Clemons v. Palmer

Filing 11

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying 8 Motion to Amend/or Supplement Habeas Petition, Denying Certificate of Appealability, and Granting Permission to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (LSau) Modified on 11/1/2016 (LSau).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAMAR CLEMONS,
Petitioner,

Case No. 2:15-cv-12646
Hon. Denise Page Hood

CARMEN PALMER,
Respondent.
_______________________________/
OPINION AND ORDER 1) DENYING AMENDED PETITION FOR WRIT
OF HABEAS CORPUS, 2) DENYING CERTIFICATE OF
APPEALABILITY, AND 3) GRANTING PERMISSION TO APPEAL IN
FORMA PAUPERIS
This matter is before the Court on Petitioner Lamar Clemons’ petition for
a writ of habeas corpus filed under 28 U.S.C. § 2254. Petitioner was convicted
in the Oakland Circuit Court after a jury trial of first-degree murder. MICH.
COMP. LAWS. § 750.316. He was sentenced to life imprisonment with no
possibility of parole. The petition raises seven claims: (1) there was
insufficient evidence presented at trial to sustain Petitioner’s conviction, (2)
Petitioner’s trial counsel was ineffective for failing to request a more detailed
accessory-after-the-fact jury instruction, (3) Petitioner’s trial counsel was
ineffective for failing to move to redact references to a polygraph test from
Petitioner’s videotaped statement to police, (4) Petitioner’s trial was rendered
fundamentally unfair by the admission of gruesome photographs, (5)

Petitioner’s trial counsel was ineffective in numerous other ways, (6) the
prosecutor committed misconduct during closing arguments, and (7) Petitioner
was denied his right to be present when witnesses testified against his codefendant outside his presence.
The Court finds that Petitioner’s claims are without merit. Therefore, the
petition will be denied. The Court will also deny Petitioner a certificate of
appealability, but it will grant him permission to proceed on appeal in forma
pauperis.
I. Facts and Procedural History
Petitioner’s convictions result from the shooting death of Jonathan
Clements, who had arranged on the internet website Craigslist to purchase a
cell phone from Petitioner’s co-defendant, Alexander Lyons.
The evidence presented at trial indicated that Lyons agreed to come to
Hazel Park, where Clements lived, to sell his phone. Lyons asked Petitioner
for a ride to Hazel Park. Before driving to Hazel Park, though, evidence
suggested that Petitioner drove Lyons to another residence where Lyons
picked-up a handgun. Lyons promised to pay Petitioner $30 for the ride.
Evidence was presented indicating that Petitioner knew Lyons had
previously schemed to use Craigslist to find a robbery victim. Petitioner had

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also seen Lyons two days earlier with a gun.
The two men drove to Hazel Park in Petitioner’s car. Lyons texted
Clements to let him know they were having a hard time finding his address.
Petitioner then parked in a bank parking lot close to Clements’ address. Lyons
got out of the car and walked out of Petitioner’s line of sight.
Petitioner waited in his car, and he heard two noises that sounded like
gunfire. Lyons came running back to the car, told Petitioner he messed up,
and Petitioner drove them home. The next day Petitioner drove Lyons to a
house where Lyons returned the gun to Jeremy Baker, its owner.
The next day, police officers pulled Petitioner’s vehicle over for a traffic
stop. Lyons was a passenger in the car. A detective investigating the shooting
was called to the scene and interviewed Petitioner. Petitioner denied that he
was with Lyons on the previous day, and he said he knew nothing about the
Hazel Park shooting.
Petitioner voluntarily came to the Hazel Park police station the next day
to talk to the detective again. Petitioner told the detective he drove Lyons to
Hazel Park two days before. Lyons said he was going there to sell his cell
phone. In a second interview, however, Petitioner admitted that Lyons told him
he was planning to commit a robbery. Dkt. 6-5, at 90-91, 117. Petitioner told

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the detective that immediately prior to Lyons leaving his car to meet with the
buyer, Petitioner believed there was going to be a robbery. Id., at 117.
Petitioner told the detective that he believed Lyons was armed with a gun on
the day of the shooting, though he never saw it. Id., at 116.
Based on this evidence, Petitioner was convicted of first-degree murder
under an aiding and abetting theory and sentenced to life imprisonment.
Petitioner filed a claim of appeal in the Michigan Court of Appeals. His
appellate brief raised the following claims:
I. Where the evidence did not prove beyond a reasonable doubt
that Defendant-Appellant Lamar Clemons knew of his codefendant’s larceny plan until after he had driven the codefendant to the scene of the crime, it was legally insufficient to
prove that he aided and abetted the larceny and thus insufficient
to sustain his felony-murder conviction.
II. Counsel was ineffective for not insisting that the jury
instructions make clear that if the jury believed Mr. Clemons to
have been an accessory after the fact it should acquit him of the
murder charges.
III. Counsel was ineffective for not insisting that the interrogation
video be redacted to remove the interrogation’s questions about
Lamar Clemons’s willingness to undergo a polygraph examination
and Mr. Clemons’s equivocal responses, and for instead
expressing satisfaction with the trial judge’s inadequate cautionary
instruction.
IV. The trial judge denied Mr. Clemons a fair trial by admitting,
over his lawyer’s objection, a particularly gruesome autopsy
photograph that was far more prejudicial than probative.
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Petitioner also filed a pro se supplemental brief that raised the following
claims:
I. Defendant was denied his constitutional right to the effective
assistance of trial counsel in violation of the Sixth Amendment
counsel’s cumulative errors prejudice defendant to a fair trial.
II. Defendant was denied a fair trial because of prosecutor
misconduct during closing arguments.
III. The defendant was denied his constitutional right to be present
at all stages of his aiding and abetting trial when he was not
allowed to hear the testimony of critical witnesses that testified at
his co-defendant’s trial in violation of the Due Process Clause.
The Michigan Court of Appeals affirmed Petitioner’s conviction in an
unpublished opinion. People v. Clemons, No. 306463 (Mich. Ct. App. Dec. 26,
2013). Petitioner subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the same claims. The Michigan Supreme
Court denied the application because it was not persuaded that the questions
presented should be reviewed by the Court. People v. Clemons, 853 N.W.2d
100 (Mich. 2014).
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:

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An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court
cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from
a decision of [the Supreme] Court and nevertheless arrives at a result different
from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per
curiam), quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000). “[T]he
‘unreasonable application’ prong of the statute permits a federal habeas court
to ‘grant the writ if the state court identifies the correct governing legal
principle from [the Supreme] Court but unreasonably applies that principle to
the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)
quoting Williams, 529 U.S. at 413. “A state court’s determination that a claim
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

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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). “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. . . . As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that
the state court’s ruling on the claim being presented in federal court 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 786-87 (internal quotation omitted).
To obtain relief under § 2254(d)(2), a petitioner must show an
unreasonable determination of fact and that the resulting state court decision
was “based on” that unreasonable determination. Rice v. White, 660 F.3d 242,
250 (6th Cir. 2012). However, a federal habeas court must presume the
correctness of state court factual determinations. See 28 U.S.C. § 2254(e)(1).
A petitioner may rebut this presumption only with clear and convincing
evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

III. Analysis

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A. Sufficiency of the Evidence
Petitioner’s first claim asserts there was constitutionally insufficient
evidence presented at trial to support his conviction. Specifically, Petitioner
argues that the prosecutor did not submit sufficient evidence to prove that
Petitioner knew Lyons would commit a larceny at the time he assisted Lyons
to be guilty of first-degree felony murder under an aiding or abetting theory.
Petitioner asserts that he did not know that Lyons would commit the larceny
until after he already dropped Lyons off, and any further assistance was
performed after the crime was already complete. The Michigan Court of
Appeals rejected this claim on the merits on direct review.
A § 2254 challenge to the sufficiency of the evidence is governed by the
standard set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307,
319 (1979), which 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 standard
of review recognizes the trier of fact’s responsibility to resolve reasonable
conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Id. A habeas court is required to
examine the evidence supporting the conviction in the light most favorable to

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the prosecution with specific reference to the elements of the crime as
established by state law. Jackson, 443 U.S. at 324 n.16.
The Jackson 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.” Jackson, 443
U.S. at 319. Moreover, because both the Jackson standard and § 2254(d)
apply to Petitioner's claims, “‘the law commands deference at two levels in this
case: First, deference should be given to the trier of fact’s verdict, as
contemplated by Jackson; second, deference should be given to the Michigan
Court of Appeals’ consideration of the trier of fact’s verdict, as dictated by
AEDPA.’” Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc) (quoting
Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008)).
The Michigan Court of Appeals rejected Petitioner’s claim by reciting the
evidence presented tending to show that Petitioner knew of Lyons’ intent to
commit a larceny before he dropped Lyons off at the scene of the crime:
Detective Sergeant Craig Fowler’s testimony established
defendant Clemons’s concession that near the time that
defendant Lyons disembarked from the Camaro in Highland Park,
defendant Lyons communicated to defendant Clemons that he no
longer wanted to sell his phone. Although defendant Clemons
equivocated about his knowledge of a potential robbery during his
second police interview, he ultimately acknowledged that he
believed that defendant Lyons probably intended to rob the victim.
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Defendant Clemons also told Fowler about defendant Lyons’s
placement of a prior Craigslist advertisement to sell a Ford
Thunderbird that he did not really intend to sell, but instead
wanted to use to ensnare a robbery victim. Defendant Clemons
further conceded that, despite his belief that defendant Lyons
likely would rob the victim, defendant Clemons remained in the
Camaro awaiting defendant Lyons’s return from his encounter
with the victim, even after hearing gunshots. Reasonable
inferences arise from these circumstances that defendant
Clemons assisted defendant Lyons by acting as a getaway driver,
with knowledge that defendant Lyons intended to rob the victim.
People v. Martin, 150 Mich. App. 630, 634-635 (1986) (affirming
the defendant’s armed robbery conviction as an aider and abettor
where the evidence established reasonable inferences that he
had “knowingly acted as the driver of the ‘get-away car’”).
Accordingly, we reject defendant Clemons’s challenge to the
sufficiency of the evidence supporting his conviction.
Clemons, No. 306463, at 6.
As a matter of Michigan law, an aider or abettor must have “the same
requisite intent as a principal.” See, e.g., People v. Barrera, 451 Mich. 261,
294 (1996). To support a finding that Petitioner assisted in the commission of
Lyons’s larceny, the evidence had to show “that (1) the [larceny] was
committed by the defendant or some other person, (2) [Petitioner] performed
acts or gave encouragement that assisted the commission of the [larceny],
and (3) [Petitioner] intended the commission of the [larceny] or had knowledge
that the principal intended its commission at the time he gave aid and
encouragement.” People v. Carines, 460 Mich. 750, 757-78 (1999).

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Here, viewed most favorably to the prosecution, the evidence indicated
that Petitioner admitted he knew Lyons was armed with a gun and knew that
Lyons planned to steal the victim’s phone when Lyons exited Petitioner’s car.
Petitioner aided the commission of the crime with knowledge that Lyons would
commit a larceny by waiting in his car to drive Lyons away from the scene
after commission of the offense.
Indeed, the case presents a rather ordinary scenario of a defendant
aiding and abetting a crime by serving as the getaway driver. See, e.g.,
People v. Meriwether, 2016 Mich. App. LEXIS 1525 (Mich. Ct. App. Aug. 16,
2016) (defendant getaway driver convicted under aiding and abetting theory
when he knew of principal’s intent to commit robbery); People v. Anderson,
2015 Mich. App. LEXIS 2270, at 5-6 (Mich. Ct. App. Dec. 8, 2015) (same);
People v. Brown, 2015 Mich. App. LEXIS 762, 5-6 (Mich. Ct. App. Apr. 16,
2015) (same); Davis v. Lafler, 658 F.3d 525, 533 (6th Cir. 2011) (same);
Aslinger v. Curtin, 2014 U.S. Dist. LEXIS 48817, at 14-16 ( E.D. Mich. Mar.
31, 2014). The evidence presented at trial viewed through the Jackson lens,
therefore, allowed for the Michigan Court of Appeals to reasonably reject
Petitioner’s sufficiency of the evidence claim. This claim does not merit
habeas relief.

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B. Failure to Request Detailed Accessory-After-the-Fact Jury Instruction
Petitioner next argues that he was denied the effective assistance of
counsel when his trial counsel failed to ensure that the trial court gave an
accessory-after-the-fact jury instruction that adequately distinguished an
accessory after the fact from an aider or abettor. The Michigan Court of
Appeals rejected this claim on direct appeal, noting that Petitioner was not
charged with being an accessory after the fact, and finding that the jury
instructions correctly informed the jury of the applicable law. The state court
concluded that Petitioner’s counsel was therefore not ineffective for requesting
a more detailed instruction.
Under established Supreme Court law, counsel is ineffective when his
performance falls below an objective standard of reasonableness and thereby
prejudices his client. See Strickland v. Washington, 466 U.S. 668, 687-88,
691-92 (1984). To satisfy the performance element, a defendant must point
to some action “outside the wide range of professionally competent
assistance.” Id. at 690. To satisfy the prejudice element, “[t]he 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.”
Id. at 694.

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On habeas review, a federal court must apply a doubly deferential
standard of review: “[T]he question [under § 2254(d)] is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington
v. Richter, 562 U.S. 86, 105 (2011).
The state appellate court rejected Petitioner’s claim as follows:
In defendant Clemons’s principal brief on appeal, he initially
contends that trial counsel was ineffective for failing to ensure
adequate jury instruction clarifying the distinction between an
accessory after the fact and aiding or abetting the commission of
a felony murder during the commission of a larceny. Our review
of the record reveals that the trial court instructed the jury on
aiding and abetting in accordance with CJI2d 8.1 and accurately
summarized the law governing aiding and abetting. The
instructions also contained a subsequent paragraph that correctly
conveyed the content of CJI2d 8.2, the mere presence instruction,
and a paragraph that correctly defined an accessory after the fact.
CJI2d 8.6(1). Here the prosecutor did not charge defendant
Clemons with accessory after the fact, and defendant Clemons
does not challenge on appeal the prosecutor’s broad discretion to
select the charges ultimately brought against him. People v.
Nichols, 262 Mich. App. 408, 415 (2004). Furthermore, accessory
after the fact is not an inferior offense to first-degree murder, and
defendant Clemons thus had no right for his jury to hear an
instruction with respect to being an accessory after the fact. See
People v. Perry, 460 Mich. 55, 62-63 (1999) (observing that the
“common-law offense of accessory after the fact is not in the
same class or category as murder” and, therefore, “the
common-law offense of accessory after the fact is not a cognate
offense of murder”). Because defendant Clemons had no legal
right to an instruction on accessory after the fact, trial counsel’s
failure to ensure that the jury received additional instructions
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consistent with CJI2d 8.6(2) - (6) or 8.7 (outlining the distinction
“[b]etween aider and abettor and accessory after the fact”) was
not objectively unreasonable. Solmonson, 261 Mich. App. at 663.
Moreover, we perceive no potential prejudice to defendant
Clemons relating to the jury instructions because they apprised
his jury in plain terms about the legal distinction between an aider
and abettor and an accessory after the fact. Id. at 663-664.
Clemons, No. 306463, at 8-9.
This decision was reasonable in light of the record of the jury
instructions. The trial court instructed the jury that to find Petitioner guilty of
first-degree felony murder, the prosecutor must prove beyond a reasonable
doubt, among other elements, that Petitioner “had one of these states of mind.
He intended to kill, or he intended to do great bodily harm to Jonathan
Clements, or he knowingly created a very high risk of death or great bodily
harm knowing that death or such harm would be the likely results of his
actions.” Dkt. 6-7, at 52-53. The Court went on to instruct the jury that
Petitioner “must have been either committing or helping someone else commit
the crime of larceny. To help means to perform acts or give encouragement
before or during the commission of the crime, that aids or assists in its
commission.” Id., at 53 (emphasis added). The court then cautioned the jury
that “even if the Defendant knew that the alleged crime was planned or was
being committed, the mere fact that he was present when it was committed

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is not enough to prove that he assisted in committing it.” Id., at 55. The court
finally instructed the jury that “an accessory after the fact is someone who
after the crime had ended knowingly helps a felon avoid discovery, arrest,
trial, or punishment.” Id. (emphasis added). Written copies of the instructions
were provided to the jury for their deliberations.
In light of this record, the jury was adequately instructed that aiding or
abetting occurs before or during a crime, and accessory after the fact occurs
after a crime is completed. Whether the jury instruction accurately informed
the jury about the requirements of state law is an issue that is not cognizable
by this Court. See Estelle v. McGuire, 502 U.S. 62, 75 (1991); Bradshaw v.
Richey, 546 U.S. 74, 76 (2005) (“a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds
a federal court sitting in habeas review”). There is not a reasonable probability
that the result of the trial would have been different had defense counsel
asked for a more thorough instruction, because as the state appellate court
found, the jury was accurately instructed.
Accordingly, the state appellate court’s decision did not result in an
unreasonable application of the Strickland standard.

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C. Failure to Move to Redact Portions of Petitioner’s Statement to Police
Petitioner next asserts that his counsel was ineffective for failing to
move the trial court to redact the portions of his statement to police that
referred to the possibility of submitting to a polygraph examination. The
Michigan Court of Appeals rejected the claim as follows:
Defendant Clemons lastly argues in his principal brief on
appeal that trial counsel was ineffective for not sufficiently
objecting to Fowler’s references to a potential polygraph
examination when the prosecutor played defendant Clemons’s
video-recorded statement. When the recorded statement was
played for the jury, defense counsel raised objections at a bench
conference, which led the trial court to instruct the jury: “Ladies
and gentlemen, you have heard on this recording references to a
polygraph. I am instructing you that polygraph examinations are
not admissible in the State of Michigan. So whether or not a
polygraph was given is of no consequence in this matter.”
(Emphasis added). The parties agree that in the course of
defendant Clemons’s video-recorded statement, there were
several references to his potential willingness to undergo a
polygraph examination. However, the trial court’s cautionary
instruction broadly instructed the jury not to consider the
inadmissible matter whether defendant Clemons underwent a
polygraph examination, and courts presume that jurors follow the
instructions they receive. People v. Unger, 278 Mich. App. 210,
235 (2008). We conclude that defense counsel acted in a
reasonably professional manner by seeking the cautionary
instruction, and no reasonable likelihood exists that the outcome
of defendant Clemons’s trial would have differed had defense
counsel requested further instruction regarding the polygraph
examination. Solmonson, 261 Mich App at 663-664.
Clemons, No. 306463, at 8-9.

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The Michigan Court of Appeals did not unreasonably apply the
Strickland standard in rejecting this claim. Counsel’s decision to ask for a
cautionary instruction rather than request a mistrial was a matter of sound trial
strategy that cannot be second-guessed under the Strickland standard. See,
e.g., O'Donnell v. Gundy, 2007 U.S. Dist. LEXIS 99088 (W.D. Mich. Jan. 8,
2007).
Petitioner cannot establish that he was prejudiced by his counsel’s
failure to move for redaction. A trial court’s instructions to the jury generally
are presumed to have been followed. Bales v. Bell, 788 F.3d 568, 579 (6th
Cir. 2015). In order for this Court to find that Petitioner was prejudiced by his
counsel’s failure to move for redaction of his statements, it would have to
conclude that the jury used the reference to a polygraph examination against
him despite the trial court’s cautionary instructions. This the Court will not do.
Petitioner has not demonstrated any reason why the presumption that a jury
follows its instructions should not be applied to this case.
The mere reference to a polygraph examination did not render
Petitioner’s trial fundamentally unfair. The mention of a polygraph does not
run afoul clearly established Federal law. “[T]he Supreme Court has not held
that admission of testimony relating to a truth test renders a trial

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fundamentally unfair.” Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir.
2005). There was nothing inherently prejudicial about the mention of a
possible test. The jury was not told whether a test was ever administered, nor
what the results were. Rather, they were told to disregard the reference
altogether.
Accordingly, this claim does not provide a basis for granting habeas
relief.
D. Admission of Gruesome Photograph
Petitioner next argues that his trial was rendered fundamentally unfair
by the admission of gruesome photographs of the victim’s wounds. Petitioner
asserts that the photographs were irrelevant to the case against him, as the
prosecutor’s theory was that he only aided Lyons. Given that he was not
alleged to have directly committed the crime, Petitioner asserts that admission
of the photographs only served to create unfair prejudice against him.
This claim must be denied because it cannot be supported by clearly
established Supreme Court law. Indeed, The Sixth Circuit repeatedly has held
that the introduction of gruesome photographs of a victim’s corpse in a murder
case does not offend the Constitution. See, e.g., Biros v. Bagley, 422 F.3d
379, 391 (6th Cir. 2005) (“The [state] court found, however, that the

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photographs were properly admitted as they demonstrated that Biros beat
Engstrom rather severely and meticulously dissected her body with two
different knives.”); Frazier v. Huffman, 343 F.3d 780, 789 (6th Cir. 2003) (“The
Ohio Supreme Court directly addressed this evidentiary issue, concluding that
the multiple photographs ‘were introduced during the coroner’s testimony to
illustrate the testimony,’ that ‘[e]ach photograph presents a different
perspective of the victim,’ and that the photographs ‘were used to illustrate’
the nature of the encounter that immediately preceded Skiba’s death.”)
(citation omitted); Cooey v. Coyle, 289 F.3d 882, 893 (6th Cir. 2002).
The photographs in this case were less inflammatory than in Biros,
where the Sixth Circuit upheld the admission of photographs depicting a
victim's severed head, severed breast, and severed body parts placed near
the victim's torso. See Biros, 422 F.3d at 391. Accordingly, Petitioner cannot
establish a due process violation arising from admission of the photographs.
E. Additional Claims of Ineffective Assistance of Counsel
Petitioner presented the state courts with additional claims of ineffective
assistance of counsel in his pro se supplemental brief that were rejected on
the merits by the Michigan Court of Appeals. These claims were also
reasonably rejected in light of the deferential Strickland standard of review.

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Petitioner claims that his counsel did not share discovery materials with
him before trial. But Petitioner did not present the state courts with any
argument as to how this alleged failure prejudiced his defense. A court may
deny a claim of ineffective assistance of counsel when it is unaccompanied
by specific allegations. “[I]issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived. It is not sufficient for a party to mention a possible argument in the
most skeletal way, leaving the court to . . . put flesh on its bones.” McPherson
v. Kelsey, 125 F.3d 989, 995-996 (6th Cir. 1997). This claim was reasonably
rejected by the state courts.
Petitioner also asserts that his counsel failed to call Lyons’ friend,
Browder, who testified before Lyons’ jury about incriminating statements
Lyons made after the crime. In the cited testimony, Browder recalled Lyons
telling him that he shot someone in Hazel Park, that he “fucked up,” and that
he tried to rob the victim. It is difficult to see how this testimony would have
benefitted Petitioner. It is not surprising that Browder did not testify that Lyons
told him about Petitioner’s involvement: he was not asked about it. The same
thing holds true for Latasha Pettas. Petitioner proffers no evidence that Lyons
made statements to her that would have benefitted Petitioner’s defense.

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A habeas petitioner’s claim that trial counsel was ineffective for failing
to call a witness cannot be based on speculation. See Keith v. Mitchell, 455
F. 3d 662, 672 (6th Cir. 2006). A petitioner must provide the substance of the
witness testimony, and here Petitioner has not done so. See Clark v. Waller,
490 F.3d 551, 557 (6th Cir. 2007); Malcum v. Burt, 276 F.Supp.2d 664, 679
(E.D. Mich. 2003). The state courts reasonably rejected this allegation.
Petitioner asserts that his counsel was ineffective for failing to object to
the admission of Lyons’ statements to a detective on the grounds that it
violated Petitioner’s rights under the Confrontation Clause. As the Michigan
Court of Appeals noted, the testimony in question consisted of preliminary
questioning that led the detective to interview Petitioner. The statements were
not offered for the truth of the matter asserted, but to explain the course of the
police investigation. Petitioner’s confrontation rights were therefore not
implicated. See, e.g., United States v. Cromer, 389 F.3d 662, 676 (6th Cir.
2004) (“Because the statements were not offered to prove the truth of the
matter asserted, the Confrontation Clause does not apply.”) Counsel was not
ineffective for failing to make a meritless objection. Moore v. Mitchell, 708
F.3d 760, 776 (6th Cir. 2013).
Petitioner finally asserts that his counsel should have moved to

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suppress the detective’s references to an approximate five-minute portion of
Petitioner’s statement on the grounds that the police intentionally failed to
record this portion of the interrogation.
The Michigan Court of Appeals rejected the claim as follows:
Fowler testified that the first “five minutes or so” of defendant
Clemons’s second statement were not recorded because the
officer who “was suppose[d] to turn that on . . . didn’t do so.”
Defendant Clemons has not substantiated any bad faith activity
by the police concerning the recording of his second interview.
Hoag, 460 Mich. at 6. Furthermore, defendant Clemons offers no
legal authority tending to support an argument that the failure to
record the entirety of a defendant’s statement renders the entirety
of the statement subject to exclusion. See People v. Geno, 261
Mich. App. 624, 627 (2004). We conclude that defendant has not
substantiated an objectively unreasonable deficiency in defense
counsel’s failure to file a motion to suppress the recorded
statement or object to the statement’s incompleteness. Id.
Clemons, No. 306463, at 12.
This was a reasonable basis for rejecting the claim. Again, Petitioner did
not proffer to the state courts any evidence to support his allegation of
misconduct by the police. In any event, during his cross examination of the
detective, Petitioner’s counsel repeatedly questioned the detective about the
fact that the recorded portion of Petitioner’s statement did not contain the
admission that the detective claimed Petitioner made in the non-recorded
portion. Dkt. 6-5, at 110, 111 (“If we were to play that video back, are we

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gonna hear Lamar say I knew the man was going to rob that boy?”), 112, 11617. Defense counsel’s conduct in challenging the detective’s testimony was
not deficient, and the state court therefore reasonably rejected this claim.
F. Prosecutorial Misconduct
Petitioner’s next claim asserts that the prosecutor committed acts of
misconduct that rendered his trial unfair. He argues that the prosecutor
appealed to the sympathy of the jury, made statements that were not
supported by the evidence, improperly referred to Lyons’ prior bad acts as
indicating Petitioner’s knowledge of Lyons’ intent, and expressed a personal
belief in Petitioner’s guilt.
“Claims of prosecutorial misconduct are reviewed deferentially on
habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing
Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper
comments will be held to violate a criminal defendant’s constitutional rights
only if they “‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181
(1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
Prosecutorial misconduct will form the basis for habeas relief only if the
conduct was so egregious as to render the entire trial fundamentally unfair

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based on the totality of the circumstances. Donnelly, 416 U.S. at 643-45. In
order to obtain habeas relief on a prosecutorial misconduct claim, a habeas
petitioner must show that the state court’s rejection of his prosecutorial
misconduct claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Parker v. Matthews, 132 S. Ct. 2148, 2155, 183 L.
Ed. 2d 32 (2012)(quoting Harrington, 562 U.S. at 103).
None of Petitioner’s claims of prosecutorial misconduct merit relief. First,
Petitioner asserts that the prosecutor appealed to the sympathies of the jury.
During closing argument, in apparent reference to a comment made by
defense counsel in his opening statement, the prosecutor referred to the fact
that the victim was young, and his family would never speak to him again. The
comment was brief, and the prosecutor went on to present a theory of guilt
based on the evidence presented. The prosecutor stated,
Let me respond to one thing in opening statement which went to
my desire to have you ladies and gentlemen promise me that you
would follow the jury instructions as the Judge gives you. Not to
let sympathy impact anything you do in deliberations. The reason
I say that is because during opening statement Mr. Arnkoff
(defense counsel) stood up and said they want to treat this
Defendant the same as Mr. Lyons. I want you to follow the jury
instructions. That’s all I want you to do is follow the jury
instructions, and you will find him guilty. That’s called sympathy.
It’s not even a fact. It’s not an element. It has nothing to do with
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it. It’s sympathy.
And you hear during the course of this trial over and over
this is a capital offense. They’re going to go away forever. That’s
called sympathy as well. Don’t think about it. Don’t let that
interfere with your deliberations.
Dkt. No. 6-6, at 9-10. The prosecutor was arguing that defense counsel’s
statements during opening statements were made to appeal to the jury’s
sympathy for Petitioner—that Petitioner’s role did not rise to the same level as
Mr. Lyons’ role in the death of the victim. The prosecutor then spoke about
the victim, stating,
You want to talk about sympathy? Think about Johnathan
Clements, who on April 24th of this year would have turned
twenty. He’s not going to turn twenty-one, twenty-two, twentythree, twenty-five years later he’s going to be forty-four years old.
But guess what, none of his family members can get on the phone
and talk to him again. None of his family members can go visit
him ever again because these two individuals, Mr. Lyons and Mr.
Clemons took his life.
Dkt. No. 6-6, at 10-11.

The prosecutor then argued what knowledge

Petitioner possessed as to what Mr. Lyons was intending to do with the victim.
A prosecutor may not make statements “calculated to incite the
passions and prejudices of the jury.” United States v. Solivan, 937 F.2d 1146,
1153 (6th Cir. 1991). The Court agrees with Petitioner that the complained-of
remark was gratuitous and unnecessary. However, any potential prejudice to

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Petitioner was mitigated by the fact that the trial court instructed the jurors
about the elements of the crimes and the burden of proof, directed them not
to let sympathy or prejudice influence their decision, and explained that the
attorneys’ questions and arguments are not evidence. As stated, jurors are
presumed to follow the trial court’s instructions. Cockream v. Jones, 382 F.
App'x 479, 486 (6th Cir. 2010). This claim was not unreasonably rejected by
the Michigan Court of Appeals.
Next, Petitioner asserts that the prosecutor made arguments not
supported by the evidence. The assertion is incorrect. The prosecutor
repeatedly asserted that Petitioner knew Lyons was going to rob the victim
when he was in the car with Petitioner. This argument was supported by the
detective’s testimony that Petitioner admitted to him that he knew a robbery
would occur. While Petitioner disputes that he made this statement, the
detective testified that the statement was made.
Petitioner complains that the prosecutor argued that Lyons told him to
wait for him after the robbery without any such testimony having been
presented. Because there was evidence presented that Petitioner knew a
robbery would occur, and because the evidence indicated that Petitioner, in
fact, waited for Lyons to return, the comment was a fair inference based on

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the evidence presented. See Martin v. Foltz, 773 F.2d 711, 717 (6th Cir. 1985)
(prosecutor may argue permissible inferences from the evidence).
Petitioner argues that the prosecutor improperly referred to evidence of
Lyons’ prior bad acts. The Court discerns no impropriety in the remark.
Evidence was presented that Petitioner knew Lyons had committed or had
attempted to commit a similar crime using Craigslist in the past. That
knowledge provided for a inference, albeit not a strong one, that Petitioner
had a reason to believe that Lyons intended to do so again. This is especially
true given the circumstantial evidence presented that Petitioner drove Lyons
to a location to pick up the gun prior to driving to Hazel Park. The evidence of
Petitioner’s knowledge of the prior conduct lended support to the theory that
Petitioner discussed Lyons’ intentions with him in during the car ride. The
comment was not improper, and it was based on the evidence presented.
Finally, Petitioner asserts that the prosecutor expressed a personal
belief in his guilt. A prosecutor may not express a personal opinion concerning
the guilt of a defendant or the credibility of trial witnesses because such
personal assurances of guilt “exceeds the legitimate advocates’ role by
improperly inviting the jurors to convict the defendant on a basis other than a
neutral independent assessment of the record proof.” Caldwell v. Russell, 181

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F.3d 731, 737 (6th Cir. 1999). A review of the closing argument indicates that
the prosecutor here indicated that the jury should convict Petitioner based on
the evidence presented, and not merely because he personally believed that
Petitioner was guilty.

The prosecutor stated, “[l]ook at the evidence,

determine what you believe the facts to be. Apply what you feel the facts are
to the law that the Judge is going to get you – give you.” Dkt. 6-6, at 41. The
prosecutor referred to the elements he was required to prove Petitioner’s guilt.
Dkt. 6-6, at 20-21. The prosecutor then referred to both the direct and
circumstantial evidence presented at trial. The prosecutor stated,
Look at the – what they call is the direct evidence. That’s what
the Defendant says, I was involved in it. I did this. I did that.
Look at the circumstantial evidence, which is what I’m talking
about here in going to get the gun. Him driving Mr. Lyons there.
Him knowing that Mr. Lyons is a bad person. Waiting there while
Mr. Lyons is walking up the street.
Dkt. 6-6, at 41-42. The prosecutor argued to the jury that he had met the
elements he was required to prove under an aiding or abetting theory. Dkt.
6-6, at 41-43. The prosecutor stated, “[t]hat’s why I ask that you find him
guilty because he did assist. He knowingly assisted, and he’s as responsible
under the law as Mr. Lyons for the death of Mr. Clements.” Dkt. 6-6, at 43.
None of Petitioner’s claims of prosecutorial misconduct are meritorious,
and they were all reasonably rejected by the Michigan Court of Appeals.
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G. Petitioner’s Absence During Portion of Trial
Petitioner finally asserts that his right to be present at trial was violated
when he was absent during portions of his co-defendant’s trial. This claim is
meritless because it cannot be supported by clearly established Supreme
Court law. “[I]f there is no ‘clearly established Federal law, as determined by
the Supreme Court’ that supports a habeas petitioner's legal argument, the
argument must fail.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005)
(quoting 28 U.S.C. § 2254(d)(1)). Petitioner has not identified any authority,
let alone clearly established Supreme Court law, that creates a right to be
present at a co-defendant’s portion of a trial.
Contrary to Petitioner’s assertions, the testimony elicited during this
portion of the trial was not beneficial to Petitioner’s defense. Whether Lyons’
friend and his girlfriend would have testified that Lyons made statements to
them favorable to Petitioner is entirely speculative and unsupported by the
trial record. The claim does not merit relief.
IV. Certificate of Appealability
Before Petitioner may appeal this decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate
of appealability may issue “only if the applicant has made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When
a district court denies a habeas claim on the merits, the substantial showing
threshold is met if the petitioner demonstrates that reasonable jurists would
find the district court’s assessment of the constitutional claim debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner
satisfies this standard by demonstrating that . . . jurists could conclude the
issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this
standard, a court may not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit of the claims. Id.
at 336-37.
The Court concludes that a certificate of appealability is not warranted
in this case because reasonable jurists could not debate the Court’s
assessment of Petitioner’s claims. The Court will, however, grant permission
to appeal in forma pauperis, because an appeal would not be frivolous. 28
U.S.C. § 1915(a)(3).
V. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ
of habeas corpus is DENIED and the matter is DISMISSED WITH

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PREJUDICE.
IT IS FURTHER ORDERED that Petitioner’s Motion to Amend or
Supplement his Habeas Petition (Doc. No. 8) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that permission to appeal in forma pauperis
is GRANTED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: October 31, 2016
I hereby certify that a copy of the foregoing document was served upon
counsel of record on October 31, 2016, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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