Dupree v. Gidley

Filing 17

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
YUL DUPREE,
Petitioner,
CASE NO. 2:16-CV-12821
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

v.
LORI GIDLEY,
Respondent.
_________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Yul Lynn Dupree, (“petitioner”), confined at the Central Michigan
Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application,
petitioner challenges his conviction for first-degree home invasion, M.C.L. §
750.110a(2). For the reasons stated below, 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
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review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d
410, 413 (6th Cir. 2009):
[Steve] Bruggeman testified that while he was on the front porch
of his home smoking a cigarette, he saw an individual crouched
between [Elizabeth] Palen’s vehicle and the garage of 2144
Manchester Boulevard in the city of Harper Woods. Bruggeman’s
home was directly across the street from Palen’s and one house
to the left. The individual broke into the garage, exited with a lawn
mower, and walked down the street with it. Although he was not
wearing his glasses and could not give full facial details of the
perpetrator, Bruggeman identified the individual as a person
wearing a blue, red, and white basketball jersey. Bruggeman
informed Palen of the suspected break-in and reported it to the
police. Palen noticed the garage door was open about eight
inches. The garage door and the side door were closed before
Palen entered her home 40 minutes earlier. Sergeant Hammerle
responded to the report and observed defendant, wearing a blue
basketball jersey, pushing a lawn mower down the street.
Defendant was one standard city block away from Palen’s home
at this time. The lawn mower that defendant had matched the
description Palen gave of hers, and she later confirmed it was her
mower.
People v. Dupree, No. 308411, 2013 WL 1689279, at *2 (Mich. Ct. App. Apr.
18, 2013).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 495 Mich.
854, 836 N.W.2d 158 (2013). Petitioner filed a post-conviction motion for
relief from judgment, which was denied. People v. Dupree, No. 11-00886101-FC (Wayne Cty.Cir.Ct. November 13, 2014). The Michigan appellate
courts denied petitioner leave to appeal. People v. Dupree, No. 308411
(Mich. Ct. App. Apr. 18, 2013); lv. den. 495 Mich. 854, 836 N.W.2d 158
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(2013).
Petitioner seeks a writ of habeas corpus on the following grounds:
I.

Defendant Dupree had decided not to testify even
before the trial began. Trial counsel was ineffective in
promising he would testify in opening statement, then
later breaking this promise at trial.

II.

Mr. Dupree was constructively denied counsel by the
spot/late appointment of trial counsel at the time of
the preliminary examination. US Const Ams VI & XIV.

III.

There was insufficient evidence at trial to convict
Dupree of home invasion and his conviction is in
violation of his US Const, Ams V, XIV; Mich Const
1963, Art 1, § 17 rights.

IV.

Mr. Dupree was deprived of a fair trial when the
prosecutor mischaracterized the evidence to support
its arguments and vouched for the star witness’
credibility and trial counsel was ineffective in failing to
object. US Const Ams VI, XIV.

V.

Mr. Dupree’s constitutional right was violated when
trial court did not determine whether Mr. Dupree was
competent at the time of sentence. US Const Am XIV.

VI.

Mr. Dupree was denied the right to meaningful
allocution due to lack of competency. US Const Am
XIV.

VII.

Mr. Dupree was denied his US Const Ams VI, XIV
and Mich Const 1963, Art 1, §§ 17, 20 rights to the
effective assistance of trial counsel in:
a. failing to excuse a potentially bias juror, and;
b. failing to allow defendant to assist with his
own defense;
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c. failing to move for a direct verdict;
d. failed to investigate an insanity defense and
ensure Mr. Dupree was competent at the time
of trial and sentencing.
VIII. Mr. Dupree was denied the effective assistance of
appellate counsel where counsel neglected strong
and critical issues which must be seen as significant
and obvious compared to the single issue that was
raised. US Const Ams VI & XIV.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of review
for habeas cases:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal
law if the state court arrives at a conclusion opposite to that reached by the

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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 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

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reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
III. Discussion
A. The procedural default issue.
Respondent contends that petitioner’s second through seventh
claims are procedurally defaulted because petitioner raised them only for
the first time in his post-conviction motion for relief from judgment and
failed to show cause and prejudice, as required by M.C.R. 6.508(D)(3), for
not raising these claims on direct appeal. Petitioner argues that any default
should be excused because of appellate counsel’s failure to raise these
claims on petitioner’s appeal of right.
Procedural default is not a jurisdictional bar to review of a habeas
petition the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). Additionally,
“[F]ederal courts are not required to address a procedural-default issue
before deciding against the petitioner on the merits.” Hudson v. Jones, 351
F.3d 212, 215 (6th Cir. 2003)(citing Lambrix v. Singletary, 520 U.S. 518,
525 (1997)). “Judicial economy might counsel giving the [other] question
priority, for example, if it were easily resolvable against the habeas
petitioner, whereas the procedural-bar issue involved complicated issues of
state law.” Lambrix, 520 U.S. at 525. In the present case, this Court

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believes that application of a procedural bar would not affect the outcome
of this case, and the Court deems it more efficient in this case to proceed
directly to the merits.1
B. Claims ## 1, and 7. The ineffective assistance of trial
counsel claims.
The Court consolidates petitioner’s first and seventh claims together
for judicial economy. In his first claim, petitioner alleges that his trial
counsel was ineffective by promising that he would testify in opening
statement and then later breaking this promise at trial. In his seventh
claim, petitioner alleges that trial counsel was ineffective by 1) failing to
excuse a potentially biased juror, 2) failing to allow petitioner to assist in his
own defense, 3) failing to move for a directed verdict, and 4) failing to
investigate an insanity defense and ensure petitioner was competent at the
time of trial and sentencing.
To show that he was denied the effective assistance of counsel under
federal constitutional standards, a defendant must satisfy a two prong test.
1

Petitioner could not have procedurally defaulted his ineffective assistance of appellate counsel
claim that he raises in his eighth claim, because state post-conviction review was the first opportunity that
he had to raise this claim. See Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010). Ineffective
assistance of counsel may establish cause for procedural default. Edwards v. Carpenter, 529 U.S. 446,
451-52 (2000). If petitioner could show that he received ineffective assistance of appellate counsel that
rose to the level of a Sixth Amendment violation, it would excuse his procedural default for failing to raise
his claims on his direct appeal in the state courts. Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000).
Given that the cause and prejudice inquiry for the procedural default issue merges with an analysis of the
merits of petitioner’s defaulted claims, it would be easier to consider the merits of these claims. See
Cameron v. Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004).

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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

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different, but for counsel’s allegedly deficient performance. See Wong v.
Belmontes, 558 U.S. 15, 27 (2009).
On habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was
incorrect but whether that determination was unreasonable-a substantially
higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The
pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense
counsel’s performance fell below Strickland’s standard.” Harrington v.
Richter, 562 U.S. at 101. Thus, “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.

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“Surmounting Strickland’s high bar is never an easy task.” Id. at 788
(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Petitioner alleges in his first claim that trial counsel promised in
opening statement that petitioner would testify at trial.
Trial counsel stated in opening argument that the defense would
show that petitioner believed the lawn mower was abandoned. Although
petitioner argues this comment implies that he would testify, the Michigan
Court of Appeals found that trial counsel “did not expressly promise that
defendant would testify” and could prove this point “indirectly.” Dupree,
2013 WL 1689279, at *2. The Michigan Court of Appeals further noted
that:
In this case, defense counsel’s performance was not deficient
because defendant cannot overcome the strong presumption that
counsel’s assistance was sound trial strategy. Defense counsel
cross-examined Elizabeth Palen, Steve Bruggeman, and
Sergeant Jason Hammerle. In his opening statement and closing
argument, defense counsel argued the description Bruggeman
gave to the police was inconsistent with defendant’s appearance.
Bruggeman was far away from Palen’s home and was not wearing
his glasses. In closing argument, defense counsel argued that the
individual who allegedly broke into Palen’s garage and stole her
lawn mower could not have been defendant because Sergeant
Hammerle testified that someone who was running away from
Palen’s home would have traversed the block in a much shorter
time than two or three minutes. In addition, defense counsel
argued that defendant did not give a reasonable explanation of his
presence to Sergeant Hammerle because they did not inform
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defendant of why he was in custody. According to defense
counsel, the individual who purportedly stole the lawn mower
probably saw Sergeant Hammerle’s vehicle and abandoned the
lawn mower. Defendant saw and took the abandoned lawn
mower. During closing argument, defense counsel pointed out to
the jury that defendant did not have to testify.
Defense counsel did not expressly promise that defendant would
testify. By stating that the defense would show defendant thought
the lawn mower was abandoned, defendant argues defense
counsel implicitly promised defendant would testify. But matters
may be proved indirectly. Moreover, defense counsel is permitted
changes his strategy as the trial advances so long as the changes
do not deprive defendant of a substantial defense. An attorney
has a duty to consult with his client about “important decisions”
and to keep the defendant informed of important developments in
the case. Defense counsel met with defendant before trial and
counseled defendant regarding whether he should testify.
Defendant agreed at trial that he did not want to testify. This Court
will neither substitute its judgment for that of trial counsel in
matters of trial strategy nor assess counsel’s competence with the
benefit of hindsight. On this record, counsel’s actions did not
deprive defendant of a substantial defense; therefore, defendant
failed to establish defense counsel’s representation fell below an
objective standard of reasonableness.
People v. Dupree, 2013 WL 1689279, at *1–2 (internal citations omitted).
The record also reflects that trial counsel argued that the neighbor
who saw the perpetrator testified that the man was wearing a Detroit
Pistons jersey, based on the colors, and that the jersey was red, white, and
blue. At the time of arrest, petitioner’s jersey did not have any red or white
on it and the jersey was a different color of blue than found on a Piston’s

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jersey. (T. 12/6/2011, pp. 69, 98).
Furthermore, in closing argument, defense counsel reminded the jury
that petitioner did not have to testify. In accord, the trial court instructed the
jury, “Now every defendant has an absolute right not to testify when you
decide the case you must not consider the fact he did not testify. It must
not affect your verdict in any way.” (T. 12/6/2011, p. 122).
Petitioner has not demonstrated that trial counsel denied him of a
substantial defense by promising that he would testify at trial. Additionally,
the trial court instructed the jury that they could not consider petitioner’s
failure to testify. Jurors are presumed to follow these instructions. See e.g.
Jones v. United States, 527 U.S. 373, 394 (1999). Petitioner is not entitled
to relief on his first claim.
In his seventh claim, petitioner alleges that trial counsel was
ineffective when he failed to excuse a “potentially” biased juror.
Petitioner alleges that Juror # 2 was potentially biased because her
home had been broken into twice and she and her family had been
involved with the police force for about 20 years. (T. 12/6/2011, p. 37).
When a claim of ineffective assistance of counsel is based on a claim
that counsel failed to strike a biased juror, petitioner “must show that the

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juror was actually biased against him.” Hughes v. United States, 258 F.3d
453, 458 (6th Cir. 2001), see also Miller v. Francis, 269 F.3d 609, 616 (6th
Cir. 2001).
Petitioner claims that Juror # 2 was “potentially biased,” however,
petitioner has failed to demonstrate that the juror was biased against him.
The “Courts will not presume bias simply because a juror works in law
enforcement, is related to someone working in law enforcement or is
acquainted with law enforcement personnel.” United States v. Le Pera, 443
F.2d 810, 812 (9th Cir. 1971). Petitioner is not entitled to relief on this part
of his seventh claim.
Petitioner alleges that trial counsel was ineffective by failing to allow
him to assist in his own defense and that trial counsel failed to produce
witnesses.
Respondent claims that petitioner’s allegations are conclusory. The
allegations are conclusory. 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 alleges that trial counsel should have requested a directed
verdict on the ground that there was insufficient evidence to convict him of

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the charges.
As will be discussed when addressing petitioner’s sufficiency of
evidence claim, infra, there was sufficient evidence to convict petitioner of
the charges. Defense counsel’s failure to move for a directed verdict
based on the insufficiency of evidence was not ineffective assistance of
counsel, because there was sufficient evidence to support petitioner’s
conviction. See Maupin v. Smith, 785 F.2d 135, 140 (6th Cir. 1986).
Petitioner alleges that trial counsel failed to investigate an insanity
defense. Petitioner is not entitled to habeas relief on this claim for several
reasons. First, petitioner’s claim is without merit because he failed to
present any evidence, either to the state courts, or to this Court, that he
was legally insane at the time of the crime. See e.g. Sneed v. Johnson, 600
F.3d 607, 611 (6th Cir. 2010). More specifically, in light of the fact that
petitioner has failed to show that he has an expert who would testify that he
was legally insane at the time of the offenses, counsel’s failure to raise an
insanity defense was not prejudicial to petitioner. See Abdur’Rahman v.
Bell, 226 F.3d 696, 715 (6th Cir. 2000).
Petitioner also cannot establish that counsel was ineffective for failing
to present an insanity defense at trial, in light of the fact that such a mental

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state defense would have required counsel to admit that petitioner broke
into the garage and stole the lawn mower, which would have been
inconsistent with petitioner’s claim of innocence at trial. See Bowling v.
Parker, 344 F.3d 487, 507 (6th Cir. 2003).
Finally, as one court has noted: “[t]here is considerable empirical
evidence that insanity pleas in and of themselves are not received
favorably by jurors.” Weekley v. Jones, 76 F.3d 1459, 1463 (8th Cir.
1996)(citing C. Boehnert, Characteristics of Successful and Unsuccessful
Insanity Pleas, 13 Law and Human Behavior 31, 34, 36-37 (1989)). Since
insanity or mental defenses are rarely successful, it would not have been
unreasonable for counsel, at least under the facts of this case, to forego
such a defense for a stronger defense theory. See e.g. Silva v. Woodford,
279 F.3d 825, 851 (9th Cir. 2002); see also Sneed, 600 F.3d at 611
(counsel not ineffective in failing to present insanity defense where “public’s
widespread skepticism of the insanity defense at the time of Sneed’s trial in
1986 (circa the John Hinkley trial), indicate that this was not an attractive
defense”).
Petitioner finally contends that trial counsel was ineffective for failing
to challenge petitioner’s competency to stand trial. To support a claim of

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ineffective assistance of trial counsel, petitioner must show “that there was
a reasonable probability that he was in fact incompetent.” Brown v. McKee,
460 F. App’x 567, 581 (6th Cir. 2012). Petitioner failed to present any
evidence that he was mentally incompetent at the time of trial. Counsel
was not ineffective for failing to challenge his competency to stand trial.
Petitioner is not entitled to relief on his seventh claim.
C. Claims # 2. The denial of counsel at the preliminary
examination.
Petitioner alleges that he was constructively denied counsel when the
trial court judge appointed substitute counsel on the day of the preliminary
examination because original counsel, who was appointed on August 27,
2011, failed to meet with petitioner or appear for the preliminary
examination. Petitioner contends he was constructively denied counsel
because substitute counsel did not have the ability to meet with him or
investigate witnesses, evidence, or police reports prior to the hearing.
The Supreme Court has held that in cases where a criminal
defendant has been denied counsel at a preliminary hearing, “the test to be
applied is whether the denial of counsel ... was harmless error.” Coleman v.
Alabama, 399 U.S. 1, 11 (1970)(citations omitted); see also Adams v.
Illinois, 405 U.S. 278, 282-83 (1972)(“the lack of counsel at a preliminary
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hearing involves less danger to ‘the integrity of the truth-determining
process at trial’ than the omission of counsel at the trial itself or on
appeal.”)(internal quotation omitted). The Sixth Circuit has applied a
harmless error analysis on habeas review of claims that a habeas
petitioner was denied the right to counsel at a preliminary examination or
hearing in a state criminal proceeding. See Takacs v. Engle, 768 F.2d 122,
124 (6th Cir.1985); McKeldin v. Rose, 631 F.2d 458, 460–61 (6th
Cir.1980); see also Dodge v. Johnson, 471 F.2d 1249, 1252 (6th Cir.
1973)(record failed to establish that lack of counsel at preliminary
examination prejudiced petitioner’s rights at trial or in any way tainted
finding of guilt).
The record reflects that the neighbor across the street testified that
he saw a man break into his neighbor’s garage, take the lawn mower, and
push it down the street. The police apprehended petitioner with the lawn
mower. Because petitioner failed to show that he was actually prejudiced
by trial counsel’s allegedly inadequate preparation time at the preliminary
examination, he is not entitled to relief on his second claim. See Burgess v.
Booker, 526 F. App’x 416, 432–33 (6th Cir. 2013).

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D. Claim # 3. The sufficiency of evidence claim.
Petitioner argues there was insufficient evidence to establish his
identity as the person who broke into the garage and stole the lawn mower.
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). 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 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 simply because the federal court
disagrees with the state court’s resolution of that claim. Instead, a federal

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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.
Furthermore, a habeas court must defer to the fact finder for its
assessment of the credibility of witnesses. Matthews v. Abramajtys, 319
F.3d 780, 788 (6th Cir. 2003).
The Michigan Court of Appeals, referencing the testimony at trial,
found:
[B]ruggeman testified that while he was on the front porch of his
home smoking a cigarette, he saw an individual crouched
between Palen’s vehicle and the garage of 2144 Manchester
Boulevard in the city of Harper Woods. Bruggeman’s home was
directly across the street from Palen’s and one house to the left.
The individual broke into the garage, exited with a lawn mower,
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and walked down the street with it. Although he was not wearing
his glasses and could not give full facial details of the perpetrator,
Bruggeman identified the individual as a person wearing a blue,
red, and white basketball jersey. Bruggeman informed Palen of
the suspected break-in and reported it to the police. Palen noticed
the garage door was open about eight inches. The garage door
and the side door were closed before Palen entered her home 40
minutes earlier. Sergeant Hammerle responded to the report and
observed defendant, wearing a blue basketball jersey, pushing a
lawn mower down the street. Defendant was one standard city
block away from Palen’s home at this time. The lawn mower that
defendant had matched the description Palen gave of hers, and
she later confirmed it was her mower.
People v. Dupree, 2013 WL 1689279, at *2.
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, there was strong circumstantial evidence which
established petitioner’s identity the perpetrator. Circumstantial evidence
alone is sufficient to support a conviction, and it is not necessary for the
evidence at trial to exclude every reasonable hypothesis except that of
guilt. Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000)(internal
quotations omitted). Identity of a defendant can be inferred through

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circumstantial evidence. See Dell v. Straub, 194 F. Supp. 2d 629, 648
(E.D. Mich. 2002).
Although the neighbor testified that he saw a man break into the
garage and push the victim’s lawnmower down the street, eyewitness
identification is not necessary to sustain a conviction. See United States v.
Brown, 408 F.3d 1049, 1051 (8th Cir. 2005); Dell v. Straub, 194 F. Supp.
2d at 648. The neighbor testified that he saw an unidentifiable man
wearing a blue jersey break into the garage and push the lawn mower
down the street. The police apprehended petitioner with the lawn mower a
few streets from where the lawn mower was stolen. The apprehension of
petitioner with the stolen lawn mower was sufficient in and of itself to
establish petitioner’s identity as the perpetrator. Under Michigan law,
possession of stolen property within a short time after it is alleged to have
been stolen raises a presumption that the party in possession stole it. See
People v. Williams, 368 Mich. 494, 501; 118 N.W.2d 391 (1962); People v.
Tutha, 276 Mich. 387, 395; 267 N.W.2d 867 (1936); see also People v. Fry,
17 Mich. App. 229; 169 N.W.2d 168 (1969). The circumstantial evidence
was sufficient for a rational trier of fact to conclude beyond a reasonable
doubt that petitioner broke into the victim’s garage and stole her lawn

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mower. See Spalla v. Foltz, 788 F.2d 400, 402-03 (6th Cir.
1986)(conviction of second-degree murder was supported by sufficient
circumstantial evidence, including witnesses’ description of getaway car,
other witnesses’ testimony placing defendant in car with same general
description and location of cornfield only 15 minutes from victim’s house,
where defendant and victim had left together). Moreover, “Pieces of
evidence are not to be viewed in a vacuum; rather, they are viewed in
relation to the other evidence in the case.” Davis v. Lafler, 658 F.3d 525,
533 (6th Cir. 2011). Petitioner is not entitled to relief on his sufficiency of
the evidence claim.
E. Claim # 4. The prosecutorial misconduct claims.
Petitioner claims he was denied a fair trial because the prosecutor
committed misconduct by misrepresenting testimony given at trial and by
vouching for a witness.
“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

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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
during closing argument by mischaracterizing the testimony given by Mr.
Bruggeman, claiming that Bruggeman testified that the perpetrator had on
a blue jersey. Petitioner cites to the testimony given by Bruggeman as
follows:
Q. Were you able to see anything about that individual?
A. I just I could identify at the time I mean everything happened
so quickly I could identify he had a looked to be a Pistons
jersey on that's the only thing I could see.
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Q. Okay. Were you able to see the color?
A. I believe it was red white and blue that’s why I assumed it
was a Pistons jersey.
(T. 12/6/2011, p. 69).
Petitioner alleges that during closing argument, the prosecutor denied
him of a fair trial by mischaracterizing Bruggeman’s testimony by claiming
Bruggeman testified that the perpetrator had on a “blue jersey.” (Id. at 101103).
Later in closing argument, the prosecutor requested that the 911 tape
be replayed. On the tape, Mr. Bruggeman reported that he saw a man in a
blue jersey break into the victim’s garage and take the lawn mower. (T.
12/6/2011, p. 104). Furthermore, trial counsel had an opportunity to crossexamine Bruggeman’s recollection of the clothing worn by the perpetrator.
The isolated remarks pertaining to Bruggman’s testimony regarding a blue
jersey, as opposed to a red, white and blue jersey, was subject to crossexamination, supported by the record, and did not deny petitioner of a fair
trial. Bruggman’s 911 call, at the time of the offense, reported that the
perpetrator wore a blue jersey. Because there was factual support in the
record for the prosecutor’s argument, the prosecutor’s remarks did not
deprive petitioner of a fair trial. See U.S. v. Henry, 545 F.3d 367, 377 (6th

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Cir. 2008). This part of petitioner’s claim is without merit.
Petitioner next contends that the prosecutor committed misconduct
by vouching for its star witness during closing argument as follows:
So when you judging [sic] credibility thank [sic] about that. Think
about whether or not he had an opportunity to lie whether or not
you think he did. Because I think all hands point to the fact that he
was telling the truth. (citing T.12/6/2011, pp. 113, Ln’s 7-10).
In the next line, the prosecutor informed the jury:
But that’s for you to decide ladies and gentlemen you determine
the credibility.
Id.
A prosecutor may not express a personal opinion concerning the guilt
of a defendant or the credibility of trial witnesses, because such personal
assurances of guilt or vouching for the veracity of witnesses by the
prosecutor “exceeds the legitimate advocates’ role by improperly inviting
the jurors to convict the defendant on a basis other than a neutral
independent assessment of the record proof.” Caldwell v. Russell, 181 F.3d
731, 737 (6th Cir. 1999)(internal citations omitted). “[G]enerally, improper
vouching involves either blunt comments, or comments that imply that the
prosecutor has special knowledge of facts not in front of the jury or of the
credibility and truthfulness of witnesses and their testimony.” See United

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States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)(internal citations
omitted). It is worth noting, however, that the Sixth Circuit has never
granted habeas relief for improper vouching. Byrd v. Collins, 209 F.3d 486,
537 and n. 43 (6th Cir. 2000). Even on direct appeal from a federal
conviction, the Sixth Circuit has held that to constitute error, a prosecutor’s
alleged misconduct of arguing his personal belief, in a witness’ credibility or
in a defendant’s guilt, must be flagrant and not isolated. See United States
v. Humphrey, 287 F.3d 422, 433 (6th Cir. 2002).
Petitioner is not entitled to habeas relief on his vouching claim
because the prosecutor’s comment was brief and isolated. An isolated
instance of vouching does not make a state trial so constitutionally infirm so
as to justify federal habeas relief. See e.g. Joseph v. Coyle, 469 F.3d 441,
474 (6th Cir. 2006). Secondly, even if this statement amounted to improper
vouching, it did not rise to the level of a due process violation necessary for
federal habeas relief, because the sizeable amount of evidence offered by
the state against petitioner made it unlikely that the jury was misled by this
brief statement. See Wilson v. Mitchell, 250 F.3d 388, 398 (6th Cir. 2001).
Lastly, the jury was instructed that the lawyers’ statements and arguments
were not evidence. This instruction by the court cured any prejudice that

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may have arisen from any improper vouching. Byrd, 209 F.3d at 537.
The trial court judge instructed the jury that they alone would decide
the facts, that they were to do so solely on the basis of the evidence, and
that the statements of the attorneys were not evidence. (T.12/6/2011, pp.
116, 118).
Petitioner also claims that trial counsel was ineffective for failing to
object to the alleged prosecutorial misconduct.
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
the proceeding would have been different. Hinkle v. Randle, 271 F.3d 239,
245 (6th Cir. 2001). Because the Court has already determined that the
prosecutor’s questions and comments did not deprive petitioner of a
fundamentally fair trial, petitioner is unable to establish that he was
prejudiced by counsel’s failure to object to these remarks. Slagle v. Bagley
, 457 F.3d 501, 528 (6th Cir. 2006). Petitioner is not entitled to habeas
relief on his fourth claim.

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F. Claims # 5 and 6. The competency claims.
The court will combine petitioner’s fifth and six claims which pertain to
his competency at the time of sentencing.
In his fifth claim, petitioner alleges that he was denied his right to due
process when the trial court failed to consider his competency at the time of
sentencing. In his sixth claim, petitioner alleges that he was denied a
meaningful allocution due to a lack of competency.
A defendant may not be put to trial unless he or she has a sufficient
present ability to consult with his or her lawyer with a reasonable degree of
rational understanding and a rational as well as a factual understanding of
the proceedings against him. Cooper v. Oklahoma, 517 U.S. 348, 354
(1996).
The record reflects that there is no indication petitioner did not
understand the nature of the proceedings against him or that he could not
consult with defense counsel to assist in his case. Petitioner has thus
failed to show that he was incompetent at the time of sentencing. See e.g.
Hill v. Anderson, 881 F.3d 483, 513 (6th Cir. 2018).
In his sixth claim, petitioner contends that he was denied his right to a
meaningful allocution, due to his alleged incompetency.

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There is no constitutional right to allocution under the United States
Constitution. Pasquarille v. United States, 130 F.3d 1220, 1223 (6th Cir.
1997)(citing to Hill v. United States, 368 U.S. 424, 428 (1962)). Therefore,
a trial court’s failure to afford a defendant the right to allocution raises
neither a jurisdictional or constitutional error cognizable on habeas review.
Scrivner v. Tansy, 68 F.3d 1234, 1240 (10th Cir. 1995); see also Cooey v.
Coyle, 289 F.3d 882, 912 (6th Cir. 2002)(declining to issue certificate of
appealability on denial of allocution claim). Petitioner is not entitled to relief
on his sixth claim.
G. Claim # 8. The ineffective assistance of appellate counsel
claim.
In his eighth claim, petitioner contends that appellate counsel was
ineffective for failing to raise his second through seventh 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 second through seventh claims are
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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 her handling of petitioner’s direct
appeal. Petitioner is not entitled to habeas relief on his ineffective
assistance of appellate counsel claim.
IV. Conclusion
The Court will deny the petition for a writ of habeas corpus. The
Court will also deny a certificate of appealability to petitioner. In order to
obtain a certificate of appealability, a prisoner must make a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To
demonstrate this denial, the applicant is required to show that reasonable
jurists could debate whether, or agree that, the petition should have been
resolved in a different manner, or that the issues presented were adequate
to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). When a district court rejects a habeas petitioner’s
constitutional claims on the merits, the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the

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constitutional claims to be debatable or wrong. Id. at 484. “The district
court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because he has failed to make a substantial
showing of the denial of a federal constitutional right. Myers v. Straub, 159
F. Supp. 2d 621, 629 (E.D. Mich. 2001). The Court will also deny petitioner
leave to appeal in forma pauperis, because the appeal would be frivolous.
Id.
V. ORDER
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ
of Habeas Corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a Certificate of Appealability is
DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to
appeal in forma pauperis.
s/George Caram Steeh
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
Dated: April 5, 2018
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 5, 2018, by electronic and/or ordinary mail and also on
Yul Dupree #194248, Central Michigan Correctional Facility,
320 N. Hubbard, St. Louis, MI 48880.
s/Barbara Radke
Deputy Clerk

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