Roby v. Burt
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying 13 MOTION for Evidentiary Hearing and for the Appointment of Counsel, and Declining to Issue a Certificate of Appealability or Leave to Appeal In Forma Pauperis. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil No. 2:16-CV-12727
HONORABLE SEAN F. COX
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS, DENYING THE MOTION FOR AN EVIDENTIARY HEARING AND FOR
THE APPOINTMENT OF COUNSEL, AND DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Dyterius Roby, (“petitioner”), presently confined at the Muskegon Correctional Facility in
Muskegon, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
in which he challenges his conviction for assault with intent to commit murder, Mich. Comp. Laws,
§ 750.83; carrying a weapon with unlawful intent, Mich. Comp. Laws, § 750.226; felon in
possession of a firearm, Mich. Comp. Laws, § 750.224f; and felony-firearm, Mich. Comp. Laws,
§ 750.227b. For the reasons that follow, the petition for writ of habeas corpus is DENIED.
Petitioner was convicted following a jury trial in the Saginaw County Circuit Court. This
Court recites verbatim the relevant facts regarding petitioner’s conviction from the Michigan Court
of Appeals’s opinion, 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):
This case arises out of a shooting incident that occurred on the morning of April 24,
2009. Cornelius Owens testified that at approximately 10:15 a.m. that morning, he
was walking his dog into his backyard after visiting with his neighbors. As he
entered the backyard, he encountered Roby, who began shooting at him. Owens ran
out of the yard and across the street as Roby gave chase and continued to shoot at
him. Roby’s gun then became jammed, which gave Owens a chance to hide behind
a garage. Having apparently lost track of Owens, Roby then left the scene. Owens
suffered several gunshot wounds, for which he was treated at the hospital. The
shooting was allegedly in retaliation for a recent altercation that had occurred
between Owens and two other men from the neighborhood.
Owens’s testimony was corroborated by eye witness Maurice Harris, who testified
that he saw Roby chasing and shooting at Owens. Further, Detective Jason Ball, who
the trial court qualified as an expert in forensic analysis of cellular data, testified that
a cellular phone believed to be in Roby’s possession on the morning of April 24th
was tracked as having been in the vicinity of the shooting between approximately
9:30 and 10:30 a.m.
Roby testified in his own defense and denied any involvement in the shooting. He
testified that he was asleep at his girlfriend’s house until approximately 10:40–11:00
a.m. Roby also testified that the cellular phone that was introduced into evidence as
allegedly belonging to him actually belonged to his brother. And although Roby
admitted that he sometimes used his brother’s phone, he denied he had possession
of it on the day of the shooting. However, Roby’s girlfriend contradicted his
testimony, testifying that he had that phone with him when she saw him on the
afternoon of April 24, 2009.
People v. Roby, No. 301608, 2011 WL 5067252, at * 1 (Mich. Ct. App. Oct. 25, 2011).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 491 Mich. 909; 810 N.W. 2d 907
Petitioner filed a post-conviction motion for relief from judgment, which was denied. People
v. Roby, No. 09-032607-FC (Saginaw Cty.Cir.Ct., July 2, 2014). The Michigan appellate courts
denied petitioner leave to appeal. People v. Roby, No. 324411 (Mich.Ct.App. Mar. 12, 2015); lv.
Den. 499 Mich. 913, 827 N.W. 2d 287 (2016).
Petitioner filed a petition for writ of habeas corpus, seeking relief on the following grounds:
I. Where newly discovered evidence demonstrates Petitioner’s actual innocence,
should this gateway showing provide equitable tolling?
II. The state court erred constitutionally when it allowed an unqualified expert to
III. Defense counsel was constitutionally ineffective for failing to request a
stipulation that Mr. Roby was ineligible to possess a firearm and not objecting to
testimony of his parole and prior prison status[.]
IV. The prosecutor’s numerous instances of prosecutorial misconduct deprived
Petitioner of a fair trial, hence, habeas relief is appropriate under both, 28 USC
V. The trial court’s instruction to the jury that they may infer that Petitioner’s intent
to kill the victim could be proved if he used a dangerous weapon violated his Sixth
Amendment rights and the Morissette v United States, 342 US 246 (1952), decision.
VI. Petitioner was denied his right to effective assistance of counsel due to counsel’s
failure to investigate and call several eyewitnesses who would have testified that
Petitioner was not the shooter.
VII. Petitioner was denied the right to effective assistance of appellate counsel
contrary to the Sixth Amendment which resulted in issues with substantial merit
being overlooked which was prejudicial to Petitioner’s appeal of right, had the issues
been raised Petitioner’s conviction would have been vacated.
Respondent filed a motion to dismiss the petition on the ground that it was filed outside of
the one year statute of limitations contained in 28 U.S.C. § 2244(d)(1). This Court denied the
motion to dismiss, finding that the petition was timely filed. Respondent was ordered to file an
answer addressing the merits of the petition within sixty days of the Court's order. Roby v. Burt, No.
2:16-CV-12727, 2017 WL 1091257 (E.D. Mich. Mar. 23, 2017).
Respondent has now filed an answer to the petition. Petitioner filed a reply to the answer
as well as a motion for an evidentiary hearing and for the appointment of counsel.
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
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, 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)). The Supreme Court
has emphasized “that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or theories
supported or...could have supported, the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision” of the Supreme Court. Id.
“[I]f this standard is difficult to meet, that is because it was meant to be.” Harrington, 562
U.S. at 102. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar
federal courts from relitigating claims that have previously been rejected in the state courts, it
preserves the authority for a federal court to grant habeas relief only “in cases where there is no
possibility fairminded jurists could disagree that the state court’s decision conflicts with” the
Supreme Court’s precedents. Id. Indeed, “Section 2254(d) reflects the view that habeas corpus is
a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Id. at 102-03 (citing Jackson v. Virginia, 443 U.S. 307,
332, n. 5 (1979))(Stevens, J., concurring in judgment)). Therefore, in order to obtain habeas relief
in federal court, a state prisoner is required to show that the state court’s rejection of his or her claim
“was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Id. at 103.
A. Claim # 1. The newly discovered evidence claim.
Petitioner first claims that he has newly discovered evidence in the form of affidavits from
Mr. Patrick Atkins and Mr. Johnny King that establishes his actual innocence, so as to equitably toll
the limitations period in this case.
This Court previously determined that the petition was timely filed, thus, any equitable
tolling argument is now moot and need not be addressed by the Court. See e.g. Scott v. Collins, 286
F. 3d 923, 931 (6th Cir. 2002).
To the extent that petitioner raises a freestanding actual innocence claim, he is not entitled
to habeas relief.
In Herrera v. Collins, 506 U.S. 390, 400 (1993), the Supreme Court held that a habeas
petitioner’s claim of actual innocence based on newly discovered evidence fails to state a claim for
habeas relief in the absence of any independent constitutional violation occurring in the underlying
state criminal proceeding. Federal habeas courts sit to ensure that individuals are not imprisoned
in violation of the constitution, not to correct errors of fact. Id., see also McQuiggin v. Perkins, 133
S. Ct. 1924, 1931 (2013)(“We have not resolved whether a prisoner may be entitled to habeas relief
based on a freestanding claim of actual innocence”). Freestanding claims of actual innocence are
non-cognizable on federal habeas review. See Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir.
2007)(collecting cases). Petitioner is not entitled to relief on any such claim.
B. Claim # 2. The expert witness claim.
Petitioner next contends that the trial court judge erred in ruling that Detective Jason Ball
could testify as an expert on cellular phone data, because Detective Ball lacked the qualifications
to testify as an expert and his testimony was not supported by the requisite underlying data.
The Michigan Court of Appeals rejected petitioner’s claim:
During trial, defense counsel requested a separate record in order to question
Saginaw City Police Department Detective Jason Ball regarding his expertise in
forensic analysis of cellular data. Detective Ball testified that he had received special
training relating to forensic analysis of cellular data. He explained that, although he
had no formal certification, in October 2007, he took a two-day training class on the
subject. Detective Ball claimed that at that time, that class was the only training
available for forensic data analysis of cellular phones. He further explained that
during that training he learned about the history of cell phones and cellular service
systems, how to retrieve and analyze data that is stored by cell phone companies, and
how to track cell phones to pinpoint locations at the time of usage. Detective Bell
stated that, since that training, he had worked on numerous cases in which he was
asked to analyze data to determine “where a particular cell phone was at the time that
certain calls were made[.]” And in one homicide case, he testified at trial regarding
the location of several cell phones at the time of the murder, which led to several
Detective Ball then testified regarding the process of his data analysis. According
to Detective Bell, he first looks at the phone records provided by the servicing
company, in this case Sprint Nextel. Each company’s records are different, but,
based on his training, he is able to decipher when certain calls were sent or received,
and when each call ended. Based on those records he then looks at global
positioning system (GPS) coordinates to locate the specific tower(s) through which
the call was sent. Detective Ball also testified that, although he was not an engineer,
he was capable of testifying to signal strength of towers in order to determine which
tower a call would most likely “hit[ ] off” at any particular location.
Defense counsel objected to Detective Ball being qualified as an expert, taking issue
with that fact that Detective Ball could not determine what tower a call hit off of
without looking at other records that were not admitted into evidence. However,
after noting the objection, the trial court allowed Detective Ball to testify.
After explaining his qualifications and process to the jury, Detective Ball testified
that, as part of the investigation in this case, he was asked to determine where Roby’s
cell phone was at the time of the shooting. Based on his assessment of the data, he
concluded that the cell phone was in the area of the shooting at the time of the
incident on April 24, 2009. Specifically, Detective Ball testified that the phone was
used 12 times between 9:41 a.m. and 10:28 a.m. in the vicinity of shooting.
According to Detective Ball, at or around 10:30 a.m., the phone then started moving
away from the area of the shooting. Detective Ball also testified that several of the
calls were made to and from a phone number belonging to one of the men with
whom Owens had the preceding altercation. On rebuttal, Detective Ball further
testified that he was able to track Roby’s phone as being in the areas where his
girlfriend testified they went on the afternoon of April 24th.
Roby argues that the trial court erred in allowing Detective Ball to testify as an
expert in cell phone data analysis because he was “severely lacking in
qualifications.” Specifically, Roby takes issue with that facts that Detective Ball’s
training consisted of only one two-day training course, he was not an engineer
qualified to testify in depth about tower signal strength, and it was necessary for
Detective Ball to look at records other than the cell phone records themselves to
determine the location of the subject tower(s). But we find Roby’s objections
without merit. Detective Ball testified that the training he received was the only
training available at the time and that he had used that training in numerous other
cases, including one in which his testimony aided in the conviction of several
murderers. Moreover, he explained in detail his process of analyzing the cell phone
records and then cross-referencing them with relevant GPS data to pinpoint the tower
through which a particular cell phone call was transferred. We therefore conclude
that the trial court did not abuse its discretion in qualifying Detective Ball as an
expert and allowing him to testify regarding the location of Roby’s cell phone at the
time of the shooting.
People v. Roby, 2011 WL 5067252, at * 2–3.
Federal habeas corpus relief does not lie for errors of state law. Lewis v. Jeffers, 497 U.S.
764, 780 (1990). 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).
The admission of expert testimony in a state trial involves an issue of state law which does
not warrant federal habeas relief, unless the evidence violates due process or some other federal
constitutional right. See Keller v. Larkins, 251 F. 3d 408, 419 (3rd Cir. 2001). A federal district
court cannot grant habeas relief on the admission of an expert witness’ testimony in the absence of
Supreme Court precedent which shows that the admission of that expert witness’ testimony on that
particular subject violates the federal constitution. See Wilson v. Parker, 515 F.3d 682, 705-06 (6th
Petitioner relies primarily on the United States Supreme Court case of Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993) to support his claim that Detective Ball’s expert testimony
was inadmissible. However, the Supreme Court’s holding in Daubert involves the application of
the Federal Rules of Evidence, which are not relevant to determining the constitutionality of a state
court conviction. See Norris v. Schotten, 146 F. 3d 314, 335 (6th Cir. 1998); see also Anderson v.
Jackson, 567 F. Supp. 2d 973, 983 (E.D. Mich. 2008)(Daubert decision concerning the admission
of expert testimony was concerned with the Federal Rules of Evidence and, thus, did not apply to
state criminal proceedings).
Petitioner also argues that his claim is supported by the Sixth Circuit’s holding in Ege v.
Yukins, 485 F.3d 364 (6th Cir. 2007).
Petitioner cannot use the Ege decision to obtain habeas relief.
First, a habeas court can only rely on the holdings of the United States Supreme Court as
they existed at the time of the relevant state court decision to determine whether that decision was
contrary to, or an unreasonable application of, clearly established federal law. Mitzel v. Tate, 267
F. 3d 524, 530-31 (6th Cir. 2001). A habeas court cannot look to the decisions of this circuit, or
other courts of appeals, when deciding whether a state court’s decision was contrary to, or an
unreasonable application of, clearly established federal law. Id. Sixth Circuit precedent thus does
not constitute “clearly established Federal law, as determined by the Supreme Court” and thus
“cannot form the basis for habeas relief under [the] AEDPA.” Parker v. Matthews, 567 U.S. 37,
48–49 (2012). The Sixth Circuit’s holding in Ege cannot serve as a basis for granting petitioner
habeas relief. See Blackmon v. Booker, 696 F.3d 536, 553 (6th Cir. 2012).
Secondly, the expert evidence that was admitted in Ege was vastly different from Detective
Ball’s testimony. “Ege held that the admission of expert testimony without any foundation—that
a bite mark on the victim established 3.5-million-to-one odds that Ege was the murderer—violated
Ege’s due process right to a fair trial under Chambers v. Mississippi, 410 U.S. 284 . . . (1973). . ..”
Desai v. Booker, 732 F.3d 628, 632 (6th Cir. 2013)(ellipse added). In the present case, Detective
Ball’s expert testimony on cellular phone data was supported by his education and training,
sufficient facts and data, and Detective Ball’s testimony on how he applied reliable principles and
methods that he learned from his training to the facts and data in this case. Moreover, Detective
Ball’s analysis of data to show the approximate location of a phone, which petitioner denied
possessing on the day of the shooting “has few parallels” to “[f]oundation-free expert testimony that
there is a 3.5-million-to-one likelihood of a match between a criminal defendant and a murderer .
. . .” Desai, 732 F.3d at 632 (ellipse added). Petitioner is not entitled to habeas relief on his second
C. Claims # 3 and # 6. The ineffective assistance of trial counsel claims.
Petitioner in his third and sixth claims alleges that trial counsel was ineffective.
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 Amendment. Strickland v. Washington, 466
U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel’s
behavior lies within the wide range of reasonable professional assistance. Id. In other words,
petitioner must overcome the presumption that, under the circumstances, the challenged action might
be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. “Strickland’s test for prejudice
is a demanding one. ‘The likelihood of a different result must be 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).
More importantly, on habeas review, “the question ‘is not whether a federal court believes
the state court’s determination’ under the Strickland standard ‘was incorrect but whether that
determination was unreasonable-a substantially higher threshold.’” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal question
is whether the state court’s application of the Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell below Strickland’s standard.” Harrington
v. Richter, 562 U.S. at 101. 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,
In his third claim, petitioner argues that trial counsel was ineffective for failing to seek a
stipulation that petitioner was ineligible to possess a firearm and for failing to object to testimony
about the nature of his prior convictions, as well as his parole and prior prison status.
The Michigan Court of Appeals rejected petitioner’s claim:
Roby argues that defense counsel’s failure to stipulate to the underlying felonies was
ineffective because it opened the door for the jury to hear that he was on parole for
four prior felonies involving drugs and unarmed robbery. Roby argues that this
testimony was clearly prejudicial. However, based on our review of the record, we
cannot conclude that defense counsel was ineffective for allowing the testimony.
Because a stipulation could have left the jury wondering whether Roby had actually
been convicted of more serious, violent offenses, the decision to not stipulate was a
valid trial tactic.
People v. Roby, 2011 WL 5067252, at * 4.
The Michigan Court of Appeals’ rejection of petitioner’s ineffective assistance of counsel
claim was reasonable. Trial counsel was not ineffective for failing to stipulate that petitioner had
prior felony convictions, because it might have been sound strategy for counsel to allow petitioner’s
prior convictions to be admitted, in order to prevent the jurors from speculating that petitioner might
have been convicted of more serious offenses. See e.g. Bradley v. Birkett, 192 F. App’x. 468, 476
(6th Cir. 2006). Moreover, petitioner was not prejudiced by counsel’s failure to stipulate to the prior
convictions, in light of the significant evidence of petitioner’s guilt. Id. Petitioner is not entitled to
relief on his third claim.
In his sixth claim, petitioner argues that that trial counsel was ineffective in failing to call
listed defense witnesses Patrick Atkins, Keonte Emerson, and Jonathon McAffee to testify.
Petitioner also claims that counsel was ineffective for failing to interview and call Johnny King to
testify. Petitioner raised this ineffective assistance of counsel claim for the first time in his original
and supplemental post-conviction motions for relief from judgment.
Regarding Keonte Emerson and Jonathon McAffee, petitioner has provided no affidavits to
either the state courts or to this Court regarding the nature of their proposed testimony. 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). By failing to
present any evidence from Mr. Emerson or Mr. McAffee to the state courts in support of his
ineffective assistance of claim, petitioner is not entitled to an evidentiary hearing on his ineffective
assistance of counsel claim with this Court. See Cooey v. Coyle, 289 F. 3d 882, 893 (6th Cir.
2002)(citing 28 U.S.C. § 2254(e)(2)(A)(ii)). Petitioner failed to attach any offer of proof or any
affidavits sworn by these proposed witnesses. Petitioner 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 counsel’s failure to call Mr.
Emerson or Mr. McAffee 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).
Petitioner claims that trial counsel was ineffective for failing to call Patrick Atkins or Johnny
King, because he claims that these two men would testify that they were present at the time of the
shooting and would testify that petitioner was not the shooter. Petitioner also claims that Mr. King
would testify that Mr. Harris was not present at the time of the shooting and thus was lying about
witnessing petitioner shoot the victim.
Mr. Atkins in his affidavit claims that he was present on the morning of the shooting and
“clearly” saw a man with a mask covering his face going after Mr. Owens. Mr. Atkins claims that
petitioner was not present on the morning of April 24, 2009, the date of the shooting nor did he shoot
at Mr. Owens. Mr. Atkins claims that petitioner is innocent. See Affidavit of Mr. Atkins,
Petitioner’s Appendix F. Mr. King in his affidavit claims that he was present at the crime scene on
the morning of April 24, 2009 with Patrick Atkins, Keante Emerson, Jonathon McAffee, Donovan
Yancy, and Cornelius Owens, but that petitioner was not there. Mr. King claims that he saw a man
about 6'0 to 6'1 wearing a mask chasing Mr. Owens. Mr. King claims that he could not tell whether
the person chasing Mr. Owens was a man or a woman because the person was wearing a mask. Mr.
King claims that it would be “impossible” to say that petitioner was the shooter because the shooter
was wearing a mask. See Affidavit of Mr. King, Petitioner’s Appendix G.
The trial judge initially rejected the argument that Mr. Atkins and Mr. King would have
provided exculpatory evidence when rejecting petitioner’s related newly discovered evidence claim:
At trial, both the victim Cornelius Owens and witness Maurice Harris positively
identified Defendant as the shooter. (TT2, 47, 109-110). Owens testified that as he
was going to put his dog in the back yard, he encountered a male in black using his
hand to mask his face. (TT2, 108). When the shooter's gun jammed he was able to
see Defendant's face because he had to use both hands. (TT2, 116). He was also able
to notice the cut or mark under Defendant’s left eye as he came toward him which
he also identified in court. (TT2, 131-132). Owens’s fiancee testified that before he
went to surgery Owens told her he knew who shot him and warned her not to go back
home. (TT2, 167). The day after the surgery, he told her that he was shot by “D.T.”
(TT2, 168). Officer Ian Wengler testified that on April 26 Owens told him it was a
person name “D.T.” that shot him, but he did not know his real name. (TT2, 176).
Detective Matt Gerow testified that Owens subsequently identified a photograph of
Dyterius Roby as “D.T.” in a photo lineup. (TT3, 24). Evidence was also presented
that Defendant has a “D” tattooed on his right arm and a “T” tattooed on the other.
Maurice Harris testified as to having made his observations from a neighboring
porch. (TT2, 46). He heard a shot, and then saw Cornelius Owens run out of the
back yard. (TT2, 74). When Owens got to the middle of the street, Harris saw the
shooter coming out of the back yard. (TT2, 74). The shooter was wearing all black
with the hoodie pulled up. (TT2, 72). He recognized the Defendant as the shooter
when the gun jammed and he took his hand off his face. (TT2, 47). He was familiar
with Defendant, having socialized with him in the past. (TT2, 54, 62).
Having considered the substance of the new evidence, the Court agrees with the
People that the evidence tendered is not likely to have led to a different result
considering the weight of the evidence presented by the prosecution and the fact that
it could only work to possibly impeach the witness testimony. The tendered
evidence from Atkins and King is not directly exculpatory as neither witness
purports to be able to testify that the shooter was not the Defendant, while both the
victim Cornelius Owens and witness Maurice Harris testified at trial as to their
identification of Roby as the shooter. That the affiants would testify Roby was not
present with them prior to the shooting is also of no exculpatory value where the
evidence presented at trial was that the shooter was in the victim’s backyard.
People v. Roby, No. 09-032607-FC, * 5-6 (Saginaw Cty.Cir.Ct., July 2, 2014).
The trial judge later rejected petitioner’s ineffective assistance of trial counsel claim for the
same reasons he rejected the newly discovered evidence claim, namely, that the witnesses could not
provide exculpatory evidence. Id., * 20.
Petitioner is not entitled to habeas relief on his claim for several reasons.
First, the trial judge reasonably concluded that neither Mr. Atkins nor Mr. King could
provide exculpatory testimony because neither man could testify with certainty that petitioner was
not the shooter, in light of their statements that the shooter was wearing a mask. A defense counsel
has no obligation to present evidence or testimony that would not have exculpated the defendant.
See Millender v. Adams, 376 F. 3d 520, 527 (6th Cir. 2004)(internal quotation omitted).
Secondly, to the extent that petitioner claims that Mr. Atkins and Mr. King could have
impeached the credibility of Mr. Owens or Mr. Harris, he would not be entitled to relief because
such evidence would have been cumulative of additional impeachment evidence offered by defense
counsel at trial.
Mr. Harris admitted on cross-examination from defense counsel that he initially told
Detective Gerow that he did not recognize the shooter and did not want to talk to the detective. Mr.
Harris admitted that he told Detective Gerow that if he could him out of jail, Mr. Harris would be
willing to tell the detective what he wanted to hear. (Tr. 8/25/10, pp. 79-81). Harris admitted that
in he told Detective Gerow in his second statement that the people at the scene of the shooting
started talking about who the shooter was before the police arrived. Mr. Harris admitted that his
identification of petitioner may have been based in part on what the other persons at the shooting
scene said. (Id., p. 82). Mr. Harris also conceded that he had heard other persons suggest that his
brother Dana was involved with the shooting and he was concerned when he spoke to the police
about preventing his brother from being implicated in the crime. (Id., p. 83).
Mr. Owens admitted on cross-examination that when he called 911 for help at the time of
the shooting, he told the operator that he did not know who shot him. Mr. Owens admitted that he
did not like snitching on people. (Tr. 8/25/10, pp. 147-48). Owens later admitted that he was a
member of a gang, that he had pulled a gun on the Owens brothers, and that although he was
ineligible to carry a firearm because of a prior felony conviction, he had not been charged with a
crime. (Id., pp. 156-59). Mr. Owens later admitted that he told Officer Wenger that he thought that
Ronald or Steve Owens were involved in the shooting. (Id., pp. 162-63).
Counsel further obtained admissions from Officer Ian Wegner that when he spoke to Mr.
Cornelius Owens at the crime scene while he was being treated by the paramedics, Mr. Owens gave
him the description of an unknown suspect. When Officer Wegner spoke with Mr. Owens later at
the hospital, Mr. Owens thought that Ron or Steve Owens had something to do with the shooting,
but was unsure whether one of these men was the shooter. (Tr. 8/25/10, pp. 178-83).
Counsel later cross-examined Detective Gerow. Detective Gerow admitted that neither Mr.
Owens nor his girlfriend told him that Mr. Owens identified the shooter prior to him going into
surgery. (Tr. 8/26/10, p. 54). Detective Gerow admitted that Mr. Owens only mentioned in a
subsequent police interview that Mr. Maurice Harris was present at the time of the shooting.
Detective Gerow indicated that Mr. Owens had not been initially forthcoming as to who was at the
crime scene when the police initially spoke with him. Detective Gerow admitted that in his initial
police report he did not indicate that Mr. Owens said that Maurice Harris had been present at the
time of the shooting. (Id., pp. 62-64). Detective Gerow admitted that he initially contacted Mr.
Harris when he was not in jail. Mr. Harris told Detective Gerow he knew nothing about the
shooting, but said that his brother Dana might know about the shooting. Detective Gerow spoke to
Dana Harris at the jail and admitted that after speaking to him, went to a judge and got him released
from jail. Detective Gerow indicated that he spoke with Mr. Maurice Harris three months later after
he had now been locked up in jail. Detective Gerow testified that Mr. Maurice Harris was crying,
scared, and hysterical and wanted to get out of jail. Detective Gerow admitted that he told Harris
that he would try to get him out of jail. It was at this point that Mr. Harris made his statement
implicating petitioner as the shooter. Detective Gerow later obtained Mr. Harris’ release from jail.
(Id., pp. 64-69).
Defense counsel’s failure to call Mr. Atkins or Mr. King to testify at petitioner’s trial was
a matter of reasonable trial strategy, and thus did not constitute ineffective assistance of counsel,
where counsel instead chose to rely on discrediting the prosecution’s witnesses by challenging the
strength of their 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)).
Petitioner is also not entitled to relief on his claim that counsel was ineffective for failing to
call Mr. Atkins or Mr. King as defense witnesses, because such evidence would have been
cumulative of evidence that had already been introduced to challenge the credibility of the victim
and Mr. Harris. Petitioner was not prejudiced by counsel’s failure to call Mr. Atkins or Mr. King
because their testimony was cumulative of other evidence and witnesses presented at trial in support
of petitioner’s claim that Mr. Owens and Mr. Harris were not credible witnesses, so as to challenge
their identification of petitioner as the shooter. Wong, 558 U.S. at 22-23; see also United States v.
Pierce, 62 F. 3d 818, 833 (6th Cir. 1995). In this case, the jury had significant evidence to call into
question the two eyewitnesses’ credibility and the reliability of their identification of petitioner.
Because the jury was “well acquainted” with evidence that would have supported petitioner’s claim
that Mr. Owens and Mr. Harris were not believable, additional evidence in support of petitioner’s
defense “would have offered an insignificant benefit, if any at all.” Wong, 558 U.S. at 23. Petitioner
is not entitled to relief on his sixth claim.
D. Claim # 4. The prosecutorial misconduct claim.
Petitioner claims he was denied a fair trial because of prosecutorial 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, 567 U.S. 37, 48 (2012)(quoting Harrington, 562
U.S. at 103).
Petitioner first contends that the prosecutor committed misconduct by introducing evidence
that petitioner had tattoos. Petitioner claims that this evidence was irrelevant and was introduced
solely to establish his propensity to commit the charged offenses.
The Sixth Circuit has observed that there are no Supreme Court cases which hold 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 may have introduced
irrelevant evidence would not entitle petitioner to habeas relief. Id.
Petitioner next contends that the prosecutor committed misconduct by introducing the
perjured testimony of Mr. Owens, Mr. Harris, and Detective Gerow.
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 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).
Petitioner’s primary evidence in support of his perjury claim are the inconsistencies between
Mr. Owens’ preliminary examination testimony and his trial testimony, as well as inconsistencies
between Mr. Owens’ trial testimony and Mr. Harris’ trial testimony. 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)).
Petitioner next contends that Maurice Harris committed perjury when he denied that the
prosecutor had dismissed a prior weapons charge against him, even though Mr. Harris admitted that
the prosecutor had dismissed a possession of marijuana charge against him. However, as the trial
judge noted in rejecting this claim on post-conviction review, see People v. Roby, No. 09-032607FC, * 10, the judge granted defense counsel’s request to take judicial notice of the fact that Mr.
Harris had a carrying a concealed weapons charge, as well as a possession of marijuana charge, that
was dismissed. Defense counsel later mentioned the dismissed weapons charge in his summation
to the jury. In the present case, the prosecution’s failure to correct Mr. Harris’ false testimony about
his prior dismissed weapons charge does not entitle petitioner to habeas relief, in light of the fact that
petitioner’s own counsel had access to Mr. Harris’ prior weapons charge and was able to introduce
this into evidence. See e.g., United States v. Alli, 344 F.3d 1002, 1008 (9th Cir. 2003).
Petitioner lastly claims that Detective Gerow testified falsely when he indicated that the only
reason that Mr. Harris was in jail was because of his failure to pay child support and a prior drug
charge, but failed to acknowledge the pending weapons charge against Mr. Harris.
Petitioner has presented no evidence to this Court to suggest that Detective Gerow testified
falsely. 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). More importantly,
assuming that Detective Gerow testified falsely about his lack of knowledge of Mr. Harris’ prior
weapons charge, petitioner is still not entitled to habeas relief on his perjury claim, because he has
failed to show that the prosecutor knew that Detective Gerow testified falsely. See Rosencrantz v.
Lafler, 568 F. 3d 577, 587 (6th Cir. 2009).
Petitioner next contends that the prosecutor and police intimidated a witness from testifying
for the defense. Petitioner wanted to call Dernetrick Mounger to testify regarding the weapons
charge that petitioner claims was Maurice Harris’ main reason for testifying against petitioner.
The judge rejected this claim, when denying petitioner’s post-conviction motion:
Defendant also argues that Detective Gerow intimidated witness Dernetrick Mounger
from testifying for the defense and that such intimidation by law enforcement may
be attributed to the prosecution. Defendant’s argument is unsupported where a
special record was developed to establish the reasons Mounger was refusing to
testify which fails to substantiate any claim that intimidating police tactics were the
cause of his refusal to testify. Mounger testified as to perceived “pressure” from a
whole host of sources, including defense counsel, the police, and the fact he was
given a court-appointed lawyer even though he did not want to talk. Upon inquiry
from defense counsel, Mounger testified, in pertinent part:
Q What pressure are you under?
A Well, right now, you gonna say you all gave me a lawyer that I
don’t want. You know what I’m saying? I told you I ain’t gonna
talk, but you trying to make me talk so that’s enough to be under
pressure don't you think?
Q So the only kind of pressure you’re feeling -A I’m feeling all kinds of pressure.
Q You’re feeling pressure from me?
A Pressure from you, the police, him, this guy right here, everybody.
I don’t want to talk. I want to go back to to my jail cell.
An offer of proof was also made that testimony could be taken that either Ronald or
Steve Owens made a comment to Mounger the day before when they happened
across Det. Gerow and Mounger while being transported. (TT4, 57). The record
plainly fails to sustain conjecture that Mounger’s refusal to testify was attributable
to speculated acts of intimidation by Detective Gerow. Therefore, no entitlement to
relief has been shown.
People v. Roby, No. 09-032607-FC, * 11.
A criminal defendant has a due process right to present witnesses to establish a defense to
the charges. Washington v. Texas, 388 U.S. 14, 19 (1967). However, “To establish a claim of
witness intimidation, a defendant must present ‘government conduct which amounts to substantial
interference with a witness’ free and unhampered determination to testify’ and must prove that any
inappropriate conduct was not harmless.” United States v. Meda, 812 F.3d 502, 517 (6th Cir.
2015)(quoting United States v. Stuart, 507 F.3d 391, 398 (6th Cir. 2007)).
Petitioner is not entitled to habeas relief for two reasons.
First, petitioner failed to show that Mr. Mounger’s decision not to testify was attributable
solely to the prosecutor or Detective Gerow. Mr. Mounger indicated that he felt pressure from
“everybody” not to testify, including the judge, petitioner’s defense counsel, and Mr. Mounger’s
own attorney. Petitioner failed to show that Mr. Mounger would have freely testified on petitioner’s
behalf but for the alleged pressure from Detective Gerow.
Secondly, assuming that Mr. Mounger was intimidated into not testifying about Mr. Harris’
weapons charge, any such intimidation was harmless in light of the fact that other evidence was
introduced at trial that the prosecutor had dismissed a weapons charge against Mr. Harris and that
this witness was testifying against petitioner in exchange for this and other benefits.
In his fourth and fifth prosecutorial misconduct claims, petitioner alleges that the prosecutor
committed misconduct by introducing inadmissible evidence involving threats by the Owens
brothers towards witnesses and inadmissible hearsay evidence involving the gun.
A prosecutor does not commit misconduct by introducing inadmissible evidence. See Key
v. Rapelje, 634 F. App’x. 141, 148 (6th Cir. 2015). Petitioner is not entitled to relief on these claims.
In his related sixth claim, petitioner alleges that the prosecutor committed misconduct in his
closing argument by arguing facts that had not been introduced into evidence by suggesting that the
shooting against Mr. Owens was part of a murder-for-hire scheme. (Tr. 9/1/10, (Morning) p. 17).
Petitioner is not entitled to habeas relief on his claim that the prosecutor made remarks that
were based upon purported facts that were not introduced into evidence, because the remarks were
isolated and the evidence against petitioner in this case was strong. See Macias v. Makowski, 291
F. 3d 447, 453-54 (6th Cir. 2002). Any prosecutorial misconduct in attempting to inject facts that
had not been introduced into evidence was also ameliorated by the trial court’s instruction that the
lawyers’ comments and statements were not evidence. (Tr. 9/1/10, (Morning) p. 63). See Hamblin
v. Mitchell, 354 F. 3d 482, 495 (6th Cir. 2003). Petitioner is not entitled to relief on his prosecutorial
E. Claim # 5. The jury instruction claim.
Petitioner next contends that the jury was unconstitutionally instructed that they could infer
intent to kill from petitioner’s use of a dangerous weapon.
The judge gave the jurors the following instruction on intent:
You may infer that the defendant intended to kill if he used a dangerous weapon in
a way that was likely to cause death. However, you may infer that the defendant
intended to—likewise, you may infer that the defendant intended the usual results
that follow from the use of a dangerous weapon. A gun is a dangerous weapon.
(Tr. 9/1/10 (Morning), p. 73).
The burden of demonstrating that an erroneous instruction was so prejudicial that it will
support a collateral attack upon the constitutional validity of a state court conviction is even greater
than the showing required in a direct appeal. The question in such a collateral proceeding is whether
the ailing instruction so infected the entire trial that the resulting conviction violates due process,
not merely whether the instruction is undesirable, erroneous, or even “universally condemned,” and
an omission or incomplete instruction is less likely to be prejudicial than a misstatement of the law.
Henderson v. Kibbee, 431 U.S. 145, 154-155 (1977). Further, any ambiguity, inconsistency or
deficiency in a jury instruction does not by itself necessarily constitute a due process violation.
Waddington v. Sarausad, 555 U.S. 179, 190 (2009). It is not enough that there might be some
“slight possibility” that the jury misapplied the instruction. Id. at 191. Federal habeas courts do not
grant relief, as might a state appellate court, simply because a jury instruction may have been
deficient in comparison to a model state instruction. Estelle v. McGuire, 502 U.S. 62, 72 (1991).
The jury instruction in this case did not impermissibly shift the burden of proof to petitioner
and thus did not violate the Due Process Clause. The language “you may infer” is unambiguously
permissive language, and permissive inferences, as opposed to mandatory inferences, are not
unconstitutional. See Coe v. Bell, 161 F.3d at 331-32. “A permissive presumption places no burden
on the defendant but permits the jury to ‘infer the elemental fact from proof by the prosecutor of the
basic one.’” Miskel v. Karnes, 397 F.3d 446, 455-56 (6th Cir. 2005) (quoting County of Ulster v.
Allen, 442 U.S. 140, 157 (1979)). The instruction here did not require the jury to presume that
petitioner intended to kill the victim or that the jury must infer an intent to kill merely because
petitioner possessed a firearm. Thus, the instruction did not shift the burden of proof to petitioner
or violate his due process rights.
F. Claim # 7. The ineffective assistance of appellate counsel claim.
Petitioner lastly claims that appellate counsel was ineffective for failing to present his fourth
through sixth claims on his appeal of right.
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel
on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 396-397 (1985). However, court
appointed counsel does not have a constitutional duty to raise every nonfrivolous issue requested
by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983). This Court has already determined that
petitioner’s fourth through sixth claims are without merit. “[A]ppellate counsel cannot be found to
be ineffective for ‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones, 615 F. 3d 448,
452 (6th Cir. 2010)(quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Because none
of these claims can be shown to be meritorious, appellate counsel was not ineffective in his handling
of petitioner’s direct appeal. Petitioner is not entitled to habeas relief on his ineffective assistance
of appellate counsel claim.
G. The motion for an evidentiary hearing and for the appointment of counsel are
Petitioner filed a motion for an evidentiary hearing and for the appointment of counsel.
A habeas petitioner is not entitled to an evidentiary hearing on his claims if they lack merit.
See Stanford v. Parker, 266 F. 3d 442, 459-60 (6th Cir. 2001). In light of the fact that petitioner’s
claims are devoid of merit, he is not entitled to an evidentiary hearing on his claims.
The Court will also deny the motion for the appointment of counsel. There is no
constitutional right to counsel in habeas proceedings. Cobas v. Burgess, 306 F. 3d 441, 444 (6th Cir.
2002). Because petitioner’s claims lacked any merit, this court denies petitioner’s request for the
appointment of counsel. See Lemeshko v. Wrona, 325 F. Supp, 2d 778, 787 (E.D. Mich. 2004).
The Court will deny the petition for writ of habeas corpus. The Court will also deny a
certificate of appealability to petitioner. In order to obtain a certificate of appealability, a prisoner
must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To
demonstrate this denial, the applicant is required to show that reasonable jurists could debate
whether, or agree that, the petition should have been resolved in a different manner, or that the issues
presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). When a district court rejects a habeas petitioner’s constitutional claims on the
merits, the petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims to be debatable or wrong. Id. at 484. 1 The Court will deny
petitioner a certificate of appealability because he failed to make a substantial showing of the denial
of a federal constitutional right. See also Millender v. Adams, 187 F. Supp. 2d 852, 880 (E.D. Mich.
2002). The Court further concludes that petitioner should not be granted leave to proceed in forma
pauperis on appeal, as any appeal would be frivolous. See Fed.R.App. P. 24(a).
Based upon the foregoing, IT IS ORDERED that:
(1) The petition for a writ of habeas corpus is DENIED WITH PREJUDICE.
(2) The motion for an evidentiary hearing and for the appointment of counsel
[Dkt. # 13] is DENIED.
“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. §
(3) A certificate of appealability is DENIED.
(4) Petitioner will be denied leave to appeal in forma pauperis.
Dated: July 27, 2017
s/Sean F. Cox
Sean F. Cox
U. S. District Judge
I hereby certify that on July 27, 2017, the foregoing document was served on counsel of record
via electronic means and upon Dyterius Roby via First Class mail at the address below:
MUSKEGON CORRECTIONAL FACILITY
2400 S. SHERIDAN
MUSKEGON, MI 49442
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