Hough v. MacLaren
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
HON. AVERN COHN
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
This is a habeas case under 28 U.S.C. § 2254. Petitioner Carl Hough,
(Petitioner), is currently on parole supervision through the Michigan Department of
Corrections.1 In 2006, Petitioner was convicted of operating a motor vehicle while
intoxicated and causing a serious impairment of another person’s body function (OWI),
M.C.L. § 257.625(5), driving without a valid license and causing a serious impairment of
another person's body function, M.C.L. § 257.904(5), ten counts of false certification
under Michigan’s vehicle code, M.C.L. § 257.903(1), one count of false representation,
M.C.L. § 28.293(1), felon in possession of a firearm, M.C.L. § 750.224f, and possession
of a firearm during the commission of a felony, M.C.L. § 750.227b. In 2010,2 Petitioner
Petitioner was paroled on October 27, 2016. See
Petitioner did not appear for the final day of trial. He was apprehended four
years later in Georgia following a traffic stop.
was sentenced as a third habitual offender to concurrent terms of 3 to 10 years, 2-5
years, all of which were consecutive to a 2 year sentence for the felony firearm
Before the Court is Petitioner’s pro se petition for a writ of habeas corpus,
claiming that his constitutional rights have been violated. He raises eleven claims.
Respondent, through the Attorney General’s Office, filed a response, arguing that
petitioner’s claims are meritless or procedurally defaulted. For the reasons that follow,
the petition will be denied.
A. Procedural History
Following his sentencing, Petitioner filed an appeal of right, in which he raised
what now make up the first seven claims in his petition. The Michigan Court of Appeals
affirmed his conviction and sentence. People v. Hough, No. 302132, 2013 WL 163820
(Mich. Ct. App. Jan. 15, 2013)(Shapiro, J., dissenting).3 Petitioner filed an application
for leave to appeal to the Michigan Supreme Court. None of the justices voted to grant
leave. People v. Hough, 495 Mich. 934 (2014).
Petitioner then filed a post-conviction motion for relief from judgment, raising
what now make up his eighth through eleventh claims. The trial court denied the
motion. People v. Hough, No. 06-008265-01 (Wayne Cty. Cir.Ct. Mar. 17, 2015). The
Michigan appellate courts denied leave to appeal. People v. Hough, No. 327702 (Mich.
Judge Shapiro dissented on Petitioner’s claim that the trial court improperly
reopened the proofs after the jury had been instructed and begun deliberations. This
forms Petitioner’s first claim on habeas review.
Ct. App. July 9, 2015); lv. den. 499 Mich. 926 (2016).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The trial court abused its discretion when it reopened the proofs to allow
the jury to view a forced showing of petitioner’s scars, especially when the
showing entailed more view than was originally shown to the jury during trial.
II. The prosecutor committed misconduct when he submitted the verbatim
contents of the police report into the record and expanded on the report
beyond that provided at trial during closing argument.
III. Petitioner allegedly caused a serious car accident and separately
possessed fraudulent Secretary of State documents and some guns in a
house while being a felon. The events were unrelated under Michigan law
and it was prejudicial error and a denial of due process to join the two
matters in one trial.
IV. Petitioner was denied his due process right to a fair trial when the
prosecutor asked about “suspected marijuana” that was allegedly seized
during the execution of the search warrant but destroyed by the police,
mentioning the suspected marijuana in closing, and insinuating to the jury
that the guns seized were not for hunting but for a criminal purpose.
V. Petitioner was denied the effective assistance of his attorney where his
counsel failed to object to the prosecutor misconduct referenced in the
VI. The evidence was insufficient to support the felony-firearm conviction,
because the Legislature did not intend for felon-in-possession to be used as
the basis of a felony-firearm conviction.
VII. The seizure of the guns exceeded the scope of the search warrant and
was not justified by the plain view exception because the guns were not
immediately and apparently illegal, thus violating petitioner’s Fourth
VIII. Petitioner is entitled to relief from the judgment of his conviction[s]
because the trial court erred in allowing the jury during its deliberations to
consider extrinsic information depriving petitioner of his right to a fair trial,
also denying petitioner of his Fifth Amendment right to be free from
self-incrimination, and his Sixth Amendment right of confrontation, of
IX. Petitioner is entitled to relief from judgment on his conviction[s] because
he was denied effective assistance of counsel.
X. Petitioner is entitled to relief from judgment of his conviction[s] because his
due process right to a fair trial was violated by the prosecutor’s untimely
disclosure of Brady material.
XI. Petitioner is entitled to relief from judgment of his convictions, due to
vindictive prosecution, selective prosecution, prosecutorial delay, and due
The Court recites verbatim the relevant facts relied upon by the Michigan Court
of Appeals, which are presumed correct on habeas review under 28 U.S.C.
§ 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case arose out of a traffic accident that occurred in 2004. Detroit Police
Officer Mitchell Quinn responded to the scene of the accident to discover two
people trapped inside a car that had crashed into a utility pole; the “entire front
end of the car was smashed.” Quinn identified defendant as the driver. At the
hospital, defendant identified himself to Quinn as Lashawn Scott Key and
indicated that “he had left the bar,” passed out while driving, and “didn’t know
what happened.” Quinn recalled that defendant smelled of alcohol, had
bloodshot eyes and spoke in a slurred manner. Quinn left the hospital to
acquire a “search warrant to get blood drawn” from defendant, but on Quinn’s
return defendant “had checked himself out of the hospital.” Quinn performed
a search for records of “Lashawn Scott Key” and found that “Key’s” driving
record “showed an individual ... in his late 30’s that obtained a driver’s license
somewhere in his early 30’s,” when most Michigan residents acquired driver’s
licenses at age 16. Quinn deemed this a “red flag” that “didn’t make any
sense,” and “the further I got to digging into it the more things began to
unravel that the person that identified himself as Lashawn Scott Key was not
Lashawn Scott Key.” Quinn’s further investigations, which included
photographs from the Secretary of State and the LEIN network, a birth
certificate, and conversing with defendant, eventually resulted in defendant
providing Quinn with his real name.
Quinn determined that multiple vehicles and driver’s licenses began all
pointing to a single address where defendant lived. Quinn executed a search
warrant at that residence, looking for “fraudulently obtained identification
cards, driver’s licenses, any paper work and/or vehicles.” He found mail in
both defendant’s name and the name of Lashawn Scott Key, including a
hospital bill addressed to Key, two rifles, and several boxes of ammunition.
There were items of mail addressed to other names, as well. Defendant met
with Quinn later that day, offering to turn himself in; he admitted that he
acquired the guns for protection and got the driver’s licenses to drive, and he
wanted to be done with “these games.” Quinn also noted that he did not need
defendant to have admitted to being Lashawn Scott Key because he had
“certified documents from the Secretary of State to prove who he is.” The
photographs on several driver’s license or state identification cards, including
defendant’s and one for Lashawn Scott Key, were all determined to be of the
Another of those items of proof was a LEIN entry indicating that defendant
had noticeable scarring to his upper chest. Apparently—the testimony is not
completely clear as to how—Quinn and several other officers personally
verified that defendant did in fact have the described scarring, which Quinn
described as “appear[ing] to be some sort of bullet wound.” At trial, during
Quinn’s cross-examination, defense counsel had defendant lift up his shirt,
which revealed no scarring on defendant’s chest. The jury was provided with
a copy of defendant’s medical records from his treatment a t the hospital after
the accident. We have unfortunately not had the benefit of receiving a copy
of the trial exhibits, and no clear description was provided on the record, but
we infer that those records apparently indicated that defendant had some kind
of prior scarring somewhere on his upper torso area. After the close of proofs
and during jury deliberations, the jury sent a note asking to see the
lacerations. Rather than ordering defendant to lift his shirt again, the trial
court ordered defendant to remove his shirt entirely, revealing scarring to,
apparently, defendant’s upper left arm.
People v. Hough, 2013 WL 163820, at * 1–2 (internal footnote omitted).
III. Standard of Review
28 U.S.C. § 2254(d) 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–
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
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, 40506 (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).
IV. Petitioner’s Claims
A. Reopening of Proofs
Petitioner first claims that the trial court improperly reopened the proofs when he
directed Petitioner to remove his shirt after the jury began its deliberations. The court of
appeals rejected this claim. This claim is not cognizable on habeas review as explained
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); see also Spalla v. Foltz, 615 F. Supp. 224, 234 (E.D.
Mich. 1985). The Supreme Court has yet to decide whether or under what
circumstances it is permissible for the reopening of proofs in a criminal case. Given the
lack of precedent by the Supreme Court on the issue of whether a state trial judge can
reopen proofs in a criminal case, the Michigan courts’ rejection of petitioner’s claim was
not an unreasonable application of clearly established federal law, so as to entitle
petitioner to habeas relief. See Wright v. Van Patten, 552 U.S. 120, 126 (2008).
Moreover, the Sixth Circuit has never granted habeas relief because a prosecutor was
permitted to reopen proofs in a criminal case. See Clemmons v. Sowders, 34 F.3d 352,
357 (6th Cir. 1994)(permitting prosecution to reopen case to present witness after court
determined that testimony did not warrant Fifth Amendment protection did not violate
due process or entitle defendant to federal habeas court relief. Because the issue is
one of state law and one in which there is an absence of any clearly established
Supreme Court precedent barring the reopening of proofs in a criminal case, Petitioner
is not entitled to habeas relief on his first claim.
B. Prosecutorial misconduct/ineffective assistance of counsel
In his second and fourth claims, Petitioner says that he was denied a fair trial
because of prosecutorial misconduct. In his related fifth claim, Petitioner argues that
counsel was ineffective for failing to object to the misconduct.
“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 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)). Prosecutorial misconduct will thus form the basis for habeas relief only if
the conduct was so egregious as to render the entire trial fundamentally unfair based on
the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. at 643-45. 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,
132 S. Ct. 2148, 2155 (2012)(quoting Harrington, 562 U.S. at 103).
In his second claim, Petitioner says that Officer Quinn was permitted to read
verbatim to the jury the statement that Petitioner gave to Officer Quinn. Although
Petitioner has framed his claim as a prosecutorial-misconduct challenge, “it amounts in
the end to a challenge to the trial court’s decision to allow the introduction of this
evidence.” Webb v. Mitchell, 586 F. 3d 383, 397 (6th Cir. 2009). Contrary to Petitioner’s
assertion, his statements to Officer Quinn were not hearsay; the Michigan Court of
Appeals concluded that they were admissible as a party admission under M.R.E.
801(d)(2)(A). Hough, 2013 WL 163820, at * 2.
Moreover, the admissibility of evidence under Michigan’s hearsay rules is not
cognizable in a habeas corpus proceeding. See Byrd v. Tessmer, 82 F. App’x. 147, 150
(6th Cir. 2003); see also Cathron v. Jones, 190 F. Supp. 2d 990, 996 (E.D. Mich. 2002).
Thus, Petitioner is not entitled to relief regarding Officer Quinn’s reading Petitioner’s
Petitioner also says that the prosecutor injected facts that had not been
introduced in the record when he expanded on the contents of the police report in his
closing argument as follows:
“Mr. Hough continued, ‘I don’t know why you are playing games with me. I
just want this over. What do I have to do to get this over with? Yes, I got
those driver’s license[s], but I need to drive and that’s why I did it.’”
(Tr. 11/1/06, p. 90).
Petitioner contends that this statement was improper because there was no mention of
any driver’s license violations in petitioner’s statement to Officer Quinn.
It is improper for a prosecutor during closing arguments to bring to the jury any
purported facts which have not been introduced into evidence and which are prejudicial.
Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000). A review of Officer Quinn’s
testimony, however, shows that he testified that Petitioner had admitted possessing the
false driver’s licenses in order to be able to drive. (Tr. 10/31/06, p. 34). The prosecutor
therefore did not inject any facts into his closing argument that had not been introduced
in the record. Petitioner is not entitled to relief on this ground.
In his fourth claim, Petitioner contends that the prosecutor committed misconduct
by referring to “suspected marijuana” that had been seized from his house, claiming that
the evidence was irrelevant to the case and inadmissible. The court of appeals rejected
this claim, noting that the brief reference, even if irrelevant, had no impact on the trial.
The Sixth Circuit has noted that there are no Supreme Court cases which
support the proposition that a prosecutor’s questions that simply call for answers that
are inadmissible due to relevancy constitute prosecutorial misconduct that rises to the
level of a federal due process violation. See Wade v. White, 120 F. App’x. 591, 594 (6th
Cir. 2005). Therefore, the fact that the prosecutor introduced irrelevant evidence
involving the alleged marijuana would not entitle petitioner to habeas relief. Id.
Moreover, a prosecutor “does not commit misconduct by asking questions that elicit
inadmissible evidence.” Key v. Rapelje, 634 F. App’x. 141, 148 (6th Cir. 2015).
Therefore, Petitioner is not entitled to relief on this ground.
Petitioner further says that the prosecutor improperly argued facts not in
evidence when he said:
“Same exact house where all these magazine clips were found for those
guns. I don’t know how many of you are hunters. This is no hunting rifle.”
(Tr. 11/1/06, p. 74).
Petitioner contends that this argument was improper because there was no evidence
that this rifle was not used for hunting.
In rejecting this claim, the Michigan Court of Appeals noted that Officer Quinn
described the two guns as “assault rifle[s].” People v. Hough, 2013 WL 163820, at * 3.
This was a reasonable conclusion. Although a prosecutor should refrain from arguing
any purported facts which have not been introduced into evidence, prosecutors must be
given leeway to argue reasonable inferences from the evidence. Because there was
some factual support for the prosecutor’s argument that the rifle was not used for
hunting, the remark did not deprive petitioner of a fair trial.
In his fifth claim, Petitioner contends that his defense counsel was ineffective for
failing to object to the prosecutorial misconduct petitioner complains of in his fourth
claim. Because the Court has already determined that the prosecutor’s comments did
not deprive petitioner of a fundamentally fair trial, Petitioner cannot establish that he
was prejudiced by counsel’s failure to object to these remarks. Habeas relief is not
C. Improper Joinder
In his third claim, Petitioner contends that his constitutional rights were violated
when the trial court permitted joinder of the OWI and driving with a suspended license
counts, which arose from the November 2004 accident, and the fraudulent document
and firearm counts, which arose from Officer Quinn's February 2006 search of
Improper joinder does not, by itself, violate the federal constitution. United States
v. Lane, 474 U.S. 438, 446, n. 8 (1986). The Supreme Court in Lane suggested in
passing that misjoinder could rise “ to the level of a constitutional violation only if it
results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair
trial.” Id. The Sixth Circuit has noted that the language in Lane concerning a court’s
failure to sever criminal charges is simply dicta and thus not clearly established federal
law. See Mayfield v. Morrow, 528 F. App’x. 538, 541-42 (6th Cir. 2013). See also
Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010); Rodriguez v. Jones, 625 F.
Supp. 2d 552, 560-61 (E.D. Mich. 2009)(stating that it had “found no Supreme Court
cases holding that a defendant in a criminal case has a constitutional right to a separate
trial on each of the charges against him.”)
Given the lack of holdings by the Supreme Court on the issue of whether a state
court violates a habeas petitioner’s due process rights by joining together unrelated
criminal charges in a single trial, the Michigan Court of Appeals’ rejection of the
petitioner’s improper joinder claim was not an unreasonable application of clearly
established federal law.
Moreover, it was not fundamentally unfair to join the different charges against
Petitioner in a single trial because “ joinder was an efficient use of resources.”
Rodriguez v. Jones, 625 F. Supp. 2d at 561. As the Michigan Court of Appeals noted in
rejecting this claim, all of the charges arose from “a series of connected acts.” People v.
Hough, 2013 WL 163820, at * 4 (citing M.C.R. 6.120(B)(1)(b)). Moreover, the trial court
gave the jurors a cautionary instruction, which advised them that they “must treat each
count separately in light of the evidence presented” and further that they “may find the
Defendant guilty of all fifteen, not guilty of all fifteen, or guilty and not guilty of any
combination of the various crimes that you deem fit under the evidence.” (Tr. 11/1/06, p.
117). The trial court’s cautionary instruction adequately cured any possible prejudice
from the joinder of the separate charges at one trial. United States v. Jacobs, 244 F.3d
503, 507 (6th Cir. 2001). Overall, Petitioner is not entitled to habeas relief on his claim.
D. Sufficiency of the Evidence
In this sixth claim, Petitioner contends that there was insufficient evidence to
support his felony-firearm conviction because the Michigan Legislature did not intend for
the offense of felon in possession of a firearm to be used as a predicate felony offense
for felony-firearm. Petitioner relies on the fact that certain firearms offenses are
expressly exempted in Michigan’s felony-firearm statute from being predicate offenses
for this charge, therefore, the Legislature by implication intended that a felon in
possession of a firearm charge cannot be the basis of a felony-firearm conviction.
Here, the Michigan Court of Appeals rejected Petitioner’s claim, albeit by
interpreting it as a Double Jeopardy claim. In so ruling, the Michigan Court of Appeals
pointed to the Michigan Supreme Court’s holding in People v. Calloway, 469 Mich. 448,
452; 671 NW2d 733 (2003), in which that court held that there was no violation of the
Double Jeopardy Clause to predicate a felony-firearm conviction on a felon-inpossession of a firearm charge. Hough, 2013 WL 163820, at * 5.
The Michigan Supreme Court has held that “the [Michigan] Legislature’s intent in
drafting the felony-firearm statute was to provide for an additional felony charge and
sentence whenever a person possessing a firearm committed a felony other than those
four explicitly enumerated in the felony-firearm statute.” People v. Mitchell, 456 Mich.
693, 698 (1998). The Michigan Supreme Court subsequently held that “[b]ecause the
felon in possession charge is not one of the felony exceptions in the [felony-firearm]
statute, it is clear that defendant could constitutionally be given cumulative punishments
when charged and convicted of both felon in possession, MCL § 750.224f, and
felony-firearm, MCL § 750.227b.” People v. Calloway, 469 Mich. at 452.
The Supreme Court has “repeatedly held that a state court’s interpretation of
state law, including one announced on direct appeal of the challenged conviction, binds
a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
State courts are the “ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684,
691 (1975). What is essential to establish an element of a crime, like the question
whether a given element is necessary, is a question of state law, of which federal
habeas review is not available. See Sanford v. Yukins, 288 F.3d 855, 862 (6th Cir.
2002). Moreover, a federal court on habeas review must distinguish a sufficiency of
evidence claim from state law claims which are disguised as Jackson claims. Id. (citing
Bates v. McCaughtry, 934 F.2d 99, 103 (7th Cir. 1991)). Thus, “when a habeas petition
is predicated upon just one of several plausible interpretations of underlying state law,
federal courts have declined to review state convictions on insufficiency-of-evidence
grounds.” Jenkins v. Dailey, 348 F. App'x 114, 119 (6th Cir. 2009). This Court must
defer to the Michigan appellate courts’ construction of the elements of state crimes. See
Coe v. Bell, 161 F.3d 320, 347 (6th Cir. 1998).
The Court must defer to the state courts’ interpretation of the felony-firearm
statute. Petitioner is therefore not entitled to relief on his sixth claim.
E. Fourth Amendment Claim
In his seventh claim, Petitioner says that the trial court erred in denying his
motion to suppress the evidence obtained from his house as being the fruit of an illegal
search. Petitioner is not entitled to relief on this claim, as explained below.
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 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).
Here, Petitioner was able to present his Fourth Amendment claim to the state
trial court in his pre-trial motion to suppress. Petitioner was later able to present his
Fourth Amendment claim to the Michigan appellate courts. This is sufficient to preclude
review of the claim.
F. Procedural Default
Respondent contends that Petitioner’s remaining claims, claims eight to eleven,
are procedurally defaulted because he raised them for the first time on post-conviction
review and failed to establish cause and prejudice, as required by M.C.R. 6.508(D)(3)
for failing to raise these claims on his direct appeal. The Court agrees.
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 a petitioner fails to
show cause for his or her 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
Michigan Court Rule 6.508(D)(3) provides that a court may not grant relief to a
defendant if the motion for relief from judgment alleges grounds for relief which could
have been raised on direct appeal, absent a showing of good cause for the failure to
raise such grounds previously and actual prejudice resulting therefrom. For purposes of
a conviction following a trial, “actual prejudice” means that “but for the alleged error, the
defendant would have had a reasonably likely chance of acquittal.” M.C.R.
The Supreme Court noted that “a procedural default does not bar consideration
of a federal claim on either direct or habeas review unless the last state court rendering
a judgment in the case ‘clearly and expressly’ states that its judgment rests on the
procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). If the last state court
judgment contains no reasoning, but simply affirms the conviction in a standard order,
the federal habeas court must look to the last reasoned state court judgment rejecting
the federal claim and apply a presumption that later unexplained orders upholding the
judgment or rejecting the same claim rested upon the same ground. Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991).
Here, the Michigan Supreme Court rejected petitioner’s post-conviction appeal
on the ground that “the defendant has failed to meet the burden of establishing
entitlement to relief under MCR 6.508(D).” This order, however, did not refer to
subsection (D)(3) nor did it mention petitioner’s failure to raise his eighth through
eleventh claims on his direct appeal as a rationale for rejecting his post-conviction
claims. Because the Michigan Supreme Court form order in this case citing Rule
6.508(D) is ambiguous as to whether it refers to procedural default or a denial of postconviction relief on the merits, the order is unexplained. See Guilmette v. Howes, 624
F.3d 286, 291 (6th Cir. 2010). This Court must “therefore look to the last reasoned state
court opinion to determine the basis for the state court’s rejection” of petitioner’s claims.
The Michigan Court of Appeals denied petitioner’s post-conviction appeal holding
that “The defendant alleges grounds for relief that could have been raised previously
and he has failed to establish both good cause for failing to previously raise the issues
and actual prejudice from the irregularities alleged, and had not established that good
cause should be waived. MCR 6.508(D)(3)(a) and (b).” People v. Hough, No. 327702
(Mich.Ct.App. July 9, 2015). The Michigan Court of Appeals clearly denied Petitioner
post-conviction relief based on the procedural grounds stated in M.C.R. 6.508(D)(3),
thus, petitioner’s post-conviction claims are procedurally defaulted pursuant to M.C.R.
6.508(D)(3). See Ivory v. Jackson, 509 F.3d 284, 292-93 (6th Cir. 2007). As such, his
claims are defaulted.
Petitioner, however, alleges ineffective assistance of appellate counsel as cause
to excuse his procedural default for failing to raise his eighth through eleventh claims on
his appeal of right.4
It is well-established that a criminal defendant does not have a constitutional right
to have appellate counsel raise every non-frivolous issue on appeal. See Jones v.
Barnes, 463 U.S. 745, 751 (1983). The Supreme Court has explained:
“For judges to second-guess reasonable professional judgments and impose
on appointed counsel a duty to raise every ‘colorable’ claim suggested by a
client would disserve the ... goal of vigorous and effective advocacy....
Nothing in the Constitution or our interpretation of that document requires
such a standard.”
Id. at 463 U.S. at 754.
The Supreme Court has subsequently noted that:
Notwithstanding Barnes, it is still possible to bring an [ineffective assistance
of counsel] claim based on [appellate] counsel’s failure to raise a particular
claim [on appeal], but it is difficult to demonstrate that counsel was
Smith v. Robbins, 528 U.S. 259, 288 (2000).
Strategic and tactical choices regarding which issues to pursue on appeal are
“properly left to the sound professional judgment of counsel.” United States v. Perry,
908 F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate advocacy” is
the “process of ‘winnowing out weaker arguments on appeal and focusing on’ those
more likely to prevail.” Smith v. Murray, 477 U.S. at 536 (quoting Barnes, 463 U.S. at
Petitioner could not have procedurally defaulted his ineffective assistance of
appellate counsel claim, because state post-conviction review was the first opportunity
that he had to raise this claim. See Guilmette, 624 F. 3d at 291. However, for the
reasons stated below, Petitioner is not entitled to habeas relief on this claim.
Applying this standard, Petitioner fails to show that appellate counsel’s
performance fell outside the wide range of professionally competent assistance by
omitting his eighth through eleventh claims.
Petitioner’s original appellate counsel, filed a seventeen page brief containing the
first two claims raised by petitioner in his habeas petition. See Defendant’s Brief on
Appeal. (Doc. 10-14). Petitioner’s substitute appellate counsel, filed a twenty four page
brief on appeal raising the third through seventh claims raised by petitioner in his
habeas application. See Appellant’s Supplemental Brief. (Doc. 10-14). Petitioner has
not shown that appellate counsels’ strategy in presenting these claims and not raising
other claims was deficient or unreasonable. Moreover, for the reasons stated by the
Michigan Attorney General in the answer to the petition for writ of habeas corpus, none
of the claims raised by petitioner in his post-conviction motion were “dead bang
winners.” As such, Petitioner has not established cause for his procedural default of
failing to raise these claims on direct review. Because Petitioner has not demonstrated
any cause for his procedural default, it is unnecessary to reach the prejudice issue.
In addition, because these post-conviction claims lack merit, Petitioner cannot
prevail on an independent ineffective assistance of appellate counsel claim raised by
petitioner. “[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)). Finally, Petitioner
has not established that a fundamental miscarriage of justice has occurred.
Overall, Petitioner’s remaining claims are barred by procedural default and do not
For the reasons stated above, the state courts’ rejection of Petitioner’s claims did
not result in decisions that were contrary to Supreme Court precedent, an unreasonable
application of Supreme Court precedent, or an unreasonable determination of the facts.
Accordingly, the petition for a writ of habeas corpus is DENIED.
Furthermore, reasonable jurists would not debate the Court’s assessment of
Petitioner’s claims, nor conclude that the issues deserve encouragement to proceed
further. The Court therefore DECLINES to grant a certificate of appealability under 28
U.S.C. § 2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
UNITED STATES DISTRICT JUDGE
Dated: Februray 24, 2017
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