Darby v. Burton

Filing 11

ORDER Denying 1 PETITION for Writ of Habeas Corpus, Denying a Certificate of Apealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMAS DARBY,

Petitioner,

Case No. 2:17-cv-11037
Hon. Sean F. Cox

v.
DEWAYNE BURTON,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,
(2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) GRANTING LEAVE TO
APPEAL IN FORMA PAUPERIS
This is a habeas case filed by a state prisoner under 28 U.S.C. § 2254. Petitioner
Thomas Darby was convicted after a jury trial in the Wayne Circuit Court of armed
robbery. MICH. COMP. LAWS § 750.529. Petitioner was sentenced as a habitual felony
offender to 30-to-45 years’ imprisonment. The petition raises three claims: (1)
Petitioner’s conviction violated due process because he is actually innocent, (2)
Petitioner was denied the effective assistance of trial counsel, and (3) the trial court
erroneously denied Petitioner’s request for a separate jury from his co-defendant. The
Court will deny the petition because Petitioner’s claims are without merit. The Court will
also deny a certificate of appealability, but it will grant leave to appeal in forma pauperis.
I. Background
Petitioner and his co-defendant, Michael Darby, were tried in connection with the
robbery and shooting of 80-year-old Stanley Sowa in front of his Detroit home.
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Sowa testified at the joint trial that at about 3:30 p.m. on March 25, 2013, he was
walking with his two grandnieces near his front porch. One of the two girls dropped
something, and as Sowa went to pick it up he felt someone grab him and push him to
the ground. The person tried to take his wallet. Sowa never saw this man’s face. Sowa
then saw another man holding a handgun. The second man lowered the gun to Sowa’s
head, and he heard a boom. The bullet penetrated the skin of Sowa’s scalp, but luckily it
was a grazing wound that did not penetrate his skull.
Alexus Bajos, Sowa’s 13-year-old niece, testified that, as she and her sister
Angelica were walking towards the porch, her sister dropped something. As her uncle
was picking it up, two men walked up to him. The lighter-skinned man pointed a gun
and told the two girls to go in the house. The other man attacked her uncle. Alexus
identified Petitioner and Michael Darby as the perpetrators at trial. Alexus went to two
lineups and photo show-ups, but she did not identify anyone.
Anjelica Bajos, who was 11 years old, testified that she saw two men coming
from the alley as she and her sister were driving up to park in front of her uncle’s house.
As they approached the porch, her uncle leaned over to pick up candy that Anjelica had
dropped. She saw one of the men grab her uncle’s hands and the other man point a
gun at the girls. The girls ran into the house and closed the door. Anjelica attended two
lineups. At the first one, she picked someone as the man with the gun, and at the
second lineup she picked Petitioner as the man without the gun. She also identified both
defendants in court.

2

Heather Kitz-Miller testified to other-acts evidence. The jury was instructed that
her testimony could only be considered as against Michael Darby. Kitz-Miller testified
that on March 26, 2013, at 6:00 p.m., she went to a client’s house with her 5-year-old
son. As she approached the house, two men ran up to her. One man had a gun, and
the other rushed her and took her purse. A shot was fired as the two men ran away.
She identified Michael Darby as the man with the gun.
The guilty plea transcript from the Kitz-Miller case was read into the record.
Michael Darby admitted during the plea to being the man with the gun who assaulted
Kitz-Miller. He admitted he had an accomplice.
Detroit Police Officer Randolph Sturley testified that two days after the Sowa
robbery he was in pursuit of a black Ford Escape when it struck a garage. Sturley knew
the driver by name. Sturley also identified Petitioner and Michael Darby as the two
passengers who ran from the car. He saw them sitting in the car during the chase, and
after it crashed he saw them run in front of his vehicle. Sturley caught and arrested
Michael Darby, who had dropped a handgun. Sturley testified to seeing Petitioner
wearing a hoodie and gray sweatpants as he ran from the vehicle. Sturley saw
Petitioner run through yards and jump over a fence.
Detroit Police Officer Andrew Berry testified that he received a report that an
SUV had crashed into a garage following a police pursuit, and people were running
away from the vehicle. Officer Berry caught Petitioner running across a street and into
the backyard of a house about a block away from the crash site. Petitioner was wearing

3

different pants than the pants the person in the SUV was described as wearing, but
Berry found muddy sweatpants when he backtracked towards the crash site.
Petitioner testified at trial that he was not at Sowa’s home on March 25, 2013,
and he did not rob Sowa. He denied that he was in the SUV that crashed. Petitioner
testified that at the time of his arrest he was walking to a gas station when a police
officer pulled up to the curb. Petitioner testified that he has a colostomy bag and cannot
run well. He testified that the sweatpants recovered by the police were not his.
Petitioner testified that he did not know Michael Darby until they were both arrested.
Petitioner testified that he knew officers Berry and Sturley from prior contact in
the neighborhood. Petitioner testified that the police had tried to blame cases on him in
2008 and 2009. Petitioner identified the clothing seized by the police from him and
noted that there was no mud on any of it, indicating that he did not run through a muddy
field as described by the officers.
In rebuttal, Officer Berry denied ever having prior contact with Petitioner or
harassing him. Berry testified that Petitioner’s sweatshirt and boots were muddy when
he was arrested, and he did not know what happened to the clothes after they were
taken from Petitioner.
The defense called an officer from the Wayne County jail who testified that the
jail did not clean the clothes. A stipulation was entered that Petitioner’s clothes were
booked into the jail and no one laundered or altered them.

4

Following arguments, instructions, and deliberations, the defendants were
convicted of the charged offenses. Petitioner was subsequently sentenced as indicated
above.
Petitioner requested and was appointed appellate counsel—the same attorney
who represents him in this case—and counsel filed a claim of appeal. Petitioner’s brief
on appeal raised six claims:
I. Whether defendant was denied due process of law and a fair trial by the
trial court’s erroneous decision to deny his request for separate juries.
II. Whether defendant was denied a fair trial by the prosecutor’s
misconduct in arguing that defendant was related to the codefendant and
was therefore guilty of participating in the robbery where the prosecutor
had no evidence that they were related and the issue was collateral and
irrelevant.
III. Whether defendant was denied a fair trial where the trial court gave a
coercive instruction which did not comply with People v. Sullivan when the
jury announced it was deadlocked; counsel was ineffective in failing to
object.
IV. Whether trial counsel was ineffective for failing to investigate and/or
produce potential witnesses who could have provided exculpatory
evidence of an alibi, third-party guilt, and other evidence; defendant must
be retried.
V. Whether defendant was denied his constitutional right to be sentenced
on the basis of accurate information where several offense variables were
misscored.
VI. Whether defendant Darby’s Sixth and Fourteenth amendment rights
were violated by judicial fact finding which increased the floor of the
permissible sentence in violation of Alleyne v. United states, 133 S.Ct.
2151
(2013).
Appellate counsel also filed a motion to remand the case to the trial court so that
Petitioner could expand the record in support of his ineffective assistance of counsel
5

claim. By order dated May 29, 2014, the Michigan Court of Appeals granted the motion
to remand.
At the subsequent evidentiary hearing held in the trial court, defense counsel
testified that Petitioner never indicated to him during their meetings that he had an alibi
defense, and he did not tell counsel about any defense witnesses. Regarding the fact
that Petitioner and his co-defendant were not related, rather then call Petitioner’s
mother as a witness, he and the other defense attorney decided to handle the issue with
a jury instruction. The instruction informed the jury that the fact the two defendants
shared the same name did not indicate that they were related. Finally, defense counsel
testified that he did not attempt to call Michael Darby as a witness because of obvious
Fifth Amendment considerations. He believed that the Michael Darby could not
exonerate Petitioner without incriminating himself, and the co-defendant was
maintaining his innocence at the time of trial.
Petitioner contradicted his attorney’s testimony. He testified that he gave his
attorney the names of alibi witnesses. He stated that he was with his sister Lucy Ridley
at the time of the offense picking up her child from school. He further claimed that
Lucy’s boyfriend was with them, and that they returned home and that several other
people were present at the home including his grandmother and cousins. Lucy Ridley
testified that Petitioner was with her during the relevant time period. Petitioner’s mother
testified that Petitioner is not related to Michael Darby.
Petitioner proffered an affidavit from Michael Darby in which he stated that
“[Petitioner] didn’t commit no crime on March 25. We were not together. I feel this
6

innocent man shouldn’t be put in prison for something he didn’t do. This person didn’t
commit this crime with me at all. I did it with someone else.” Dkt. 10-14, at 12. Michael
Darby testified at the evidentiary hearing that he signed the affidavit. But he
contradicted his affidavit on cross-examination at the hearing by testifying that he did
not commit the crime against Sowa on March 25, and he ultimately conceded that he
had no way of knowing, therefore, whether Petitioner was there. See Dkt. 10-12, at 2529.
The trial court elected to credit the testimony of the defense attorney as true, and
denied the motion. After reciting the trial evidence and the evidence presented at the
evidentiary hearing, the trial court made the findings of fact, summarized as follows:
1. Michael Darby filled out the affidavit claiming that Petitioner did not
commit the crime. But because his testimony at the evidentiary hearing
claimed he was not present at the scene of the crime, the evidence did
not exculpate Petitioner.
2. Michael Darby would never have testified consistently with the
statements in his affidavit, and he would have testified at trial that he
did not commit the crime and so did not know whether Petitioner did.
3. Petitioner never presented his counsel with an alibi defense, and if he
had, defense counsel would have investigated the merits of raising
such a defense.
4. Lucy Ridley’s alibi testimony was not credible in light of Petitioner’s
failure to testify at trial where he was at the time of the crime.
5. The jury instruction regarding the defendants’ last names was
adequate and counsel was not ineffective for failing to call Petitioner’s
mother.
6. The affidavit from Thomas Darby and the alibi efforts were not credible
or believable.
Dkt. 10-14, at 17-25.
7

The Michigan Court of Appeals subsequently affirmed Petitioner’s conviction in
an
unpublished opinion. People v. Darby, 2015 WL 3757506 (Mich. Ct. App. June 16,
2015). Petitioner filed an application for leave to appeal in the Michigan Supreme Court,
raising the same claims. The Michigan Supreme Court granted Petitioner relief on his
sentencing claim and remanded the case to the trial court to determine whether it would
impose the same sentence had People v. Lockridge, 498 Mich. 358 (2015), been
decided at the time of sentencing. The Michigan Supreme Court denied the remainder
of the application because it was not persuaded that the questions presented should be
reviewed by the Court. People v. Darby, No. 151882 (Mich. Sup. Ct. March 29, 2016)
(Table).
On remand, at a hearing held on September 29, 2016, the trial court decided that
it would leave the sentence intact. Petitioner appealed this sentencing decision - which
is not at issue in the present case - to the Michigan Court of Appeals, and that
proceeding remains pending in the state courts.
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.

8

“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000).
“[T]he ‘unreasonable application’ prong of the statute permits a federal habeas
court to ‘grant the writ if the state court identifies the correct governing legal principle
from [the Supreme] Court but unreasonably applies that principle to the facts’ of
petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529
U.S. at 413. “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S.86, 101 (2011), quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); see also Woods v. Etherton, No. 15723, 2016 WL 1278478, at *3 (U.S. Apr. 4, 2016) (habeas relief precluded if state court
decision is “not beyond the realm of possibility [from what] a fairminded jurist could
conclude.”)
III. Analysis
A. Actual Innocence
Petitioner first asserts that he is actually innocent of the offense and therefore his
conviction represents a denial of due process. His claim relies on the fact that Michael
Darby signed an affidavit stating that Petitioner did not commit the crime with him, but
9

that he committed it with someone else. Petitioner asserts that Michael Darby’s affidavit
is supported by the fact that he pled guilty to a similar robbery occurring the day after
the Sowa robbery. Petitioner discounts Michael Darby’s testimony at the evidentiary
hearing in which he recanted the statement in his affidavit, suggesting that he did so
because his appellate counsel advised him not to testify at all, and his conviction was
still on appeal. Petitioner urges the Court to accept the statement in the affidavit as true
and the contrary testimony as untrue. Petitioner relatedly asserts that his counsel was
ineffective for failing to present written evidence of Michael Darby’s statement that
Petitioner was innocent at trial. The later allegation will be discussed below with
Petitioner’s other allegations of ineffective assistance of counsel.
In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court held that “[c]laims
of actual innocence based on newly discovered evidence” fail to state a claim for federal
habeas relief “absent an independent constitutional violation occurring in the underlying
state criminal proceeding.” Id. at 400; see also House v. Bell, 547 U.S. 518, 554-55
(2006) (declining to answer the question left open in Herrera of whether a habeas
petitioner may bring a freestanding claim of actual innocence). Federal habeas courts
“sit to ensure that individuals are not imprisoned in violation of the Constitution, not to
correct errors of fact.” Herrera, 506 U.S. at 400 (citations omitted); see also McQuiggin
v. Perkins, 569 U.S. 383, 392 (2013) (“We have not resolved whether a prisoner may be
entitled to habeas relief based on a freestanding claim of actual innocence”).
Freestanding claims of actual innocence are thus not cognizable on federal habeas
review, absent independent allegations of constitutional error at trial. See Cress v.
10

Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007) (collecting cases). As stated, Petitioner’s
allegation of constitutional error related to his claim of innocence—ineffective assistance
of counsel—will be discussed below. To the extent Petitioner seeks habeas relief based
on a free-standing claim of actual innocence, however, the claim is not cognizable.
Furthermore, an affidavit which seeks to exonerate a petitioner and shift blame
for the crime to another person is “treated with a fair degree of skepticism.” Herrera, 506
U.S. at 423; see also Lewis v. Smith, 100 F. App’x 351, 355 (6th Cir. 2004).
“Postconviction statements by codefendants [which attempt to exculpate a criminal
defendant] are inherently suspect because codefendants may try to assume full
responsibility for the crime without any adverse consequences.” See Allen v. Yukins,
366 F.3d 396, 405 (6th Cir. 2004) (post-conviction affidavits of habeas petitioner’s two
codefendants were legally insufficient to establish that she was actually innocent, so as
to toll the AEDPA's statute of limitations; affidavit was inherently suspect because the
codefendant could have signed it to help petitioner without endangering his own
interests).
Michael Darby dated his affidavit on July 29, 2013, and it was signed by the
notary on August 9, 2013, after he was sentenced. Darby, 2015 WL 3757506, at *10.
Michael Darby claimed in the affidavit that he knew Petitioner to be innocent of the
crime because he committed it with someone else. Id. At the time Michael Darby wrote
the affidavit he still faced adverse consequences for taking responsibility for the crime
as he was appealing his conviction.

11

Nevertheless, when Michael Darby faced cross-examination regarding his
affidavit at the evidentiary hearing, he decided to recant his statement that he
committed the crime with someone else. Rather, Michael Darby inartistically attempted
to both stick to the part of his statement that he knew Petitioner to be innocent but at the
same time deny that he was present at the scene of the crime. See Dkt. 10-12, at 2529. When the illogic of this position was pointed out to him by the prosecutor, (“if you
were not there you cannot say who was or was not there, correct?”), Michael Darby was
forced to concede the point. Dkt. 10-12, at 29.
Thus, even assuming the claim was cognizable, Petitioner has failed to
demonstrate his actual innocence based on Michael Darby’s affidavit. A valid 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 account, or critical physical evidence - that was not presented at trial.”
Schlup, 513 U.S. at 324. “The Schlup standard is demanding and permits review only in
the ‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006) (citation omitted). To
satisfy the actual innocence standard a petitioner must demonstrate that given the new
evidence, it is more likely than not that any reasonable juror would have a reasonable
doubt as to the petitioner’s guilt. House, 547 U.S. at 538.
In light of the fact that Michael Darby recanted the statement in his affidavit that
he committed the crime with someone other than Petitioner, Petitioner has not
demonstrated that any juror would have a reasonable doubt. A reasonable juror could
certainly conclude that the statements in the affidavit were not true after what happened
12

on cross-examination of Michael Darby. While Petitioner proffers reasons why the Court
should accept the affidavit as true and the testimony as false, the standard asks
whether in light of the new evidence any reasonable juror would have a reasonable
doubt. The recantation easily might lead a juror not to have a reasonable doubt.
Petitioner has not established his actual innocence.
Accordingly, Petitioner’s actual innocence claim is not cognizable and otherwise
without merit.
B. Effective Assistance of Counsel
Petitioner next asserts that he was denied the effective assistance of trial
counsel. He argues that he informed his counsel of alibi witnesses that would account
for his whereabouts at the time of the crime and that his mother would testify that he
was not related to Michael Darby, but counsel failed to raise the defense at trial. He also
asserts that his counsel was ineffective for failing to offer Michael Darby’s written
statement that Petitioner was innocent at trial.
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 v. Washington, 466 U.S. 668, 687-88 (1984). “[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)).
13

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 argument that counsel satisfied
Strickland’s deferential standard.” Harrington, 562 U.S. at 105.
Petitioner has failed to demonstrate that he was denied the effective assistance
of trial counsel or that the Michigan Court of Appeals unreasonably rejected his claims.
With respect to Petitioner’s first allegation of ineffective assistance of counsel, after
reciting the constitutional standard, the Michigan Court of Appeals rejected the claim as
follows:
Although Thomas testified at trial, he did not offer any testimony
regarding a possible alibi. The trial court considered this omission, along
with other evidence, including its assessment of the credibility of the
witnesses who testified at the Ginther hearing, in finding that Thomas
failed to inform defense counsel of an alleged alibi, and in finding that his
proffered alibi testimony was not credible. Where a factual question
depends on the credibility of witnesses or the weight of evidence, an
appellate court defers to the trial court’s superior opportunity to evaluate
these matters. People v. Sexton (After Remand), 461 Mich. 746, 752
(2000). Giving deference to the trial court’s assessment of credibility in this
case, we find no clear err in the trial court’s finding that Thomas failed to
provide information regarding a potential alibi defense to defense counsel.
Thus, Thomas did not make a good-faith effort to avail himself of an alibi
defense. And without knowledge of a potential alibi to investigate,
counsel’s failure to investigate an alibi defense or call alibi witnesses
cannot be deemed objectively unreasonable. Therefore, Thomas is not
entitled to a new trial on this ground.
Thomas also argues that defense counsel was ineffective for failing
to introduce evidence, specifically the testimony of his mother, to establish
that he and Michael did not have a familial relationship. As the trial court
found, however, Thomas’s mother would only have testified that
defendants were not related as far as she knew. She would not have been
able to rule out that there was some type of relationship. Regardless, the
14

prosecutor presented other evidence to establish an association between
Thomas and Michael, including the testimony of Sowa’s grandnieces, who
identified both defendants as the persons who robbed Sowa, and the
testimony of the police officers who arrested Thomas and Michael in the
same car two days later.
And regardless of who drafted the jury instruction that precluded
the jury from inferring a relationship or association from the mere fact that
the two defendants had the same last name, considering that this
instruction was included in the preliminary jury instructions given on the
first day of the trial, we find no support for Thomas’s argument that
defense counsel belatedly decided to rely on the instruction to address the
fact that both defendants had the same last name as a mere afterthought.
And because the jury may be presumed to have followed its instructions,
Waclawski, 286 Mich. App. at 674, and considering the other evidence of
record, Thomas has failed to establish that his mother’s testimony would
have provided him with a substantial defense. Accordingly, we reject this
ineffective assistance of counsel claim.
Darby, 2015 WL 3757506, at *9-10.
This decision was reasonable. While Petitioner testified that he told his counsel of
his alibi defense, his counsel denied the allegation under oath, and the trial court chose
to credit counsel’s testimony. This determination was made in part based on the fact
that Petitioner’s trial testimony did not include any part of his alibi.  This Court must
presume the correctness of state court factual determinations such as the one made by
the trial court regarding whether Petitioner informed his counsel about his alibi defense.
28 U.S.C. § 2254(e)(1)(“In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be presumed to be
correct.”).  A petitioner may rebut this presumption only with clear and convincing
evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Petitioner has not
offered clear and convincing evidence to show that the factual determination made by
15

the state trial court was incorrect. Counsel testified to one version of the facts, and
Petitioner testified to another. The state court chose to believe counsel and not
Petitioner, and Petitioner has offered this Court no reason to upset that credibility
determination.
Counsel did not perform deficiently for failing to investigate and present an alibi
defense because Petitioner never gave him any indication or reason to explore that
avenue of defense.
Next, with respect to the failure to offer Michael Darby’s alleged written statement
that Petitioner was innocent, the Michigan Court of Appeals rejected the claim as
follows:
We also reject Thomas’s alternative claim that defense counsel
was ineffective for not investigating that Michael could provide exculpatory
testimony and, if Michael refused to testify on Fifth Amendment grounds,
for not offering his written statement as evidence under MRE 804(b)(3).
Even assuming that Thomas’s counsel gave the affidavit purportedly
signed by Michael to defense counsel, and that a proper foundation for
authenticating it could have been established without Michael’s testimony,
an essential requirement of MRE 804(b)(3) is that the statement so far
tend to subject the declarant to criminal liability that a reasonable person
in the declarant’s position would not have made the statement unless he
believed it to be true. Whether a statement tends to subject the declarant
to criminal liability depends on “whether the statement would be probative
of an element of a crime in a trial against the declarant, and whether a
reasonable person in the declarant’s position would have realized the
statement’s incriminating element.” People v. Barrera, 451 Mich. 261, 272
(1996). Thomas has failed to establish that the vague allegations
regarding a March 25, 2013 crime would have been admissible under
MRE 804(b)(3) to establish that Michael was one of the individuals who
robbed Sowa. Accordingly, Thomas’s counsel was not ineffective for not
attempting to introduce the evidence. Counsel need not take futile actions.
Unger, 278 Mich. App. at 256.
And even assuming that that Michael would have been willing to
testify at trial, Michael’s testimony at the Ginther hearing supports the trial
16

court’s finding that Michael would not have been able to provide testimony
to exculpate Thomas. Because Michael was unwilling to admit his
involvement in the Sowa robbery, he could not have credibly denied
Thomas’s involvement. Thomas has not established that defense counsel
was ineffective. Vaughn, 491 Mich at 669.
Darby, 2015 WL 3757506, at *11.
The decision of the state appellate court with respect to this claim was
reasonable. Michael Darby’s testimony at the evidentiary hearing establishes that he
would not have testified at trial that he knew Petitioner was innocent because he was at
the scene of the crime and committed it without someone else. He testified that he was
not present at the scene and therefore could not know who was there. Furthermore, the
Michigan Court of Appeals determined as a matter of state law, even if a written
statement similar to the affidavit produced at the evidentiary hearing was available at
trial, it would not have been admissible. This Court cannot second-guess a state court’s
determination that a piece of evidence would be inadmissible under state law. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, Petitioner’s trial counsel was not
ineffective for failing to offer evidence that Michael Darby admitted to committing the
crime with someone else. No such admissible evidence existed to present.
Finally, the Court agrees with the assessment that counsel was not ineffective for
failing to call Petitioner’s mother to testify that Petitioner is not related to Michael Darby.
The matter was adequately covered by the jury instruction that instructed the jury that
just because the two defendants shared the last name did not mean that they were
related or knew each other.

17

Petitioner has therefore failed to demonstrate entitlement to habeas relief with
respect to his ineffective assistance of trial counsel claims.
C. Separate Juries
Petitioner’s final claim asserts that the trial court erred in failing to have a
separate jury decide his case from Michael Darby’s. He asserts that the fact that
Michael Darby had the same last name unfairly suggested to the jury that the two men
were related, and the fact that Michael Darby pled guilty to committing a similar robbery
the day after the instant robbery tended to prejudice his defense before the same jury.
After reciting the relevant law for whether separate juries were required, the
Michigan Court of Appeals denied the claim as follows:
Thomas’s counsel did not argue that separate juries were required
to avoid prejudice to his substantial rights, but rather expressed a
preference for separate juries as opposed to a jury instruction or a
stipulation to address his concern with the other-acts evidence against
Michael. Thomas’s counsel was concerned that the jury might think that
Thomas was Michael’s accomplice in that robbery, even though Thomas
was not identified and his name was not mentioned. However, in addition
to the fact that the other-acts evidence did not indicate that Thomas was
involved in the robbery of Miller, the trial court agreed to instruct the jury at
trial that the evidence could only be considered against Michael, and not
against Thomas. Under these circumstances, Thomas failed to
affirmatively establish that his substantial rights would be prejudiced by a
joint trial before a single jury. Thus, separate juries were not mandatory
under MCR 6.121(C). We further hold that the trial court did not abuse by
declining to order separate juries pursuant to MCR 6.121(D). As indicated,
jury instructions are an appropriate means of alleviating any prejudice.
Hana, 447 Mich. at 351. The court did not abuse its discretion in
determining that the other-acts evidence admitted against Michael could
be addressed through appropriate jury instructions. The trial court
instructed the jury immediately before the other acts evidence was
admitted, and again before jury deliberations began, that the other-acts
evidence was admitted only against Michael and could not be considered
in any way when deciding Thomas’s guilt or innocence. Because these
18

jury instructions were sufficient to alleviate any prejudice, we find no basis
for relief.
Darby, 2015 WL 3757506, at *5.
Under clearly established Supreme Court law, there is no general right to a
separate criminal trial. In Zafiro v. United States, 506 U.S. 534 (1993), the Supreme
Court considered “whether Rule 14 [of the Federal Rules of Criminal Procedure]
requires severance as a matter of law when codefendants present ‘mutually
antagonistic defenses.’” Zafiro, 506 U.S. at 535. Zafiro, however, was based solely on
Rule 14, and did not establish any rule of constitutional law. It is thus inapplicable to
Petitioner's state court conviction. Because the Supreme Court has not recognized a
specific right to separate trials, “a state trial court's refusal to grant severance only
mandates habeas corpus relief when (1) the joint trial ‘resulted in the deprivation of a
specific constitutional guarantee such as the right to call witnesses . . . or the right to
confrontation,’ or (2) when the joint trial abridged the defendant’s fundamental right to a
fair trial as secured by the Fourteenth Amendment.’” Turpin v. Kassulke, 26 F.3d 1392,
1404 (6th Cir. 1992) (Feikens, D.J., concurring in part and dissenting in part)(quoting
Jenkins v. Bordenkircher, 611 F.2d 162, 168 (6th Cir. 1979)); accord Hutchison v. Bell,
303 F.3d 720, 731 (6th Cir. 2002). In fact, joint trials are favored, and the potential for
prejudice alone is insufficient to mandate severance. See Stanford v. Parker, 266 F.3d
442, 459 (6th Cir. 2001).
Here, the Michigan Court of Appeals correctly denied relief. None of Petitioner's
specific constitutional rights were implicated by the joint trial. Petitioner was not
prevented from introducing any evidence in his own defense due to his co-defendant’s
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presence, nor is this a case where a co-defendant’s statement to police was introduced
implicating Petitioner’s confrontation rights.
In short, it constituted a reasonable application of clearly established federal law
for the Michigan Court of Appeals to find that the failure to afford Petitioner a separate
jury from Michael Darby did not render his proceeding fundamentally unfair.
As none of Petitioner’s claim merit relief, the petition will be denied.
IV. Certificate of Appealability
The Court will deny a certificate of appealability because jurists of reason would
not debate the Court’s analysis with respect to any of Petitioner’s claims. 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Petitioner has not
presented clear and convincing evidence to overcome the trial court’s finding of fact
following the remand hearing. The factual findings that Petitioner’s alibi defense was not
credible, that Petitioner did not tell his counsel about any potential alibi defense, and
that Thomas Darby would not have testified favorably at trial are conclusively fatal to
most of Petitioner’s claims. Nor has Petitioner made a substantial showing of the denial
of a constitutional right with respect to his separate jury claim. Therefore, a certificate of
appealability will be denied.
The Court will grant Petitioner permission to appeal in forma pauperis because
any appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3).
V. Conclusion

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Accordingly, the Court 1) DENIES the petition for a writ of habeas corpus, 2)
DENIES a certificate of appealability, and 3) GRANTS permission to appeal in forma
pauperis.
SO ORDERED.

s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: September 19, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 19, 2018, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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