Ozier v. Jackson
OPINION AND ORDER Denying Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ROGER LEE OZIER,
Case No. 16-cv-12879
HON. MARK A. GOLDSMITH
OPINION AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN
Petitioner Roger Lee Ozier, presently confined at the Brooks Correctional Facility in
Muskegon Heights, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 (Dkt. 1), challenging his conviction for bank robbery, Mich. Comp. Laws
§ 750.531; armed robbery, Mich. Comp. Laws § 750.529; and being a fourth felony habitual
offender, Mich. Comp. Laws § 769.12. For the reasons stated below, the Court denies the
petition for writ of habeas corpus, declines to issue a certificate of appealability, but grants
Petitioner leave to appeal in forma pauperis.
Petitioner’s conviction arises out of the robbery of a credit union in Blackman Township,
Michigan, on October 8, 2012.
Laura Hayes was the branch manager at Aeroquip Credit Union on October 8, 2012.
4/29/2013 Trial Tr. at 121 (Dkt. 6-3). During the morning, a person entered the credit union
wearing a hoodie, Halloween mask, and sunglasses. The person approached teller Tammy
Walker with a hand inside the right-hand pocket of the hoodie and demanded money. Walker
gave the robber between four and five thousand dollars. Hayes called the police less than a
minute after the robber exited the bank. The police arrived within a minute or two of being
called. The bank’s video surveillance system was given to the police. Id. at 124-128. Although
Hayes could not give any identifying characteristics of the perpetrator — because the robber was
completely covered — Hayes did indicate that the perpetrator was between five and six feet tall
and 160 to 180 pounds. Id. at 129, 132.
Walker testified that she worked as a teller at the credit union on the day in question. Id.
Shortly after the credit union opened, an individual wearing a mask, gloves,
sunglasses, and a hoodie came inside. Based on his voice, Walker believed the perpetrator to be
an African-American male. Id. at 146, 155. The person had his hand in his pocket, leading
Walker to conclude that the perpetrator was armed. Id. at 142-143, 146, 153. The man told
Walker three times to “put [her] hands on the counter” and demanded money. Id. at 144, 158.
Scared, Walker turned over credit union funds. The man took out his right hand to retrieve some
of the money, the total amount of which Walker believed was $3,610.00. Id. at 144-145.
Located two blocks south of the credit union was the Wildwood Auto Wash, where Allen
Miracle was an employee. On the morning of the incident, Miracle noticed a car around 9:00
a.m. in one of the bays at the car wash. The person did not use the bay for a car wash, but threw
away some trash. Miracle spoke with the police after the robbery and gave them surveillance
video, described below, which was played for the jury. Id. at 163-166, 168-169, 176, 180.
Detective Robert Shrock of the Blackman-Leoni Department of Public Safety testified
that he was called in the day after the robbery and viewed the surveillance video of the car wash.
Id. at 181-183. Detective Shrock testified that the surveillance video showed the car leaving the
car wash and turning toward the credit union. Once the car parked, another surveillance camera
captured a man getting out of the passenger side of the vehicle wearing a red tee-shirt with “Real
Men Wear Red” written on it. Id. at 190-193.
Gina Gettel of the Michigan State Police was dispatched to the crime scene. Gettel
obtained the video surveillance evidence from the car wash, as well as from Daniel Hattey,
whose home was located across the street from the credit union and was equipped with an
exterior video surveillance system. Gettel noted that the vehicle at the car wash and in Hattey’s
video were the same make and model. The car wash video footage showed two subjects exiting
the vehicle and throwing away trash. Gettel could not identify the persons from the video tape.
Id. at 195-200, 206-211, 222. Gettel later did a trash pull from that container and recovered a
piece of paper with an address on it of Shirley Brown, 101 Francis Court, Jackson, Michigan. Id.
at 211-212, 221, 228. One of the items recovered was a falsified temporary paper plate from the
Secretary of State. Video surveillance showed a person taping a white piece of paper to the back
window of the suspect vehicle before the car left the car wash bay. Id. at 213-214. A partial
plate was determined from the video surveillance. It was a Michigan handicapped plate with
“122” on it, and the vehicle appeared to be a silver Ford. Id. at 220, 232.
Trooper Scott Watson assisted in the investigation of the bank robbery. Through his
investigation, he learned that the name of the person who exited the passenger side of the vehicle
was determined to be Roger Ozier. Petitioner’s house was searched pursuant to a search warrant.
Trooper Watson admitted that Petitioner was not the first suspect in this case. Id. at 235-239.
Detective Christopher Boulter of the Blackman-Leoni Township Police Department
responded to the scene shortly after the robbery occurred. Detective Boulter testified that there
had been a number of other bank robberies in the Jackson County area. 4/30/2013 Trial Tr. at 5-
6, 8-9 (Dkt. 6-4). Boulter obtained the surveillance video from Hattey’s house and sent officers
to retrieve the video from the car wash. Detective Boulter stated that a credit union customer,
identified as Mark Wecker, followed the robber out of the building and identified the suspect’s
vehicle as a “gray or silver vehicle.” Id. at 11, 32. From viewing the car wash video, Detective
Boulter saw a suspect wearing a light jacket and an orange or red tee-shirt underneath, blue
jeans, and tennis shoes put on a grey hooded sweatshirt. Id. at 13-14. A fake license plate was
recovered out of a trash bin, which led to an address and an individual named Otis Brown.
Brown’s address matched a handicap license plate of “1-2-2-9-E,” which was assigned to a
vehicle that matched the description of the car seen driving away from the credit union. Id. at
16. Further investigation led Detective Boulter to believe that Darius Griffin, Brown’s grandson,
was the driver of the vehicle.
A search warrant was obtained and executed on Brown’s
residence. Id. at 17, 21.
A few days later, a detective received a tip that Petitioner was the passenger in the
vehicle and the suspected robber of the Aeroquip Credit Union. A search warrant was obtained
and executed on Petitioner’s residence. A tee-shirt and a pair of gym shoes similar to those worn
by one of the car’s occupants on the car wash video was recovered from Petitioner’s residence.
Id. at 22-26.
Griffin and Petitioner were arrested. In exchange for a plea bargain, Griffin agreed to
testify against Petitioner. Griffin told the police that he and Petitioner went to a motel and rented
a room using money from the robbery. Detective Boulter testified that documentation was
obtained corroborating that Griffin rented a room at the motel on October 8, 2012. Id. at 29-31,
51. A search of the suspect vehicle found no money or masks. A search of Petitioner’s
residence found no hoodie, no money, and no masks. Id. at 47-48.
Prior to trial, defense counsel objected to Denise Welhusen, Petitioner’s parole officer,
giving identification testimony, claiming that it would be more prejudicial than probative. The
judge overruled the objection but ruled that Welhusen could not testify about her job or
specifically how she knew Petitioner. 4/29/2013 Trial Tr. at 4-7.
Welhusen testified that she
worked in the Jackson County area and had previous contact with Petitioner through her
employment on several occasions. Welhusen was shown video from the car wash and positively
identified Petitioner as one of the men who threw trash away. 4/30/2013 Trial Tr. at 67-69.
During trial, Griffin testified that he lived with his grandparents, and that Brown, his
grandfather, owned a silver or grey Ford Fusion, which Griffin had permission to drive. Griffin
further testified that Petitioner was a “distant family member.” Id. at 78-79. Griffin testified that
he and Petitioner began planning the robbery a week earlier. According to Griffin, the robbery
was Petitioner’s idea. The men drew a fake temporary license plate that they ended up not using.
On the morning of the robbery, Griffin picked up Petitioner from his residence and drove the
men to the bank. Griffin stopped the car at a car wash and threw away a bag and the paper
license plate. The men made another paper plate and Griffin put it on the vehicle. The actual
license plate was sitting on the back. Griffin testified that neither man had a weapon. Griffin put
on a hoodie, gloves, and a mask. Griffin remained in the vehicle while Petitioner went into the
credit union. Petitioner returned 30 seconds later and Griffin drove the two men to a Motel 6,
where Griffin registered with money that Petitioner gave him. Id. at 81-90, 96, 100. In exchange
for his testimony against Petitioner, Griffin pled guilty to the lesser crime of unarmed robbery.
Id. at 80, 97, 102.
Petitioner’s conviction was affirmed on appeal. People v. Ozier, No. 317217, 2014 WL
6468105 (Mich. Ct. App. Nov. 18, 2014) (per curiam), leave denied, 863 N.W. 2d 69 (Mich.
2015). Petitioner then filed a post-conviction motion for relief from judgment (Dkt. 6-8), which
was denied. People v. Ozier, No. 12-004931-FH (Jackson Cty. Cir. Ct. Oct. 29, 2015) (Dkt. 611). The Michigan appellate courts denied Petitioner’s post-conviction appeal. People v. Ozier,
No. 330360 (Mich. Ct. App. Jan. 29, 2016) (Dkt. 6-12), leave denied, 499 Mich. 930, 878 N.W.
2d 857 (Mich. 2016) (Dkt. 6-13).
Petitioner seeks a writ of habeas corpus on the following eight grounds:
“Roger Lee Ozier is entitled to a writ of habeas corpus because of
admission of irrelevant and unduly prejudicial evidence of an
uncharged and unrelated act, never shown to have involved Mr.
Ozier, deprived him of due process of law under the Michigan
Constitution and the Fourteenth Amendment of the United States
“Roger Lee Ozier is entitled to habeas relief because the evidence
presented at trial was insufficient under Jackson v. Virginia, 443
U.S. 307 (1979) to sustain Mr. Ozier’s convictions for bank
robbery and armed robbery.”
“Roger Lee Ozier is entitled to habeas relief because he was denied
his Sixth Amendment right to confrontation and defense trial
counsel was ineffective in failing to object to the statements made
by an eyewitness to police who failed to testify at trial.”
“Roger Lee Ozier is entitled to habeas relief because he was denied
his Sixth Amendment right to confrontation, Crawford v.
Washington, 124 S. Ct. 1354 (2004) and United States v. Calhoun,
544 F.2d 291 (6th Cir. 1976), when trial attorney could not
effectively cross-examine Petitioner’s parole agent about possible
motives his parole agent might harbor in positively identifying him
[on] a surveillance video.”
“Roger Lee Ozier is entitled to habeas relief because he was denied
his Sixth Amendment right to confrontation and defense trial
counsel was ineffective in failing to object to the statements made
by Detective Stiles to Task Force Sgt. Chris Boulter regarding an
informant’s tip accusing petitioner of bank robbery.”
“Roger Lee Ozier is entitled to habeas relief because he was denied
his fundamental right to due process protections when the police
and prosecution failed to have analyzed crucial evidence which
was material to identified and would have exonerated Mr. Ozier.”
“Roger Lee Ozier is entitled to habeas relief because he was denied
his Sixth Amendment when trial counsel was constitutionally
ineffective for failing to investigate and calling to trial, Mark
Wecker, a res gestae witness whose testimony would prove to be
exculpatory for [the] defense and appellate counsel [was
ineffective] for failing to investigate and raising issue on direct
“Roger Lee Ozier is entitled to habeas relief because he was denied
his Sixth Amendment right to effective assistance of counsel when
trial counsel failed to challenge Mr. Ozier’s arrest without probable
cause, creating a radical defect rendering the proceeding void and
appellate counsel [was ineffective] for failing to raise issue on
Pet. at 2-3.
II. STANDARD OF REVIEW
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 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
(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 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, 405-406 (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 411.
The Supreme Court has explained that a “federal court’s collateral review of a state-court
decision must be consistent with the respect due state courts in our federal system.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). Thus, the AEDPA “imposes a highly deferential standard
for evaluating state-court rulings, and demands that state-court decisions be given the benefit of
the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010). 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).
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. Furthermore, pursuant to section
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. Habeas relief is not appropriate unless each ground that
supported the state-court’s decision is examined and found to be unreasonable under the
AEDPA. See Wetzel v. Lambert, 132 S. Ct. 1195, 1199 (2012).
“If 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 re-litigating 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. Thus, a “readiness to attribute error [to a state
court] is inconsistent with the presumption that state courts know and follow the law.”
Woodford v. Viscotti, 537 U.S. 19, 24 (2002). 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, 131 S. Ct. at 786-787.
A state court’s factual determinations are presumed correct on federal habeas review.
See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness only
with clear and convincing evidence. Id.; Warren v. Smith, 161 F.3d 358, 360-361 (6th Cir.
1998). Moreover, habeas review is “limited to the record that was before the state court.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
A. Claim One: The Prejudicial Bad Acts Evidence Claim
Petitioner first claims that the prosecutor deprived him of a fair trial by introducing
irrelevant and prejudicial evidence when Detective Boulter testified about uncharged bank
robberies in Jackson County, Michigan, which Petitioner argues were introduced for the sole
purpose of showing that Petitioner had the propensity to commit the bank robbery in this case.
Petitioner’s claim that he was denied a fair trial by the admission of irrelevant and highly
prejudicial “other acts” evidence against him in violation of Michigan Rule of Evidence 404(b)
cannot form the basis for habeas relief, because it involves a state-law evidentiary issue. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (It is “not the province of a federal habeas court
to reexamine state-court determinations on state-court questions,” because a federal habeas court
is limited to deciding whether a state-court conviction violates the Constitution, laws, or treaties
of the United States.); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (There is no clearly
established Supreme Court precedent that a state violates a habeas petitioner’s due process rights
by admitting propensity evidence in the form of “prior bad acts” evidence.); Bey v. Bagley, 500
F.3d 514, 519 (6th Cir. 2007) (petitioner’s claim that the state trial court’s admission of “other
acts” evidence violated state law “is simply not cognizable on habeas review”); Seymour v.
Walker, 224 F.3d 542, 552 (6th Cir. 2000) (errors in the application of state law, especially
rulings regarding the admissibility of evidence, are usually not questioned by a federal habeas
court). Therefore, Petitioner is not entitled to habeas relief on his first claim.
B. Claim Two: The Sufficiency-of-the-Evidence Claim
Petitioner next claims that there was insufficient evidence to establish his identity as the
person who robbed the credit union.
It is beyond question that “the Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970). But the critical
inquiry on review of the sufficiency of the evidence to support a criminal conviction is “whether
the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court
to “ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt. Instead, the relevant question is whether, after viewing 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 318-319 (emphasis in the original).
Moreover, 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 court may grant habeas relief only if the statecourt 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. Indeed, 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, 132
S. Ct. 2060, 2065 (2012).
On habeas review, a federal court does not reweigh the evidence or redetermine the
credibility of the witnesses whose demeanor was observed at trial. Marshall v. Lonberger, 459
U.S. 422, 434 (1983). It is the province of the fact finder to weigh the probative value of the
evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir.
A habeas court, therefore, 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 Court
does not apply the reasonable doubt standard when determining the sufficiency of evidence on
habeas review. Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995).
Petitioner claims that there was insufficient evidence to establish his identity as the
robber because none of the persons in the bank could identify him as the perpetrator, and the sole
evidence against him was the testimony of Griffin, Petitioner’s co-defendant, whose credibility
was suspect because he testified against Petitioner in exchange for a plea bargain.
Under Michigan law, “the 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, 181 N.W.2d 655, 656 (Mich. Ct.
App. 1970)). Eyewitness identification of a defendant is not necessary because identify can be
inferred through circumstantial evidence. See Dell v. Straub, 194 F. Supp. 2d 629, 648 (E.D.
Mich. 2002). 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).
The Michigan Court of Appeals rejected Petitioner’s claim:
In this case, a participant in the planning and execution of the
robbery, Darius Griffin, described defendant’s participation in the
robbery. Griffin also viewed surveillance videos and identified
defendant as the person depicted exiting the vehicle, walking to the
credit union, and then returning. Defendant argues that Griffin’s
testimony was not reliable because of a favorable plea bargain he
received. Griffin was arrested for robbing the credit union and
agreed to cooperate with law enforcement in exchange for a
reduced charge of unarmed robbery with recommended sentence
within the guidelines. The jury learned of Griffin’s plea bargain
and was thus able to assess his credibility in light of it. We will
not interfere with the trier of fact’s role in determining the
credibility of witnesses.
Additionally, two witnesses pointed out on a surveillance video
that the person identified as defendant exited the vehicle involved
in the robbery wearing a red T-shirt displaying a particular phrase
and then putting on a hooded sweatshirt. Bank employees stated
the perpetrator of the robbery wore a hooded sweatshirt, and a
search of defendant’s registered address produced a T-shirt
matching that seen in the video. The primary police investigator
also testified that defendant’s appearance matched the appearance
of the passenger of a car pictured in a video obtained from a car
wash near the credit union. Further, parole officer Denise
Welhusen, testified she recognized defendant’s face and his gait as
Ozier, 2014 WL 6468105, at * 2.
The Michigan Court of Appeals’ decision was not unreasonable. “[I]t is well-settled that
uncorroborated testimony of an accomplice” is sufficient to support a criminal conviction. See
United States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010). Griffin’s testimony, if believed,
would be sufficient to sustain Petitioner’s conviction. Moreover, attacks on witness credibility
are simply challenges to the quality of the prosecution’s evidence, and not to the sufficiency of
the evidence. See Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002). An assessment of the
credibility of witnesses is generally beyond the scope of federal habeas review of sufficiency-ofevidence claims. See Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000). To the extent that
Petitioner challenges the credibility of Griffin, he would not entitled to habeas relief. See Tyler
v. Mitchell, 416 F.3d 500, 505 (6th Cir. 2005).
In addition, there was additional circumstantial evidence linking Petitioner to the robbery.
Petitioner was identified by two witnesses on a surveillance video as the person who exited the
vehicle used in the robbery and wearing a red tee-shirt displaying a particular phrase before
putting on a hooded sweatshirt. Both Hayes and Walker testified that the robber wore a hooded
sweatshirt. A police search of Petitioner’s residence recovered a tee-shirt that matched that seen
in the video. The primary police investigator testified that Petitioner’s appearance matched the
appearance of the passenger of the car seen in the surveillance video obtained from the car wash
near the credit union. Finally, Welhusen testified she recognized Petitioner’s face and his gait as
he walked from the surveillance videotape.
Because there were multiple pieces of evidence to establish Petitioner’s identity as the
perpetrator of the robbery, the Michigan Court of Appeals did not unreasonably apply Jackson v.
Virginia in rejecting Petitioner’s sufficiency-of-evidence claim. See Moreland v. Bradshaw, 699
F.3d 908, 919-921 (6th Cir. 2012). Therefore, Petitioner is not entitled to relief on his second
C. Claims Three, Five, Seven, and Eight: The Ineffective-Assistance-ofCounsel/Confrontation Clause Claims
For efficient presentation of the issues, the Court consolidates Petitioner’s ineffective
assistance of trial and appellate counsel claims and also discusses Petitioner’s related
Confrontation Clause claims.
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. Id. 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.” Id. at 694. The
Supreme Court’s holding in Strickland places the burden on the defendant who raises a claim of
ineffective assistance of counsel to show a reasonable probability that the result of the
proceeding would have been different, but for counsel’s allegedly deficient performance; the
state has no burden to show the absence of such probability. See Wong v. Belmontes, 558 U.S.
15, 27 (2009). The Strickland standard applies as well to claims of ineffective assistance of
appellate counsel. See Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).
Further, 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, 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 § 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.
In his third claim, Petitioner argues that his right to confrontation was violated when
Detective Boulter testified that Mark Wecker informed him that the vehicle used in the robbery
was grey or silver in color. In his fifth claim, Petitioner alleges that his right to confrontation
was violated when Detective Boulter testified that Detective Stiles told him that he received an
anonymous tip that Petitioner was the person who robbed the credit union. Petitioner claims that
trial counsel was ineffective for failing to object to Detective Boulter’s testimony in both
The Michigan Court of Appeals agreed that, in both instances, the admission of this
testimony violated Petitioner’s right to confrontation and that counsel was deficient for failing to
object. Ozier, 2014 WL 6468105, at *3-4. The Michigan Court of Appeals concluded, however,
that Petitioner was not prejudiced by counsel’s failure to object in light of the additional
evidence against Petitioner:
We conclude, therefore, defendant’s trial counsel should have
objected to the admission of this testimony and was deficient in
failing to do so. However, defendant has not shown that either the
evidentiary errors or counsel’s failure to object affected his
substantial rights, i.e., the errors did not affect the outcome of the
trial. In this case, defendant’s vehicle was independently identified
from a surveillance video of a nearby car wash. Police recovered
mail in a trash can at the car wash and a partial plate number from
the surveillance video that also led to identification of the
registered owner and address of the vehicle. Thus, there were
other sources of identification of the vehicle presented to the jury.
Similarly, evidence of an informant’s tip identifying defendant as
the perpetrator of the credit union robbery was harmless in light of
the testimony of other witnesses that established defendant’s
involvement in the robbery.
Id. at *4.
The Michigan Court of Appeals’ decision is sustainable based on a harmless error
analysis, without undertaking a merits analysis of the claim. “Unless its jurisdiction is at stake, a
federal district court on federal habeas review ‘may take up issues in whatever sequence seems
best, given the nature of the parties’ arguments and the interest in avoiding unnecessary
constitutional decisions.’” Dittrich v. Woods, 602 F. Supp. 2d 802, 809 (E.D. Mich. 2009), aff’d
in part and rev’d in part on other grounds, 419 F. App’x. 573 (6th Cir. 2011) (quoting Aleman v.
Sternes, 320 F.3d 687, 691 (7th Cir. 2003)). When a federal court is confronted with several
possible grounds for adjudicating a case, any of which would lead to the same disposition of the
case, “a federal court should choose the narrowest ground in order to avoid unnecessary
adjudication of constitutional issues.” Id. (citing United States v. Allen, 406 F.3d 940, 946 (8th
Cir. 2005)). Therefore, a federal district court on habeas review of a state-court conviction can
proceed directly to a harmless error analysis of a habeas petitioner’s claims without first
reviewing the merits of the claim or claims, “when it is in the interest of judicial economy and
brevity to do so.” Id. (citing Porter v. Horn, 276 F. Supp. 2d 278, 344 (E.D. Pa. 2003)). Because
of the compelling evidence of guilt in this case, the Court will move directly to the issue of
harmlessness as to any potential error with respect to the Confrontation Clause claims. See, e.g.,
United States v. Cody, 498 F.3d 582, 587 (6th Cir. 2007).
Confrontation Clause violations are subject to harmless error review. See Bulls v. Jones,
274 F. 3d 329, 334 (6th Cir. 2001). On direct review of a conviction, a constitutional error is
considered harmless only if the reviewing court finds it was harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 24 (1967). In Mitchell v. Esparza, the Supreme Court held
that habeas relief would be appropriate only if a habeas petitioner could show that a state court
applied harmless error review in an “objectively unreasonable manner.” 540 U.S. 12, 18 (2003)
However, in Brecht v. Abrahamson, the Supreme Court held that, for purposes of
determining whether federal habeas relief must be granted to a state prisoner on the ground of
federal constitutional error, the appropriate harmless error standard to apply is whether the error
had a substantial and injurious effect or influence in determining the jury’s verdict. 507 U.S.
619, 637 (1993). “Citing concerns about finality, comity, and federalism,” the Supreme Court in
Brecht “rejected the Chapman standard in favor of the more forgiving standard of review applied
to nonconstitutional errors on direct appeal from federal convictions.” Fry v. Pliler, 551 U.S.
112, 116 (2007) (citing Kotteakos v. United States, 328 U.S. 750 (1946)). The Supreme Court in
Brecht indicated that application of the Chapman harmless error test by a federal court reviewing
a state-court conviction on habeas review would undermine a state’s “interest in finality,” would
infringe upon a state’s sovereignty over its own criminal matters, “would undercut the historic
limitation of habeas relief to those who had been ‘grievously wronged,’” and would impose
“‘significant ‘social costs.’” Id. at 117 (quoting Brecht, 507 U.S. at 637). Thus, Brecht’s more
“forgiving” substantial and injurious effect test for harmless error review applies on habeas
review of a state-court conviction, regardless of whether the state courts engaged in a harmless
error analysis of a petitioner’s claims. Id. at 121-122.
In the aftermath of Fry, the Sixth Circuit has concluded that the Brecht standard is always
the test to apply to determine whether an error was harmless and it is, thus, no longer necessary
for a habeas court to ask whether the state court unreasonably applied the Chapman harmless
error standard before determining whether the error had a substantial and injurious effect or
influence on the verdict. Ruelas v. Wolfenbarger, 580 F.3d 403, 412 (6th Cir. 2009); Wilson v.
Mitchell, 498 F.3d 491, 503 (6th Cir. 2007); Vasquez v. Jones, 496 F.3d 564, 575 (6th Cir.
2007). The Sixth Circuit observed that, in light of the Supreme Court’s holding in Fry, “a federal
habeas court is never required to determine whether a state court’s harmless error determination
was ‘unreasonable’ — Brecht handles the work on this, too.” Ruelas, 580 F.3d at 412. However,
although noting in Ruelas that the Supreme Court’s holding in Fry “subsumes” the holding in
Esparza, the Sixth Circuit further observed the Supreme Court did not overrule Esparza. Id. at
413. Thus, a federal court on habeas review of a state-court decision remains free to determine
whether the state court’s Chapman harmless error analysis was reasonable. If it was, than the
claim should be denied. Id. However, a federal court is also free to proceed directly to use the
Brecht test to determine whether the error was harmless. Id.
Assuming that it was erroneous to permit Detective Boulter to testify that Mark Wecker
had identified the suspect vehicle’s color, and that an anonymous informant had identified
Petitioner as the perpetrator, the errors were harmless in light of the additional evidence against
petitioner. Griffin testified to Petitioner’s involvement in the robbery and to driving the suspect
vehicle, which matched Wecker’s description of the vehicle used in the robbery.
Griffin’s grandfather, testified that he owned a vehicle that matched the description of this
vehicle. The surveillance video showed a person identified as Petitioner exiting the vehicle
involved in the robbery wearing a red tee-shirt, which displayed a particular phrase before
putting on a hooded sweatshirt. Hayes and Walker testified that the perpetrator of the robbery
wore a hooded sweatshirt.
A police search of Petitioner’s residence produced a tee-shirt
matching the one seen in the video. The primary police investigator also testified that Petitioner
matched the appearance of the passenger of a car pictured in a video obtained from a car wash
near the credit union. Welhusen, Petitioner’s parole officer, testified she recognized Petitioner’s
face and his gait as he walked from the videotape. In particular, when “viewed through the
deferential lens of AEDPA, the state court’s harmlessness ruling must stand” because, based on
the record in this case, the Michigan Court of Appeals reasonably rejected any potential error in
the admission of the out-of-court statements as harmless error. See Kennedy v. Warren, 428 F.
App’x. 517, 522, 523 (6th Cir. 2011). Therefore, Petitioner is not entitled to habeas relief on any
Confrontation Clause claims.
The Court also rejects Petitioner’s related ineffective assistance of trial counsel claims.
“The prejudice prong of the ineffective assistance analysis subsumes the Brecht harmless-error
review.” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009). This Court already determined
that the admission of the out-of-court statements was harmless error. Because the admission of
this evidence was harmless error, Petitioner cannot satisfy Strickland’s prejudice requirement.
See, e.g., Bell v. Hurley, 97 F. App’x. 11, 17 (6th Cir. 2004). Therefore, Petitioner is not entitled
to relief on his third and fifth claims.
In his seventh claim, Petitioner contends that trial counsel was ineffective for failing to
call Wecker to testify, who was a customer of the bank. Petitioner claims that Wecker identified
the bank robbery suspect as being Caucasian. Petitioner argues that Wecker’s testimony would
have exonerated Petitioner, because he is an African-American. The Court finds that Petitioner
is not entitled to relief on this claim for several reasons.
First, Petitioner neither attached to his petition an affidavit or statement from Wecker
concerning his proposed testimony, nor did Petitioner attach any such evidence to his postconviction motion for relief from judgment or his post-conviction appeals, where he raised the
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 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 has failed to attach any offer of proof or
any affidavit sworn by Wecker. Petitioner has not offered, either to the Michigan courts or to
this Court, any evidence beyond his own assertions as to whether Wecker would have testified
that the perpetrator was Caucasian. In the absence of such proof, Petitioner is unable to establish
that he was prejudiced by counsel’s failure to call Wecker 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).
Second, although counsel did not call Wecker to testify, he did introduce evidence that
Wecker had identified the perpetrator as being Caucasian. During the cross-examination of bank
manager Hayes, defense counsel successfully admitted into evidence as a defense exhibit a
“robbery packet” that Hayes filled out after the robbery and later gave to the police officers.
Hayes indicated that the information in this packet included a description of the suspect. Hayes
further indicated that the information showed that Wecker was in the bank at the time of the
robbery. The packet was admitted as a business-records exception to the hearsay rule and the
prosecutor did not object to the admission of this evidence. 4/29/2013 Trial Tr. at 135-138.
Later, in closing argument, defense counsel brought up Hayes’ robbery packet and pointed out
that Wecker had identified the robbery suspect as being Caucasian. 4/30/2013 Trial Tr. at 133.
Petitioner’s counsel was able to present evidence that Wecker identified the suspect as
Caucasian, thus, any testimony from Wecker in court would have been cumulative to the
statement that he made to Hayes. Because counsel was able to get Wecker’s identification of the
suspect into evidence through his statement to bank personnel, counsel was not ineffective in
failing to call Wecker to testify. See Robinson v. Graham, 671 F. Supp. 2d 338, 351 (N.D.N.Y.
2009) (counsel’s decision not to call as witness police officer who rode in ambulance with victim
and who prepared police report regarding conversation with victim as to who assaulted him was
matter of reasonable trial strategy that did not support claim of ineffective assistance of counsel;
officer’s report was read into record, the most that the officer could have done was confirm that
he prepared the report and that the report accurately reflected what the victim stated, or that he
had no present recollection of victim’s statement, and counsel feared that officer might have
given testimony that was detrimental to petitioner).
In his eighth claim, Petitioner contends that trial counsel was ineffective for failing to
object to the legality of his arrest. “An illegal arrest, without more, has never been viewed as a
bar to subsequent prosecution, nor as a defense to a valid conviction.” United States v. Crews,
445 U.S. 463, 474 (1980) (citing Gerstein v. Pugh, 420 U.S. 103, 119 (1975)); see also Frisbie v.
Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886). The Supreme Court held that
“the ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never
itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest,
search, or interrogation occurred.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984).
Although the exclusionary rule prohibits the introduction at trial of evidence that was seized in
violation of the Constitution, a criminal defendant “is not himself a suppressible ‘fruit,’ and the
illegality of his detention cannot deprive the Government of the opportunity to prove his guilt
through the introduction of evidence wholly untainted by the police misconduct.” Crews, 445
U.S. at 474.
Petitioner does not identify any evidence other than his own body that was seized during
this allegedly unlawful arrest. Thus, the mere fact that Petitioner may have been illegally
arrested would not prevent him from being prosecuted and convicted of this offense. Failing to
file a frivolous motion to dismiss does not constitute ineffective assistance of counsel. See
Goldsby v. United States, 152 F. App’x. 431, 438 (6th Cir. 2005). A challenge to the legality of
Petitioner’s arrest would not have resulted in his release from custody.
Counsel was not
ineffective for failing to file a motion to dismiss on this basis. See Friday v. Pitcher, 200 F.
Supp. 2d 725, 738-739 (E.D. Mich. 2002).
Petitioner argues further in his seventh and eighth claims that appellate counsel was
ineffective for failing to raise on Petitioner’s appeal of right the two ineffective assistance of trial
counsel claims that Petitioner raises in his seventh and eighth claims.
This Court has already determined that trial counsel was not ineffective. “[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 trial counsel was not ineffective, appellate counsel was not
ineffective in failing to raise these claims on Petitioner’s appeal of right. See, e.g., Fautenberry
v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008). Therefore, Petitioner is not entitled to relief on
his seventh and eighth claims.
D. Claim Four: The Confrontation Clause Claim
Petitioner next contends that his right to confrontation was violated by permitting
Welhusen to identify Petitioner as the perpetrator, because counsel could not effectively crossexamine Welhusen about her motives for positively identifying Petitioner without revealing that
she was Petitioner’s parole agent, which would have admitted prejudicial evidence that Petitioner
was on parole.
In support of his claim, Petitioner points to the case of United States v. Calhoun, 544 F.2d
291, 294 (6th Cir. 1976), in which the Sixth Circuit held that the trial court abused its discretion
in admitting lay opinion testimony from the defendant’s parole officer identifying him as the
robber shown in photographs, in the absence of a showing of necessity for using the probation
officer instead of some other witness, because the defendant could not freely examine the
relationship between the defendant and the parole officer without revealing the prejudicial fact
that defendant was on probation at time of the robbery. This Court concludes that the Sixth
Circuit’s ruling in Calhoun does not entitle Petitioner to habeas relief.
First, the AEDPA standard of review found in 28 U.S.C. § 2254 (d)(1) prohibits the use
of lower court decisions in determining whether the state-court decision is contrary to, or an
unreasonable application of, clearly established federal law. See Miller v. Straub, 299 F. 3d 570,
578-579 (6th Cir. 2002). Sixth Circuit precedent 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, 132 S. Ct. 2148, 2155 (2012). The Supreme Court
has yet to rule that having a defendant’s parole officer offer identification testimony violates a
defendant’s right to confrontation simply because the defendant would be forced to reveal his or
her parole status in order to cross-examine the parole officer.
Thus, there is no clearly
established Supreme Court law that would suggest that the admission of Welhusen’s testimony
violated Petitioner’s right to confrontation.
Second, every other federal circuit that has addressed the issue has rejected the holding in
Calhoun. See United States v. Contreras, 536 F.3d 1167, 1171-1172 (10th Cir. 2008), cert.
denied, 555 U.S. 1117 (2009); United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993); United
States v. Stormer, 938 F.2d 759, 763-64 (7th Cir. 1991); United States v. Allen, 787 F.2d 933,
937 (4th Cir. 1986), vacated on other grounds, 479 U.S. 1077 (1987); United States v.
Farnsworth, 729 F.2d 1158, 1161 (8th Cir. 1984).
A disagreement between the circuit courts is evidence that a certain matter of federal law
is not clearly established for federal habeas purposes. See Miller v. Colson, 694 F.3d 691, 698
(6th Cir. 2012), cert. denied, 133 S. Ct. 2739 (2013). The Supreme Court’s failure to rule on this
issue, coupled with the “disagreement and confusion” between the federal courts concerning the
resolution of this issue, precludes this Court from finding that the Michigan Court of Appeals’
decision in rejecting Petitioner’s confrontation claim was an unreasonable application of clearly
established federal law. See Worden v. McLemore, 200 F. Supp. 2d 746, 752-753 (E.D. Mich.
Finally, as the Michigan Court of Appeals noted in rejecting Petitioner’s claim, Petitioner
was able to cross-examine Welhusen about various issues that challenged the reliability of her
identification of Petitioner. See Ozier, 2014 WL 6468105, at *3 n.1.
“[T]he Confrontation Clause guarantees only an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to whatever extent,
that the defendant might wish.” United States v. Owens, 484 U.S. 554, 559 (1988). Petitioner
was able to adequately cross-examine Welhusen and attempt to impeach her identification of
petitioner. Therefore, Petitioner is not entitled to relief on his fourth claim.
E. Claim Six: The Destruction-of-Evidence Claim
Last, Petitioner contends that his right to a fair trial was violated when the police failed to
test material recovered from the car wash trash bin for fingerprints and DNA.
The prosecutor in a criminal case “do[es] not have a constitutional duty to perform any
particular test.” Coy v. Renico, 414 F. Supp. 2d 744, 777 (E.D. Mich. 2006) (quoting Arizona v.
Youngblood, 488 U.S. 51, 59 (1988)). Indeed, the Due Process Clause is not violated simply
because “the police fail to use a particular investigatory tool.” Youngblood, 488 U.S. at 59.
Thus, the failure to test the evidence in this case for fingerprints or DNA does not amount to a
constitutional violation. Coy, 414 F. Supp. 2d at 777. Moreover, Petitioner has failed to show
bad faith on the part of the police in failing to perform fingerprint or DNA testing and is thus is
not entitled to relief on his claim. Youngblood, 488 U.S. at 58.
F. Certificate of Appealability and Leave to Proceed In Forma Pauperis on Appeal
Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim on the merits,
the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists
would find the district court’s assessment of the constitutional claim debatable or wrong. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
“A petitioner satisfies this standard by
demonstrating that . . . jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327. In applying that standard, a
district court may not conduct a full merits review, but must limit its examination to a threshold
inquiry into the underlying merit of the petitioner’s claims. Id. at 336-337. “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; Castro v. United
States, 310 F.3d 900, 901 (6th Cir. 2002).
Having considered the matter, the Court concludes that Petitioner has failed to make a
substantial showing of the denial of a constitutional right with respect to any of his claims.
Accordingly, a certificate of appealability is not warranted in this case.
Although the Court denies a certificate of appealability, the standard for granting a
petitioner an application for leave to proceed in forma pauperis is a lower standard than the
standard for certificates of appealability. Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D.
Mich. 2002) (citing United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)).
Whereas a certificate of appealability may only be granted if a petitioner makes a substantial
showing of the denial of a constitutional right, a court may grant in forma pauperis status if it
finds that an appeal is being taken in good faith. Id. at 764-765; 28 U.S.C. § 1915(a)(3); Fed. R.
App. P. 24(a). “Good faith” requires a showing that the issues raised are not frivolous; it does
not require a showing of probable success on the merits. Foster, 208 F. Supp. 2d at 765.
Although jurists of reason would not debate the Court’s resolution of Petitioner’s claims,
the issues are not frivolous; therefore, an appeal could be taken in good faith and Petitioner may
proceed in forma pauperis on appeal. Id. at 764-765.
For the reasons stated above, the Court denies the petition for a writ of habeas corpus,
declines to issue a certificate of appealability, but grants Petitioner leave to proceed in forma
pauperis on appeal.
Dated: June 6, 2017
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on June 6, 2017.
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