Davis v. Trierweiler
Filing
12
OPINION AND ORDER DENYING the 1 Petition for Writ of Habeas Corpus filed by Mario Davis and DENYING a Certificate of Appealability Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARIO DAVIS, #231964,
Petitioner,
v.
Case No. 15-14420
TONY TRIERWEILER,
Respondent.
________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
Michigan prisoner Mario Durrel Davis (“Petitioner”), acting pro se, brings a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in
the Oakland County Circuit Court in 2013, Petitioner was convicted of possession with
intent to deliver less than 50 grams of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iv),
possession of less than 25 grams of heroin, Mich. Comp. Laws § 333.7403(2)(a)(v),
felon in possession of a firearm, Mich. Comp. Laws § 750.224f, three counts of
possession of a firearm during the commission of a felony, Mich. Comp. Laws §
750.227b, two counts of resisting or obstructing a police officer, Mich. Comp. Laws §
750.81d, possession of marijuana (second offense), Mich. Comp. Laws §
333.7403(2)(d) and Mich. Comp. Laws § 333.7413(2), and driving with an unlawful
blood alcohol level, Mich. Comp. Laws § 257.625(1)(c). He was sentenced, as a fourth
habitual offender, Mich. Comp. Laws § 769.12, to concurrent terms of 3 to 40 years
imprisonment on the cocaine and felon in possession convictions, concurrent terms of 3
to 15 years imprisonment on the heroin and resisting or obstructing a police officer
convictions, a concurrent term of 1 to 2 years imprisonment on the marijuana conviction,
a concurrent term of 180 days in the Oakland County Jail on the driving conviction, and
concurrent terms of 2 years imprisonment on the felony firearm convictions, to be
served consecutively to the other sentences.
In his pleadings, Petitioner raises claims concerning the legality of a search, the
sufficiency of the evidence, a drug quantity error at the preliminary examination, the
admission of drug profile testimony, the conduct of the prosecutor, the effectiveness of
trial counsel, the state court’s jurisdiction, and the trial court’s control of the
proceedings. For the reasons that follow, the court denies with prejudice the habeas
petition. The court also denies a certificate of appealability.
I. BACKGROUND
Petitioner’s convictions arise from an incident on February 28, 2013 in Oak Park,
Michigan, in which the police found him asleep at the wheel of his car. Drugs, a gun,
and a significant amount of cash were in his possession. The Michigan Court of
Appeals described the relevant facts, which are presumed correct on habeas review,
see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as
follows:
The police discovered defendant sleeping in his car, which was in the
roadway and stopped at a red light. The vehicle was in gear and
defendant's foot was on the brake. From outside the car, an officer could
see a liquid-filled cup in the center console and an empty liquor bottle on
the front passenger seat. When the police removed defendant from the
car, they smelled both alcohol and an odor of marijuana emanating from
inside.
The police searched defendant and his car, and they found marijuana on
defendant's person and a gun in the car's glove compartment. They
placed defendant under arrest and took him to the police station. While at
the station, defendant attempted to eat a small bag of cocaine and
struggled with police officers when they tried to stop him from doing so.
The police also found a small packet of heroin on defendant's person
during a more thorough search at the police station.
The prosecutor charged defendant with the following crimes: (1)
possession with intent to deliver less than 50 grams of cocaine, MCL
333.7401(2)(a)(iv); (2) possession of less than 25 grams of heroin, MCL
333.7403(2)(a)(v); (3) felon in possession of a firearm, MCL 750.224f; (4)
three counts of possession of a firearm during the commission of a felony,
MCL 750.227b; (5) two counts of resisting or obstructing a police officer,
MCL 750.81d; (6) possession of marijuana (second offense), MCL
333.7403(2)(d) and MCL 333.7413(2); (7) and driving with an unlawful
blood alcohol level, MCL 257.625(1)(c).
At trial, defendant denied that he intended to deliver the cocaine, and
asserted that he did not know of the gun's location in the car. The jury
clearly did not believe defendant's protestations, and convicted him of all
charges.
People v. Davis, No. 318059, 2015 WL 501928, *1 (Mich. Ct. App. Feb. 5, 2015)
(unpublished). Additionally, the court adopts the more-detailed statement of facts set
forth by the prosecution on direct appeal to the extent that those facts are consistent
with the state court record. See Pros. App. Brf., pp. 1–13.
Following his convictions and sentencing, Petitioner filed an appeal of right with
the Michigan Court of Appeals proffering briefs filed both by counsel and in pro per that
essentially raised the same claims as presented on habeas review. The court denied
relief on those claims and affirmed his convictions. Id. at *1–7. Petitioner also filed an
application for leave to appeal with the Michigan Supreme Court, which was denied in a
standard order. People v. Davis, 498 Mich. 873, 868 N.W.2d 626 (2015).
Petitioner thereafter filed his federal habeas petition. He raises the following
claims as grounds for relief:
I.
Petitioner’s Fourth Amendment rights were violated by the
warrantless search of his vehicle and the locked glove box
compartment following Petitioner’s arrest for operating under the
influence of liquor; the state appellate court decision is an
unreasonable determination of the facts in light of the evidence
presented. 28 U.S.C. § 2254(d).
II.
The evidence was insufficient to support Petitioner’s convictions for
felon in possession of a firearm and felony firearm beyond a
reasonable doubt.
III.
Petitioner should be granted a new trial and/or a charge reduction
where the prosecutor presented material false and/or inaccurate
information at the preliminary examination.
IV.
The evidence of possession with intent to deliver cocaine was
insufficient where the prosecutor failed to prove beyond a
reasonable doubt that Petitioner intended to deliver the very small
amount of cocaine.
V.
Petitioner was denied a fair trial by the introduction of improper
drug profile testimony.
VI.
The prosecutor denied Petitioner a fair trial by asserting a fact not
in evidence in order to argue Petitioner’s guilt of possession with
intent to deliver heroin.
VII.
Petitioner was denied a fair trial where trial counsel failed to
produce crucial evidence at trial and failed to request a continuance
so that Petitioner’s mother could appear and testify.
VIII.
Petitioner was denied his fundamental due process protections to a
fair trial under both state and federal constitutions, when the trial
court arraigned Petitioner without first having acquired subjectmatter jurisdiction over Petitioner, creating a jurisdictional defect,
that not only voids Petitioner’s convictions, but demand his
immediate release.
IX.
Petitioner was denied his fundamental due process protections to a
fair trial as guaranteed under both the state and federal
constitutions, when the trial court failed to control the proceedings
at all times which resulted in Petitioner’s void convictions.
X.
Petitioner was denied his fundamental due process protections to a
fair trial as guaranteed under both the state and federal
constitutions, when the prosecution failed in its duty to insure a fair
trial, which mandates Petitioner’s immediate release from custody
and a bar to re-prosecution.
XI.
Petitioner was denied his fundamental due process protections to a
fair trial as guaranteed under both the state and federal
constitutions, when Petitioner was denied counsel at the critical
“pre-trial” stage of the proceedings for refusal to investigate the
case, for refusal to object to the court’s failure to control the
proceedings; and for refusal to object to the prosecutorial
misconduct, all of which are tantamount to abandonment by
counsel that results in structural error.
Respondent has filed an answer to the petition contending that it should be denied
because certain claims are barred by procedural default and because all of the claims
lack merit.
II. STANDARD
Because Petitioner filed his habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C.
§ 2241 et seq., the provisions of the AEDPA govern this case. Lindh v. Murphy, 521
U.S. 320, 336 (1997). 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 proceeding.
28 U.S.C. §2254(d) (1996).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [that] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (per curiam) (quoting Williams v.
Taylor, 529 U.S. 362, 405–06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas
court to ‘grant the writ if the state court identifies the correct governing legal principle
from [the Supreme] Court but unreasonably applies that principle to the facts of
petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529
U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court
find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state
court’s decision must have been more than incorrect or erroneous. The state court’s
application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520–21
(citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus imposes a ‘highly
deferential standard for evaluating state-court rulings,’ and ‘demands that state-court
decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)
(quoting Lindh, 521 U.S. at 333 n.7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
curiam)).
A state court’s determination that a claim lacks merit “precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized “that even
a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to
§ 2254(d), “a habeas court must determine what arguments or theories supported or
. . . could have supported, the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of the Supreme Court. Id. Thus, in
order to obtain federal habeas relief, a state prisoner must show that the state court’s
rejection of 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.” Id.; see also White v. Woodall, __ U.S. __, 134 S. Ct. 1697, 1702
(2014). Federal judges “are required to afford state courts due respect by overturning
their decisions only when there could be no reasonable dispute that they were wrong.”
Woods v. Donald, __ U.S. __, 135 S. Ct. 1372, 1376 (2015). A habeas petitioner
cannot prevail as long as it is within the “realm of possibility” that fairminded jurists
could find the state court decision to be reasonable. Woods v. Etherton, __ U.S. __,
136 S. Ct. 1149, 1152 (2016).
Section 2254(d)(1) limits a federal 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.
Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)
(noting that the Supreme Court “has held on numerous occasions that it is not ‘an
unreasonable application of clearly established Federal law’ for a state court to decline
to apply a specific legal rule that has not been squarely established by this Court”)
(quoting Wright v. Van Patten, 552 U.S. 120, 125–26 (2008) (per curiam)); Lockyer,
538 U.S. at 71–72. Section 2254(d) “does not require a state court to give reasons
before its decision can be deemed to have been ‘adjudicated on the merits.’”
Harrington, 562 U.S. at 100. Furthermore, it “does not require citation of [Supreme
Court] cases—indeed, it does not even require awareness of [Supreme Court] cases,
so long as neither the reasoning nor the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16.
The requirements of clearly established law are to be determined solely by
Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly
established Federal law as determined by the Supreme Court’” and it cannot provide
the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per
curiam); see also Lopez v. Smith, __ U.S. __ 135 S. Ct. 1, 2 (2014) (per curiam). The
decisions of lower federal courts, however, may be useful in assessing the
reasonableness of the 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) (Tarnow, J.).
A state court’s factual determinations are presumed correct on federal habeas
review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with
clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360–61 (6th Cir.
1998). Lastly, habeas review is “limited to the record that was before the state court.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
III. DISCUSSION
A. Procedural Default
As an initial matter, Respondent contends that several of Petitioner’s habeas
claims are barred by procedural default due to his failure to make timely objections and
the Michigan courts’ denial of relief based upon those failures to object. On habeas
review, however, federal courts “are not required to address a procedural-default issue
before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212,
215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). The
Supreme Court has explained the rationale behind such a policy: “Judicial economy
might counsel giving the [other] question priority, for example, if it were easily
resolvable against the habeas petitioner, whereas the procedural-bar issue involved
complicated issues of state law.” Lambrix, 520 U.S. at 525. Such is the case here.
The procedural issues are somewhat complex and intertwined with the substantive
claims, and the substantive claims are more readily decided on the merits.
Accordingly, the court need not address the procedural default issues and shall
proceed to the merits of the habeas claims.
B. Merits
i. Illegal Search (Habeas Claim I)
Petitioner first asserts that he is entitled to habeas relief because the search of
his car and seizure of evidence was illegal. Respondent contends that this claim is not
cognizable on habeas review. The Michigan Court of Appeals denied relief on this
claim finding that the police had probable cause to search the car because they
smelled marijuana and that the trial court did not err in refusing to suppress the gun as
evidence. Davis, 2015 WL 501928 at *1–2.
It is well-settled that federal courts will not address a Fourth Amendment claim
on habeas review if the petitioner had a full and fair opportunity to litigate the claim in
state court and the presentation of the claim was not thwarted by a failure of the state’s
corrective process. See Stone v. Powell, 428 U.S. 465, 494–95 (1976). A court must
perform two distinct inquiries when determining whether a petitioner may raise an
illegal arrest claim in a habeas action. First, the “court must determine whether the
state procedural mechanism, in the abstract, presents the opportunity to raise a Fourth
Amendment claim. Second, the court must determine whether presentation of the
claim was in fact frustrated because of a failure of that mechanism.” Machacek v.
Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (quoting Riley v. Gray, 674 F.2d 522 (6th
Cir. 1982)). Michigan has a procedural mechanism which presents “an adequate
opportunity for a criminal defendant to raise a Fourth Amendment claim.” Robinson v.
Jackson, 366 F. Supp. 2d 524, 527 (E.D. Mich. 2005) (Gadola, J.). This procedural
mechanism is a motion to suppress, ordinarily filed before trial. See People v.
Ferguson, 376 Mich. 90, 93–94, 135 N.W.2d 357, 358–59 (1965) (describing the
availability of a pre-trial motion to suppress); see also People v. Harris, 95 Mich. App.
507, 509, 291 N.W.2d 97, 99 (1980) (analyzing the legality of a warrantless search,
seizure, and arrest even though raised for the first time on appeal). Consequently,
Petitioner is entitled to relief on this claim only if he shows that he was prevented from
litigating the Fourth Amendment issue by a failure of Michigan’s procedural
mechanism.
Petitioner makes no such showing. To the contrary, he was able to raise his
illegal search issue in a suppression motion before the trial court and again on direct
appeal and was denied relief. His Fourth Amendment claim is thus not cognizable on
federal habeas review pursuant to Stone v. Powell. Habeas relief is not warranted on
this claim.
ii. Sufficiency of the Evidence (Habeas Claims II & VI)
Petitioner next asserts that he is entitled to habeas relief because the prosecutor
failed to present sufficient evidence to support his convictions for felon in possession of
a firearm and felony firearm, as well as his conviction for possession with intent to
deliver cocaine. Respondent contends that these claims lack merit.
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 question on a
sufficiency of the evidence claim is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979). The Jackson standard must be applied “with explicit reference
to the substantive elements of the criminal offense as defined by state law.” Brown v.
Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16).
A federal habeas court views this standard through the framework of 28 U.S.C.
§ 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus, under the
AEDPA, challenges to the sufficiency of the evidence “must survive two layers of
deference to groups who might view facts differently” than a reviewing court on habeas
review—the factfinder at trial and the state court on appellate review—as long as those
determinations are reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).
“[I]t is the responsibility of the jury—not the court—to decide what conclusions should
be drawn from the evidence admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011)
(per curiam). “A reviewing court does not re-weigh the evidence or re-determine the
credibility of the witnesses whose demeanor has been observed by the trial court.”
Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v.
Lonberger, 459 U.S. 422, 434 (1983)). Accordingly, the “mere existence of sufficient
evidence to convict . . . defeats a petitioner’s claim.” Matthews, 319 F.3d at 788–89.
With respect to the firearm offenses, Petitioner asserts that the prosecution
failed to present sufficient evidence that he possessed the firearm found in the car.
Under Michigan law, the elements of felon in possession of a firearm are: (1) the
defendant was convicted of a felony, (2) the defendant possessed a firearm, and (3) at
the time of possession less than three or five years, depending on the underlying
felony, has passed since the defendant completed his term of incarceration, satisfied
all conditions of probation and parole, and paid all fines. People v. Perkins, 262 Mich.
App. 267, 270, 686 N.W.2d 237 (2004), aff’d 473 Mich. 626, 703 N.W.2d 448 (2005);
Mich. Comp. Laws § 750.224f. The elements of felony firearm are: (1) the defendant
possessed a firearm, (2) during the commission of, or an attempt to commit, a felony
offense. Mich. Comp. Laws § 750.227b; People v. Akins, 259 Mich. App. 545, 554,
675 N.W.2d 863 (2003) (quoting People v. Avant, 235 Mich. App. 499, 505, 597
N.W.2d 864 (1999)). Possession of a firearm can be actual or constructive and can be
proven by circumstantial evidence. People v. Hill, 433 Mich. 464, 446 N.W.2d 140, 143
(1989). “[A] defendant has constructive possession of a firearm if the location of the
weapon is known and it is reasonably accessible to the defendant.” Id.
Applying the Jackson standard and the aforementioned state law, the Michigan
Court of Appeals denied relief on this claim. The court explained in relevant part:
Here, the gun at issue was located in the locked glove compartment of
the car, and the glove compartment could be unlocked by the same key
that operated the car's ignition. Defendant had control of both the key and
the car, was the sole occupant in the vehicle, and had other personal
items inside it. A police officer testified that the glove compartment was
within reach of the driver's seat. The glove compartment also contained
paperwork belonging to defendant, which indicates that defendant had
access to the compartment-and the gun (and loose ammunition for the
weapon) contained within. Accordingly, the prosecution presented more
than sufficient evidence to establish that defendant possessed a firearm.
Davis, 2015 WL 501928, at *3 (footnotes omitted).
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The prosecution presented
sufficient evidence to support Petitioner’s weapons convictions. The police testimony
established that Petitioner was the only one in the car, that the gun was in the glove
box along with ammunition and paperwork with Petitioner’s name on it, that the glove
box was within Petitioner’s reach, that the glove box, while locked, could be opened
with the ignition key, and that Petitioner had possession of the key and the car at the
time of the police encounter. Viewed in a light favorable to the prosecution, such
testimony was sufficient for the jury to conclude beyond a reasonable doubt that
Petitioner possessed the gun so as to support his convictions for felon in possession of
a firearm and felony firearm.
Petitioner challenges the inferences that the jury drew from the evidence
presented at trial. However, it is the job of the fact-finder at trial, not a federal habeas
court, to resolve such evidentiary conflicts. Jackson, 443 U.S. at 326; Martin v.
Mitchell, 280 F.3d 594, 618 (6th Cir. 2002). A federal court reviewing a state court
conviction on habeas review that is “faced with a record of historical facts that supports
conflicting inferences must presume—even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflicts in favor of the prosecution, and
must defer to that resolution.” Cavazos, 565 U.S. at 7 (quoting Jackson, 443 U.S. at
326); Walker v. Engle, 703 F.2d 959, 969–70 (6th Cir. 1983) (same). The trial court’s
verdict, and the Michigan Court of Appeals’ decision affirming that verdict, were
reasonable. The evidence at trial, viewed in a light favorable to the prosecution, easily
established beyond a reasonable doubt that Petitioner committed the weapons
offenses of which he was convicted.
Petitioner also asserts that the prosecution failed to present sufficient evidence
that he intended to deliver the cocaine so as to support his conviction for possession
with intent to deliver less than 50 grams of cocaine. Under Michigan law, the elements
of the offense are: (1) that the recovered substance is cocaine, (2) that the cocaine is
in a mixture weighing less than 50 grams, (3) that defendant was not authorized to
possess the substance, and (4) that defendant knowingly possessed the cocaine with
the intent to deliver. People v. Wolfe, 440 Mich. 508, 516–17, 489 N.W.2d 748, mod.
441 Mich. 1201 (1992). Direct or circumstantial evidence and reasonable inferences
arising from that evidence may constitute satisfactory proof of the elements of an
offense, People v. Nowack, 462 Mich. 392, 399–400, 614 N.W.2d 78 (2000); People v.
Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993); see also People v. Johnson, 146
Mich. App. 429, 434, 381 N.W.2d 740 (1985), including identity, Kern, 6 Mich. App. at
409–10, and intent or state of mind. People v. Dumas, 454 Mich. 390, 398, 563
N.W.2d 31 (1997). Intent to deliver drugs may be inferred from the quantity of the
drugs, the way the drugs are packaged, and other circumstances of the arrest, such as
the possession of a large sum of money and the absence of drug paraphernalia.
Wolfe, 440 Mich. at 525.
Citing the foregoing standards, the Michigan Court of Appeals denied relief on
this claim. The court stated in relevant part:
Here, defendant possessed less than three grams of cocaine in a single
package. Other factors indicated that defendant intended to deliver the
cocaine, including his possession of: (1) many small Ziploc bags (which
might have been used to package drugs for sale); (2) $1,800 in cash
(which could have been the proceeds of drug sales); and (3) guns and
ammunition (which might have been used to protect a drug-selling
operation). Defendant also had three different drugs in his possession,
and a police expert in narcotics trafficking testified that it would be
unusual for a drug abuser to possess all three for his own use. Moreover,
defendant explicitly stated at the police station that he both uses drugs
and supplies them to others.
The prosecution accordingly presented sufficient evidence to enable the
jury to find beyond a reasonable doubt that defendant intended to deliver
the cocaine found in his possession.
Davis, 2015 WL 501928 at *4 (footnotes omitted).
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The police and expert testimony
at trial revealed that while Petitioner possessed less than three grams of cocaine, had
also had two other types of drugs in his possession, he had several small Ziploc bags
which could be used to package drugs for sale, he had a large amount of cash which
could be drug proceeds, and he had a gun and ammunition which could be used for
protection. Petitioner also admitted to police that he used drugs himself and provided
them to other people. Such evidence was sufficient for the jury to conclude beyond a
reasonable doubt that Petitioner had the requisite intent to deliver the cocaine in his
possession.
Petitioner again challenges the inferences that the jury drew from the evidence
presented at trial. As noted, however, it is the job of the fact-finder at trial, not a federal
habeas court, to resolve such evidentiary conflicts. Jackson, 443 U.S. at 326; Martin,
280 F.3d at 618; see also Cavazos, 565 U.S. at 7; Walker, 703 F.2d at 969–70. The
trial court’s verdict, and the Michigan Court of Appeals’ decision affirming that verdict,
were reasonable. The evidence at trial, viewed in a light favorable to the prosecution,
established beyond a reasonable doubt that Petitioner committed the offense of
possession with intent to deliver less than 50 grams of cocaine.
Lastly, to the extent that Petitioner asserts that the trial court erred under state
law in some fashion with regard to these insufficient evidence claims, he fails to state a
claim upon which habeas relief may be granted. See, e.g., King v. Trippett, 27 F.
App’x 506, 510 (6th Cir. 2001) (upholding district court’s ruling that petitioner failed to
state a habeas claim where he alleged that trial court erred in denying directed verdict
motion). State courts are the final arbiters of state law and federal courts will not
intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s interpretation of state
law, including one announced on direct appeal of the challenged conviction, binds a
federal court on habeas review.”); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir.
2002). Habeas relief does not lie for perceived errors of state law. See Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions.”). Habeas relief is not
warranted on these claims.
iii. Preliminary Examination Error (Habeas Claim III)
Petitioner next asserts that he is entitled to habeas relief because the
prosecution presented testimony at the preliminary examination which overstated the
amount of the cocaine discovered during the search. Respondent contends that this
claim lacks merit.
The deliberate deception of a court and jurors by the presentation of known
false evidence is incompatible with the rudimentary demands of justice. Giglio v.
United States, 405 U.S. 150, 153 (1972). There is also a denial of due process when
the prosecutor allows false evidence or testimony to go uncorrected. Napue v. Illinois,
360 U.S. 264, 269 (1959). To prevail on a claim that a conviction was obtained by
evidence that the government knew or should have known to be false, a defendant
must show that the statements were actually false, that the statements were material,
and that the prosecutor knew they were false. Coe v. Bell, 161 F. 3d 320, 343 (6th Cir.
1998).
The Michigan Court of Appeals denied relief on this claim, stating:
Defendant makes an unsupported (and unpreserved) claim that the
prosecutor, at the preliminary examination, knowingly presented false
testimony on the weight of the cocaine defendant possessed. However,
the preliminary examination took place four days before the completion of
the lab report analyzing the cocaine and its weight, and the trial court and
defendant were aware of the true weight of the cocaine at trial. Defendant
fails to explain how this initial testimony on the weight of the cocaine at
the preliminary examination prejudiced him at trial, nor does he provide
any support for his claim that the prosecutor knowingly presented false
evidence at the preliminary examination. He accordingly has not shown
that any error affected his substantial rights, and he is not entitled to
relief. Carines, 460 Mich. at 764.
Davis, 2015 WL 501928, at *4 n.12.
The state court’s denial of relief is neither contrary to Supreme Court precedent
nor an unreasonable application of federal law or the facts. First, the Supreme Court
has held that the federal Constitution does not require that a probable cause hearing
be conducted prior to a criminal trial. Gerstein v. Pugh, 420 U.S. 103, 119, 125 n.26
(1975). There is thus 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). Consequently, errors at a preliminary examination are
generally not subject to federal habeas review. See Schacks v. Tessmer, No. 00-1062,
2001 WL 523533, at *6 (6th Cir. May 8, 2001) (unpublished) (refusing to review state
court determination that second-degree murder conviction rendered bind-over
sufficiency of the evidence challenge moot). Second, even if Petitioner states a claim
as to this issue, he fails to show that the prosecution knowingly presented false
testimony. While the police testimony overstated the amount of cocaine seized from
Petitioner, the testimony was given before the lab results were issued such that the
prosecution cannot be said to have knowingly presented false testimony. Third, even if
the prosecution erred in presenting the incorrect testimony at the preliminary
examination, such an error would not call into question the validity of Petitioner's
subsequent conviction or entitle him to habeas relief because the proper cocaine
amount was presented to the jury at trial. See Williams v. Campbell, No. 15-CV-12914,
2016 WL 6873391, *10 (E.D. Mich. Nov. 22, 2016) (denying habeas relief on similar
claim); Cardenas-Borbon v. Burt, No. 10-13548, 2014 WL 793629, *21 (E.D. Mich.
Feb. 27, 2014) (same). In other words, any error at the preliminary examination was
harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (for purposes of
federal habeas review, a constitutional error that implicates trial procedures is
considered harmless if it did not have a “substantial and injurious effect or influence in
determining the jury’s verdict”); see also Fry v. Pliler, 551 U.S. 112, 117–18 (2007) (the
Brecht standard applies in “virtually all” habeas cases); Ruelas v. Wolfenbarger, 580
F.3d 403, 411 (6th Cir. 2009) (ruling that Brecht is “always the test” in the Sixth Circuit).
Habeas relief is not warranted on this claim.
iv. Admission of Drug Profile Testimony (Habeas Claim V)
Petitioner also asserts that he is entitled to habeas relief because the trial court
erred in admitting drug profile evidence through police expert testimony. At trial,
Oakland County Sheriff’s Deputy Daniel Main was qualified by the court as an expert in
narcotics trafficking. He testified that the 2.23 grams of crack cocaine recovered from
Petitioner had a street value of approximately $100.00 per gram, that crack cocaine is
typically sold by the gram, half-gram, tenth of a gram, or two-tenths of a gram, and that
he did not see any seized items consistent with the use of crack cocaine. He testified
that baggies like the ones seized from the car are often used to package drugs for sale,
that used baggies typically indicate a drug user, and that clean baggies typically
indicate a drug seller. He further explained that if a seller is getting low on product, he
will have more money on hand from sales. Deputy Main opined that the items found in
defendant’s car, including the clean baggies, the lack of drug paraphernalia, the
handgun, and the $1,800 in cash, were consistent with intent to distribute. Trial Tr. II,
pp. 71–78. Respondent contends that this claim lacks merit.
Alleged trial court errors in the application of state evidentiary law are generally
not cognizable as grounds for federal habeas relief. Estelle, supra, 502 U.S. at 67–68;
Serra v. Michigan Dep’t of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). “Trial court
errors in state procedure or evidentiary law do not rise to the level of federal
constitutional claims warranting relief in a habeas action, unless the error renders the
proceeding so fundamentally unfair as to deprive the petitioner of due process under
the Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004)
(quoting Estelle, 502 U.S. at 69–70); see also Wynne v. Renico, 606 F.3d 867, 871
(6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514, 519–20 (6th Cir. 2007)).
The Michigan Court of Appeals denied relief on this claim, stating:
Defendant unconvincingly, and wrongly, makes the unpreserved
assertion that the police expert’s testimony on the above evidence was
“improper” “drug profile evidence.” The police expert testified as to
general information about the drug trade, specifically the significance of
the items found (or not found) on defendant's person: guns are often
used in the drug trade, drugs have a significant street value and dealers
may accumulate large amounts of cash as they sell their supply, and tiny
Ziploc bags are often used to package drugs for sale. The police expert
did not testify that because defendant had these items in his possession
he was ipso facto a drug dealer. His opinion on the ultimate issue to be
decided was thus admissible, and there was no plain error. People v.
Ray, 191 Mich App 706, 708; 479 NW2d 1 (1991); People v. Carines, 460
Mich. 750, 764; 597 NW2d 130 (1999). Nor was the trial court required to
give a limiting instruction on the police officer’s testimony. People v. Rice
(On Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999). There is
no indication that defendant requested a limiting instruction. And not only
did he fail to object to the absence of a limiting instruction, his attorney
pronounced himself satisfied with the instructions given. Therefore,
defendant waived any claim of instructional error. People v. Kowalski,
489 Mich 488, 503; 803 NW2d 200 (2011).
Davis, 2015 WL 501928, at *4 n.11.
The state court’s denial of relief is neither contrary to Supreme Court precedent
nor an unreasonable application of federal law or the facts. First, Petitioner fails to cite
any federal case establishing that the admission of expert opinion testimony offends
fundamental principles of justice, and the court is aware of none. Petitioner’s allegation
that the evidentiary ruling is “fundamentally unfair” and violates due process does not
transform such a state law issue into a federal constitutional claim. See, e.g., Petrucelli
v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984) (“Alleging lack of a fair trial does not
convert every complaint about evidence or prosecutor’s summation into a federal due
process claim.”) (citations omitted). There is generally no prohibition on a witness
offering opinion testimony which goes to an ultimate issue in a case. Both the Federal
and Michigan Rules of Evidence permit such testimony. See Fed. R. Evid. 704(a);
Mich. R. Evid. 704. Thus, there is no clearly established federal law as determined by
the Supreme Court that suggests that the admission of such evidence violates the
Constitution. See Hopp v. Burt, No. 03-10153, 2007 WL 162248, at *9 (E.D. Mich. Jan.
16, 2007) (Lawson, J.).
Second, Petitioner fails to show that the testimony was improper or that its
admission violated due process. Under Michigan law, expert opinion testimony is
admissible “if the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue” and “if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.” Mich. R. Evid.
702. Lay opinion testimony is admissible if it is “(a) rationally based on the perception
of the witness and (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue.” Mich. R. Evid. 701. The opinions and reliable
conclusions of investigating police officers who have not been qualified as experts has
also been deemed admissible under Michigan law when the testimony is based upon
observations and is not dependent upon scientific expertise. See People v. Oliver, 170
Mich. App. 38, 49–50, 427 N.W.2d 898 (1988).
In this case, the police testimony regarding drug trafficking was based upon the
officer’s police training and experience in the field, the items found during the search of
Petitioner’s car and his person, and was relevant to the factual issues in the case,
particularly the intent to distribute cocaine. Evidence of the practices of drug traffickers
is generally admissible when relevant to the criminal charges. See United States v.
Combs, 369 F.3d 925, 940 (6th Cir. 2008); Valasquez v. Lafler, No. 05-CV-73281,
2008 WL 3200290, at *9 (E.D. Mich. Aug. 5, 2008) (Roberts, J.). Moreover, the trial
court properly instructed the jury about the consideration of opinion and expert
testimony. Petitioner fails to show that the admission of the testimony deprived him of
a fundamentally fair trial or otherwise violated his constitutional rights. See, e.g.,
Rhodus v. Berghuis, No. 07-CV-15009, 2010 WL 4260092, at *8–9 (E.D. Mich. Oct. 22,
2010) (Battani, J.) (denying habeas relief on similar claim). Habeas relief is not
warranted on this claim.
v. Prosecutorial Misconduct (Habeas Claim VI, X)
Petitioner also asserts that he is entitled to habeas relief because the prosecutor
engaged in misconduct by arguing facts not in evidence and by failing to ensure that he
had a fair trial. Respondent contends that these claims lack merit.
The United States Supreme Court has stated that prosecutors must "refrain from
improper methods calculated to produce a wrongful conviction." Berger v. United
States, 295 U.S. 78, 88 (1935). To prevail on a claim of prosecutorial misconduct,
however, a habeas petitioner must demonstrate that the prosecutor's remarks "so
infected the trial with unfairness as to make the resulting conviction a denial of due
process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Darden v. Wainwright,
477 U.S. 168, 181 (1986) (citing Donnelly); see also Parker v. Matthews, 567 U.S. 37,
45 (2012) (confirming that Donnelly/Darden is the proper standard).
Petitioner objects to the following statement made by the prosecutor during
closing arguments:
Also, the defendant indicates to you that he had gotten a tax return of
$3,500.00 Well, I need to hire that tax person because if you take the
testimony of the defendant at face value, that he was making $9.99 an
hour and working forty hours a week, maybe at best, you’re clearing
$20,000 a year. He doesn’t own any property. He doesn’t have any
deductions other than allegedly this one daughter. A $3,500 tax return,
that’s - - I - - I - - I need that tax man.
Trial Tr. II, pp. 177–78.
The Michigan Court of Appeals denied relief on this claim on plain error review
finding that the prosecutor’s statement was not improper. The court explained:
Here, defendant wrongly claims that the prosecutor argued facts not in
evidence. As part of his defense, defendant claimed that the large
amount of money he possessed was the remainder of a $3,500 tax
refund. In her argument, the prosecutor implied that defendant would not
have qualified for such a large refund—a reasonable inference from the
evidence. Her statement was thus not plain error and did not affect
defendant's substantial rights.
Davis, 2015 WL 501928, at *4. The court further noted that the trial court’s jury
instructions that the lawyers’ comments were not evidence “were sufficient to dispel
any perceived prejudice created by the prosecutor’s reference to the tax refund.” Id. at
n.14.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. Petitioner fails to show that the
prosecutor’s conduct was improper, let alone unfair. While prosecutors may not
misstate the evidence, United States v. Carter, 236 F.3d 777, 784 (6th Cir. 2001), or
argue facts not in evidence, Abela v. Martin, 380 F.3d 915, 929 (6th Cir. 2004), they
can make arguments based upon the evidence and have “‘leeway to argue reasonable
inferences from the evidence’ during closing arguments.” United States v. Crosgrove,
637 F.3d 646, 664 (6th Cir. 2011) (quoting Byrd v. Collins, 209 F.3d 486, 535 (6th Cir.
2000)). Such was the case here. The prosecutor’s argument was based upon a
reasonable inference from the evidence.
Moreover, to the extent that the prosecutor’s remarks could be seen as
improper, they were not so pervasive or misleading as to affect the fairness of the trial.
Any potential prejudice to Petitioner was mitigated by the fact that the trial court
properly instructed the jurors on the law and explained that the attorneys’ comments
were not evidence. See Knapp v. White, 296 F. Supp. 2d 766, 776 (E.D. Mich. 2003)
(Gadola, J.). Jurors are presumed to follow the court’s instructions. See Penry v.
Johnson, 532 U.S. 782, 799 (2001) (citing Richardson v. Marsh, 481 U.S. 200, 211
(1987)); United States v. Powell, 469 U.S. 57, 66 (1984) (“Jurors . . . take an oath to
follow the law as charged, and they are expected to follow it.”). Petitioner fails to
establish that the prosecutor’s remarks during closing argument rendered his trial
fundamentally unfair.
Petitioner also asserts that the prosecutor failed to ensure the fairness of his trial
with regard to the trial court’s jurisdiction and control over the proceedings. The
Michigan Court of Appeals denied relief on this claim, stating: “Defendant also argues
that he was denied a fair trial because the trial court committed the supposed ‘errors’
described above, and the prosecutor did not ‘correct’ them. But, as noted, the trial court
did not commit the errors of which defendant complains.” Davis, 2015 WL 501928, at
*6 n.20.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. Given the state court’s
determination and/or this court’s determination that the underlying issues lack merit,
Petitioner cannot establish that the prosecutor erred by failing to ensure the fairness of
his trial. Petitioner fails to establish that the prosecutor engaged in misconduct that
rendered his trial fundamentally unfair. Habeas relief is not warranted on these claims.
vi. Effectiveness of Trial Counsel (Habeas Claim VII, XI)
Petitioner next asserts that he is entitled to habeas relief because trial counsel
was ineffective for failing to request a continuance so that his family members could
testify and for failing to seek to admit his tax returns into evidence at trial. Petitioner
also alleges that trial counsel’s performance was so deficient that he was constructively
denied counsel. Respondent contends that these claims lack merit.
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to the effective assistance of counsel. In Strickland v. Washington,
466 U.S. 668 (1984), the United States Supreme Court set forth a two-prong test for
determining whether a habeas petitioner has received ineffective assistance of
counsel. First, a petitioner must prove that counsel’s performance was deficient. This
requires a showing that counsel made errors so serious that he or she was not
functioning as counsel as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at
687. Second, the petitioner must establish that counsel’s deficient performance
prejudiced the defense. Counsel’s errors must have been so serious that they
deprived the petitioner of a fair trial or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts that were
“outside the wide range of professionally competent assistance.” Id. at 690. The
reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at 689.
There is a strong presumption that trial counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment. Id.
at 690. The petitioner bears the burden of overcoming the presumption that the
challenged actions were sound trial strategy.
As to the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. A reasonable probability is one that is sufficient
to undermine confidence in the outcome of the proceeding. Id. “On balance, the
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial process that the [proceeding]
cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.
The Supreme Court has confirmed that a federal court’s consideration of
ineffective assistance of counsel claims arising from state criminal proceedings is quite
limited on habeas review due to the deference accorded trial attorneys and state
appellate courts reviewing their performance. “The standards created by Strickland
and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review
is ‘doubly’ so.” Harrington, 562 U.S. at 105 (internal and end citations omitted). “When
§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.
Petitioner first asserts that counsel was ineffective for failing to seek a
continuance so that family members, particularly his mother, could testify in his
defense. Citing the Strickland standard, the Michigan Court of Appeals denied relief on
this claim explaining in relevant part:
Here, the record indicates that defendant wanted his grandmother and/or
his mother to testify in his defense. Neither woman appeared at trial and
counsel did not request a continuance until one or both could appear.
Assuming the trial court would have granted an adjournment had the
attorney asked, the lack of an adjournment did not cause defendant
prejudice. The record provides no indication of what testimony the
witness(es) would have offered or how that testimony might have
benefitted defendant’s case,17 which fatally undermines defendant’s claim
that his attorney’s failure to ask for an adjournment constituted ineffective
assistance.
17
Defendant submitted an affidavit from his mother, which states that the
gun belonged to a friend of hers. Were we to assume that the mother’s
affidavit is true, such testimony stating the same would have had no
bearing on defendant’s trial, because the weapons offenses of which
defendant was convicted prohibit possession of a firearm, and do not
relate to the ownership of a firearm.
Davis, 2015 WL 501928, at *5.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. Decisions as to what evidence to
present and whether to call certain witnesses are presumed to be matters of trial
strategy. When making strategic decisions, counsel’s conduct must be reasonable.
Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); see also Wiggins, 539 U.S. at 522–
23. The failure to call a known alibi witness can constitute ineffective assistance of
counsel, Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir. 2004), but counsel is not
required to call a witness whose credibility is questionable. Thurmond v. Carlton, 489
F. App’x 834, 840 (6th Cir. 2012). The failure to call witnesses or present other
evidence constitutes ineffective assistance of counsel only when it deprives a
defendant of a substantial defense. Chegwidden v. Kapture, 92 F. App’x 309, 311 (6th
Cir. 2004); Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002).
In this case, Petitioner fails to demonstrate that he was prejudiced by counsel’s
conduct, i.e., that he was deprived of a substantial defense. He fails to present
evidence of proposed testimony from his family members and/or to show that such
testimony would have benefitted his defense. Conclusory allegations are insufficient to
warrant federal habeas relief. See Cross v. Stovall, 238 F. App’x 32, 39–40 (6th Cir.
2007); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998) (conclusory allegations of
ineffective assistance of counsel do not justify habeas relief); see also Washington v.
Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions and conclusory allegations
do not provide sufficient basis for an evidentiary hearing in habeas proceedings).
Additionally, as explained by the state court, his mother’s affidavit that the gun
belonged to someone else would not have affected the outcome at trial because it
does not negate the fact that Petitioner possessed the gun at the time of the police
encounter that led to his arrest. Petitioner fails to establish that counsel erred and/or
that he was prejudiced by counsel’s conduct in failing to request a continuance.
Petitioner also asserts that trial counsel was ineffective for failing to seek the
admission of his 2012 tax returns into evidence at trial. The Michigan Court of
Appeals, which expanded the record to include those tax returns, denied relief on this
claim. The court stated:
Defendant unconvincingly argues that counsel should have offered his
2012 tax returns as evidence to verify his testimony that he received a
substantial tax refund shortly before the offenses occurred. Counsel
might have had legitimate strategic reasons for not offering the tax
returns as evidence. The returns were prepared by a tax agency on
February 15, 2013—and provide no indication that the government
issued a refund by February 28, 2013, when defendant was arrested.
Moreover, the contents of the tax returns conflicted with defendant’s trial
testimony in several respects, including: his address at the time of the
offenses, how much he earned from the temporary services agency, the
nature of his side business, and how much he paid in rent.
Because the tax returns did not prove that defendant received a tax
refund before February 28, were otherwise extremely damaging to
defendant’s credibility, and would have enabled the prosecution to argue
that defendant must have had a source of income other than what was
reported on the tax returns, it was not objectively unreasonable—and in
fact, was probably wise-for counsel to avoid introducing them at trial.
Defendant accordingly did not receive ineffective assistance of counsel
and his claims to the contrary are without merit.
Davis, 2015 WL 501928, at *5–6 (footnote omitted).
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. Counsel may have reasonably
decided not to seek admission of the tax returns because they would not establish that
Petitioner received the claimed refund by the time of his arrest—only 13 days after he
filed his return. Additionally, counsel may have had concerns about the contradictions
between the information in the tax returns and Petitioner’s trial testimony, which could
have exposed him to further legal difficulties. Counsel’s decision was a reasonable
trial strategy, and Petitioner fails to establish that counsel was ineffective in this regard.
Petitioner also asserts that trial counsel performed so deficiently that he was
constructively denied counsel. The Supreme Court has limited the presumed prejudice
standard to three types of ineffective assistance claims: (1) complete denial of
counsel; (2) government interference with the right to counsel; and (3) conflicts of
interest. See Smith v. Robbins, 528 U.S. 259, 287 (2000) (citing Strickland, 466 U.S.
at 692; United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984)). The Supreme Court
has stated that the first category—complete denial of counsel—encompasses both
actual and constructive denials of counsel, and that a constructive denial of counsel
can occur where “counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing.” Cronic, 466 U.S. at 659. For an ineffective assistance claim to
come within this limited exception to Strickland, “the attorney’s failure must be
complete.” Bell v. Cone, 535 U.S. 685, 697 (2002). The distinction is between “bad
lawyering” and “no lawyering,” Woodard v. Collins, 898 F.2d 1027, 1028 (5th Cir.
1990); see also Moss v. Hofbauer, 286 F.3d 851, 861 (6th Cir. 2002), and the
difference is not one of degree, but one of kind. Bell, 535 U.S. at 697.
The Michigan Court of Appeals denied relief on this claim, stating:
In his Standard 4 brief, defendant makes a number of additional
unconvincing, unsupported and factually inaccurate allegations that his
counsel’s performance was so deficient that he did not receive assistance
of counsel. The record indicates that defendant’s attorney was familiar
with the issues involved in the trial, as demonstrated by the fact that he
sought to suppress the evidence found in defendant’s car, and presented
evidence at trial to counter the charge of possession with intent to deliver
and the firearm-related offenses. Defendant fails to identify any witnesses
or other information that his lawyer should have discovered that would
have benefited him at trial. Defendant’s other assertions—that his
counsel provided him ineffective assistance by not questioning the trial
court’s jurisdiction, and not accusing the prosecutor of misconduct—are
without merit, as detailed infra and supra, and “[d]efense counsel is not
required to make a meritless motion or a futile objection.” People v.
Goodin, 257 Mich App 425, 433; 668 NW2d 392 (2003).
Davis, 2015 WL 501928, at *5 n.16.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. Petitioner does not show that
counsel completely failed to subject to the prosecution’s case to meaningful adversarial
testing. To the contrary, the record indicates that counsel actively represented
Petitioner at trial. See Moss, 286 F.3d at 860–62. Counsel moved to suppress the
evidence seized during the search of Petitioner’s car and his person, participated in
jury voir dire, made numerous objections at trial, cross-examined witnesses, and
argued the defense theory of the case during opening statement and closing argument.
Petitioner’s ineffective assistance of counsel issues are run-of-the-mill trial error claims
subject to the Strickland standard. See, e.g., Bell, 535 U.S. at 697–98. Counsel’s
alleged failures do not amount to a complete failure to provide a defense and the
presumption of prejudice does not apply. Petitioner must show that he was actually
prejudiced by counsel’s alleged errors in order to obtain habeas relief. As discussed
supra, he fails to do so.
Additionally, to the extent that Petitioner asserts that trial counsel failed to
sufficiently investigate his case and formulate a trial strategy, he is not entitled to relief.
First, his allegations are conclusory. As noted, conclusory allegations are insufficient
to warrant habeas relief. See Cross, 238 F. App’x at 39–40; Workman, 178 F.3d at
771; see also Washington, 455 F.3d at 733. Second, the record indicates that counsel
conducted a review of the case, moved to suppress evidence before trial, was
prepared for trial, and made reasonable defense arguments. Petitioner fails to show
that counsel’s alleged deficiencies deprived him of a substantial defense. See
Chegwidden, 92 F. App’x at 311; Hutchison, 303 F.3d at 749. He thus fails to establish
that counsel was ineffective in this regard.
Lastly, to the extent that Petitioner asserts that trial counsel was ineffective for
failing to object to the alleged instances of prosecutorial misconduct or trial court error,
he is not entitled to habeas relief. Given the Michigan Court of Appeals’ ruling and this
court’s ruling that those underlying claims lack merit, Petitioner cannot establish that
counsel erred and/or that he was prejudiced by counsel’s conduct. Counsel cannot be
deemed deficient for failing to make a meritless argument or a futile objection. See
Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2014) (“Omitting meritless arguments is
neither professionally unreasonable nor prejudicial."); United States v. Steverson, 230
F.3d 221, 225 (6th Cir. 2000). Petitioner fails to establish that counsel was ineffective
under the Strickland standard. Habeas relief is not warranted on these claims.
vii. State Trial Court Jurisdiction (Habeas Claim VIII)
Petitioner next asserts that he is entitled to habeas relief because the state trial
court lacked subject matter and personal jurisdiction. Respondent contends that this
claim is not cognizable. The Michigan Court of Appeals denied relief on this claim
finding that the state circuit court had both subject matter and personal jurisdiction in
Petitioner’s criminal proceedings. Davis, 2015 WL 501928, at *6.
Petitioner is not entitled to habeas relief on any jurisdictional defect claim. The
determination of whether a particular state court is vested with jurisdiction under state
law and is the proper venue to hear a criminal case is a “function of the state courts,
not the federal judiciary.” Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976); see also
Hamby-Bey v. Bergh, No. 08-CV-13284, 2008 WL 3286227, at *2 (E.D. Mich. Aug. 7,
2008) (Battani, J.); Chandler v. Curtis, No. 05-CV-72608-DT, 2005 WL 1640083, at *2
(E.D. Mich. July 13, 2005) (Cohn, J.); Groke v. Trombley, No. 01-CV-10045-BC, 2003
WL 1798109, at *5 (E.D. Mich. April 1, 2003) (Lawson, J.); accord Wright v. Angelone,
151 F.3d 151, 157–58 (4th Cir. 1998); Rhode v. Olk-Long, 84 F.3d 284, 287 (8th Cir.
1996). As discussed supra, a perceived violation of state law does not provide a basis
for federal habeas relief. Estelle, 502 U.S. at 67–68. A state court’s interpretation of
state jurisdictional issues conclusively establishes jurisdiction for purposes of federal
habeas review. Strunk v. Martin, 27 F. App’x 473, 475, 2001 WL 1450740, at *2 (6th
Cir. 2001). Petitioner thus fails to state a claim upon which habeas relief may be
granted as to this issue. Habeas relief is not warranted on this claim.
viii. State Trial Court’s Control of the Proceedings (Habeas Claim IX)
Lastly, Petitioner asserts that he is entitled to habeas relief because the state
trial court failed to sufficiently control the proceedings and ensure that he received a
fair trial. The Michigan Court of Appeals denied relief on this claim, stating in pertinent
part: “Defendant makes a number of other, unrelated claims of error in his Standard 4
brief that are frivolous and without merit. . . . Defendant also argues that he was denied
a fair trial because the trial court committed the supposed ‘errors’ described above. . . .
But, as noted, the trial court did not commit the errors of which defendant complains.”
Davis, 2015 WL 501928, at *6 n.20.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. Given the state court’s
determination and/or this court’s determination that the underlying claims of error lack
merit, Petitioner cannot establish that the trial court failed in its duty to provide
Petitioner with a fair trial. Habeas relief is not warranted on this claim.
IV. CONCLUSION
For the reasons stated, the court concludes that Petitioner is not entitled to
federal habeas relief on the claims contained in his petition. Accordingly, the court
DENIES and DISMISSES WITH PREJUDICE the petition for a writ of habeas corpus
(Dkt. #1.).
Before Petitioner may appeal the court’s decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue only if the petitioner makes “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on the
merits, the substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court’s assessment of the constitutional claim
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). “A petitioner
satisfies this standard by demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). Having considered the matter, the court concludes
that Petitioner fails to make a substantial showing of the denial of a constitutional right
as to his habeas claims. Accordingly, the court DENIES a certificate of appealability.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: March 31, 2018
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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, April 2, 2018, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(810) 292-6522
S:\Cleland\JUDGE'S DESK\C1 ORDERS\15-14420.DAVIS.Deny.2254.CTB.KNP.RHC.docx
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