Gilkey v. Burton

Filing 27

OPINION AND ORDER Denying Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Granting Petitioner Permission to Proceed In Forma Pauperis on Appeal. Signed by District Judge Terrence G. Berg. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARIUS LEIGH GILKEY,
Petitioner,
vs.
DEWAYNE BURTON,
Respondent.

2:17-CV-12753-TGB-APP
HON. TERRENCE G. BERG
OPINION AND ORDER
DENYING PETITION FOR
WRIT OF HABEAS CORPUS,
DENYING CERTIFICATE OF
APPEALABILITY, AND
GRANTING PETITIONER
PERMISSION TO PROCEED
IN FORMA PAUPERIS
ON APPEAL

Darius Leigh Gilkey, a Michigan state prisoner, has filed a pro
se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He
challenges his convictions for first-degree premeditated murder,
MCL § 750.316,

and

first-degree

criminal

sexual

conduct,

MCL § 750.520b(1)(e). The Court denies the petition and declines to issue
a certificate of appealability. The Court grants Petitioner leave to
proceed in forma pauperis on appeal.
I. BACKGROUND
Petitioner’s conviction arose from the sexual assault and murder of
Stephanie McGee in June of 2012. McGee’s friend, Chemale Smith-Posey,
testified that on June 7, 2012, she styled McGee’s hair. ECF No. 7-8,
PageID.480. Finishing at approximately 10:00 p.m., Smith-Posey

telephoned her boyfriend, Adrian Parker, so that he could give McGee a
ride home. Parker arrived and began the drive to McGee’s home. Id. at
PageID.482–83. At some point, Smith-Posey and Parker started arguing.
As tensions escalated, Parker pulled over, placed the car in park, and
snatched the keys out of the ignition. Id. at PageID.484–85. Parker and
Smith-Posey exited the car and continued arguing. Smith-Posey recalls
hearing McGee call someone for a ride, then watching McGee walk down
the street to wait outside a liquor store. Meanwhile, police arrived to
investigate the disturbance. After police finished speaking to SmithPosey and Parker, McGee was no longer standing outside the liquor store.
Id. at PageID.487–89.
Bobby Moore testified that McGee called him that night and asked
whether he could drive her home. She said she would wait outside the
liquor store. Fifteen minutes later, Moore arrived, but McGee was gone.
Moore called McGee several times but could not get an answer. He waited
in front of the store for about thirty minutes, but McGee never appeared.
Id. at PageID.500–01.
On June 9, 2012, police received a report of a dead body, later
identified as McGee, at a burned abandoned house not far from where
McGee was last seen alive. Id. at PageID.427–28. Dr. Carl Schmidt, Chief
Medical Examiner for Wayne County, testified that he performed an
autopsy on June 9 or 10, 2012. Dr. Schmidt concluded that McGee’s
killing occurred one-and-a-half to two days before her body was found.
2

McGee had multiple stab- and incised- wounds.1 Id. at PageID.402–404.
One stab wound penetrated her carotid artery, and two others perforated
her chest cavity. Id. at PageID.408–09. Dr. Schmidt determined that the
manner of death was homicide. Id. at PageID.416.
Andrea Young testified as an expert in DNA and body fluid
analysis. ECF No. 7-9, PageID.636. She tested semen found in McGee’s
mouth and blood samples from under McGee’s fingernails. The DNA
profile from these samples matched Petitioner’s DNA. Id. at PageID.644–
52.
Evidence of the rape and murder of Quaylana Rogers was also
admitted at Petitioner’s trial to show a common plan or scheme. The
circumstances of Rogers’ abduction, sexual assault, and murder were
similar to McGee’s; and Petitioner’s DNA was detected in semen found in
Rogers’ vagina and underwear. Id. at PageID.652–53.
The jury convicted Petitioner of first-degree murder and firstdegree criminal sexual conduct. Petitioner was sentenced to life without
parole for the murder conviction and a consecutive sentence of 35 to 50
years for the criminal sexual conduct conviction. ECF No. 1, PageID.1.
He filed an appeal in state court, claiming that (1) there was
insufficient evidence to support his convictions, (2) he was denied his

Dr. Schmidt explained that a stab wound is “deeper than it is long.
And an incised wound…is longer than it is deep.” ECF No. 7-8,
PageID.407.
1

3

right to counsel when the trial court refused his request for appointment
of new counsel, and (3) the trial court improperly admitted evidence
related to Rogers’ murder. The Michigan Court of Appeals affirmed
Petitioner’s convictions. People v. Gilkey, No. 323507, 2016 WL 362661
(Mich. Ct. App. Jan. 26, 2016).
Petitioner subsequently applied for leave to appeal to the Michigan
Supreme Court, raising the same claims presented to the Michigan Court
of Appeals. The Michigan Supreme Court denied Petitioner’s requested
leave. People v. Gilkey, 500 Mich. 857, 883 N.W.2d 769 (2016).
Petitioner then filed the instant petition for a writ of habeas corpus.
He asserts the following:
1. His conviction is supported by insufficient evidence;
2. He was constructively denied counsel, denied constitutionally
effective assistance of counsel, and denied his right to counsel
of choice; and
3. The admission of other-acts evidence was a violation of his
right to due process.
II. LEGAL STANDARD
A § 2254 habeas petition is governed by the heightened standard of
review outlined in the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”). 28 U.S.C. § 2254. To obtain relief, habeas petitioners who
challenge “a matter adjudicated on the merits in State court [must] show
that the relevant state court decision (1) was contrary to, or involved an
4

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 proceedings.” Wilson v. Sellers, 138
S. Ct. 1188, 1191, 200 L. Ed. 2d 530 (2018) (quoting 28 U.S.C. § 2254(d)).
The focus of this standard “is not whether a federal court believes
the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “AEDPA thus imposes a
highly deferential standard for evaluating state-court rulings and
demands that state-court decisions be given the benefit of the
doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations and
quotation marks omitted).
“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)). Moreover, a state court’s factual determinations 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[.]” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).

5

III. DISCUSSION
A. Whether Sufficient Evidence Supports the Convictions
Petitioner argues that insufficient evidence was presented to
support his convictions. “[T]he Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” In re
Winship, 397 U.S. 358, 364 (1970). On habeas review, the sufficiency of
the evidence inquiry involves “two layers of deference”: one to the jury
verdict and a second to the Michigan Court of Appeals decision. Tanner
v. Yukins, 867 F.3d 661, 672 (6th Cir. 2017).
First, the Court “must determine whether, viewing the trial
testimony

and

exhibits

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.” Brown v. Konteh, 567
F.3d 191, 205 (6th Cir. 2009) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)) (emphasis in Jackson). Second, if the Court were “to conclude
that a rational trier of fact could not have found a petitioner guilty beyond
a reasonable doubt, on habeas review, [the Court] must still defer to the
state appellate court’s sufficiency determination as long as it is not
unreasonable.” Id.
The Michigan Court of Appeals rejected Petitioner’s sufficiency-ofthe-evidence argument:
The elements of first-degree murder are (1) the intentional
6

killing of a human (2) with premeditation and deliberation.”
People v. Bennett, 290 Mich.App 465, 472; 802 NW2d 627
(2010). In addition, identity is an element of every criminal
offense. People v. Yost, 278 Mich.App 341, 356; 749 NW2d 753
(2008). “[C]ircumstantial evidence and reasonable inferences
arising therefrom may constitute satisfactory proof of the
elements of the offense.” People v. Unger, 278 Mich.App 210,
223; 749 NW2d 272 (2008).
At trial, a medical examiner testified that SM’s [Stephanie
McGee’s] cause of death was homicide. His conclusion was
based on the multiple, deep stab wounds to SM’s neck and
chest, which resulted in massive blood loss and a collapsed
lung. These facts are sufficient to show that the killing was
intentional, thus establishing the first element of first-degree
murder.
Premeditation requires that a defendant have time to take a
“second look” before killing. Unger, 278 Mich.App at 229
(quotation marks and citation omitted). The medical
examiner also testified that some of the wounds on SM’s body
were “torture wounds,” made for the specific purpose of
causing her pain. If defendant had time to inflict torture
wounds, a reasonable trier of fact could infer that he also had
time to take a second look before killing.
SM’s body was found in an abandoned house. There was only
a small amount of blood in the house where SM’s body was
found, and there were drag marks on her body. A reasonable
factfinder could infer that the killer moved the body to the
house to conceal the crime. Evidence that a defendant
attempted to conceal the crime can also support a finding that
the crime was premeditated. People v. Gonzalez, 468 Mich.
636, 642; 664 NW2d 159 (2003).
The final element is defendant’s identity as the murderer.
Defendant argues that the evidence only shows that he had
sex with SM. However, there is sufficient evidence implicating
7

defendant in SM’s murder, and the CSC [Criminal Sexual
Conduct] inflicted upon her. SM was urgently seeking a ride
home when she disappeared. At 11:14 p.m. she called her
friend seeking a ride, and at 11:18 p.m. her telephone became
invisible to the surrounding cellular towers. Her friend
arrived at 11:30 p.m., and SM was nowhere to be found. SM
was stabbed to death and her body was found topless with
sperm in her mouth, and blood under a fingernail on the left
hand. From these facts, a reasonable juror could infer that the
killer took SM against her will, forced her to engage in fellatio
by threatening her with a knife or similar object, and then
killed her. Based on trial testimony, a reasonable juror could
also infer that SM tried to defend herself, and that the
attacker’s blood was thus deposited under her fingernail.
Based on the DNA evidence that the blood and sperm came
from defendant, a reasonable juror could infer that defendant
committed the offenses for which he was convicted.
Defendant
was
also
convicted
of
violating
MCL 750.520b(1)(e), which states that “[a] person is guilty of
criminal sexual conduct in the first degree if he or she engages
in sexual penetration with another person and…[t]he actor is
armed with a weapon or any article used or fashioned in a
manner to lead the victim to reasonably believe it to be a
weapon.” Sexual penetration means “sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion,
however slight, of any part of a person’s body or of any object
into the genital or anal openings of another person’s body, but
emission of semen is not required.” MCL 750.520a(r).
The presence of semen in the oral cavity of SM’s body could
lead a reasonable trier of fact to conclude that sexual
penetration occurred. The manner of SM’s death, stabbing,
could lead a reasonable factfinder to infer that defendant had
a weapon. There was thus sufficient evidence of CSC.
Gilkey, 2016 WL 362661, at *1–2.

8

Petitioner maintains that, while DNA evidence linked him to semen
found in the victim’s mouth, no evidence was presented to show that the
sexual encounter was non-consensual. The evidence in this case is
sufficient, if not ample, for a rational trier of fact to conclude that
Petitioner sexually assaulted and killed McGee.
McGee’s extensive injuries alone—including “torture wounds” and
deep

stab

wounds—support

a

finding

that

the

sex

act

was

non-consensual. In addition, after she exited Parker’s car, McGee,
anxious to go home, called Bobby Moore and said she would wait for him
outside the liquor store. No evidence was presented to show that McGee
would have willingly abandoned that plan. “Circumstantial evidence
alone is sufficient to support a conviction, and it is not necessary for the
evidence to exclude every reasonable hypothesis except that of
guilt.” Newman v. Metrish, 543 F.3d 793, 796 (6th Cir. 2008) (quotation
omitted). The Michigan Court of Appeals rejection of Petitioner’s
sufficiency-of-the-evidence claim was neither contrary to, or an
unreasonable application of, Supreme Court precedent; nor was the
rejection based on an unreasonable determination of the facts in light of
the evidence presented at trial.
B. Whether Petitioner’s Rights Were Violated by the Failure
to Appoint Substitute Counsel
Petitioner’s second claim concerns the trial court’s denial of his
request for substitute counsel. Four days before trial commenced, the
9

court held a hearing regarding Petitioner’s letter to the court
“request[ing] that he be allowed to terminate the services of his current
attorney[.]”2 ECF No. 7-6, PageID.234. Defense counsel explained that
the request was made because Petitioner and counsel disagreed about
whether to obtain a DNA expert. Counsel consulted with “several DNA
experts,” but the compensation provided by the court on behalf of
indigent defendants was insufficient to retain an expert. Id. at 234.
Counsel posited that, in any event, an expert would have little to offer in
aid of the defense. Id. at 234–35. Counsel also concluded that concern
about the chain of custody of Petitioner’s buccal swab was a factual
inquiry to which an expert could not speak. Id. Petitioner also complained
that defense counsel had “missed appointments.” Id. at 236. Ultimately,
the trial court denied Petitioner’s request:
I find…that there’s been insufficient basis for a substitution
[of] counsel on this matter. I do find that [counsel] has done
what’s necessary to represent Mr. Gilkey. The motion by Mr.
Gilkey to terminate the services of his current lawyer, [and]
hire a new lawyer is denied at this time.
Id. at PageID.236.
Petitioner, citing United States v. Cronic, 466 U.S. 648 (1984),
argues that a complete breakdown in the attorney-client relationship
amounted to the constructive denial of counsel—a structural error
requiring automatic reversal. See ECF No. 7-12, PageID.854–58; ECF

2

A copy of Petitioner’s letter is not part of the record before the Court.
10

No. 22, PageID.1068–70. He maintains that he was denied his right to
counsel of choice. Alternatively, he argues that counsel was ineffective
and that counsel’s errors prejudiced the defense. Petitioner further
claims that the trial court failed to inquire adequately into the
attorney-client relationship breakdown. Id.
On direct review, the Michigan Court of Appeals determined that
Petitioner failed to show good cause for replacing his appointed counsel.
Gilkey, 2016 WL 362661, at *2–3. The court of appeals concluded that
defense counsel’s decisions regarding the DNA were carefully considered
exercises of professional judgment and trial strategy. Id. at *3. It further
noted that—after the trial judge explained to Petitioner retesting the
DNA was not without its risks because a second test could yield the same
result—Petitioner appeared to concede the point. Id. Finally, the state
court held that the difference of opinion did not result in a breakdown in
the attorney-client relationship necessitating the appointment of new
counsel. Id.
The Sixth Amendment provides all criminal defendants the right to
the effective assistance of counsel, including a qualified right to retain
counsel of one’s choice. Wheat v. United States, 486 U.S. 153, 159 (1988).
The right to counsel of choice is not without limits: it “does not extend to
defendants

who

require

counsel

to

be

appointed

for

them.”

United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006) (citation
omitted); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617,
11

624–25 (1989) (noting “[t]he [Sixth] Amendment guarantees defendants
in criminal cases the right to adequate representation, but those who do
not have the means to hire their own lawyers have no cognizable
complaint so long as they are adequately represented by attorneys
appointed by the courts.”). The Sixth Amendment guarantees “an
effective advocate for each criminal defendant rather than…ensure that
a defendant will inexorably be represented by the lawyer whom he
prefers.” Wheat, 486 U.S. at 159. So “when a defendant is denied the
counsel he prefers, the constitutional concern is whether he received an
effective advocate.” Ray v. Curtis, 21 F. App’x 333, 335 (6th Cir. 2001).
Accordingly, an indigent defendant “must show good cause such as
a conflict of interest, a complete breakdown in communication or an
irreconcilable conflict with his attorney in order to warrant substitution
[of counsel.]” Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir. 1985). When
evaluating a trial court’s denial of a request to substitute counsel, a
reviewing court should consider “the timeliness of the motion; the
adequacy of the [trial] court’s inquiry into the defendant’s complaint; and
the asserted cause for that complaint, including the extent of the conflict
or breakdown in communication between lawyer and client (and the
client’s own responsibility, if any, for that conflict).” Martel v. Clair, 565
U.S. 648, 663 (2012).
Petitioner’s request was made shortly before trial, involved a
discrete issue not implicating the whole of counsel’s representation, and
12

was carefully considered by the trial court; Petitioner has shown no
irreconcilable

conflict

with

appointed

counsel

that

necessitated

substitution of counsel.
Petitioner argues for, the first time, in his habeas petition that he
sought to replace appointed counsel with retained counsel. He states he
“was indigent at the time trial began, but had finally secured access to
finances solely for the purpose of paying for legal counsel.” ECF No. 1,
PageID.47. Therefore, he claims, the trial court’s decision violated his
right to counsel of choice, a structural error requiring no additional
showing of ineffectiveness or prejudice.3 Id. at PageID.46.
The right to counsel encompasses the right for non-indigent
defendants to be represented by their counsel of choice. Gonzalez-Lopez,
548 U.S. at 151. But this right is not absolute. A trial court need not honor
a request to retain counsel that would “unreasonably interfere with the
normal progress of a criminal case.” Linton v. Perini, 656 F.2d 207, 211
(6th Cir. 1981). A trial court retains “wide latitude in balancing the right

The Court briefly addresses the question of exhaustion of this claim.
See Clinkscale v. Carter, 375 F.3d 430, 436–37 (6th Cir. 2004) (on federal
habeas review, a court may sua sponte raise non-exhaustion). A state
prisoner must exhaust available state court remedies before seeking
habeas corpus relief by fairly presenting all his claims to the state courts.
See 28 U.S.C. § 2254(b); Rhines v. Weber, 544 U.S. 269, 274 (2005).
Petitioner’s claim that he sought to substitute retained counsel is not
properly exhausted. But because exhaustion is not a jurisdictional bar to
review, the Court will proceed to the merits. See Granberry v. Greer, 481
U.S. 129, 131, 134–35 (1987).
3

13

to counsel of choice against the needs of fairness, and against the
demands of its calendar.” Gonzalez-Lopez, 548 U.S. at 151–52 (citations
omitted).
Petitioner requested a new lawyer only shortly before trial
commenced.

While

he

maintains

that

he

sought

to

substitute retained counsel, Petitioner did not inform the trial court that
a specific lawyer had been hired and, even now, states only that he had
the funds to hire a lawyer. At no point has he provided any additional
information regarding counsel or what steps he intended to take or had
taken to secure counsel. Furthermore, allowing Petitioner to retain
counsel would have likely required a continuance. “When a request for
substitute counsel would ‘almost certainly necessitate a last-minute
continuance, the trial judge’s actions are entitled to extraordinary
deference.’” Id. at 779 (quoting United States v. Vasquez, 560 F.3d 461,
467 (6th Cir. 2009)). Without an identified counsel of choice or any
particulars regarding progress made to retain an attorney, Petitioner has
not shown that the trial court abused its discretion when balancing his
right to counsel of choice against concerns of fairness and scheduling.
Petitioner also claims that defense counsel’s failure to call an expert
witness in DNA analysis or to move to retest the DNA rendered counsel
ineffective. He claims that the error was so egregious as to constitute the
constructive denial of counsel and that prejudice, therefore, should be
presumed under Chronic. See ECF No. 22, PageID.1066–70.
14

To show the violation of the Sixth Amendment right to effective
assistance of counsel, a petitioner must show that (1) the counsel’s
performance was deficient and (2) the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). An
attorney’s performance is deficient if “counsel’s representation fell below
an objective standard of reasonableness.” Id. at 688. To establish that an
attorney’s deficient performance prejudiced the defense, the petitioner
must

show

“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.
Under certain egregious circumstances, where “counsel entirely
fails to subject the prosecution’s case to meaningful adversarial testing,”
a constructive denial of counsel occurs. Cronic, 466 U.S. at 659. When
there is a constructive denial of counsel, a defendant need not show
prejudice to establish ineffective assistance of counsel. Id. at 658–59.
However, Cronic’s presumption of prejudice is applied only where “the
constructive denial of counsel and the associated collapse of the
adversarial system is imminently clear.” Ivory v. Jackson, 509 F.3d 284,
295 (6th Cir. 2007) (quoting Moss v. Hofbauer, 286 F.3d 851, 860 (6th Cir.
2002)). For a presumption of prejudice to arise based on an attorney’s
failure to test the prosecutor’s case, the attorney’s failure “must be
complete.” Bell v. Cone, 535 U.S. 685, 697 (2002).
15

Here, counsel’s supposed errors did not rise to a constructive denial:
counsel actively represented Petitioner at trial, effectively crossexamined the prosecutor’s witnesses, made timely objections, and
presented a cohesive defense. Nothing in the record makes imminently
clear a collapse of the adversarial system.
Since Petitioner fails to show that the Cronic analysis applies, the
Court now considers the two-pronged Strickland standard. A claim that
trial counsel was ineffective for failing to call an expert witness cannot
rest on speculation. See Keith v. Mitchell, 455 F.3d 662, 672 (6th Cir.
2006). “In the absence of any evidence showing that [an uncalled witness]
would have offered specific favorable testimony, [a petitioner] cannot
show prejudice from counsel’s…[failure to present a witness].” Tinsley v.
Million, 399 F.3d 796, 810 (6th Cir. 2005). Petitioner puts forward no
support for his argument that an expert witness would have aided the
defense; his unsupported, speculative arguments are insufficient to
warrant habeas relief.
Finally, Petitioner’s claim that counsel failed to meet with him
enough before trial is meritless: “[T]he mere fact that counsel spent little
time with [a defendant] is not enough under Strickland, without evidence
of prejudice or other defects.” Bowling v. Parker, 344 F.3d 487, 506
(6th Cir. 2003). In the instant case, Petitioner has neither shown that
counsel’s

consultation

with

him

was

insufficient,

nor

has

he

demonstrated how additional consultation would have altered the trial
16

outcome. See Lenz v. Washington, 444 F.3d 295, 303 (4th Cir. 2006)
(holding that the petitioner, unable to demonstrate any resulting
prejudice, could not prevail on claim that attorneys were ineffective due
to infrequent pre-trial visits).
C. Whether the Admission of Other Act Evidence Violated
Due Process
In his third claim, Petitioner challenges the admission of evidence
related to the murder of Quaylana Rogers (“QR”). The Michigan Court of
Appeals held this evidence properly admitted under the Michigan Rules
of Evidence (“MRE”):
The trial court properly admitted the evidence of QR’s
killing. MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show action in conformity therewith. It
may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent,
preparation, scheme, plan, or system in doing an
act, knowledge, identity, or absence of mistake or
accident when the mistake is material, whether
such other crimes, wrongs, or acts are
contemporaneous with, or prior to subsequent to
the conduct at issue in the case.
Pursuant to Sabin, 463 Mich. at 65, when a plan or scheme is
sufficiently similar, evidence of another act may be used for
the inference that a defendant used the same plan or scheme
in the charged offense.
In general, this Court reviews a trial court’s decision
17

regarding the admissibility of other-acts evidence for an abuse
of discretion. However, decisions regarding the admission of
evidence frequently involve preliminary questions of law, e.g.,
whether a rule of evidence or statute precludes admissibility
of the evidence. Questions of law are reviewed de novo. [People
v. Dobek, 274 Mich. App. 58, 84–85; 732 N.W.2d 546 (2007)
(citations omitted).]
A trial court’s decision on a close evidentiary issue cannot
ordinarily be an abuse of discretion. Sabin, 463 Mich. at 67.
Evidence of similar conduct can be used to show that the
charged offense occurred, even when not part of a “single
continuing conception or plot,” when the “uncharged
misconduct and the charged offense are sufficiently similar to
support an inference that they are manifestations of the
common plan, scheme, or system.” Sabin, 463 Mich. at 63–64.
The Sabin Court affirmed the lower court’s admission of MRE
404(b)(2) evidence regarding sexual abuse of a girl, to show
sexual abuse of a different girl, where the victims both had a
father-daughter relationship with the defendant, both victims
were of similar age, and the defendant used parental
authority to manipulate both victims into silence by
suggesting that they would break up the family if they told
anyone about the abuse. Id. However, there were also
significant differences between the charged act and the act
admitted pursuant to MRE 404(b). Id. The defendant
performed oral sex on one victim, frequently over a period of
years, at night, in the victim’s bedroom. Id. The other victim
suffered one isolated act of sexual intercourse committed in
the afternoon. Id. Despite these differences, the Sabin Court
did not find the trial court abused its discretion in admitting
the evidence. Id.
There are significant similarities between SM’s and QR’s
murders. Both killings involved young, petite black women.
Both were taken at night, in Detroit, 12 days apart. They were
both forced into sexual acts, and semen was deposited in both
18

of their bodies. Both victims were stabbed in the neck, and
died of stab wounds. Both bodies were concealed in vacant
areas. Their assaults and murders occurred within close
proximity to each other. While there were some differences,
the crimes were at least as similar as the crimes in Sabin. Id.
The trial court did not abuse its discretion in admitting the
other acts evidence.
Defendant also argues that the trial court abused its
discretion in not excluding the other acts evidence under MRE
403. MRE 403 states: “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.” “Evidence is unfairly prejudicial when there exists
a danger that marginally probative evidence will be given
undue or preemptive weight by the jury.” People v. Crawford,
458 Mich. 376, 398; 582 N.W.2d 785 (1998). “[T]here is a
heightened need for the careful application of the principles
set forth in MRE 403” when the trial court admits other acts
evidence under MRE 404(b). Id.
Defendant argued that he did not commit these crimes,
meaning he disputed, in part, whether he committed the actus
reus of the offenses. In Sabin, the Michigan Supreme Court
declined to find an abuse of discretion because “the evidence
was admissible to show the actus reus of the offense.” Sabin,
463 Mich. at 70–71. Thus, while there was a risk of undue
prejudice, the evidence was also highly probative.
Defendant further argues that the admission of evidence
related to QR’s killing was so fundamentally unfair that it
violated defendant’s Fourteenth Amendment right to due
process. US Const, Am XIV. This issue is unpreserved because
defendant did not move for a new trial on this basis. This
Court reviews allegations of unpreserved constitutional error
for plain error. People v. Carines, 460 Mich. 750, 774; 597
19

N.W.2d 130 (1999). This requires that: 1) error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and
the plain error affected substantial rights.” Id. at 763. In
addition, “[t]he reviewing court should reverse only when the
defendant is actually innocent or the error seriously affected
the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 774. As discussed above, defendant has
not demonstrated that the trial court committed any error,
much less plain error.
Gilkey, 2016 WL 362661, at *3–5.
The Michigan Court of Appeals’ decision was not contrary to, or an
unreasonable application of, Supreme Court precedent. First, to the
extent that Petitioner raises this claim as a violation of state law, his
claim is not cognizable on federal habeas review. Shoemaker v. Jones, 600
F.App’x 979, 984 (6th Cir. 2015). No clearly established Supreme Court
precedent holds that a state violates due process by introducing other bad
acts evidence. Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). The
Supreme Court has discussed when other acts testimony is permissible
under the Federal Rules of Evidence, see Huddleston v. United States,
485 U.S. 681 (1988), but has not addressed the issue in constitutional
terms—finding admission of such testimony more appropriately
addressed in codes of evidence and procedure than under the Due Process
Clause.

Dowling v. United States, 493 U.S. 342, 352 (1990).

Consequently, there is no “clearly established federal law” to which the
state court’s decision could be “contrary” within the meaning
of § 2254(d)(1). Bugh, 329 F.3d at 513.
20

Second, Petitioner fails to establish a due process violation. The
admission of evidence may violate the Due Process Clause (and thereby
provide a basis for habeas relief) where the admission “is so extremely
unfair that its admission violates ‘fundamental conceptions of
justice.’” Dowling

v.

United

States,

493

U.S.

342,

352

(1990)

(quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)); Bugh, 329
F.3d at 512. The Supreme Court “define[s] the category of infractions that
violate fundamental fairness very narrowly.” Estelle v. McGuire, 502 U.S.
62, 73 (1991). An evidentiary decision must “offend[] some principle of
justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental” to violate due process. Seymour v. Walker, 224
F.3d 542, 552 (6th Cir. 2000) (citation omitted). This standard accords
the state courts “wide latitude…with regard to evidentiary matters under
the Due Process Clause[.]” Id.
Here, the trial court acted well within the bounds of due process
when it admitted evidence of Rogers’ murder. For the reasons the
Michigan Court of Appeals discussed, the challenged evidence was
relevant and probative. The trial court considered the evidence’s
relevance, purpose, and potential for prejudice. This Court has no basis
on which to conclude that the admission of this evidence led to the denial
of fundamental fairness. Relief is denied on this claim.

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IV. CONCLUSION
The Court DENIES the petition for a writ of habeas corpus. The
Court further finds that reasonable jurists would not debate this Court’s
resolution of Petitioner’s claims, so the Court DENIES a certificate of
appealability. See Slack v. McDaniel, 529 U.S. 473, 483–84, 120 S. Ct.
1595, 146 L. Ed. 2d 542 (2000). If Petitioner nonetheless chooses to
appeal, he may proceed in forma pauperis. See 28 U.S.C. § 1915(a)(3).
This case is DISMISSED WITH PREJUDICE. This is a final order that
closes this case.
SO ORDERED this 19th day of January, 2024.

Dated: January 22, 2024

/s/Terrence G. Berg
HON. TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served via electronic and/or
ordinary mail.
By: /s/Linda Vertriest
Case Manager

Dated: January 22, 2024

BY THE COURT:
/s/Terrence G. Berg
HON. TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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