Golden v. Burt

Filing 10

OPINION AND ORDER Denying The Petition for a Writ of Habeas Corpus; Denying a Certificate of Appealability and Denying Leave to Proceed In Forma Pauperis On Appeal Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CORDALE GOLDEN, #690450,
Petitioner,
CASE NO. 2:15-CV-12650
HONORABLE VICTORIA A. ROBERTS

v.
RANDALL HAAS,
Respondent.
________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
Michigan prisoner Cordale Golden (“Petitioner”) has filed a pro se Petition for a Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his
constitutional rights. Petitioner was convicted of armed robbery, MICH. COMP. LAWS § 750.529,
following a jury trial in the Wayne County Circuit Court and was sentenced as a fourth habitual
offender, MICH. COMP. LAWS § 769.12, to 10 to 15 years imprisonment in 2012. In his pleadings,
Petitioner raises claims concerning the scoring of the sentencing guidelines, the trial court’s flight
instruction, and the effectiveness of trial counsel in advising him not to testify at trial. For the
reasons set forth, the Court denies habeas relief. The Court also denies a certificate of appealability
and denies leave to proceed in forma pauperis on appeal.
II.

Facts and Procedural History
Petitioner’s conviction arises from the armed robbery of a woman outside a gas station in

Detroit, Michigan on April 2, 2012. The Michigan Court of Appeals described the underlying facts,

which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009), as follows:
Defendant's conviction arose out of an altercation with the complainant that began
at a gas station. The complainant testified that she and two colleagues had stopped
at the gas station, and that she had planned to go into the station to buy cigarettes. As
she walked toward the station, a man called her over to a tan car parked by the gas
pumps. Defendant was seated in the passenger seat of the tan car. He pointed a gun
at the complainant and told her to get into the car. The complainant got into the tan
car, and the car drove away. The complainant's colleagues followed in their car,
because they were unsure of complainant's reason for entering the tan car.
While the complainant was riding in the tan car, defendant demanded all of her cash,
amounting to approximately $500. Once defendant had taken the money, the driver
of the tan car slowed down. The complainant jumped out of the tan car and got into
her colleagues' car. They subsequently flagged down a police car and reported that
the complainant had been robbed.
Later, two police officers on routine patrol observed a tan car run a stop sign. The
officers activated their police lights and followed the tan car, which then picked up
speed, turned, and picked up speed again. The officers eventually stopped the tan car,
and the driver ran from the car. The officers retained defendant. Upon searching
defendant, the officers found approximately $400 in cash. The officers did not find
a gun in the car.
People v. Golden, No. 312542, 2014 WL 2795838, *1 (Mich. Ct. App. June 19, 2014)
(unpublished).
Following his conviction and sentencing, Petitioner filed a motion for resentencing and a
motion for a new trial. On the resentencing motion, the trial court ruled that Prior Record Variable
5 was incorrectly scored, ordered that the guidelines be corrected to show that Prior Record Variable
5 be scored at two points (rather than five) and that the guidelines show a range of 51 to 71 months.
But the trial court denied resentencing because the sentence was within those guidelines. People
v. Golden, No. 12-003725-01-FC (Wayne Co. Cir. Ct. Dec. 28, 2012).
On the motion for new trial, the trial court conducted an evidentiary hearing on trial

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counsel’s advice and Petitioner’s decision not to testify at trial. Trial counsel testified that Petitioner
told him that he had prior convictions involving theft and dishonesty. Because of that, trial counsel
advised Petitioner not to testify. Counsel provided additional reasons, including the fact that the
victim and witnesses’ testimony was inconsistent and could create reasonable doubt; and that
Petitioner would be admitting to a drug felony if he went forward with his proposed testimony.
Counsel also testified that Petitioner was advised that it was ultimately his decision to testify
or not, and that Petitioner decided not to testify after their discussion.
Petitioner testified that he wanted to testify at trial about the drug deal, but that he decided
not to do so after counsel advised him that his prior convictions could be used against him. The trial
court concluded that counsel was not ineffective and denied the motion for new trial. People v.
Golden, No. 12-003725-01-FC (Wayne Co. Cir. Ct. May 24, 2013).
Petitioner then filed an appeal of right with the Michigan Court of Appeals raising the same
claims presented on habeas review. The court denied relief and affirmed Petitioner’s conviction and
sentence. Id. at *1-4. Petitioner filed an application for leave to appeal with the Michigan Supreme
Court; it was denied in a standard order. People v. Golden, 497 Mich. 948, 857 N.W.2d 27 (2014).
Petitioner filed this Petition for a Writ of Habeas Corpus. It is fully briefed.
III.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28

U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering
habeas petitions brought by prisoners challenging their state court convictions. The AEDPA
provides in relevant part:
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
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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) (1996).
“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 [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)
(per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535
U.S. 685, 694 (2002).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) 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); see also Bell, 535 U.S. at 694.
However, “[i]n order for a federal court to find a state court’s application of [Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539
U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that state-court

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decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting
Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
The United States Supreme Court has held that “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. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). 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. Thus, in order to
obtain federal habeas relief, a state prisoner must show that the state court’s rejection of a 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.; see also White v. Woodall,
_ U.S. _, 134 S. Ct. 1697, 1702 (2014). Federal judges “are required to afford state courts due
respect by overturning their decisions only when there could be no reasonable dispute that they
were wrong.” Woods v. Donald, _ U.S. _, 135 S. Ct. 1372, 1376 (2015). A habeas petitioner
cannot prevail as long as it is within the “realm of possibility” that fairminded jurists could find the
state court decision to be reasonable. Woods v. Etherton, _ U.S. _, 136 S. Ct. 1149, 1152 (2016).
Section 2254(d)(1) limits a federal court’s review to a determination of whether the state
court’s decision comports with clearly established federal law as determined by the Supreme Court
at the time the state court renders its decision. Williams, 529 U.S. at 412; see also Knowles v.

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Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held on numerous
occasions that it is not ‘an unreasonable application of clearly established Federal law’ for a state
court to decline to apply a specific legal rule that has not been squarely established by this Court”)
(quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at
71-72. Section 2254(d) “does not require a state court to give reasons before its decision can be
deemed to have been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it
“does not require citation of [Supreme Court] cases–indeed, it does not even require awareness of
[Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision
contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16.
The requirements of “clearly established law” are to be determined solely by Supreme Court
precedent. Thus, “circuit precedent does not constitute ‘clearly established Federal law, as
determined by the Supreme Court,’” and “[i]t therefore cannot form the basis for habeas relief
under AEDPA.” Parker v. Matthews, 567 U.S. _, 132 S. Ct. 2148, 2155 (2012) (per curiam); see
also Lopez v. Smith, _ U.S. _ 135 S. Ct. 1, 2 (2014) (per curiam). The decisions of lower federal
courts may be useful in assessing the reasonableness of the state court’s decision. Stewart v. Erwin,
503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003));
Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal habeas review.
28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing
evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Habeas review is also “limited
to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

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IV.

Discussion
A.

Sentencing Claim

Petitioner first asserts that he is entitled to habeas relief because the trial court mis-scored
Prior Record Variable 5 of the state sentencing guidelines. Respondent contends that this claim is
not cognizable upon habeas review and that it lacks merit.
A sentence imposed within the statutory limits is generally not subject to federal habeas
review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797
(E.D. Mich. 1999). Claims which arise out of a state trial court's sentencing decision are not
cognizable upon habeas review unless the petitioner can show that the sentence imposed exceeded
the statutory limits or is wholly unauthorized by law. Lucey v. Lavigne, 185 F. Supp. 2d 741, 745
(E.D. Mich. 2001). Petitioner’s sentence is within the statutory maximum for a fourth habitual
offender. MICH. COMP. LAWS §§ 750.529, 769.12. Consequently, his sentence is insulated from
habeas review absent a federal constitutional violation.
The Michigan Court of Appeals denied relief on this claim. The court explained:
Pursuant to MCL 777.55(1), the trial court originally assessed five points against
defendant under PRV 5, MCL 777.55(1)(d). However, defendant filed a motion for
resentencing on the ground that he should have been assessed only two points under
MCL 777.55(1)(e). The trial court agreed with defendant's argument and adjusted
defendant's PRV 5 score to reflect two points, instead of five points. The court noted
that this change would decrease defendant's guidelines range from 81 to 270
months, to 51 to 170 months. The court denied defendant's motion for resentencing
and stated, “Allowing for the modified scoring of PRV 5 and change in the
guidelines of 50 to 170 months, his sentence of ten to fifteen years as a fourth
habitual offender is within the guidelines and does not merit resentencing.”
(Emphasis added.)
Defendant now argues that he is entitled to be resentenced based on the adjusted
guidelines range. Defendant does not dispute the trial court's finding that his
minimum sentence of 10 years, as a fourth habitual offender, falls within the
adjusted guidelines range of 51 to 170 months. However, resentencing is not
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required “where the trial court has clearly indicated that it would have imposed the
same sentence regardless of the scoring error and the sentence falls within the
appropriate guidelines range.”People v. Francisco, 474 Mich. 82, 89 n 8; 711 NW2d
44 (2006), citing People v. Mutchie, 468 Mich. 50, 51; 658 NW2d 154 (2003). In
the instant case, defendant's sentence is within the new guidelines range of 51 to
170 months, which reflected the adjusted PRV 5 score. Additionally, the trial court
made it clear that the same sentence—10 to 15 years as a fourth habitual
offender—would have still been imposed if the original guidelines had been set at
51 to 170 months. Thus, the trial court did not err, and defendant is not entitled to
resentencing.
Green, 2011 WL 6004067 at *11-13.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. Petitioner’s claim that the trial court erred in
scoring a prior record variable of the Michigan sentencing guidelines is not cognizable on habeas
review because it is a state law claim. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007);
Howard v. White, 76 F. App'x 52, 53 (6th Cir. 2003) (“A state court’s alleged misinterpretation of
state sentencing guidelines and crediting statutes is a matter of state concern only.”); Cheatham v.
Hosey, 12 F.3d 211, 1993 WL 478854, *2 (6th Cir. Nov. 19, 1993) (departure from state sentencing
guidelines is a state law issue which is not cognizable on federal habeas review); see also Kissner
v. Palmer, 826 F. 3d 898, 904 (6th Cir. 2016) (stating that errors in the application of state
sentencing guidelines “cannot independently support habeas relief”); McPhail v. Renico, 412 F.
Supp. 2d 647, 656 (E.D. Mich. 2006). Alleged errors in scoring a prior record or offense variable
and determining the sentencing guideline range does not justify federal habeas relief.
Moreover, to the extent that Petitioner contests the state court’s interpretation of state law
as to the scoring of Prior Record Variable 5 and the application of the sentencing guidelines, he is
not entitled to relief. It is well-settled that “a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal court sitting on habeas
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review.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th
Cir. 2002). State courts are the final arbiters of state law and federal courts will not intervene in
such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th
Cir. 1987). Habeas relief does not lie for perceived errors of state law. Estelle v. McGuire, 502
U.S. 62, 67-68 (1991). Petitioner thus fails to state a claim upon which relief may be granted.
Petitioner, however, also asserts that his sentence violates federal due process. A sentence
may violate federal due process if it is carelessly or deliberately pronounced on an extensive and
materially false foundation which the defendant had no opportunity to correct. Townsend, 334 U.S.
at 741; see also United States v. Tucker, 404 U.S. 443, 447 (1972); United States v. Sammons, 918
F.2d 592, 603 (6th Cir. 1990) (defendant must have a meaningful opportunity to rebut contested
sentencing information). To prevail on such a claim, a petitioner must show that the court relied
upon the allegedly false information. United States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984);
Draughn v Jabe, 803 F. Supp. 70, 81 (E.D. Mich. 1992). Petitioner makes no such showing. The
record reveals that he had a sentencing hearing and a resentencing motion hearing before the state
trial court with an opportunity to challenge the scoring of the guidelines. The trial court corrected
the alleged error at the resentencing motion hearing, but ruled that resentencing was not required
because the sentence was still within the guidelines. Petitioner fails to establish that the trial court
relied upon materially false or inaccurate information in imposing his sentence which he had no
opportunity to correct. He received all the process he was due. Habeas relief is not warranted on
this claim.
B.

Jury Instruction Claim

Petitioner next asserts that he is entitled to habeas relief because the trial court erred by

9

giving the jury a flight instruction; Petitioner believes that the evidence did not support the
instruction. Respondent contends that this claim lacks merit.
In order for habeas relief to be warranted on the basis of incorrect jury instructions, a
petitioner must show more than the instructions are undesirable, erroneous or universally
condemned. Rather, taken as a whole, they must be so infirm that they rendered the entire trial
fundamentally unfair. Estelle, 502 U.S. at 72; Henderson v. Kibbe, 431 U.S. 145, 154 (1977). If
an instruction is ambiguous and not necessarily erroneous, it violates the Constitution only if there
is a reasonable likelihood that the jury applied the instruction improperly. Binder v. Stegall, 198
F.3d 177, 179 (6th Cir. 1999). A jury instruction is not to be judged in artificial isolation, but must
be considered in the context of the instructions as a whole and the trial record. Jones v. United
States, 527 U.S. 373, 391 (1999); Grant v. Rivers, 920 F. Supp. 769, 784 (E.D. Mich. 1996). State
law instructional errors rarely form the basis for federal habeas relief. Estelle, 502 U.S. at 71-72;
Rashad v. Lafler, 675 F.3d 564, 569 (6th Cir. 2012).
The Michigan Court of Appeals denied relief on this claim ruling that the flight instruction
was appropriate under state law. The court explained:
Defendant argues that the trial court erred by including this instruction because
there was a lack of evidence that defendant attempted to flee from the police. “It is
well established in Michigan law that evidence of flight is admissible.” People v.
Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995). Flight evidence is probative
to “indicate consciousness of guilt.” Id. Flight can include actions such as “fleeing
the scene of the crime, leaving the jurisdiction, running from the police, resisting
arrest, and attempting to escape custody.” Id. Pursuant to M Crim JI 4 .4, the model
jury instruction for flight, the trial court instructed the jury:
Now, there's been some evidence that the Defendant tried to
runaway [sic] and talking about in the course of the police chase and
the car stops and all those kind of things, and you can decide
whether or not the Defendant was trying to runaway [sic], that's your
call, when the police was [sic] trying to stop the car. That evidence
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does not prove guilt. A person may run or hide for innocent reasons
such as panic, mistake or fear. However, a person may also run or
hide because of consciousness of guilt. You must decide whether the
evidence was true, and if true, whether it shows that the Defendant
had a guilty state of mind.
Contrary to defendant's argument, the trial court did not abuse its discretion by
determining that the facts of the case warranted a jury instruction for flight. Dobek,
274 Mich App at 82. In overruling defendant's objection on this particular jury
instruction, the court noted that the evidence presented at trial indicated that
defendant was a passenger in the tan car that fled police. Moreover, the driver of the
tan car stopped the vehicle at one point, before pulling over and running, and
defendant likely could have left the vehicle at that point. The trial court can still
instruct the jury on flight even though defendant was a passenger and not the driver,
in a vehicle that fled from police. The court properly included this instruction
because the court did not instruct the jury that defendant definitively fled the police,
but instead stated that the flight evidence was not evidence of defendant's guilt for
the charged offenses, and the jury still had to determine whether defendant actually
fled from the police. Therefore, the instruction was properly given.
Golden, 2014 WL 2795838 at *2.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. Although the United States Supreme Court
has expressed skepticism as to the probative value of evidence of flight, see Wong Sun v. United
States, 371 U.S. 471, 483 n. 10 (1963), it has recognized that such evidence may be relevant to
show consciousness of guilt. See Allen v. United States, 164 U.S. 492, 499 (1896) (“Indeed, the
law is entirely well settled that the flight of the accused is competent evidence against him as
having a tendency to establish his guilt.”); see also Illinois v. Wardlow, 528 U.S. 119, 124-25
(2000) (suspect’s unprovoked flight from police was relevant to issue of reasonable suspicion,
because “[h]eadlong flight-wherever it occurs-is the consummate act of evasion: It is not
necessarily indicative of wrongdoing, but it is certainly suggestive of such.”). Under Michigan law,
evidence of flight is relevant and admissible to prove consciousness of guilt. People v. Unger, 278

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Mich. App. 210, 226, 749 N.W.2d 272 (2008) (citing People v. Goodin, 257 Mich. App. 425, 432,
668 N.W.2d 392 (2003); People v. Coleman, 210 Mich. App. 1, 4, 532 N.W.2d 885 (1995)).
The prosecution presented evidence that Petitioner fled the scene in a car driven by one of
his cohorts and that he had the opportunity to flee the vehicle (although he did not do so). Such
evidence was sufficient to justify the flight instruction. Moreover, “[b]ecause the jury instruction
directed [the] jurors to make their own determinations as to whether [Petitioner] did in fact flee and
if so, what state of mind such flight evinced, the trial judge’s instruction regarding flight was not
so prejudicial as to render the entire trial fundamentally unfair.” Burton v. Renico, 391 F.3d 764,
778 (6th Cir. 2004). Petitioner fails to establish a due process violation. Habeas relief is not
warranted on this claim.
C.

Ineffective Assistance of Trial Counsel Claim

Lastly, Petitioner asserts that he is entitled to habeas relief because trial counsel was
ineffective for advising him not to testify at trial based upon incorrect information that he had a
prior conviction involving theft or dishonesty, such that he was denied the right to present a
defense. Respondent contends that this claim lacks merit.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant
the right to the effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984),
the United States Supreme Court set forth a two-prong test for determining whether a habeas
petitioner has received ineffective assistance of counsel. First, a petitioner must prove that
counsel’s performance was deficient. This requires a showing that counsel made errors so serious
that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. Strickland,
466 U.S. at 687. Second, the petitioner must establish that counsel’s deficient performance

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prejudiced the defense. Counsel’s errors must have been so serious that they deprived the petitioner
of a fair trial or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts that were “outside the wide
range of professionally competent assistance.” Id. at 690. The reviewing court’s scrutiny of
counsel’s performance is highly deferential. Id. at 689. There is a strong presumption that trial
counsel rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. Id. at 690. The petitioner bears the burden of overcoming the
presumption that the challenged actions were sound trial strategy.
As to the prejudice prong, a petitioner 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. A reasonable probability is one that is sufficient to undermine confidence in the
outcome of the proceeding.

Id.

“On balance, the benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
The Supreme Court has confirmed that a federal court’s consideration of ineffective
assistance of counsel claims arising from state criminal proceedings is quite limited on habeas
review due to the deference accorded trial attorneys and state appellate courts reviewing their
performance. “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and
when the two apply in tandem, review is ‘doubly’ so.” Harrington, 131 S. Ct. at 788 (internal and
end citations omitted). “When § 2254(d) applies, the question is not whether counsel’s actions

13

were reasonable. The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.
Citing the Strickland standard, the Michigan Court of Appeals denied relief on this claim.
The court explained in relevant part:
Trial counsel has a duty to conduct a reasonable investigation, and a failure to do
so can constitute ineffective assistance of counsel. People v. McGhee, 268 Mich
App 600, 626; 709 NW2d 595 (2005). Despite defendant's contention to the
contrary, his trial counsel did conduct an investigation into defendant's previous
convictions. Defendant's trial counsel testified at the evidentiary hearing that he
checked his office's “I Chat” system and was able to retrieve defendant's criminal
record—which did not include any convictions involving theft or dishonesty.
However, trial counsel was aware that the “I Chat” system was not always accurate,
so he verified the information with defendant. Defendant advised trial counsel that
he thought he had two other convictions, “RCSP Motor Vehicle, or an UDAA,” one
of which involved theft or dishonesty.
Defendant cannot show that his counsel's performance fell below an objective
standard of reasonableness, Trakhtenberg, 493 Mich. 38 at 51, because trial counsel
reasonably relied on the information defendant provided when advising defendant
not to testify. In part, trial counsel advised defendant not to testify in order to avoid
the prosecution eliciting information on those convictions during cross-examination.
Counsel's performance was not objectively unreasonable. Additionally, counsel's
advice to defendant not to testify on his own behalf has a presumption of a sound
trial strategy that defendant has failed to overcome. People v. Tommolino, 187 Mich
App 14, 17; 466 NW2d 315 (1991). This Court has established that it will not
substitute its judgment for trial counsel regarding trial strategy. Unger, 278 Mich
App at 242–243. Trial counsel properly informed defendant of his right to testify
on his own behalf and ensured, on the record, that defendant knew that the ultimate
decision to testify rested on defendant himself. Finally, trial counsel also testified
that he would have advised defendant not to testify regardless of any prior
convictions involving dishonesty or theft.
Even if trial counsel's conduct had been objectively unreasonable, defendant has not
shown that the result of his proceedings would have been different. Trakhtenberg,
493 Mich. at 51. Defendant may have decided not to testify regardless of any prior
convictions, based on his role in the incident. Moreover, the prosecution had already
presented significant testimony implicating defendant. The complainant identified
defendant as the individual who robbed her while pointing a weapon at her.
Moreover, according to one of the testifying police officers, defendant was in the
passenger seat of the tan car when the car eventually pulled over. Due to this
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evidence, defendant cannot prove that the result of his proceedings would have been
different. Defendant has not demonstrated that his trial counsel was ineffective and
has not demonstrated that the outcome of his trial would have been different but for
counsel's performance.
Golden, 2014 WL 2795838 at *3-4.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. First, Petitioner fails to establish that trial
counsel’s performance was deficient. Well-established federal law requires that defense counsel
conduct a reasonable investigation into the facts of a defendant’s case, or make a reasonable
determination that such investigation is unnecessary. Wiggins, 539 U.S. at 522-23; Strickland, 466
U.S. at 691; Stewart v Wolfenbarger, 468 F.3d 338, 356 (6th Cir. 2007); Towns v. Smith, 395 F.3d
251, 258 (6th Cir. 2005). The duty to investigate “includes the obligation to investigate all
witnesses who may have information concerning . . . guilt or innocence.” Towns, 395 F.3d at 258.
That being said, decisions as to what evidence to present and whether to call certain witnesses are
presumed to be matters of trial strategy. When making strategic decisions, counsel’s conduct must
be reasonable. Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); see also Wiggins, 539 U.S. at 52223. The failure to call witnesses or present evidence constitutes ineffective assistance of counsel
only when it deprives a defendant of a substantial defense. Chegwidden v. Kapture, 92 F. App’x
309, 311 (6th Cir. 2004); Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002).
In this case, the record indicates that Petitioner and trial counsel discussed whether
Petitioner should testify on his own behalf at trial. During this discussion, Petitioner told trial
counsel that he had prior convictions which involved theft or dishonesty and counsel advised him
that such convictions could be used to impeach his testimony. Counsel and Petitioner also
discussed the inconsistencies in the prosecution’s case which could create reasonable doubt,
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counsel’s concern that Petitioner would be admitting to a drug felony if he presented his proposed
testimony, and the fact that Petitioner would nonetheless be subject to cross-examination if he
testified. While counsel did not think it was in Petitioner’s best interest to testify, he advised
Petitioner that it was ultimately his decision. After their discussion, Petitioner decided not to testify
at trial and his decision was placed on the record. Trial counsel’s conduct and advice in this regard
was reasonable under the circumstances.
Second, Petitioner fails to establish that he was prejudiced by counsel’s conduct. Petitioner
understood that he had a right to testify and that the decision was entirely his decision, and chose
not to testify at trial. Even if counsel failed to properly investigate Petitioner’s prior convictions
or misadvised him about their impeachment value, Petitioner had other reasons not to testify such
as lack of necessity due to his reasonable doubt defense, the fact that he would be admitting to a
drug felony, and the fact that he would be subject to cross-examination, which carried inherent
risks. Moreover, trial counsel was able to cross-examine the victim and the other witnesses and
highlight inconsistencies in their testimony and to argue reasonable doubt as a defense to the
charges, even without Petitioner’s testimony. Petitioner was not deprived of a substantial defense
at trial. There is also no reasonable probability that the outcome of the trial would have been
different but for counsel’s conduct. Petitioner fails to demonstrate that trial counsel was ineffective
under the Strickland standard. Habeas relief is not warranted on this claim.
V.

Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas

relief on his claims. Accordingly, the Court DENIES and DISMISSES WITH PREJUDICE the
Petition for a Writ of Habeas Corpus.

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Before Petitioner may appeal the Court’s 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 showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). When a federal court denies relief on the merits, the substantial showing threshold
is met if the petitioner demonstrates that reasonable jurists would find the court’s assessment of the
constitutional claim debatable or wrong. 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). Petitioner makes no such showing. Accordingly, the Court DENIES a
certificate of appealability. The Court also DENIES leave to proceed in forma pauperis on appeal
as an appeal cannot be taken in good faith. See FED. R. APP. P. 24(a).
IT IS SO ORDERED.

S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: June 20, 2017

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