Manizak v. Harry

Filing 29

OPINION and ORDER Denying the Petition for Writ of Habeas Corpus 1 , Denying A Certificate of Appealability, and Granting Petitioner Leave to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PAUL MANIZAK,
Petitioner,
v.

CASE NO. 2:16-CV-10657
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

SHIRLEE A. HARRY,
Respondent,
____________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA
PAUPERIS
Paul Manizak (“Petitioner”), currently on parole supervision with the
Michigan Department of Corrections, while confined at the Wayne County
Jail in Detroit, Michigan, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254.1 Petitioner challenges his convictions for receiving
and concealing a stolen motor vehicle, M.C.L.A. § 750.535(7), driving with
a suspended license second offense, M.C.L.A. § 257.904(3)(b), failing to
stop at the scene of an accident, M.C.L.A. § 257.620, and being a fourth

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This Court obtained the information regarding petitioner’s parole status from the Michigan
Department of Corrections’ Offender Tracking Information System (OTIS), which this Court is permitted to
take judicial notice of. See Ward v. Wolfenbarger,323 F. Supp. 2d 818, 821, n. 3 (E.D. Mich. 2004). It is
not clear why petitioner is currently incarcerated at the Wayne County Jail.

1

felony habitual offender, M.C.L.A.§ 769.12. For the reasons that follow, the
petition for a writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted following a jury trial in the Wayne County
Circuit Court. This Court recites verbatim the relevant facts relied upon by
the Michigan Court of Appeals, which are presumed correct on habeas
review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009):
Defendant’s convictions and sentences arise out of a motor
vehicle accident. During the afternoon of October 11, 2011,
Walter Claydon was stopped at an intersection in Canton waiting
to make a left-hand turn. While he was stopped, a 2010 Ford
Fusion struck Claydon’s truck from behind. The parties stipulated
that the Fusion was stolen one week earlier.
After the impact, Claydon exited his vehicle to see if the other
driver was injured. Defendant exited the Fusion. Claydon
observed defendant from a distance of approximately four feet,
with the two standing face-to-face. After Claydon asked
defendant if he was injured, defendant walked to the sidewalk and
then ran down the sidewalk, heading north toward a clump of
trees. Claydon witnessed defendant removing clothing as he ran.
Claydon waited for police to arrive and provided a description of
defendant to a responding officer. According to Claydon,
defendant was wearing black shorts with a white stripe and a
yellow t-shirt. A report of the accident was broadcast from police
dispatch, which described defendant as a bald white male, age 30
to 35, wearing a yellow t-shirt and black shorts with a white stripe.
Officers Eric Kolke and Jessica Nuotilla canvassed the area north
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of the accident scene. Nuotilla heard movement in a wooded
area and asked Kolke to assist her search. Kolke observed a
man exit the wooded area. This man was bald, shirtless, and
wearing black shorts with a white stripe. Kolke described the man
as sweating heavily and covered in scratches. Kolke ordered the
man to the ground and handcuffed him. At trial, Kolke identified
defendant as the man he apprehended.
Nuotilla arrived at the accident scene shortly thereafter and after
searching defendant, Kolke and Nuotilla placed defendant in the
rear seat of Nuotilla's police vehicle. At some point during this
time, Nuotilla noticed a cell phone lying in the parking lot.
Defendant alternately claimed and disclaimed ownership of the
cell phone. In an effort to discover the cell phone’s owner,
Nuotilla used it to call 911, hoping that the operator would be able
to identify the owner using caller ID. However, the 911 operator
was unable to do so. The officers asked defendant his name and
defendant responded by stating that his name was “Death.”
People v. Manizak, No. 314541, 2014 WL 2218951, at *1 (Mich. Ct.
App. May 27, 2014).
Petitioner’s conviction was affirmed on appeal. Id.; lv. den. 497 Mich.
889, 854 N.W. 2d 885 (2014).
Petitioner filed a post-conviction motion for relief from judgment,
which was denied. People v. Manizak, No. 12-001699-01-FH (Third Cir.
Ct., Dec. 3, 2014). The Michigan appellate courts denied petitioner leave
to appeal. People v. Manizak, No. 325996 (Mich.Ct.App. June 22, 2015);
lv. Den. 499 Mich. 856, 873 N.W.2d 306 (2016).
Petitioner seeks relief on the following grounds:

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I. The state officials obtained the conviction by suppressing
favorable evidence to petitioner regarding testimony known to be
perjured by the state’s key witness, and the testifying Canton
Township Police Department, in violation of Brady v.
Maryland/Giglio v. United States, and the Due Process Clause of
the Fourteenth Amendment of the United States Constitution.
II. The state officials obtained the conviction by the denial of the
guaranteed effective assistance of counsel at the trial and in
general that was based on the State’s interference with the
petitioner’s defense by the Wayne County Prosecutor’s Office, by
shopping for, and obtaining the services of defense counsel Brian
Gagnuik for the express purpose of deliberately not subject[ing]
the state’s witnesses’ perjured testimony, or all Fourth
Amendment issues to any adversarial testing, that was designed
to obstruct justice, and amounted to a fraud upon petitioner, sham
proceedings, and breach of contract, that intentionally disregarded
the United States Supreme Court rulings in Strickland v.
Washington/Hazel Atlas Glass Co. v. Hartford Empire Glass Co.,
and violated the Sixth and Fourteenth Amendments to the United
States Constitution.
III. The state officials obtained the conviction by suppressing
favorable knowledge that the preliminary case report upholding
the petitioner’s arrest warrant is forged/unconstitutional, that
violated the United States Supreme Court’s rulings in Brady v.
Maryland/Franks v. Delaware, that offended the Fourteenth
Amendment to the United States Constitution.
IV. The state officials obtained the conviction by presentation of
testimony known to be perjured that was used as a means of
depriving petitioner of his liberty through pretense of trial, that
intentionally disregarded the United States Supreme Court’s
rulings in Brady v. Maryland/Giglio v. United States and Mooney
v. Holohan, in violation of the Fourteenth Amendment to the
United States Constitution.
V. The state officials obtained the conviction by prohibiting the
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petitioner from engaging in appropriate cross-examination to
demonstrate a prototypical form of bias on the part of the state’s
key witness Walter Claydon and the testifying Canton Township
Police Department, to expose to the jury facts from which
reasonable jurists could draw inferences relating to the reliability
of the witnesses, that intentionally disregarded the United States
Supreme Court’s rulings in Davis v. Alaska, in violation of the
Sixth and Fourteenth Amendments to the United States
Constitution.
VI. The state officials obtained the conviction by the intentional
infliction of cruel and unusual punishment contrary to the Eighth,
Eleventh, and Fourteenth Amendments of the United States
Constitution, by intentionally running a sham, and convicting a
factually and legally innocent man that amounted to a
fundamental miscarriage of justice, where no reasonable juror
would have found the petitioner guilty beyond a reasonable doubt
in light of newly presented evidence that the state’s sole/key
witness, Walter Claydon, was a coconspirator and aided and
abetted the Canton Township Police Department and the Wayne
County Prosecutor’s Office in the material suppression of the
CTPD’s forged warrant application upholding the petitioner’s
arrest warrant, and offered his false testimony to conceal
evidence.
VII. The state officials obtained/solidified the conviction by the
denial of effective assistance of counsel on direct review pursuant
to counsel’s negligence in a failure to investigate issues of merit,
failure to challenge the ineffectiveness of trial counsel and
material omissions from his appellant’s brief of issues or arguable
merit that rendered the appeal of right as fundamentally unfair and
was contrary to the United States Supreme Court rulings in
Strickland v. Washington and Evitts v. Lucey in violation of the
Fourteenth Amendment to the United States Constitution.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
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Death Penalty Act of 1996 (AEDPA), imposes the following standard of
review for habeas cases:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
A decision of a state court is “contrary to” clearly established federal
law if the state court arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law or if the state court decides a
case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a
prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ
simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law

6

erroneously or incorrectly.” Id. at 410-11. “[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)). Therefore, in order to
obtain habeas relief in federal court, a state prisoner is required to show
that the state court’s rejection of his or her 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., at
103. A habeas petitioner should be denied relief as long as it is within the
“realm of possibility” that fairminded jurists could find the state court
decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152
(2016).
III. Discussion
A. Claims # 1, 3, 4, 5, and 6. The Brady/Giglio and
confrontation claims.
The Court discusses petitioner’s first, third, fourth, fifth and sixth
claims together for judicial clarity. Petitioner alleges in his first, third,
fourth, and sixth claims that the prosecution suppressed exculpatory
evidence and/or concealed evidence that their witnesses committed
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perjury. In his fifth claim, petitioner alleges he was denied his right to
confrontation. Petitioner’s claims are somewhat incoherent, difficult to
understand, and often interlap. Petitioner appears to be arguing that the
prosecution withheld exculpatory evidence regarding petitioner’s cell
phone that was recovered when petitioner was arrested. Petitioner also
claims that his rights under Brady were violated because the prosecutor
withheld exculpatory evidence at the preliminary examination regarding a
police report that the prosecutor attempted to use to refresh Mr. Claydon’s
memory. Petitioner also claims that the prosecutor withheld evidence that
Mr. Claydon was testifying as a confidential informant. Petitioner claims
that Mr. Claydon committed perjury by withholding this fact from the jury.
Petitioner also argues that he was denied his right to confront Mr. Claydon
about his informant status. Petitioner finally claims that the police
committed perjury regarding the legality of the search and arrest in this
case and that the prosecution withheld evidence that showed that the
police testified falsely concerning the legality of the arrest.
To prevail on a claim that the prosecutor withheld exculpatory
evidence, petitioner must show (1) that the state withheld exculpatory
evidence and (2) that the evidence was material either to guilt or to

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punishment irrespective of good faith or bad faith of the prosecution. Brady
v. Maryland, 373 U.S. 83, 87 (1963). Evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A
“reasonable probability is a probability sufficient to undermine confidence
in the outcome.” United States v. Bagley, 473 U.S. 667, 683 (1985). In
Strickler v. Greene, 527 U.S. 263, 281-82 (1999), the Supreme Court
articulated three components or essential elements of a Brady claim: (1)
the evidence at issue must be favorable to the accused, either because it
is exculpatory, or because it is impeaching; (2) the evidence must have
been suppressed by the State, either willfully or inadvertently; and (3)
prejudice must have ensued. “Prejudice (or materiality) in the Brady
context is a difficult test to meet.” Jamison v. Collins, 291 F. 3d 380, 388
(6th Cir. 2002). A habeas petitioner bears the burden of showing the
prosecution suppressed exculpatory evidence. See Bell v. Howes, 703
F.3d 848, 853 (6th Cir. 2012).
The deliberate deception of a court and jurors by the presentation of
known and false evidence is incompatible with the rudimentary demands
of justice. Giglio v. United States, 405 U.S. 150, 153 (1972). There is also

9

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)(internal citations omitted). 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). A
habeas petitioner must show that a witness’ statement was “indisputably
false,” rather than misleading, to establish a claim of prosecutorial
misconduct or a denial of due process based on the knowing use of false
or perjured testimony. Byrd v. Collins, 209 F. 3d 486, 517-18 (6th Cir.
2000). Mere inconsistencies in a witness’ testimony do not establish the
knowing use of false testimony by the prosecutor. Coe, 161 F. 3d at 343.
Additionally, the fact that a witness contradicts himself or herself or
changes his or her story also does not establish perjury either. Malcum v.
Burt, 276 F. Supp. 2d 664, 684 (E.D. Mich. 2003)(citing Monroe v. Smith,
197 F. Supp. 2d 753, 762 (E.D. Mich. 2001)). A habeas petition should be
granted if perjury by a government witness undermines the confidence in
the outcome of the trial. Id.

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Petitioner cannot bring any Brady or Giglio claims regarding the
legality of his search or arrest because Fourth Amendment claims are
non-cognizable on habeas review.
A federal habeas review of a petitioner’s arrest or search by state
police is barred where the state has provided a full and fair opportunity to
litigate an illegal arrest or a search and seizure claim. Stone v. Powell, 428
U.S. 465, 494-95 (1976); Machacek v. Hofbauer, 213 F.3d 947, 952 (6th
Cir. 2000). For such an opportunity to have existed, the state must have
provided, in the abstract, a mechanism by which the petitioner could raise
the claim, and presentation of the claim must not have been frustrated by
a failure of that mechanism. Riley v. Gray, 674 F.2d 522, 526 (6th Cir.
1982). The relevant inquiry is whether a habeas petitioner had an
opportunity to litigate his or her claims, not whether he in fact did so or
even whether the Fourth Amendment claim was correctly decided. See
Wynne v. Renico, 279 F. Supp. 2d 866, 892 (E.D. Mich. 2003); rev’d on
other grds 606 F.3d 867 (6th Cir. 2010). Indeed, under Stone, the
correctness of a state court’s conclusions regarding a Fourth Amendment
claim “is simply irrelevant.” See Brown v. Berghuis, 638 F. Supp, 2d 795,
812 (E.D. Mich. 2009).

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The Court is aware that petitioner’s trial counsel did not file a motion
to suppress the evidence and there was no ruling from the trial court with
respect to petitioner’s Fourth Amendment claims. Petitioner, did, however,
raise his Fourth Amendment claims before both the Michigan Court of
Appeals and the Michigan Supreme Court on direct appeal and raised
several of these claims again in his post-conviction motion. These courts
analyzed and rejected his claims.
The failure to conduct a hearing in the trial court on petitioner’s
various Fourth Amendment claims does not mean that petitioner did not
have a full and fair opportunity to litigate his Fourth Amendment claims.
See Good v. Berghuis, 729 F. 3d 636, 638-40 (6th Cir. 2013). The Sixth
Circuit in Good noted that “[t]he Powell ‘opportunity for full and fair
consideration’ means an available avenue for the prisoner to present his
claim to the state courts, not an inquiry into the adequacy of the procedure
actually used to resolve that particular claim.” Id. at 639.
The opportunity to litigate, for purposes of Stone v. Powell,
encompasses more than an evidentiary hearing in the trial court. It also
includes corrective action available through the appellate process on direct
review of the conviction. See Rashad v. Lafler, 675 F. 3d 564, 570 (6th

12

Cir. 2012)(petitioner had ample opportunities in state court to present his
Fourth Amendment claims, precluding federal habeas relief based on the
state court’s failure to apply the exclusionary rule; trial court rejected
defendant’s Fourth Amendment claims on forfeiture grounds because his
attorney did not show up at a hearing designed to consider them, and a
state appellate court rejected his claims on the merits); Lovely v. Jackson,
337 F. Supp. 2d 969, 976 (E.D. Mich. 2004)(petitioner’s Fourth
Amendment claim was not cognizable on habeas review, even though the
petitioner did not challenge the legality of his arrest prior to trial, where the
petitioner first raised the issue in a post-trial motion and then on direct
appeal and was denied relief); See also Villafuerte v. Stewart, 111 F. 3d
616, 627 (9th Cir. 1997)(petitioner’s Fourth Amendment claims noncognizable when he was able to raise them in a state post-conviction
motion). Because all of the material facts were before the state courts on
direct and collateral review, petitioner had a full and fair opportunity to
litigate his Fourth Amendment claims.
Petitioner’s claim that the prosecutor withheld evidence regarding
the legality of petitioner’s arrest and search is itself barred by the Stone v.
Powell doctrine because it essentially involves a Fourth Amendment

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attack on the validity of petitioner’s search and arrest. See O'Quinn v.
Estelle, 574 F. 2d 1208, 1209-10 (5th Cir. 1978)(petitioner’s claim that
prosecution failed to disclose exculpatory information, which involves due
process guaranty of a fair trial, was part of petitioner’s Fourth Amendment
claim, since exculpatory information would eventually be used to attack
the search warrant); See also Simpson v. Kreiger, 565 F.2d 390, 392 (6th
Cir. 1977)(refusal to disclose informant’s identity did not deny petitioner a
full and fair opportunity to litigate Fourth Amendment claims in state court).
Petitioner is not entitled to relief on this portion of his claim.
Petitioner contends that the prosecutor withheld exculpatory
evidence because the prosecutor did not produce his cell phone at trial.
Petitioner is not entitled to relief on this claim because he failed to
show that his cell phone contained exculpatory information. The burden is
on a habeas petitioner to prove that evidence that is required to be
disclosed to him under Brady was not disclosed to him or to her. Coe v.
Bell, 161 F. 3d at 344. Allegations that are merely conclusory or which are
purely speculative cannot support a Brady claim. Burns v. Lafler, 328 F.
Supp. 2d 711, 724 (E.D. Mich. 2004). “[M]ere speculation that a
government file may contain Brady material is not sufficient” to prove a

14

due-process violation. United States v. Driscoll, 970 F. 2d 1472, 1482 (6th
Cir.1992), abrogated on other grounds by Hampton v. United States, 191
F.3d 695 (6th Cir.1999). Petitioner has failed to show that his cell phone
contained any exculpatory information. Petitioner is therefore not entitled
to habeas relief on this Brady claim. Burns, 328 F. Supp. 2d at 724.
Petitioner further claims that the prosecutor withheld exculpatory
evidence at the preliminary examination because he failed to introduce a
police report into evidence.
Petitioner’s argument is mistaken. The prosecutor did not suppress
the police report. Instead, the examining magistrate refused to allow him
to use the report to refresh Mr. Claydon’s memory. There is nothing from
the record to indicate that defense counsel was never provided a copy of
the police report.
In any event, there is no clearly established Supreme Court law
which requires that exculpatory evidence be provided to a defendant prior
to or at a preliminary examination. The language from Brady and other
Supreme Court decisions indicates that the right to exculpatory evidence
is a trial right. In Brady, the Supreme Court explained that “[a] prosecution
that withholds evidence on demand of an accused which, if made

15

available, would tend to exculpate him ... helps shape a trial that bears
heavily on the defendant.” Brady, 373 U.S. at 87–88 (emphasis added).
Similarly, in United States v. Agurs, 427 U.S. 97, 103-04 (1976), the
Supreme Court indicated that the rule that prohibits the use of perjured
testimony, upon which the Brady rule was founded, is based on the idea
that the use of perjured testimony represents “a corruption of the
truth-seeking function of the trial process.” (emphasis added). Finally, in
United States v. Bagley, 473 U.S. 667, 678 (1985), the Supreme Court
ruled that “suppression of evidence amounts to a constitutional violation
only if it deprives the defendant of a fair trial.” (emphasis added). In the
absence of any Supreme Court law that requires the disclosure of
exculpatory evidence to a criminal defendant prior to the preliminary
examination, the prosecutor’s failure to provide a copy of the police report
to petitioner before or at the preliminary examination would not entitle him
to habeas relief, in the absence of any allegation that petitioner did not
have the report at trial. See e.g. Maglaya v. Buchkoe, 515 F. 2d 265, 26869 (6th Cir. 1975).
Petitioner’s next claim is that the prosecution withheld evidence that
Mr. Claydon was working as a confidential informant for them and that Mr.

16

Claydon committed perjury when he failed to reveal this fact at trial.
Petitioner has offered no evidence to show that Mr. Claydon was a
confidential informant. Petitioner is not entitled to relief on any Brady
claim because it is conclusory and unsupported. Petitioner’s related
perjury claim must be rejected for the same reason. Conclusory
allegations of perjury in a habeas corpus petition must be corroborated by
some factual evidence. Barnett v. United States, 439 F.2d 801, 802 (6th
Cir.1971). Petitioner is not entitled to relief on his related fifth claim
involving his right to confront Mr. Claydon about his informant status
because it too is unsupported. See Shepherd v. Nelson, 432 F. 2d 1045,
1046 (9th Cir. 1970)(District court properly dismissed state prisoner’s
claim on petition for federal writ of habeas corpus that he was deprived of
rights of confrontation and cross-examination as the claim was a bare
conclusion unsupported by allegations of underlying fact).
Petitioner finally claims that Mr. Claydon and perhaps the police
officers testified falsely that Mr. Claydon gave a description of petitioner to
the police. In support of this claim, petitioner points to Detective Kelley’s
testimony that he did not know who passed on to him the description of
petitioner. This evidence does not establish that Mr. Claydon or the

17

responding officers testified falsely, only that Detective Kelley could not
recall the person who communicated Mr. Claydon’s description to the
detective. Petitioner’s claim is unsupported and conclusory. He is not
entitled to relief on his claim.
B. Claim # 2. The ineffective assistance of trial counsel claims.
Petitioner next contends that he was denied the effective assistance
of trial counsel.
To show that he or she was denied the effective assistance of
counsel under federal constitutional standards, a defendant must satisfy a
two prong test. First, the defendant 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, the defendant 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, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the
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defendant 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.
More importantly, on habeas review, “the question ‘is not whether a
federal court believes the state court’s determination’ under the Strickland
standard ‘was incorrect but whether that determination was
unreasonable-a substantially higher threshold.’” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). “The pivotal question is whether the state court’s application of
the Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s standard.”
Harrington v. Richter, 562 U.S. at 101. “[B]ecause the Strickland standard
is a general standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.” Knowles, 556
U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to
the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to
a Strickland claim brought by a habeas petitioner. Id. This means that on
habeas review of a state court conviction, “[A] state court must be granted
a deference and latitude that are not in operation when the case involves

19

review under the Strickland standard itself.”Harrington, 562 U.S. at 101.
“Surmounting Strickland's high bar is never an easy task.” Id. at 105
(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner initially claims that his trial lawyer was forced on him by
the State of Michigan. On May 9, 2012, petitioner requested that he be
allowed to represent himself because he did not trust the lawyers who had
been appointed to represent him. The judge permitted petitioner to
represent himself. (Tr. 5-9-12, pp. 4-6). On May 17, 2012, the trial judge
appointed petitioner’s trial counsel, Brian Gagnuik, to act as advisory
counsel while petitioner continued to act as his own attorney. (Tr. 5-17-12,
pp. 3-5).
On May 29, 2012, petitioner came to court for trial, dressed in jail
clothing. Petitioner refused to wear the civilian clothing offered to him by
the trial court judge. (Tr. 5-29-12, pp. 3-4). The trial judge cautioned
petitioner about the danger of self-representation. After further
discussions, the judge determined that petitioner should be referred to the
Center for Forensic Psychiatry for an evaluation on both competency and
criminal responsibility. (Id., pp. 4-11). On September 11, 2012, the judge
indicated that petitioner had been found to be competent to stand trial after
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being evaluated by the Forensic Center. Petitioner still wished to
represent himself. (Tr. 9-11-12, pp. 4-5).
On November 1, 2012, petitioner appeared for trial. The trial judge
asked petitioner if he intended to represent himself or whether he wished
to have Mr. Gagnuik act as his attorney during his trial. Petitioner
informed the court that he decided to have Mr. Gagnuik serve as his
attorney during his trial. (Tr. 11-1-12, pp. 3-5). The trial was then
adjourned until November 28, 2012 because the complainant’s wife was
hospitalized. (Id., pp. 6-7). Petitioner was permitted to argue an oral
motion to have the judge recuse himself, which was denied. (Id., pp. 7-10).
On November 28, 2012, the trial judge questioned petitioner again
regarding his decision to represent himself during his trial. Petitioner
indicated that he would have Mr. Gagnuik act as his attorney at trial. (Tr.
11-28-12, pp. 8-10).
Criminal defendants have a constitutional right to conduct their own
defense at trial, if they voluntarily and intelligently elect to do so. Martinez
v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 154
(2000); Faretta v. California, 422 U.S. 806, 807 (1975). However, the right
to self-representation is not absolute. Martinez, 528 U.S. at 161.
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Moreover, a defendant’s request for self-representation must be made
clearly and unequivocally. See Faretta, 422 U.S. at 835; See also U.S. v.
Martin, 25 F. 3d 293, 295 (6th Cir. 1994)(“To assert the right of
self-representation, a defendant must do so unequivocally.”).
A defendant waives his or her right to self-representation by
acquiescing to be represented by counsel. See United States v. Jackson,
304 F. App’x. 424, 429 (6th Cir. 2008). By agreeing to be represented by
Mr. Gagniak, petitioner waived his right to self-representation.
Petitioner next contends that his trial counsel was ineffective for
failing to move to suppress the arrest warrant. To prove that counsel’s
failure to litigate a Fourth Amendment claim competently is the principal
claim of ineffectiveness, a defendant must also prove that his Fourth
Amendment claim is meritorious and that there is a reasonable probability
that the verdict would have been different absent the excludable evidence,
in order to demonstrate actual prejudice. Kimmelman v. Morrison, 477
U.S. 365, 375 (1986); See also Mack v. Jones, 540 F. Supp. 2d 840, 848
(E.D. Mich. 2008).
“An illegal arrest, without more, has never been viewed as a bar to
subsequent prosecution, nor as a defense to a valid conviction.” United
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States v. Crews, 445 U.S. 463, 474 (1980)(citing Gerstein v. Pugh, 420
U.S. 103, 119 (1975)); See also Frisbie v. Collins, 342 U.S. 519 (1952);
Ker v. Illinois, 119 U.S. 436 (1886). The Supreme Court held that “[T]he
‘body’ or identity of a defendant or respondent in a criminal or civil
proceeding is never itself suppressible as a fruit of an unlawful arrest,
even if it is conceded that an unlawful arrest, search, or interrogation
occurred.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). Although
the exclusionary rule prohibits the introduction at trial of evidence that was
seized in violation of the constitution, a criminal defendant “is not himself a
suppressible ‘fruit,’ and the illegality of his detention cannot deprive the
Government of the opportunity to prove his guilt through the introduction of
evidence wholly untainted by the police misconduct.” United States v.
Crews, 445 U.S. at 474.
Petitioner does not identify any evidence other than his own body
that was seized during this allegedly unlawful arrest. The mere fact that
petitioner may have been arrested without probable cause would not
prevent him from being prosecuted and convicted of this offense. Failing
to file a frivolous motion to dismiss does not constitute ineffective
assistance of counsel. See Goldsby v. U.S., 152 F. App’x. 431, 438 (6th

23

Cir. 2005). A challenge to the legality of petitioner’s arrest would not have
resulted in his release from custody. Counsel was not ineffective for
failing to file a motion to dismiss on this basis. See Friday v. Pitcher, 200
F.Supp. 2d 725, 738-39 (E.D. Mich. 2002).
Petitioner next contends that trial counsel was ineffective for
pursuing a defense that petitioner did not know that the car he was driving
in was stolen, rather than arguing that petitioner was not the driver.
The Supreme Court “has never required defense counsel to pursue
every claim or defense, regardless of its merit, viability, or realistic chance
for success.” Knowles, 556 U.S. at 123. In light of the overwhelming
evidence establishing that petitioner was the driver of the vehicle, defense
counsel made a reasonable decision to instead raise a defense that
petitioner was not guilty because he did not know that the car he was
driving in was stolen.
Petitioner next contends that trial counsel was ineffective for failing
to follow up on Detective Kelley’s testimony that he did not know who
provided him with Mr. Claydon’s description of the perpetrator. Although
other attorneys might have reached a different conclusion about the value
of cross-examining Detective Kelley in greater detail, counsel’s strategic
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choice not to further cross-examine Detective Kelley was “‘within the wide
range of reasonable professional assistance.’” See Moss v. Hofbauer, 286
F. 3d 851, 864 (6th Cir. 2002)(quoting Strickland, 466 U.S. at 689).
Counsel’s strategic choice to forego more in-depth cross-examination is
“virtually unchallengeable” because he made it after considering the
relevant law and facts of the case. Id. Finally, petitioner has failed to
identify how additional impeachment of Detective Kelley would have
affected the verdict. Defense counsel did not perform ineffectively by not
more forcefully cross-examining the detective, particularly when the effect
of further probing was entirely speculative on petitioner’s part. See
Jackson v. Bradshaw, 681 F.3d 753, 764-65 (6th Cir. 2012).
As a related claim, petitioner alleges that trial counsel should have
objected to Detective Kelley’s testimony on the ground that it was
perjured. Petitioner failed to show that any of the witnesses committed
perjury. Counsel was not ineffective for failing to challenge any of this
testimony on the ground that it was perjured. Brown v. Burt, 65 F. App’x.
939, 942 (6th Cir. 2003).
Petitioner next contends that trial counsel was ineffective in the
handling of the cell phone issue. The cell phone was never admitted into
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evidence, nor is there is any indication that the cell phone contained any
exculpatory evidence. A defense counsel has no obligation to present
evidence or testimony that would not have exculpated the defendant. See
Millender v. Adams, 376 F. 3d 520, 527 (6th Cir. 2004)(internal quotation
omitted).
Petitioner argues that defense counsel should have rebutted the
prosecutor’s arguments about Mr. Claydon’s statements. Defense
counsel cross-examined Mr. Claydon and the other witnesses. Petitioner
does not argue how defense counsel could have otherwise rebutted Mr.
Claydon’s statements. To the extent that petitioner argues that counsel
should have cross-examined Mr. Claydon and the other witnesses about
Mr. Claydon being a confidential informant, as discussed infra, petitioner
offered no evidence that Mr. Claydon was an informant. Conclusory
allegations of ineffective assistance of counsel, without any evidentiary
support, do not provide a basis for habeas relief. See Workman v. Bell,
178 F.3d 759, 771 (6th Cir. 1998).
Petitioner also argues that defense counsel was ineffective for failing
to object to the prosecutor’s misconduct of fabricating evidence. This
Court already determined that the prosecutor did not commit misconduct,
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therefore, petitioner is unable to establish that he was prejudiced by
counsel’s failure to object. See Slagle v. Bagley, 457 F. 3d 501, 528 (6th
Cir. 2006). Petitioner is not entitled to relief on his second claim.
D. Claim # 7. The ineffective assistance of appellate counsel
claim.
Petitioner contends that appellate counsel was ineffective for failing
to raise his claims on his appeal of right. Petitioner raise many of these
claims in his Standard 4 pro per supplemental brief.2
The Sixth Amendment guarantees a defendant the right to the
effective assistance of counsel on the first appeal by right. Evitts v. Lucey,
469 U.S. 387, 396-397 (1985). However, court appointed counsel does
not have a constitutional duty to raise every nonfrivolous issue requested
by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983).
The Michigan Court of Appeals considered, and rejected the claims
raised by petitioner in his supplemental pro per brief; petitioner is unable to
show that he was prejudiced by appellate counsel’s failure to raise these
claims in the appeal brief filed by counsel. See Donaldson v. Booker, 505

2

Standard 4 of Administrative Order 2004-6, 471 Mich. cii (2004), “explicitly provides that a pro
se brief may be filed within 84 days of the filing of the brief by the appellant’s counsel, and may be filed
with accompanying motions.” Ware v. Harry, 636 F. Supp. 2d 574, 594, n. 6 (E.D. Mich. 2008).

27

F. App’x. 488, 496 (6th Cir. 2012); Bentley v. Bock, 239 F. Supp. 2d 686,
696-97 (E.D. Mich. 2002).
None of the claims raised by petitioner have any merit. “[A]ppellate
counsel cannot be found to be ineffective for ‘failure to raise an issue that
lacks merit.’” Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir.
2010)(quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)).
Petitioner is not entitled to relief on his final claim.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus.
A habeas petitioner must receive a certificate of appealability
(“COA”) in order to appeal the denial of a habeas petition for relief from
either a state or federal conviction. 3 28 U.S.C. §§ 2253(c)(1)(A), (B). A
court may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When a federal district court rejects a habeas claim on the merits, the
substantial showing threshold is met if the petitioner demonstrates that
3

Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254
Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a),
28 U.S.C. foll. § 2254; See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).

28

reasonable jurists would find the district court's assessment of the
constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). This Court denies a certificate of appealability
because reasonable jurists would not find this Court’s assessment of the
claims to be debatable or wrong. Id., 529 U.S. at 484.
Although this Court will deny a certificate of appealability to
petitioner, the standard for granting an application for leave to proceed in
forma pauperis (IFP) is a lower standard than the standard for certificates
of appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D.
Mich. 2002). Whereas a certificate of appealability may only be granted if
petitioner makes a substantial showing of the denial of a constitutional
right , a court may grant IFP status if it finds that an appeal is being taken
in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a).
“Good faith” requires a showing that the issues raised are not frivolous; it
does not require a showing of probable success on the merits. Foster, 208
F. Supp. 2d at 765. Although jurists of reason would not debate this
Court’s resolution of petitioner’s claims, the issues are not frivolous;
therefore, an appeal could be taken in good faith and petitioner may
proceed in forma pauperis on appeal. Id.

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V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a
writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that petitioner will be granted leave to
appeal in forma pauperis.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: August 3, 2017
I hereby certify that a copy of the foregoing document was served
upon counsel of record on August 3, 2017, by electronic and/or
ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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