Smith v. Bergh

Filing 28

ORDER DENYING 1 Petition for Writ of Habeas Corpus, DENYING MOTION for Reconsideration, DENYING MOTION for Reconsideration, DENYING MOTION to Submit, and GRANTING MOTION to Submit Case Summary. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2:16-cv-10098-TGB-PTM

EDWIN ANTHONY SMITH,
Petitioner,
v.
DAVID BERGH,
Respondent.

HON. TERRENCE G. BERG
ORDER DENYING PETITION
FOR WRIT OF HABEAS
CORPUS, DENYING MOTION
FOR RECONSIDERATION,
DENYING MOTION TO
SUBMIT, AND GRANTING
MOTION TO SUBMIT CASE
SUMMARY

Edwin Anthony Smith, a state prisoner at Kinross Correctional
Facility in Kincheloe, Michigan, petitioned this Court for a writ of
habeas corpus under 28 U.S.C. § 2254.

The pro se habeas petition

challenges Petitioner’s conviction for first-degree criminal sexual
conduct. See Mich. Comp. Law § 750.520b(1)(a) (sexual penetration of a
person under the age of thirteen). Petitioner alleges as grounds for
relief that: the trial court abdicated its responsibility to control the
proceedings by failing to take action in response to the prosecutor’s

failure to present DNA evidence at trial; the prosecutor committed
misconduct by choosing not to pursue DNA testing and presenting
perjured testimony; Petitioner was denied effective assistance of counsel
because trial counsel failed to investigate and present potential
defenses at trial. Also pending before the Court are: (1) Petitioner’s
motion for reconsideration of the Court’s order denying his motions for
release on bond and to expedite matters (ECF No. 24); (2) Petitioner’s
motion to submit a summary of his case for the benefit of the Court
(ECF No. 27); and (3) Petitioner’s motion to submit his habeas petition
for the Court’s consideration (ECF No. 27).
Because the Court finds that Petitioner’s claims of error by the
trial court and prosecutorial misconduct are procedurally defaulted, and
the state court’s adjudication of Petitioner’s claim for ineffective
assistance of counsel was reasonable, the Court will deny the habeas
petition. The motion for reconsideration will also be denied, as will the
motion to submit. But the motion for leave to file a summary of the case
will be granted, and the Court has considered that summary in
determining the disposition of the petition and these motions.
2

Additionally, Petitioner will be denied a certificate of appealability but
granted leave to proceed in forma pauperis should he nonetheless
choose to appeal this Court’s decision.
BACKGROUND
Petitioner was charged with three counts of first-degree criminal
sexual conduct under Mich. Comp. Law § 750.520b(1)(a), arising from
sexual penetration of his then-twelve-year-old stepdaughter. People v.
Smith, No. 312021, 2014 WL 4263093, at *1 (Mich. Ct. App. Aug. 28,
2014) (per curiam) (unpublished). At trial, Petitioner’s stepdaughter
would testify that he penetrated her with two sex toys, one orange and
the other purple, and then performed oral sex on her. Id. When the
police executed a search warrant, they seized an orange sex toy from
among Petitioner’s belongings. Id. The purple sex toy was never found.
Id. During the case’s early stages, the prosecutor said he would send
the orange sex toy to the state crime lab for DNA analysis. Id. But he
never did. Id. During Petitioner’s 2012 trial, defense counsel never
challenged the prosecutor’s failure to test the orange sex toy for DNA
testing.

Id.

Instead, he aggressively cross-examined the officer in
3

charge of the criminal investigation on her decision not to conduct DNA
analysis, as well as her failure to investigate other potentially
exculpatory leads. Id. Upon the completion of trial, a jury in Wayne
County Circuit Court convicted Petitioner of one count of first-degree
criminal sexual conduct for sexual penetration of a minor using the
orange sex toy. Id. He was acquitted of the remaining two counts. Id.
The trial court sentenced Petitioner as a third habitual offender to 25 to
38 years. Id.; see also Mich. Comp. Laws § 769.11 (habitual offender
statue governing punishment of a felony committed by a person
previously convicted of two or more felonies).
Petitioner filed a direct appeal of his conviction to the Michigan
Court of Appeals. The Wayne County Prosecutor’s Office stipulated that
it would hold that appeal in abeyance until the orange sex toy could be
tested for DNA. People v. Smith, No. 312021 (Mich. Ct. App. Sept. 18,
2013). On September 18, 2013, the state appellate court approved that
stipulation and a few months later, on January 13, 2014, Bode
Technology of Lorton, Virginia submitted a forensic case report to
Petitioner’s appellate attorney. Pet. for Writ of Habeas Corpus, ECF
4

No. 1-5 at PageID.235–36.

That report summarized DNA analysis

conducted on samples taken from two parts of the orange sex toy
involved in the underlying case. Id. The report concluded that the
partial DNA profile obtained from one of the samples was “consistent
with a mixture of at least two individuals” but “no conclusions can be
made on the partial DNA profile.” Id. Similarly, analysis of the second
DNA profile was found to be “consistent with a mixture of at least two
individuals including at least one male contributor” but “no conclusions
can be made on the mixture DNA profile.” Id. The DNA results are
thus inconclusive, and not plainly exculpatory.
The Michigan Court of Appeals affirmed Petitioner’s conviction on
August 28, 2014. Smith, 2014 WL 4263093, at *1. The brief submitted
by post-conviction counsel set forth one primary argument—that
Petitioner’s 25-year mandatory minimum sentence violated the
separation of powers doctrine because it limited the sentencing court’s
use of discretion to fashion an appropriate sentence. Id. The state
appellate court rejected that argument. Id. Petitioner also presented
other grounds for post-conviction relief in a pro se supplemental brief.
5

Id. at *3.

Among those additional grounds were the trial court’s

claimed failure to control the proceedings by choosing not to challenge
the prosecutor’s failure to present DNA evidence; the prosecutor’s
alleged misconduct by failing to pursue DNA testing and presenting
perjured testimony; and constructive denial of assistance of counsel
evidenced by trial counsel’s failure to investigate and present potential
defenses.

Id. at *3–5. The state appellate court found that none of

these issues warranted relief. Id. at *3. Petitioner later raised these
same claims in a brief to the Michigan Supreme Court, which denied
him leave to appeal on May 28, 2015. People v. Smith, 863 N.W.2d 316
(Mich. 2015).
On January 12, 2016, Petitioner filed a petition for writ of federal
habeas corpus. ECF No. 1. Respondent moved to dismiss his claims for
habeas relief, arguing that Petitioner had failed to properly exhaust
state remedies for at least some of his claims. ECF No. 6. Petitioner
then filed a motion to amend his habeas petition. ECF No. 14. Judge
John Corbett O’Meara, who presided over Petitioner’s habeas case until
it was reassigned to this Court on July 3, 2018, granted him leave to
6

amend the petition and untangled his exhausted claims from those he
had not yet exhausted state court remedies for. Aug. 9, 2017 Order,
ECF No. 16. At Judge O’Meara’s suggestion, Petitioner agreed to delete
the unexhausted claims from his petition and to proceed only with those
claims the Court deemed exhausted:
1) Failure of the trial court to control the proceedings by:
a. Allowing DNA test results to be excluded at trial;
b. Allowing the prosecutor to breach a court order at trial;
c. Allowing the prosecutor to deceive jurors regarding DNA
testing of the orange sex toy;
d. Ignoring Petitioner’s request to conduct an in camera
investigation of a transcript;
2) Prosecutorial misconduct demonstrated by government’s decision
to proceed with trial before obtaining DNA results and without
informing the jury about plans to conduct DNA testing;
3) Trial counsel’s failure to properly investigate the case.
Id. at 5. Petitioner then filed another motion to amend, seeking to add
testimony from a 2011 preliminary hearing he considered relevant to
the issue of DNA testing.

Pet.’s Mot. to Amend Br. in Support of

Habeas Pet., ECF No. 14.

Judge O’Meara granted that motion on

7

August 9, 2017 and ordered the government to respond to Petitioner’s
exhausted claims for habeas relief. ECF No. 16.
Additionally, Petitioner filed two motions to strike, which the
Court need not discuss here, as well as a motion for bond pending
disposition of his habeas petition, and a motion for expedited
consideration. See ECF Nos. 17, 20, 21, 22. Judge O’Meara denied all
of those motions. Mar. 19, 2018 Order, ECF No. 23. Most recently,
Petitioner filed a motion for reconsideration of his motions for bond, and
for expedited consideration. ECF Nos. 24, 25. After Judge O’Meara
announced his retirement, Petitioner’s case was reassigned to this
Court on July 3, 2018. See Min. Entry dated Jul. 3, 2018. Finally, on
September 24, 2018, Petitioner filed a motion asking this Court to rule
on his habeas petition. ECF No. 27.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
“erects a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court.” Burt v. Titlow, 571 U.S.
12, 16 (2013).

Habeas relief may be granted only where the state
8

court’s decision was “contrary to, or involved an unreasonable
application” of United States Supreme Court precedent or was “based
on an unreasonable determination of the facts in light of the evidence
presented” in state court. 28 U.S.C. § 2254(d). Federal habeas law
“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 v.
Murphy, 521 U.S. 320, 333 n.7 (1997), and Woodford v. Visciotti, 537
U.S. 19, 24 (2002)). Under this standard, even a strong case for relief
does not, in and of itself, yield a conclusion that the state court’s
contrary decision was unreasonable. Harrington v. Richter, 562 U.S.
86, 102 (2011) (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Further, absent extenuating circumstances such as evidence “that
could not have been previously discovered through the exercise of due
diligence,” this Court’s review must be “limited to the record that was
before the state court that adjudicated the claim on the merits.” Cullen
v. Pinholster, 563 U.S. 170, 181 (2011) (discussing 28 U.S.C. § 2254).
The Court must also presume that the state court’s findings of fact are
9

correct “unless rebutted by ‘clear and convincing evidence.’” Holland v.
Rivard, 800 F.3d 224, 242 (6th Cir. 2015) (quoting 28 U.S.C. §
2254(e)(1)).
A. The trial court’s
proceedings

alleged

failure

to

control

the

Petitioner alleges the trial court failed to control the trial
proceedings by: allowing potentially exculpatory DNA test results to be
excluded at trial; permitting the prosecutor to deceive jurors about DNA
testing; ignoring the prosecutor’s breach of an October 4, 2011 calendar
conference order allegedly mandating presentation of scientific or
medical evidence at trial; and ignoring Petitioner’s request at
sentencing to have the court review a transcript of the calendar
conference discussing DNA testing. The Court finds that these grounds
for relief are procedurally defaulted because they were not preserved for
state appellate review. Further, the decision by the Michigan Court of
Appeals was not contrary to established Supreme Court precedent and
did

not

involve

an

unreasonable

application

of

that

court’s

jurisprudence, or an unreasonable determination of the facts presented
by Petitioner.
10

A procedural default is “a critical failure to comply with state
procedural law.”

Trest v. Cain, 522 U.S. 87, 89 (1997).

Under the

doctrine of procedural default, “a federal court will not review the
merits of [a state prisoner’s] claims, including constitutional claims,
that a state court declined to hear because the prisoner failed to abide
by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). The
state procedural rule at issue here is Michigan’s contemporaneousobjection rule, which requires defendants in criminal cases to make
their objections before the trial court to preserve them for appellate
review. People v. Buie, 825 N.W.2d 361, 374 (Mich. 2012); Taylor v.
McKee,

649

F.3d

446,

451

(6th

Cir.

2011)

(“Michigan’s

contemporaneous-objection rule is both a well-established and normally
enforced procedural rule.”).
Because Petitioner did not object at trial to the court’s failure to
control the proceedings, those claims were not preserved for this Court’s
review. The Michigan Court of Appeals flagged the problem on direct
review, noting that “[b]ecause defendant did not raise this issue at trial,
the issue is unpreserved and our review is limited to plain error
11

affecting defendant’s substantial rights.” Smith, 2014 WL 4263093 at
*3 (citing People v. Vaughn, 821 N.W.2d 288, 296 (Mich. 2012)).
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 courts are barred from conducting habeas
review unless the petitioner 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.”1 Coleman v. Thompson, 501 U.S.
722, 750 (1991). Here, because Petitioner’s claims regarding the trial
court’s alleged failure to control the proceedings are procedurally
defaulted, Petitioner must show “cause” for failing to follow state

“A fundamental miscarriage of justice results from the conviction of
one who is ‘actually innocent.’” Lundgren v. Mitchell, 440 F.3d 754, 764
(6th Cir. 2006) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)).
Proving actual innocence requires presenting new and reliable evidence,
whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence that was not presented at trial.
Schlup v. Delo, 513 U.S. 298, 324 (1995). Petitioner has not presented
such evidence here.

1

12

procedure as well as “actual prejudice” resulting from the alleged
violation of federal law.
To the extent Petitioner claims ineffective trial counsel was cause
for his procedural default, he must show “that counsel’s performance
was deficient” and “that the deficient performance prejudiced the
defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984).

Petitioner has not made that showing here. As pointed out by the
Michigan Court of Appeals, defense counsel made strategic use of the
absence of DNA evidence by cross-examining the investigating officer
about her decision not to test the orange sex toy for DNA. See generally
Smith, 2014 WL 4263093 (providing a more detailed summary of
defense counsel’s litigation strategy). Accordingly, Petitioner has not
established

cause

for

his

noncompliance

with

Michigan’s

contemporaneous objection rule.
Moreover, Petitioner cannot overcome procedural default because
he did not suffer actual prejudice as a result of the trial court’s alleged
failure to control the proceedings. Actual prejudice is distinct from “the
mere possibility of prejudice.” Arias v. Lafler, 511 Fed. App’x 440, 447
13

(6th Cir. 2013) (citations omitted). And “the prejudice component of the
cause and prejudice test is not satisfied if there is strong evidence of a
petitioner’s guilt and a lack of evidence to support his claim.”

Id.

(quoting Rust v. Zent, 17 F.3d 155, 161–62 (6th Cir. 1994)). All of
Petitioner’s allegations about the trial court’s failure to control the
proceedings stem from its decision not to sua sponte order the
government to present DNA analysis of the orange sex toy at trial. But
Petitioner has not shown how the absence of DNA evidence at trial
negatively affected the outcome of his case. Critically, the results of the
delayed DNA testing are not clearly exculpatory; they are inconclusive
and consistent with a mixture of DNA from at least two individuals,
including at least one male contributor. Habeas Pet. at PageID.235.
Consequently, the trial court’s decision not to order the government to
conduct DNA testing did not necessarily cause prejudice to Petitioner.
Further, Petitioner was convicted based on testimony by the
complainant, his pre-teen stepdaughter, and he has not presented
reliable evidence calling the fairness of his conviction into question.

14

Petitioner has thus failed to demonstrate the cause and actual prejudice
required to overcome procedural default.
On the merits, Petitioner has not shown that the decision by the
Michigan Court of Appeals was “contrary to, or involved an
unreasonable application” of United States Supreme Court precedent,
nor that it was “based on an unreasonable determination of the facts in
light of the evidence presented.” 28 U.S.C. § 2254(d). As the state
appellate court noted, Petitioner’s trial counsel strategically focused on
the lack of DNA testing to support the argument that the investigating
officer was “incompetent, lax, biased against defendant, or indifferent to
defendant’s plight.”

Smith, 2014 WL 4263093 at *3.

Under these

circumstances, “any intervention by the trial court [by ordering DNA
testing] may have interfered with defense counsel’s strategy.”

Id.

Accordingly, the Michigan Court of Appeals determined that the trial
court’s failure to order the government sua sponte to conduct DNA
testing and present the results of DNA testing at trial does not create a
ground for post-conviction relief.

That decision was consistent with

15

United States Supreme Court precedent and constitutes a reasonable
application of that court’s jurisprudence.
To the extent Petitioner’s claim for failure to control the
proceedings is based on the trial court’s evidentiary rulings or violation
of Mich. Comp. Laws § 768.29 (“It shall be the duty of the judge to
control all proceedings during the trial”), Petitioner is not entitled to
any relief on this claim. The Supreme Court has consistently held that
“federal habeas corpus relief does not lie for errors of state law.” Estelle
v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S.
764, 780 (1990)).

Based on the foregoing, the Court reiterates its

agreement with the state appellate court’s decision that the trial court
did not err or fail to control the proceedings by allowing trial to proceed
without DNA evidence. The prosecution bears the burden of proof at
trial and the defendant is presumed innocent. If the prosecution elects
not to present certain scientific evidence, it runs the risk that the jury
may find the evidence insufficient to prove guilt beyond a reasonable
doubt. It is not error for a court to allow the prosecution to determine
what evidence it wishes to present or how much investigation it wishes
16

to undertake to prove the case. Petitioner is not entitled to federal
habeas relief on his claim that the trial court failed to properly control
the proceedings.
B. Prosecutorial Misconduct
Petitioner next contends the prosecutor duped the jury by
proceeding to trial without testing the orange sex toy for DNA and
permitted a government witness to perjure himself on the stand. This
claim also suffers from procedural default. Moreover, with respect to
the merits, Petitioner has not shown the prosecutor’s conduct was so
egregious as to deprive him of a fair trial, or that the Michigan Court of
Appeals’ decision on this claim was contrary to established Supreme
Court precedent or involved an unreasonable application thereof.
Like Petitioner’s claim for failure to control the trial proceedings,
his prosecutorial misconduct claim is procedurally defaulted. Petitioner
did not contemporaneously object to the alleged misconduct at trial. See
Taylor, 649 F.3d at 451 (Michigan’s contemporaneous objection rule is
“a well-established and normally enforced procedural rule”). And the
Michigan Court of Appeals enforced the contemporaneous objection rule
17

by reviewing Petitioner’s unpreserved claim for “plain error” affecting
his substantial rights. Smith, 2014 WL 4263093 at *1. Plaintiff has not
established the cause and actual prejudice required to overcome
procedural default.
Procedural default aside, “[c]laims of prosecutorial misconduct are
reviewed deferentially” in a habeas corpus case. Millender v. Adams,
376 F.3d 520, 528 (2004). The Supreme Court’s decisions “demonstrate
that the touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability
of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). The
relevant question is thus whether the prosecutor’s conduct infected the
trial with such unfairness as to make the resulting conviction a denial
of due process.

Darden v. Wainwright, 477 U.S. 168, 181 (1986).

Further, while prosecutors may not suppress evidence favorable to a
defendant, Brady v. Maryland, 373 U.S. 83, 87 (1963), neither do they
have a duty to test evidence. Coy, 669 N.W.2d at 844 (citing
Youngblood, 488 U.S. at 58). Similarly, they have no duty to exhaust

18

all scientific means at their disposal. Coy, 669 N.W.2d at 833 (citing
People v. Allen, 88 N.W.2d 433 (1958)).
In support of his prosecutorial misconduct claim, Petitioner leans
heavily on the prosecutor’s statement during a pretrial conference that
she would send the orange sex toy to the Michigan State Police lab for
DNA testing. But see Habeas Pet. at PageID.65 (Trial Court Summary
Statement of Calendar Conference stating only “scientific/medical ev.
expected”).

The government, however, was not required to conduct

DNA analysis or present DNA evidence to the jury. See People v. Coy,
669 N.W.2d 831, 844 (Mich. Ct. App. 2003) (explaining there is no duty
to test evidence) (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).
Further, the jury was well aware from defense counsel’s crossexamination of the officer-in-charge that the government had not tested
the orange sex toy for DNA. In fact, the officer testified that testing
would not have been helpful because of the gap between the crime and
seizure of the sex toy, and because the complainant at some point stated
she had used the object on herself. Smith, 2014 WL 4263093 at *4.
Accordingly, it is unclear how the prosecutor misled the jury by not
19

presenting DNA evidence at trial. In addition, because the results of
DNA testing turned out not to be exculpatory, the government’s
decision not to test for DNA or present DNA evidence at trial did not
prejudice the Petitioner. As explained by the Michigan Court of
Appeals, the absence of DNA evidence at trial may actually have
benefitted Petitioner: “defense counsel was able to use the absence of
any testing to fuel his defense strategy of attacking the thoroughness of
the police investigation.” Id. Based on the foregoing, this Court agrees
with the state appellate court’s conclusion that Petitioner cannot
establish he was prejudiced by any alleged misconduct by the
prosecutor. See id.
Petitioner also contends the prosecutor intentionally elicited
perjured testimony from Officer Beckem, one of the government’s trial
witnesses, at trial. “A conviction obtained through the knowing use of
perjured testimony must be set aside [only] if ‘the false testimony could
. . . in any reasonable likelihood have affected the judgment of the
jury.’” Fields, 763 F.3d at 462 (quoting Giglio, 405 U.S. at 154). And to
prove a due process violation caused by the prosecutor’s failure to
20

correct false testimony, the Petitioner must demonstrate that: (1) the
statement was actually false; (2) it was material; and (3) the
prosecution knew it was false. Rosencrantz v. Lafler, 568 F.3d 577,
583–84 (6th Cir. 2009). This Court agrees with the Michigan Court of
Appeals that Petitioner has not presented any evidence of perjured
testimony, or shown that the prosecutor knowingly permitted the officer
to perjure himself.
Petitioner’s perjury allegation focuses on testimony by Officer
Beckem that there was no scientific evidence that would assist
Petitioner, and that the prosecution had enough evidence to move
forward without scientific evidence. Petitioner claims this testimony
was false because the prosecutor stated at a pretrial conference that he
would send the orange sex toy to the crime lab for DNA analysis.
Petitioner, however, has not presented evidence disputing that the
results of DNA testing on the orange sex toy did not become available
until after trial. See Habeas Pet. At PageID.230–31 (indicating DNA
testing did not occur until after trial). Officer Beckem’s testimony was
thus not plainly factually false, nor was it material. The Michigan Court
21

of Appeals’ finding that “[o]n this record, there is no basis for
defendant’s claim that he was convicted through the use, knowing or
otherwise, of perjured testimony, was thus not contrary to or an
unreasonable application of Supreme Court precedent.
C. Trial counsel’s failure to properly investigate the case.
Finally, Petitioner alleges he was constructively denied counsel at
critical stages of the criminal proceedings because his attorney failed to
properly investigate potential defenses. The Michigan Court of Appeals
rejected that claim and concluded defense counsel’s representation at
trial did not fall below an objective standard of reasonableness, and that
he conducted reasonable investigation into Petitioner’s potential
defenses. That decision was not contrary to or an unreasonable
application of Supreme Court precedent.
“The proper standard for attorney performance is that of
reasonably effective assistance.” Strickland, 466 U.S. at 687. A claim
for ineffective assistance of counsel warranting reversal of a conviction
has two components. First, the Petitioner must show that the counsel’s
performance was deficient. Id. Deficiency within the meaning of this
22

inquiry “requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth
Amendment.”

Id. Second, the Petitioner must establish that the

deficient performance “prejudiced the defense.”2 Id. Here, Petitioner
has shown neither.
At trial, defense counsel subjected the prosecution’s case to
meaningful adversarial testing. He participated in voir dire and gave
an opening statement in which he encouraged jurors to presume
Petitioner’s innocence and to use common sense in deciding whether the
government had proved its case. He also cross-examined government
witnesses, made appropriate objections,3 gave a closing argument, and
ultimately succeeded in persuading the jury to find Petitioner not guilty

In certain extreme circumstances where “counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing,” the
defendant-appellant need not show specific prejudice. U.S. v. Cronic,
466 U.S. 648, 658–60 (1984). Such conduct was not present in
Petitioner’s case.

2

To the extent Petitioner claims his attorney failed to make appropriate
objections, “counsel was under no professional obligation to make
meritless objections.” Conley v. Warden Chillicothe Corr. Inst., 505 F.
App’x 501, 508 (6th Cir. 2012). Because Petitioner’s underlying claims
about the trial court and prosecutor lack merit, defense counsel’s failure
to object to same do not establish ineffective assistance of counsel.
23

3

on two of the three charged counts. Based on this evidence, the state
appellate court’s conclusion that Petitioner has “failed to establish that
defense counsel’s representation of defendant at trial fell below an
objective standard of reasonableness” is consistent with Supreme Court
precedent and a reasonable application the same. See Smith, 2014 WL
4263093, at *6.
Concerning investigation, defense attorneys have “a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.”

Strickland, 466 U.S. at 691.

But “[i]n any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s
judgments.”

Id.

“[T]he duty to investigate does not force defense

lawyers to scour the globe on the off chance something will turn up;
reasonably diligent counsel may draw a line when they have good
reason to think further investigation would be a waste.” Rompilla v.
Beard, 545 U.S. 374, 383 (2005).

24

The record shows defense counsel adequately investigated the
facts of Petitioner’s case and was well prepared for trial. As explained
by the Michigan Court of Appeals:
Counsel attempted to show that the victim and her
grandmother had a motive to falsely accuse defendant so
that the victim would be removed from her home and could
live with her grandmother, as the victim wanted. Counsel
also elicited testimony that the victim was knowledgeable
about sex before the charged incident and that she engaged
in other sexual behavior.
Smith, 2014 WL 4263093, at *5. This strategy demonstrates defense
counsel investigated Petitioner’s potential defenses, and used the fruits
of that investigation to cast doubt on complainant’s testimony at trial.
Petitioner

nonetheless

believes

this

attorney

should

have

produced LaVerne Mock (known as “Cookie” by the complainant), who
swore in an affidavit that she resided with Petitioner and his family on
the date of the alleged crimes. But Mock’s affidavit failed to establish
any personal knowledge of the crimes in question. And according to
complainant, Mock came downstairs after Petitioner penetrated the
complainant and went directly to the kitchen; Petitioner and the
complainant were in the living room. Mock then left the kitchen and
25

immediately went back upstairs, without interacting with Petitioner or
his stepdaughter. Jul. 10, 2012 Trial Tr. at 53-54. Because it does not
appear that Mock would have aided Petitioner’s defense, it was a
reasonable trial strategy not to call her as a defense witness. The Court
concludes, consistent with the state appellate court’s decision, that
Petitioner’s “failure to investigate” claim lacks merit and is belied by
the record; the same is true for his claim of deficient performance by
defense counsel. The Michigan Court of Appeals’ decision on Petitioner’s
ineffective assistance of counsel claims was not contrary to established
Supreme Court precedent or an unreasonable application of that
Court’s jurisprudence. Accordingly, Petitioner is not entitled to relief on
his claim for deficient performance of trial counsel.
CONCLUSION
Based on the foregoing, it is ORDERED that the Petition for Writ
of Habeas Corpus (ECF No. 1) is DENIED.

The Court will deny a

certificate of appealability because reasonable jurists could not disagree
with the Court’s resolution of Petitioner’s constitutional claims, nor
conclude that the issues presented deserve encouragement to proceed
26

further.

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

If the

Petitioner nonetheless decides to appeal this Court’s decision, he may
proceed in forma pauperis because an appeal could be taken in good
faith. The Court further GRANTS Petitioner’s motion to submit a
summary of his case (ECF No. 27). The Court has reviewed that
summary as part of the record in considering the petition and these
motions. Petitioner’s motion for reconsideration of the order denying
him release on bond and for expedited review of his case is DENIED as
moot, as is his motion to submit.
SO ORDERED.

Dated: January 31, 2019

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically submitted on
January 31, 2019, using the CM/ECF system, which will send
notification to all parties.
s/A. Chubb
Case Manager
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