter, 562 U.S. at 107.
Petitioner first contends that trial counsel was ineffective for failing to investigate and call
an expert on Battered Spouse Syndrome (BSS) or Battered Women’s Syndrome (BWS).
The Michigan Court of Appeals rejected petitioner’s claim at great length as follows:
In People v. Christel, 449 Mich. 578, 589; 537 NW2d 194 (1995), our Supreme
Court indicated that BWS testimony has been used in two different contexts in
criminal cases, one involving the use of such testimony to help evaluate the
credibility of a victim or complainant, which matter Christel addressed,1 and one
involving BWS testimony offered by a defendant to support a self-defense claim.
The Court observed:
In most cases, the battered woman syndrome is offered by the defendant in a case of
The Christel Court held that “expert testimony regarding the battered woman syndrome is admissible only
when it is relevant and helpful to the jury in evaluating a complainant’s credibility and the expert witness is properly
qualified.” Christel, 449 Mich. at 579–580 (footnote original).
homicide in which the defendant is claiming self-defense. As one court has
“[E]xpert scientific evidence concerning “battered-woman’s
syndrome” does not aid a jury in determining whether a defendant
had or had not behaved in a given manner on a particular occasion;
rather, the evidence enables the jury to overcome common myths or
misconceptions that a woman who had been the victim of battering
would have surely left the batterer. Thus, the evidence helps the jury
to understand the battered woman’s state of mind.” [State v.. J Q, 130
NJ 554, 574; 617 A.2d 1196 (1993).]
Although we do not express approval or disapproval of this use, we
note that our Court of Appeals recently recognized that a majority of
jurisdictions favor the admissibility of expert testimony on the issue
of the battered woman syndrome when offered as a means of
self-defense. See People v. Wilson, 194 Mich.App 599, 603; 487
NW2d 822 (1992). [Christel, 449 Mich. at 589.]
In Wilson, this Court stated that BWS testimony has been used “to explain how a
battered spouse reacts to the batterer, to explain the reasonableness of the battered
spouse’s perception that danger or great bodily harm is imminent, and also to rebut
the prosecution’s inference that the defendant could have left rather than kill the
spouse.” Wilson, 194 Mich.App at 604. In Wilson, the defendant “admit[ted]
shooting the victim while he slept, but claim[ed] she acted in self-defense following
forty-eight hours of abuse and death threats and years of battery.” Id. at 601
Here, defendant proceeded on a straightforward theory of self-defense, which, given
defendant’s testimony, was a reasonable course of action. In court, defendant
described a violent attack, wherein the victim discharged and discarded a gun, he
started fighting defendant, choking her and pulling her hair, the victim then
attempted to regain access to the weapon, he charged at defendant after she grabbed
the gun, defendant was unable to retreat, and she shot the victim. This was not a
case, assuming the truth of defendant’s version of events, in which BWS testimony
was needed to explain her reaction to the victim, to explain the reasonableness of her
perception that danger or great bodily harm was imminent, or to rebut an inference
that she could have retreated and left the scene rather than shoot the victim. A
reasonable juror would likely have concluded that defendant acted in self-defense
under the circumstances described by defendant in her trial testimony. However,
given the voluntary manslaughter verdict and the rejection of the second-degree
murder charge, and considering the instructions provided to the jury, the jurors
evidently concluded that, although defendant did not act with malice, she
intentionally shot the victim while acting in the heat of passion. See People v.
Mendoza, 468 Mich. 527, 535; 664 NW2d 685 (2003)(“to show voluntary
manslaughter, one must show that the defendant killed in the heat of passion, the
passion was caused by adequate provocation, and there was not a lapse of time
during which a reasonable person could control his passions”). We seriously
question whether the presentation of testimony on BWS would have altered or
countered the conclusion that defendant acted in the heat of passion.
As emphasized by the Supreme Court in its discussion of BWS in Christel, 449
Mich. at 592, expert testimony is generally “needed when a [person’s] actions or
responses are incomprehensible to average people.” Recently, our Supreme Court
in People v. Kowalski, 492 Mich. 106, 124; 821 NW2d 14 (2012), discussed the
appropriateness of and need for expert testimony in various instances, including
cases involving BWS:
The common theme in these cases is that certain groups of people are
known to exhibit types of behavior that are contrary to common sense
and are not within the average person’s understanding of human
behavior. In these instances, an expert’s specialized testimony may
enlighten the jury so that it can intelligently evaluate an experience
that is otherwise foreign.
Defendant’s actions would not be incomprehensible under her description of the
events that transpired and her theory of the case. If the victim attacked defendant in
the manner that she claimed, her reaction in shooting him could not be deemed as
being contrary to common sense, outside the average person’s understanding of
human behavior, or otherwise foreign. This case is not like Wilson, which involved
a defendant who shot her husband as he lay sleeping. As we view BWS in the
context of a defendant raising a self-defense claim, it would only be useful in
assisting a jury where the victim was killed under circumstances that did not
outwardly appear to present an imminent threat of great bodily harm or death. See
Wilson, 194 Mich.App at 604; see also MCL 780.972(1)(a)(“An individual ... may
use deadly force against another individual ... if ... [t]he individual honestly and
reasonably believes that the use of deadly force is necessary to prevent the imminent
death of or imminent great bodily harm to himself or herself or to another
Assuming that trial counsel did not even contemplate BWS in preparing the defense
as claimed by defendant on appeal, we cannot find, considering defendant’s account
entailing a direct physical attack immediately before the killing, that trial counsel’s
presentation of a straightforward self-defense claim, absent BWS testimony, fell
below an objective standard of reasonableness. Indeed, employing BWS under the
circumstances might have been viewed as being counterproductive on the question
of self-defense, muddying the waters and suggesting that possibly defendant only
had a “perceived inability to escape,” rather than being confronted by an actual,
inescapable, and imminent threat. Wilson, 194 Mich.App at 603–604. 2
Defendant argues that BWS testimony could have explained to the jury why she
initially told the police that the victim accidently discharged the gun, as victims of
abuse often protect the batterers and defendant thought that the victim was still alive
when she talked to police. However, defendant testified that the police officers were
inaccurate and incomplete with respect to her actual statements, which statements,
according to defendant, were more supportive of a self-defense claim. In explaining
the inconsistencies, defendant never claimed that she was attempting to protect the
victim; therefore, it was unnecessary for an expert to explain that battered women
often take steps to protect their batterers.
Defendant also asserts that BWS testimony was necessary to defeat the prosecution’s
claim that she could have retreated by simply leaving the house, as the victims of
batterers often feel that they have no choice but to kill rather than to leave their
spouse. We find that this argument would have been inconsistent with defendant’s
version of events. Had defendant argued that, consistent with BWS, she felt it
impossible to retreat based on the history of abuse, it would have somewhat negated
her stance that she did not retreat because the factual circumstances of the physical
attack entirely precluded any type of retreat. As a general observation regarding
some of defendant’s appellate arguments on BWS, the arguments are unavailing
because they do not take into consideration defendant’s account of the incident and
her explanations, and trial counsel had to build the defense theory around and
consistent with her account, not the prosecution’s theory of events.
Defendant also maintains that BWS testimony would have bolstered her credibility,
and countered the prosecution’s attack against her credibility, by explaining why she
had stayed in the relationship with the victim despite the years of abuse. The
prosecution called into question the severity and existence of past abuse because
defendant had remained with the victim, which argument was then used in turn to
call into question the self-defense theory and whether she had actually been attacked
on the day of the shooting. Additionally, defendant contends that BWS testimony
was needed to explain, in the face of testimony by defendant’s mother that she never
observed abusive behavior, that batterers take great pains to hide their abusive
conduct. Further, defendant argues that BWS testimony would have explained that
batterers often escalate their violence when victims attempt to end relationships, as
defendant tried to do in the case at bar. We do believe that there is some merit in
these arguments; however, we find them insufficient to establish the requisite
Defendant makes a lengthy argument that trial counsel’s actions cannot be viewed as being a matter of trial
strategy when counsel was allegedly completely unaware of BWS as a viable option to pursue. We believe that we
have properly framed the question as whether counsel was ineffective for failing to contemplate BWS, instead of
focusing solely on a traditional self-defense theory, taking into consideration the circumstances of the case and
defendant’s claims as to what transpired. (footnote original).
As Wilson and Christel make clear, any expert on BWS could not have testified
regarding whether defendant actually suffered from or acted pursuant to BWS and
could not have opined that she was actually battered. Christel, 449 Mich. at 591;
Wilson, 194 Mich. App at 605. Rather, the testimony would have been limited to a
description of BWS and the symptoms that manifest it. Christel, 449 Mich. at 591;
Wilson, 194 Mich.App at 605. Moreover, as opposed to defendant’s failure to call
police during episodes of past abuse, defendant’s credibility was mostly undermined
by the inconsistency between her trial testimony and her statements to others
following the shooting, along with her failure to provide relevant and important
information in her statements that was included in her trial testimony. With respect
to defendant’s mother never witnessing the abuse, we believe that the jurors on their
own were fully capable of recognizing that a batterer would try to hide his
transgressions from others. Any expert testimony on the matter would have been
inconsequential under the circumstances. We conclude likewise in regard to the
argument that batterers often escalate their violence when there is an attempt by the
woman to end a relationship.
People v. Sanford, 2013 WL 5338575, at *2–5.
The Michigan Court of Appeals’ resolution of petitioner’s claim was reasonable, precluding
habeas relief. The Supreme Court “has never required defense counsel to pursue every claim or
defense, regardless of its merit, viability, or realistic chance for success.” Knowles, 556 U.S. at 123.
Defense counsel here chose to pursue a defense of self-defense, which was partially successful, in
that it lead to petitioner’s acquittal on the second-degree murder charge, an offense carrying up to
life in prison, and her being convicted of the lesser included offense of voluntary manslaughter, for
which she is already on parole. Petitioner could not have used battered spouse syndrome as an
independent defense because “BSS is not itself a defense under Michigan law.” Seaman v.
Washington, 506 F.App’x 349, 360 (6th Cir. 2012)(citing People v. Christel, 449 Mich. at 537).
Instead, the syndrome is viewed solely as a mental condition about which an expert may testify
when “‘relevant and helpful to the jury in evaluating a [BSS] complainant’s credibility.’”Id. (quoting
Christel, 449 Mich. at 580). It was not necessary to present an expert on battered woman’s
syndrome to bolster or explain petitioner’s self-defense claim. Defense counsel’s failure to present
expert testimony concerning “battered woman’s syndrome” to support petitioner’s self-defense
claim was not ineffective assistance of counsel, because the facts related by petitioner at trial,
including the victim’s prior history of physical abuse and his violent actions at the time of the
shooting clearly supported a colorable self-defense claim. See Meeks v. Bergen, 749 F.2d 322, 328
(6th Cir. 1984). Petitioner is not entitled to relief on her first claim.
In her second claim, petitioner argues that trial counsel was ineffective for failing to
investigate the bias of Viki Pullen, one of the victim’s other girlfriends, before calling her as a
The Michigan Court of Appeals rejected petitioner’s claim as follows:
The witness at issue was an individual who previously had a long-term relationship
with the victim. The witness testified that defendant broke up that relationship, that
the victim was “a nice man,” and that he did not have an “extra violent temper.” She
denied that the victim subjected her to “a* * whippings” for 11 years, denied that she
ever informed defendant about such abuse, and the witness denied that she had
commented, outside of the courtroom, that she intended to take the stand and “lie and
cry.” Trial counsel elicited testimony to the contrary from other witnesses.
On appeal, defendant argues that the witness was biased against defendant, not
because defendant broke up the witness’s relationship with the victim, but because
the witness, on behalf of her daughter, had filed a wrongful death suit against
defendant prior to the trial, which suit arose out of the shooting. The victim was the
father of the witness’s daughter. Defendant contends that trial counsel should have
discovered the information about the civil lawsuit before trial and that the lawsuit
made the witness biased against defendant, as it was in the best interest of the
witness, for purposes of the civil suit, to have defendant found guilty in the criminal
trial. The only information in the record concerning this argument is found in the
transcript of a hearing that covered both a motion for new trial and sentencing. Trial
counsel indicated that she had just learned of the lawsuit after checking court
records, that the suit had never previously been disclosed to counsel, and that the
civil complaint had not yet been served. The trial court then cut counsel off because
the matter had not been contained in the motion for new trial, and the issue was never
On the limited record, and given that defendant herself was unaware of the suit as
she had not been served, we initially question whether trial counsel’s performance
can be deemed deficient for failing to discover the lawsuit. Defendant contends that
because wrongful death actions regularly arise out of homicide cases, and because
trial counsel was aware of the familial connections, counsel should have searched
court records before calling the witness to the stand. We find this argument a bit
strained. Moreover, it appears that trial counsel, who was quite vigorous and
thorough in representing defendant,3 was prepared for some defiance by the witness.
Trial counsel was poised to ask the witness about a domestic violence police report
she filed against the victim during their relationship, but the court excluded the
evidence. And again, counsel was able to elicit testimony contradicting the witness’s
claims. Defendant testified that the witness told her, prior to the shooting, about the
“a* * whippings” she received during the 11–year relationship and that the witness
asked defendant if she was also being abused by the victim. Another witness gave
comparable testimony and also testified about the plan to “lie and cry” that the
witness at issue had revealed outside the courtroom. Assuming trial counsel’s
performance fell below an objective standard of reasonableness, we simply cannot
find, considering the impeachment evidence and the other evidence presented by the
prosecution, that there is a reasonable probability that, but for counsel’s presumed
error, the result of the proceedings would have been different.
People v. Sanford, 2013 WL 5338575, at * 6.
As an initial matter, petitioner presented no evidence to the Michigan Court of Appeals or
to this Court to establish the existence of any civil lawsuit filed by Ms. Pullen against petitioner.
Conclusory allegations by a habeas petitioner, without any evidentiary support, do not provide a
basis for habeas relief. See, e.g., Washington v. Renico, 455 F. 3d 722, 733 (6th Cir. 2006)(bald
assertions and conclusory allegations do not provide sufficient ground to warrant requiring an
evidentiary hearing in a habeas proceeding); Workman v. Bell, 160 F.3d 276, 287 (6th Cir.
1998)(conclusory allegations of ineffective assistance of appellate counsel do not warrant habeas
In any event, petitioner cannot show that trial counsel was ineffective for calling Ms. Pullen
The prosecutor indicated at sentencing that trial counsel’s representation of defendant was the best that
he had seen in a long time. (footnote original).
as a witness. Counsel apparently had a copy of a domestic violence police report that Ms. Pullen
had filed against the victim. Counsel attempted to introduce this evidence, but the court excluded
it. Counsel’s decision to allow Ms. Pullen to testify may have been part of a strategy to obtain
favorable information from this witness. See Awkal v. Mitchell, 613 F.3d 629, 643 (6th Cir. 2010).
Finally, petitioner testified that Ms. Pullen had told her prior to the shooting about the abuse
she suffered at the hands of the victim. Defense counsel called another witness, Latonya Triplett,
who likewise testified that Ms. Pullen told petitioner and Ms. Triplett that the victim had physically
abused her. Ms. Triplett also testified that she overheard Ms. Pullen outside the courtroom inform
other persons that she planned to “lie and cry” when she was called to testify. (Tr. 10/6/11, pp. 3237, 71-72). In light of the fact that counsel presented evidence through other witnesses that Ms.
Pullen had been the victim of physical abuse at the hands of the victim and had informed petitioner
about this, petitioner was not prejudiced by counsel’s decision to call Ms. Pullen to testify without
adequately investigating her proposed testimony. See Jackson v. Calderon, 211 F.3d 1148, 1160-61
(9th Cir. 2000)(Assuming that it ordinarily falls below the Strickland level of required competence
to put a witness on the stand without interviewing the witness, defendant showed no prejudice, as
there was no reasonable probability that the jury relied on aberrant, more damaging, testimony of
the first defense witness, much less relied on it to convict when they would not otherwise have done
so, where other witnesses testified to a different version of circumstances which preceded the
murder). Petitioner is not entitled to relief on her second claim.
The Court will deny the petition for a writ of habeas corpus. 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). When a district court rejects a habeas petitioner’s constitutional claims on the
merits, the petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims to be debatable or wrong. Id. at 484.4 The Court will deny
petitioner a certificate of appealability because she has failed to make a substantial showing of the
denial of a federal constitutional right. See also Millender v. Adams, 187 F. Supp. 2d 852, 880 (E.D.
Mich. 2002). The Court further concludes that petitioner should not be granted leave to proceed in
forma pauperis on appeal, as any appeal would be frivolous. See Fed.R.App. P. 24(a).
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.
Petitioner will be DENIED leave to appeal in forma pauperis.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: June 9, 2017
“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.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 2:15-CV-11171
HONORABLE SEAN F. COX
UNITED STATES DISTRICT JUDGE
PROOF OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of record
on June 9, 2017, by electronic and/or ordinary mail.
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