Clark v. Brewer

Filing 6

OPINION AND ORDER Denying Petition for Writ of Habeas Corpus; Granting Certificate of Appealability With Respect to Petitioner's Second Claim; Denying Certificate of Appealability With Respect to Petitioner's Other Claims Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DWAYNE LAVON CLARK,

Petitioner,

Case No. 2:16-cv-13813
Hon. Victoria A. Roberts

v.
SHAWN BREWER,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,
(2) GRANTING CERTIFICATE OF APPEALABILITY WITH RESPECT TO
PETITIONER’S SECOND CLAIM, AND (3) DENYING CERTIFICATE OF
APPEALABILITY WITH RESPECT TO PETITIONER’S OTHER CLAIMS
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254. A jury convicted
Dwayne Lavon Clark in two consolidated cases in the Wayne Circuit Court of three counts of armed
robbery, MICH. COMP. LAWS § 750.529, two counts of carjacking, MICH. COMP. LAWS § 750.529a,
two counts of carrying a concealed weapon, MICH. COMP. LAWS § 750.227, felon-in-possession of
a firearm, MICH. COMP. LAWS § 750.224f, and possession of a firearm during the commission of
felony (felony-firearm), MICH. COMP. LAWS § 750.227b. The Court sentenced Petitioner as a fourthtime habitual felony offender to sentences, including 35-to-60 year terms for the armed robbery and
carjacking convictions, and a mandatory 2-year consecutive term for the felony-firearm conviction.
Clark raises five claims: (1) the trial court erroneously consolidated Petitioner’s two cases
for trial, (2) Petitioner was denied his right to present a defense when the trial court ruled that
Petitioner could not present an alibi witness as a result of his failure to file a timely notice of alibi,
(3) Petitioner was denied his right to a fair and impartial jury where a member of the jury was
employed as a prison administrator who was involved in previous disciplinary actions against Clark,

(4) Petitioner was denied his right to a public trial where the courtroom was closed after jury
selection, and (5) insufficient evidence was presented at trial to prove beyond a reasonable doubt
that Petitioner was guilty of one of the offenses under an aiding and abetting theory.
The Court finds that the state court adjudication of Petitioner’s claims complied with the
requirements of clearly established Supreme Court law. Therefore, the petition will be denied. The
Court will, however, grant a certificate of appealability with respect to Petitioner’s second claim and
deny a certificate of appealability with respect to others.
I. Background
This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals,
which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v.
Smith, 581 F.3d 410, 413 (6th Cir. 2009):
These cases arise from two carjacking incidents occurring in Detroit,
Michigan on September 30, 2012. Defendant was tried for offenses relating to both
incidents in a single trial before a single jury.
A. DOCKET NO. 316547
On September 30, 2012, at approximately 2:45 a.m., Megan Farris, Nicole
McDougal, and Lakesha Payton were in Farris’s automobile near in [sic] Detroit.
Farris testified that she recalled that McDougal was driving, Farris was in the front
passenger’s seat, and Payton was in the back seat. They pulled into a driveway of a
house where they were dropping off McDougal. McDougal got out of the car and
walked toward the passenger’s side, while Farris got out of the car and walked
toward the driver’s side. Payton was getting out of the back seat and getting into the
front passenger’s seat. Farris had shut the driver’s door when a man, whom she later
identified as co-defendant Tracy Wells, came to the door, opened it, pointed a gun
toward Farris’s head, and told her to get out of the car and leave her things. There
was also a man on the other side of the vehicle, but Farris did not see him. Farris
heard McDougal say that the other man also had a gun, but Farris did not see it.
Farris got out of the vehicle, dropped her phone on the ground, and left her purse in
the vehicle. Farris saw the man on the other side of the vehicle patting down Payton.
Wells then got into the vehicle and started backing up, almost striking Payton; the
other man pulled Payton out of the way of the vehicle. The vehicle drove off. Farris
later identified Wells in a live lineup.
2

McDougal testified that she recalled Farris being in the back seat and Payton
being in the front passenger’s seat when they pulled into the driveway. McDougal
got out of the car and began to walk behind the vehicle. She heard someone say
“drop everything you got and get out the car.” She turned around, at which point
someone else approached her and said, “turn around and drop everything.” The
person had a black gun pointed at her. McDougal dropped her cell phone, keys, and
wallet. The man picked up her cell phone and wallet, but not the keys. McDougal
saw the vehicle backing up quickly and heard the man that was near her say, “don’t
hit her.” McDougal then yelled, “please don’t hit her with the truck,” referring to
Payton. The man pulled Payton out of the way and then jumped into the vehicle.
McDougal did not see either man’s face.
Payton testified that she recalled being in the back seat of the vehicle and that
Farris was in the front seat. She testified that Wells opened Farris’s door and pointed
a gun at her, and that she saw another man behind McDougal. As Payton was
walking toward the back of the vehicle, the man on her side of the vehicle told her
to stop and patted her down. Payton identified that man as defendant. Payton saw
that defendant had a black gun, which she believed was an automatic, when Wells
was backing up the vehicle and defendant pulled her back. Payton testified that she
saw defendant’s face when he got into the vehicle. Payton later identified defendant
in a photographic lineup. Payton admitted that at a live lineup she stated that Wells
was the person who was behind McDougal and who patted down Payton. Payton
testified that she told a detective that she wanted to correct that statement. Officer
Mark Burke, assigned to the Commercial Auto Theft Section (CATS) of the Detroit
Police Department, also testified that Payton identified Wells at a live lineup, but
testified that she never indicated she wanted to change her statement.
B. DOCKET NO. 316546
On September 30, 2012, at approximately 11:50 p.m., Christina Ringo and
Mohamed Qatanani drove to a party store in Detroit. They were in a gray Malibu that
Ringo was renting because she had been in an automobile accident. Qatanani was
driving and parked directly in front of the store. He then got out of the vehicle and
went into the store. Another gray Malibu pulled up and parked on the left side of
Ringo’s vehicle. Ringo’s car was facing the store, while the other Malibu was facing
the street. Ringo testified that there were “a bunch of guys” in the other Malibu. The
driver of the other Malibu got out of the vehicle, took a few puffs of a cigarette, and
threw the cigarette down. Ringo testified that the man in the passenger’s seat, whom
Ringo identified as defendant, then moved over to the driver’s seat of that vehicle.
The driver looked as if he was going into the store, but then entered the driver’s side
of Ringo’s vehicle. He turned to Ringo, put a black gun to Ringo’s stomach, and
said, “get the f*** out the car, and give me your purse.” Ringo grabbed her purse and
tried to get out of the car, but the man grabbed her and put the gun to her face. He
said, “I’m gonna tell you one more time, get the f*** out of the car, and leave your
mother f***in’ purse.” The man snatched Ringo’s purse and pushed her out of the
3

car. The man then drove away and the other Malibu followed. At a live lineup, Ringo
later identified the man who took her purse and got into her vehicle as Wells. Ringo
identified defendant in a photographic lineup as the person who drove off in the other
Malibu.
Qatanani returned to the party store the day after the incident and one of the
owners, Rob, showed him a security camera video on his computer. According to
Qatanani, the video showed a gray Malibu parked next to Ringo’s car and also
showed the driver get out and enter Ringo’s car. The video showed the man in the
passenger’s seat move over into the driver’s seat. Qatanani obtained a copy of the
video on flash drive, but was unable to get the video to play. Qatanani went back to
the store and the owner played the video again. Qatanani was unable to locate the
flash drive at the time of trial. Officer Lewis Jackson, Jr., also assigned to CATS,
testified that he visited the party store two weeks after the incident and he was told
by a manager of the store that the video was no longer available because it was taped
over after a certain number of days.
Robert Sokana, one of the operators of the party store, testified that he
viewed the security video the day of the incident and gave Qatanani a copy of the
video the next day. Sokana testified that the video showed “more than two,” possibly
“three or four” men who had arrived in the other Malibu go in and out of the store
a few times before the carjacking. At one point, they drove across the street, then
returned and did a U-turn in the parking lot before parking next to Ringo’s vehicle.
According to Sokana, the vehicle that the men arrived in left first and Ringo’s
vehicle followed.
C. FACTS IN COMMON TO BOTH DOCKETS
Keyona Harris testified that defendant was the father of her child. The police
came to her house at 14828 Northlawn on October 5, 2012 with a search warrant.
Defendant did not live there, but she told police that defendant had been staying with
her. Harris did not own a gun, but a gun was found in her home that day. Harris
testified that defendant would come to her house with a man named either Rah-Rah
or Ron Ron, and Wells. Sergeant Robert Wellman of CATS executed the search
warrant at that address. Wellman believed the home to be defendant’s residence. The
officers discovered a black .357 revolver in the closet of the home. The gun was not
submitted for fingerprint analysis. Defendant did not testify at trial. The parties
stipulated that defendant had been previously convicted of a felony and was
ineligible to own a firearm.
People v. Clark, No. 316546; 316547, 2015 WL 248659, at *1-3 (Mich. Ct. App. Jan. 20, 2015).
Petitioner filed a direct appeal from both convictions. His appellate counsel filed two
appellate briefs, one raising what now form all five of his habeas claims, and the other raising the
4

same claims but omitting the sufficiency of the evidence claim. The Michigan Court of Appeals
consolidated the appeals and affirmed Petitioner’s convictions in an unpublished opinion. Id.
Petitioner filed two applications for leave to appeal in the Michigan Supreme Court, raising the same
claims. The Michigan Supreme Court denied the application because it was not persuaded that the
question presented should be reviewed. People v. Nichols, 858 N.W.2d 456 (Mich. 2015).
II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims raised by
a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts.
Relief is barred under this section unless the state court adjudication was “contrary to” or resulted
in an “unreasonable application of” clearly established Supreme Court law.
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that
are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at
a result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per
curiam), quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
“[T]he ‘unreasonable application’ prong of the statute permits a federal habeas court to
‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme]
Court but unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith,
539 U.S. 510, 520 (2003), quoting Williams, 529 U.S. at 413.
“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), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the
5

state criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As
a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Richter, 562 U.S. at 103 (internal quotation omitted).
III. Analysis
A. Joinder of Cases for Trial
Petitioner’s first claim asserts that the trial court erroneously consolidated his two cases for
trial. He claims that the consolidation unfairly allowed the jury to hear the testimony of unrelated
victims describing offenses occurring under different circumstances. Petitioner asserts that the
prosecution did not present any evidence that the two crimes were part of a series of connected acts,
and the improper consolidation allowed the prosecutor to show “guilt by pattern of behavior.” Dkt.
1, Brief at 17.
After discussing state law rules governing joinder of cases, the Michigan Court of Appeals
found that the trial court did not abuse its discretion in joining the two cases for trial:
Here, the trial court ruled that defendant’s cases could be tried together
because, although they involved “two separate incidents,” they were “close enough
in time involving the same circumstance.” The trial court also ruled that there would
not be separate juries and stated that the cases were “part of like a similar sequence
of events.” The trial court subsequently reaffirmed its ruling, stating “we have the
same people doing something similar.”
The trial court did not violate Michigan Court Rule 6.120 by consolidating
defendant’s cases because the offenses were “related.” Mich. Ct. R. 6.120(B)(1). The
record evidence supports the conclusion that defendant was involved in a scheme to
perpetrate carjackings and armed robberies on female victims at night. Similar to the
offenses in Williams, 483 Mich. at 234-235, the offenses in this case were related not
merely because they involved similar conduct, but because they were “a series of
acts constituting parts of a single scheme or plan.” Rule 6.120(B)(1)(c). The scheme
or plan was evidenced by the same co-perpetrator in each case, similar victims,
6

similar circumstances, and the fact that the acts occurred on the same day.
Clark, 2015 WL 248659, at *4.
The claim is not cognizable on federal habeas review because improper joinder does not, by
itself, violate clearly established Supreme Court law. In United States v. Lane, the Supreme Court
suggested that misjoinder could rise “to the level of a constitutional violation only if it results in
prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.” 474 U.S. 438,
446, n. 8 (1986). Nevertheless, the Sixth Circuit noted that this language in Lane concerning a trial
court’s failure to sever criminal charges is dicta and did not constitute clearly established federal
law. See Mayfield v. Morrow, 528 F. App’x. 538, 541-42 (6th Cir. 2013). Because “‘clearly
established Federal law’ for purposes of § 2254(d)(1) refers to ‘the holdings, as opposed to the dicta,
of [the Supreme] Court’s decisions[.],’” Id. (quoting Williams, 529 U.S. at 412), the Sixth Circuit
concluded that a federal habeas petitioner could not rely on Lane to obtain habeas relief on his claim
that he had been deprived of his right to a fair trial when the judge denied his motion to sever
different rape charges. Id. Simply stated, there are no “Supreme Court cases holding that a defendant
in a criminal case has a constitutional right to a separate trial on each of the charges against him.”
Rodriguez v. Jones, 625 F. Supp. 2d 552, 560-61 (E.D. Mich. 2009). Petitioner’s citation to lower
federal court cases concerning the erroneous admission of other bad acts evidence do not apply to
this case where all the evidence pertained to one or both of the charged offenses.
Because Petitioner’s claim cannot be supported by clearly established Supreme Court law,
the Michigan Court of Appeals’ rejection of Petitioner’s improper joinder claim is insulated from
federal habeas review under § 2254(d). See Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey
v. Musladin, 549 U.S. 70, 77 ( 2006). Petitioner’s first claim is therefore without merit.
B. Failure to Allow Alibi Witness to Testify
7

Petitioner’s second claim asserts that his Sixth Amendment right to present a defense was
violated when the trial court ruled that he could not present an alibi witness because he failed to file
a timely notice of alibi.
Petitioner notes that after the last prosecution witnesses testified, defense counsel indicated
that she had just been informed that an alibi witness was present and willing to testify. The
prosecutor objected to the introduction of alibi evidence; she said defense counsel failed to file a
notice of alibi as required under state law. Dkt. 5-11, at 7-8. The trial court ruled that the alibi
witness was prohibited from testifying because “this is the middle of a trial, and no notice was given,
that means the prosecution didn’t have the opportunity in that case to deal with those kind of things
that might be important. They certainly would be at a disadvantage. . . .” Id., at 4.
Defense counsel was permitted to make an offer of proof as to the alibi witness’s proposed
testimony. Jennifer Hawkins testified that she was with Petitioner on September 30, 2012, from
about 8:00 in the evening until about 7:00 the next morning. Dkt. 5-11, at 12-19. She indicated that
during that night, she woke sometime around 2:00-3:00 a.m. and observed Petitioner upstairs asleep
with her children. Id., at 20-21.
Petitioner asserts that given the importance of the witness to the defense, the failure to file
a notice of alibi was an insufficient basis for excluding the alibi testimony. Petitioner asserts that
a short continuance allowing the prosecutor to interview the witness would have prevented unfair
surprise and secured Petitioner’s constitutional right to present a defense.
After reciting the law regarding the notice requirements for presenting an alibi defense, the
Michigan Court of Appeals found that the trial court did not abuse its discretion in denying the
motion to present the testimony:
Defendant filed a notice of his intent to raise an alibi defense on the fourth
8

day of trial. The alibi witness was permitted to testify outside of the presence of the
jury prior to the trial court’s ruling on defendant’s motion. The trial court then denied
the motion based on the fact that it was untimely and because the factors listed in
Travis did not favor the trial court exercising its discretion to allow such testimony.
The trial court stated that the veracity of the alibi witness was questionable given the
length of time since defendant was arrested, no reason was given for the delay, and
the prosecution had already rested its case and was unable to present a case that
contemplated the alibi defense. The trial court noted that, had the prosecution been
aware of defendant’s alibi defense, its plea offer with Wells could have required
Wells to testify in defendant’s case.
We hold that the trial court did not abuse its discretion in refusing to allow
defendant to present the testimony of an alibi witness. See Travis, 443 Mich. at
679–680. First, at the time defendant raised the issue of the alibi defense, the
prosecution had already rested its case. See id. at 682. Although the prosecution was
allowed to interview the witness, it had no time to prepare for the defense. As the
trial court noted, the prosecution may also have been prejudiced in its ability to rebut
the alibi defense, given that Wells had already pleaded guilty without any
requirement that he testify against defendant. Second, there was no reason offered
for the delay. See id. The witness testified that she did not come forward because she
was busy working, but there was no reason provided for defendant’s failure to
mention his alibi defense. Third, there were no mitigating factors. See id. Fourth,
there was strong evidence, specifically eyewitness testimony, against defendant in
both cases. See id. Finally, the alibi witness’s testimony lacked credibility; although
she testified that defendant only left her home once that evening, at approximately
1:00 a.m., there was no indication that she was with him the entire time. Also,
according to her testimony, her two adult sons were also present that evening and did
not come forward as alibi witnesses. Thus, the trial court’s decision to exclude the
testimony was not outside the range of reasonable and principled outcomes. See
Duenaz, 306 Mich. App. at 90.
Clark, 2015 WL 248659, at*5-6.
In Peterson v. Smith, the Sixth Circuit outlined the requirements of clearly established
Supreme Court law when a trial court excludes defense evidence for failure to comply with notice
requirements:
The Sixth Amendment's Compulsory Process Clause, applicable to state
criminal proceedings through the Due Process Clause of the Fourteenth Amendment,
see Washington v. Texas, 388 U.S. 14, 17-19 (1967), provides that “the accused shall
enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.”
U.S. Const. amend. VI. In Taylor v. Illinois, 484 U.S. 400, 416 (1988), the Supreme
Court upheld an order excluding the testimony of a defense witness as a sanction for
9

counsel’s noncompliance with a discovery rule that required notice of intention to
call the witness and for misleading the court concerning counsel's knowledge of the
witness’s whereabouts. Although confirming that “few rights are more fundamental
than that of an accused to present witnesses in his own defense,” id. at 408, courts
must balance that right against the state’s interest in an orderly trial. “The trial
process would be a shambles if either party had an absolute right to control the time
and content of his witnesses’ testimony.” Id. at 411. “Given the ease with which an
alibi can be fabricated, the State’s interest in protecting itself against an
eleventh-hour defense is both obvious and legitimate.” Id. at 412 n.17.
The Court in Taylor declined to issue comprehensive guidelines for this
balancing process, but stated that a trial court should consider “the fundamental
character of the defendant’s right to offer the testimony of witnesses in his favor,”
“the integrity of the adversary process,” “the interest in the fair and efficient
administration of justice,” and “the potential prejudice to the truth-determining
function of the trial process.” Id. at 414-15. Moreover, the Court concluded that
exclusion is “entirely consistent with the purposes of the Compulsory Process
Clause” where counsel’s delay in providing timely notice of the exculpatory
evidence was “willful and motivated by a desire to obtain a tactical advantage that
would minimize the effectiveness of cross-examination.” Id. at 415. When
performing this balancing test, however, a court should be mindful that alternative
sanctions to exclusion are adequate and appropriate in most cases. See id. at 413-14.
2001 U.S. App. LEXIS 18580, *14-16 (6th Cir. 2001).
The Michigan Court of Appeals did not unreasonably apply this clearly established
constitutional framework in rejecting Petitioner’s second claim. The Court notes that at trial,
Petitioner did not assert that his constitutional right to present a defense was implicated by his
request to call the alibi witness. And even in the Michigan Court of Appeals Petitioner only made
passing reference to his constitutional right to present a defense. See Dkt. 5-13, DefendantAppellant’s Brief on Appeal, at 11. Petitioner’s primary argument in the state appellate court was
that the trial court abused its discretion under state law in failing to allow the alibi witness to testify.
Id., at 11 (“A court’s decision to exclude alibi evidence for noncompliance with Mich. Comp. Law
768.20 is reviewed for an abuse of discretion.”). Accordingly, it is unsurprising that neither the trial
court nor the state appellate court reviewed the claim explicitly as a constitutional right-to-present-a-

10

defense claim.
In any event, the deferential standard set forth in § 2254(d) presumptively applies even
where the state court deciding a federal claim “issues an opinion that . . . does not expressly address
the federal claim in question.” Johnson v. Williams, 568 U.S. 289, 292 (2013). When this situation
occurs, “the federal habeas court must presume (subject to rebuttal) that the federal claim was
adjudicated on the merits.” Id, at 293. Petitioner has not attempted to rebut the presumption that the
state court implicitly rejected Petitioner’s constitutional claim on the merits.
Turning to the constitutional framework, neither the state trial court nor the appellate court
explicitly considered the fundamental character of the defendant’s right to offer the testimony of
witnesses in his favor, but again, Petitioner never asserted that his constitutional right to present a
defense was at stake. The state court instead focused on the other interests identified in Taylor: “the
integrity of the adversary process,” “the interest in the fair and efficient administration of justice,”
and “the potential prejudice to the truth-determining function of the trial process.” Id. at 414-15.
The state court found that these interests were implicated by Petitioner’s delay in disclosing
the witness to prosecution, giving it no time to prepare for the defense. Petitioner’s assertion that
a short continuance would have allayed that concern is specious. An eleventh-hour interview is no
substitute for a full investigation by the prosecution into Petitioner’s relationship with the witness,
whether other people at the witness’s house would corroborate or contradict her testimony, or
whether other evidence could be uncovered regarding Petitioner’s claim that he was with the witness
when the crimes occurred.
While there was no finding by the state courts that the delay was motivated by a desire to
obtain a tactical advantage, Petitioner offers no reason why the alibi witness did not come forward
sooner. If it were true that Petitioner was with Hawkins at the time of the crimes, one would have
11

expected him to inform his counsel of that fact in advance of trial.
Lastly, the state court found that Hawkins’ proposed testimony lacked credibility in that her
two adult sons were allegedly present as well, but neither of them was offered as an alibi witness.
This finding is relevant to a determination whether excluding the alibi witness would cause prejudice
to the truth-determining function of the trial process.
In discussing Petitioner’s claim, the Michigan Court of Appeals addressed most of the factors
discussed in Taylor, and reasonably adjudicated Petitioner’s claim. Petitioner fails to demonstrate
entitlement to relief with respect to his second claim.
C. Failure to Excuse Michigan Department of Corrections Juror
Petitioner’s third claim asserts that his Sixth Amendment right to a fair and impartial jury
was denied when the trial court did not remove a juror formerly employed as an administrator at the
Michigan Department of Corrections who allegedly increased Petitioner’s security classification.
The record indicates that during jury selection, juror Robin Cole indicated that she was
retired from the Michigan Department of Corrections, and she formerly worked at the Mound
Correctional Facility where Petitioner was previously incarcerated. Cole indicated, however, that
she never had contact with Petitioner. Dkt. 5-8, 97-100.
During trial, Petitioner indicated to his counsel that Cole was involved in a prison
disciplinary proceeding which resulted in a higher security classification for him. Defense counsel
moved to remove her from the jury. Dkt. 5-10, at 10-11. The trial court denied the motion. Id. The
next day, the court asked the jury whether any of them knew or recognized anybody involved in the
case “in any kind of way,” and no juror gave an affirmative response. Dkt. 5-11, 25-26.
After setting-forth the law concerning challenging jurors for cause, the Michigan Court of
Appeals found that Petitioner failed to demonstrate that Cole was biased or partial against him:
12

[T]he trial court did not improperly deny defendant’s challenge for cause, because
defendant did not overcome the presumption that the juror was impartial. See Miller,
482 Mich. at 550. During voir dire, the juror at issue indicated that she was retired
from the Department of Corrections. She also indicated that she would be fair and
impartial. On the third day of trial, trial counsel advised the court that defendant had
informed him that the juror, as part of her administrative duties in the Department
of Corrections, had caused him to be moved from a certain facility to a higher
quarantine facility. However, during voir dire the trial court had twice asked the
jurors whether they recognized anyone, and the juror in question had not indicated
that she knew defendant. “This Court defers to the trial court’s superior ability to
assess from a venireman’s demeanor whether the person would be impartial.”
Williams, 241 Mich. App. at 522. There is also no support for defendant’s contention
that the trial court was required to separately question the juror, apart from the rest
of the jury. Second, defendant did not exhaust all peremptory challenges. See Lee,
212 Mich. App. at 249. Accordingly, the trial court did not abuse its discretion,
Williams, 241 Mich. App. at 521, nor was there plain error affecting defendant’s
substantial rights. See Henry, 305 Mich. App. at 152.
Clark, 2015 WL 248659, at *7.
Under 28 U.S.C. § 2254(e)(1), the determination of a factual issue by a state court is
presumed to be correct. It is Petitioner’s burden to rebut the presumption of correctness by “clear
and convincing evidence.” Petitioner presented nothing to the state courts, and he presents nothing
here, to rebut the factual finding by the state court that the juror in question was not actually biased
against him. “Bias in this context is ‘actual bias,’ or bias in fact,” and a “petitioner must show that
the jurors were actually biased against him.” Holder v. Palmer, 588 F.3d 328, 339 (6th Cir. 2009).
Petitioner’s claim fails because he fails to overcome the presumption of correctness attaching to the
state court’s determination that the juror in question was not actually biased against him.

D. Closure of Courtroom After Jury Selection
Petitioner’s fourth claim asserts that his Sixth Amendment right to a public trial was violated
when the trial court closed the courtroom after the jury was selected. Petitioner relatedly asserts that
13

his trial attorney provided ineffective assistance of counsel by failing to object to the closure.
The Michigan Court of Appeals rejected this claim by finding that it was based on a
misreading of the trial record, and that no closure of the courtroom occurred:
[D]efendant’s claim that the trial court closed the voir dire proceedings to the
public is not supported by the record. The record instead reflects that after the jury
was selected and excused for lunch, and while the parties were discussing other
matters, the following exchange occurred:
DEPUTY: Step out.
THE COURT: Get out, get out.
Get out of the courtroom now.
Who—you know who you are, who just made that
comment.
Come on, do you want to leave, or us have you leave?
DEPUTY: I’m gonna have everybody if you don’t step out.
Everybody go. Go.
Everybody go.
Everybody out.
THE COURT: Cannot even respect the courtroom. This is not a game
we’re playing here.
Get some more deputies on the floor here, please.
It is unclear what precipitated any courtroom clearing. And, there is no
evidence that the courtroom was closed during voir dire. Additionally, the trial court
made subsequent statements that indicated that the courtroom had not been closed
to the public. Shortly after the above exchange, the court recessed for lunch. The
record indicates that after the recess, and after the jurors were brought back into the

14

courtroom, the trial court made additional comments to individuals in the courtroom:

I’m gonna give you one warning:
If anybody says anything to a victim, or a victim’s family, in any
kind of way, if you even look at them the wrong way and I know
about it, I’m gonna hold you in contempt of Court, and deal with you
accordingly.
You are to be proper in the courtroom, and respect to where you are
in this courtroom.
If you want to get stupid, I’m gonna get stupid with you.
So, you’re forewarned.
Thus, even assuming that a closure occurred, it was brief and was not during
voir dire (as defendant contends). Additionally, “a court necessarily has the inherent
power to preserve or restore order by temporarily ejecting from the courtroom
disruptive and disorderly persons. . . .” In re Hague, 412 Mich. 532, 561 (1982).
Therefore, we hold that defendant did not establish plain error affecting his
substantial rights. See Vaughn, 491 Mich. at 664.
Further, “[f]ailing to advance a meritless argument or raise a futile objection
does not constitute ineffective assistance of counsel.” People v. Ericksen, 288 Mich.
App. 192, 201 (2010). Given that the record indicates that the courtroom was not
closed to the public during voir dire, trial counsel was not ineffective for failing to
make a meritless argument. Thus, defendant’s claim of ineffective assistance of
counsel also fails.

Clark, 2015 WL 248659, at *8-9.
The resolution of this claim hinges on a factual determination made by the state court.
15

Contrary to Petitioner’s claim, the Michigan Court of Appeals found that the courtroom was never
closed to members of the public. Despite the courtroom deputy’s use of the word “everybody,” the
state court found that only disruptive members of the public were ejected from the courtroom. This
interpretation of the record is corroborated by the fact that later in the record the trial court was
again forced to address unruly members of the public in the courtroom, indicating that others
remained in the courtroom. See Dkt. 5-8, at 141.
Additionally, Petitioner did not present to the state courts, or this Court, an affidavit or other
offer of proof indicating that the courtroom was truly cleared following jury selection. Accordingly,
Petitioner’s fourth claim fails because the factual predicate underlying it was found to be false by
the Michigan Court of Appeals, and Petitioner fails to offer clear and convincing evidence that the
factual determination made by the state court was incorrect. § 2254(e)(1).
E. Sufficiency of the Evidence of Aiding and Abetting
Petitioner’s final claim asserts that his rights under the Due Process Clause were violated
when he was convicted based on insufficient evidence to prove guilt beyond a reasonable doubt.
Petitioner only challenges the sufficiency of the evidence with respect to the Ringo carjacking. He
asserts that while his co-defendant was identified as being the person who committed the crime, the
testimony indicated nothing more than Petitioner’s mere presence at the scene.
After reciting the controlling constitutional standard for adjudicating a sufficiency of the
evidence claim and stating the elements of the offenses and the law regarding aiding and abetting,
the Michigan Court of Appeals found that sufficient evidence was presented to demonstrate beyond
a reasonable doubt that Petitioner was guilty of the Ringo crime:
There was sufficient evidence to support defendant’s carjacking conviction
as aider and abettor. Defendant does not dispute that a carjacking occurred. Viewing
the evidence in the light most favorable to the prosecution, there was evidence that
16

defendant performed acts that assisted in the commission of the carjacking. See
Kosik, 303 Mich. App. at 150; Bennett, 290 Mich. App. at 472. The evidence
established that defendant and Wells arrived at the party store together and entered
the store several times before the carjacking. They then drove across the street before
returning and parking next to the victim’s car. Just before Wells perpetrated the theft
of the victim’s vehicle, defendant got into the driver’s seat of the vehicle in which
he and Wells had arrived. A rational trier of fact could infer that defendant assisted
in scoping out the location and choosing the victim, and was acting as a lookout
while Wells perpetrated the offense. Further, defendant provided assistance by
driving away the vehicle in which he and Wells had arrived. Defendant’s assistance
aided and encouraged the commission of the carjacking. See Moore, 470 Mich. at
71. Given defendant’s actions, he was not merely present at the scene. See Norris,
236 Mich. App. at 419-420.
The circumstantial evidence further supports the finding that defendant
intended the commission of the crime or knew that Wells intended its commission
at the time defendant gave assistance. See Bennett, 290 Mich. App at 474.
Defendant’s intent can be inferred from his close association with Wells before the
crime, including going in and out of the store, his acts in the other docket, and his
participation in driving away the vehicle in which they had arrived. Defendant’s
driving away, or flight after the incident, is further evidence of his intent. See Turner,
213 Mich. App. at 569. Accordingly, there was sufficient evidence to support
defendant’s carjacking conviction as an aider and abettor.
Defendant also asserts that there was insufficient evidence to support his
armed robbery conviction and CCW conviction as an aider and abettor, but fails to
elaborate on his arguments regarding those offenses. “An appellant may not merely
announce his position and leave it to this Court to discover and rationalize the basis
for his claims, nor may he give only cursory treatment with little or no citation of
supporting authority.” Henry, 305 Mich. App. at 142 (citation and quotation marks
omitted). Nonetheless, there was sufficient evidence to support these convictions.
* * *
In this case, there was evidence that Wells used a gun during the carjacking
and, thus, that the weapon was present in the vehicle occupied by defendant, which
they arrived in together before the carjacking. See Nimeth, 236 Mich. App. at 622.
Defendant’s knowledge that there was a weapon in the vehicle he was occupying can
also be inferred from these circumstances. A rational trier of fact could also conclude
that defendant was carrying the weapon given that he was sitting in the front
passenger’s seat next to Wells when they arrived, and thus likely had access to the
weapon, and the fact that defendant drove the vehicle away after the carjacking. See
id. Finally, a rational trier of fact could in any event conclude that the gun “was
being carried for the purposes of unlawful enterprise” in which all parties were
engaged, and that defendant had knowledge that the gun was being carried by Wells,
a co-perpetrator. Pearce, 20 Mich. App. at 292. Thus, there was sufficient evidence
17

to convict defendant of carrying a concealed weapon.
Clark, 2015 WL 248659, at *10-12.
This decision did not unreasonable apply clearly established Supreme Court law. “[T]he 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 a sufficiency-of-the-evidence review 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.” Id. at
334. “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.
The Court may not vacate a state court decision rejecting a sufficiency of the evidence claim
merely because it disagrees with the decision. Instead, it may grant habeas relief only if the state
court decision was an objectively unreasonable application of Jackson. Cavazos v. Smith, 565 U.S.
1, 2 (2011). For the Court, “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).
Under Michigan law, the elements of aiding and abetting are:
(1) the crime charged was committed by the defendant or some other person; (2) the
defendant performed acts or gave encouragement that assisted the commission of the
crime; and (3) the defendant intended the commission of the crime or had knowledge
that the principal intended its commission at the time that [the defendant] gave aid
and encouragement.
People v. Moore, 470 Mich. 56, 67-68 (2004) (quoting People v. Carines, 460 Mich. 750, 768
18

(1999)).
When viewed in the light most favorable to the prosecution, sufficient evidence supported
Petitioner’s conviction of the Ringo offenses as an aider or abettor. Viewed most favorably to the
prosecution the evidence indicated that Petitioner was present with co-defendant Wells for a
substantial period of time before the Ringo carjacking. The evidence allowed for a rational factfinder to conclude that Petitioner went with Wells to surveil the location of the crime. When Wells
drove up behind the Ringo car, Petitioner then drove the vehicle they arrived in away from the scene
as Wells drove the victim’s car away. The action of driving the getaway car away was an act that
assisted the commission of the crime. The jury was not required to check it common sense at the
door: the fact that Petitioner was with Wells both before, during, and after both carjackings allowed
jurors to infer beyond a reasonable doubt that Petitioner knew of Wells’ intent to commit the crimes
and aided him in doing so. The Michigan Court of Appeals’ finding that there was sufficient
evidence to sustain Petitioner’s conviction “was [not] so insupportable as to fall below the threshold
of bare rationality.” Coleman, 566 U.S. at 656. Habeas relief is not warranted.
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a
certificate of appealability issued. 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). Courts
must either issue a certificate of appealability indicating which issues satisfy the required showing
or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P.
22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
To receive a certificate of appealability, “a petitioner must show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a different
19

manner or that the issues presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotes and citations omitted). Here, jurists
of reason could debate the Court’s conclusion that Petitioner is not entitled to habeas relief with
respect to his claim that his right to present a defense was violated by the exclusion of his alibi
witness. Therefore, the Court will grant Clark a certificate of appealability with respect to that
claim. However, the resolution of Petitioner’s other claims is not reasonably debatable; a certificate
is denied with respect to them.
V. Conclusion
The Court:
1) DENIES WITH PREJUDICE the petition for a writ of habeas corpus,
2) GRANTS a certificate of appealability with respect to Petitioner’s second claim, and
3) DENIES a certificate of appealability with respect to Petitioner’s other claims.
SO ORDERED.
S/ Victoria A. Roberts
Honorable Victoria A. Roberts
United States District Judge

Dated: 4/24/18

20