Farley v. Winn

Filing 27

OPINION and ORDER Denying Petitioner's 1 Application for a Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceed on Appeal In Forma Pauperis. Signed by District Judge Bernard A. Friedman. (JCur)

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1648 Filed 11/17/21 Page 1 of 15

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRUCE FARLEY,
#184082,
Petitioner,

Civil Action No. 15-CV-13899

vs.

HON. BERNARD A. FRIEDMAN

JOHN CHRISTIANSEN,
Respondent.
____________________/
OPINION AND ORDER DENYING PETITIONER’S APPLICATION FOR A WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner, an inmate at the Central Michigan Correctional Facility in St. Louis,
Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro
se application, petitioner challenges his conviction for first-degree home invasion, MICH. COMP.
LAWS § 750.110a(2), and for being a fourth habitual offender, MICH. COMP. LAWS § 769.12. For
the following reasons, the Court shall deny the petition. The Court shall also deny petitioner a
certificate of appealability and leave to appeal in forma pauperis.
I. BACKGROUND
Petitioner was convicted following a jury trial in Macomb County Circuit Court,
and his conviction was affirmed by the Michigan Court of Appeals and Supreme Court. See People
v. Farley, No. 310254, 2013 WL 6084198 (Mich. Ct. App. Nov. 19, 2013); lv. den. 849 N.W.2d
365 (Mich. 2014). The relevant facts relied upon by the Michigan Court of Appeals, which are
presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1), are as follows:
The homeowner testified that she found defendant in her house,
without her permission, after she came back inside after dropping a
trash bag in a trash can and picking up trash that had been strewn on
1

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1649 Filed 11/17/21 Page 2 of 15

the side of her house. After struggling with defendant, he fled. A
short while later, her neighbor called to inform her that he found her
purse thrown on the deck in his yard.
Farley, 2013 WL 6084198, at *2.
On November 4, 2015, petitioner filed the instant habeas petition, which this Court
held in abeyance on October 20, 2017, so that petitioner could exhaust additional claims. See ECF
No. 14. Petitioner proceeded to file a post-conviction motion for relief from judgment with the
trial court, which was denied. See ECF No. 24-4. Petitioner was also denied leave to appeal. See
ECF Nos. 24-5, 24-6. This case was subsequently reopened, and petitioner was permitted to amend
his habeas petition. See ECF No. 21.
Petitioner now seeks habeas relief on the following grounds:
I. Trial court erred when it denied the Petitioner’s counsel’s motion
for a directed verdict of acquittal. Also, ineffective assistance of
counsel.
II. The trial court erred when it failed to suppress witness Timocko’s
testimony based on illegal procedure used by the police. Also,
ineffective assistance of counsel. Witness Timocko perjured
himself on the record by stating he never saw Petitioner before
pointing him out during the trial. There is a 37th District Court
video in Warren, Michigan showing witness Timocko.
III. Trial court erred when prosecutor failed to provide defense
counsel statements, police reports critical to the Petitioner’s defense.
Also, ineffective assistance of counsel.
IV. Trial court erred when it admitted faulty DNA evidence without
proper foundation and admitting hearsay lab report. Also,
ineffective assistance of counsel.
V. Trial court erred when it allowed the prosecutor to commit
misconduct. Also, ineffective assistance of counsel.
VI. Trial court erred in sentencing Petitioner in excess of maximum
term and assuming Petitioner was not sentenced as a fourth habitual.
Also, ineffective assistance of counsel.

2

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1650 Filed 11/17/21 Page 3 of 15

VII. Trial court erred in sentencing Petitioner in excess of maximum
term and assuming Petitioner was sentenced as a fourth habitual.
Also, ineffective assistance of counsel.
VIII. Trial court abused its discretion by denying the Petitioner’s
motion for relief from judgment insomuch as his appellate counsel
failed to raise the ineffectiveness of trial counsel on direct appeal.
Also, ineffective assistance of counsel.
IX. The trial court abused its discretion by finding appellate counsel
was effective when she neglected to raise the ineffectiveness of trial
counsel who failed to provide the Petitioner with competent advice
during the plea bargaining process.
ECF No. 18, PageID.1188-89.
II. STANDARD OF REVIEW
Section 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.
In defining the term “contrary to,” the Supreme Court has explained:
First, a state-court decision is contrary to this Court’s precedent if
the state court arrives at a conclusion opposite to that reached by this
Court on a question of law. Second, a state-court decision is also
contrary to this Court’s precedent if the state court confronts facts
that are materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to ours.

3

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1651 Filed 11/17/21 Page 4 of 15

Williams v. Taylor, 529 U.S. 362, 405 (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.
Under this deferential standard of review, a federal 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. Rather,
“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) (internal quotation marks and citation omitted). See also Woods
v. Etherton, 578 U.S. 113, 113 (2016) (indicating that as long as it is within the “realm of
possibility that a fairminded jurist” could find the state court decision to be reasonable, the habeas
petition should be denied). “AEDPA thus imposes a highly deferential standard for evaluating
state-court rulings, and demands that state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted).
III. DISCUSSION
A. Claim I: Petitioner’s Directed Verdict or Insufficient Evidence Claim
Petitioner first argues that the trial court erred in denying his motion for a directed
verdict, because there was insufficient evidence to convict him of the charge. “An argument
regarding the [trial] court’s failure to direct a verdict of acquittal . . . is construed as an attack on
the sufficiency of the evidence.” United States v. Cope, 312 F.3d 757, 778 (6th Cir. 2002). The
Supreme Court has stated that “the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The crucial question is “whether

4

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1652 Filed 11/17/21 Page 5 of 15

the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 318 (1979). However,
this inquiry does not require a court to ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable
doubt. Instead, the relevant question is whether, after the evidence
is viewed in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
Id. at 318-19 (internal citation, quotation marks, and footnote omitted; emphasis in the original).
A federal habeas court may not overturn a state court decision that rejects a
sufficiency of the evidence claim merely because it disagrees with the state court’s resolution of
that claim. Instead, a federal court may grant habeas relief only if the state court decision was an
objectively unreasonable application of the Jackson standard. See Cavazos v. Smith, 565 U.S. 1,
2 (2011) (noting that “[b]ecause rational people can sometimes disagree, the inevitable
consequence of this settled law is that judges will sometimes encounter convictions that they
believe to be mistaken, but that they must nonetheless uphold”). Indeed, for a federal habeas court
reviewing a state court conviction, “the only question under Jackson is whether that finding was
so insupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S.
650, 656 (2012). A state court’s determination that the evidence does not fall below that threshold
is entitled to “considerable deference under AEDPA.” Id.
Pursuant to MICH. COMP. LAWS § 750.110a(2),
[a] person who breaks and enters a dwelling with intent to commit a
felony or a larceny in the dwelling or a person who enters a dwelling
without permission with intent to commit a felony or a larceny in
the dwelling is guilty of home invasion in the first degree if at any
time while the person is entering, present in, or exiting the dwelling
either of the following circumstances exists:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.
5

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1653 Filed 11/17/21 Page 6 of 15

Petitioner’s acts of entering the victim’s home without her permission while she was at home and
stealing her purse were sufficient to establish the elements of first-degree home invasion under
Michigan law.
Petitioner’s primary claim is that there was insufficient evidence to establish his
identity as the perpetrator. Under Michigan law, “[t]he identity of a defendant as the perpetrator
of the crimes charged is an element of the offense and must be proved beyond a reasonable doubt.”
Byrd v. Tessmer, 82 F. App’x 147, 150 (6th Cir. 2003) (citing People v. Turrell, 181 N.W.2d 655,
656 (Mich. Ct. App. 1970)).
The Michigan Court of Appeals rejected petitioner’s claim for the following
reasons:
With regard to the element of identity, defendant argued in his
motion for a directed verdict that the description the homeowner
gave to the police immediately after the intrusion was so different
from defendant’s actual height and age that the homeowner lacked
credibility. However, trial courts are not permitted to evaluate
witnesses’ credibility in ruling on motions for a directed verdict.
Further, the homeowner provided a sensible reason for each
disparity. The homeowner testified that defendant seemed taller
than he is because she attempted to deduce defendant’s height based
on her own when he had her pushed up against a door and they were
face-to-face. The homeowner also testified that defendant looked
younger than he is because, on the night of the intrusion, he was
clean-shaven, “[h]is face was kind of gaunt,” and she “saw no
markings of an older person,” such as wrinkles. In addition, there
was expert testimony that defendant was a major contributor to
DNA recovered from a button found in the house, which had
contained green and white fibers that matched the homeowner’s
description of the intruder’s shirt. Although defendant’s expert
challenged this evidence, that testimony was heard after defendant’s
motion for a directed verdict. Thus, given the deference afforded to
the prosecution, there was sufficient evidence for a rational trier of
fact to conclude that the element of identity was proven beyond a
reasonable doubt.
Farley, 2013 WL 6084198, at *2 (internal citations omitted).
6

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1654 Filed 11/17/21 Page 7 of 15

The Michigan Court of Appeals’ rejection of petitioner’s argument was not
irrational. First, by attacking the quality of the eyewitness identification, petitioner is, “in effect[,]
asking this court to re-weigh the evidence. This [it] cannot do.” United States v. Campbell, 18 F.
App’x 355, 358 (6th Cir. 2001) (internal quotation marks omitted). Petitioner’s “insufficient
evidence argument rests on an allegation involving witness credibility, which is clearly the
province of the jury and not this court.” Tyler v. Mitchell, 416 F.3d 500, 505 (6th Cir. 2005).
Second, “the testimony of a single, uncorroborated prosecuting witness or other
eyewitness is generally sufficient to support a conviction.” Brown v. Davis, 752 F.2d 1142, 1144
(6th Cir. 1985). In the present case, the victim unequivocally identified petitioner at trial as her
assailant. See ECF No. 7-4, PageID.459-61. This evidence alone was sufficient to support
petitioner’s conviction. See Brown v. Burt, 65 F. App’x 939, 944 (6th Cir. 2003).
Third, additional evidence supported petitioner’s conviction. “A conviction may
be based upon circumstantial evidence as well as inferences based upon the evidence. The law
does not require that the identity of a defendant be established by an eyewitness. Identity of a
defendant can be inferred through circumstantial evidence.” Dell v. Straub, 194 F. Supp. 2d 629,
647-48 (E.D. Mich. 2002) (citation omitted). In the present case, the DNA evidence recovered
from the button that was found inside the victim’s home constituted circumstantial evidence that
established petitioner’s identity as the perpetrator. See Kelley v. Jackson, 353 F. Supp. 2d 887,
892 (E.D. Mich. 2005) (stating that “DNA evidence provided circumstantial evidence that
Petitioner committed” the crime for which he was convicted).
Because there were multiple pieces of evidence establishing petitioner’s identity as
the perpetrator of the home invasion in this case, the Michigan Court of Appeals did not

7

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1655 Filed 11/17/21 Page 8 of 15

unreasonably apply Jackson in rejecting petitioner’s insufficient evidence claim. Petitioner is
therefore not entitled to relief on his first claim.
B. Claims II-IX: Petitioner’s Remaining Claims are Defaulted and/or Without Merit
Petitioner’s remaining claims are procedurally defaulted for several reasons. The
Supreme Court has stated:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a petitioner fails to demonstrate cause for his
procedural default, it is unnecessary for the Court to reach the prejudice issue. See Smith v.
Murray, 477 U.S. 527, 533 (1986).
Petitioner’s claims involving the suggestive identification procedure (Claim II), the
prosecutor’s failure to turn over evidence to the defense (Claim III), the admission of the DNA
evidence (Claim IV), prosecutorial misconduct (Claim V), and the sentencing-related claims
(Claims VI-VII) are procedurally defaulted because petitioner failed to preserve them by objecting
at trial. As a result, the Michigan Court of Appeals reviewed these claims for plain error only.
Farley, 2013 WL 6084198, at *2-8 (stating that petitioner’s Claims II-VII were not challenged at
trial and that the court would therefore review each for plain error only). The Sixth Circuit has
stated that contemporaneous objection rules, like that which exists under Michigan law, constitute
“an adequate and independent state ground that bars federal habeas review absent a showing of
cause and prejudice. Moreover, . . . a state appellate court’s review for plain error [should be

8

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1656 Filed 11/17/21 Page 9 of 15

viewed] as the enforcement of a procedural default.” Hinkle v. Randle, 271 F.3d 239, 244 (6th
Cir. 2001).
In addition to the substantive challenges raised in Claims II-VII, petitioner argues
that trial counsel was ineffective for failing to object to the errors alleged in each of the six claims.
However, the Michigan Court of Appeals specifically found petitioner’s ineffective assistance of
counsel claims to be abandoned because he failed to adequately brief them. See Farley, 2013 WL
6084198, at *1 (“[D]efendant notes that every unpreserved issue may be reviewed on ineffective
assistance of counsel grounds, but fails to address the merits of these arguments. Accordingly,
these issues are also abandoned.”). Under Michigan law, “[a]n appellant may not merely announce
his position and leave it to this Court to discover and rationalize the basis for his claims, nor may
he give only cursory treatment [of an issue] with little or no citation of supporting authority. Such
cursory treatment constitutes abandonment of the issue.” People v. Matuszak, 687 N.W.2d 342,
353 (Mich. Ct. App. 2004) (citations omitted). A state court’s conclusion that an argument was
abandoned or waived on appeal constitutes a procedural default. See Shahideh v. McKee, 488 F.
App’x 963, 965 (6th Cir. 2012). Petitioner’s ineffective assistance of trial counsel claims
contained in Claims II-VII are therefore procedurally defaulted.
Petitioner’s claims of ineffective assistance of counsel contained in Claim VIII are
also procedurally defaulted because petitioner failed to raise them on direct appeal. Michigan
Court Rule 6.508(D)(3) states:
The defendant has the burden of establishing entitlement to the relief
requested. The court may not grant relief to the defendant if the
motion . . . alleges grounds for relief, other than jurisdictional
defects, which could have been raised on appeal from the conviction
and sentence or in a prior motion under this subchapter, unless the
defendant demonstrates

9

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1657 Filed 11/17/21 Page 10 of 15

(a) good cause for failure to raise such grounds on appeal or in the
prior motion, and
(b) actual prejudice from the alleged irregularities that support the
claim for relief.
The state trial court rejected defendant’s ineffective assistance of counsel claims
because
Farley has failed to establish his claim of ineffective assistance of
counsel. Accordingly, appellate counsel’s failure to raise that claim
cannot constitute ineffective assistance of appellate counsel because
Farley cannot demonstrate that he was prejudiced by his appellate
counsel’s failure to do so. Thus, the Court concludes that Farley
cannot demonstrate good cause for his failure to raise his claim of
ineffective assistance of counsel on his direct appeal. Farley’s
motion for relief from judgment is properly denied.
ECF No. 24-4 at 9. Both the Michigan Court of Appeals and Michigan Supreme Court denied
petitioner leave to appeal via form order. See ECF No. 24-5 (Farley, No. 347876 (Mich. Ct. App.
July 3, 2019)) (denying defendant’s application for leave to appeal “because the defendant has
failed to establish that the trial court erred in denying the motion for relief from judgment”); ECF
No. 24-6 (lv. den. 947 N.W.2d at 804 (stating that “the defendant has failed to meet the burden of
establishing entitlement to relief under MCR 6.508(D)”). These orders, however, did not refer to
subsection (D)(3), nor did they cite petitioner’s failure to raise his claim on direct appeal as the
basis for their ruling.
Because the form orders in this case citing Rule 6.508(D) are
ambiguous as to whether they refer to procedural default or denial
of relief on the merits, the orders are unexplained. We must therefore
look to the last reasoned state court opinion to determine the basis
for the state court’s rejection of [petitioner’s] claim.
Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010). The state trial court’s opinion, which
clearly established the basis for its rejection of petitioner’s claims, constitutes the last reasoned
state court opinion and “present[s] a sufficient explanation that the ruling was based on procedural

10

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1658 Filed 11/17/21 Page 11 of 15

default under Michigan law.” Friday v. Pitcher, 99 F. App’x 568, 574 (6th Cir. 2004). Petitioner’s
remaining ineffective assistance of trial counsel claims are therefore procedurally defaulted.
Further,
“the Supreme Court has . . . held that a procedurally defaulted
ineffective assistance of counsel claim can serve as cause to excuse
the procedural default of another habeas claim only if the habeas
petitioner can satisfy the “cause and prejudice” standard with
respect to the ineffective assistance claim itself.
Coleman v. Mitchell, 268 F.3d 417, 432 (6th Cir. 2001). Because petitioner has failed to advance
any cause and prejudice argument in connection with his defaulted ineffective assistance of
counsel claims, these claims cannot be used to establish cause for petitioner’s substantive claims,
which, as stated above, were also procedurally defaulted.
With respect to petitioner’s ineffective assistance of appellate counsel claims, the
Court finds that petitioner has not shown that appellate counsel was ineffective. In Strickland v.
Washington, 466 U.S. 668, 687 (1984), the Supreme Court established a two-pronged test for
claims of ineffective assistance of counsel:

the petitioner must show (1) that counsel’s

performance was deficient, and (2) that the deficient performance prejudiced the defense.
In assessing Strickland’s first prong, the Supreme Court has stated that
[j]udicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and it is
all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. . . . Because of the difficulties inherent
in making the evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.
Id. at 689 (internal quotation marks and citations omitted).

11

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1659 Filed 11/17/21 Page 12 of 15

Further, it is well established that a criminal defendant does not have a
constitutional right to have appellate counsel raise every nonfrivolous issue on appeal. See Jones
v. Barnes, 463 U.S. 745, 751 (1983). The United States Supreme Court has explained:
For judges to second-guess reasonable professional judgments and
impose on appointed counsel a duty to raise every “colorable” claim
suggested by a client would disserve the . . . goal of vigorous and
effective advocacy . . . . Nothing in the Constitution or our
interpretation of that document requires such a standard.
Id. at 754. “A brief that raises every colorable issue runs the risk of burying good arguments—
those that, in the words of the great advocate John W. Davis, ‘go for the jugular,’—in a verbal
mound made up of strong and weak contentions.” Id. at 753 (citations omitted).
Strategic and tactical choices regarding which issues to pursue on appeal are
“properly left to the sound professional judgment of counsel.” United States v. Perry, 908 F.2d
56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate advocacy” is the “process of
winnowing out weaker arguments on appeal and focusing on those more likely to prevail.” Smith,
477 U.S. at 536 (internal quotation marks omitted). “Generally, only when ignored issues are
clearly stronger than those presented will the presumption of effective assistance of appellate
counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). As another judge
in this district stated,
[a]n appellate advocate may deliver deficient performance and
prejudice a defendant by omitting a ‘dead-bang winner,’ even
though counsel may have presented strong but unsuccessful claims
on appeal. A ‘dead-bang winner’ is an issue which was obvious
from the trial record, and one which would have resulted in a
reversal on appeal.
Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003) (internal quotation marks and
citations omitted).

12

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1660 Filed 11/17/21 Page 13 of 15

Petitioner has failed to show that appellate counsel’s performance fell outside the
wide range of reasonable professional assistance. Appellate counsel filed a forty-nine-page
appellate brief raising seven claims – the same claims raised by petitioner in his original habeas
petition.1 Petitioner has not shown that appellate counsel’s strategy in presenting these claims and
not raising others was deficient or unreasonable.

Further, because petitioner’s ineffective

assistance of appellate counsel claims lack merit, appellate counsel’s failure to raise the claims
outlined in petitioner’s post-conviction motion “does not constitute ‘cause’ to excuse the
petitioner’s default.” McMeans v. Brigano, 228 F.3d 674, 682-83 (6th Cir. 2000).
Petitioner has failed to demonstrate cause for any of his procedurally defaulted
claims. It is therefore unnecessary for the court to reach the prejudice prong of the cause-andprejudice analysis. See Smith, 477 U.S. at 533. Regardless, petitioner would be unable to
demonstrate prejudice because his claims do not entitle him to relief. “The cause-and-prejudice
analysis is a conjunctive one, requiring a petitioner to satisfy both prongs to excuse a procedural
default.” Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007). For the reasons stated by the
Michigan Court of Appeals in rejecting petitioner’s Claims II-VII and by the Macomb County
Circuit Court in rejecting petitioner’s Claims VIII-IX, petitioner has failed to show that his
procedurally defaulted claims have merit. Petitioner therefore cannot demonstrate actual prejudice
as a result of the alleged violations of federal law.
Finally, “in an extraordinary case, where a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477
U.S. 478, 479-80 (1986). The Sixth Circuit has explained:

1

See Defendant-Appellant’s Brief on Appeal, ECF No. 7-8, PageID.877-938.
13

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1661 Filed 11/17/21 Page 14 of 15

The threshold inquiry is whether new facts raise[ ] sufficient doubt
about [the petitioner’s] guilt to undermine confidence in the result
of the trial. In order to establish actual innocence, the petitioner
must show that it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt.
Importantly, ‘actual innocence’ means factual innocence, not mere
legal insufficiency. The Supreme Court has cautioned that the
actual innocence exception should remain rare and only be applied
in the extraordinary case. An actual innocence claim . . . is not itself
a constitutional claim, but instead a gateway through which a habeas
petitioner must pass to have his otherwise barred constitutional
claim considered on the merits.
Reeves v. Fortner, 490 F. App’x 766, 769 (6th Cir. 2012) (internal quotation marks and citations
omitted).
Although petitioner claims that he has an alibi for the crime, the only evidence he
presents in support of his alibi is an affidavit executed by his daughter Amanda Mourelo regarding
the proposed alibi testimony that she would have provided at trial. Mourelo avers that petitioner
was living with her while he was on parole in 2009. She further attests to their normal routine in
the fall of 2009 of eating meals together at local restaurants, returning home before 9:00 p.m., and
watching television together before they each went to sleep in their respective rooms. However,
Mourelo avers that she did not specifically remember the evening of the home invasion, October
20, 2009, but that she believes they followed their usual routine or habit. See ECF No. 26-1,
PageID.1643. Because Mourelo’s proposed testimony does not show that petitioner could not
have committed the crime, it “does not demonstrate that, had it been presented to the jury, it is
more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable
doubt.” Reeves, 490 F. App’x at 770. This is therefore “not one of the rare, extraordinary cases
that warrants equitable tolling because of actual innocence.” Id. Consequently, and for the other
reasons stated above, petitioner is not entitled to relief on Claims II-IX, as they are all defaulted
and/or without merit.
14

Case 2:15-cv-13899-BAF-RSW ECF No. 27, PageID.1662 Filed 11/17/21 Page 15 of 15

IV. CONCLUSION
Accordingly,

IT IS ORDERED that petitioner’s application for a writ of habeas corpus is denied.

IT IS FURTHER ORDERED that no certificate of appealability shall issue, as
petitioner has failed to make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).

IT IS FURTHER ORDERED that petitioner may not proceed on appeal in forma
pauperis because no appeal in this case could be taken in good faith. See 28 U.S.C. § 1915(a)(3).
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR U.S. DISTRICT JUDGE

Dated: November 17, 2021
Detroit, Michigan

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of
record herein by electronic means or first-class U.S. mail on November 17, 2021.
Bruce Farley #184082
CENTRAL MICHIGAN CORRECTIONAL
FACILITY
320 N. HUBBARD
ST. LOUIS, MI 48880

s/Johnetta M. Curry-Williams
Case Manager

15