Milner v. Hoffner

Filing 14

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Denying Leave to Appeal In Forma Pauperis. Signed by District Judge Robert H. Cleland. (SBur)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVEN MILNER,
Petitioner,
v.

Case No. 16-10127

BONITA HOFFNER,
Respondent.
/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Christina Hemphill, working with the Metro Life International Church in Detroit
visited the nearby Campbell Apartments so that children living there might participate in
the church’s youth programing. She testified that when she entered the lobby, Petitioner
Steven Milner and two other men grabbed her, punched her, and dragged her into a
stairwell where she was repeatedly raped.
Milner was convicted after a jury trial in Wayne County Circuit Court of three
counts of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b, and one
count of second-degree criminal sexual conduct. MICH. COMP. LAWS § 750.520c. He was
sentenced to two terms of 22 to 80 years for the first-degree convictions and one term
of 5 to 15 years for the second-degree conviction, and now brings this petition for a writ
of habeas corpus under 28 U.S.C. § 2254, raising seven claims: (1) Petitioner was
denied the effective assistance of trial counsel when his trial attorney “sabotaged all
defenses to the charges,” (2) the prosecutor committed misconduct, (3) the sentencing

guidelines were incorrectly scored, (4) Petitioner was denied the effective assistance of
appellate counsel, (5) Petitioner was denied the effective assistance of trial counsel
when his attorney failed to object to a reference to Petitioner’s police mugshot, (6) the
trial court did not have jurisdiction to try the case because of defects in the charging
documents, and (7) the trial court did not have jurisdiction to try the case because the
district court bind-over was not filed in the circuit court. The petition will be denied
because Petitioner’s claims are without merit. The court will also deny a certificate of
appealability, and deny leave to appeal in forma pauperis.
I. BACKGROUND
Petitioner’s convictions stem from allegations that he and two other men
abducted a woman in an apartment building and sexually assaulted her. Petitioner was
tried simultaneously with his brother, Tarquinis Heard, but before separate juries. The
third assailant was never identified.
At trial, Christina Hemphill testified that she worked with the Metro Life
International Church in Detroit. On the afternoon of March 17, 2011, she went to the
Campbell Apartments to invite children living there to participate in the church’s youth
programing. Hemphill testified that Heard opened the door to let her into the lobby.
Heard and two other men, including Petitioner, then grabbed her. Petitioner punched
Hemphill in the stomach, and the men then dragged her into a stairwell.
Hemphill testified that Petitioner told her that he would, “. . . enjoy [having sex
with] one of God’s wives.” (Dkt. #11-9, Pg. ID 806.) Petitioner then pulled down her
jeans and her underwear. Petitioner put his penis into her vagina. Hemphill screamed,
and then Heard put his penis into her mouth. A third man held her down while the other
2

two assaulted her. The third man pulled up her shirt and touched her breasts. Petitioner
ejaculated inside her, and Heard ejaculated on her face. Hemphill described how she
was finally able to run away when another woman came into the stairwell and yelled.
Hemphill testified that she went to her pastor’s home, who was out of town, and
she showered. Hemphill did not immediately call the police because she wanted to
forget about the incident. Hemphill was unable to do so, and she told her pastor what
happened several days after the assault.
Hemphill testified that on March 31, 2011, on the advice of her pastor, she
reported the assault to the police. She met with a sketch artist and gave a description of
the two men she saw. She identified the sketches for the jury.
Hemphill testified that she knew Petitioner’s first name, Steve, from prior visits to
the Campbell Apartments. During the afternoon of March 31, 2011, two officers came to
her home and showed her three photographic lineup sheets. She picked Petitioner’s
photograph on the first sheet because it jumped out at her as the man who raped her.
She picked Heard’s photograph out on the second sheet.
Hemphill testified she had seen Petitioner five or six times before the date of the
assault. He flirted with her, but she told him she was devoted to God and ministry. She
once invited Petitioner to her church, but he never went there. On another occasion,
Petitioner helped Hemphill carry a television set. Hemphill also had seen Heard at the
apartment building four to six times before the assault.
During cross examination, Hemphill testified that she did not think about the fact
that she was destroying physical evidence when she took a shower. She explained that

3

she was trying to block the assault out of her mind. She washed her clothing for the
same reason.
Patricia Marks testified that she was the assistant pastor at Metro Life
International Church. Hemphill was her assistant. Marks testified that since the date of
the incident Hemphill changed from being a confident and strong person, to being
fearful, scared, and easily given to tears. Marks testified that she could tell something
was wrong with Hemphill from text messages she received on the date of the incident.
Marks also received text messages from other church members worrying about
Hemphill.
Marks testified that Hemphill was upset when she met with her on March 21,
2011. Finally, on on March 31, 2011, Marks and a police officer who was a deacon at
the church convinced Hemphill to report the assault.
Marks had gone with Hemphill to the Campbell Apartments on two prior
occasions. She stated that they encountered three men in the lobby. She said that the
men stopped them and asked why they were there. Marks said that the men teased
them. She said that one of the men referred to Hemphill as his future wife. Marks,
however, could not identify either Petitioner or Heard as the men in question.
Sgt. Bernadette Dunbeck of the Detroit Police Department testified that on March
31, 2011, she was given physical descriptions of the suspects in this case. She took a
statement from Marks that afternoon, who also provided identification information to her.
Dunbeck looked through old police reports for the Campbell Apartments and found one
from March 29, 2011, that reported that both of the defendants were arrested there that
day. Dunbeck testified that she obtained the defendants’ mugshots, and she put
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together the photographic lineups shown to the complainant. Hemphill identified both
defendants from the lineups.
Officer Robert Kane testified that he visited Hemphill at her home on March 31,
2011, and showed her two photographic lineups. Kane used a mugshot of Petitioner
from a prior arrest in the array of photos. Hemphill picked Petitioner out immediately.
Kane showed her the second lineup, and she picked Heard out immediately as well.
Kane testified that when Hemphill picked Petitioner’s photograph, she indicated, “He put
his penis in my vagina.” (Dkt. #11-9, Pg. ID 908.) Hemphill wrote, “when I screamed, he
put his penis in my mouth,” on the sheet containing Heard’s photograph. (Id., Pg. ID
909.)
Following his conviction and sentence, Petitioner filed a claim of appeal in the
Michigan Court of Appeals. His appellate brief raised the following claims:
I. Was the Defendant-Appellant denied the effective assistance of counsel
at trial where counsel failed to object to police testimony that the
photographic lineup shown to the complainant included the
Defendant-Appellant’s mugshot for an arrest made two days prior to the
date of the lineup?
II. Did the insufficient evidence presented during the
Defendant-Appellant’s trial on the element of identity, to support the jury’s
verdicts of guilty beyond a reasonable doubt of three counts of first-degree
criminal sexual conduct (CSC) and one count of second degree CSC,
constitute a denial of the due process of law guaranteed by the Fifth
Amendment to the United States Constitution?
III. Do the Defendant-Appellant’s three concurrent sentences of from
twenty-two years to eighty years, imposed pursuant to his convictions for
three counts of first-degree CSC, constitute a violation of the guarantee
against cruel and unusual punishment provided by the United States
Constitution and the guarantee against cruel or unusual punishment
provided by the Michigan Constitution?

5

The Michigan Court of Appeals affirmed Petitioner’s convictions and sentence in
an unpublished per curiam opinion. People v. Milner, No. 306593, 2013 WL 968100, at
*1-3 (Mich. Ct. App. Feb. 21, 2013). Petitioner then filed an application for leave to
appeal in the Michigan Supreme Court, raising the same claims. The Court denied the
application because it was not persuaded that the questions presented should be
reviewed. People v. Milner, No. 146919, 494 Mich. 871, 832 N.W.2d 221 (Mich. 2013)
(table).
Petitioner then filed a petition for writ of habeas corpus in this court, and he
simultaneously filed a motion to stay his petition and hold it in abeyance so he could
exhaust further claims in the state courts. The court denied the motion to stay, and
Petitioner then successfully moved to dismiss the petition without prejudice. See Milner
v. Hoffner, No. 14-12329 (E.D. Mich. July 18, 2014).
Petitioner returned to the trial court and filed a motion for relief from judgment,
raising what now form his first through fourth habeas claims. The trial court denied the
first three claims under Michigan Court Rule 6.508(D)(2), finding that the claims were
barred from review because they had been raised on direct appeal. (Dkt. #11-17, Pg. ID
1385-86.) Respondent concedes that the state court’s reliance on this rule was
mistaken. (Dkt. #10, Pg. ID 208-09.)
Petitioner then filed an application for leave to appeal in the Michigan Court of
Appeals, but the state court again denied relief under Rule 6.508(D)(2). People v.
Milner, No. 325571 (Mich. Ct. App. March 12, 2015). Petitioner sought leave to appeal
in the Michigan Supreme Court, raising the same claims along with what now form

6

Petitioner’s sixth and seventh claims. The Supreme Court denied relief under Rule
6.508(D). People v. Milner, 872 N.W.2d 449 (Mich. 2015) (table).
II. STANDARD OF REVIEW
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims
raised by a state prisoner in a habeas action if the claims were adjudicated on the
merits by the state courts. Relief is barred under this section unless the state court
adjudication was “contrary to” or resulted in an “unreasonable application of” clearly
established Supreme Court law.
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000)).
“[T]he ‘unreasonable application’ prong of the statute permits a federal habeas
court to ‘grant the writ if the state court identifies the correct governing legal principle
from [the Supreme] Court but unreasonably applies that principle to the facts’ of
petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529
U.S. at 413). “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S.86, 101 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also Woods v. Etherton, 136 S.

7

Ct. 1149, 1152 (2016) (habeas relief precluded if state court decision is “not beyond the
realm of possibility [from what] a fairminded jurist could conclude.”).
“Section 2254(d) reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal. . . . As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103.
III. DISCUSSION
A. Ineffective Assistance of Trial Counsel
Petitioner’s first and fifth claims assert that he was denied the effective
assistance of trial counsel. In support of this claim Petitioner filed an affidavit, wherein
he states that he met with his trial attorney only three times prior to trial. (Dkt. #1-1, Pg.
ID 89-90.) He states that his attorney advised him to take a plea bargain because his
brother was placing the blame on him. Id. Petitioner alleges that he told his attorney that
he was at home watching television on the date in question, and that his mother was
working at her home office and could vouch for him. Id. He asserts that his attorney told
him he could not force the victim to take a polygraph examination, and that he could not
take one himself because it would not be admissible. Id. Petitioner states that he told his
counsel about a witness, Nafeesah Binyard, who said she was with the victim elsewhere
on the afternoon in question. Id.

8

Petitioner also submitted an affidavit from his mother, Toni Hicks, stating that she
was working in her home office on the date in question. (Dkt. #1-1, Pg. ID 92.) She
states she was available to testify at her sons’ trial. Id. Hicks “made initial inquiries” with
the victim’s church about the case, but the investigator never contacted her. Id.
Finally, Petitioner has submitted the affidavit of Nafeesah Binyard. (Dkt. #1, Pg.
ID 94.) The affidavit states that Binyard was with Hemphill and one other person at the
Metro Life International Church in Detroit between 2:00 and 3:00 p.m. on the date in
question. Id. She states that she was a minor at the time of Petitioner’s trial, and her
parents did not want her to come forward with her information at the time. Id.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, Petitioner must satisfy a two-prong test. First, he must
demonstrate that, considering all of the circumstances, counsel’s performance was so
deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, Petitioner
must overcome a strong presumption that counsel's behavior lies within the wide range
of reasonable professional assistance. Id. In other words, Petitioner must overcome the
presumption that, under the circumstances, the challenged action might be sound trial
strategy. Strickland, 466 U.S. at 689. Second, Petitioner must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, he must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. “Strickland’s
test for prejudice is a demanding one. ‘The likelihood of a different result must be
substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir.
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2011) (quoting Harrington, 562 U.S. at 112). The Supreme Court’s holding in Strickland
places the burden on the defendant who raises a claim of ineffective assistance of
counsel, and not the state, to show a reasonable probability that the result of the
proceeding would have been different, but for counsel’s allegedly deficient performance.
See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
1. Right to Take a Polygraph
Petitioner asserts that his attorney was ineffective for failing to assert Petitioner’s
right under Michigan law to take a polygraph examination under Mich. Comp. Laws
§ 776.21. He asserts that his attorney dismissed his request to take a polygraph
examination because the results would not be admissible at trial. He argues that his
attorney was more concerned with convincing Petitioner to take a plea than pursuing
this line of defense. The claim was presented to the state courts in Petitioner’s state
post-conviction review proceeding, and it was denied under Rule 6.508(D)(2) under the
mistaken belief that it had been raised during direct review. Review is therefore de
novo, and § 2254(d) does not apply. See McKenzie v. Smith, 326 F.3d 721, 726-27 (6th
Cir. 2003) (erroneous application of Rule 6.508(D)(2) does not constitute adjudication of
the merits of claim, and review of claim is therefore de novo).
Petitioner’s counsel did not perform deficiently by advising him not to take a
polygraph examination. See Sousa v. Warren, No. 07-14112, 2010 WL 3937163, at
*14-15 (E.D. Mich. Sept. 30, 2010). If Petitioner made any incriminating statements
during the examination, they would have been admissible against him at trial. See
Wyrick v. Fields, 459 U.S. 42, 48 (1992). And even if Petitioner passed the examination,
the results of the test would not have been admissible. See People v. Phillips, 666
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N.W.2d 657, 661 (Mich. 2003). Petitioner’s argument that the prosecutor may have
dropped the charges if he passed the examination is too speculative of a basis as to
compel defense counsel to demand a polygraph examination. Rather, the decision to
forgo a polygraph examination was a reasonable strategic decision that did not
constitute deficient performance under the circumstances of this case.
2. Failure to Utilize Private Investigator
Petitioner notes that the trial court appointed a private investigator to assist the
defense. (Dkt. #11-5, Pg. ID 432.) He asserts that counsel never utilized the
investigator, however, because no defense witnesses were called at trial. This allegation
is also subject to de novo review because of the erroneous application of Rule
6.508(D)(2) by the state courts.
The claim fails, however, because Petitioner does not state with any specificity
what evidence a private investigator would have uncovered or how the use of the
investigator would have benefitted the defense. Conclusory allegations of ineffective
assistance of counsel do not merit relief. See Workman v. Bell, 178 F.3d 759, 771 (6th
Cir. 1998). To the extent Petitioner asserts that the investigator would have helped with
calling his mother or Nafeesha Bingard as defense witnesses, those allegations are
discussed below.
3. Failure to Call Petitioner’s Mother as Defense Witness
Petitioner asserts that his mother, Pastor Toni Higgs, was willing to testify at trial,
but his counsel failed to call her as a defense witness. He asserts that his mother would
have testified that Petitioner was at home watching television on the afternoon of March

11

17, 2011, and not at the Campbell Apartments. This claim is subject to de novo review
for the reasons discussed above.
Generally speaking, affidavits from family members are viewed with suspicion
due to their relationship to the petitioner. McCray v. Vasbinder, 499 F.3d 568, 573-74
(6th Cir. 2007). But even setting Higgs’ relationship with Petitioner aside, her affidavit
does not support his claim. Higgs states only that she was home on the date of the
incident, and that she was available to testify at trial. Strikingly missing from the Higgs
affidavit is anything having to do with Petitioner’s activities or whereabouts. It provides
no exculpatory information. The totality of the relevant portion of the statement says: “I
was working on March 17, 2011. I work in an office in my home.” (See Dkt. #1-1, Pg. ID
92.)
Accordingly, Petitioner has failed to show that he was prejudiced by his counsel’s
failure to call his mother as a witness for the defense. See Dell v. Straub, 194 F. Supp.
2d 629, 650 (E.D. Mich. 2002) (trial counsel’s failure to present a defense witness does
not amount to the ineffective assistance of counsel, because Petitioner failed to specify
the content of his testimony).
4. Failure to Impeach Victim
Petitioner asserts that his counsel failed to impeach Hemphill based on the
statement given by Nafeesha Binyard. Petitioner asserts that Binyard stated that
Hemphill was with her and another person at the International Church in Detroit
between 1:00 p.m. and 3:00 p.m. on the date of the incident. This claim is subject to de
novo review as well.

12

Binyard’s affidavit indicates that she was a minor at time of the prosecution and
that her parents did not want her to come forward with her information. (Dkt. #1-1, Pg.
ID 94.) Accordingly, other than Petitioner’s self-serving affidavit that he told his counsel
about Binyard, there is no indication in the record that defense counsel or an
investigator would have discovered Binyard or her claim that she was with Hemphill on
the afternoon in question. That is, Petitioner has failed to demonstrate that his counsel
performed deficiently in failing to discover Binyard as a potential defense witness.
Moreover, even assuming that counsel was deficient for failing to call Binyard as
a defense witness, he has not shown Strikland prejudice. Hemphill testified that she
went to the Campbell Apartments “in the afternoon hours” of March 17, 2011. (Dkt. #119, Pg. ID 799.) She stated “it was early afternoon, maybe between one and three. I can’t
remember the exact time.” Id. Hemphill also testified at the preliminary examination that
it was “hard to remember the exact time.” (Dkt. #11-2, Pg. ID 293.) Given the fact that
Hemphill was uncertain as to the time of the assault, Binyard’s statement that she was
with Hemphill between 2:00 and 3:00 p.m. was not inconsistent with the prosecutor’s
case. Indeed, Hemphill testified at trial that she was working at the church before she
went to the apartments building on the day of the assault. (Dkt. #11-9, Pg. ID 843.)
The court finds that given Hemphill’s uncertainty about the time of the assault,
and given her testimony that she was at the church before she went to the apartments,
Petitioner has failed to demonstrate a reasonable probability that the result of
Petitioner’s trial would have been more favorable had Binyard testified. See, e.g., Powe
v. Wolfenbarger, No. 11-11875, 2016 WL 1728777, at *8-9 (E.D. Mich. Apr. 29, 2016)
(counsel’s failure to present defense evidence did not prejudice defendant where
13

evidence was not inconsistent with prosecution evidence); Jackson v. Hofbauer, No. 0814260, 2013 WL 5203773, at *3-5 (E.D. Mich. Sept. 16, 2013) (same); Bixler v. Bell, No.
06-11781, 2007 WL 4570073, at *6 (E.D. Mich. Dec. 26, 2007) (same).
5. Ineffective Defense Strategy
Petitioner asserts that it was ineffective for his trial attorney to concede that the
victim was raped, and to take the more narrow approach that she was simply mistaken
as to the identity of her attackers. Petitioner contends that given the lack of physical
evidence, his attorney should have contested the fact that Hemphill was raped at all.
This assertion is exactly the type of hindsight criticism that Strickland forecloses.
A claim of ineffective assistance of counsel “must overcome the presumption that, under
the circumstances, the challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U.S. at 689. It was an entirely reasonable strategy for defense counsel
to raise a mistaken identity defense and not challenge the victim’s allegation that she
was the victim of a rape. Challenging the fact of the rape itself–calling the victim a liar
instead of treating her as an honest but mistaken victim–would have carried with it the
risk of inflaming the passions of the jury. Defense counsel was in the best position to
view her demeanor on the witness stand and to judge her credibility and thereby
determine how far to challenge the victim’s testimony. Petitioner has not demonstrated
that his counsel’s decision to concede that the victim was raped constituted deficient
performance.

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6. Failure to Object to Reference to Prior Arrest
Petitioner asserts that his counsel should have objected to the admission of
testimony regarding Petitioner’s prior arrest. Again, this claim is subject to de novo
review.
A police officer testified at trial that when she compiled photographs for the lineup
identification procedure she found a photo of Petitioner from a prior arrest at the
Campbell Apartments. (Dkt. #11-9, Pg. ID 946-47.) Petitioner has not shown that his
counsel performed deficiently by failing to object to the reference to a prior arrest. The
complained-of testimony was brief and isolated. Counsel may make a legitimate tactical
decision to allow a brief improper comment pass rather than draw attention to it with an
objection. See Mann v. Rapelje, No 14-11316, 2016 WL 3751950, at *5-6 (E.D. Mich.
July 13, 2016); Hills v. McQuiggin, No. 08-14354, 2012 WL 1079727, at *23-24 (E.D.
Mich. Mar. 30, 2012). Petitioner has failed to overcome the presumption that his
counsel’s failure to object to this testimony was not a reasonable tactical decision.
7. Failure to Advise Petitioner Regarding Right to Testify
Petitioner asserts that his counsel was ineffective for preventing him from
testifying in his own defense. Petitioner alleges that his counsel told him that if he
testified that the prosecutor would “eat him alive.” He alleges that his counsel told him “if
you want to take that stand I don’t care. F— your brother if you want to, I don’t care. But
I would recommend that you don’t because they have to prove that you are guilty. You
don’t have to prove you are innocent.” (Dkt. #1-1, Pg. ID 53.) This claim is also reviewed
de novo.

15

Although the right to testify is a fundamental right subject only to knowing and
intelligent waiver, “waiver of certain fundamental rights can be presumed from a
defendant's conduct alone, absent circumstances giving rise to a contrary inference.”
United States v. Stover, 474 F.3d 904, 908 (6th Cir. 2007). The Sixth Circuit repeatedly
has recognized that, “‘[a]lthough the ultimate decision whether to testify rests with the
defendant, when a tactical decision is made not to have the defendant testify, the
defendant’s assent is presumed.’” Hodge v. Haeberlin, 579 F.3d 627, 639 (6th Cir.
2009) (quoting United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000)). “Barring
any statements or actions from the defendant indicating disagreement with counsel or
the desire to testify, the trial court is neither required to sua sponte address a silent
defendant and inquire whether the defendant knowingly and intentionally waived the
right to testify, nor ensure that the defendant has waived the right on the record.”
Webber, 208 F.3d at 551 (citing United States v. Joelson, 7 F.3d 174, 177 (6th Cir.
1993) (other citations omitted)).
Nothing in the trial record suggests that Petitioner disagreed with his attorney’s
representation that the defense would not call any witnesses. Under these
circumstances, waiver of the right to testify is presumed. Because Petitioner cannot
show that his right to testify was impaired, he cannot demonstrate that counsel’s
performance was deficient. Hodge, 579 F.3d at 640. Therefore, this claim is without
merit.

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8. Failure to Object to Mugshot Reference
Petitioner’s fifth habeas claim asserts that his counsel should have objected to
the police officer’s characterization of the photograph used in the line-up as a
“mugshot.” This claim, closely related to the claim discussed above, was raised in
Petitioner’s direct appeal, and it was rejected on the merits by the Michigan Court of
Appeals. Petitioner has failed to demonstrate that the state court adjudication of the
claim was contrary to, or involved an unreasonable application of, clearly established
Supreme Court law under § 2254(d).
The Michigan Court of Appeals rejected this claim as follows:
Defendant first argues his trial counsel provided ineffective
assistance of counsel because he failed to object to testimony regarding
the use of defendant’s mug shot from an unrelated arrest in the
photographic line-up. Because defendant did not file a motion for a new
trial or evidentiary hearing pursuant to People v. Ginther, 390 Mich. 436
(2005). This Court’s review of unpreserved claims of ineffective assistance
of counsel is limited to errors apparent on the record. People v. Jordan,
275 Mich. App. 659, 667(2007). The determination whether a defendant
received ineffective assistance of counsel presents a mixed question of
fact and constitutional law. People v. LeBlanc, 465 Mich. 575, 579 (2002).
The trial court’s factual findings are reviewed for clear error and its
constitutional determinations are reviewed de novo. Id.
To establish that he received the ineffective assistance of counsel,
a criminal defendant must satisfy the two-part test first articulated in
Strickland v. Washington, 466 U.S. 668 (1984). “First, the defendant must
show that counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed by the Sixth Amendment.” Strickland, 466 U.S. at
687. In this respect, the defendant must overcome a strong presumption
that counsel’s performance constituted sound trial strategy. Id. at 690.
Second, the defendant must show that trial counsel's deficient
performance prejudiced his defense. Id. at 687. “To demonstrate
prejudice, the defendant must show the existence of a reasonable
probability that, but for counsel’s error, the result of the proceeding would
have been different.” People v. Carbin, 463 Mich. 590, 599 (2001), citing
17

Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
Defendant argues that his trial counsel was ineffective for failing to
object to the admission of the photographic line-ups, which included
defendant's mug shot from an unrelated arrest. However, defendant failed
to specify the rule of evidence on which his trial counsel should have
based his objection. Based on his argument “that the evidence was
irrelevant and prejudicial” we assume defendant believes the appropriate
bases for his trial counsel’s objections would have been MRE 402
(irrelevant evidence inadmissible) and MRE 403 (exclusion of relevant
evidence on grounds of prejudice). Because neither rule precludes
admission of the evidence and defendant cannot overcome the
presumption that trial counsel’s performance constituted sound trial
strategy, defendant's trial counsel did not provide ineffective assistance.
The decision whether to object to evidence is a matter of trial strategy.
People v. Horn, 279 Mich. App. 31, 39 (2008). This Court is reluctant to
second-guess trial counsel on matters of trial strategy, even if the strategy
backfired. People v. Caballero, 184 Mich. App. 636, 640 (1990). This
Court has acknowledged that “‘there are times when it is better not to
object and draw attention to an improper comment.’” Horn, 279 Mich. App.
at 40, quoting People v. Bahoda, 448 Mich. 261, 287 n. 54 (1995). The
same is true for unfavorable evidence. People v. Rodgers, 248 Mich. App.
702, 715 (2001). Here, evidence that defendant was arrested for an
unrelated offense at the same location as the assault was unfavorable to
defendant. Defense counsel may have made the conscious choice not to
object and draw the jurors’ attention to the unfavorable evidence. This
presumption is bolstered by the fact that defense counsel filed a pretrial
motion to suppress the identification evidence outside the presence of a
jury. In light of this reasonable explanation and defendant's failure to
provide any legal authority to the contrary, defendant has not overcome
the strong presumption that defense counsel's performance was sound
trial strategy.
Milner, 2013 WL 968100, at *2.
Applying the “doubly-deferential” standard created by § 2254(d) to claims brought
under Strickland, and for the reasons discussed in Section III(A)(6) of this Opinion, this
court cannot conclude that the state appellate court’s rejection of this ineffective
assistance claim was unreasonable.
B. Prosecutorial Misconduct
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Petitioner’s second claim asserts that the prosecutor committed misconduct by
eliciting testimony from a police officer that Petitioner was arrested at the Campbell
Apartments two days prior to the date of the incident. Petitioner also contends that
reference to Petitioner’s photograph in the lineup procedure as a “mugshot” was unfairly
prejudicial.
The controlling Supreme Court decision is Darden v. Wainwright, 477 U.S. 168
(1986). Under Darden, a prosecutor’s improper comments violate a criminal defendant’s
constitutional rights if they “‘so infect[] the trial with unfairness as to make the resulting
conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “[E]ven if [a]
prosecutor’s conduct was undesirable or even universally condemned . . . it does not
constitute a due process violation unless the conduct was so egregious so as to render
the entire trial fundamentally unfair.” Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000)
(internal punctuation and citations omitted). Review of this claim is also de novo
because the of the state court’s mistaken application of Rule 6.508(D)(2).
As indicated above, the prosecutor introduced the evidence about Petitioner’s
prior arrest in the context of the police officer’s assembly of the photographic lineup, and
based on the victim’s statement to police that she had seen her attackers previously at
that apartment building. Contrary to Petitioner’s allegations, the prosecutor did not use
the evidence to suggest that Petitioner was a “bad man” because he had been arrested
before.
The nature of the prior arrest was never revealed to the jury, and the reason for
the photograph’s inclusion in the lineup was not explored further. Indeed, the prosecutor
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specifically told the police officer not to reveal the nature of the call that led to
Petitioner’s prior arrest. (Dkt. #11-9, Pg. ID 946-47.) The court therefore finds that this
brief and isolated reference during a long trial to the fact that Petitioner had a prior
arrest did not render Petitioner’s trial fundamentally unfair. Byrd v. Collins, 209 F. 3d
486, 532 (6th Cir. 2000) (Prosecutor did not commit misconduct rendering trial
fundamentally unfair where improper comments were relatively isolated).
C. Sentencing Guidelines
Petitioner’s third claim asserts that the trial court incorrectly scored an offense
variable of the sentencing guidelines. The state court’s application of its sentencing laws
and guidelines, however, “is a matter of state concern only,” Howard v. White, 76 F.
App'x 52, 53 (6th Cir. 2003), and “federal habeas corpus relief does not lie for errors of
state law,” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Pulley v. Harris, 465
U.S. 37, 41 (1984) (stating that “[a] federal court may not issue the writ on the basis of a
perceived error of state law”). “In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United
States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). Thus, Petitioner’s contention that
the trial court miscalculated the sentencing guidelines is not a cognizable claim on
federal habeas corpus review. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007);
McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006); Robinson v. Stegall,
157 F. Supp. 2d 802, 823 (E.D. Mich. 2001). Habeas relief is not warranted on
Petitioner’s sentencing claim.
D. Effective Assistance of Appellate Counsel

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Petitioner’s fourth claim asserts that his appellate counsel was ineffective for
failing to raise the allegations of ineffective assistance of counsel and prosecutorial
misconduct Petitioner raised in his motion for relief from judgment. Because the
underlying claims are without merit for the reasons discussed above, appellate
counsel’s failure to raise them on direct review was not deficient and was not prejudicial.
“[B]y definition, appellate counsel cannot be ineffective for a failure to raise an issue that
lacks merit.” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). This claim is without
merit.
E. Jurisdiction of Trial Court
Petitioner’s sixth and seventh claims contend that the trial court failed to acquire
jurisdiction because of defects in the charging documents and because the state district
court failed to file a document in the state circuit court. The determination of whether a
state court is vested with jurisdiction under state law over a criminal case is a function of
the state courts, not the federal courts. Wills v. Egeler, 532 F. 2d 1058, 1059 (6th Cir.
1976); see also Daniel v. McQuiggin, 678 F.Supp. 2d 547, 553 (E.D. Mich. 2009). The
Sixth Circuit has noted that “[a] state court’s interpretation of state jurisdictional issues
conclusively establishes jurisdiction for purposes of federal habeas review.” Strunk v.
Martin, 27 Fed. Appx. 473, 475 (6th Cir. 2001). Petitioner’s claim that the trial court
lacked jurisdiction to try his case raises only an issue of state law, because it questions
the interpretation of Michigan law, and is therefore not cognizable in federal habeas
review. See Toler v. McGinnis, 23 Fed. Appx. 259, 266 (6th Cir. 2001) (district court
lacked authority on habeas review to review petitioner's claim that the state court erred

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in refusing to instruct jury on the requirements for extraterritorial jurisdiction, because
the claim was contingent upon an interpretation of an alleged violation of state law).
IV. CERTIFICATE OF APPEALABILITY
In order to appeal the court’s decision, Petitioner must obtain a certificate of
appealability. To obtain a certificate of appealability, a prisoner must make a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate
this denial, the applicant is required to show that reasonable jurists could debate
whether the petition should have been resolved in a different manner, or that the issues
presented were adequate to deserve encouragement to proceed further. Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). A federal district court may grant or deny a
certificate of appealability when the court issues a ruling on the habeas petition. Castro
v. United States, 310 F.3d 900, 901 (6th Cir. 2002).
Here, jurists of reason would not debate this court’s analysis with respect to any
of Petitioner’s claims because they are devoid of merit. The court will therefore deny a
certificate of appealability. Furthermore, the court will deny Petitioner permission to
appeal in forma pauperis because any appeal would not be taken in good faith. 28
U.S.C. § 1915(a)(3).
V. CONCLUSION
IT IS ORDERED that the petition for a writ of habeas corpus (Dkt. #1) is DENIED
with prejudice.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED.
Dated: January 3, 2017

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 3, 2017, by electronic and/or ordinary mail.
s/Shawna C. Burns
Case Manager Generalist
[phone]

Q:\Cleland\JUDGE'S DESK\C2 ORDERS\16-10127.MILNER.denyhabeas.bhb.bss.RHC.wpd

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