Curtis v. Klee

Filing 14

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and declining to issue a certificate of appealability or leave to appeal in forma pauperis. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHAD CURTIS,
Petitioner,
CASE NO. 2:16-CV-10679
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

v.
PAUL KLEE,
Respondent.
_________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Chad David Curtis, (“petitioner”), confined at the Gus Harrison
Correctional Facility in Adrian, Michigan, seeks the issuance of a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application,
petitioner challenges his convictions, brought in two lower court files, on
three counts of second-degree criminal sexual conduct, M.C.L.A. §
750.520c(1)(b), one count of third-degree criminal sexual conduct,
M.C.L.A. § 750.520d(1)(e), and two counts of fourth-degree criminal sexual
conduct, M.C.L.A. § 750.520e(1)(f). For the reasons stated below, the
petition for a writ of habeas corpus is DENIED.

-1-

I. Background
Petitioner was convicted of the above offenses following a jury trial in
the Barry 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 Wagner
v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant was a substitute teacher at Lakewood High School.
He also volunteered in the weight room. The victims, M.K.,
K.S., and T .H., were students who used the weight room at
Lakewood High School. At different times, defendant took each
of the three victims to the school’s training room. M.K. testified
that she went to the training room with defendant in the
summer of 2011 to do hip flexor exercises. On one visit,
defendant suggested that he give her a body massage. During
the massage, defendant pulled up M.K.’s sports bra and
rubbed her breasts. On another visit, this one on Labor Day,
defendant pulled up M.K.’s sports bra and kissed her right
nipple, while also penetrating her vagina with his finger. T.H.
testified that she went to the training room with defendant after
she had performed some squats and defendant said that
something looked wrong with her hips. In the training room,
defendant lowered her sweatpants, moved her underwear, and
rubbed her butt.
K.S. testified that she went to the training room on two days
with defendant to do some exercises. On the first day,
defendant rubbed her groin, and his hands went underneath
the spandex of her shorts. On the second day, defendant
rubbed K.S.’s groin and the sides of her butt.
Two other teenagers also testified about defendant’s actions.
D.K. testified that on numerous occasions defendant asked her
-2-

to come into an office in the weight room with him; he then
rubbed lotion on her body. On her legs, he rubbed up to her
underwear line. A.L. testified that one day when she was
baby-sitting for defendant’s two youngest children and got
sunburned, defendant rubbed aloe on her body. He rubbed it
on her legs, going up to her underwear line, and on her
stomach, going up to her bra. He also rubbed aloe under her
bra straps.
People v. Curtis, No. 318699, 2015 WL 630396, at *1 (Mich. Ct. App.
Feb. 12, 2015).
Petitioner’s conviction was affirmed on appeal by the Michigan Court
of Appeals. Id.
Petitioner filed an application for leave to appeal to the Michigan
Supreme Court. The Michigan Supreme Court remanded the matter back
to the trial court in light of that court’s decision in People v. Lockridge, 498
Mich. 358; 870 N.W.2d 502 (Mich. 2015), because the jury did not find the
facts to support the scoring of the sentencing guidelines beyond a
reasonable doubt and petitioner did not admit to these facts. On remand,
the trial judge was to determine whether he would have imposed a
materially different sentence but for the constitutional error. The Michigan
Supreme Court denied petitioner leave to appeal regarding his remaining
issues. People v. Curtis, 498 Mich. 916 (2015). On remand, the trial court
denied petitioner’s motion for resentencing.

-3-

Petitioner seeks a writ of habeas corpus on the following grounds:
I. Ineffective Assistance of Counsel.
II. Right to Present a Defense.
III. Cumulative Effect.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
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

-4-

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
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 claim “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington, 562 U.S. 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).

-5-

III. Discussion
A. Claim # 1 The ineffective assistance of trial counsel claims.
Petitioner alleges the ineffective 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
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. “Strickland’s test for prejudice
is a demanding one. ‘The likelihood of a different result must be

-6-

substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379
(6th Cir. 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).
Petitioner first contends that trial counsel was ineffective for failing to
object to, or otherwise remedy during trial, the trial court’s omission of a
critical jury instruction concerning petitioner’s decision not to testify at trial.
In general, courts have noted that “whether to request a particular
instruction is within an attorney’s tactical discretion” and “attorneys often
decide not to request such an instruction [admonishing the jury that they
could not consider the defendant’s failure to testify] because it calls
attention to the defendant’s silence. We do not find it improper that [the
defendant’s] attorney failed to request this instruction.” Goldsby v. United
States, 152 F. App’x 431, 437 (6th Cir. 2005)(quoting Coleman v. Brown,
802 F.2d 1227, 1235 (10th Cir. 1986)). The Sixth Circuit, in fact, has held
that trial counsel was not ineffective in failing to object to the court’s failure

-7-

to give a jury instruction on the defendant’s right not to testify, since
“counsel’s performance fell within the range of reasonable professional
assistance.” Id., (quoting Lewis v. Sowders, No. 93–5325, 1993 WL
384968, 1993 U.S.App. LEXIS 25112, *4 (6th Cir. 1993)). Furthermore, a
criminal defendant is not entitled to relief on his ineffective assistance of
counsel claim if he is unable to show that he was prejudiced by the court’s
failure to give an instruction on the failure to testify. Id.
In this case, the Michigan Court of Appeals found that the “trial court
clearly erred in finding that defense counsel’s failure to request an
instruction about defendant’s failure to testify at the bench conference was
trial strategy.” People v. Curtis, 2015 WL 630396, at *3. The Michigan
Court of Appeals further found that trial counsel was deficient in failing to
request such an instruction. Id. The Michigan Court of Appeals, however,
concluded that petitioner could not establish that he was prejudiced by
counsel’s failure to object to the lack of such an instruction:
[T]here is no reasonable probability that the result of the
proceedings would have been different had the jury been
instructed as to defendant’s right not to testify. Although the
jury was not specifically instructed that it could not consider the
fact that defendant did not testify, it did receive instructions that
precluded it from considering this fact. The court instructed the
jury as to the prosecutor’s and the defendant’s respective
burdens, i.e., that the prosecutor was required to prove all the
-8-

elements of the crime beyond a reasonable doubt and that
defendant was not required to prove his innocence or do
anything[.] The jury was correctly instructed as to what it could
consider in deciding defendant’s guilt: the evidence, which only
included the witnesses’ sworn testimony, the admitted exhibits,
and anything else the trial court said was evidence. The trial
court never informed the jury that defendant’s failure to testify
was evidence. A jury is presumed to follow its instructions.
Additionally, neither the trial court nor the prosecutor
commented on defendant’s failure to testify. Further, the
testimony showed a common plan, scheme, or system used by
defendant—defendant’s touching intimate areas of female
teenagers while massaging or rubbing their bodies. Moreover, it
is reasonable to infer that defendant touched the victims’
intimate parts for sexual purpose when considered with the
additional facts that defendant apologized to M.K. and A.L.,
similarly commenting to both of them about being unfaithful to
his wife, and that the training room used was generally locked
and had no windows or a video camera. Under these facts,
defense counsel’s deficient performance in not objecting to the
trial court’s failure to specifically instruct the jury that it could
not consider the fact that defendant did not testify does not
undermine confidence in the outcome of the trial. In sum, we
cannot conclude that defendant was prejudiced by counsel’s
deficient performance.
People v. Curtis, 2015 WL 630396, at *3 (internal citations omitted).
Petitioner claims that the Michigan Court of Appeals finding of no
prejudice is contrary to Supreme Court precedent found in Carter v.
Kentucky, 450 U.S. 288 (1981), which “held that the no-adverse inference
instruction must be given if requested and that other instructions are not
adequate substitutes.” Petitioner, however, does not bring before this

-9-

Court an independent claim of instructional error. Therefore, Carter does
not apply. Even if the failure to give this instruction amounted to structural
error, this would not mean that prejudice should be presumed, for
purposes of petitioner’s ineffective assistance of counsel claim. See
Harrison v. Woods, No. 15-1046, 2015 WL 4923099, at *2 (6th Cir. Aug.
18, 2015)(citing Premo v. Moore, 562 U.S. 115, 127–28 (2011)). Petitioner
would have to establish that he was actually prejudiced by the failure to
give the instruction on petitioner’s right not to testify. Petitioner cannot
demonstrate that he was prejudiced by trial counsel’s failure to object to
the lack of a no-adverse inference instruction. As a result, petitioner is not
entitled to habeas relief for trial counsel’s failure remedy the lack of a noadverse inference instruction.
Petitioner next claims that trial counsel was ineffective by failing to
object to the prosecutor’s improper statements or ask for a curative
instruction.
“Claims of prosecutorial misconduct are reviewed deferentially on
habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir.
2004)(citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A
prosecutor’s improper comments will be held to violate a criminal

-10-

defendant’s constitutional rights only if they “‘so infected 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)). In order to obtain habeas relief
on a prosecutorial misconduct claim, a habeas petitioner must show that
the state court’s rejection of his prosecutorial misconduct claim “was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Parker v. Matthews, 567 U.S. 37, 48 (2012)(quoting
Harrington, 562 U.S. at 103).
Petitioner claims that trial counsel was ineffective by failing to object
to the prosecutor’s repeated bolstering for the credibility of the five girls
during closing and rebuttal arguments and by failure to ask for a curative
instruction in connection to the bolstering, by failing to object to the indirect
references to petitioner’s right to remain silent, and by failing to object to
the appeals to the jurors’s sympathy in calling for a conviction.
The Michigan Court of Appeals found that the defense put the
credibility of the girls at issue. The Michigan Court of Appeals further
found that the prosecutor never stated his personal opinion nor vouched

-11-

for the girls’ credibility, but merely argued that the five girls were credible
based on the evidence presented and the emotions and demeanors they
displayed:
Specifically, the points he made were in respect to the lack of
evidence regarding any motive for the five girls to lie, testimony
regarding how the girls were treated at school after they spoke
with the detective, the specific details they provided about
defendant’s conduct, the similarity of statements defendant
made to different girls, and his observations of the emotions
and demeanors of the girls when they testified. Because a
prosecutor may argue from the evidence that witnesses are
credible, we conclude from our review of the record that the
prosecutor’s comments were not improper, and any objection
to them would have been futile. Defense counsel was not
ineffective for failing to make futile objections.
People v. Curtis, 2015 WL 630396, at *5.
A prosecutor may not express a personal opinion concerning the guilt
of a defendant or the credibility of trial witnesses, because such personal
assurances of guilt or vouching for the veracity of witnesses by the
prosecutor “exceeds the legitimate advocates’ role by improperly inviting
the jurors to convict the defendant on a basis other than a neutral
independent assessment of the record proof.” Caldwell v. Russell, 181
F.3d 731, 737 (6th Cir. 1999)(internal citations omitted). However, a
prosecutor is free to argue that the jury should arrive at a particular
conclusion based upon the record evidence. Id. The test for improper
-12-

vouching for a witness is whether the jury could reasonably believe that the
prosecutor was indicating a personal belief in the witness’ credibility.
United States v. Causey, 834 F.2d 1277, 1283 (6th Cir. 1987).
“[G]enerally, improper vouching involves either blunt comments, or
comments that imply that the prosecutor has special knowledge of facts
not in front of the jury or of the credibility and truthfulness of witnesses and
their testimony.” See United States v. Francis, 170 F.3d 546, 550 (6th Cir.
1999)(internal citations omitted); see also Griffin v. Berghuis, 298 F. Supp.
2d 663, 674-75 (E.D. Mich. 2004). It is worth noting that the Sixth Circuit
has never granted habeas relief for improper vouching. Byrd v. Collins, 209
F.3d 486, 537 and n. 43 (6th Cir. 2000). Even on direct appeal from a
federal conviction, the Sixth Circuit has held that to constitute reversible
error, a prosecutor’s alleged misconduct of arguing his personal belief, in a
witness’ credibility or in a defendant’s guilt, must be flagrant and not
isolated. See United States v. Humphrey, 287 F.3d 422, 433 (6th Cir.
2002).
Numerous cases have held that a prosecutor does not engage in
vouching by arguing that his witnesses have no reason or motivation to lie,
when such comments are based on the evidence and do not reflect a

-13-

personal belief of the prosecutor. See United States v. Jackson, 473 F.3d
660, 672 (6th Cir. 2007); U.S. v. Israel, 133 F.App’x 159, 165 (6th Cir.
2005); U.S. v. Parker, 49 F.App’x 558, 563 (6th Cir. 2002); see also Alder
v. Burt, 240 F. Supp. 2d 651, 669 (E.D. Mich. 2003)(prosecutor did not
engage in improper vouching when he argued that there was no evidence
that prosecution witness had “axe to grind” or any other improper motive,
when he asked rhetorically whether person who would burn 19-year-old
female’s body to destroy evidence would give truthful testimony, or when
he asked whether prosecution witnesses had any reason to lie).
The prosecutor commented on the similarity of the witnesses’s
testimony to support a theory of a common plan or scheme in which
petitioner invited the girls into a locked weight room, void of cameras,
offered to assist in weight training, offered a body massage and then would
touch the complainants inappropriately.
By arguing in his closing summation that his witnesses had no motive
to lie, the prosecutor was not claiming to have any special knowledge of
the complainants’s truthfulness, but was simply arguing that objectively
speaking, the complainants had no motive to fabricate a story to implicate
petitioner in a crime. The prosecutor informed the jury that they needed to

-14-

decide whether the five girls were credible. One factor in determining a
witness’s credibility is to determine whether the witness had a reason to lie.
The prosecutor argued that because of the consequences that resulted
from their disclosures, the five girls had no reason to lie. In essence, the
prosecutor was arguing, based on the evidence, that the five girls were
credible. The prosecutor’s remarks were not improper.
Petitioner alleges that the prosecutor improperly commented on his
right to remain silent.
Under the Fifth Amendment, a prosecutor is forbidden from
commenting upon a defendant’s decision not to testify at trial. Gall v.
Parker, 231 F.3d 265, 311 (6th Cir. 2000)(citing to Griffin v. California, 380
U.S. 609, 615 (1965)). A distinction is drawn between a direct comment on
the defendant’s right not to testify and on an indirect comment. Spalla v.
Foltz, 615 F. Supp. 224, 231 (E.D. Mich. 1985)(Cohn, J.). Indirect
comments which touch on a defendant’s right not to testify warrant reversal
only when they are manifestly intended by the prosecutor as a comment on
the defendant’s failure to testify or were of such a character that the jury
would naturally and reasonably take them to be comments on the failure of
the defendant to testify. Gall v. Parker, 231 F.3d at 311. Courts will not

-15-

find that a prosecutor manifestly intended to comment upon the
defendant’s failure to testify if some other explanation for his or her
remarks is equally possible. United States v. Moore, 917 F.2d 215, 225
(6th Cir. 1990). Whether a jury necessarily construes a prosecutor’s
remark as a comment upon the accused’s failure to testify requires a
“probing analysis of the context of the comment”, and the likely effect of the
trial court’s curative instruction, if any. United States v. Robinson, 651 F.2d
1188, 1197 (6th Cir. 1981).
While a prosecutor may not comment on the defendant’s failure to
testify or produce evidence, the prosecutor may summarize the evidence
and comment upon “its quantitative and qualitative significance.” United
States v. Bond, 22 F.3d 662, 669 (6th Cir. 1994).
Trial counsel argued that the complainants were not credible and
presented defense witnesses to testify as to petitioner’s good reputation.
In response, the prosecutor argued that because none of defendant’s
witnesses had any personal knowledge about anything that happened in
the training room, the testimony of defendant’s witnesses did not
meaningfully contradict the testimony given by the five girls. The
prosecutor’s reference to the evidence presented did not improperly

-16-

comment on petitioner’s right to remain silent. The comments establish
that the testimony by the complainants was uncontradicted.
In his remaining prosecutorial misconduct claim, petitioner contends
that the prosecutor improperly appealed to the jury’s sympathy by
informing them of the repercussions suffered by the five girls after coming
forward with the accusations.
Even if the remarks were an attempt to invoke sympathy with the
jury, petitioner would not be entitled to habeas relief because the remarks
were isolated, not extensive, and only a small part of the closing argument
that focused on summarizing the evidence. Byrd, 209 F.3d at 532.
Petitioner’s claim would initially be defeated by the fact that the trial court
instructed the jury that they were not to let sympathy or prejudice influence
their decision (Tr. 8/16/13, p. 4). See Cockream v. Jones, 382 F.App’x 479,
486 (6th Cir. 2010). Furthermore, even if the prosecutor’s appeals to the
jury’s emotions or sympathies was improper, this would be insufficient to
render the trial fundamentally unfair, since it was likely that the nature of
the crime itself would have produced juror sympathy even before the
prosecutor made any of these comments. See Millender v. Adams, 187 F.
Supp. 2d 852, 875-76 (E.D. Mich. 2002)(citing Walker v. Gibson, 228 F.3d

-17-

1217, 1243 (10th Cir. 2000)).
Because the prosecutor’s conduct was not improper, counsel’s
failure to object to the prosecutor’s comments was not ineffective
assistance of counsel. See Meade v. Lavigne, 265 F. Supp. 2d 849, 866
(E.D. Mich. 2003). Likewise, petitioner cannot show that counsel was
ineffective for failing to object to the prosecutor’s conduct, in light of the
fact that the Michigan Court of Appeals found on direct appeal that there
was no prosecutorial misconduct. See Finkes v. Timmerman-Cooper, 159
F.App’x 604, 611 (6th Cir. 2005); Campbell v. United States, 266 F. Supp.
2d 587, 589-90 (E.D. Mich. 2003). Petitioner is not entitled to habeas relief
on his ineffective assistance of trial counsel claim, based on counsel’s
failure to object to prosecutorial misconduct.
B. Claim # 2. The Right to Present a Defense claim.
Petitioner claims that he was denied a meaningful opportunity to
present a complete defense when the trial court judge excluded testimony
pertaining to other false allegations and testimony from an expert witness
pertaining to the “bandwagon effect.” Respondent contends that
petitioner’s second claim is procedurally defaulted because petitioner did
not raise this claim in the trial court and the Michigan Court of Appeals

-18-

relied on this failure to reject petitioner’s claim. See Curtis, 2015 WL
630396, at *6.
When the state courts clearly and expressly rely on a valid state
procedural bar, federal habeas review is also barred unless petitioner can
demonstrate “cause” for the default and actual prejudice as a result of the
alleged constitutional violation, or can demonstrate that failure to consider
the claim will result in a “fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750-51 (1991). If petitioner fails to show cause
for his procedural default, it is unnecessary for the court to reach the
prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). However, in
an extraordinary case, where a constitutional error has probably resulted in
the conviction of one who is actually innocent, a federal court may consider
the constitutional claims presented even in the absence of a showing of
cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80
(1986). However, to be credible, such a claim of innocence requires a
petitioner to support the allegations of constitutional error with new reliable
evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324
(1995).
The Michigan Court of Appeals clearly indicated that by failing to

-19-

object at trial, petitioner had not preserved his right to present a defense
claim. The fact that the Michigan Court of Appeals engaged in plain error
review of petitioner’s claim does not constitute a waiver of the state
procedural default. Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000).
This Court finds the Michigan Court of Appeals’ reviewed petitioner’s claim
for plain error as enforcement of the procedural default. Hinkle v. Randle,
271 F.3d 239, 244 (6th Cir. 2001). Petitioner’s second claim is
procedurally defaulted.
Petitioner has failed to allege any reasons to excuse his procedural
default. Although ineffective assistance of counsel may be cause to
excuse a procedural default, that claim itself must be exhausted in the
state courts. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Petitioner
raised several ineffective assistance of counsel claims in the state courts
but did not raise a claim that counsel was ineffective for failing to object to
the exclusion of the testimony by witnesses pertaining to false accusations
or testimony by petitioner’s expert witness in connection to a “bandwagon
effect.” Because petitioner never raised in the Michigan courts a specific
claim about trial counsel’s failure to object to the excluded testimony, any
alleged ineffectiveness of counsel cannot constitute cause to excuse

-20-

petitioner’s default with respect to his second claim. See Wolfe v. Bock,
412 F. Supp. 2d 657, 684 (E.D. Mich. 2006). Petitioner has not
demonstrated any cause for his procedural default; it is unnecessary to
reach the prejudice issue regarding these prosecutorial misconduct claims.
Smith, 477 U.S. at 533.
Additionally, petitioner has not presented any new reliable evidence
to support any assertion of innocence which would allow this Court to
consider his denial to the right to present a defense claim as a ground for a
writ of habeas corpus in spite of the procedural default. Because petitioner
has not presented any new reliable evidence that he is innocent of these
crimes, a miscarriage of justice will not occur if the Court declined to review
petitioner’s second claim on the merits. See Harris v. Stegall, 157 F. Supp.
2d 743, 751 (E.D. Mich. 2001). Petitioner’s second claim is procedurally
barred.
Claim # 3. Petitioner is not entitled to habeas relief on his
cumulative effect claim.
Petitioner contends that he is entitled to habeas relief due to
cumulative effect.
The cumulative weight of alleged constitutional trial errors in a state
prosecution does not warrant federal habeas relief. There is no clearly
-21-

established federal law permitting or requiring the cumulation of distinct
constitutional claims to grant habeas relief. Moore v. Parker, 425 F.3d 250,
256 (6th Cir. 2005). Therefore, petitioner is therefore not entitled to
habeas relief on the grounds of cumulative error. Id.
IV. Conclusion
The Court will deny the petition for a writ of habeas corpus. The
Court will also deny a certificate of appealability to petitioner. In order 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, or agree that, the petition should have been
resolved in a different manner, or that the issues presented were adequate
to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). When a district court rejects a habeas petitioner’s
constitutional claims on the merits, the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims to be debatable or wrong. Id. at 484. “The district
court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Rules Governing § 2254 Cases, Rule

-22-

11(a), 28 U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because he has failed to make a substantial
showing of the denial of a federal constitutional right. Myers v. Straub, 159
F. Supp. 2d 621, 629 (E.D. Mich. 2001). The Court will also deny
petitioner leave to appeal in forma pauperis, because the appeal would be
frivolous. Id.
V. ORDER
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 DENIED leave to
appeal in forma pauperis.
Dated: October 31, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 31, 2017, by electronic and/or ordinary mail and also
on Chad Curtis #886901, Gus Harrison Correctional Facility,
2727 E. Beecher Street, Adrian, MI 49221.
s/Barbara Radke
Deputy Clerk

-23-