Mullins v. Barrett

Filing 25

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 1 , DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LEONARD MULLINS, III,
Petitioner,
v.

Case Number 2:15-cv-11962
HONORABLE GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

KATHLEEN OLSON,
Respondent,
_____________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [1],
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
APPEAL IN FORMA PAUPERIS
On May 27, 2015, Petitioner Leonard Mullins, III filed a petition for writ of
habeas corpus with this Court pursuant to 28 U.S.C. § 2254. 1 Dkt. No. 1. There, he
challenges his convictions for operating a vehicle while under the influence of
alcoholic liquor (“OUIL”), MICH. COMP. LAWS § 257.625(1)(a), OUIL causing
serious impairment of a body function, MICH. COMP. LAWS § 257.625(5), operating
a motor vehicle without a driver’s license, MICH. COMP. LAWS § 257.904(1), and
being a fourth felony habitual offender, MICH. COMP. LAWS § 769.12. For the
reasons that follow, Mullins’s petition for writ of habeas corpus is DENIED [1].

1

Petitioner is no longer incarcerated, but is instead free on parole, according to his
Michigan Department of Corrections profile.

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—facts presumed correct on habeas review pursuant to 28 U.S.C.
§ 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant’s convictions arise from a motor vehicle accident in which
a westbound gray Ford Taurus crossed into the eastbound lanes of
Cherry Hill Road and struck an eastbound blue Ford Taurus head on.
Muoi Thi Chung, the driver of the eastbound vehicle, sustained serious
injuries, including several fractures to her leg. Stephen Vidaurri, a
Westland police officer on his way to work, observed the accident and
stopped to offer assistance. Officer Vidaurri testified that he saw a
female, Octavia Larkins, exit the passenger side rear door of the gray
Taurus, saw another female, Carmen Robinson, exit the front passenger
door of the vehicle, and then saw defendant crawling from the driver’s
seat, underneath the air bags, to the front passenger seat. Defendant then
exited the vehicle from the front and re-entered the vehicle in the rear
and sat down in the rear passenger seat. Defendant, who was heavily
intoxicated, told another officer that he had not been driving and that it
was Robinson who had been driving the vehicle. The principal issue at
trial was the identity of the driver of the vehicle.
People v. Mullins, No. 312179, 2013 WL 6481011, at *1 (Mich. Ct. App. Dec. 10,
2013) (per curiam).
This conviction was affirmed on appeal. Id., lv. den. 846 N.W.2d 564 (Mich.
2014). Petitioner then filed a writ of habeas corpus, which this Court held in
abeyance so that he could return to the state courts to exhaust additional claims.
Mullins v. Barrett, No. 15-11962, 2015 WL 4644996 (E.D. Mich. Aug. 5, 2015).
Finally, Petitioner filed a post-conviction motion for relief from judgment with the
2

trial court pursuant to M.C.R. 6.500, et. seq and that motion was unsuccessful.
People v. Mullins, No. 12-000134-01-FH (Wayne Cty. Cir. Ct., Feb. 11, 2016). The
Michigan appellate courts, too, denied Petitioner leave to appeal. People v. Mullins,
No. 334532 (Mich. Ct. App. Oct. 26, 2016), lv. den. 898 N.W.2d 594 (2017). This
Court subsequently granted Petitioner’s motion to lift the stay and to file an amended
petition. Mullins v. Olson, No. 15-11962, 2017 WL 5150882 (E.D. Mich. Nov. 7,
2017). Petitioner seeks habeas relief on the following grounds:
I. The trial court’s failure to give the jury a copy of the transcript of the
police officer’s testimony[,] despite three requests over several days[,]
resulted in an overly coercive verdict in violation of due process.
II. There was insufficient evidence that Petitioner was the driver.
III. Petitioner received ineffective assistance of trial counsel. When
counsel for Mr. Mullins submitted a motion for the trial court to appoint
an expert witness the state produced the wrong person. Trial counsel,
however, withdrew said motion without any knowledge or consent
from [Mullins], which denied him the due process of the Sixth
Amendment and to a fair trial.
IV. Petitioner received ineffective assistance of appellate counsel, who
would not raise these claims during the direct appeal because counsel
stated, the argument was without merit. Appellate counsel’s conduct
fell below prevailing norms which denied Mr. Mullins due process
under the Sixth Amendment.
V. Petitioner contends that the prosecutor was aware of the evidence
that was being withheld which denied him the full panoply of protection
afforded to criminal defendants by the Constitution. This deprived Mr.
Mullins of his due process of the Sixth Amendment and Fourteenth
Amendment.
See Dkt. No. 1, p. 8 (Pg. ID 8); see also Dkt. No. 20, p. 5 (Pg. ID 53).
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II.

STANDARD OF REVIEW

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), establishes 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.
28 U.S.C. § 2254(d).
A state court decision is contrary to Supreme Court precedent in either of two
ways. “First, a state-court decision is contrary to [Supreme Court] precedent if the
state court arrives at a conclusion opposite to that reached by [the Supreme Court]
on a question of law.” See Williams v. Taylor, 529 U.S. 362, 405–06 (2000) (citing
Green v. French, 143 F.3d 865, 869–70 (1998)). And under the second avenue, “a
state-court decision is also contrary to [Supreme Court] precedent if the state court
confronts facts that are materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to [that of the Supreme Court].” Id. (citing
Green, 143 F.3d at 869–70). An unreasonable application occurs when “a state court
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decision unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner’s case.” Id. at 409.
A federal habeas court may not “issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.” Id. at 411. “[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) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). Therefore, to obtain habeas relief in federal
court, a state prisoner is required to show that the state court’s rejection of his claim
“was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Id. at 103. A habeas petitioner should be denied relief as long as it is within the
“realm of possibility” that fair-minded jurists could find the state court decision to
be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
Petitioner’s first claim was reviewed under a plain error standard because he
failed to preserve the claim in the trial court. AEDPA deference applies to any
underlying plain-error analysis of a procedurally defaulted claim. See Stewart v.
Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017). Petitioner’s third, fourth, and fifth
claims were denied in part by the trial court on post-conviction review pursuant to
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M.C.R. 6.508(D)(3), on the grounds that Petitioner had failed to show cause and
prejudice for not raising these claims on his direct appeal. Although the state court
judge mentioned M.C.R. 6.508(D)(3), he alternatively rejected the claims on the
merits and thus AEDPA’s deferential standard of review also applies to his opinion.
See Moritz v. Lafler, 525 F. App’x. 277, 284 (6th Cir. 2013).2
III.
A.

DISCUSSION

Claim #1. Coerced verdict.

Petitioner first alleges that the trial judge coerced the jury’s verdict when he
refused the jury’s request for a transcript of Officer Vidaurri’s testimony or to have
his testimony read back to the jury.
The Michigan Court of Appeals rejected petitioner’s claim, concluding that:
The trial court advised the jury in response to its first request that a
transcript of Officer Vidaurri’s testimony was not then available and
that the jurors should rely on their collective memories to remember his
testimony, but if that did not work a transcript could be prepared but it
would not be available that day. After one of the jurors was replaced by
an alternate juror and the jury began its deliberations anew, it made
another request for Officer Vidaurri’s testimony. The court again
2

Respondent urges this Court to deny all four claims on the ground that they are
procedurally defaulted. Procedural default is not a jurisdictional bar to review of a
habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). In addition,
“federal 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) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). “Judicial economy
might counsel giving the [other] question priority, for example, if it were easily
resolvable against the habeas petitioner, whereas the procedural-bar issue involved
complicated issues of state law.” Lambrix, 520 U.S. at 525. This Court believes
that it would be easier to address the merits of the claims in this case.
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advised the jurors ‘to use you collective memories and see if that will
help you remember the testimony,’ but also added, ‘[i]f not, send us out
another note and we will prepare a transcript although it will take some
time to get done.’ On both occasions, defense counsel indicated that the
trial court’s response was acceptable to defendant.
...
[A] trial court does not abuse its discretion in responding to a request
for testimony if it does not foreclose the possibility of having the
testimony re-read at a later juncture. Contrary to what defendant argues,
the trial court’s instructions did not convey to the jury that the
possibility of receiving Officer Vidaurri’s testimony at a later juncture
was foreclosed. Rather, the trial court clearly indicated to the jurors that
if their collective memories could not enable them to remember the
testimony, a transcript could be prepared, but it would take some time.
At no time did the court foreclose the possibility of producing the
requested testimony.
Mullins, 2013 WL 6481011, at *1–2.
A defendant in a criminal case has the right to an uncoerced jury verdict.
Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). A defendant’s allegation that the
jury was improperly coerced requires a court to “consider the supplemental charge
given by the trial court ‘in its context and under all the circumstances.’ ” Id. at 237
(quoting Jenkins v. United States, 380 U.S. 445, 446 (1965)).
The Constitution does not require that a jury be provided with transcripts of
witness testimony. See Bradley v. Birkett, 192 F. App’x. 468, 477 (6th Cir. 2006).
Indeed, “Petitioner has not cited any Supreme Court decision that requires judges to
re-read testimony or to provide transcripts of testimony to jurors on request.” Friday
v. Straub, 175 F. Supp. 2d 933, 939 (E.D. Mich. 2001). A habeas petitioner’s claim
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that a state trial court violated his or her right to a fair trial by refusing to grant a jury
request for transcripts “is not cognizable in a habeas proceeding.” Spalla v. Foltz,
615 F. Supp. 224, 233–34 (E.D. Mich. 1985); see also Bradley, 192 F. App’x at 477.
Indeed, another court in this district recently denied habeas relief on an identical
claim. See McGhee v. MacLaren, No. 14-CV-14564, 2017 WL 2189442, at *2, 4
(E.D. Mich. May 18, 2017) (Parker, J.).
In the present case, the judge’s instruction to the jury was not unduly coercive
because he did not foreclose the jurors from having Officer Vidaurri’s testimony
being read back to them. Rather, the judge merely informed the jury that it would
take some time to prepare the transcript and asked the jurors to first attempt to rely
on their collective memories. Moreover, in the absence of a Supreme Court case
holding that a state trial judge must re-read witness testimony or provide transcripts
of witness testimony to jurors upon request, the Michigan Court of Appeals’
rejection of Petitioner’s 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). Petitioner, therefore, is not entitled to relief on
his first claim.
B.

Claim #2. Sufficiency of evidence.

Petitioner asserts that there was insufficient evidence to establish his identity
as the driver of the motor vehicle so as to sustain his convictions.
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The Michigan Court of Appeals rejected this claim, finding that:
Although defendant presents different scenarios in which someone else
was driving the vehicle, the jury apparently credited the testimony of
Officer Vidaurri, who testified that he saw defendant crawling from the
driver’s seat, under the air bags, and exit out the passenger side front
door. That testimony, viewed in a light most favorable to the
prosecution, permitted an inference that defendant was driving the
vehicle at the time of the accident. The jury reasonably could have
concluded that defendant would have no reason to exit the vehicle in
such a manner unless he was driving. The credibility of Officer
Vidaurri’s testimony, and the determination of what inferences could
fairly be drawn from the testimony, was for the trier of fact to resolve.
This Court will not interfere with the fact-finder’s role of determining
the weight of the evidence or the credibility of witnesses. The evidence
was sufficient to permit a reasonable jury to conclude beyond a
reasonable doubt that defendant was the operator of the vehicle
involved in the accident.
Mullins, 2013 WL 6481011, at *3 (internal citations omitted).
“[T]he Due Process Clause 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). 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,
however, does not require a court to “ask itself whether it believes that the evidence
at the trial established guilt beyond a reasonable doubt.” Woodby v. INS, 385 U.S.
276, 282 (1966). “Instead, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
9

have found the essential elements of the crime beyond a reasonable doubt.” Jackson,
443 U.S. at 319 (internal citation omitted).
“A federal habeas court may not overturn a state court decision that rejects a
sufficiency of the evidence claim merely because the federal court disagrees with
the state court’s resolution of that claim.” See Cavazos v. Smith, 565 U.S. 1, 2 (2011)
(per curiam). Rather, a federal court may grant habeas relief “only if the state court
decision was ‘objectively unreasonable.’ ” Id. (citing Renico v. Lett, 559 U.S. 766,
773 (2010)). “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, 566 U.S. 650, 656 (2012). A state court’s
determination that the evidence does not fall below that threshold is entitled to
“considerable deference under AEDPA.” Id.
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, 181 N.W.2d 655, 656 (Mich. App. Ct. 1970)). “Identity of a defendant can
be inferred through circumstantial evidence.” See Dell v. Straub, 194 F. Supp. 2d
10

629, 648 (E.D. Mich. 2002) (citing United States v. Kwong, 14 F.3d 189, 193 (2nd
Cir. 1994)).
In the present case, there was sufficient circumstantial and direct evidence for
a rational trier of fact to conclude that Petitioner was the driver of the gray Ford
Taurus. Officer Vidaurri was present when the accident occurred. He witnessed
Octavia Larkins exit the passenger side rear door of the vehicle. He also saw another
female, Carmen Robinson, exit the front passenger door of the vehicle. Officer
Vidaurri then observed Petitioner crawling from the driver’s seat, underneath the air
bags, to the front passenger seat, before exiting the vehicle from the front passenger
seat. Petitioner then re-entered the vehicle in the rear and sat down in the rear
passenger seat. Although Petitioner told another police officer that Robinson was
the driver, the jury could rationally conclude that Petitioner was the driver. The jury
could reach this conclusion because Robinson immediately exited the front
passenger door right after the accident and Petitioner was seen crawling through the
car in the above-described manner. It was reasonable for the jury to infer from
Petitioner’s placement in the vehicle and his actions at the time of the accident that
he, and not Ms. Robinson, was driving the vehicle.
Because there was sufficient circumstantial and direct evidence to establish
Petitioner’s identity as the driver of the gray Ford Taurus, the Michigan Court of

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Appeals did not unreasonably apply Jackson in rejecting Petitioner’s sufficiency of
evidence claim. See Moreland v. Bradshaw, 699 F.3d 908, 919–21 (6th Cir. 2012).
C.

Claims #3 and #4. Ineffective assistance of counsel.

Petitioner in his third claim alleges that trial counsel was ineffective for
withdrawing her motion for the appointment of an accident reconstruction expert,
Dr. Charles Funk. Although trial counsel initially filed a motion for the appointment
of this expert, she later withdrew that request. Petitioner claims that Dr. Funk would
have testified that a review of the driver and passenger airbags, along with the
vehicle’s black box, probably would have shown that a person of a certain height,
weight, and gender—all different from those of the Petitioner—was the driver.
Petitioner contends that trial counsel was ineffective for withdrawing her motion for
the appointment of Dr. Funk. In his related fourth claim, Petitioner alleges that
appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness
on his appeal of right.
A defendant is required to satisfy a two prong test to establish the denial of
the effective assistance of counsel. First, a defendant must show that counsel’s
performance was so deficient that the attorney was not functioning as the “counsel”
guaranteed by the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668,
687 (1984).

To make this showing, a defendant must overcome a strong

presumption that counsel’s behavior was within the wide range of reasonable
12

professional assistance. Id. Stated differently, a defendant must overcome the
presumption that, under the circumstances, the challenged action might be sound
trial strategy. Id at 689.
Second, a defendant must show that such performance prejudiced his or her
defense. Id at 687. To demonstrate prejudice, a defendant must establish that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id at 694. “Strickland places the burden
on the defendant, not the State, to show a ‘reasonable probability’ that the result
would have been different.” Wong v. Belmontes, 558 U.S. 15, 27 (2009). (citing
Strickland, 466 U.S. at 694). The Strickland standard also applies to claims of
ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F.3d 602, 617
(6th Cir. 2005) (citing Munson v. Kapture, 384 F.3d 310, 316 (6th Cir. 2004)).
More importantly, on habeas review, “the question ‘is not whether a federal
court believes the state court’s determination’ under Strickland ‘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
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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, 541 U.S. at 664). Pursuant to the 28 U.S.C. § 2254(d)(1) standard, a
“doubly deferential judicial review” applies to a Strickland claim brought by a
habeas petitioner. Id. (citation omitted). 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. Accordingly, “[s]urmounting Strickland’s high bar is
never an easy task.” Id. at 105 (internal quotation marks omitted) (quoting Padilla
v. Kentucky, 559 U.S. 356, 371 (2010)).
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). In her motion for the appointment of an expert, Petitioner’s
trial counsel claimed that Dr. Funk would provide this exculpatory testimony for
Petitioner. Yet counsel apparently did not attach an affidavit or proposed report
from Dr. Funk to the motion. Petitioner raised his ineffective assistance of trial
counsel claim on his post-conviction motion for relief from judgment but failed to
provide an affidavit from Dr. Funk to the state trial or appellate courts concerning
his proposed testimony. See Dkt. Nos. 21-2, 21-4, 21-5.

14

Petitioner has also not provided this Court with any affidavit from Dr. Funk
concerning his proposed testimony and willingness to testify on Petitioner’s behalf.
Conclusory allegations of ineffective assistance of counsel do not provide a basis for
habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). By failing
to present any evidence to the state courts in support of his ineffective assistance of
trial counsel claim, Petitioner is not entitled to an evidentiary hearing in this Court
on his ineffective assistance of counsel claim. See Cooey v. Coyle, 289 F. 3d 882,
893 (6th Cir. 2002) (citing 28 U.S.C. § 2254(e)(2)(A)(ii)). Petitioner had failed to
attach any offer of proof or affidavit sworn by Dr. Funk, and he has not presented—
either to the Michigan courts or to this Court—any evidence beyond his own
assertions regarding whether Dr. Funk would have testified and the content of that
testimony. In the absence of such proof, Petitioner is unable to establish that he was
prejudiced by counsel’s failure to call Dr. Funk as an expert witness to testify at trial,
so as to support the second prong of an ineffective assistance of counsel claim.
The Sixth Amendment guarantees a defendant the right to the effective
assistance of appellate counsel on an appeal of right. See Evitts v. Lucey, 469 U.S.
387, 396–97 (1985).

However, court appointed counsel does not have a

constitutional duty to raise every nonfrivolous issue demanded by a defendant.
Jones v. Barnes, 463 U.S. 745, 751 (1983). Petitioner failed to show that his trial
counsel was ineffective and is thus unable to establish that appellate counsel was
15

ineffective for failing to raise an ineffective assistance of trial counsel claim on his
direct appeal. See, e.g., Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008).
Consequently, Petitioner is not entitled to habeas relief on his third and fourth
claims.
D.

Claim #5. Exculpatory evidence.

Finally, Petitioner contends that the prosecutor withheld exculpatory
evidence. To prevail on his claim, a petitioner must show (1) that the state withheld
exculpatory evidence and (2) that “the evidence [was] material either to guilt or to
punishment irrespective of good faith or bad faith of the prosecution.” Brady v.
Maryland, 373 U.S. 83, 87 (1963). Evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. “Reasonable probability” constitutes “a
probability sufficient to undermine confidence in the outcome.” United States v.
Bagley, 473 U.S. 667, 683 (1985) (internal quotation marks omitted) (quoting
Strickland, 466 U.S. at 694). In Strickler v. Greene, the Supreme Court articulated
three essential elements of a Brady claim: (1) “[t]he evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching;
[(2)] that evidence must have been suppressed by the State, either willfully or
inadvertently; and [(3)] prejudice must have ensued.” 527 U.S. 263, 281–82 (1999).

16

“Prejudice (or materiality) in the Brady context is a difficult test to meet.” Jamison
v. Collins, 291 F. 3d 380, 388 (6th Cir. 2002) (citations omitted).
“[A habeas petitioner] bears the burden of showing the prosecution
suppressed exculpatory evidence.” See Bell v. Howes, 703 F.3d 848, 853 (6th Cir.
2012) (citing United States v. Warshak, 631 F.3d 266, 300 (6th Cir. 2010)).
Petitioner has not identified any evidence withheld by the prosecutor or how such
evidence would have proven exculpatory. “[C]onclusory allegations do not provide
a basis for habeas relief.” Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006)
(internal quotation marks omitted) (quoting Stanford v. Parker, 266 F.3d 442, 460
(6th Cir. 2001)). “Allegations that are merely conclusory or which are purely
speculative cannot support a Brady claim.” Burns v. Lafler, 328 F. Supp. 2d 711,
724 (E.D. Mich. 2004) (citing Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir.
2000)). Petitioner, therefore, is not entitled to relief on his fifth claim.
IV.

CONCLUSION

The Court will deny the petition for a writ of habeas corpus [1]. The Court
will also deny a certificate of appealability. To obtain a certificate of appealability,
a prisoner must “ma[ke] a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). And to demonstrate this denial, an applicant must “show[]
that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner, or that the issues presented
17

were adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
529 U.S. 473, 483–84 (2000) (internal quotation marks omitted) (quoting Barefoot
v. Estelle, 463 U.S. 880, 894 & n.4 (1983)). When a district court rejects a habeas
petitioner’s constitutional claims on the merits, “[a] petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Id. at 484. “The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.”
RULES GOVERNING § 2254 CASES, Rule 11(a), 28 U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because reasonable jurists would not find this Court’s
assessment of petitioner’s claims to be debatable or wrong.
Petitioner is denied leave to appeal in forma pauperis, as the appeal would be
frivolous.
V.

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 leave to appeal in forma pauperis is
DENIED.

Dated: August 15, 2018

/s/Gershwin A. Drain
18

GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 15, 2018, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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