Williams v. Campbell
Filing
25
OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and declining to issue a certificate of appealability or leave to appeal in forma pauperis. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TAJUAN MARNEZ WILLIAMS,
Case No. 2:15-CV-12914
HON. NANCY G. EDMUNDS
UNITED STATES DISTRICT COURT
Petitioner,
v.
SHERMAN CAMPBELL,
Respondent,
___________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO
APPEAL IN FORMA PAUPERIS
Tajuan Marnez Williams, (“Petitioner”), confined at the Carson City Correctional
Facility in Carson City, Michigan, filed a pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging his conviction for first-degree premeditated murder,
M.C.L.A. 750.316; felon in possession of a firearm, M.C.L.A. 750.224f; and possession of
a firearm in the commission of a felony, M.C.L.A. 750.227b. For the reasons that follow, the
petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted following a jury trial in the Genesee County Circuit Court.
This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals,
which are 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 arose out of the murder of Janien Cobbin, who had
been defendant’s girlfriend. In May 2005, Cobbin was shot and killed in her
apartment. On the night the police first investigated the murder, defendant
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and two friends drove to Cobbin’s apartment. While defendant and his friends
were there, the police requested and received permission to search their car.
The police found a handgun in the car and arrested all three men for
possession of the gun. Defendant initially waived his right to counsel and told
the police that he had attended car races on the night of the murder.
The prosecutor charged defendant with weapons counts but not with murder,
because tests showed that the gun found in the car was not the murder
weapon. Defendant pleaded guilty to certain weapons counts and was
sentenced to two years’ imprisonment. Defendant began serving his
sentence at the Newberry prison facility, where he met fellow inmate James
Hicks.
Hicks and defendant had several conversations. Hicks then contacted
authorities and indicated that defendant had made incriminating statements
about the murder. Hicks subsequently agreed to have a hidden recorder
placed in his radio. Both Hicks and defendant were transferred to the
Muskegon prison facility, where they were made cellmates. For six days their
conversations were recorded, including conversations in which Hicks asked
defendant about Cobbin. During the recorded conversations, defendant
indicated that he had killed Cobbin. The prosecutor subsequently charged
defendant with the murder.
Defendant filed several pretrial motions to suppress the prison recordings.
The trial court denied the motions. Defendant also filed motions to obtain
Hicks’s prison file, but the Department of Corrections (DOC) did not produce
the file prior to trial. At trial, Hicks and the prosecutor read excerpts of the
prison recordings into evidence. Those excerpts included defendant saying,
“I blew her mother fucking head off.” The prosecutor played a portion of the
recordings for the jury and introduced the transcript of the recordings into
evidence.
The prosecution also presented expert witness Dan Harris, who testified about
using cellular telephone records to identify the location of defendant’s
telephones at the time of the murder. Defendant objected to Harris’s
testimony on the ground that the prosecution had not previously identified
Harris as an expert witness. The trial court overruled the objection, noting that
the prosecution’s mid-trial identification of Harris as a witness arose from
defendant’s objection to another witness’s proffered testimony on the issue of
cell phone location. Harris then testified that on the night of the murder,
defendant’s cell phones were in close geographic proximity to Cobbin’s
apartment. In response to Harris’s testimony, defendant presented expert
witness Manfred Schenk. Schenk stated that the call detail method used by
Harris could not identify the location of a cell phone. Schenk explained that
Harris’s method could identify the location of the cell tower that handled a
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particular call, but that there was no direct relationship between the location
of the cell tower and the location of a cell phone. Schenk opined that, absent
a global positioning chip, the sole accurate method to locate a cell phone
during a call is “triangulation”—which was not done in this case.
The prosecution later re-called Harris. Harris acknowledged that the call detail
method he used in this case could not identify the precise location of a cell
phone. Harris nonetheless testified that defendant’s cell phones could not
have been at his alibi location (car races) at the time of the murder.
People v. Williams, No. 301384, 2013 WL 5629647, at *1–2 (Mich. Ct. App. Oct. 15,
2013).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 497 Mich. 852 (2014).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Police officers illegally seized and arrested Williams without probable cause
or reasonable suspicion in violation of the Fourth Amendment, and his
subsequent statement to police and the police agent were inadmissible at trial
as the fruit of the poisonous tree.
II. Williams’s statement was obtained in violation of his rights under the Fifth,
Sixth, and Fourteenth Amendments.
III. Williams was denied a fair trial by the admission of an improper
photographic line-up conducted while he was in custody; there was no
independent basis for the in-court identification.
IV. Williams’s right to privacy and due process was violated by the
surreptitious recording of private conversations between Williams and his
jailhouse lawyer; his attorney-client privilege was also violated.
V. Incriminating statements obtained from Williams through Hicks, an agent
for police, was in violation of the attorney-client privilege and the prophylactic
rule that required police to inform Williams about the availability of counsel,
Williams was denied a fair trial where statements were introduced at trial.
VI. Williams was denied “fundamental fairness” where the trial court erred in
denying the motion for new trial where employees of the Department of
Corrections in complicity with the Flint Township Police and the prosecutor’s
office violated numerous prison policies and Williams’s Fourth Amendment
and Due Process rights when they introduced a recording device used by an
inmate to record conversations without authorization.
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VII. The state court erred reversibly in denying Williams relief pursuant to
Federal and State eavesdropping laws.
VIII. Williams was denied his constitutional rights of (a) Equal Protection; (b)
Freedom of communication and association; (c) right to be free from cruel and
unusual punishment and; (d) his right to the access of the court during pre-trial
incarceration, making admission of his statements illegal and conviction
unreliable.
IX. Williams was denied of multiple constitutional protections when the state
denied his motion to suppress/dismiss the constitutionally defective arrest
warrant.
X. The state court erred reversibly in denying Williams his motion to quash the
bind over and dismiss the information.
XI. The state court erred in denying Williams’s motion for a new trial when the
prosecutor and the trial court denied his discovery request, suppressed
material evidence, and denied due process and Sixth Amendment right to
Confrontation.
XII. The state court should have granted Williams relief where he was denied
his Sixth Amendment right to a speedy trial.
XIII. The destruction of evidence that was favorable to Williams violated his
right to confront the testimony of the State’s star prosecution witness.
XIV. The admission of evidence of highly inflammatory other acts that were
irrelevant and not probative under FRE 404(B) or any other evidence rule
denied Williams a fair trial.
XV. The surprise introduction of a voicemail recording denied Williams his
right to discovery and his right to a fair trial where the recording was not
adequately identified.
XVI. The introduction of surprise expert testimony from a “cell tower” expert
denied Williams his right to discovery and effective cross-examination; the
expert testimony was not admissible as it was not based on a recognized
science; Williams was denied effective assistance of counsel and fair trial.
XVII. Williams was deprived of effective assistance of trial counsel, trial by
impartial and unbiased jury, where the trial court appeared to be biased and
not impartial towards Williams and defense counsel.
XVIII. Williams was deprived of a fair trial through prosecutorial misconduct
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during closing arguments, where remarks were not supported by the
evidence, were intended to inflame and appeal to the passion of the jury.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of 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 decision of a state court is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question
of law or if the state court decides a case differently than the Supreme Court has on a set
of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
“unreasonable application” occurs when “a state court decision unreasonably applies the
law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas
court may not “issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11. “[A] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to
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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.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as
long as it is within the “realm of possibility” that fairminded jurists could find the state court
decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
The Court is aware that although the Michigan Court of Appeals did not explicitly
address several of the claims that petitioner raised on his appeal of right, the AEDPA’s
deferential standard nonetheless applies to these claims as well. “When a state court
rejects a federal claim without expressly addressing that claim, a federal habeas court must
presume that the federal claim was adjudicated on the merits” for purposes of invoking the
AEDPA standard of review. Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013).
Petitioner filed a petition with this Court, raising eighteen claims. The Sixth Circuit
recently observed: “When a party comes to us with nine grounds for reversing the district
court, that usually means there are none.” Fifth Third Mortgage v. Chicago Title Ins., 692
F.3d 507, 509 (6th Cir. 2012).
III. Discussion
A. Claims # 1, # 4, # 6, # 7, and # 9. The Fourth Amendment claims.
Petitioner brings a number of Fourth Amendment challenges to his conviction. In his
first claim, petitioner alleges that the police arrested him without probable cause, thus, any
subsequent statements made by petitioner to the police should have been suppressed as
the fruit of an illegal arrest. As part of his fourth claim, petitioner argues that his Fourth
Amendment right to privacy was violated when the conversations between himself and Mr.
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Hicks were secretly recorded. Petitioner repeats this claim in his sixth claim. In his seventh
claim, petitioner alleges that the secret recording of his conversations with Mr. Hicks violated
federal and state eavesdropping laws. In his ninth claim, petitioner contends that the state
trial court erred in denying his motion to suppress or dismiss the allegedly defective arrest
warrant on the murder charge.
A federal habeas review of a petitioner’s arrest or search by state police is barred
where the state has provided a full and fair opportunity to litigate an illegal arrest or a search
and seizure claim. Stone v. Powell, 428 U.S. 465, 494-95 (1976); Machacek v. Hofbauer,
213 F. 3d 947, 952 (6th Cir. 2000). For such an opportunity to have existed, the state must
have provided, in the abstract, a mechanism by which the petitioner could raise the claim,
and presentation of the claim must not have been frustrated by a failure of that mechanism.
Riley v. Gray, 674 F. 2d 522, 526 (6th Cir. 1982). The relevant inquiry is whether a habeas
petitioner had an opportunity to litigate his claims, not whether he in fact did so or even
whether the Fourth Amendment claim was correctly decided. See Wynne v. Renico, 279 F.
Supp. 2d 866, 892 (E.D. Mich. 2003); rev’d on other grds 606 F.3d 867 (6th Cir. 2010).
Indeed, under Stone, the correctness of a state court’s conclusions regarding a Fourth
Amendment claim “is simply irrelevant.” See Brown v. Berghuis, 638 F. Supp, 2d 795, 812
(E.D. Mich. 2009). Moreover, this Court does not look into the adequacy of the procedures
used to litigate petitioner’s various Fourth Amendment claims in the state courts. The Sixth
Circuit noted that “[t]he Powell ‘opportunity for full and fair consideration’ means an available
avenue for the prisoner to present his claim to the state courts, not an inquiry into the
adequacy of the procedure actually used to resolve that particular claim.” See Good v.
Berghuis, 729 F. 3d 636, 639 (6th Cir. 2013).
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In the present case, petitioner was able to present his Fourth Amendment claims to
the state trial court in his pre-trial motions to suppress and was later able to present his
Fourth Amendment claims to the Michigan appellate courts. That is sufficient to preclude
review of the claims on habeas review. Good v. Berghuis, 729 F. 3d at 640. Moreover,
because petitioner had an opportunity to challenge the admission of his statements to Hicks
as a form of illegal eavesdropping, he is not entitled to habeas relief on any claim that the
admission of this evidence violated his Fourth Amendment rights. See e.g. Crawford v.
Artuz, 165 F. Supp. 2d 627, 637 (S.D.N.Y. 2001).
B. Claims # 2, # 4, and # 5. The claims relating to petitioner’s statements to
Mr. Hicks.
The Court consolidates petitioner’s second, fourth, and fifth claims together because
they are interrelated and overlap.
In his second claim, petitioner argues that his Sixth Amendment right to counsel and
his Fifth Amendment right to remain silent were violated when Mr. Hicks tape recorded his
confessions to the murder in prison.
Petitioner first claims that his Sixth Amendment right to counsel was violated because
he had been represented by an attorney on the original weapons charges that he pleaded
guilty to and was still in the process of appealing that conviction with the assistance of
counsel at the time that Mr. Hicks initiated the conversations in which petitioner incriminated
himself.
The Sixth Amendment right to counsel “does not attach until a prosecution is
commenced, that is, at or after the initiation of adversary judicial criminal
proceedings-whether by way of formal charge, preliminary hearing, indictment, information,
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or arraignment.” Texas v. Cobb, 532 U.S. 162, 167-68 (2001)(quoting McNeil v. Wisconsin,
501 U.S. 171, 175 (1991)(internal citations and quotation marks omitted); See also Davis
v. U.S., 512 U.S. 452, 456-57 (1994). Moreover, there is no exception to this rule for
uncharged crimes that are “factually related” to a charged offense. Texas v. Cobb, 532 U.S.
at 167-68. Petitioner had not been formally charged with the murder at the time that he
spoke with Mr. Hicks, thus, the fact that he may have been represented by counsel on the
weapons charges, even if they were factually related to the uncharged murder, would not
bar Mr. Hicks from speaking with petitioner about the murder. Id., at 173.
Petitioner further claims that his Fifth and Sixth Amendment rights under Miranda
were violated when Mr. Hicks spoke with petitioner and recorded his confessions.
A prosecutor may not use a defendant’s statements which stem from custodial
interrogation unless the prosecutor can demonstrate the use of procedural safeguards which
are effective to secure a defendant’s privilege against self-incrimination. Miranda v. Arizona,
384 U.S. 436, 444 (1966). Unless other means are devised to inform a suspect of his right
to silence and a “continuous opportunity to exercise it,” the following warnings are required
to be given to a suspect:
1. the person must be warned that he has a right to remain silent;
2. that any statement he does make may be used against him;
3. and that he has a right to the presence of an attorney, either appointed or
retained.
Miranda, 384 U.S. at 444.
Petitioner first suggests that Mr. Hicks should have advised him of his Miranda
warnings before obtaining incriminating admissions from him. In Illinois v. Perkins, 496 U.S.
292, 300 (1990), the Supreme Court held that an undercover law enforcement officer posing
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as a fellow inmate was not required to give Miranda warnings to an incarcerated suspect
before asking questions that may elicit an incriminating response. The Supreme Court
reasoned that “Conversations between suspects and undercover agents do not implicate
the concerns underlying Miranda.
The essential ingredients of a “police-dominated
atmosphere” and compulsion are not present when an incarcerated person speaks freely
to someone whom he believes to be a fellow inmate.” Id., at 296. The Supreme Court
further opined that “When a suspect considers himself in the company of cellmates and not
officers, the coercive atmosphere is lacking.” Id. Other courts have extended the rationale
in Perkins to hold that a prisoner acting as an undercover informant is not required to
administer Miranda warnings prior to obtaining incriminating statements from a defendant.
See United States v. Cook, 599 F.3d 1208, 1213-14 (10th Cir. 2010). Mr. Hicks was acting
as an undercover informant, thus, he was not required to administer Miranda warnings to
petitioner prior to recording his statements.
In addition, petitioner was not subjected to a custodial interrogation at the time that
he made his incriminating remarks to Mr. Hicks.
In Howes v. Fields, 132 S. Ct. 1181, 1190 (2012) the Supreme Court concluded “that
imprisonment alone is not enough to create a custodial situation within the meaning of
Miranda.” The Supreme Court indicated that there were three rationales for concluding that
an inmate is not in custody, for purposes of Miranda. “First, questioning a person who is
already serving a prison term does not generally involve the shock that very often
accompanies arrest.” Id. Secondly, for a person who is already imprisoned, “the ordinary
restrictions of prison life, while no doubt unpleasant, are expected and familiar and thus do
not involve the same ‘inherently compelling pressures’ that are often present when a
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suspect is yanked from familiar surroundings in the outside world and subjected to
interrogation in a police station.” Id., 1191.
Finally, a prisoner knows that any law
enforcement personnel who question him or her probably lack the authority to affect his or
her sentence. Id. To determine whether a prisoner is in custody, for the purpose of Miranda,
requires a court to analyze “all of the features of the interrogation” including “the language
that is used in summoning the prisoner to the interview and the manner in which the
interrogation is conducted.” Id. at 1192.
In the present case, there is no evidence that petitioner was threatened. Petitioner
was questioned in his own cell by Mr. Hicks. There is no evidence that Mr. Hicks used
sharp language against petitioner. There is no allegation that petitioner was deprived of
sleep, food, drink, or bathroom privileges. Under these circumstances, the Michigan Court
of Appeals reasonably concluded that petitioner was not in a coercive environment that
required the giving of Miranda warnings. Howes v. Fields, 132 S. Ct. at 1193.
Petitioner, however, argues further that because he invoked his right to counsel
during his initial interrogation with the police in 2005, Mr. Hicks should not have been
permitted to attempt to elicit incriminating information.
When an accused invokes his right to counsel during custodial interrogation, that
interrogation must cease until counsel is made available, unless the accused initiates further
conversation with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). The
Miranda-Edwards rule, however, applies only to custodial interrogations. Montejo v.
Louisiana, 556 U.S. 778, 795 (2009). “If the defendant is not in custody then those
decisions do not apply.” Id. Petitioner’s conversations with Mr. Hicks did not take place in
a custodial setting, thus, the holding in Edwards does not apply, even if petitioner previously
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invoked his right to counsel when he spoke to the police in 2005. Cook, 599 F. 3d at 121415.
Moreover, the Edwards rule does not apply if there has been a break in custody of
more than 14 days after the accused invokes his right to counsel. See Maryland v. Shatzer,
559 U.S. 98, 110-11 (2010). In the prison context, where an inmate has returned to the
general prison population after invoking his or her right to counsel during a custodial
interrogation, there has been a break in custody for purposes of the Edwards rule. Id., 11314. Petitioner invoked his right to counsel when he spoke with the police in May of 2005.
Petitioner did not make his statements to Mr. Hicks until some 14 months later in prison,
way after there had been a break in custody with his initial police interrogation. Under the
circumstances, the admission of petitioner’s statements to Mr. Hicks did not violate
Edwards.
As part of his fourth claim, petitioner contends that the admission of his recorded
statements to Mr. Hicks violated his attorney-client privilege because Mr. Hicks was acting
as petitioner’s jailhouse lawyer.
The attorney-client privilege is a creation of the common law, not the federal
constitution. Sanborn v. Parker, 629 F.3d 554, 575 (6th Cir. 2010)(quoting Lange v. Young,
869 F. 2d 1008, 1012, n. 2 (7th Cir. 1989)). Because federal habeas review is limited to
violations of the United States Constitution or its laws and treatises, any violation of a
habeas petitioner’s attorney-client privilege would not warrant habeas relief. Id. Any alleged
violation of petitioner’s attorney-client privilege is therefore not cognizable in federal habeas
review. Moreover, petitioner has not established that such an attorney-client privilege even
existed between himself and a fellow jail inmate. See Moorhead v. Lane, 125 F.R.D. 680,
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686 (C.D. Ill. 1989)(attorney-client privilege does not extend to communications made to a
“jailhouse attorney”); See also State v. Owens, 309 S.C. 402, 408; 424 S.E. 2d 473 (S.C.
1992)(incriminating statements made by defendant to fellow inmate/”jailhouse lawyer” were
not protected by attorney-client privilege; although such “jailhouse lawyers” may be of
assistance to other inmates in preparing petitions or briefs, they are not professional
advisors upon whom clients rely and to whom clients impart their strictest confidences).
Petitioner is not entitled to relief on his second, fourth, and fifth claims.
C. Claim # 3. The suggestive identification claim.
Petitioner next claims that he was subjected to a suggestive identification procedure
because the police conducted a photographic lineup with witness Andrew Cronin, even
though petitioner was already in custody. Mr. Cronin testified that on the day of the murder,
he saw an African-American man walking down the road with an African-American woman.
Cronin said that the man looked suspicious because the way he was holding the woman’s
arm. Cronin identified petitioner as the man he saw that day. Petitioner argues that the
police should have conducted a corporeal lineup with Mr. Cronin because petitioner was
already in custody at the time of the photographic showup.
Due process protects the accused against the introduction of evidence which results
from an unreliable identification obtained through unnecessarily suggestive procedures.
Moore v. Illinois, 434 U.S. 220, 227 (1977). However, to determine whether an identification
procedure violates due process, courts look first to whether the procedure was
impermissibly suggestive; if so, courts then determine whether, under the totality of
circumstances, the suggestiveness has led to a substantial likelihood of an irreparable
misidentification. Neil v. Biggers, 409 U.S. 188 (1972). Five factors should be considered
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in determining the reliability of identification evidence: (1) the witness’s opportunity to view
the criminal at the time of the crime; (2) the witness’s degree of attention at the time of the
crime; (3) the accuracy of the witness’s prior description of the defendant; (4) the witness’s
level of certainty when identifying the suspect at the confrontation; and (5) the length of time
that has elapsed between the time and the confrontation. Id. at 199-200.
A criminal defendant has the initial burden of proving that the identification procedure
was impermissibly suggestive. It is only after a defendant meets this burden of proof that
the burden then shifts to the prosecutor to prove that the identification was reliable
independent of the suggestive identification procedure. See United States v. Wade, 388
U.S. 218, 240, n. 31(1967). If a defendant fails to show that the identification procedures
were impermissibly suggestive, or if the totality of the circumstances indicates that the
identification is otherwise reliable, no due process violation has occurred. As long as there
is not a substantial likelihood of misidentification, it is for the jury to determine the ultimate
weight to be given to the identification. See United States v. Hill, 967 F.2d 226, 230 (6th
Cir.1992).
A defendant does not have a constitutional right to a corporeal line-up. Instead, his
or her request is addressed to the trial court’s sound discretion. See Mitchell v. Vasbinder,
644 F. Supp. 2d 846, 866 (E.D. Mich. 2009); Payne v. Smith, 207 F .Supp. 2d 627, 645
(E.D. Mich. 2002). Thus, the failure to conduct a live line-up in this case would not entitle
petitioner to habeas relief.
Petitioner further claims that the photographic lineup was unduly suggestive because
Mr. Cronin first saw petitioner’s picture in the newspaper and the police used this same
photograph in the lineup.
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Mr. Cronin testified that he did not remember seeing any articles about petitioner in
the newspaper. (Tr. 9/10/10, pp. 18-19). Petitioner has not shown that Mr. Cronin’s
identification was bolstered by his prior viewing of petitioner’s photograph in the newspaper.
Conclusory allegations by a habeas petitioner, without any evidentiary support, do not
provide a basis for habeas relief. See, e.g., Washington v. Renico, 455 F. 3d 722, 733 (6th
Cir. 2006)(bald assertions and conclusory allegations do not provide sufficient ground to
warrant requiring an evidentiary hearing in a habeas proceeding). Petitioner is not entitled
to habeas relief because his claim that the photo array was unduly suggestive is conclusory
and unsupported. See Champ v. Zavaras, 431 F. App’x. 641, 654 (10th Cir. 2011).
D. Claim # 6. The prison administrative procedures claim.
As part of his sixth claim, petitioner claims that the Michigan Department of
Corrections violated its own prison administrative rules regarding the placement of a
recording device in his prison cell.
“[A] federal court may not grant habeas relief based on ‘a perceived error of state
law.’” Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000)(quoting Pulley v. Harris, 465 U.S.
37, 41 (1984). Furthermore, state officials are not required to follow their own procedural
statutes and rules as a matter of federal due process. Sweeton v. Brown, 27 F. 3d 1162,
1165 (6th Cir. 1994)(en banc); See also Coleman v. Martin, 363 F. Supp. 2d 894, 903 (E.D.
Mich. 2005). Petitioner is therefore not entitled to habeas relief on his sixth claim.
E. Claim # 8. The equal protection, freedom of communication and
association, cruel and unusual punishment, and access to the courts claims.
In his eighth claim, petitioner contends that his conviction violates his right to equal
protection, his right against cruel and unusual punishment, his right to freedom of
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communication and association, and his right of access to the courts. Petitioner also
appears to argue that he has a mental health problem that rendered him susceptible to Mr.
Hicks’s questioning.
The Michigan Court of Appeals rejected petitioner’s claims because he failed to offer
any citations or caselaw in support of his claim:
Defendant provides no persuasive or binding citation to support these
assertions. We therefore conclude that defendant has waived these
assertions.
People v. Williams, 2013 WL 5629647, at * 5, n. 3.
Under Michigan law, a party who fails to develop any argument or cite any authority
in support of his or her claim waives appellate review of the issue. People v. Griffin, 235
Mich. App. 27, 45, 597 N.W.2d 176 (1999). “A party may not merely state a position and
then leave it to [the Michigan Court of Appeals] to discover and rationalize the basis for the
claim.” Id.
A state court conclusion that an issue was waived is considered a procedural default.
See e.g. Shahideh v. McKee, 488 F. App’x. 963, 965 (6th Cir. 2012).
When the state courts clearly and expressly rely on a valid state procedural bar,
federal habeas review is also barred unless petitioner can demonstrate “cause” for the
default and actual prejudice as a result of the alleged constitutional violation, or can
demonstrate that failure to consider the claim will result in a “fundamental miscarriage of
justice.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). If a petitioner fails to show
cause for his procedural default, it is unnecessary for the court to reach the prejudice issue.
Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an extraordinary case, where a
constitutional error has probably resulted in the conviction of one who is actually innocent,
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a federal court may consider the constitutional claims presented even in the absence of a
showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986).
However, to be credible, such a claim of innocence requires a petitioner to support the
allegations of constitutional error with new reliable evidence that was not presented at trial.
Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner raised his eighth claim in his Standard 4 pro per brief that he submitted in
addition to the brief submitted by appellate counsel. 1 Petitioner has offered no reasons for
his failure to properly brief this claim. Because petitioner has not demonstrated any cause
for his procedural default, it is unnecessary for this Court to reach the prejudice issue. Smith
v. Murray, 477 U.S. at 533. Additionally, petitioner has not presented any new reliable
evidence to support any assertion of innocence which would allow this Court to consider his
claim as a ground for a writ of habeas corpus in spite of the procedural default. Because
petitioner has not presented any new reliable evidence that he is innocent of these crimes,
petitioner’s claim is procedurally defaulted. Pearl v. Cason, 219 F. Supp. 2d 820, 828 (E.D.
Mich. 2002). Petitioner is therefore not entitled to habeas relief on his eighth claim.
F. Claim # 10. The improper bindover claim.
Petitioner next contends that there was insufficient evidence at the preliminary
examination to support his bindover to the circuit court.
Petitioner has failed to state a claim upon which habeas relief can be granted. A prior
judicial hearing is not a prerequisite to prosecution by information. Gerstein v. Pugh, 420
1
Standard 4 of Administrative Order 2004-6, 471 Mich. cii (2004), “explicitly provides that a pro
se brief may be filed within 84 days of the filing of the brief by the appellant’s counsel, and may be filed
with accompanying motions.” Ware v. Harry, 636 F. Supp. 2d 574, 594, n. 6 (E.D. Mich. 2008).
17
U.S. 103, 119 (1975). There is no federal constitutional right to a preliminary examination.
United States v. Mulligan, 520 F. 2d 1327, 1329 (6th Cir. 1975); Dillard v. Bomar, 342 F. 2d
789, 790 (6th Cir. 1965). Petitioner’s claim that there was insufficient evidence presented
at his preliminary examination to bind him over for trial thus raises only a matter of state law
and procedure that cannot form a basis for federal habeas relief. See Tegeler v. Renico, 253
F. App’x. 521, 525-26 (6th Cir. 2007). Moreover, even if the prosecution presented perjured
testimony at the preliminary examination, as petitioner suggests, this would not call into
question the validity of petitioner’s subsequent conviction or entitle him to habeas relief. See
Cardenas-Borbon v. Burt, No. 10-13548, 2014 WL 793629, at *21 (E.D. Mich. Feb. 27,
2014).
In addition, a guilty verdict renders harmless any error in the charging decision. See
United States v. Mechanik, 475 U.S. 66, 73 (1986). Any insufficiency of evidence at
petitioner’s preliminary examination would be harmless error in light of petitioner’s
subsequent conviction. See Redmond v. Worthinton, 878 F. Supp. 2d 822, 844 (E.D. Mich.
2012).
Petitioner further claims that Mr. Hicks’ Fifth Amendment privilege against selfincrimination was violated at the preliminary examination when he was compelled to testify
against petitioner.
While the Fifth Amendment right against compelled incrimination is a personal right
and may not be asserted on another's behalf, the Sixth Circuit has held that use of another
person's coerced testimony may violate a defendant’s rights under the Due Process Clause
of the Fourteenth Amendment. See Bradford v. Johnson, 476 F. 2d 66 (6th Cir. 1973), aff'g
354 F.Supp. 1331 (E.D. Mich.1972). Petitioner, nonetheless, is not entitled to habeas relief
18
on his claim for several reasons.
First, the Sixth Circuit decided Bradford many years prior to the enactment of the
AEDPA. A habeas court may only look at the holdings of the United States Supreme Court
as they existed at the time of the relevant state court decision to determine whether the
state court decision was contrary to, or an unreasonable application of, clearly established
federal law. Mitzel v. Tate, 267 F. 3d 524, 530-531 (6th Cir. 2001). A habeas court cannot
look to the decisions of this circuit, or other courts of appeals, when deciding whether a state
court’s decision was contrary to, or an unreasonable application of, clearly established
federal law. Id.
The Supreme Court had not yet decided whether the admission of a coerced
third-party statement against a criminal defendant is unconstitutional. See Samuel v. Frank,
525 F. 3d 566, 569 (7th Cir. 2008)(sexual assault victim’s out of court statements to the
police were admissible even though the police told the victim she would not get her baby
back if she did not cooperate). Exclusionary rules have increasingly fallen out of favor,
replaced by a trend to permit the introduction of illegally obtained evidence at trial but to
permit the victim of illegal police conduct to maintain a tort action against the police. Id. at
570. Moreover, “the concern with coerced statements is a concern with confessions or
other self-incriminating statements, rather than the coercion itself.” Id. A witness’s coerced
testimony is different from a defendant’s coerced statement because “confessions tend to
be devastating evidence in a jury trial because jurors find it difficult to imagine someone
confessing to a crime if he is not guilty, unless the pressures exerted on him to confess were
overwhelming.” Id. The fact that the case for exclusion of a third-party’s coerced statement
“is so much weaker...than in the case of a defendant’s coerced confession is a further clue
19
that exclusion would require the creation of new law rather than the application of an existing
principle.” Id. Therefore, whether a state court is “right or wrong to refuse to extend the bar
against the use of a defendant’s coerced statement to that of a nondefendant witness,” a
state court would not be “unreasonable in refusing to do so[;]”. Id. at 571.
In the absence of any clearly established federal law requiring the suppression of a
non-defendant witness’ coerced testimony, petitioner would not be entitled to habeas relief
on his claim.
Petitioner further appears to argue that his trial counsel was ineffective for failing to
file a motion to quash the information or otherwise challenge the bindover.
The Michigan Court of Appeals determined that there was sufficient evidence to
justify petitioner’s bindover to the circuit court. Petitioner is unable to show that counsel was
ineffective for failing to file a motion to quash the information. See e.g. Dell v. Straub, 194
F. Supp. 2d 629, 649 (E.D. Mich. 2002)(counsel not ineffective for failing to object to the
allegedly improper bindover of petitioner at the preliminary examination, when there was
sufficient evidence presented at the examination to justify the bindover).
G. Claims ## 11, 13, 15, and 16. The various discovery claims.
The Court consolidates petitioner’s eleventh, thirteenth, fifteenth, and sixteenth claims
because they all involve issues relating to the discovery or preservation of evidence.
To the extent that petitioner is claiming that the prosecutor violated state discovery
rules, he would not be entitled to habeas relief. “It is well settled that there is no general
constitutional right to discovery in a criminal case.” Stadler v. Curtin, 682 F. Supp. 2d 807,
818 (E.D. Mich. 2010)(citing Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United
States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988)). A claim that a prosecutor violated
20
state discovery rules is not cognizable in federal habeas review, because it is not a
constitutional violation. See Lorraine v. Coyle, 291 F. 3d 416, 441 (6th Cir. 2002); See also
Friday v. Straub, 175 F. Supp. 2d 933, 940 (E.D. Mich. 2001).
Petitioner first alleges in his eleventh claim that the prosecutor improperly withheld
Mr. Hicks’ records from the Michigan Department of Corrections, which he claims could
have been used to impeach Mr. Hicks’ credibility.
The Michigan Court of Appeals rejected petitioner’s claim:
We conclude that the information in the prison file was cumulative to the
information defendant elicited about Hicks at trial. Hicks plainly acknowledged
at trial that he was testifying against defendant in the hope of obtaining a
reduction of his own sentence. Hicks also acknowledged he had been
deemed a prison “snitch.” In addition, defendant’s counsel cross-examined
Hicks about his criminal record and about inconsistencies in Hicks's
testimony.
Further, as the trial court recognized when it denied defendant’s motion for a
new trial, the key factual issue in this case was whether defendant’s
assertions in the recording were credible. In contrast, the credibility of Hicks
was tangential to the issue of defendant’s recorded assertions about the
murder. Given that the prison file contained information that was cumulative
to the impeachment evidence presented at trial, and that Hicks’s trial
testimony against defendant was tangential to the issue of defendant’s
credibility on the recording, the trial court correctly denied defendant’s motion
for a new trial under Cress, 468 Mich. at 692. 2 Similarly, because defendant
has not demonstrated that the evidence in the prison file could have altered
the trial outcome, defendant has not established plain error that would require
reversal on constitutional grounds. Carines, 460 Mich. at 774. 3
People v. Williams, 2013 WL 5629647, at * 4 (emphasis original).
Suppression by the prosecution of evidence favorable to the defendant upon request
violates due process, where the evidence is material to either guilt or punishment of the
2
People v. Cress, 468 Mich. 678, 692, 664 N.W.2d 174, 182 (2003).
3
People v. Carines, 460 Mich. 750, 773, 597 N.W.2d 130, 143 (1999)
21
defendant, irrespective of the good or bad faith of the prosecution. Brady v. Maryland, 373
U.S. 83, 87 (1963). There are three components of a true Brady violation: (1) the evidence
at issue must be favorable to the accused, either because it is exculpatory or because it is
impeaching; (2) the evidence must have been suppressed by the state, either willfully or
inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 28182 (1999).
Petitioner’s Brady claim fails for several reasons.
First, the M.D.O.C. records were never in the possession of the prosecutor. The
requirements of Brady do not apply to “information that is not wholly within control of the
prosecution.” Coe v. Bell, 161 F. 3d 320, 344 (6th Cir. 1998). Because these records were
never in the prosecution’s control, they had no duty to turn these records over to the
defense.
Secondly, any additional impeachment evidence contained in Mr. Hicks’s prison
records would have been cumulatlve of the extensive evidence that was admitted at trial to
impeach his credibility. Mr. Hicks admitted that he was testifying against petitioner in the
expectation of receiving a reduction of his own sentence. Hicks admitted that he was a
prison “snitch.”
Mr. Hicks was cross-examined about his criminal record and the
inconsistencies in his testimony.
“Evidence that is “merely cumulative” to evidence
presented at trial is ‘not material for purposes of Brady analysis.’” Brooks v. Tennessee, 626
F.3d 878, 893 (6th Cir. 2010)(quoting Carter v. Mitchell, 443 F.3d 517, 533 n. 7 (6th Cir.
2006)). Because Mr. Hicks had already been extensively impeached with the fact that he
was a convicted criminal and a snitch who was testifying in exchange for a possible
sentence reduction, any additional impeachment evidence would have been cumulative and
22
its non-disclosure did not violate Brady. Id., at 893-94.
In his thirteenth claim, petitioner claims that the prosecutor failed to preserve
potentially exculpatory evidence. Petitioner specifically claims that Mr. Hicks made other
recordings of petitioner in his cell which would show that petitioner denied killing the victim.
Petitioner also claims that the prosecutor failed to preserve the recording device or the
original digital copies of the recordings that were introduced at trial.
The Brady rule extends to evidence that is not suppressed but is altered or destroyed.
See California v. Trombetta, 467 U.S. 479, 489 (1984). For such evidence to meet the
standard of constitutional materiality, it “must both possess an exculpatory value that was
apparent before the evidence was destroyed, and be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available means.” Id.
at 488-89.
However, the failure of police to preserve evidence that is only potentially useful for
a defendant is not a denial of due process of law unless the defendant can show bad faith
on the part of police. Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). When the state
fails to preserve evidentiary material “of which no more can be said than that it could have
been subjected to tests, the results of which might have exonerated the defendant,” a
defendant must show: (1) that the government acted in bad faith in failing to preserve the
evidence; (2) that the exculpatory value of the evidence was apparent before its destruction;
and (3) that the nature of the evidence was such that the defendant would be unable to
obtain comparable evidence by other means. Monzo v. Edwards, 281 F. 3d 568, 580 (6th
Cir. 2002). A habeas petitioner has the burden of establishing that the police acted in bad
faith in failing to preserve potentially exculpatory evidence. See Malcum v. Burt, 276 F.
23
Supp. 2d 664, 683 (E.D. Mich. 2003)(internal citations omitted). The mere fact that the
police had control over evidence and failed to preserve it is insufficient, by itself, to establish
bad faith, nor will bad faith be found in the government’s negligent failure to preserve
potentially exculpatory evidence. Id. “The presence of absence of bad faith by the police
for purposes of the Due Process Clause must necessarily turn on the police’s knowledge
of the exculpatory value of the evidence at the time it was lost or destroyed.” Youngblood,
488 U.S. at 56, n.
Petitioner’s claim fails because his contention that any of this evidence contained
exculpatory material is entirely speculative. See United States v. Jobson, 102 F. 3d 214, 219
(6th Cir. 1996). “Where ‘[t]here is no indication that there was anything exculpatory’ about
destroyed evidence, due process has not been violated.” Id., (quoting United States v.
Braggs, 23 F.3d 1047, 1051 (6th Cir. 1994)).
Petitioner’s claim also fails because he has not shown that the police acted in bad
faith when they failed to preserve some of this evidence. The recording device was
destroyed from water damage from further use, thus, it was not deliberately destroyed. (Tr.
5/27/10, p. 10). Moreover, the recording device and the recordings it made were digital.
Digital copies were made and given to petitioner and his counsel. (Id., pp. 9-10). Digital
copies are as good as the original recording because every copy is identical to the original.
See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928-29 (2005).
Petitioner’s conclusory allegations regarding the alleged destruction of potentially
exculpatory material fail to establish that the police, in bad faith, destroyed any evidence
with knowledge of its exculpatory value. See Malcum, 276 F. Supp. 2d at 683.
24
Finally, petitioner’s main contention is that this missing evidence would establish that
his admissions to killing the victim were untrue. Petitioner, acknowledges, however that Mr.
Hicks admitted at trial that he did not believe petitioner at first when he brought up the
murder.
Mr. Hicks further admitted that prisoners sometimes falsely claim to have
committed serious crimes to appear meaner or tougher. Defense witnesses called by
petitioner testified in a similar manner. In light of the fact that the same information that may
have been contained within these recordings from the witnesses themselves, petitioner is
unable to establish that the destruction of these tapes deprived petitioner of his due process
right to a fair trial. See Bowling v. Parker, 138 F. Supp. 2d 821, 885 (E.D. Ky. 2001).
In his fifteenth claim, petitioner claims that the surprise admission of a voice mail
recording from the victim’s voice mail that was attributed to petitioner violated his right to
due process because it was not properly authenticated.
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
A federal court is limited in federal habeas review to deciding whether a state court
conviction violates the Constitution, laws, or treaties of the United States. Id. Thus, errors
in the application of state law, especially rulings regarding the admissibility of evidence, are
usually not questioned by a federal habeas court. Seymour v. Walker, 224 F. 3d 542, 552
(6th Cir. 2000); See also Stephenson v. Renico, 280 F. Supp. 2d 661, 666 (E.D. Mich. 2003).
Petitioner’s claim that the voicemail recording was not properly authenticated under
Michigan evidence law is not a cognizable habeas corpus claim. See Hennis v. Warden,
Chillicothe Corr. Inst., 886 F. Supp. 2d 797, 807 (S.D. Ohio 2012). Moreover, petitioner has
25
offered no evidence that it was not his voice on the voicemail. Petitioner is not entitled to
relief on his fifteenth claim.
In his sixteenth claim, petitioner contends that his due process rights were violated
because the prosecutor failed to disclose Dan Harris as a witness until the middle of trial.
Petitioner argues that Harris’ testimony came as a surprise to him. Petitioner further claims
that Harris should not have been permitted to testify as an expert witness on cell phone
locations because his testimony was unscientific.
There is no constitutional duty for a prosecutor to disclose all of his or her witnesses
to the defense prior to trial. See Weatherford v. Bursey, 429 U.S. at 559 (denying due
process claim of a defendant who was convicted with aid of surprise testimony from an
accomplice who was an undercover agent). “It does not follow from the prohibition against
concealing evidence favorable to the accused that the prosecution must reveal before trial
the names of all witnesses who will testify unfavorably.” Id. A claim that a prosecutor
violates a state discovery rule requiring the state to disclose the names of witnesses it
reasonably anticipates calling is not cognizable on federal habeas review, because it is not
a constitutional violation. See Lorraine v. Coyle, 291 F.3d at 439-41. Moreover, a decision
regarding the endorsement of a witness generally constitutes a state law matter within the
trial court’s discretion. See Hence v. Smith, 37 F. Supp. 2d 970, 982 (E.D.Mich.1999)(citing
cases); Whalen v. Johnson, 438 F.Supp. 1198 (E.D. Mich.1977)(it is not a fundamental error
to permit a prosecutor to endorse a witness during trial even though the prosecutor had
previously filed an affidavit stating that the witness was not material).
The late endorsement of Dan Harris as an expert witness did not violate petitioner’s
26
due process rights, because petitioner should have reasonably anticipated his testimony,
in light of the evidence and the additional discovery in this case. See e.g. Warlick v.
Romanowski, 367 F. App’x. 634, 643–44 (6th Cir. 2010). Additionally, petitioner was not
prejudiced by the decision to allow Mr. Harris to testify because he had ample opportunity
to cross-examine him about problems with his expert testimony. Id. at 644. Petitioner was
also able to challenge Mr. Harris’ expert testimony by calling his own expert, Manfred
Schenk, who testified that the call detail method used by Harris could not identify the
location of a cell phone and that there was no direct relationship between the location of the
cell tower and the location of a cell phone. Schenk also testified that, absent a global
positioning chip, the sole accurate method to locate a cell phone during a call would be by
using “triangulation”, which was not done in this case.
Petitioner further claims that Dan Harris should not have been permitted to testify as
an expert on the location of cell phone calls because his testimony was unscientific.
The admission of expert testimony in a state trial presents a question of state law
which does not warrant federal habeas relief, unless the evidence violates due process or
some other federal constitutional right. See Keller v. Larkins, 251 F. 3d 408, 419 (3rd Cir.
2001). Thus, a federal district court cannot grant habeas relief on the admission of an
expert witness’ testimony in the absence of Supreme Court precedent which shows that the
admission of that expert witness’ testimony on a particular subject violates the federal
constitution. See Wilson v. Parker, 515 F.3d 682, 705-06 (6th Cir. 2008). The United States
Supreme Court’s holding in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)
involving the admissibility of scientific evidence concerned the application of the Federal
27
Rules of Evidence, which are not relevant to determining the constitutionality of a state court
conviction. See Norris v. Schotten, 146 F. 3d 314, 335 (6th Cir. 1998). In addition, as a
state evidentiary matter, petitioner has presented no argument to show that Dan Harris’s
testimony on cell tower phones was admitted in error nor any reason to believe that this
testimony denied petitioner a fundamentally fair trial. Id. Petitioner’s counsel was able to
cross-examine Dan Harris about his methodology. Mr. Harris admitted the call detail
method he used in this case could not identify the precise location of a cell phone.
Moreover, any error in permitting Dan Harris to offer testify as an expert on cell tower
method was rendered harmless in this case by virtue of the fact that petitioner’s own expert
testified and discredited the scientific reliability of Mr. Harris’s methods. See Ford v.
Seabold, 841 F. 2d 677, 693 (6th Cir. 1988). Petitioner is not entitled to relief on his claim.
H. Claim # 12. The speedy trial claim.
Petitioner next claims that his Sixth Amendment right to a speedy trial was violated
because he was not brought to trial until over two years after his arrest.
The Sixth Amendment guarantees a criminal defendant the right to a speedy trial.
U.S. Const. Amend. VI. To determine whether a speedy trial violation has occurred, the
court must consider the following four factors: (1) the length of the delay, (2) the reason for
the delay, (3) the defendant’s assertion of his speedy trial right, and (4) the prejudice to the
defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). No single factor is determinative,
rather a court must weigh them and engage in a “difficult and sensitive balancing process”
to determine whether a constitutional violation has occurred. 407 U.S. at 533. The right to
a speedy trial “is ‘amorphous,’ ‘slippery,’ and ‘necessarily relative.’” Vermont v. Brillon, 556
28
U.S. 81, 89 (2009)(quoting Barker, 407 U.S., at 522)(quoting Beavers v. Haubert, 198 U.S.
77, 87 (1905)).
The length of delay is a “triggering factor” because “until there is some delay which
is presumptively prejudicial, there is no necessity for inquiry into the other factors that go
into the balance.” Barker, 407 U.S. at 530. Therefore, to trigger a speedy trial analysis, the
accused must allege that the interval between the accusation and the trial has crossed the
threshold dividing ordinary from presumptively prejudicial delay. Doggett v. United States,
505 U.S. 647, 651-52 (1992). Courts have generally found postaccusation delays that
approach one year to be “presumptively prejudicial”. Id. 505 U.S. at 652, n. 1; United States
v. Brown, 90 F. Supp. 2d 841, 846 (E.D. Mich. 2000). Petitioner was charged on April 10,
2007 and brought to trial over three years later on August 31, 2010. Because this delay
between petitioner’s arrest and trial is presumptively prejudicial, this Court must engage in
an examination of the remaining Barker factors. See U.S. v. Bass, 460 F.3d 830, 836 (6th
Cir. 2006).
With respect to the second Barker factor, the reasons for the delay, the Court must
determine “whether the government or the criminal defendant is more to blame for [the]
delay.” Maples v. Stegall, 427 F.3d 1020, 1026 (6th Cir. 2005)(citing Doggett, 505 U.S. at
651). When evaluating a speedy trial claim, delays caused by the defense are to be
weighed against the defendant. Vermont v. Brillon, 556 U.S. at 90; See also U.S. v. Brown,
498 F. 3d 523, 531 (6th Cir. 2007).
Most of the delays in this case were attributable to petitioner. The Court first notes
that petitioner went through nine different attorneys after expressing his dissatisfaction with
29
his various counsel. Petitioner’s continued requests for the appointment of new counsel is
attributable to the defense, for speedy trial purposes. See United States v. Brown, 498 F.3d
at 531.
Likewise, any delays caused by petitioner’s filing of his numerous various pre-trial
motions is attributable to the defense, for purposes of a speedy trial determination. See
Norris v. Schotten, 146 F. 3d at 327. In addition, the need to conduct an evidentiary hearing
on petitioner’s motion to suppress is also a delay that would be attributable to petitioner. See
United States v. Kaylor, 877 F. 2d 658, 663 (8th Cir. 1989).
Moreover, petitioner’s speedy trial claim fails because there is no evidence on the
record that any part of this delay was intentionally caused by the trial court or the
prosecution. Norris v. v. Schotten, 146 F. 3d at 327-28. There is nothing in the record to
indicate a “willful attempt” by the prosecution to delay the trial, Burns v. Lafler, 328 F. Supp.
2d 711, 722 (E.D. Mich. 2004)(quoting Davis v. McLaughlin, 122 F. Supp. 2d 437, 443
(S.D.N.Y. 2000)), nor is there any evidence that the prosecution intentionally delayed the
trial to gain a tactical advantage over the petitioner. Id.; See also Brown, 498 F. 3d at 531.
With regard to the third Barker factor, “[t]he defendant’s assertion of his speedy trial
right ... is entitled to strong evidentiary weight in determining whether the defendant is being
deprived of the right.” Barker, 407 U.S. at 531-32. A criminal defendant’s “failure to assert
the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id.
In the present case, petitioner did not assert his right to a speedy trial until September
8, 2009, or some two years after he had been arrested. Petitioner’s two year delay in
asserting his right to a speedy trial weighs against a finding that his right to a speedy trial
30
was violated. See U.S. v. Flowers, 476 F. App’x. 55, 63 (6th Cir. 2012).
Finally, petitioner is not entitled to habeas relief on his speedy trial claim, because
he has not shown that his defense was prejudiced by this delay. Burns, 328 F. Supp. 2d at
722. Of the four factors to be assessed in determining whether a defendant’s speedy trial
rights have been violated, prejudice to the defendant is the most critical one. See Trigg v.
State of Tenn., 507 F. 3d 949, 954 (6th Cir. 1975). Moreover, any prejudice to petitioner
from his pre-trial incarceration “is too slight to constitute an unconstitutional denial of his
right to a speedy trial,” in light of the fact that the other Barker factors do not support
petitioner’s speedy trial claim. See Wells v. Petsock, 941 F. 2d 253, 259 (3rd Cir. 1991).
Petitioner is not entitled to habeas relief on his speedy trial claim.
I. Claim # 14. The prior bad acts evidence claim.
Petitioner claims that the trial court violated his due process rights by admitting prior
bad acts evidence involving other violent acts committed by petitioner against the victim.
Petitioner’s claim that the state court violated M.R.E. 404(b) by admitting this
evidence is non-cognizable on habeas review. Bey v. Bagley, 500 F 3d 514, 519 (6th Cir.
2007). The admission of this “prior bad acts” or “other acts” evidence against petitioner at
his state trial does not entitle him to habeas relief, because there is no clearly established
Supreme Court law which holds that a state violates a habeas petitioner’s due process rights
by admitting propensity evidence in the form of “prior bad acts” evidence. See Bugh v.
Mitchell, 329 F. 3d 496, 512 (6th Cir. 2003).
J. Claims # 1, # 16, and # 17. The ineffective assistance of counsel claims.
31
Petitioner claims that he was denied the effective assistance of trial counsel.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the defendant
must demonstrate that, considering all of the circumstances, counsel’s performance was so
deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984).
In so doing, the
defendant must overcome a strong presumption that counsel’s behavior lies within the wide
range of reasonable professional assistance. Id. In other words, petitioner must overcome
the presumption that, under the circumstances, the challenged action might be sound trial
strategy. Strickland, 466 U.S. at 689.
Second, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must
show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694. The
Supreme Court’s holding in Strickland places the burden on the defendant who raises a
claim of ineffective assistance of counsel, and not the state, to show a reasonable
probability that the result of the proceeding would have been different, but for counsel’s
allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
More importantly, on habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect but
whether that determination was unreasonable-a substantially higher threshold.’” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). “The pivotal question is whether the state court’s application of the Strickland
32
standard was unreasonable. This is different from asking whether defense counsel’s
performance fell below Strickland’s standard.” Harrington v. Richter, 562 U.S. at 101.
Indeed, “because the Strickland standard is a general standard, a state court has even more
latitude to reasonably determine that a defendant has not satisfied that standard.” Knowles,
556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to the §
2254(d)(1) standard, a “doubly deferential judicial review” applies to a Strickland claim
brought by a habeas petitioner. Id. This means that on habeas review of a state court
conviction, “[A] state court must be granted a deference and latitude that are not in operation
when the case involves review under the Strickland standard itself.”Harrington, 562 U.S. at
101. “Surmounting Strickland's high bar is never an easy task.” Id. at 105 (quoting Padilla
v. Kentucky, 559 U.S. 356, 371 (2010)).
As part of his first claim, petitioner argues that his trial counsel was ineffective for
failing to challenge the legality of his arrest at the victim’s home in 2005, in order to suppress
the subsequent statements that petitioner made to Mr. Hicks.
Respondent contends that this portion of petitioner’s first claim is unexhausted
because he never presented it to the state courts.
A habeas petitioner’s failure to exhaust his or her state court remedies does not
deprive a federal court of its jurisdiction to consider the merits of the habeas petition.
Granberry v. Greer, 481 U.S. 129, 131 (1987). Petitioner’s ineffective assistance of counsel
claim lacks merit. In the interests of efficiency and justice, the Court will address petitioner’s
claim, rather than dismiss the petition on exhaustion grounds. See Cain v. Redman, 947 F.
2d 817, 820 (6th Cir.1991).
33
To prove that counsel’s failure to litigate a Fourth Amendment claim competently is
the principal claim of ineffectiveness, a defendant must also prove that his or her Fourth
Amendment claim is meritorious and that there is a reasonable probability that the verdict
would have been different absent the excludable evidence, in order to demonstrate actual
prejudice. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
The Michigan Court of Appeals rejected petitioner’s Fourth Amendment claim:
Even if the guilty plea did not constitute a waiver, we would conclude that any
causal connection between the allegedly invalid arrest on the weapons
charges and defendant's subsequent conviction for murder was so attenuated
that suppression of defendant’s subsequently recorded assertions would not
be required.
People v. Williams, 2013 WL 5629647, at * 5.
The “fruits of the poisonous tree” doctrine provides that evidence obtained following
or during illegal police conduct-e.g., confessions obtained during illegal custodial
interrogation or consents obtained following an illegal entry-are inadmissible at trial if the
statements or other evidence were obtained as a result of the prior illegality and not as a
result of the accused’s exercise of free will. Florida v. Royer, 460 U.S. 491, 501 (1983);
Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).
However, where a court finds that an illegal arrest was followed by the seizure of
evidence, a court must further determine “if the connection between the illegal police
conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the
taint’” of the illegal police conduct. Segura v. United States, 468 U.S. 796, 805
(1984)(internal quotation omitted). A broad “but for” relationship is not the standard for
dissipation. Wong Sun, 371 U.S. at 487-88. Instead, courts look for a “close causal
34
connection” between the illegality and the evidence obtained. Dunaway v. New York, 442
U.S. 200, 218 (1979). The taint of the illegal arrest or seizure can be removed if the
evidence is obtained from an independent source unrelated to the illegality, if the evidence
would have been inevitably discovered through “clean” sources, or if circumstances
demonstrate that the taint is sufficiently attenuated. See Foster v. Withrow, 159 F. Supp. 2d
629, 639, n. 4 (E.D. Mich. 2001)(citing Nix v. Williams, 467 U.S. 431 (1984), Brown v.
Illinois, 422 U.S. 590, 603-04 (1975)).
Petitioner was arrested on the weapons charges in May of 2005. Petitioner did not
start making incriminating statements to Mr. Hicks until some 14 months later. Petitioner’s
initial arrest on unrelated charges in 2005 was far too attenuated from his later confessions
to the murder in his prison cell to justify their suppression, thus, counsel was not ineffective
for failing to move for the suppression of petitioner’s statements to Mr. Hicks on this basis.
See Friday v. Pitcher, 200 F. Supp. 2d 725, 736-39 (E.D. Mich. 2002).
As part of his sixteenth claim, petitioner alleged that his trial counsel was ineffective
regarding his handling of expert witness Dan Harris and his own expert witness Manfred
Schenk.
The Michigan Court of Appeals rejected petitioner’s claim:
The record demonstrates that defendant’s counsel interviewed Harris prior to
Harris's trial testimony. At trial, defendant’s counsel questioned Harris about
his training and cross-examined Harris about the accuracy of Harris’s method
of locating cell phones. Moreover, defendant's counsel presented expert
Schenk to discredit Harris’s testimony. In sum, defendant’s counsel’s
performance with regard to the expert witnesses at trial was reasonable.
People v. Williams, 2013 WL 5629647, at * 3.
35
Conclusory allegations of ineffective assistance of counsel, without any evidentiary
support, do not provide a basis for habeas relief. See Workman v. Bell, 178 F.3d 759, 771
(6th Cir. 1998). Petitioner cannot prevail on his claim that trial counsel was ineffective for
failing to adequately prepare for the expert testimony because he has failed to show how
additional pretrial work counsel had allegedly been deficient in failing to perform would have
been beneficial to his defense. See Martin v. Mitchell, 280 F. 3d 594, 607-08 (6th Cir. 2002).
Petitioner is not entitled to relief on his sixteenth claim.
In his seventeenth claim, petitioner alleges that the trial judge was biased against him
and that his trial counsel was ineffective for failing to move to disqualify the trial judge.
The Due Process Clause of the Fourteenth Amendment requires a fair trial in a fair
tribunal before a judge with no actual bias against the defendant or an interest in the
outcome of the case. See Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). However, to
state a claim that a judge is biased, a defendant must show either actual bias or the
appearance of bias creating a conclusive presumption of actual bias. United States v. Lowe,
106 F. 3d 1498, 1504 (6th Cir. 1997). “Under this standard, ‘[o]nly in the most extreme of
cases would disqualification on the basis of bias and prejudice be constitutionally required.’”
Getsy v. Mitchell, 495 F.3d 295, 311 (6th Cir. 2007)(quoting Williams v. Anderson, 460 F.3d
789, 814 (6th Cir. 2006)).
Petitioner’s main allegation of judicial bias involves examples of the judge setting
various deadlines regarding the filings or in one case, telling one of petitioner’s nine different
attorneys to file the pro per motions that petitioner prepared to be submitted without making
any changes. Petitioner also points to a couple of adverse rulings made by the judge during
36
trial. Adverse rulings are not themselves sufficient to establish bias or prejudice which will
disqualify a judge. See Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich. 1999); See also
Vliet v. Renico, 193 F. Supp. 2d 1010, 1016 (E.D. Mich. 2002).
Petitioner further points to several times where the judge urged defense counsel to
move along with his questioning of the witnesses.
The Supreme Court has ruled that “expressions of impatience, dissatisfaction,
annoyance, and even anger” do not establish judicial bias or misconduct. Liteky v. United
States, 510 U.S. 540, 555-56 (1994).
“A judge’s ordinary efforts at courtroom
administration-even a stern and short-tempered judge's ordinary efforts at courtroom
administration-remain immune.” Id. The judge’s admonitions to counsel were nothing more
than efforts at courtroom administration and thus do not demonstrate bias on the judge’s
part. In this case, “The reprimands were not out of line, nor were they substantially adverse
to [petitioner] himself. There is no showing that the trial judge ever intimated his opinion on
the merits of the case.” See Todd v. Stegal, 40 F. App’x. 25, 27 (6th Cir. 2002).
Petitioner further claims that the judge improperly injected himself into the
proceedings by questioning several of the witnesses.
A trial judge may interject himself or herself “into the trial, speak to counsel, and
question witnesses in order to clear up confusion regarding the evidence or aid in its orderly
presentation.” United States v. Powers, 500 F.3d 500, 511 (6th Cir. 2007). In the present
case, the trial court judge interjected himself only to clarify the witnesses’ testimony. It is
not unconstitutional under the Due Process Clause for a state trial judge to seek clarification
from witnesses at a criminal trial. See Wenglikowski v. Jones, 306 F. Supp. 2d 688, 695
37
(E.D. Mich. 2004). “In fact, it is proper for a judge to question a witness when necessary
either to elicit the truth or to clarify testimony.” Brown v. Palmer, 358 F. Supp. 2d 648, 657
(E.D. Mich. 2005).
Petitioner also points to several anecdotes and humorous stories that the judge told
the jurors during breaks in the trial. None of the judge’s remarks mentioned petitioner or
criminal defendants in general and appear to simply be an attempt to humor the jurors
during breaks in the proceedings.
Petitioner further argues that the judge was biased against him because he
interrupted the cross-examination of prosecution witness Andrew Cronin to bring up the
judge’s relationship with Mr. Cronin’s father. The judge later made a record that one of the
jurors was a distant cousin of Mr. Cronin.
This Court has reviewed the judge’s comments to Mr. Cronin. The judge stated to
Mr. Cronin, “You look like you’re related to Donald.” Mr. Cronin replied, “My father.” (Tr.
9/10/2010, p. 22). There is no indication from this exchange concerning the extent of the
judge’s relationship with Mr. Cronin’s father. Later on, the judge indicated that Juror # 6
realized that he was a distant relative of Mr. Cronin but had not seen him since the funeral
of Mr. Cronin’s father. (Id., p. 74). Again, there is nothing from this comment to suggest
whether the judge had any relationship with Mr. Cronin’s father.
The Sixth Circuit had indicated that it is “clear that judicial disqualification based on
a likelihood or an appearance of bias is not always of constitutional significance; indeed,
‘most matters relating to judicial disqualification d[o] not rise to a constitutional level.’” Railey
v. Webb, 540 F.3d 393, 400 (6th Cir. 2008)(quoting Fed. Trade Comm'n v. Cement Inst.,
38
333 U.S. 683, 702 (1948) (citing Tumey v. Ohio, 273 U.S. 510, 523 (1927))(“All questions
of judicial qualification may not involve constitutional validity.”). The Sixth Circuit observed
that “[i]n only two types of cases has the Supreme Court actually held that something less
than actual bias violates constitutional due process—(1) those cases in which the judge ‘has
a direct, personal, substantial pecuniary interest in reaching a [particular] conclusion;’ and
(2) certain contempt cases, such as those in which the “judge becomes personally
embroiled with the contemnor.’”Railey v. Webb, 540 F.3d at 400 (citations omitted)(alteration
in original)(quoting, respectively, Tumey v. Ohio, 273 U.S. at 523 and In re Murchison, 349
U.S. 133 (1955)). The Sixth Circuit noted that the Supreme Court had also acknowledged
four types of cases that, “although they present prudent grounds for disqualification as a
matter of common sense, ethics, or ‘legislative discretion,’ generally do not rise to a
constitutional level-‘matters of [1] kinship, [2] personal bias, [3] state policy, [and][4]
remoteness of interest.’” Railey, 540 F. 3d at 400 (citing Tumey, 273 U.S. 510, 523; accord
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986))(emphasis original).
In Railey, the petitioner claimed that an apparent conflict of interest arose because
the judge was the nephew of the prosecutor who presided at the habeas petitioner’s bail and
plea hearings. The Sixth Circuit concluded that there was no clearly established Supreme
Court law that a habeas petitioner’s due process rights are violated based upon the
likelihood or appearance of bias based on kinship between the judge and the prosecutor.
Id. at 401. After reviewing the relevant Supreme Court caselaw on judicial bias, Id., pp. 40107, the Sixth Circuit concluded:
In sum, one could read the Supreme Court precedent in this area as holding
that the probability of bias-based on a likelihood or appearance of bias-can be
39
sufficient to disqualify a judge and violate a party’s constitutional right to due
process. But, one could also read these cases as holding that, other than in
cases of contempt arising in a closed (secret) hearing, only actual bias or
pecuniary-interest-based probability is sufficient-and, moreover, that a matter
of mere kinship has, as of yet, never been acknowledged as a sufficiently
biasing interest. Regardless of the preferred reading-or the merits of one
reading over the other-the fact that there are two or more reasonable readings
compels the conclusion that this precedent is not “clearly established.”
Railey v. Webb, 540 F.3d at 407 (emphasis original).
Indeed, the Supreme Court in Tumey suggested that “matters of kinship, personal
bias, state policy, remoteness of interest would seem generally to be matters merely of
legislative discretion.” Tumey, 273 U.S. at 523.
In the present case, petitioner has established that the judge might have had some
sort of the unspecified relationship with Mr. Cronin’s father. Any determination by the state
courts that the judge was not required to recuse himself, was not contrary to or an
unreasonable application of clearly established Supreme Court precedent, where the
Supreme Court has never held that the mere appearance of bias, outside limited contexts,
could give rise to a due process violation. Railey v. Webb, 540 F.3d at 413-14.
Petitioner finally claims that the judge should have recused himself to avoid the
appearance of impropriety because the judge had been the target of “personal abuse and
criticism” on petitioner’s part. As mentioned above, the Supreme Court has never held that
the mere appearance of bias gives rise to a due process violation, thus, petitioner failed to
show that the judge was required to disqualify himself in this matter.
Petitioner failed to show that the judge was biased against him, thus, counsel was
not ineffective for failing to move for the judge to be disqualified. See Coley v. Bagley, 706
40
F. 3d 741, 752 (6th Cir. 2013). Petitioner is not entitled to relief on his seventeenth claim.
K. Claim # 18. The prosecutorial misconduct claim.
Petitioner lastly claims that he was denied a fair trial because of prosecutorial
misconduct.
“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 thus form the basis for habeas relief only if the conduct was
so egregious as to render the entire trial fundamentally unfair based on the totality of the
circumstances. Donnelly v. DeChristoforo, 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 (2012)(quoting
Harrington, 562 U.S. at 103).
Petitioner first claims that the prosecutor misrepresented the facts by stating that she
believed that the victim was killed between 11:40 p.m. and 12:09 a.m., when there was
evidence that the victim was still alive at these times. Petitioner further claims that the
prosecutor misrepresented the evidence by stating that one of the detectives testified that
41
petitioner returned to the scene of the crime after committing the murder. Petitioner finally
claims that the prosecutor falsely argued that Mr. Cronin identified the victim’s car being the
vehicle that he saw parked on Dye Road at the time he saw petitioner and the victim walking
back towards her apartment, claiming that Mr. Cronin wasn’t sure that this was the vehicle
when shown a picture of it.
Misrepresenting facts in evidence by a prosecutor can amount to substantial error
because doing so “may profoundly impress a jury and may have a significant impact on the
jury's deliberations.” Washington v. Hofbauer, 228 F. 3d 689, 700 (6th Cir. 2000)(quoting
Donnelly v. DeChristoforo, 416 U.S. at 646). Likewise, it is improper for a prosecutor during
closing arguments to bring to the jury any purported facts which have not been introduced
into evidence and which are prejudicial. Byrd v. Collins, 209 F. 3d 486, 535 (6th Cir. 2000).
However, prosecutors must be given leeway to argue reasonable inferences from the
evidence. Id.
In the present case, two of the victim’s neighbors claimed that they heard gunshots
at midnight. (Tr. 9/8/10, p. 89). Another witness claimed to have spoken with the victim at
11:40 p.m. There was at least some factual support on the record for the prosecutor’s
argument that the victim was killed between 11:40 p.m. and 12:09 a.m. Likewise, the
evidence established that petitioner came to the victim’s apartment the night of the murder,
thus, the prosecutor’s remarks that petitioner returned to the scene of the murder was based
on reasonable inferences from the evidence. Finally, contrary to petitioner’s allegation, Mr.
Cronin positively identified the victim’s car as being the vehicle he saw on the day in
question. (Tr. 9/10/10, pp. 9-10). Because there was at least some factual support on the
42
record for the prosecutor’s argument, the prosecutor’s remarks did not deprive Petitioner of
a fair trial. See U.S. v. Henry, 545 F.3d 367, 377 (6th Cir. 2008).
Petitioner next claims that the prosecutor committed misconduct by arguing a
“fictitious colloquy” between petitioner and his sister, in which they discussed the murder.
Petitioner does not show how the prosecutor’s remarks were false or misleading.
Conclusory allegations of prosecutorial misconduct fail to state a claim upon which habeas
relief can be granted. See Johnson v. Renico, 314 F. Supp. 2d 700, 710 (E.D. Mich. 2004).
Petitioner next claims that the prosecutor tried to inflame the passions of the jury by
introducing testimony through the victim’s daughter that the victim had tried to get away from
petitioner. Petitioner also claims that the prosecutor attempted to inflame the jurors when
she cried in front of the jury.
Petitioner’s claim is defeated by the fact that the trial court instructed the jury that
they were not to let sympathy or prejudice influence their decision (Tr. 10/1/10, p. 154). See
Cockream v. Jones, 382 F. App’x. 479, 486 (6th Cir. 2010). Moreover, even if the
prosecutor’s appeals to the jury’s emotions or sympathies was improper, this would be
insufficient to render the trial fundamentally unfair, since it was likely that the nature of the
crime itself would have produced juror sympathy even before the prosecutor made any of
these comments. See Millender v. Adams, 187 F. Supp. 2d 852, 875-76 (E.D. Mich.
2002)(citing Walker v. Gibson, 228 F. 3d 1217, 1243 (10th Cir. 2000)).
Petitioner lastly contends that the prosecutor committed misconduct by eliciting
inadmissible evidence. A prosecutor “does not commit misconduct by asking questions that
elicit inadmissible evidence.” Key v. Rapelje, 634 F. App’x. 141, 148 (6th Cir. 2015).
43
Petitioner is not entitled to relief on his eighteenth and final claim.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus with prejudice. The Court
will also deny a certificate of appealability to petitioner. In order to obtain a certificate of
appealability, a prisoner must make a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show
that reasonable jurists could debate whether, or agree that, the petition should have been
resolved in a different manner, or that the issues presented were adequate to deserve
encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “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; See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
For the reasons stated in this opinion, the Court will deny petitioner a certificate of
appealability because he has failed to make a substantial showing of the denial of a federal
constitutional right. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001). The
Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would
be frivolous. Id.
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.
44
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma
pauperis.
s/ Nancy G. Edmunds
HON. NANCY G. EDMUNDS
UNITED STATES DISTRICT COURT JUDGE
Dated:November 22, 2016
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