Jamison v. Mackie

Filing 11

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS re 1 Petition for Writ of Habeas Corpus. Signed by District Judge Marianne O. Battani. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TREANDIS MARQUA JAMISON,
Petitioner,
v.

Case No. 17-cv-10035

THOMAS MACKIE,

HONORABLE MARIANNE O. BATTANI

Respondent.
_________________________________/
OPINION AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Treandis Marqua Jamison seeks the writ of habeas corpus pursuant to
28 U.S.C. § 2254. He challenges his Oakland County (Michigan) convictions for six
counts of assault with intent to commit murder, Mich. Comp. Laws § 750.83, six counts
of possessing a firearm during the commission of a felony ("felony firearm"), Mich. Comp.
Laws § 750. 227b, one count of conspiracy to commit first-degree murder, Mich. Comp.
Laws § 750.157a and Mich. Comp. Laws § 750.316, and one count of carrying a
concealed weapon, Mich. Comp. Laws § 750.227.
The grounds for relief set forth in the habeas petition are: (1) the evidence at trial
was insufficient to support Petitioner's assault and conspiracy convictions; (2) the trial
court arraigned Petitioner without first acquiring subject-matter jurisdiction; (3) the trial
court failed to read complete instructions to the jury before the taking of evidence; (4) the
trial court failed to control the proceedings and ensure that the jury was properly
instructed; (5) the prosecution failed to protect Petitioner's constitutional rights when it
allowed his trial to proceed without ensuring that the trial court had subject matter

jurisdiction and that the jury was properly instructed; (6) Petitioner was denied counsel at
critical stages; and (7) appellate counsel abandoned Petitioner on appeal. See Pet., ECF
No. 1, PageID. 5. Petitioner also alleges that he is entitled to a new trial or an evidentiary
hearing on newly discovered evidence that someone else is claiming responsibility for the
shooting. See Reply Brief, ECF No. 8, PageID. 1288, 1301.
The State argues in an answer to the petition that the state appellate court
reasonably decided Petitioner's first claim (insufficient evidence), that claims two through
six are procedurally defaulted, not cognizable on habeas review, or meritless, and that
the eighth claim regarding new evidence lacks merit. In reply, Petitioner urges the Court
to disregard the State's arguments as groundless and to grant his petition for the writ of
habeas corpus. The Court, however, agrees with the State that Petitioner's claims do not
warrant habeas relief. Accordingly, the petition will be denied.
I. Background
The charges against Petitioner arose from an incident at a roller skating rink (the
"Rolladium") in Waterford Township, Michigan on December 23, 2011. Petitioner was
tried before a jury in Oakland County Circuit Court with one of his co-defendants,
Cheyenne Ingram. 1 The state court summarized the evidence at trial as follows:
Defendant attended a Christmas party at a roller skating rink with 300 other
guests. During the party, a brawl began between two different groups of
skaters, one group including defendant. Rink security ejected defendant,
his codefendant, and one other individual for participating in the brawl. A
second brawl subsequently erupted on the skating rink and the security
personnel left the entrance unsupervised. Security footage from several
cameras in the roller skating rink showed defendant, his codefendant, and
the other individual reenter the roller skating rink during this time. They
walked down the hallway concealing objects in their hands, and when they
1

A third co-defendant, Robert German, had not been arrested at the time of
Petitioner's and Ingram's trial.
2

reached the entrance to the rink itself, where the second brawl was
occurring, they revealed firearms and fired through the entryway into the
rink where 200 to 225 people were located at the time. Six individuals
received grazing wounds to their arms, legs, or back; one individual was
shot directly in the chest.
People v. Jamison, No. 312460, 2014 WL 1679126, at *1 (Mich. Ct. App. Apr. 24, 2014). Neither
Petitioner, nor Ingram, testified or presented any witnesses in their defense.
On August 7, 2012, Petitioner's jury found him guilty, as charged, of six counts of assault
with intent to commit murder, six counts of felony-firearm, one count of conspiracy to commit
murder, and one count of carrying a concealed weapon. On September 5, 2012, the trial court
sentenced Petitioner to prison for 285 to 840 months for the assault and conspiracy convictions,
40 to 60 months in prison for the concealed weapon conviction, and two years in prison for the
felony-firearm convictions. Two months later, the trial court entered an amended judgment of
sentence that changed Petitioner's sentence for the conspiracy conviction to life imprisonment.
In an appeal of right, Petitioner challenged the sufficiency of the evidence supporting his
assault and conspiracy convictions.

The Michigan Court of Appeals affirmed Petitioner’s

convictions, but remanded his case so that the trial court could amend the judgment of sentence
to show that the sentence for the conspiracy conviction was life imprisonment with the potential
for parole. See Jamison, 2014 WL 1679126, at *1 and n.1, *4. Petitioner raised the same
sufficiency-of-the-evidence claim in the Michigan Supreme Court, which denied leave to appeal
on September 29, 2014, because it was not persuaded to review the issue. See People v.
Jamison, 853 N.W.2d 375 (Mich. 2014).
Petitioner attempted to file a motion for relief from a void conviction under Michigan
Court Rule 2.612(C)(1)(d), but his motion was rejected by the state court and never filed.

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Petitioner subsequently filed his first habeas corpus petition in this District and a motion
to stay the federal proceeding while he pursued additional state remedies. The Court
denied the motion for a stay and dismissed the habeas petition without prejudice. See
Jamison v. Berghuis, No. 15-10338 (E.D. Mich. Mar. 25, 2015).
Petitioner then filed a motion for relief from judgment in the state trial court, raising
six claims about his arraignment, the jury instructions, the prosecution, and his trial and
appellate attorneys. The state trial court rejected Petitioner’s arguments on the merits
and on procedural grounds.

The court determined that Petitioner had failed to

demonstrate "good cause" under Michigan Court Rule 6.508(D)(3) for failing to raise his
claims on appeal and "actual prejudice." See People v. Jamison, No. 12-241693-FC
(Oakland Cty. Cir. Ct. July 2, 2015).
Petitioner appealed the trial court’s decision without success. The Michigan Court
of Appeals denied leave to appeal because Petitioner had failed to establish that the trial
court erred in denying his post-conviction motion. See People v. Jamison, No. 329081
(Mich. Ct. App. Dec. 21, 2015). On October 26, 2016, the Michigan Supreme Court
likewise denied leave to appeal, stating that Petitioner had failed to establish entitlement
to relief under Michigan Court Rule 6.508(D). See People v. Jamison, 886 N.W.2d 434
(Mich. 2016).
Petitioner subsequently filed a second motion for relief from judgment in the state
trial court. He claimed to have newly-discovered evidence that co-defendant Robert
German had accepted responsibility for the shooting. The trial court denied Petitioner's
motion, see People v. Jamison, No. 12-241693-FC (Oakland Cty. Cir. Ct. Feb. 16, 2017),
and the Michigan Court of Appeals denied leave to appeal the trial court's decision. See

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People v. Jamison, No. 339223 (Mich. Ct. App. Dec. 21, 2017). On October 30, 2018,
the Michigan Supreme Court also denied leave to appeal. See People v. Jamison, 919
N.W.2d 250 (Mich. 2018).
Meanwhile, on January 3, 2017, Petitioner filed his current habeas corpus petition.
He has exhausted state-court remedies for his claims, and his case is now ready to be
adjudicated.
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires
prisoners who challenge "a matter 'adjudicated on the merits in State court' to show that
the relevant state court 'decision' (1) 'was contrary to, or involved an unreasonable
application of, clearly established Federal law,' or (2) 'was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.'
"

Wilson v. Sellers, 138 S. Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 2254(d)). "[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.

Rather, that application must also be

unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). "AEDPA thus imposes a
'highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U.S.
320, 333, n. 7, 117 S. Ct. 2059, 138 L.Ed.2d 481 (1997), and 'demands that state-court
decisions be given the benefit of the doubt,' Woodford v. Visciotti, 537 U.S. 19, 24, 123
S. Ct. 357, 154 L. Ed. 2d 279 (2002) (per curiam)." Renico v. Lett, 559 U.S. 766, 773
(2010).

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"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)). To obtain a writ of habeas corpus from a federal
court, a state prisoner must show that the state court's ruling on his or her claim "was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement." Id. at 103. Thus, "[o]nly
an 'objectively unreasonable' mistake, [White v. Woodall, 572 U.S. 415, 419 (2014)], one
'so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement,' slips through the
needle's eye of § 2254." Saulsberry v. Lee, 937 F.3d 644, 648 (6th Cir.) (quoting Richter,
562 U.S. at 103), cert. denied, __S. Ct.__, No. 19-419, 2019 WL 5301304 (U.S. Oct. 21,
2019). A state-court's factual determinations, moreover, are presumed correct on federal
habeas review, 28 U.S.C. § 2254(e)(1), and review is "limited to the record that was before
the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S.
170, 181 (2011).
III. Analysis
A. Claim One: Insufficient Evidence
Petitioner alleges that the evidence at his trial was insufficient to prove that he
participated in the crimes, either as a principal or as an aider and abettor. According to
Petitioner, there was insufficient evidence that he possessed the specific intent to commit
premeditated murder and, therefore, his convictions for assault with intent to commit
murder and conspiracy to commit murder violate his constitutional right to due process.

6

The Michigan Court of Appeals adjudicated this claim on the merits on direct review and
concluded that the evidence at trial was sufficient to support Petitioner's convictions.
1. Clearly Established Federal Law
The critical inquiry on review of a challenge to the sufficiency of the evidence
supporting a criminal conviction is
whether the record evidence could reasonably support a finding of
guilt beyond a reasonable doubt. But this inquiry 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. This familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to
ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote omitted)
(emphases in original). "Circumstantial evidence may support a conviction, McKenzie v.
Smith, 326 F.3d 721, 727 (6th Cir. 2003), and such evidence need not remove every
reasonable hypothesis except that of guilt. Walker v. Russell, 57 F.3d 472, 475 (6th Cir.
1995)." Apanovitch v. Houk, 466 F.3d 460, 488 (6th Cir. 2006).
Under AEDPA, moreover, a habeas court's "review of a state-court conviction for
sufficiency of the evidence is very limited," Thomas v. Stephenson, 898 F.3d 693, 698
(6th Cir. 2018), because Jackson claims are "subject to two layers of judicial deference."
Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). First, it is the responsibility
of the jury to decide what conclusions should be drawn from the evidence admitted at
trial. Johnson, 566 U.S. at 651 (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per
curiam)). "And second, on habeas review, 'a federal court may not overturn a state court

7

decision rejecting a sufficiency of the evidence challenge simply because the federal court
disagrees with the state court. The federal court instead may do so only if the state court
decision was 'objectively unreasonable.' " Id. (quoting Smith, 565 U.S. at 2); see also
Tanner v. Yukins, 867 F.3d 661, 672 (6th Cir. 2017) (stating that "two layers of deference
apply [to a sufficiency-of-the-evidence claim], one to the jury verdict, and one to the state
appellate court"), cert. denied, 138 S. Ct. 1283 (2018).
2. The Substantive Elements of the Crimes
The Jackson standard "must be applied with explicit reference to the substantive
elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n.
16. The Michigan Court of Appeals explained the elements of assault with intent to
commit murder and conspiracy to commit first-degree murder as follows:
The elements of assault with intent to commit murder are (1) an assault, (2)
with an actual intent to kill, (3) which, if successful, would make the killing
murder. People v. Brown, 267 Mich. App. 141, 147–8; 703 NW2d 230
(2005). . . . With respect to the conspiracy charge, under MCL 750.157a, a
conspiracy exists when "[a]ny person . . . conspires together with 1 or more
persons to commit an offense prohibited by law, or to commit a legal act in
an illegal manner. . . ." "Conspiracy is a specific-intent crime, because it
requires both the intent to combine with others and the intent to accomplish
the illegal objective." People v. Mass, 464 Mich. 615, 629; 628 NW2d 540
(2001). A conspiracy to commit first-degree murder in Michigan requires
proof that the conspirators planned, with an intent to kill the victim and this
premeditation and deliberation may be inferred. People v. Hammond, 187
Mich. App 105, 107–108; 466 NW2d 335 (1991).
Jamison, 2014 WL 1679126, at *2.
Regarding the necessary state of mind, the Court of Appeals explained that
[a] jury may infer an intent to kill if a defendant uses a dangerous weapon
in the commission of an offense. People v. Taylor, 422 Mich. 554, 568; 375
NW2d 1 (1985), rev'd on other grounds 422 Mich. 554 (1985). "The intent
to kill may be proved by inference from any facts in evidence." People v.
Jackson, 292 Mich. App 583, 588; 808 NW2d 541 (2011). "The requisite
intent [to kill] may be gleaned from the nature of the defendant's acts
8

constituting the assault; the temper or disposition of mind with which they
were apparently performed, whether the instrument and means used were
naturally adapted to produce death, his conduct and declarations prior to,
at the time, and after the assault, and all other circumstances. . . ." Brown,
267 Mich. at 150 n 5. Direct evidence itself is unnecessary, whereby a jury
may infer an intent to kill from evidentiary facts at trial. People v.
Lawton,196 Mich. App 341, 350; 492 NW2d 810 (1992).
Id. Because Petitioner was charged as a principal and as an aider and abettor, the Court
of Appeals noted that,
[i]n order to be convicted under an aiding and abetting theory, the
prosecution must show (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 he gave aid and
encouragement. People v. Moore, 470 Mich. 56, 67–68; 679 NW2d 41
(2004).
Id.
3. Application
One witness testified that Petitioner was present during the fight at the Rolladium
on the night of the crimes. See 8/2/12 Trial Tr. at 122-23, ECF No. 7-5, PageID. 452-453.
In addition, photos derived from the video taken of the skating party showed all three codefendants sitting together before the fighting. See 8/3/12 Trial Tr. at 129-30, ECF No.
7-6, PageID. 577.
Quintin Hardiman, a security guard at the Rolladium, testified that he evicted four
or five people, including Ingram, after the first fight began. Ingram tried to re-enter the
Rolladium with a revolver; he was mad and breathing heavily because he had just been
"jumped" by someone. 7/31/12 Trial Tr. at 83-86, 95, ECF No. 7-4, PageID. 300-301,
306.

9

Although Hardiman did not see anyone re-enter the Rolladium after he evicted
Ingram and a few other individuals, a photo prepared from the video taken during the
incident depicted Petitioner, Ingram, and a man in white clothing re-enter the building
shortly before the shooting. Id. at 90, 107-08, PageID. 303, 312; 8/3/12 Trial Tr. at 10608, 123-25, ECF No. 7-6, PageID. 565-566, 574-75. Two other photographs prepared
from the video showed Petitioner pointing a handgun and appearing to shoot from the
hip. See 8/3/12 Trial Tr. at 74, ECF No. 7-6, PageID. 549. Petitioner and German
appeared to be shooting while Ingram appeared to be running toward the exit. Id. at 11114, PageID. 568-569.
Petitioner's face was not visible in many of the photographs, and they did not show
Petitioner actually firing a gun, but Detective Jack Sutherland was convinced from viewing
the entire video that Petitioner was visible in the photographs. Sutherland thought that
the shooting came from the area where the defendants were standing. Petitioner, in fact,
appeared in one photo to be pointing a gun straight ahead of him into the skating rink. Id.
at 121, 137-39, PageID. 581-582, 573. An expert witness in firearms, moreover, testified
that at least two guns, and possibly three or four guns, were used in the shooting. See
8/2/12 Trial Tr. at 30-31, 35, ECF No. 7-5, PageID. 406-407, 409.
Despite this incriminating evidence, Petitioner contends that there was no
evidence of an intent to kill. But, as the Michigan Court of Appeals pointed out, the jury
could have inferred that Petitioner shared Ingram's vengeful state of mind because
Petitioner also was attacked during the brawl. In addition, photos derived from the
surveillance video showed Petitioner, Ingram, and German return to the party after they
were expelled from the Rolladium. Petitioner is depicted trying to hide an object in his

10

hand after his return and while walking down a hallway toward the skating rink.
Furthermore,
photograph 39 . . . shows [Petitioner] Ingram, and German shooting from
the entrance into the skating rink, and photograph 40, . . . shows [Petitioner]
shooting into the skating rink. Most importantly, photographs 41 and 42
clearly and unmistakably show [Petitioner] holding a handgun in his right
hand and shooting into the crowded skating rink as Ingram and German run
down the hallway.
Jamison, 2014 WL 1679126, at *3. The Michigan Court of Appeals opined that, "at the
very least, defendant knew about [the] codefendant's intent to kill for accomplice liability
purposes given the photographic evidence of defendant's participation in the shooting."
Id.
Regarding the alleged conspiracy, the Court of Appeals pointed out that,
Petitioner's
actions directly before the shooting occurred clearly show a mutual
understanding between defendant, Ingram, and German to shoot at the
individuals still at the party in revenge for the earlier brawl. Defendant and
codefendants returned with firearms after being initially ejected, they walked
down the hallway of the Rolladium, and they all stopped at the entrance of
the skating floor and began shooting at the same time. All of these facts
together create a sufficient foundation for a reasonable jury to determine
that defendant and codefendants specifically intended on shooting at the
other individuals when they entered the building, thereby creating an
unlawful agreement.
Id. at *4.
Additional evidence of Petitioner's guilt came from several handwritten letters that
he wrote while he was incarcerated:
He addressed one letter to his mother writing, "I just got tired of people
shooting at me . . . If I get life I probably deserve it . . . I let my family down
in the worst way . . . I was a bad person."
Id.

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A rational juror could have inferred from the evidence that Petitioner assaulted the
victims by firing a gun at them or that he aided and abetted his co-defendants in assaulting
the victims with knowledge that the co-defendants intended to shoot and kill someone. A
rational juror also could have inferred from the evidence, including a photo of him pointing
a gun toward the skating rink, that Petitioner had the intent to kill. Finally, a rational juror
could have inferred from Petitioner's association with his co-defendants before the
shooting and testimony that more than one gun was used in the shooting that Petitioner
and his co-defendants agreed to assault people on the skating rink with intent to kill them.
To conclude, the evidence taken in the light most favorable to the prosecution was
sufficient to support Petitioner's assault and conspiracy convictions. The Michigan Court
of Appeals, moreover, reasonably applied Jackson to the facts. Therefore, Petitioner is
not entitled to relief on his claim.
B. Claims Two through Six: Lack of Jurisdiction, Faulty Jury Instructions,
Prosecutorial Misconduct, and Ineffective Assistance of Trial Counsel
Habeas claims two through six challenge the trial court's jurisdiction, the trial
court's jury instructions, the prosecutor's conduct, and defense counsel's performance.
Petitioner raised these claims in his first motion for relief from judgment, which the trial
court denied on the merits and under Michigan Court Rule 6.508(D)(3). Because the trial
court determined that Petitioner failed to show "cause" for not raising these claims on
direct review, the State argues in its answer to the habeas petition that Petitioner
procedurally defaulted the claims.
In the habeas context, a procedural default is "a critical failure to comply with state
procedural law." Trest v. Cain, 522 U.S. 87, 89 (1997). A federal court generally will not
review the merits of a state prisoner's claims if a state court declined to hear the claims
12

because the prisoner failed to abide by a state procedural rule. Martinez v. Ryan, 566
U.S. 1, 9 (2012). A procedural default, however, ordinarily is not a jurisdictional matter,
Johnson v. Lee, 136 S. Ct. 1802, 1806 (2016) (quoting Trest, 522 U.S. at 89), and a court
may bypass a procedural-default question if the claim is easily resolvable against the
habeas petitioner. Lambrix v. Singletary, 520 U.S. 518, 525 (1997).
Claims two through six do not warrant habeas relief for the reasons stated below.
Accordingly, the Court excuses the alleged procedural error and "cut[s] to the merits," as
a procedural-default analysis would only complicate this case. Thomas v. Meko, 915 F.3d
1071, 1074 (6th Cir.) (citing Storey v. Vasbinder, 657 F.3d 372, 380 (6th Cir. 2011)), cert.
denied, 139 S. Ct. 2726 (2019).
1. The Trial Court's Jurisdiction
Petitioner alleges that the state trial court deprived him of due process and a fair
trial because it arraigned him without first acquiring subject-matter jurisdiction.
Specifically, Petitioner alleges that: (a) the assistant prosecutor, as opposed to the
prosecutor, initiated the felony complaint and authorized the warrant; (b) the felony
complaint is defective because it does not contain a sufficient statement of facts; (c) no
magistrate's return exists, and, therefore, jurisdiction did not transfer from the state district
court to the state circuit court; (d) the trial court arraigned Petitioner on June 20, 2102,
even though the prosecution did not file the requisite felony information until June 21,
2012; and (e) the felony Information merely referred to the criminal statutes and provided
a "bare bones" description of the offense.
The state trial court found no merit in Petitioner's jurisdictional arguments because:
state law permits an assistant prosecutor to perform certain duties even when the

13

prosecutor is not absent or under a disability; the criminal Information contained sufficient
facts; the bindover to state circuit court was proper; and Petitioner was properly bound
over before the prosecutor filed the felony Information. Although Petitioner continues to
maintain that the trial court violated procedures mandated by state law, "it is not the
province of a federal habeas court to reexamine state-court determinations on state-law
questions." Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). "McGuire thus forbids federal
habeas courts from second-guessing a state court’s resolution of a state-law question."
Thomas, 898 F.3d at 705. In other words, the state court's interpretation of state law
binds this Court sitting in habeas corpus. Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
Furthermore, whether the state trial court was "vested with jurisdiction under state
law is a function of the state courts, not the federal judiciary." Willis v. Egeler, 532 F.2d
1058, 1059 (6th Cir. 1976). Thus, "a state court's interpretation of state jurisdictional
issues conclusively establishes jurisdiction for purposes of federal habeas review."
Strunk v. Martin, 27 F. App'x 473, 475 (6th Cir. 2001). Petitioner is not entitled to relief
on his jurisdictional claim.
2. The Trial Court's Jury Instructions
Petitioner's third claim alleges that the trial court violated state law and deprived
him of due process and a fair trial by failing to read the elements of the crimes to the jury
after the jury was sworn and before any testimony was taken. Petitioner contends that
this omission permitted the jurors to speculate on the standard they were to apply when
evaluating the incoming evidence.
Petitioner's fourth claim is similar. It alleges that the trial court did not control the
criminal proceedings by properly instructing the jury before the taking of evidence.

14

The state trial court rejected both of Petitioner's claims about the jury instructions.
It opined that it had instructed the jurors as required by law, and it pointed out that it
informed the jurors of the elements of Petitioner's crimes at the conclusion of the case.
Petitioner's claim that the trial court violated state law on jury instructions fails
because "[a] federal court may not issue the writ [of habeas corpus] on the basis of a
perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984). Instead, "a federal
[habeas] court is limited to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States." McGuire, 502 U.S. at 68.
Trial judges, of course, have a duty to give instructions that sufficiently explain the
law, Kelly v. South Carolina, 534 U.S. 246, 256 (2002), but not every deficiency in jury
instructions rises to the level of a due process violation. Middleton v. McNeil, 541 U.S.
433, 437 (2004). "[T]o warrant habeas relief, jury instructions must not only have been
erroneous, but also, taken as a whole, so infirm that they rendered the entire trial
fundamentally unfair." Scott v. Mitchell, 209 F.3d 854, 882 (6th Cir. 2000). In making that
determination, the Court must bear in mind that the Supreme Court has "defined the
category of infractions that violate 'fundamental fairness' very narrowly." McGuire, 502
U.S. at 72-73 (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). "An omission,
or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law."
Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
Petitioner is not challenging the accuracy of the trial court's jury instructions.
Rather, he is claiming that the trial court failed to inform the jurors of the elements of the
crimes before the taking of testimony. During voir dire, however, the trial court read the
charges against Petitioner and explained the elements of the crimes. See 7/30/12 Trial

15

Tr. at 6, 13-15, ECF No. 7-3, PageID. 204, 208-09. Although the jurors who deliberated
Petitioner's case may not have been in the jury box at the time, they would have been in
the courtroom listening to the proceedings.
The trial court repeated the elements of the charged crimes at the conclusion of
the case. See 8/6/12 Trial Tr. at 62-69, ECF No. 7-7, PageID. 629-633. The court also
provided the jury with a written copy of the jury instructions. Id. at 72, PageID. 634.
Any procedural irregularities under state law did not deprive Petitioner of a fair trial
because the trial court's jury instructions sufficiently explained the standard that the jurors
had to apply when deliberating Petitioner's case. Therefore, Petitioner is not entitled to
relief on his third and fourth claims regarding the jury instructions.
3. The Prosecution
Petitioner's fifth claim alleges that the prosecution deprived him of a fair trial by
failing to ensure that the trial court had subject matter jurisdiction and that the jury was
properly instructed. No state court adjudicated the merits of this claim, but prosecutorialmisconduct claims are reviewed deferentially in a habeas case. Millender v. Adams, 376
F.3d 520, 528 (6th Cir. 2004). "To be cognizable, the misconduct must have so infected
the trial with unfairness as to make the resulting conviction a denial of due process."
Bowling v. Parker, 344 F.3d 487, 512 (6th Cir.2003) (quotation marks and citation
omitted).
As pointed out above, the trial court determined that it had jurisdiction in
Petitioner's case, and its jury instructions included an explanation of the elements of the
crimes. Therefore, the prosecutor did not engage in misconduct by failing to object to the
trial court's jurisdiction or the jury instructions.

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4. Trial Counsel
Petitioner's sixth claim alleges that trial counsel was ineffective for refusing to
object to (i) the trial court's lack of subject-matter jurisdiction, (ii) the trial court's failure to
give complete jury instructions and control the proceedings, and (iii) the prosecutor's
conduct.

Petitioner also contends that trial counsel failed to investigate the case,

interview essential witnesses, and prepare a defense supported by a trial strategy.
The state trial court applied Strickland v. Washington 466 U.S. 668, 690 (1984), to
Petitioner's claim and rejected the claim. The trial court stated that Petitioner had failed
to rebut the presumption that counsel's actions constituted sound trial strategy and
because there were no errors in the case, trial counsel was not ineffective for failing to
raise Petitioner's claims.
To prevail on his ineffective-assistance-of-counsel claim, Petitioner must show
"that counsel's performance was deficient" and "that the deficient performance prejudiced
the defense." Id. at 687. The deficient-performance prong "requires showing that counsel
made errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id. Petitioner must demonstrate that "counsel's
representation fell below an objective standard of reasonableness." Id. at 688.
The "prejudice" prong "requires showing that counsel's errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. A
defendant must demonstrate "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.

A

reasonable probability is a probability sufficient to undermine confidence in the outcome."
Id. at 694.

"The standards created by Strickland and § 2254(d) are both 'highly

17

deferential,' and when the two apply in tandem, review is 'doubly' so." Richter, 562 U.S.
at 105 (internal and end citations omitted).
Here, the trial court found no merit in Petitioner's jurisdictional claims, and it
determined that it appropriately instructed the jury on the law. The prosecutor, moreover,
did not engage in misconduct or deprive Petitioner of a fundamentally fair trial. Therefore,
an objection to the trial court's jurisdiction, the jury instructions, and the prosecutor's
conduct would have been futile. "[T]he failure to make futile objections does not constitute
ineffective assistance." Altman v. Winn, 644 F. App'x 637, 644 (6th Cir. 2016).
Petitioner, nevertheless, contends that trial counsel also failed to investigate the
case, interview essential witnesses, and prepare a defense supported by a trial strategy.
The record, however, indicates that Petitioner's attorney was prepared for trial and that
he had a trial strategy. He actively participated in voir dire, gave an opening statement,
cross-examined witnesses, made appropriate objections, moved for a directed verdict of
acquittal, and gave a closing argument where he maintained that there was a lack of
evidence.

Defense counsel pointed out that none of the witnesses claimed to see

Petitioner with a gun, and no one could determine from the photos or video whether the
gun he supposedly possessed was real and functional. Counsel also stated that law
enforcement officials were merely assuming Petitioner had fired the gun.
Defense counsel pointed out that Hardiman, the security guard, had said the
shooting seemed to be random. Defense counsel concluded from Hardiman's testimony
that there was no intent to kill anyone and that the lack of evidence created reasonable
doubt.

18

It is true that defense counsel had "a duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations unnecessary."
Strickland, 466 U.S. at 691. But it is obvious from the record that defense counsel was
familiar with the facts, and Petitioner has not identified any particular investigation that
defense counsel could have pursued. The duty to investigate does not require defense
attorneys to
scour the globe on the off chance something will turn up; reasonably diligent
counsel may draw a line when they have good reason to think further
investigation
would
be
a
waste.
Rompilla v. Beard, 545 U.S. 374, 383 (2005).
Petitioner also has not named any witnesses that his attorney should have
interviewed.

In the absence of any affidavits or other evidence demonstrating that

witnesses had specific testimony favorable to the defense, Petitioner cannot show he was
prejudiced by the omission of the testimony. Clark v. Waller, 490 F.3d 551, 557 (6th Cir.
2007); Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005).
Petitioner has failed to demonstrate that his trial attorney's performance was
deficient performance and that the allegedly deficient performance prejudiced the
defense. Therefore, the trial court reasonably applied Strickland, and Petitioner is not
entitled to relief on his claim about trial counsel.
C. Claim Seven: Ineffective Assistance of Appellate Counsel
Petitioner alleges that his appellate attorney abandoned him during his appeal of
right by refusing to entertain any of the issues that he raised in his first motion for relief
from judgment. Petitioner also alleges that appellate counsel failed to inform him that he
had a right to file a pro se supplemental brief.

19

The trial court rejected this claim during post-conviction proceedings. The court
stated that Petitioner had failed to establish any defect in his case and appellate court
was not ineffective for failing to raise non-existent issues. The court concluded that
appellate counsel's actions were not outside the wide range of professionally competent
assistance.
The proper standard for evaluating a claim about appellate counsel is the standard
enunciated in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000). To prevail on his
claim about appellate counsel, Petitioner must demonstrate (1) that his appellate attorney
acted unreasonably in failing to discover and raise non-frivolous issues on appeal and (2)
there is a reasonable probability the defendant would have prevailed on appeal if his
attorney had raised the issues. Id. (citing Strickland, 466 U.S. at 687-91, 694). "[B]y
definition, appellate counsel cannot be ineffective for a failure to raise an issue that lacks
merit." Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).
The five claims that appellate counsel could have raised on appeal (habeas claims
two through six), lack merit for the reasons given above. Therefore, appellate counsel
did not act unreasonably in failing to discover and raise all of Petitioner's claims on appeal,
and there is not a reasonable probability that Petitioner would have prevailed if counsel
had raised the claims on appeal.

Further, the state trial court reasonably applied

Strickland to Petitioner's claim. Petitioner is not entitled to relief on his claim.
D. Claim Eight: Newly Discovered Evidence
In his reply to the State's answer to his petition, Petitioner asserts his innocence,
and in his eighth and final claim, Petitioner purports to have newly discovered evidence
that a key witness has come forward and claimed responsibility for the shooting at the

20

Rolladium. The "key witness" is co-defendant Robert German, who states in an affidavit
dated August 12, 2015, that:
● On December 23, 2011; he shot six people;
● Petitioner and Ingram were with him at the time, but they did not
see him retrieve a gun, and they did not know what he intended to do with
the gun or that he was planning to go back to the skating party;
● neither Petitioner, nor Ingram, had a gun, and if they had known
his plans, they would have stopped him from making the biggest mistake of
his life;
● two innocent men are behind bars because of his misconduct; and
● he hopes that his affidavit is taken into consideration so that he can
accept ownership of the crime he committed, and Petitioner and Ingram can
have another chance at a righteous life.
See Petitioner's successive motion for relief from judgment, Attachment A, ECF No. 716, PageID. 1200-01.
Petitioner asserts that he is entitled to an evidentiary hearing or a new trial in light
of German's affidavit. However, because the trial court adjudicated Petitioner's claim on
the merits during post-conviction proceedings, this Court's review is limited to the record
that was before the state court, and Petitioner is not entitled to an evidentiary hearing in
this Court. Pinholster, 563 U.S. at 181.
Furthermore, "[c]laims of actual innocence based on newly discovered evidence
have never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding." Herrera v.
Collins, 506 U.S. 390, 400 (1993). "This rule is grounded in the principle that federal
habeas courts sit to ensure that individuals are not imprisoned in violation of the
Constitution – not to correct errors of fact." Id.

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In capital cases, the Court may assume that "a truly persuasive demonstration of
'actual innocence' made after trial would render the execution of a defendant
unconstitutional, and warrant federal habeas relief if there were no state avenue open to
process such a claim." Id. at 417. But this is not a capital case, and even if it were, "the
threshold showing for such an assumed right would necessarily be extraordinarily high."
Id. "To be credible, [a claim of actual innocence] requires [a] petitioner to support his
allegations of constitutional error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that
was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995).
Even if Petitioner's claim of innocence were cognizable on habeas review, the
claim is not credible because it is based on an affidavit. In the new trial context, pleadings
"based solely upon affidavits are disfavored because the affiants' statements are obtained
without the benefit of cross-examination and an opportunity to make credibility
determinations." Herrera, 506 U.S. at 417. Affidavits that seek to exonerate a petitioner
long after a conviction and that blame someone else for the crime must “be treated with
a fair degree of skepticism." Id. at 423 (O'Connor, J., concurring).
Postconviction statements by codefendants are particularly suspect because
codefendants may try to assume full responsibility for a crime without any adverse
consequences. Allen v. Yukins, 366 F.3d 396, 405 (6th Cir. 2004). German's three-year
delay in accepting responsibility for the crime further undermines the credibility of his
affidavit. See Ashton v. Davis, 508 F. App'x 486, 488 (6th Cir. 2012).
The state trial court, moreover, correctly pointed out that the facts established at
Petitioner's trial " 'sharply deviate' from Mr. German's affidavit." As noted above, photos

22

prepared from a surveillance video at the Rolladium showed Petitioner pointing a gun
toward the crowd on the skating rink. Petitioner has not met the extraordinarily high
threshold needed to show that he is actually innocent.
IV. Conclusion
The state courts reasonably adjudicated and rejected Petitioner's claims. Their
decisions were not contrary to, or unreasonable applications of, Supreme Court
precedent. Their decisions also were not so lacking in justification that there was an error
beyond any possibility for fairminded disagreement. The Court, therefore, denies the
petition for writ of habeas corpus.
V. Denial of a Certificate of Appealability
and Leave to Appeal In Forma Pauperis
"[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court's denial or dismissal of the petition. Instead, [the]
petitioner must first seek and obtain a [certificate of appealability.]" Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). 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). "A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed
further." Miller-El, 537 U.S. at 327.
Reasonable jurists would not debate the Court's assessment of Petitioner’s claims,
nor conclude that the issues deserve encouragement to proceed further. Accordingly,
the Court declines to issue a certificate of appealability. The Court also denies Petitioner
permission to proceed in forma pauperis on appeal if he appeals this decision, because
23

an appeal from the Court’s decision could not be taken in good faith. 28 U.S.C. §
1915(a)(3). Petitioner may apply to the Court of Appeals for a certificate of appealability
and leave to proceed in forma pauperis.
SO ORDERED.

Date: February 11, 2020

s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge

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