Lister v. Trierweiler

Filing 20

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus; denying a certificate of appealability and denying permission to appeal in forma pauperis. Signed by District Judge Denise Page Hood. (ATee)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK BERETE LISTER,

Petitioner,

Case No. 2:17-cv-10367
Hon. Denise Page Hood

v.
TONY TRIERWEILER,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS
CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, (3) AND
DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. §
2254. Petitioner Derrick Berete Lister was convicted after a jury trial in the
Saginaw Circuit Court of first-degree home invasion, MICH. COMP. LAWS §
750.110a(2); conspiracy to commit first-degree home invasion, MICH. COMP.
LAWS § 750.110a(2); assault with intent to do great bodily harm less than
murder, MICH. COMP. LAWS § 750.84; conspiracy to commit assault with intent
to do great bodily harm less than murder, MICH. COMP. LAWS § 750.84;
carrying a firearm with unlawful intent, MICH. COMP. LAWS § 750.226; felon in
possession of a firearm, MICH. COMP. LAWS § 750.224f; and three counts of
possession of a firearm during the commission of a felony (felony-firearm),
MICH. COMP. LAWS § 750.227b.

Petitioner was sentenced to two terms of 26 years and 8 months to 50
years’ imprisonment for the home invasion and conspiracy to commit home
invasion convictions. These two sentences run concurrently with each other
but consecutively to his other sentences. He was further sentenced to two
concurrent terms of 12 years and 8 months to 20 years for the assault and
conspiracy to commit assault convictions, a concurrent term of 6 to 10 years
for the felon in possession conviction, a concurrent term of 4 to 8 years for the
carrying a firearm with unlawful intent conviction, and three terms of 2 years
for his felony-firearm convictions to be served concurrently with each other but
consecutively to his other terms. Adding the consecutive terms together,
Petitioner was sentenced to a composite term of 41 years and 8 months to 72
years imprisonment.
The petition raises ten claims: (1) the prosecutor impermissibly
exercised a peremptory challenge to strike the only African-American male
member from his jury; (2) insufficient evidence was presented to sustain
Petitioner’s assault and conspiracy to assault convictions; (3) the trial court
erred in imposing consecutive sentences; (4) Petitioner’s trial counsel was
ineffective for failing to fully investigate an alibi defense; (5) Petitioner’s trial
counsel was ineffective for additional reasons; (6) the prosecutor committed

2

misconduct at trial, (7) the prosecutor improperly withheld an amended
witness list from the defense; (8) appellate counsel was ineffective for failing
to raise meritorious issues on direct appeal; (9) the prosecutor withheld
exculpatory evidence from the defense; and (10) appellate counsel failed to
raise issues of ineffective assistance of trial counsel on direct appeal.
The Court finds that Petitioner’s claims are without merit or barred by his
state court procedural defaults. Therefore, the petition will be denied. The
Court will also deny a certificate of appealability and deny permission to
appeal in forma pauperis.
I. Background
The Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct pursuant to 28 U.S.C.
§ 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
The charges against defendant resulted from an incident in
which defendant and another man entered a home, which was
occupied by several women and children, and fired gunshots.
Before trial, the trial court granted defendant’s motion for the
appointment of an investigator because of difficulties in contacting
several individuals, in accessing police records, and in gathering
information regarding alibi evidence.
At trial, Catherine Williams, Ashley Williams, and
Chanquiece Moton testified that on the evening of November 24,
2011, they were at Ashley Williams’s home when defendant
knocked on the door. Ashley Williams answered the door, and
3

defendant entered the home, pointed a gun at Ashley Williams,
and stated that he was going to kill her.2 Ashley Williams ran into
the kitchen; defendant pursued her and fired shots in her
direction. The witnesses stated that a second man, Willie
Youngblood, also entered the home and began shooting. Moton
stated that defendant also threatened to kill her and Ashley
Williams’s children. Catherine Williams and Ashley Williams
showed the police a photograph of defendant they found on
Facebook.
Mary Jones, defendant’s girlfriend of three years, testified
that she and defendant lived in Columbus, Ohio, and were visiting
Saginaw, Michigan at the time the incident occurred. Jones
testified that she and defendant argued about defendant’s sexual
encounter with Ashley Williams. Jones testified that on the day of
the incident, she dropped defendant off at Youngblood’s home at
11:00 a.m. and she went to her aunt’s home. She and defendant
left for Ohio that evening, and a few hours later, at 1:29 a.m., their
car was stopped by police in Ohio for missing taillights.
The jury convicted defendant of felon in possession of a
firearm, conspiracy to commit first-degree home invasion,
first-degree home invasion, conspiracy to commit assault with
intent to do great bodily harm less than murder, assault with intent
to do great bodily harm less than murder, carrying a firearm with
unlawful intent, and three counts of felony-firearm.
_____
1

Ashley Williams stated that she knew defendant because they
had a sexual encounter shortly before the incident occurred.
People v. Lister, 2014 WL 4495234, at *1-2 (Mich. Ct. App. Sept. 11, 2014).
Following his conviction and sentence, Petitioner filed an appeal of right.
His appellate counsel filed a brief on appeal, raising what now form his first
three habeas claims:
4

I. The prosecutor’s exercise of a peremptory strike to exclude the
only African-American male member of the jury violated
Defendant’s constitutional right to equal protection of the law.
II. Defendant’s assault with intent to cause great bodily harm and
conspiracy to commit an assault with intent to commit great bodily
harm convictions are not supported by sufficient evidence. US
Const Am XIV.
III. The trial court erred when it imposed consecutive terms on
Counts V and VI because it disagreed with the jury’s acquittal of
Defendant on the original counts VII and VIII. This is constitutional
error under the 6th Amendment. Defendant is entitled to a
re-sentencing.
Petitioner also filed a supplemental pro se brief raising an additional two
claims:
I. Defendant was denied his Sixth Amendment right to effective
assistance of counsel, where counsel failed to fully investigate
alibi defense evidence, within motioning the court for production
of ‘critical’ and appointed investigator, in whom was appointed by
the court to conduct an investigation into said alibi.
II. Appointed appellate counsel was ineffective contrary to both
the federal and state constitutions, where appellate counsel failed
to raise on appeal as a matter of right, the ‘cumulative errors’ of
trial counsel.
The Michigan Court of Appeals affirmed Petitioner’s convictions in an
unpublished opinion, but the court ordered that the judgment of sentence was
to be amended to indicate that Petitioner’s felony-firearm sentences were to
run concurrently with his conspiracy convictions. Id.

5

Petitioner subsequently filed an application for leave to appeal in the
Michigan Supreme Court. The application raised the same five claims raised
in the Michigan Court of Appeals, and it also presented two additional claims:
I. The prosecution failed to provide sufficient evidence for the jury
to find Defendant-Appellant guilty of assault with intent to commit
great bodily harm and conspiracy to commit assault with intent to
commit great bodily harm beyond a reasonable doubt, where
there was irrefutable evidence that would substantiate a reliable
alibi.
II. Defendant-Appellant was deprived of his federal and state
constitutional rights to the effective assistance of counsel, where
appointed appellate counsel refused to brief and/or provide
assistance within perfecting Defendant-Appellant’s in propria
persona issues on appeal.
The Michigan Supreme Court denied the application because it was not
persuaded that the questions presented should be reviewed. People v. Lister,
859 N.W.2d 522 (Mich. 2015)(Table).
Petitioner then filed a motion for relief in the trial court, raising six claims:
I. Was the Defendant deprived of his federal and state
constitutional rights to effective assistance of counsel, where
counsel’s performance fell below an objective standard of
reasonableness, based on the following cumulative errors of
counsel during trial.
II. Was the Defendant denied a fair trial contrary to his 14th
Amendment rights, where the prosecution engaged in improper
comments and offered contradictory evidence to support and
change the theory with regards to the weapon used before the
jury?
6

III. Did the prosecution deprive Defendant of his right to right to
cross examine, where then the prosecutor failed to comply with
MCL § 767.40a, within withholding the amended res gestae
witness list?
IV. Was the Defendant deprived of his Sixth and Fourteenth
Amendment rights, when the prosecution withheld “exculpatory
information” from the Defendant during his trial?
V. Was the Defendant deprived of his federal and state
constitutional rights, where the appointed appellate counsel failed
to raise the issues incorporated herein?
VI. Did trial court err in allowing conviction of Defendant of three
separate counts of violating the felony-firearm statute, MCL
750.227b, in a single criminal transaction?
The trial court denied the motion for relief from judgment in an opinion
dated July 25, 2015. Dkt. 18-13. After discussing the merits of the claims, the
trial court found that “Defendant has not demonstrated that any of the alleged
errors outlined in his motion resulted in actual prejudice as required by Mich.
Ct. R. 6.508(D)(3)(b).” Id., at 3, 7.
Petitioner filed an amended motion for relief from judgment a few days
before the trial court ruled on his first motion, raising one additional basis in
support of his ineffective assistance of trial counsel claim. See Dkt. 18-12. The
trial court denied the amended motion on the basis that it was a prohibited
successive motion for relief from judgment under Michigan Court Rule
6.502(G)(2), and it was otherwise without merit. See Dkt. 18-14.
7

Petitioner appealed the denial of his motion for relief from judgment in
the Michigan Court of Appeals. His application for leave to appeal was denied
because Petitioner failed “to meet the burden of establishing entitlement to
relief under Mich. Ct. R. 6.508(D).” People v. Lister, No. 328917 (Mich. Ct.
App. Nov. 4, 2015). Petitioner’s subsequent appeal to the Michigan Supreme
Court was denied by citation to the same court rule. People v. Lister, No.
152845 (Mich. Sept. 6, 2016).
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).

8

“[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 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).

9

III. Analysis
A. Batson Challenge
Petitioner’s first claim asserts that his rights under Batson v. Kentucky,
476 U.S. 79 (1986), were violated when the prosecutor used a peremptory
challenge to strike the only male African-American juror from the jury.
Petitioner asserts that the struck juror had satisfactorily answered the voir dire
questions, and the prosecutor had no non-discriminatory reason to strike him
over other jurors that answered the questions in the same way.
After reciting the controlling constitutional standard, the Michigan Court
of Appeals rejected this claim on the merits as follows:
During voir dire, the prosecution exercised one of its
peremptory challenges on the sole black male from the jury pool.
Because the prosecutor offered a race-neutral explanation and
the trial court ruled on whether the explanation was a pretext, the
first step is moot, and our analysis begins with the second step.
Knight, 473 Mich. at 338. When defendant objected to the use of
the peremptory challenge on this potential juror, the prosecutor
stated that he used the challenge because of the gentleman’s
statement that he would require scientific evidence in order to
convict. This is a race-neutral reason and satisfies step two of the
Batson process.
For the final step of the Batson process, the trial court
concluded that the prosecutor’s reason for dismissing the
gentleman was not pretextual. After our review of the record, we
conclude that the trial court did not clearly err in making this
determination.

10

The prosecutor’s decision to excuse the sole black male
from the jury pool was based on the following exchange:
[Prosecutor]: How many of you expect to see some
kind of scientific evidence in this case that’s going to
be the—the clincher? Do you, Mr. Vaughn?
JUROR NO. 13: No.
[Prosecutor]: How about you, Ms. Morris.
JUROR NO. 7: No.
[Prosecutor]: Ms. Stinson?
JUROR NO. 4: No.
[Prosecutor]: How many of you expect to see some
kind of scientific evidence in this case? DNA,
fingerprints, something like that? Does anybody? Mr.
Vaughn, you’re shaking your head, raising your hand.
Are you going to be disappointed if you don’t?
JUROR NO. 13: No, not really.
[Prosecutor]: Are you going to hold it against me and
the People of the State of Michigan if you don’t see or
hear that kind of evidence?
JUROR NO. 13: Yes.
[Prosecutor]: So you do expect to hear or see that?
JUROR NO. 13: Yes.
[Prosecutor]: And so if you don’t see or hear it, you’re
going to be disappointed?

11

JUROR NO. 13: Not disappointed so much as it’s got
to prove him guilty.
[Prosecutor]: I’m sorry, sir, I’m having trouble hearing
you.
JUROR NO. 13: I said, like, if I don’t see the
evidence, like to prove him guilty, I’m going to find him
not guilty.
[Prosecutor]: Well, you do realize that there are kinds
of evidence other than scientific evidence; don’t you?
JUROR NO. 13: Yes.
[Prosecutor]: I mean, like eyewitness evidence?
JUROR NO. 13: Yes.
[Prosecutor]: Is eyewitness evidence any good to
you?
JUROR NO. 13: It depends.
[Prosecutor]: Huh?
JUROR NO. 13: You can’t believe what everybody
says.
[Prosecutor]: Okay. I understand that. But that, of
course, is your job to decide who you believe and who
you don’t, right? [Emphasis added.]
The prosecutor’s exchange with the prospective juror during
voir dire shows that the prospective juror’s answers to the
prosecutor’s questions were somewhat ambiguous. He stated that
he would judge the case based on the evidence presented, but
also stated that he would hold it against the prosecution if it did
12

not produce scientific evidence. Thus, when viewing the record as
a whole, we are not left with a definite and firm conviction that the
trial court made a mistake for this final step of the Batson process.
As a result, defendant has failed to establish
any discriminatory intent on behalf of the prosecutor, and his
Batson challenge fails.
Lister, 2014 WL 4495234, at *3-5 (emphasis in original).
In Batson the Supreme Court articulated a three-step analysis to be
applied to a claim that purposeful discrimination occurred in the selection of
the jury based on the prosecutor’s exercise of peremptory challenges. 476
U.S. at 96; see United States v. Bartholomew, 310 F.3d 912, 919 (6th Cir.
2002). First, the defendant must establish a prima facie case of racial
discrimination. See United States v. Copeland, 321 F.3d 582, 599 (6th Cir.
2003). This requires an initial showing that “the defendant . . . is a member of
a cognizable racial group . . . and that the prosecutor has exercised
peremptory challenges to remove from the venire members of the defendant’s
race.” Batson, 476 U.S. at 96 (citation omitted).
Second, once the defendant has raised the necessary inference, “the
burden shifts to the state to come forward with a neutral explanation for
challenging [potential] jurors.” Id. at 97. “The government is not required to
persuade the court that its reasons for dismissing the juror were well-founded;

13

rather it need only demonstrate that its reasons were race-neutral.” Copeland,
321 F.3d at 599. More specifically, “[t]he second step of this process does not
demand an explanation that is persuasive or even plausible. ‘At this . . . step
of the inquiry, the issue is the facial validity of the prosecutor’s explanation.
Unless a discriminatory intent is inherent in the prosecutor’s explanation, the
reason offered will be deemed race neutral.’” Purkett v. Elem, 514 U.S. 765,
767-68 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)).
Third, the party opposing the strike must demonstrate that the
prosecutor’s purported explanation is merely a pretext for racial motivation.
See McCurdy v. Montgomery County, 240 F.3d 512, 521 (6th Cir. 2001).
Ultimately, the court must determine “whether the defendant has carried his
burden of proving purposeful discrimination.” Hernandez, 500 U.S. at 359. In
making this determination, the Court presumes that the facially valid reasons
proffered by the prosecution are true. Id. at 359-60. Racially discriminatory
purpose or intent must be affirmatively shown by the opponent of the strike.
Id. at 360. The ultimate burden of persuasion always remains with the
opponent of the strike. See United States v. McFerron, 163 F.3d 952, 955 (6th
Cir.1998).
Notwithstanding this three-part test, the Supreme Court held that the

14

question of whether a prima facie case has been established becomes moot
once a court rules on the ultimate question under Batson of whether there was
purposeful discrimination. Hernandez, 500 U.S. at 360; Lancaster v. Adams,
324 F.3d 423, 432-33 (6th Cir. 2003). “Once a prosecutor has offered a
race-neutral explanation for the peremptory challenges and the trial court had
ruled on the ultimate question of intentional discrimination, the preliminary
issue of whether the defendant had made a prima facie showing becomes
moot.” Hernandez, 500 U.S. at 359; Lancaster, 324 F.3d at 433.
Here, in response to Petitioner’s Batson challenge the prosecutor
indicated that it struck the juror in question because he “didn’t like his initial
answers regarding my questions on voir dire about the necessity of scientific
evidence. He indicated he would require it.” Dkt. 18-6, at 78. The trial court
accepted this race-neutral explanation as true, stating “[b]ased upon what [the
prosecutor] has placed on the record . . . I’m going to deny your request at this
time. I believe he’s given justification for his excusing of Mr. Vaughn. . . .” Id.,
at 78-79.
Petitioner argues that another prospective juror answered the question
about scientific evidence in the same way, but the record does not support
this assertion. Unlike the struck juror, who at first stated he would “hold it

15

against [the prosecution] if [he] didn’t see or hear [scientific evidence],” Id., at
39, the other juror merely stated “it would help if [scientific evidence] was seen
a little bit, like fingerprints or something like that.” Id., at 40-41. No other juror
answered the initial question of whether they would hold it against the
prosecutor if he did not present scientific evidence affirmatively. Ultimately
both of the jurors in question agreed that they would “judge the case based
on what there is,” but the struck juror’s initial response was distinctly more
critical about the lack of scientific evidence from the other answers given.
The record therefore reasonably supports the state court’s finding that
the prosecutor’s explanation was both facially race-neutral and not merely a
pretext. See Purkett v. Elem, 514 U.S. at 768-69. The reason given by the
prosecutor was based on the responses given by jurors to the questions
presented during voir dire. “Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race neutral.”
Hernandez, 500 U.S. at 360. Petitioner has not satisfied his burden to
overcome the trial court’s finding that the prosecutor’s explanation was not
racially motivated. See Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015). The
claim is therefore without merit.

16

B. Sufficiency of the Evidence
Petitioner’s second claim asserts that constitutionally insufficient
evidence was presented at trial to sustain his convictions for the assault and
conspiracy to commit the assault offenses. He asserts that the evidence at
trial indicated that the second person who entered the apartment was the only
shooter, and the evidence indicated that Petitioner was the first person to
enter the apartment.
After reciting the controlling constitutional standard for determining
whether constitutionally sufficient evidence was presented at trial to sustain
Petitioner’s convictions, the Michigan Court of Appeals rejected the claim as
follows:
Catherine Williams, Ashley Williams, and Chanquiece
Moton testified that defendant entered the home armed with a
handgun, threatened to kill Ashley Williams, and pursued Ashley
Williams through the home while firing shots in her direction. The
infliction of an actual wound is not an element of the offense of
assault with intent to do great bodily harm less than murder.
Parcha, 227 Mich. App. at 239. Furthermore, looking at the
evidence as a whole, a jury reasonably could infer that defendant
intended to cause great bodily harm to Ashley. Kanaan, 278 Mich.
App. at 622; see also People v. Fletcher, 260 Mich. App. 531,
562; 679 N.W.2d 127 (2004). In addition, circumstantial evidence
supported a finding that defendant conspired with Youngblood to
commit the offense of assault with intent to do great bodily harm
less than murder. Jackson, 292 Mich. App. at 588. Contrary to
defendant’s assertion that all the shots were fired by Youngblood,
evidence in the form of witness testimony supported a finding that
17

defendant was a shooter and in fact was the primary and initial
shooter. Accordingly, the evidence was sufficient to support
defendant’s convictions of assault with intent to do great bodily
harm less than murder and conspiracy to commit assault with
intent to do great bodily harm less than murder.
Lister, 2014 WL 4495234, at *5.
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). A reviewing court is not required to “ask
itself whether it believes that the evidence at the trial established guilt beyond
a reasonable doubt. Instead, the question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.” Id. at 318-19 (internal citations omitted) (emphasis in original).
Furthermore, a reviewing court “faced with a record of historical facts that
supports conflicting inferences must presume—even if it does not affirmatively
appear in the record—that the trier of fact resolved any such conflicts in favor
of the prosecution, and must defer to that resolution.” Id. at 326.
A federal habeas court may not overturn a state court decision that
rejects a sufficiency of the evidence claim merely because the federal court

18

disagrees with the state court’s resolution of that claim. Instead, a federal
court may grant habeas relief only if the state court decision was an
objectively unreasonable application of the Jackson standard. See Cavazos
v. Smith, 565 U.S. 1, 2 (2011). “Because rational people can sometimes
disagree, the inevitable consequence of this settled law is that judges will
sometimes encounter convictions that they believe to be mistaken, but that
they must nonetheless uphold.” Id. For a federal habeas court reviewing a
state court determination that sufficient evidence was presented, “the only
question under Jackson is whether that finding was so insupportable as to fall
below the threshold of bare rationality.” Coleman v. Johnson, 566 U.S. 650,
656 (2012). A state court’s determination that the evidence does not fall below
that threshold is entitled to “considerable deference under AEDPA.” Id.
The decision of the Michigan Court of Appeals that sufficient evidence
was presented at trial to sustain Petitioner’s assault and conspiracy to commit
assault convictions did not involve an unreasonable application of the clearly
established Supreme Court standard. Ashley Williams, who previously had a
romantic relationship with Petitioner and therefore had no problem identifying
him as one of the perpetrators, testified that Petitioner pointed a handgun at
her during the incident and fired multiple shots. Dkt. 18-7, at 133-34.

19

Catherine Williams also identified Petitioner as one of the shooters. Id. at 70,
78, 82. Finally, Chanquiece Moton likewise testified that Petitioner fired his
gun along with the other perpetrator. Id. at 193-94. The jury was free to accept
the testimony of these three eyewitnesses as true. It did not fall below the
threshold of “bare rationality” for the Michigan Court of Appeals to reject
Petitioner’s sufficiency of the evidence claim. Coleman, 566 U.S. at 656.
C. Consecutive Sentences
Petitioner’s third claim asserts that the trial court vindictively imposed
consecutive sentences because it was disappointed that the jury did not find
him guilty of the more serious charge of assault with intent to commit murder.
The Michigan Court of Appeals found that consecutive sentences were
authorized by Michigan law under MICH. COMP. LAWS § 750.110a(8). That
statute provides that “[t]he court may order a term of imprisonment imposed
for home invasion in the first degree to be served consecutively to any term
of imprisonment imposed for any other criminal offense arising from the same
transaction.” Lister, 2014 WL 4495234, at *6.
Whether a criminal defendant was properly sentenced to consecutive
terms of imprisonment under state law is not cognizable for purposes of
habeas corpus review. See Harrison v. Parke, 1990 WL 170428, at *2 (6th

20

Cir. Nov. 6, 1990) (“Because it is a matter of substantive state law whether [a
petitioner’s] sentence should run concurrently or consecutively, we find the
district court did not err in ruling that [a petitioner’s] challenge to his
consecutive sentences was not cognizable in a federal habeas corpus
proceeding.”); Jones v. Smith, 1995 WL 45631 at *1 (6th Cir. Feb. 3, 1995) (a
habeas petitioner’s “contention that his consecutive life sentences are
unauthorized under state law does not warrant habeas relief.”) (citing Hutto
v. Davis, 454 U.S. 370, 373-74 (1982)). Petitioner’s third claim therefore does
not state a basis for granting habeas relief.
D. Ineffective Assistance of Trial Counsel
Petitioner’s fourth claim asserts that his trial counsel failed to adequately
conduct a pretrial investigation regarding his defense that he was in Ohio at
the time of the crime. He asserts that his attorney should have better used the
court appointed private investigator to track-down witnesses in Ohio who saw
Petitioner or to recover potential videotape evidence showing that he was in
Ohio at the time of the offense. It should be noted that this claim also forms
the basis for part of Petitioner’s fifth claim.
After reciting the controlling constitutional standard, the Michigan Court
of Appeals rejected the claim as follows:

21

Trial counsel did not render ineffective assistance. Trial
counsel obtained the assistance of a court-appointed investigator
to travel to Ohio and investigate and procure the evidence
asserted by defendant. Trial counsel acted reasonably in
procuring the services of an investigator and using the evidence
gathered for defendant’s defense. Defendant does not indicate
what further evidence an investigator could or should have
gathered to benefit his case. Accordingly, defendant has failed to
establish that counsel’s performance fell below an objectively
level of reasonableness.
Lister, 2014 WL 4495234, at *7.
To establish ineffective assistance of counsel, a defendant must show
both that: (1) counsel’s performance was deficient, i.e., “that counsel’s
representation fell below an objective standard of reasonableness”; and (2)
the deficient performance resulted in prejudice to the defense. Strickland , 466
U.S. at 687-88. “[A] court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
The test for prejudice is whether “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. On habeas review, the question becomes “not whether
counsel’s actions were reasonable,” but “whether there is any reasonable
22

argument that counsel satisfied Strickland’s deferential standard.” Richter, 562
U.S. at 105.
The Michigan Court of Appeals did not unreasonably apply the
Strickland standard when it denied relief with respect to this claim. Contrary
to Petitioner’s allegations, his defense counsel adequately presented his alibi
defense. The offense occurred sometime before 9:00 p.m. on Thanksgiving
Day. Petitioner’s defense was that although he was in Saginaw on
Thanksgiving Day, he drove back to Ohio before the offense occurred.
In support of this defense Petitioner’s girlfriend, Mary Sanders, testified
that she departed with Petitioner for Ohio from Saginaw at 8:00 p.m. Dkt. 188, 62, 66. Jones testified that she was with Petitioner from 11:00 a.m. on
Thanksgiving Day until her arrest in Ohio. Id. at 63. She testified that
Petitioner was sick from over-drinking, and she stopped the car three times
for 20 to 30 minute breaks to allow Petitioner to vomit. Id. at 80. She testified
that they were pulled-over by police near Upper Sandusky, Ohio, at about
1:30 a.m. Id. at 68. Jones was arrested for driving without a license. Id. at 6970.
Ohio Officer Brandon Kromer testified for the defense that he stopped
Jones in Ohio as indicated, that Petitioner was in the car, and that Petitioner

23

smelled of alcohol. Id. at 101-103. Kromer testified that the stop occurred at
1:29 a.m. Id. at 106. Kromer testified that Upper Sandusky was about 210
miles from Saginaw, and that it took him about three hours to drive the
distance. Id. at 110-112. Accordingly, while Petitioner was seen by a police
officer over 200 miles from the scene of the crime, that occurred over four
hours later, leaving ample time for Jones to have driven the distance. Contrary
to Petitioner’s allegations, the evidence did not indicate that he was in two
places at the same time.
Petitioner’s claim that a more thorough investigation into the alibi
defense might have resulted in further evidence showing that he was on the
road at the time of the offense is wholly speculative. He suggests that video
footage from the apartment complex where the crime took place or from a gas
station in Bowling Green, Ohio, would support his alibi defense. But Petitioner
made no proffer to the state courts or to this court that any such evidence
would have been discovered by a more thorough investigation.1
Again, while Petitioner was pulled-over about 200 miles from the scene
Petitioner proffers a letter from a gas station in Ohio indicating that
security video footage is retained for two weeks to one month. Dkt. 19,
Exhibit E. The crime occurred on November 24, 2011, and the charges
against Petitioner were filed on December 15, 2011. Dkt. 18-1. The private
investigator was appointed on October 29, 2012, well after any tapes would
have been erased. Id. at 3.

1

24

of the crime, that was over four hours after the crime occurred. “It should go
without saying that the absence of evidence cannot overcome the ‘strong
presumption that counsel’s conduct [fell] within the wide range of reasonable
professional assistance.’” Burt v. Titlow, 134 S. Ct. 10, 17 (2013)(quoting
Strickland, 466 U.S. at 689). The letter from the gas station does not come
close to demonstrating that exculpatory evidence existed or would have been
discovered but for the alleged ineffectiveness of Petitioner’s trial counsel. The
claim was reasonably rejected by the Michigan Court of Appeals.
E. Procedural Default
Petitioner’s remaining claims were presented to the state courts in his
motion for relief from judgment and the appeal that followed it. The trial court
denied the motion for relief from judgment in part because “Defendant has not
demonstrated that any of the alleged errors outlined in his motion resulted in
actual prejudice as required by Mich. Ct. R. 6.508(D)(3)(b).” Dkt. 18-13, at 3,
7.” The Michigan Court of Appeals and Michigan Supreme Court subsequently
denied Petitioner’s appeals because he did not meet the “burden of
establishing entitlement to relief under MCR 6.508(D).” Dkt. 18-18, at 1; Dkt.
18-20, at 1.

25

In denying Petitioner’s post-conviction appeals, the state appellate
courts issued form orders citing to Michigan Court Rule 6.508(D). These
orders are ambiguous as to whether they refer to the procedural default
provisions of Rule 6.508(D) or constitute a denial of relief on the merits. See
Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc). The
language in the trial court’s order, however, made it apparent that the court
was denying relief under Rule 6.508(D)(3), which precludes review of an issue
raised in a post-conviction motion if that issue could have been raised on
direct appeal unless the petitioner shows cause and prejudice or actual
innocence. Enforcement of Michigan Court Rule 6.508(D)(3) constitutes “an
independent and adequate state ground sufficient for procedural default.”
Amos v. Renico, 683 F.3d 720, 733 (6th Cir. 2012).
Accordingly, because the last reasoned state court opinion was based
on Petitioner’s failure to comply with a state procedural rule, Petitioner’s postconviction claims are procedurally defaulted Id. Review of these claims is
therefore barred unless Petitioner demonstrates cause and prejudice for the
default, or if he demonstrates through an offer of new evidence that he is
actually innocent. Coleman v. Thompson, 501 U.S. 722, 750 (1991).

26

In his eighth and tenth habeas claims, Petitioner argues that his
appellate counsel was ineffective for failing to raise his post-conviction claims
on direct appeal, and that this constitutes cause to excuse his procedural
default. Appellate counsel, however, is not required “to raise every nonfrivolous issue on appeal.” Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003).
Indeed, “‘winnowing out weaker arguments on appeal and focusing on’ those
more likely to prevail, far from being evidence of incompetence, is the
hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536
(1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). Where
appellate counsel “presents one argument on appeal rather than another . .
. the petitioner must demonstrate that the issue not presented ‘was clearly
stronger than issues that counsel did present’” to establish ineffective
assistance of counsel. Caver, 349 F.3d at 348 (quoting Smith v. Robbins, 528
U.S. 259, 289 (2000)).
Appellate counsel was not ineffective during Petitioner’s direct appeal
for failing to raise Petitioner’s post-conviction claims, and therefore Petitioner
cannot demonstrate cause to excuse his procedural default. The claims raised
on post-conviction review were not “clearly stronger” than the ones raised by
appellate counsel on direct review.

27

1. Ineffective Assistance of Trial Counsel
Petitioner’s fifth habeas claim asserts that his trial counsel rendered
ineffective assistance of counsel for several reasons. He asserts his counsel:
(1) failed to conduct a thorough investigation into the alibi defense, (2) failed
to assert an alibi defense at trial, (3) failed to retain a firearm expert, (4) failed
to request an alibi jury instruction, (5) failed to comply with the trial court’s
instructions to write down the things Petitioner wanted him to do, and (6) failed
to move to suppress the victims’ identification of Petitioner as one of the
perpetrators.
The trial court, in the alternative to finding review of the claims barred,
addressed these allegations in its opinion denying Petitioner’s motion for relief
from judgment. Regarding the failure to hire a firearm expert, the trial court
stated:
Defendant contends that his trial counsel was ineffective for
failing to move for a defense firearms expert to refute Ashley
Williams’ testimony that Defendant was armed with a 9-millimeter
semiautomatic handgun during the shooting. Defendant argues
that his trial counsel should have called a firearms expert to show
that he could not have been armed with a 9-millimeter
semiautomatic because no 9-millimeter shell casings were
recovered from the crime scene. However, trial counsel
established this point during cross-examination of the
prosecution's firearms expert, Michigan State Police Sergeant
Greg (sic?) Rousseau. On cross examination, Sergeant
Rousseau explained that all of the shell casings recovered from
28

the scene were fired from a .380 semiautomatic firearm, not a
9-millimeter. (Trial Transcript Vol III at 24). He further testified that
he would expect to find spent 9-millimeter casings if a 9-millimeter
semiautomatic weapon had been fired inside the dwelling, but not
if a 9-millimeter revolver had been used. (Trial Transcript Vol III at
26-27). Thus, trial counsel effectively impeached Ashley Williams’
testimony concerning the gun during his cross-examination of
Sergeant Rousseau. Trial counsel also highlighted this
discrepancy in Ashley Williams’ testimony during his closing
remarks. (Trial Transcript Vol IV at 24 & 26). Defendant has failed
to explain what a firearms expert for the defense could have
added on this issue. Moreover, the jury was free to (and
apparently did) believe the rest of Ashley Williams' testimony even
if she was mistaken about the type of gun that Defendant used.
See CJI2d 3 .6.
Dkt. 18-13, at 4-5.
For the reasons stated by the trial court, Petitioner’s appellate counsel
was not ineffective for failing to raise this claim on direct appeal. The issue
Petitioner claims he needed an expert witness for were adequately covered
by defense counsel’s cross examination of the prosecutor’s expert. This claim
was not clearly stronger than the ones raised by appellate counsel.
Next, with respect to the allegation that counsel failed to fully investigate
and present an alibi defense, the trial court stated:
Two of Defendant’s ineffective assistance of trial counsel claims
counsel’s failure to conduct a thorough investigation of
Defendant’s alibi and counsel’s failure to put on an alibi
defense-are barred by MCR 6.508(D)(2) because these claims
were argued, and decided against Defendant, on direct appeal
and Defendant has not established a retroactive change in the law
29

that has undermined the prior decision. See Lister, unpub op at
6-7.
Dkt. 18-13, at 3-4.
While appellate counsel did not raise a claim of ineffective assistance
of counsel for failing to present a stronger alibi defense, Petitioner did so on
his own in a supplemental pro se brief. As indicated above, the Michigan
Court of Appeals found the claim to be without merit, and that decision was
reasonable. Petitioner presented nothing additional on collateral review to the
state courts, and he presents nothing here, to demonstrate that the claim as
presented on collateral review merited relief. Petitioner proffers nothing other
than the letter from the gas station to support his alibi defense. And the letter
from the gas station in no way suggests that his counsel was ineffective for
the manner in which he presented Petitioner’s defense. By the time counsel
was representing Petitioner, the video tape Petitioner claims would have
benefitted the defense no longer existed. The claim as presented in
Petitioner’s motion for relief from judgment was not clearly stronger than the
way it was presented on direct review.
Next, with respect to the failure to request an alibi jury instruction, the
trial court stated:

30

Contrary to Defendant’s argument, trial counsel did request
an alibi instruction, and the Court read the following alibi
instruction to the jury:
You’ve heard evidence that the defendant could
not have committed the alleged crimes because he
was somewhere else when the crimes were
committed. The prosecutor must prove beyond a
reasonable doubt that the defendant was actually
there when the alleged crimes were committed. The
defendant does not
have to prove he was somewhere else.
If, after carefully considering all the evidence,
you have a reasonable doubt about whether the
defendant was actually present when the alleged
crimes were committed, you must find him not guilty.
(Trial Transcript Vol IV at 62-63).
Dkt. 18-13, at 5.
For the reasons stated by the trial court, this claim of ineffective
assistance of trial counsel was not clearly stronger than the claims raised by
appellate counsel on direct review. The jury instructions adequately informed
the jury to acquit Petitioner if it believed he was somewhere else at the time
of the crime.
Finally, with respect to the failure to move to suppress the victims’
identification testimony, the trial court stated:
Defendant has not identified an act by the police that improperly
suggested him as the perpetrator. To the contrary, the victims had
31

a prior relationship with Defendant and they provided the police
with a picture of Defendant identifying him as the perpetrator.
Under the circumstances, there was no legal basis for trial
counsel to file a motion to suppress the victims’ identification
testimony. Further, counsel cannot be deemed ineffective for
failing to file a meritless motion.
Dkt. 18-14, at 2.
For the reasons stated by the trial court, this claim was baseless. The
victims used Facebook to pull up a photograph of Petitioner for the police.
One of the victims had a romantic relationship with him. There was no basis
for moving to suppress their in-court identification. This claim is not clearly
stronger than the ones raised on direct appeal.
Appellate counsel was not ineffective for failing to raise any of
Petitioner’s new claims of ineffective assistance of trial counsel on direct
appeal.
2. Prosecutorial Misconduct
Petitioner asserts in his sixth habeas claim that the prosecutor
committed misconduct by asserting without evidentiary support that Petitioner
committed the crime with a 9 mm revolver. The trial court rejected this claim
as baseless:
Defendant maintains that the prosecutor presented false
evidence and argument that Defendant used a 9-millimeter
revolver during the shooting contrary to Ashley Williams’
32

testimony that he used a 9-millimeter semiautomatic. Ashley
Williams described Defendant’s gun as a 9-millimeter
semiautomatic with a clip. However, Sergeant Rousseau testified
that a semiautomatic would not have a separate clip with bullets
in it. (Trial Transcript Vol III at 22). Also, the other victims,
Catherine Williams and Chanquiece Moten, testified that
Defendant’s gun stopped firing at one point while he was pulling
the trigger. (Trial Transcript Vol II at 86 & 191 ). Sergeant
Rousseau explained that when someone tries to shoot a revolver
that has run out of bullets, “[i]t will go ‘click,’ because it’s on an
empty cylinder.” (Trial Transcript Vol III at 27). Sergeant
Rousseau also testified that a 9-millimeter revolver, unlike a
semiautomatic, retains its cartridges in the cylinder of the firearm.
Thus, investigators would not usually find fired cartridges lying
around the crime scene if the defendant used a 9-millimeter
revolver. (Trial Transcript Vol III at 18). Based on this testimony,
the Court finds that there was significant evidence in the record to
support the prosecution’s argument that Defendant used a
9-millimeter revolver during the incident notwithstanding Ashley
Williams’ contrary testimony. There was no prosecutorial
misconduct.
Dkt. 18-13, at 6.
Prosecutors have “leeway to argue reasonable inferences from the
evidence.” United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996). Given
the conflicting evidence about whether Petitioner used a semi-automatic
handgun or a revolver, the prosecutor was free to make the reasonable
inference that Petitioner used a revolver. This claim is not clearly stronger
than the ones raised by appellate counsel on direct review.
3. Withholding Witness List

33

Petitioner’s seventh claim asserts that the prosecutor improperly
withheld co-defendant’s name from its initial witness list, depriving him of a full
and fair opportunity to prepare for the case presented against him. Again, for
the reasons stated by the trial court, this claim is not clearly stronger than the
ones raised by appellate counsel on direct appeal:
Next, Defendant argues that the prosecution violated MCL
767.40a, by adding his Co-Defendant to its amended witness list
six days before trial. Pursuant to MCL 767.40a(3), “not less than
30 days before trial, the prosecuting attorney shall send to the
defendant or his or her attorney a list of witnesses the prosecution
intends to produce at trial.” However, in this case, the
prosecution’s late addition of the Co-Defendant to its witness list
did not violate MCL 767.40a because that statute does not apply
to witnesses that are accomplices. People v. Sanders, 28 Mich.
App. 510; 184 N.W.2d 487 (1970). In addition, Defendant suffered
no prejudice because his Co-Defendant was not an endorsed
witness and was not called to testify during Defendant’s trial.
Dkt. 18-13, at 6.
Appellate counsel was not ineffective for omitting this weak claim.
Petitioner asserts that the prosecutor added his co-defendant to the witness
list with the intent to have him testify that he committed the crime with
Petitioner. But Petitioner’s co-defendant did not testify at Petitioner’s trial.
Therefore, any impropriety in the late amendment to the witness list was
harmless. Appellate counsel was not required to raise this claim on direct
review.
34

4. Suppression of Exculpatory Evidence
Finally, Petitioner’s ninth claim asserts that the prosecutor withheld
exculpatory evidence from the defense. Petitioner asserts that the prosecutor
did not timely turn over the recording of the 9-1-1 call, and it did not disclose
that it would show one of the victims a picture of a 9 mm revolver. Petitioner
asserts that in the recording one of the victims gave a description of the
perpetrator that differed from what she testified to on cross examination, and
he asserts that if he had advance notice that the photograph would be used,
he would have shown the witness a photograph of a 9 mm semi-automatic to
impeach her testimony.
The trial court rejected the claim as follows:
Defendant has not shown that the prosecutor failed to disclose
any material, exculpatory evidence. On the contrary, the allegedly
exculpatory 911 recordings were played for the jury during the
prosecutor’s case in chief. (Trial Transcript Vol II at 30-31). Thus,
the prosecution did not suppress the existence of this evidence.
To the extent that Defendant argues that the prosecution did not
disclose this evidence before trial, he still has not established a
due process violation. Defendant has not shown that if the 911
recording had been disclosed earlier, a reasonable probability
exists that he would have been acquitted. Accordingly, Defendant
suffered no prejudice as a result of the prosecution's alleged
failure to provide this evidence prior to trial.
Dkt. 18-13, at 7.

35

The Due Process Clause requires the state to disclose exculpatory
evidence to the defense. See Brady v. Maryland, 373 U.S. 83 (1963). “There
are three components of a true Brady violation: The evidence at issue must
be favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281-82 (1999).
Here, the 9-1-1 tape may have been exculpatory in that the victim gave
a description of the suspect that was contrary to description she gave at trial
on cross examination. As to the photo of the revolver, other than indicating
Petitioner may have shown a photo of a semi-automatic at trial to rebut the
photo of the revolver, he has not shown how a photo of a revolver is
exculpatory.

In any event, although defense counsel objected to the

presentation of these pieces of evidence at trial, see Dkt. 18-7, at 20-29, Dkt.
18-8, 22, there is no indication in the record that he was surprised by the
evidence. Defense counsel was able to examine the witnesses regarding the
tape and the photograph of the gun. Both the 9-1-1 tape and the photo of the
revolver were not suppressed by the prosecution since they were presented
at trial. Petitioner fails to show how he was prejudiced by the alleged late

36

disclosure of the evidence. This claim is not clearly stronger than the ones
raised by appellate counsel on direct appeal.
Accordingly, Petitioner’s state post-conviction review claims are barred
from review by Petitioner’s state court procedural default of failing to raise
them on direct review, and Petitioner has failed to demonstrate cause to
excuse the default because his appellate counsel was not ineffective for failing
to raise them on direct appeal. Finally, Petitioner has not attempted to raise
a claim of actual innocence based on newly discovered evidence to excuse
his default. See Schlup v. Delo, 513 U.S. 298, 324 (1995).
As all of Petitioner’s claim are without merit or barred from review, the
petition will be denied.
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

37

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 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 would not debate the Court’s conclusion that
Petitioner’s claims are devoid of merit or barred by his state court procedural
default. Accordingly, a certificate of appealability is denied.
The Court will also deny permission to appeal in forma pauperis
because an appeal of this decision could not be taken in good faith. 28 U.S.C.
§ 1915(a)(3).
V. Conclusion
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a
writ of habeas corpus, 2) DENIES a certificate of appealability, and 3)
DENIES permission to appeal in forma pauperis.
SO ORDERED.
s/Denise Page Hood
Honorable Denise Page Hood
Chief United States District Judge
Dated: July 31, 2018
38