Love v. Woods

Filing 7

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MENDO LOVE,
Petitioner,

Case No. 2:15-cv-14168

v.

HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

PAUL KLEE,
Respondent.
___________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner, Mendo Love, has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254. Petitioner is incarcerated at the Chippewa Correctional Facility in
Kincheloe, Michigan. He challenges his convictions for first-degree premeditated murder
and possession of a firearm during the commission of a felony (“felony-firearm”),
claiming that he received ineffective assistance of counsel. Respondent, through the
Attorney General’s Office, has filed an answer in opposition to the petition, arguing that
Petitioner’s ineffective assistance of counsel claim is meritless. For the reasons set forth
below, the Court denies the petition and denies a certificate of appealability.
I.
Petitioner’s convictions arise from a December 3, 2010 shooting on Winthrop
Street in Detroit, Michigan, which resulted in the death of Raymond Singleton, II.
Raymond Singleton, II had two brothers: Dontae and Sir Lawrence Nance. In
December 2010, Sir Lawrence Nance was dating Petitioner’s sister, Mercedes. On

December 3, 2010, Raymond, Dontae, and Sir Lawrence were at their family home,
located at 14337 Winthrop, when Petitioner arrived with his cousin, Marquise. When the
cousins arrived, Sir Lawrence was standing on the front porch and observed a white
Cadillac parked outside his father’s home. He also noted that Petitioner was wearing a
baseball cap, but could not remember what it looked like. Dontae specified that it was a
Michigan baseball cap. Raymond, Dontae, Petitioner, and Marquise sat in the basement,
talking for ten to fifteen minutes before Petitioner and Marquise left to go to the liquor
store. They came back with more liquor about twelve minutes later.
When the cousins returned, the conversation turned to an argument between
Mercedes’ mother and Sir Lawrence that had occurred earlier in the day that had upset
Petitioner’s mother. Despite the discussion of the earlier argument, the mood in the
basement was calm. The cousins stayed at the home for about thirty minutes and then left
for the second time, saying they were going to the liquor store and would return shortly.
Raymond accompanied them, but Dontae and Sir Lawrence stayed home. Mr.
Singleton’s family learned at about 8:00 that evening that Raymond had been shot.
On the night of the shooting, Karl Long was at his cousin Earnest Johnson’s house
on Winthrop, and heard gunshots while sitting in the front room. They went out to the
front porch and Mr. Long saw someone lying on the ground to the left of the house. He
also observed a cream colored Cadillac and saw a person running toward it. When the
individual reached the Cadillac, Mr. Long overheard him say “I got that mother fucker.
He dead.” (ECF No. 5-7 at 77.) The individual then ran away through the yard, dropping

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his hat, and the driver of the Cadillac did a u-turn and drove away. Mr. Long approached
the victim on the ground to see if he knew who it was, but he did not know Mr. Singleton.
City of Detroit Police Officer Eric Carter was called out to 14011Winthrop on
December 3, 2010. He and his partner, both plain clothes officers, were the first police
on the scene of the shooting. After clearing a crowd of people away from the scene,
Officer Carter went to assist Mr. Singleton, who was on his side on the ground. Mr.
Singleton was bleeding and screaming that he had been shot and was going to die. When
Officer Carter asked who had shot him, Mr. Singleton replied loudly that it was “Mendo
Love.” (ECF No. 5-7 at 44.) He repeated the name at least three times. EMS arrived to
transport Mr. Singleton to the hospital, and Officer Carter and his partner canvassed the
neighborhood. About three houses south of where Mr. Singleton was lying on the
ground, Officer Carter observed several shell casings and a discarded hat. He ordered a
canine officer to see if the hat could be used for tracking.
Officer Salisbury, a canine handler with the City of Detroit Police, arrived at the
scene on December 3, 2010 with his tracking dog. The canine was able to use the hat for
tracking purposes, continuing northbound from where the hat was found and through an
alley, until reaching the Big V Liquor Store (“Liquor Store”) at 13963 Greenfield. The
dog stopped tracking near the pay phone in the parking lot of the Liquor Store. Officer
Carter obtained the store’s surveillance video.
Ron Gibson, a sergeant with the Detroit Police Department and expert in the area
of forensic video extraction, was then called to the Liquor Store to extract the

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surveillance video. The video showed a light colored Cadillac parked between the curb
and sidewalk in front of the store at 8:10 p.m. on December 3, 2010. An individual
walked from the Cadillac to the store and then back to the car seven minutes later, at 8:17
p.m. The Cadillac pulled away from the curb onto Greenfield Avenue at 8:18 p.m.,
returned to nearly the same spot at 8:32 p.m., and pulled away three minutes later. The
video then showed a canine officer’s dog tracking to the building and entering at 8:56
p.m.
Eugene Fitzhugh, a Detroit Police Officer assigned to the crime scene services
unit, was called to 14011 Winthrop on December 3, 2010, where he was tasked with
photographing the scene, as well as documenting and collecting evidence. He completed
a four-page scene report, including a sketch of the area. He found two 40-caliber shell
casings and a cell phone battery at the scene. In the driveway between 13944 and 13934
Winthrop, he found a baseball cap with the letter “M” on the front.
Andrea Halvorson works in the biology unit of the Michigan State Police Crime
Lab, and is an expert in DNA analysis. In the instant matter, she received swabs of a
baseball hat, a known blood sample from Mr. Singleton, and a known buccal sample
from Mr. Love. Ms. Halvorson found at least two donors associated with the baseball
hat sample. The major donor was an unidentified male and she was unable to make a
determination as to whether the minor donor was Mr. Love.

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Amanda Crocker is a latent fingerprint expert with the Department of State Police.
She processed the cell phone battery that was found at the scene of the shooting for latent
prints, but found none of comparison value.
After a three-day trial in Wayne County Circuit Court, the jury deliberated for
approximately one hour. At one point during the deliberation, the jury requested, among
other things, the transcripts of the testimony of Mr. Singleton’s brothers. The Court
informed the jury that there were no transcripts and that they would need to use their
“collective memories” to recollect the testimony. (ECF No. 5-8 at 74.) Both counsel
agreed to this plan. After about 25 more minutes of jury deliberation, Petitioner was
convicted of first-degree murder and felony-firearm. On September 26, 2012, he was
sentenced to life without parole for the murder conviction, plus two years consecutive for
the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising the
claim that he was entitled to a new trial because the trial court failed to instruct the jury as
to the tracking dog instruction and that transcripts of witnesses’ testimony could be made
available, and that his trial counsel was ineffective for failing to request the instruction
and agreeing to the instructions as given.
The Michigan Court of Appeals affirmed the conviction. People v. Love, No.
314439, 2014 WL 2118266 (Mich. Ct. App. May 20, 2014). Petitioner filed an
application for leave to appeal in the Michigan Supreme Court, raising the same claim
raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to

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appeal. People v. Love, 497 Mich. 904 (2014). Petitioner then filed the instant petition
for habeas relief, asserting that his trial counsel was ineffective.
II.
The petitioner’s claims are reviewed against the standards established by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (“AEDPA”). The AEDPA provides:
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 proceedings.

28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute
permits a federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court but unreasonably applies that

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principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)
(quoting Williams, 529 U.S. at 413). However, “[i]n order for a federal court to find a
state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
decision must have been more than incorrect or erroneous. The state court’s application
must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations
omitted); see also Williams, 529 U.S. at 409. “A state court’s determination that a claim
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’
on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Put another way,
Section 2254(d) reflects the view that habeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not a substitute
for ordinary error correction through appeal. . . . As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show
that the state court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.
Id. at 102-03 (internal quotation marks and citation omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of [Supreme
Court] cases – indeed, it does not even require awareness of [Supreme Court] cases, so
long as neither the reasoning nor the result of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8 (2002). “[W]hile the principles of “clearly established

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law” are to be determined solely by resort to Supreme Court rulings, the decisions of
lower federal courts may be instructive in assessing the reasonableness of a state court’s
resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing
Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp.
2d 354, 359 (E.D. Mich. 2002).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998).
III.
Petitioner argues that his trial attorney was ineffective. Specifically, he claims
counsel was ineffective in: (1) failing to request the tracking dog evidence instruction, set
forth in the Michigan Model Criminal Jury Instructions; and (2) agreeing to the court’s
refusal to provide transcripts of the testimony of Mr. Singleton’s brothers, per the jury’s
request. Respondent counters that the Michigan Court of Appeals’ holding that
Petitioner was not denied the effective assistance of trial counsel was reasonable, and
therefore cannot be disturbed.
To establish that he received ineffective assistance of counsel, a petitioner must
show, first, that counsel’s performance was deficient and, second, that counsel’s deficient
performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687
(1984). A petitioner may show that counsel’s performance was deficient by establishing

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that counsel’s performance was “outside the wide range of professionally competent
assistance.” Id. at 689. This “requires a showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at
687.
To satisfy the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694. A court’s review of counsel’s
performance must be “highly deferential.” Id. at 689. Habeas relief may be granted only
if the state-court decision unreasonably applied the standard for evaluating ineffectiveassistance-of-counsel claims established by Strickland. Knowles v. Mirzayance, 556 U.S.
111, 122-23 (2009). “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.” Id. at 123 (internal
quotation marks omitted).
Petitioner first argues that trial counsel erred by failing to request the tracking dog
evidence instruction as set forth in the Michigan Model Criminal Jury Instructions, which
provides as follows:
You have heard testimony about the use of a tracking-dog. You must
consider tracking-dog evidence with great care and remember that it has
little value as proof. Even if you decide that it is reliable, you must not
convict the defendant based only on tracking-dog evidence. There must be
other evidence that the defendant is guilty.

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Mich. M Crim. JI 4.14. During the trial, Officers Carter and Salisbury testified as to the
canine officer’s tracking of the baseball hat, which led them to the pay phone of the
Liquor Store, and ultimately to the video evidence of a light colored Cadillac. The
Michigan Court of Appeals concluded that the “tracking dog evidence presented at trial
was relatively minor in the context of the evidence as a whole” and that counsel may
have therefore determined that a dog-tracking instruction would not be helpful. Love,
2014 WL 2118266, at *2. The Court of Appeals further reasoned that, even if trial
counsel’s performance had been deficient in some way, the trial outcome would not have
been different because evidence of Petitioner’s guilt was “overwhelming.” Id.
There is nothing unreasonable in the Michigan Court of Appeals’ decision with
respect to the jury instruction. A review of the trial transcript demonstrates that the
tracking-dog evidence was relatively minor, in light of other evidence, such as Mr.
Singleton’s identification of Petitioner as the person who shot him and Mr. Long’s
testimony that he saw a person wearing Petitioner’s hat shout that he “got” the victim and
that the victim was “dead.” (ECF No. 5-7 at 77.) Mr. Long also testified to seeing the
cream-colored Cadillac at the scene, which was later identified in the video footage from
the Liquor Store, making the video evidence brought to light by the tracking dog
somewhat redundant. It is reasonable to assume that counsel simply considered the jury
instruction to be unimportant and focused attention on other matters more relevant to the
evidence in the case. See Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (the reviewing
court is “required not simply to give [the] attorneys the benefit of the doubt, but to

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affirmatively entertain the range of possible reasons [counsel] may have had for
proceeding as they did.” (internal quotation marks and citation omitted) (second
alteration added)). For example, the Court gave an instruction related to how to weigh
the evidence of an out-of-court statement made by Petitioner, which was likely much
more important to his case than how to weigh the tracking dog evidence. (ECF No. 5-8
at 59.) As such, Petitioner’s trial counsel was not ineffective in failing to request a dogtracking jury instruction.
Petitioner also argues that trial counsel was ineffective because he acquiesced to
the trial court’s instruction to the jury relating to the availability of trial transcripts.
Specifically, during its deliberations the jury requested the testimony of Mr. Singleton’s
brothers, Sir Lawrence and Dontae. The court, with both counsels’ agreement, informed
the jury that:
We don’t have transcripts of testimony. Okay? The good reporter here
takes a recording of what is being said and you can see that . . . it’s being
recorded, but it’s not - - there’s not a transcript of that at this point. It has
to be physically prepared and that’s not done at this juncture. Okay?
So what I would ask you to do - - and I know this is difficult at times - - but
take each person’s testimony, use the chalkboard back there and the 12 of
you should be able to collectively recollect the testimony of each individual
who testified. And just write down a few salient points. That tends to work
for people.
(ECF No. 5-8 at 74.) The jury responded to this instruction, noting that the information
had been requested “knowing that perhaps it wouldn’t be there.” (Id. at 75.)
Trial counsel’s agreement to the court’s instructions to the jury related to the
testimony of Mr. Singleton’s brothers was not ineffective for two reasons. First, the

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Michigan Court of Appeals concluded that the trial court’s instruction was consistent
with Michigan Court Rule 2.513(P), because it did not foreclose the possibility of having
the testimony reviewed at a later time. It is not the province of this Court to reexamine
the Michigan Court of Appeals’ interpretation that the trial court’s instruction complied
with Michigan law. See Estelle v. McQuire, 502 U.S. 62, 67-68 (1991) (noting that it is
not “the province of a federal habeas court to reexamine state-court determinations on
state-law questions.”).
Second, it is reasonable to surmise that trial counsel made this decision as part of a
strategy to keep the specifics of the brothers’ damaging testimony out of the hands of the
jury during deliberations. As the Michigan Court of Appeals explained, the testimony at
issue was “generally damaging to [Petitioner] at trial,” because both brothers testified that
Petitioner had been present at the house with Mr. Singleton right before the shooting, and
“wearing the same hat observed at the scene of the shooting.” Love, 2014 WL 2118266
at *3. In sum, there is no indication that trial counsel was ineffective and the Michigan
Court of Appeals’ dispensation of this matter was reasonable. Accordingly, habeas relief
is denied.
IV.
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of
the Rules Governing Section 2254 Proceedings now requires that the Court “must issue
or deny a certificate of appealability when it enters a final order adverse to the applicant.”

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A COA may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (citation omitted). In this case, the Court concludes that reasonable jurists would
not debate the conclusion that the petition fails to state a claim upon which habeas corpus
relief should be granted. Therefore, the Court will deny a certificate of appealability.
For the reasons stated above, the petition for a writ of habeas corpus and a
certificate of appealability are DENIED and the matter is DISMISSED.
SO ORDERED.

s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: September 7, 2017

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
September 7, 2017.
s/D. Tofil
Deborah Tofil, Case Manager

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