McCaskill v. Rivard

Filing 11

OPINION AND ORDER Denying Petition for Writ of Habeas Corpus; Declining to Issue a Certificate of Appealability; Granting Leave to Appeal In Forma Pauperis Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JIMMIE EARL MCCASKILL,
Petitioner,
v.

Civil No. 2:16-CV-11352
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

RANDALL HAAS,
Respondent.
/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS
Jimmie Earl McCaskill, (“Petitioner”), confined at the Macomb Correctional
Facility in New Haven, Michigan, filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner challenges his conviction for armed robbery, M.C.L.A. §
750.529; felon in possession of a firearm, M.C.L.A. § 750.224f; and felony firearm,
M.C.L.A. § 750.227b. The petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted after a jury trial in 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
Wagner v. Smith, 581 F. 3d 410, 413 (6th Cir. 2009):
Defendant’s convictions arise from the July 21, 2011 robbery of a CVS store
located at 2590 W. Grand Boulevard in Detroit (the Grand Blvd. CVS). At
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trial, the prosecution presented evidence that defendant was involved in a
similar robbery on July 13, 2011, at another CVS store located at 18585 E.
Warren Avenue in Detroit (the Warren Ave. CVS). There was evidence
identifying defendant as one of the robbers in both robberies. Defendant
maintained that he was mistakenly identified.
In the Grand Blvd. CVS robbery, defendant’s accomplice ascertained that
Myiea Summerour was a manager and then, after conversing with defendant
in another aisle, both men walked back to her, defendant showed her a gun that
he had tucked in his shorts, and defendant told her to take the other man back
to the safe. Noelle Beasley, who was in the back, opened the safe and gave the
man $5,373. Meanwhile, defendant stopped Kenyetta Marshall when she
observed what was happening and told her not to move, showing her the
imprint of the gun on his hip and stating that it was not her money. After the
robbers left, Summerour called 911.
Both Marshall and Beasley were unable to identify defendant in a
photographic lineup, which was not shown to Summerour. Beasley identified
someone else. In a subsequent live lineup, Beasley could not identify
defendant, and Marshall picked someone else, but Marshall identified
defendant at trial as the person who stopped her. Summerour picked defendant
out of a live lineup and identified him at trial. However, she had initially
indicated that the perpetrator was shorter than defendant, stockier, and had a
lighter complexion, and did not notice a lack of teeth.
In the Warren Ave. robbery, Carlos Chavez, the manager on duty, was called
from the back room because defendant wanted to talk to him; defendant
inquired whether CVS was hiring and, while defendant was subsequently
filling out paperwork, he raised up his shirt, revealing a gun, and told Chavez
that when he was done they were going to go to the back room and Chavez
was going to give him money. Defendant also advised that he was with
another man who was with an employee (Antonio Allen) in the photo
department. As they walked to the office past the photo area, defendant held
the gate for his accomplice and Chavez. Allen said that defendant stayed with
him and showed him a bulge under his shirt. Chavez said that when he and the
other man reached the office, he gave the other man all the cash he had, that
the man left the office, and that he watched him and defendant leave the store.
Allen then called 911.
Chavez identified defendant in a photographic lineup, but Allen was unable to
do so. Both Chavez and Allen identified defendant in a live lineup. Chavez
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indicated that the perpetrator had a black mustache, did not note any gray, even
though defendant had gray in his goatee at the time of the photo and live
lineup, and said that he had “some teeth”; at the preliminary examination, he
had said that the perpetrator’s teeth were “normal.” Allen said he did not
notice if the person did or did not have teeth.
People v. McCaskill, No. 318257, 2015 WL 1069400, at * 1 (Mich. Ct. App. Mar. 10,
2015).
Petitioner’s conviction was affirmed. Id., lv. den. 498 Mich. 885, 869 N.W.2d 597
(2015).
Petitioner seeks a writ of habeas corpus on the following grounds: (1) Officer
Roland Brown impermissibly invaded the province of the jury by offering opinion
testimony that Petitioner was the person in the surveillance video and photographs of the
video and that Ms. Beasley was wrong when she identified someone else as the
perpetrator; trial counsel was ineffective for eliciting Officer Brown’s damaging
testimony, and (2) Petitioner was prejudiced by the admission of other acts testimony
involving an unrelated robbery.
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
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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 erroneously or incorrectly.” Id. at 410-11.
The Supreme Court explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court rulings,’and ‘demands that
state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766,
773 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[A] state court’s determination that a
claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

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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)). 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).
The Michigan Court of Appeals reviewed and rejected the first part of Petitioner’s
first claim and his second claim under a plain error standard because Petitioner failed to
preserve the issues as a constitutional claim at the trial court level.
In Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009), a panel of the Sixth
Circuit held that the AEDPA deference applies to any underlying plain-error analysis of
a procedurally defaulted claim. In a subsequent decision, the Sixth Circuit held that that
plain-error review is not equivalent to adjudication on the merits, so as to trigger
AEDPA deference. See Frazier v. Jenkins, 770 F. 3d 485, 496 n. 5 (6th Cir. 2014). The
Sixth Circuit noted that “the approaches of Fleming and Frazier are in direct conflict.”
Trimble v. Bobby, 804 F.3d 767, 777 (6th Cir. 2015). When confronted by conflicting
holdings of the Sixth Circuit, this Court must follow the earlier panel’s holding until it is
overruled by the United States Supreme Court or by the Sixth Circuit sitting en banc.
See Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). The AEDPA’s
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deferential standard of review applies to these claims, even though they were reviewed
only for plain error.
III.
A. Claim # 1. Police testimony invaded the province of the jury; ineffective
assistance of counsel.
Petitioner argues that Officer Roland Brown invaded the province of the jury by
offering lay opinion testimony that Petitioner was guilty. Petitioner claims that Officer
Brown improperly identified Petitioner from still photographs and a surveillance video
as the perpetrator and opined that a witness who failed to identify Petitioner was wrong.
Petitioner argues that trial counsel was ineffective for eliciting this testimony from
Officer Brown.
Respondent argues that the first part of Petitioner’s claim is waived and
procedurally defaulted because defense counsel elicited the testimony from Officer
Brown. Petitioner argues that trial counsel was ineffective for eliciting this testimony.
Ineffective assistance of counsel may establish cause for procedural default. Edwards v.
Carpenter, 529 U.S. 446, 451-52 (2000). Given that the cause and prejudice inquiry for
the procedural default issue merges with an analysis of the merits of Petitioner’s
defaulted claim, it would be easier to consider the merits of this claim. See Cameron v.
Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004).
Defense counsel elicited the testimony from Officer Brown during crossexamination. The first exchange was:

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[Def. Counsel]: Okay. But sir, is it fair to say that you made a determination
that it was Mr. McCaskill after viewing said videos and stills?
[Off. Brown]: Yes. Afterwards, yes.
(Tr. 7/25/13, pp. 68-69).
Later, the following exchange occurred:
[Def. Counsel]: I know. And people can be right or wrong; correct?
[Off. Brown]: Correct.
[Def. Counsel]: Cause you felt that Noelle Beasley was wrong; correct?
[Off. Brown]: She was wrong.
[Def. Counsel]: She could have been right, though; right?
[Off. Brown]: No.
(Id., p. 100).
Petitioner is not entitled to habeas relief on the first portion of his first claim for
several reasons.
First, a defendant in a criminal case cannot complain of error which he or she
invited. See Shields v. United States, 273 U.S. 583, 586 (1927). When a petitioner
invites an error in the trial court, he or she is unable to obtain habeas corpus relief. See
Fields v. Bagley, 275 F. 3d 478, 486 (6th Cir. 2001). Petitioner’s counsel’s questioning
opened the door to Officer Brown’s testimony about the surveillance video and his
opinion that Ms. Beasley erred in identifying the wrong participant in the lineup.
Petitioner invited the error here; he cannot obtain habeas relief.

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Second, Petitioner is not entitled to habeas relief on his claim that Officer Brown
offered improper lay opinion testimony, in violation of M.R.E. 701. It is “not the
province of a federal habeas court to reexamine state-court determinations on state-court
questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal court is limited in
federal habeas review to deciding whether a state court conviction violates the
Constitution, laws, or treaties of the United States. Id. Errors in the application of state
law, especially rulings regarding the admissibility of evidence, are usually not
questioned by a federal habeas court. Seymour v. Walker, 224 F. 3d 542, 552 (6th Cir.
2000). Petitioner is not entitled to habeas relief on his claim that Officer Brown’s
testimony was impermissible lay opinion testimony. See Charles v. Thaler, 629 F. 3d
494, 500 (5th Cir. 2011).
Third, there is no clearly established law as determined by the Supreme Court
which prohibits a police officer from offering an opinion regarding a criminal
defendant’s guilt or innocence.
In Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988), the Sixth Circuit held that it
was fundamentally unfair and a violation of due process to permit a detective to testify as
an expert witness that all the evidence linked the petitioner, and no one else, to the crime.
The Sixth Circuit concluded that “[t]he opinion-testimony had a direct influence on the
jury’s consideration of petitioner’s guilt or innocence.” Id. at 287.
The Sixth Circuit’s holding in Cooper does not entitle Petitioner to habeas relief
for several reasons.
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First, Officer Brown was not presented as an expert witness at Petitioner’s trial.
Secondly, the jury was instructed to jury to judge a police officer’s testimony by the
same standard as the testimony of any other witness. (Tr. 7/25/13, p. 175). These two
facts alone distinguish Petitioner’s case from the situation in Cooper. See e.g. Norton v.
Boynton, No. No. 08–13200, 2011 WL 282433, * 8 (E.D. Mich. Jan. 26, 2011). Third,
“Cooper was decided prior to Congress’ adoption of the AEDPA...so the Cooper court
owed no deference to the state court decision on these issues.” Dorsey v. Banks, 749 F.
Supp. 2d 715, 758 (S.D. Ohio 2010). The judge in Dorsey indicated that he was “unable
to locate a single case decided by the Sixth Circuit Court of Appeals, apart from Cooper,
where a prosecutor’s questioning of a law enforcement officer about the truthfulness of a
witness led to the grant of a writ of habeas corpus.” Id. Given the lack of holdings by the
Supreme Court on the issue of whether a police officer can offer an opinion as to a
criminal defendant’s guilt or innocence, the Michigan Court of Appeals’ rejection of
Petitioner’s claim was not an unreasonable application of clearly established federal law.
See Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77
(2006). Petitioner is not entitled to habeas relief on this portion of the first claim.
Petitioner argues that trial counsel was ineffective for eliciting this testimony
from Officer Brown. The Michigan Court of Appeals rejected the claim:
It appears that the purpose underlying the cross-examination of Officer Brown
was to show that his investigation was compromised because he did not
consider other leads and focused only on defendant. Counsel established that
Officer Brown zeroed in on defendant, relying on an anonymous tip and other
witness identifications, while ignoring that Beasley identified someone else
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in a photo lineup, that Marshall was unable to identify defendant from the
photos, and that a photograph was not taken of the live lineup which would
have showed whether the other participants looked similar to defendant.
Thus, in context, it appears that counsel’s strategy was to establish that the
information Officer Brown had identifying defendant as the perpetrator was
weak, and his focus on defendant blinded him to other viable leads regarding
the true perpetrator. Defendant has not overcome the presumption that this
was a reasonable trial strategy.
People v. McCaskill, 2015 WL 1069400, at * 3.
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. 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

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been different, but for counsel’s allegedly deficient performance. See Wong v.
Belmontes, 558 U.S. 15, 27 (2009).
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.
Indeed, “because 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 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)). A reviewing court
must not merely give defense counsel the benefit of the doubt, but must also
affirmatively entertain the range of possible reasons that counsel may have had for
proceeding as he or she did. Cullen v. Pinholster, 563 U.S. 170, 196 (2011).
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Counsel’s first question to Officer Brown regarding his belief that Petitioner was
the suspect after viewing the surveillance videotape and the photographs was part of
counsel’s attempt to impeach Officer Brown’s testimony. Defense counsel phrased the
question of Petitioner’s guilt in the terms of “you made a determination,” connecting
Officer Brown’s objectivity and credibility to the results of the investigation. Counsel
then challenged Officer Brown’s credibility through questions about another potential
suspect, “Thomas Brown,” that Noelle Beasley identified. Officer Brown denied
investigating his other suspect, but counsel was able to undermine the concept that
Petitioner was the only suspect to the robbery. (Tr. 7/25/13, pp. 70-72). If counsel had
not questioned Officer Brown about the video as the basis of Officer Brown’s belief that
Petitioner was the suspect, the impeachment opportunity would have never arisen.
Counsel employed a reasonable strategy in attempting to challenge Officer Brown’s
investigation by suggesting that there were other potential suspects.
Counsel’s second question attempted to suggest an inference that Officer Brown
was biased. Officer Brown testified he did not tell the witnesses which person to choose
from the lineup. Counsel’s questioning then established that witnesses could be right or
wrong during the identification process, but that Officer Brown made his own
independent determination that witness Noelle Beasley was “wrong.” (Id., pp. 99-100).
Counsel argued in summation that the entire case was built off of Officer Brown’s
subjective determinations rather than evidence or facts. (Id., pp. 151, 156-57).
Counsel’s performance in eliciting allegedly prejudicial testimony from Officer
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Brown against Petitioner was not deficient, so as to support Petitioner’s ineffective
assistance of counsel claim; the questions were part of a legitimate strategy to cast doubt
on the prosecution’s case or of the witnesses who testified. See Campbell v. U.S., 364
F.3d 727, 734-35 (6th Cir. 2004); See also Urban v. Ohio Adult Parole Auth., 116 F.
App’x. 617, 622 (6th Cir. 2004)(counsel’s eliciting from state witness during
cross-examination in criminal proceedings for Medicaid fraud that defendant acted
inappropriately and had improperly billed witness’s girlfriend for medical services that
were never performed was reasonable trial strategy; counsel’s cross-examination of the
witness was an attempt to portray the witness as biased).
Counsel’s questions to Officer Brown did not prejudice Petitioner, because there
was substantial evidence to support Petitioner’s conviction. Ms. Summerour, the CVS
manager who spent the longest time with the gunman during the robbery, positively
identified Petitioner as the perpetrator at a live lineup and at trial. Ms. Marshall
positively identified Petitioner at trial as one of the perpetrators. Two victims from a
similar robbery identified Petitioner as the perpetrator of that crime. The evidence
against Petitioner was compelling; Petitioner is unable to show that he was prejudiced by
the counsel’s elicitation of damaging information from Officer Brown. See Scott v. Elo,
302 F.3d 598, 607 (6th Cir. 2002). Petitioner’s first claim is meritless.
B. Claim # 2. The other acts evidence claim.
Petitioner argues that the admission of the other acts evidence involving the
Warren Avenue CVS robbery violated his right to a fair trial.
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Petitioner’s claim that the state court violated M.R.E. 404(b) by admitting
evidence of his other armed robbery is non-cognizable on habeas review. See Bey v.
Bagley, 500 F 3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme Court’s
habeas powers did not permit Court to reverse state court conviction based on their belief
that the state trial judge erred in ruling that prior injury evidence was admissible as bad
acts evidence under California law); Dowling v. U.S., 493 U.S. 342, 352-53
(1990)(admission at defendant’s bank robbery trial of “similar acts” evidence that he had
subsequently been involved in a house burglary for which he had been acquitted did not
violate due process). The admission of this “prior bad acts” or “other acts” evidence
against Petitioner at his state trial does not entitle him to habeas relief, because there is
no clearly established Supreme Court law which holds that a state violates a habeas
petitioner’s due process rights by admitting propensity evidence in the form of “prior bad
acts” evidence. See Bugh v. Mitchell, 329 F. 3d 496, 512 (6th Cir. 2003). Petitioner is
not entitled to relief on his second claim.
IV. Conclusion
The Court denies the petition for writ of habeas corpus. The Court also denies a
certificate of appealability to Petitioner. 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
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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 11(a), 28 U.S.C. foll. § 2254; See
also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
For the reasons stated in this opinion, the Court denies Petitioner a certificate of
appealability; he failed to make a substantial showing of the denial of a federal
constitutional right. See Siebert v. Jackson, 205 F. Supp. 2d 727, 735 (E.D. Mich. 2002).
Although this Court denies a certificate of appealability, the standard for granting
an application for leave to proceed in forma pauperis (IFP) is lower than the standard for
certificates of appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D.
Mich. 2002). While 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
The Court DENIES the Petition for Writ of Habeas Corpus and a Certificate of
Appealability.
Petitioner is GRANTED leave to appeal in forma pauperis.

S/Victoria A. Roberts
United States District Judge
Dated: January 13, 2017

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