Robinson v. Winn

Filing 12

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LAMARR VALDEZ ROBINSON,
Petitioner,
v.

Civil No. 2:16-CV-12721
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

CONNIE HORTON,1
Respondent.
_____________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA
PAUPERIS
Lamarr Valdez Robinson, (“Petitioner”), confined at the Chippewa
Correctional Facility in Kincheloe, Michigan, filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction
for assault with intent to commit murder, M.C.L.A. § 750.83, felon in
possession of a firearm, M.C.L.A. § 750.224f, and possession of a firearm
during the commission of a felony (felony-firearm), M.C.L.A. § 750.227b.
The trial court sentenced petitioner as a fourth habitual offender, M.C.L.A.
§ 769.12, to concurrent terms of 47–1/2 to 120 years’ imprisonment for the
1

The Court amends the caption to reflect the current warden of
petitioner’s incarceration.
1

assault and felon-in-possession convictions, to be served consecutive to
two years’ imprisonment for the felony-firearm conviction. For the reasons
that follow, the petition for a writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted following a jury trial in the Wayne County
Circuit Court. This Court recites verbatim the relevant facts relied upon by
the Michigan Court of Appeals, which are presumed correct on habeas
review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009):
A jury convicted the 39–year–old defendant of shooting
20–year–old Jamel Chubb at a Detroit gas station on May 13,
2010. The prosecution presented evidence that defendant and
Chubb were both dating 19–year–old Jessica Taylor, whom
defendant had been dating for a couple of years. Defendant
learned about the relationship between Taylor and Chubb, and
thereafter followed them on multiple occasions and sent several
text messages to both Taylor and Chubb. On the day of the
shooting, the men had a brief encounter at Taylor’s mother’s
Livonia residence. Upon leaving, defendant told Taylor, “Don’t let
me catch y’all in the hood.” Later that day, Chubb, Taylor,
Jasmine Miller, and Kayana Davies were all at Miller’s Detroit
residence, and ultimately went to a local gas station. The gas
station surveillance video captured an individual wearing a hoodie
and riding a bike approach Chubb and shoot him as he was
pumping gas. Taylor, who was in the front passenger seat of the
vehicle, identified defendant as the shooter. Cellular phone
tracking evidence also placed defendant in the area of the gas
station at the time of the shooting. The defense theory at trial was
misidentification, and the defense argued, inter alia, that Taylor’s
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identification was not credible and the cell phone tracking
evidence was not reliable.
People v. Robinson, No. 321841, 2015 WL 6438239, at *1 (Mich. Ct. App.
Oct. 22, 2015).
Petitioner’s conviction was affirmed. Id., lv. den. 499 Mich. 916; 877
N.W.2d 729 (2016).
Petitioner seeks a writ of habeas corpus on the following grounds:
I.

Defense counsel stipulated to the admission of cell
phone tower evidence placing someone using a
phone used by the petitioner in the general area.

II.

Defense counsel stipulated to the introduction of
testimony of irrelevant sex tapes, did not object to
lines of questioning regarding those tapes and did not
object to the introduction of text messages or
testimony portraying petitioner in a bad light.

III.

Defense counsel failed to object to the prosecutor’s
misconduct of referencing facts not in evidence and
the prosecutor’s appeal to sympathy in both opening
and closing arguments. Defense counsel’s failure to
object denied petitioner of his right to effective
counsel and due process of law.

IV.

The prosecution failed to produce sufficient evidence
to identify petitioner as a perpetrator of the offenses
beyond a reasonable doubt.

V.

Petitioner was denied the effective assistance of
counsel contrary to the Sixth Amendment where
counsel failed to call material and alibi witness; for an
expert witness; the cumulative effect of error deprived
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petitioner of a fair trial and due process.
VI.

Petitioner was denied due process of law and a fair
trial by the presentation of false evidence known to be
such by the prosecutor.

VII.

Petitioner is entitled to resentencing under Alleyne v.
United States, 133 SCT 2151 (2013). Where OV4,
OV5, and OV7 were not found by a jury due process
requires that petitioner be sentenced on accurate
information.

VIII. Petitioner was denied a fair trial and impartial trial by
aggressively questioning Kayana Davies and using
tones to intimidate a witness; trial judge was
apparently bias during sentencing by supporting the
people’s position on sentencing.
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
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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. “[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

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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).
III. Discussion
A. Claims ## 1, 2, 3, and 5. Ineffective assistance of counsel.
Petitioner alleges that he was denied due process and the effective
assistance of counsel when trial counsel stipulated to testimony given by
an expert for the prosecution, when trial counsel stipulated and failed to
object to irrelevant testimony, when trial counsel failed to object to
prosecutorial misconduct, and when trial counsel failed to call various
witnesses.
To show that he 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

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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. 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
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).
On habeas review, “the question ‘is not whether a federal court

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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)). Finally, a
reviewing court must not merely give defense counsel the benefit of the

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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).
Petitioner first alleges that trial counsel was ineffective by stipulating
to testimony given by the prosecution’s expert witness.
The trial court judge qualified Larry Smith as an expert in “the
workings of Metro PSC” and how it stored, recorded and registered data,
finding that “[S]mith’s testimony, which was based on the cell phone
records as well as Smith’s specialized knowledge regarding Metro PCS
cell phone towers, helped the jury understand information at issue in the
case that an average juror would not have previously known.” People v.
Robinson, 2015 WL 6438239, at *2. The Michigan Court of Appeals also
found that “[a]ny objection by defense counsel to Smith testifying in that
capacity [] would have been futile.” Id.
Federal habeas courts “‘must defer to a state court’s interpretation of
its own rules of evidence and procedure’ when assessing a habeas
petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005)(quoting Allen
v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)). Because the Michigan Court
of Appeals determined that this evidence was admissible under Michigan

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law, this Court must defer to that determination in resolving petitioner’s
ineffective assistance of counsel claim. See Brooks v. Anderson, 292 F.
App’x 431, 437-38 (6th Cir. 2008). The failure to object to relevant and
admissible evidence is not ineffective assistance of counsel. See Alder v.
Burt, 240 F. Supp. 2d 651, 673 (E.D. Mich. 2003).
Petitioner has failed to show a reasonable probability that Larry
Smith’s expert testimony would have been excluded had an objection
been made by trial counsel. Therefore, petitioner is not entitled to habeas
relief based on trial counsel’s failure to object to the admission of this
evidence. See Pillette v. Berghuis, 630 F. Supp. 2d 791, 802 (E.D. Mich.
2009); aff’d in part and rev’d in part on other grds, 408 F. App’x 873 (6th
Cir. 2010); cert. den. 132 S. Ct. 125 (2011). Petitioner is not entitled to
relief on his first claim.
Petitioner alleges that he was denied the effective assistance of trial
counsel when counsel stipulated to the introduction of testimony regarding
irrelevant sex tapes and text messages.
Petitioner claims that trial counsel was ineffective by failing to object
to this evidence because it was not admissible under M.R.E. 404(b) and it
was too prejudicial.

10

When defense counsel focuses on some issues to the exclusion of
others, there is a strong presumption that he or she did so for tactical
reasons, rather than through sheer neglect, and this presumption has
particular force where an ineffective assistance of counsel claim is
asserted by a federal habeas petitioner based solely on the trial record,
where a reviewing court “may have no way of knowing whether a
seemingly unusual or misguided action by counsel had a sound strategic
motive.” See Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)(quoting
Massaro v. United States, 538 U.S. 500, 505 (2003)). In the present case,
counsel may very well have made a strategic decision not to object to this
testimony, so as to avoid bringing undue attention to the evidence. See
Cobb v. Perini, 832 F.2d 342, 347-48 (6th Cir. 1987). “[N]ot drawing
attention to [a] statement may be perfectly sound from a tactical
standpoint[,].”United States v. Caver, 470 F.3d 220, 244 (6th Cir. 2006).
Stated differently, petitioner is unable to show that counsel’s failure to
object to this evidence—thus drawing attention to it—was deficient, so as
to support an ineffective assistance of counsel claim. See Smith v.
Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010).
Furthermore, the Michigan Court of Appeals found that “[t]he

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challenged evidence was relevant to factual issues in this case.” People v.
Robinson, 2015 WL 6438239, at *3. The Michigan Court of Appeals also
found that the evidence was not unduly prejudicial, and that “defendant
has not shown that defense counsel’s failure to object to the evidence was
objectively unreasonable.” Id. at *4. Petitioner is not entitled to habeas
relief on his ineffective assistance of trial counsel claim pertaining to the
admission of testimony regarding the sex tapes or text messages,
because the evidence was admissible and was found to be not unduly
prejudicial. Petitioner is not entitled to relief on his second claim.
Petitioner alleges that counsel was ineffective for failing to object to
various forms of prosecutorial misconduct. Petitioner first claims that the
prosecutor improperly referenced facts not in evidence in both opening
and closing argument. Petitioner further claims that the prosecutor
attempted to invoke the jury’s sympathy during opening and closing
argument.
To show prejudice under Strickland for failing to object to
prosecutorial misconduct, a habeas petitioner must show that but for the
alleged error of his trial counsel in failing to object to the prosecutor’s
improper questions and arguments, there is a reasonable probability that

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the proceeding would have been different. See Hinkle v. Randle, 271 F.3d
239, 245 (6th Cir. 2001).
Petitioner claims that the prosecutor improperly argued that
petitioner was a controlling, possessive, and manipulative boyfriend. The
Michigan Court of Appeals rejected petitioner’s claim, finding:
Substantial evidence was submitted on the record which could
lead to a reasonable inference that defendant was jealous of
Taylor’s relationship with Chubbs, which the prosecutor argued
was his motive for the crime.
Defendant raises several specific instances of prosecutor
misconduct. During closing argument, the prosecutor stated that
defendant took the same path as the shooter, which defendant
asserts was unsupported by the record. However, contrary to
defendant’s assertion, the prosecutor’s remarks regarding
defendant’s location were supported by Smith’s testimony and
the cell phone records, and reasonable inferences arising from
the evidence. The prosecutor’s argument that Taylor was “able
to see” the shooter’s face was based on Taylor’s testimony that
she saw defendant’s face. The prosecutor’s argument that
defendant had “facial hair right around his chin like [witness
Tremaine Maddox] said” the shooter had was a reasonable
inference from the evidence that defendant had facial hair on the
date of the shooting and Maddox’s description of the shooter as
having a full facial beard. Defendant contends that there was no
evidence from which the prosecutor could infer that defendant
had left a hickey on Taylor’s neck on the day of the shooting, but
Taylor testified that defendant put a hickey on her neck on May
13, 2010, and Miller testified that Taylor had a “big purple mark
on her neck” that day. Also, in a text message to Chubb,
defendant himself wrote, “How u think she got the hicky fool &
when u was knockin I was bustn.” The prosecutor’s references to
other women, relationships, or phone numbers, e.g., “Terri” and
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“Nicole,” were direct references from testimony and text
messages that were admitted into evidence. Taylor testified that
she knew Nicole Waller was the mother of defendant’s children
and had spoken to her on the phone before. Accordingly, we
conclude that the prosecutor’s remarks were not clearly
improper.
People v. Robinson, 2015 WL 6438239, at *5.
The Michigan Court of Appeals found that the remarks made by the
prosecutor during opening and closing arguments were supported by the
record. The Michigan Court of Appeals also found that “to the extent that
the prosecutor’s remarks could be considered impermissible references,
defendant cannot demonstrate that there is a reasonable probability that,
but for counsel’s failure to object, the results of the proceeding would have
been different.” Id. Petitioner’s claim is meritless.
Petitioner alleges that trial counsel was ineffective by failing to object
to the prosecutor’s comments that improperly appealed to the jury’s
sympathy.
The Michigan Court of Appeals rejected petitioner’s argument finding
that “the trial court intervened and directed the prosecutor to rephrase her
argument.” The Michigan Court of Appeals further found that “the trial
court’s instructions that the lawyers’ statements and arguments are not
evidence, and that the case should be decided on the basis of evidence
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were sufficient to dispel any possible prejudice.” Id. at *6.
Petitioner has failed to show that counsel was ineffective for failing to
object to the prosecutor’s closing argument, in light of the fact that the
Michigan Court of Appeals found on direct appeal that the remarks were
not improper. See Finks v. Timberman-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 cannot likewise show that trial counsel was
ineffective by failing to object to the prosecutor’s argument to ask the jury
to sympathize with the victim. The trial court intervened and then properly
instructed the jury that arguments given by the attorneys are not evidence.
Because the prosecutor’s conduct was either not improper or harmless
error, counsel’s failure to object to the prosecutor’s comments and
questions was not ineffective assistance of counsel. See Meade v.
Lavigne, 265 F. Supp. 2d 849, 866 (E.D. Mich. 2003). Petitioner is not
entitled to relief on his third claim.
In his fifth claim, petitioner alleges that trial counsel was ineffective
for failing to investigate and call various witnesses.
Petitioner claims that trial counsel was ineffective for failing to call
Vanessa Hudson and Nicole Haller as alibi witnesses. Petitioner also

15

claims that trial counsel was ineffective for failing to call Tracey May,
Jasmine Bradford, and Charles Mitchell as res geste witnesses. Petitioner
further claims that trial counsel was ineffective for failing to call petitioner
to testify. Lastly, petitioner claims that trial counsel was ineffective for
failing to call an expert witness.
As an initial matter, the Michigan Court of Appeals rejected
petitioner’s claim in part because he failed to submit affidavits from Haller,
Bradford, or Mitchell. People v. Robinson, 2015 WL 6438239, at *8.
Petitioner has also not provided this Court with any affidavits from these
witnesses concerning their proposed testimony and willingness to testify
on petitioner’s behalf. Conclusory allegations of ineffective assistance of
counsel, without any evidentiary support, do not provide a basis for
habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998).
Petitioner has failed to attach any offer of proof or any affidavits sworn by
the proposed witnesses. Petitioner has offered, neither to the Michigan
courts nor to this Court, any evidence beyond his own assertions as to
whether the witnesses would have been able to testify and what the
content of these witnesses’ testimony would have been. In the absence of
such proof, petitioner is unable to establish that he was prejudiced by

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counsel’s failure to call these witnesses to testify at trial, so as to support
the second prong of an ineffective assistance of counsel claim. See Clark
v. Waller, 490 F.3d 551, 557 (6th Cir. 2007).
The Michigan Court of Appeals rejected petitioner’s claim that trial
counsel was ineffective for failing to call Ms. Hudson as an alibi witness,
because trial counsel could have reasonably concluded that her credibility
could have been called into question:
Hudson avers that she went to Waller’s house “around 3:30 or 4
p.m .” to explain to Waller why defendant had her dance clothes
and her van, and that she thereafter left with defendant to pick up
parts for defendant to fix her van. Hudson further avers that she
was with defendant “from 4 to 5:30 p.m.” Defendant avers that he
texted Hudson, “911 where are u,” because Waller was
threatening to burn Hudson’s dance clothes. The cell phone
records show that defendant sent this “911” text at 5:28 p.m.,
contrary to Hudson’s declaration that she and defendant were
already together. It would have been reasonable for counsel to
anticipate that the prosecutor would question the credibility of
Hudson, and counsel reasonably may have determined that the
credibility issues would have seriously undermined any progress
defense counsel had made in presenting the misidentification
defense and discrediting the prosecution’s witnesses.
People v. Robinson, 2015 WL 6438239, at *8.
Under Strickland, a court must presume that decisions by counsel as
to whether to call or question witnesses are matters of trial strategy. See
Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir.2002).

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Defense counsel’s failure to call alibi witnesses to testify at
petitioner’s trial was a matter of reasonable trial strategy, and did not
constitute ineffective assistance of counsel, where counsel instead chose
to rely on discrediting the prosecution’s witness by challenging the
strength of her identification of petitioner as the shooter. See Hale v.
Davis, 512 F. App’x 516, 521-22 (6th Cir. 2013). Indeed, “[t]o support a
defense argument that the prosecution has not proved its case it
sometimes is better to try to cast pervasive suspicion of doubt than to
strive to prove a certainty that exonerates. All that happened here is that
counsel pursued a course that conformed to the first option ... In light of
the record here there was no basis to rule that the state court’s
determination was unreasonable.” Id. (quoting Richter, 131 S. Ct. at 790)).
Defense counsel was not ineffective in failing to call Ms. Hudson as
an alibi witness in light of the fact that her proposed testimony about the
time that she was with petitioner from 4:00 to 5:30 p.m. could have been
impeached by evidence that petitioner sent Ms. Hudson a text message at
5:28 p.m. asking where she was. Because Ms. Hudson’s proposed alibi
was inconsistent with petitioner’s text message and could have been
subjected to impeachment on this basis, counsel was not ineffective for

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failing to present an alibi defense. See e.g. Thurmond v. Carlton, 489 F.
App’x 834, 841 (6th Cir. 2012)(trial counsel’s decision not to call an alibi
witness did not amount to ineffective assistance where the statements of
the petitioner and his alibi witness were inconsistent with each other and
internally).
Petitioner further claims that trial counsel was ineffective for failing to
call Tracey Mayes as a res gestae witness. The Michigan Court of
Appeals rejected this claim as follows:
With regard to the proposed res geste witnesses, May averred in
an affidavit that he observed Taylor “duck face forward” after
shots were fired, which defendant sought as support for a
conclusion that Taylor could not have seen the shooter. May’s
testimony, even if assumed true, would have been cumulative to
the testimony of Davies that Taylor ducked down. Other than
providing information that was adequately covered through
another witness, defendant does not state what new helpful
information May could have offered that would have affected the
outcome of the trial.
People v. Robinson, 2015 WL 6438239, at *8.
Petitioner was not prejudiced by counsel’s failure to call Mr. May
because his proposed testimony was cumulative of other testimony
presented at trial in support of petitioner’s claim that Ms. Taylor had
ducked down at the time of the shooting. Wong, 558 U.S. at 22-23.
Petitioner further claims that trial counsel was ineffective for failing to
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call him to testify. The Michigan Court of Appeals rejected this claim:
There is no basis to conclude that counsel’s performance
deprived defendant of his constitutional right to testify. The record
shows that, after the prosecution rested, defense counsel stated
on the record that he and defendant had discussed whether
defendant was going to testify and that defendant had elected not
to testify. Defendant acknowledged to the court that he did not
want to testify. Defendant never expressed disagreement with
counsel’s statement that he did not wish to testify, did not claim
that he was ignorant of his right to testify, or that defense counsel
had coerced him into not testifying. The decision whether to call
defendant as a witness was a matter of trial strategy and
defendant has not identified or offered any evidence to overcome
the strong presumption of sound strategy.
People v. Robinson, 2015 WL 6438239, at *9 (internal citation omitted).
When a tactical decision is made by an attorney that a defendant
should not testify, the defendant’s assent is presumed. Gonzales v. Elo,
233 F.3d 348, 357 (6th Cir. 2000). A federal court sitting in habeas review
of a state court conviction should have “a strong presumption that trial
counsel adhered to the requirements of professional conduct and left the
final decision about whether to testify with the client.” Hodge v. Haeberlin,
579 F.3d 627, 639 (6th Cir. 2009)(internal citation omitted). To overcome
this presumption, a habeas petitioner must present record evidence that
he somehow alerted the trial court to his desire to testify. Id. Because the
record is void of any indication by petitioner that he disagreed with

20

counsel’s advice that he should not testify, petitioner has not overcome the
presumption that he willingly agreed to counsel’s advice not to testify or
that his counsel rendered ineffective assistance of counsel. Gonzales, 233
F.3d at 357.
Moreover, petitioner failed to show that he was prejudiced by
counsel’s advice concerning whether he should testify or not. Petitioner
merely stated that he would have testified that he had nothing to do with
the crime, without providing any details of his proposed testimony, which is
insufficient to establish prejudice based upon counsel’s allegedly deficient
advice concerning whether he should testify or not. Hodge, 579 F.3d at
641 (defendant did not demonstrate prejudice required to establish claim
of ineffective assistance of counsel based upon defense counsel’s alleged
impairment of his right to testify at capital murder trial where defendant did
not provide details about substance of his testimony and merely
speculated that his testimony would have had impact on jury’s view of
certain witnesses’ credibility and of his involvement in murders).
Petitioner finally claims that trial counsel was ineffective for failing to
call an expert to challenge the prosecution expert’s testimony on cell
phones. A habeas petitioner’s claim that trial counsel was ineffective for

21

failing to call an expert witness cannot be based on speculation. See Keith
v. Mitchell, 455 F.3d 662, 672 (6th Cir. 2006). Petitioner has offered no
evidence to this Court that he had an expert on cell phones who would
have impeached the prosecution expert’s testimony concerning the cell
phone evidence in this case. Petitioner is not entitled to relief on his fifth
claim.
B. Claim # 4. The sufficiency of the evidence claim.
Petitioner alleges that there was insufficient evidence to identify him
as the perpetrator of the offenses beyond a reasonable doubt.
It is beyond question that “the Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged.”
In Re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on review
of the sufficiency of the evidence to support a criminal conviction is,
“whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318
(1979). This inquiry, however, does not require a court to “ask itself
whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.” Instead, the relevant question is whether, after viewing

22

the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Id. at 318-19 (internal citation and footnote
omitted)(emphasis in the original).
A federal habeas court may not overturn a state court decision that
rejects a sufficiency of the evidence claim merely because the federal
court disagrees with the state court’s resolution of that claim. Instead, a
federal court may grant habeas relief only if the state court decision was
an objectively unreasonable application of the Jackson standard. See
Cavazos v. Smith, 565 U.S. 1, 2 (2011). “Because rational people can
sometimes disagree, the inevitable consequence of this settled law is that
judges will sometimes encounter convictions that they believe to be
mistaken, but that they must nonetheless uphold.” Id. For a federal
habeas court reviewing a state court conviction, “the only question under
Jackson is whether that finding was so insupportable as to fall below the
threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650, 656
(2012). A state court’s determination that the evidence does not fall below
that threshold is entitled to “considerable deference under [the] AEDPA.”
Id.

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Petitioner claims that the prosecutor offered no evidence to prove,
beyond a reasonable doubt, that petitioner was the perpetrator of the
offenses. Under Michigan law, “[t]he identity of a defendant as the
perpetrator of the crimes charged is an element of the offense and must
be proved beyond a reasonable doubt.” Byrd v. Tessmer, 82 F. App’x 147,
150 (6th Cir. 2003)(citing People v. Turrell, 25 Mich. App. 646, 181 N.W.2d
655, 656 (1970)).
In the present case, the Michigan Court of Appeals found that Taylor
positively identified petitioner as the shooter, finding sufficient evidence to
sustain his conviction as follows:
Taylor unequivocally identified defendant as the shooter at trial.
Taylor was sitting in the front seat of Chubb’s car, while Chubb
was standing on the side of the vehicle, pumping gas. Defendant
approached on a bike and, as Chubb’s body fell, Taylor saw
defendant’s face. Taylor testified that she had no trouble
perceiving what occurred. Taylor had been in an intimate
relationship with defendant for two years. From this evidence, a
jury could reasonably infer that Taylor was familiar with
defendant and could identify him under the circumstances.
Although defendant emphasizes that Taylor did not initially
identify him as the shooter, Taylor explained that she did not
initially identify defendant because she feared retribution. After
deciding to come forward, Taylor consistently identified
defendant as the shooter to the police, at the preliminary
examination, and at trial. The jury was free to believe or
disbelieve Taylor’s testimony, including her explanation for her
belated identification of defendant as the shooter. The credibility
of identification testimony is a question of fact for the jury, and
24

Taylor’s testimony, if believed, was sufficient to establish
defendant’s identity as the shooter. Further, apart from Taylor’s
positive and unequivocal identification of defendant, the
prosecution presented evidence that a cell phone linked to
defendant was in the area at the time of the shooting and that
defendant had communicated via text about obtaining a
.45–caliber gun—the same caliber that was used to shoot Chubb.
Accordingly, when viewed in a light most favorable to the
prosecution, there was sufficient evidence for the jury to identify
defendant as the perpetrator beyond a reasonable doubt.
People v. Robinson, 2015 WL 6438239, at *7.
The Court notes that “the testimony of a single, uncorroborated
prosecuting witness or other eyewitness is generally sufficient to support a
conviction.“ Brown v. Davis, 752 F.2d 1142, 1144 (6th Cir. 1985)(internal
citations omitted). Taylor unequivocally identified petitioner at trial as the
shooter based of her personal observations. This evidence was sufficient
to support petitioner’s convictions. See Thomas v. Perry, 553 F. App’x
485, 487–88 (6th Cir. 2014).
Petitioner’s cell phone activity near the crime scene at the time of the
crime was also circumstantial evidence that was sufficient to establish
petitioner’s identity. See United States v. Starnes, 552 F. App’x 520, 525
(6th Cir. 2014).
Because there were multiple pieces of evidence to establish
petitioner’s identity as the perpetrator of the shooting, the Michigan Court
25

of Appeals did not unreasonably apply Jackson v. Virginia in rejecting
petitioner’s sufficiency of evidence claim. See Moreland v. Bradshaw, 699
F.3d 908, 919-21 (6th Cir. 2012). Petitioner is not entitled to relief on his
fourth claim.
C. Claim # 3. The perjury claim.
Petitioner alleges that the prosecutor knowingly presented perjured
testimony by allowing Taylor to testify that petitioner was the shooter when
her initial police statement did not identify him as the shooter. Petitioner
further claims that perjured testimony was presented when Taylor testified
that she could see the shooter, when other eyewitnesses testified that they
all ducked down, in the car, at the time of the shooting.
The deliberate deception of a court and jurors by the presentation of
known and false evidence is incompatible with the rudimentary demands
of justice. Giglio v. United States, 405 U.S. 150, 153 (1972). There is also
a denial of due process when the prosecutor allows false evidence or
testimony to go uncorrected. Napue v. Illinois, 360 U.S. 264, 269
(1959)(internal citations omitted). To prevail on a claim that a conviction
was obtained by evidence that the government knew or should have
known to be false, a defendant must show that the statements were

26

actually false, that the statements were material, and that the prosecutor
knew they were false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998).
However, a habeas petitioner must show that a witness’ statement was
“indisputably false,” rather than misleading, to establish a claim of
prosecutorial misconduct or a denial of due process based on the knowing
use of false or perjured testimony. Byrd v. Collins, 209 F.3d 486, 517-18
(6th Cir. 2000).
Mere inconsistencies in a witness’ testimony do not establish the
knowing use of false testimony by the prosecutor. Coe, 161 F.3d at 343.
Additionally, the fact that a witness contradicts himself or herself or
changes his or her story also does not establish perjury either. Malcum v.
Burt, 276 F. Supp. 2d 664, 684 (E.D. Mich. 2003)(citing Monroe v. Smith,
197 F. Supp. 2d 753, 762 (E.D. Mich. 2001)). A habeas petition should be
granted if perjury by a government witness undermines the confidence in
the outcome of the trial. Id.
At trial, Taylor testified:
Well, I was turned around in the seat. And then when Jamel
just fell, I had seen him just pointing the gun, and then he just
rode off.
(T. 1/27/2011, p. 37)

27

When asked why she did not identify petitioner in the earlier police
report as the shooter, Taylor testified:
I was scared that something would happen to me for telling.
And, I don't know, I was just scared.
(Id., p. 43).
Petitioner failed to show that Ms. Taylor testified falsely when she
identified him as the shooter at trial. Conclusory allegations of perjury in a
habeas corpus petition must be corroborated by some factual evidence.
Barnett v. United States, 439 F.2d 801, 802 (6th Cir.1971). Petitioner
presented no evidence that Ms. Taylor’s trial testimony was false. Taylor
did not testify falsely and indicated that the inconsistency in her earlier
statement to the police was because she was afraid. Petitioner is not
entitled to relief on his third claim.
D. Claim # 7. The sentencing guidelines claim.
Petitioner claims his sentencing guidelines were incorrectly scored.
Respondent submits that petitioner’s seventh claim is unexhausted.
As a general rule, a state prisoner who seeks federal habeas relief
must first exhaust his available state court remedies before raising a claim
in federal court. 28 U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U.
S. 270, 275-78 (1971). Although exhaustion is not a jurisdictional issue, “it
28

is a threshold question that must be resolved” before a federal court can
reach the merits of any claim contained in a habeas petition. See Wagner
v. Smith, 581 F.3d 410, 415 (6th Cir. 2009).
A habeas petitioner’s failure to exhaust his state court remedies
does not deprive a federal court of its jurisdiction to consider the merits of
the habeas petition. Granberry v. Greer, 481 U.S. 129, 131 (1987). An
unexhausted claim may be adjudicated if the unexhausted claim is without
merit, such that addressing the claim would be efficient and would not
offend the interest of federal-state comity. Prather v. Rees, 822 F.2d 1418,
1422 (6th Cir. 1987); see also 28 U.S.C. § 2254(b)(2).
Petitioner’s claim that the state trial court incorrectly scored or
calculated his sentencing guidelines range under the Michigan Sentencing
Guidelines is not a cognizable claim for federal habeas review, because it
is a state law claim. See Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir.
2007); Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003); Whitfield v.
Martin, 157 F. Supp. 2d 758, 762 (E.D. Mich. 2001). Petitioner had “ no
state-created interest in having the Michigan Sentencing Guidelines
applied rigidly in determining his sentence.” See Mitchell v. Vasbinder, 644
F. Supp. 2d 846, 867 (E.D. Mich. 2009). Petitioner “had no federal

29

constitutional right to be sentenced within Michigan’s guideline minimum
sentence recommendations.” Doyle v. Scutt, 347 F. Supp. 2d 474, 485
(E.D. Mich. 2004). Any error by the trial court in calculating his guideline
score would not merit habeas relief. Id. Petitioner’s claim that the state
trial court improperly departed above the correct sentencing guidelines
range would not entitle him to habeas relief, because such a departure
does not violate any of petitioner’s federal due process rights. Austin v.
Jackson, 213 F.3d 298, 301 (6th Cir. 2000).
Petitioner further alleges that the trial court judge violated his Sixth
Amendment right to a trial by jury by using factors that had not been
submitted to a jury and proven beyond a reasonable doubt or admitted to
by petitioner when scoring these guidelines variables under the Michigan
Sentencing Guidelines.2
On June 17, 2013, the United States Supreme Court ruled that any
fact that increases the mandatory minimum sentence for a crime is an
element of the criminal offense that must be proven beyond a reasonable
doubt. See Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013).
2

Under Michigan law, only the minimum sentence must presumptively be set within the
appropriate sentencing guidelines range. See People v. Babcock, 469 Mich. 247, 255, n. 7, 666 N.W.2d
231 (2003)(citing M.C.L.A. § 769.34(2)). The maximum sentence is not determined by the trial judge but
is set by law. See People v. Claypool, 470 Mich. 715, 730, n. 14, 684 N.W.2d 278 (2004)(citing M.C.L.A. §
§ 769.8).

30

Alleyne is an extension of the Supreme Court’s holdings in Apprendi v.
New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S.
296 (2004), in which the U.S. Supreme Court held that any fact that
increases or enhances a penalty for a crime beyond the prescribed
statutory maximum for the offense must be submitted to the jury and
proven beyond a reasonable doubt. In reaching this conclusion, the
Supreme Court overruled Harris v. United States, 536 U.S. 545 (2002), in
which the Supreme Court had held that only factors that increase the
maximum, as opposed to the minimum, sentence must be proven beyond
a reasonable doubt to a fact finder. Alleyne, 133 S. Ct. at 2157-58. The
Supreme Court, however, indicated that its decision did not mean that
every fact influencing judicial discretion in sentencing must be proven to a
jury beyond a reasonable doubt. Id. at 2163.
Alleyne is inapplicable to petitioner’s case, because the Supreme
Court’s holding in “Alleyne dealt with judge-found facts that raised the
mandatory minimum sentence under a statute, not judge-found facts that
trigger an increased guidelines range,” which is what happened to
petitioner in this case. See United States v. Cooper, 739 F.3d 873, 884
(6th Cir. 2014); see also United States v. James, 575 F. App’x 588, 595

31

(6th Cir. 2014)(collecting cases and noting that at least four post-Alleyne
unanimous panels of the Sixth Circuit have “taken for granted that the rule
of Alleyne applies only to mandatory minimum sentences.”); Saccoccia v.
Farley, 573 F. App’x 483, 485 (6th Cir. 2014)(“But Alleyne held only that
‘facts that increase a mandatory statutory minimum [are] part of the
substantive offense.’...It said nothing about guidelines sentencing
factors....”). The Sixth Circuit, in fact, has ruled that Alleyne did not decide
the question whether judicial fact finding under Michigan’s indeterminate
sentencing scheme violates the Sixth Amendment. See Kittka v. Franks,
539 F. App’x 668, 673 (6th Cir. 2013).
The Court is aware that the Michigan Supreme Court recently relied
on the Alleyne decision in holding that Michigan’s Sentencing Guidelines
scheme violates the Sixth Amendment right to a jury trial. See People v.
Lockridge, 498 Mich. 358; 870 N.W.2d 502 (Mich. 2015). However,
petitioner cannot rely on Lockridge to obtain relief with this Court. The
AEDPA standard of review found in 28 U.S.C. § 2254 (d)(1) prohibits the
use of lower court decisions in determining whether the state court
decision is contrary to, or an unreasonable application of, clearly
established federal law. See Miller v. Straub, 299 F.3d 570, 578-579 (6th

32

Cir. 2002). “The Michigan Supreme Court’s decision in Lockridge does
not render the result ‘clearly established’ for purposes of habeas review.”
Haller v. Campbell, No. 1:16-CV-206, 2016 WL 1068744, at *5 (W.D. Mich.
Mar. 18, 2016). In light of the fact that the Sixth Circuit has ruled that
Alleyne does not apply to sentencing guidelines factors, reasonable jurists
at a minimum could disagree about whether Alleyne applies to the
calculation of Michigan’s minimum sentencing guidelines. Id. at *6.
“Alleyne therefore did not clearly establish the unconstitutionality of the
Michigan sentencing scheme and cannot form the basis for habeas corpus
relief.” Id.; see also Perez v. Rivard, No. 2:14-CV-12326, 2015 WL
3620426, at *12 (E.D. Mich. June 9, 2015)(petitioner not entitled to habeas
relief on claim that his sentencing guidelines were scored in violation of
Alleyne). Petitioner is not entitled to relief on his seventh claim.
E. Claim # 8. The judicial misconduct claim.
Petitioner claims that he was denied a fair trial because of judicial
misconduct. Respondent contends that petitioner’s eighth claim is
procedurally defaulted.
When the state courts clearly and expressly rely on a valid state
procedural bar, federal habeas review is also barred unless petitioner can

33

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 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 claim 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). “‘[A]ctual innocence’ means factual innocence, not
mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 624
(1998).
Respondent contends that petitioner’s eighth claim is procedurally
defaulted because petitioner failed to object to the alleged misconduct at
the trial level.

34

Petitioner claims that the trial court judge’s statements to Davies
denied him of a fair trial. At trial, Davies was asked by the prosecutor
whether she saw petitioner in the courtroom and to point to where he was
seated and indicate what he was wearing. Davies did not verbally answer
the prosecutor’s questions, but instead began crying. The trial court judge
excused the jury for lunch and thereafter addressed Davies:
Young lady, let me tell you something. I don’t know why
you’re crying or what you’re afraid of, but you’d better get afraid
of me because I’m not going to spend a lot of time begging you
to answer questions, because I can send you to jail, and I will do
so.
(T. 1/28/2011, p. 103)
In rejecting his claim, the Michigan Court of Appeals indicated that
because petitioner did not object to the challenged remarks during his trial,
appellate relief was precluded absent a showing of plain error which
affected petitioner’s substantial rights. People v. Robinson, 2015 WL
6438239, at *13. In this case, the Michigan Court of Appeals clearly
indicated that by failing to object at trial, petitioner had not preserved his
claim pertaining to the comments made by the trial court judge to Davies.
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

35

default. Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000). Instead,
this court should view the Michigan Court of Appeals’ review of 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 eighth claim is
therefore procedurally defaulted.
In the present case, petitioner has not offered any reasons to excuse
the procedural default. Because petitioner has not alleged or
demonstrated any cause for his procedural default, it is unnecessary to
reach the prejudice issue regarding his defaulted claim. Smith, 477 U.S. at
533; see also Malcum v. Burt, 276 F. Supp. 2d 664, 677 (E.D. Mich.
2003). Additionally, petitioner has not presented any new reliable
evidence to support any assertion of innocence which would allow this
Court to consider petitioner’s eighth claim as a ground for a writ of habeas
corpus in spite of the procedural default. Petitioner’s sufficiency of
evidence claim is insufficient to invoke the actual innocence doctrine to the
procedural default rule. Malcum, 276 F. Supp. 2d at 677. 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 declines
to review petitioner’s procedurally defaulted claim on the merits. Id.

36

IV. Conclusion
The Court denies the petition for a writ of habeas corpus.
A habeas petitioner must receive a certificate of appealability
(“COA”) in order to appeal the denial of a habeas petition for relief from
either a state or federal conviction.3 28 U.S.C. §§ 2253(c)(1)(A), (B). A
court may issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When a federal district court rejects a habeas claim on the merits, the
substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the district court’s assessment of the
constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S.
473, 484-85 (2000).
This Court denies a certificate of appealability because reasonable
jurists would not find this Court’s assessment of the claims to be debatable
or wrong. See Slack v. McDaniel, 529 U.S. at 484.
Although this Court will deny a certificate of appealability to
petitioner, the standard for granting an application for leave to proceed in

3

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

37

forma pauperis (IFP) is a lower standard than the standard for certificates
of appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D.
Mich. 2002). Whereas a certificate of appealability may only be granted if
petitioner makes a substantial showing of the denial of a constitutional
right, a court may grant IFP status if it finds that an appeal is being taken
in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a).
“Good faith” requires a showing that the issues raised are not frivolous; it
does not require a showing of probable success on the merits. Id, 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.
V. ORDER
IT IS ORDERED that:
(1) the Petition for a Writ of Habeas Corpus is DENIED.
(2) a Certificate of Appealability is DENIED.

38

(3) Petitioner will be GRANTED leave to appeal in forma pauperis.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: July 27, 2018
I hereby certify that a copy of the foregoing document was served
upon counsel of record on July 27, 2018, by electronic and/or
ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

39