Daniels v. Winn

Filing 12

OPINION AND ORDER DENYING 1 THEPETITION FOR A WRIT OF HABEAS CORPUS,DENYING A CERTIFICATE OF APPEALABILITY, ANDDENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL - Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KELSEY DAVON DANIELS, #787693,
Petitioner,
v.

Case No. 2:17-cv-13003
Paul D. Borman
United States District Judge

THOMAS WINN,
Respondent.
________________________________/
OPINION AND ORDER DENYING THE
PETITION FOR A WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner

Kelsey Davon Daniels (“Petitioner”) was convicted of first-degree felony murder,
Mich. Comp. Laws § 750.316(b)(1), armed robbery, Mich. Comp. Laws § 750.529,
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, Mich. Comp. Laws
§ 750.227b, following a jury trial in the Oakland County Circuit Court. He was
sentenced, as a third habitual offender, Mich. Comp. Laws § 769.11, to life
imprisonment without the possibility of parole on the murder conviction, a concurrent
term of 30-60 years imprisonment on the armed robbery conviction, a concurrent term
of 4 years 9 months to 10 years imprisonment on the felon in possession conviction,

and concurrent terms of 2 years imprisonment on the felony firearm convictions, to
be served consecutively to the other sentences, in 2014.
In his habeas petition, Petitioner raises claims concerning the great
weight/sufficiency of the evidence, the jury instructions, the alleged suppression of
evidence, and the effectiveness of trial counsel. For the reasons set forth herein, the
Court denies the petition for a writ of habeas corpus. The Court also denies a
certificate of appealability and denies Petitioner leave to proceed in forma pauperis
on appeal.
II.

Facts and Procedural History
Petitioner’s convictions arise from the fatal shooting of Rashone Johnson

during an attempted armed robbery at his residence in Pontiac, Michigan during the
early morning hours on April 6, 2013. The Court adopts the prosecution’s summary
of the trial testimony, as set forth on direct appeal, to the extent that it is consistent
with the record. Those facts are as follows:
Susan Allen, a dispatcher with the Oakland County Sheriff’s Department
(OCSD), testified that she received a 911 call on April 6, 2013 at 12:58
a.m. The 911 tape was played for the jury. (TII, 44) The call indicated
that someone had been shot. (TII, 45)
Shay McNeary, a deputy with the OCSD, testified that he received a
dispatch call at 12:59 a.m. on April 6, 2013 that there was a shooting
victim at the corner of Central and Going in the City of Pontiac. (TII, 47)
The shooting victim, Rashone Johnson, was lying on the ground and
McNeary did not feel a pulse. (TII, 51) NcNeary and Deputy Haw
performed CPR on Johnson, but there was no response and Johnson was
2

cold to the touch. (TII, 52) EMS arrived and took Johnson to the
hospital. Other police officers arrived and followed the blood trail. (TII,
53) McNeary found a golf ball size of crack cocaine in a bag at the
scene. (TII, 54-55)
Kevin Braddock, a deputy with the OCSD, testified that he arrived at the
scene and saw Johnson lying on the ground and unresponsive to the
CPR. Johnson’s blood soaked pants were down and his boxers were
visible. (TII, 62) Braddock went to the hospital and Johnson was
pronounced dead. Braddock stayed with Johnson and his property. There
was some blood soaked money in Johnson’s boot. (TII, 66) Braddock
transported Johnson’s items to Rachel Grace, the crime scene
investigator. (TII, 67) Braddock did not count the money because it was
blood soaked. (TII, 68)
Donald Gracey, Jr., a deputy with the OCSD, testified that he arrived at
the intersection of Central and Going Street and observed Johnson laying
on the ground. Johnson was a black male and his pants were down
around his thighs and he was covered in blood. There was also a small
bag of what appeared to be cocaine and a blood trail that led down the
sidewalk. (TII, 71-72) Gracey followed the blood trail to a house one
block away at 424 Irwin Street. (TII, 74-79) There was a Chevy
Suburban in the driveway. (TII, 81) Gracey did not recall if the front
door was locked. (TII, 100) Deputies entered the home through the open
side door. (TII, 84-85) The television in the living room was on. Gracey
observed a shell casing from a semi-automatic handgun in front of the
stove and another casing was in the sink. (TII, 86-87, 94) Blood was
found in the living room. (TII, 102-103)
Rachel Grace, a forensic lab technician with the OCSD, was qualified by
the court as an expert in crime scene investigation and tool mark and
firearms identification. (TII, 106) Grace went to 424 Irwin Street and
took photos of the scene and collected evidence. Grace collected a comb
that was on the front walk. (TII, 111) The DNA on the comb matched
Johnson’s DNA. (TII, 112) The main portion of blood was found to the
side of the couch and just inside the front door. (TII, 113) No guns were
recovered in this case so Grace could not compare the casings to any
particular gun. (TII, 115-116) Grace concluded that the casings were
fired from a .9 mm gun manufactured by either Ruger or Smith and
3

Wesson. (TII, 116) There was also a .45 automatic caliber casing found,
indicating that two automatic revolver guns were involved. (TII,
121-122) The two .45 caliber casings came from the same firearm. (TII,
126-127)
Grace received Johnson’s clothes and money in a bag. (TII, 130-131)
There was $111.00 total. (TII, 135) There was a hole consistent with a
fired projectile in the left pocket and another in the right pocket [of
Johnson’s pants]. There was also a projectile hole in Johnson’s hoodie
across the abdominal area consistent with a graze mark. (TII, 130-132)
Grace followed the blood trail and found a silver necklace on the
sidewalk at the west side of 410 Central. (TII, 134) A small clear bag
with suspected drugs was also found near Johnson’s body. (TII, 136)
On April 8, 2013, Grace processed evidence from a 2000 blue Malibu
car related to this incident. No latent prints were recovered from the
vehicle. (TII, 140, 146) Grace found a small amount of blood on the
front passenger interior handle. The blood matched the DNA profile for
Rickey Smith. (TII, 146-147)
Nathaniel Goss, a paramedic with Starr EMS, testified that he was
dispatched to Central and Going Street on April 6, 2013 at approximately
1:03 a.m. There was a lot of blood on the scene and likely an artery was
hit and the patient was bleeding out. They loaded the patient into the
ambulance immediately. (TII, 185-188) There were no signs of life. (TII,
191) When Goss pulled the patient’s right boot off, blood “just poured
all out of his boot.” There was money folded inside the boot with the
blood. (TII, 193-195)
Ruben Ortiz-Reyes, a forensic pathologist with the Oakland County
Medical Examiner’s Office, was qualified by the court as an expert in
forensic pathology and pathology. (TII, 204) Ortiz-Reyes performed the
autopsy on Johnson on April 6, 2013, at 8:00 a.m. (TII, 206) Johnson
was 5’8”, 216 pounds, and was 29 years old. (TII, 207) There was a
gunshot wound to the left thigh and a gunshot wound to the right thigh
of Johnson’s legs. (TII, 211) The left gunshot wound went through the
femoral artery and femoral vein—the biggest vessels. (TII, 217) A
person walking with that type of injury is going to lose a lot of blood.
Ortiz-Reyes opined that it would take only minutes to bleed out. (TII,
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220) The gunshot wound on the right thigh only damaged the femoral
artery, not the vein. (TII, 221) Ortiz-Reyes concluded that the manner of
death was homicide caused by multiple gunshot wounds. (TII, 227)
Allante Thompson identified Defendant in court as the person he knew
as Kelsey Daniels. Thompson was involved in the whole situation and
was not happy to be in court. (TIII, 6) Thompson knew Rickey Smith,
who went by the name of “Boss,” for a long time. Thompson knew
Charona Williams not that long. Thompson had known Defendant for
“almost forever.” (TIII, 7) Thompson knew Ricky Larkin and had been
to his apartment on Walton in Pontiac. (TIII, 8) Thompson drove
Larkin’s Malibu in the early morning hours of April 6, 2013. (TIII, 9-10)
Thompson went to Larkin’s apartment on Friday, April 5, 2013, in the
afternoon and he was drinking and smoking marijuana. (TIII, 12-13)
Two girls were at the apartment—Simone was with Ricky and Mayia
was there alone. Defendant and Smith were also there. (TIII, 14-16)
Around midnight, Smith asked Thompson to drive him in Larkin’s car
to pick up his girlfriend because Smith did not have a driver’s license.
(TIII, 19) Smith told Thompson to drive to the “east side” near Murphy
Park. (TIII, 20) When they were on Irwin Street, Smith was on his phone
and said, “I’m here.” (TIII, 25) The house they went to was at the
intersection of Going and Irwin. (TIII, 26-27) Thompson saw Williams
near the sidewalk of 424 Irwin. (TIII, 28-29) Williams sat in the back
seat and Smith and Kelsey got out of the car and said they would be right
back. Thompson did not think anything of it. (TIII, 31-32)
Thompson heard what sounded like a car crash to him and Williams
panicked and jumped out of the car. She went running up the sidewalk.
(TIII, 33-34) Thompson saw a person moving towards Going Street.
(TIII, 35) Williams, Defendant, and Smith returned to the car. Defendant
was wearing his hoodie up and tied. (TIII, 36-38) Smith hit Williams a
couple of times and said, “I told you.” Defendant told Smith to stop.
Thompson asked what was going on and Defendant told him not to
worry about it. (TIII, 39-41) Smith told Thompson to drive back to
Larkin’s home. Smith was acting nervous, but Defendant acted normal.
(TIII, 42) Police cars went flying past them at the corner of Martin
Luther King and Auburn Road. (TIII, 43) Smith told Thompson to get
off the main street, but Thompson continued straight. (TIII, 44)
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Thompson stopped on Dufrain Street for Williams to see some girl
named “Tick,” but no one answered the door. (TIII, 48) Thompson drove
to Williams’s brother’s house and dropped off Williams and Smith.
(TIII, 51-52)
Thompson and Defendant returned to Larkin’s apartment. (TIII, 54) A
guy named Tremaine Love was there. (TIII, 55-56) Thompson and
Larkin went to the Coney Island from approximately 2:00 a.m. until 3:00
a.m. (TIII, 57-60) Thompson, Larkin, Defendant, and Love made small
talk at the apartment for approximately an hour and then Williams and
Smith arrived at approximately 4:00 a.m. (TIII, 62-63) Thompson was
smoking marijuana. (TIII, 64) Defendant showed Thompson his cell
phone and it said, “I think that’s messed up, what happened, RIP Shone
Rone.” To Thompson, it meant that Johnson had died. (TIII, 65)
Defendant told Thompson that he had nothing to worry about because he
did not know what was going on. (TIII, 67) Defendant told Thompson
that Smith went in first through the side door and he had a .45 gun on
him. Defendant had a .9 gun on him. There was a struggle between
Smith and Rashone and Defendant shot one time towards Rashone’s
stomach or chest area. (TIII, 67-69) Smith said he shot towards the
ground and made two “pow” noises. (TIII, 71-72) Defendant said they
went there for a “lick.” Thompson explained that “lick” is a street word
for robbery. (TIII, 70) Defendant went there for a “band” which meant
a thousand dollars. Williams texted Smith that Rashone had a band.
(TIII, 71) Thompson’s mother and Rashone’s oldest brother grew up
together. Thompson did not want his mother to know he “took somebody
on something like this.” (TIII, 74) In the morning, Thompson took
Williams to Tick’s house and Smith to Canterbury Street and then he
went to class at 8:00 a.m. (TIII, 76-79)
On Sunday, Thompson got arrested. Thompson lied and told the
detectives that he did not know why he was there and that he had not
seen Defendant or Smith all week. (TIII, 81-84) Thompson did not want
to be a “snitch” and did not want his mother finding out. (TIII, 84-86)
Thompson went to his mother’s house and shortly afterwards, the
detectives arrived there. Larkin told the detectives that he gave the car
keys to Thompson, Smith, and Defendant and had not seen the car in 24
hours. Thompson denied it and the detectives left. (TIII, 88-89)
6

Thompson’s mother kicked him out of the house and he went to a
friend’s house. Thompson’s mother hired a lawyer, William Hatchett,
and they went to speak with him. (TIII, 90-92) Thompson lied to
Hatchett because his mother was there. (TIII, 92)
The next day the detectives went to Thompson’s mother’s house and told
her that they knew for a fact that Thompson was the one driving the car.
Thompson went back to Hatchett’s by himself and told him the truth.
(TIII, 92-93) Thompson spoke with the police on May 24, 2013, with
Hatchett present. (TIII, 95-96) The prosecutor was present and they all
signed an agreement. The agreement stated that Thompson’s statement
could not be used against him in court, unless he committed perjury.
(TIII, 97-98)
Charona Williams identified Defendant in court as the person she knew
as Kelsey Daniels. (TIII, 160-161) Williams dated Smith for
approximately a year. Williams knew Rashone Johnson and had a sexual
relationship with him also. (TIII, 161-162) Williams had been to
Johnson’s house at 424 Irwin Street numerous times. (TIII, 163)
Williams stated that she had an agreement with the prosecutor’s office
that in exchange for her truthful testimony, she pled guilty and would be
sentenced to the charge of conspiracy to commit armed robbery and the
charges of felony murder and armed robbery would be dropped. (TIII,
164) The charge of conspiracy to commit armed robbery carried a
sentence of a minimum of ten and a half years in prison. (TIII, 165)
At the time of the murder, Williams was eighteen years old and lived
withhermotherinTroy,Michigan.(TIII,165-166)OnApril6,2013,atapproximately5:00a.m.,Wiliams’mothercalledherandtold
her the police were at the house. Williams was at Larkin’s apartment with Smith,
Defendant, Tremaine Love, Ricky Larkin, and Allante Thompson. (TIII, 166-167)
Williams told Smith that she wanted to go to her friend Tick’s house and Thompson
drove her there. (TIII, 168-169) Williams was upset and crying. Williams told Tick
that Smith killed Shone. Williams called her mother to come and get her. Williams
went right from Tick’s to the police station. (TIII, 169-170)
On Friday, April 5, 2013, Williams was at Tick’s house and Smith’s
mother dropped off a bag of clothes for Williams to give to Smith. (TIII,
179-180) Williams called Smith to let him know. Williams was planning
to spend the night at Johnson’s place. (TIII, 181) Tick drove Williams to
7

Ricky Larkin’s place at approximately 10:00 or 11:00 p.m. (TIII, 183)
Williams got into an argument with Smith and returned to Tick’s house.
(TIII, 184) Williams texted Smith at 10:14 p.m., “Bag in the parking lot.
I’m done.” Smith went to Tick’s house looking for Williams, but Tick’s
cousin told Smith she was not there. (TIII, 188-189) Williams texted
Johnson that she needed to stay at his place for the night. (TIII, 189-190)
At approximately 11:41 p.m., Johnson texted Williams that he was
pulling up at Tick’s house. (TIII, 196)
Johnson picked up Williams and they stopped on Wilson Street for
Johnson to sell drugs. (TIII, 196-197) Johnson stopped at a Sunoco gas
station to get some Halls throat lozenges and then they went to Johnson’s
house on Irwin Street. Williams began to braid Johnson’s hair. At 12:14
a.m. on April 6, 2013, Williams texted Smith, “I got a lick for you.”
(TIII, 197-200) Williams explained that she was telling Smith to come
to Johnson’s to rob him. Williams did not know why she did that. Smith
texted Williams, “Bitch answer the phone.” (TIII, 200) Williams texted
Smith, “Stretch this nigger he got more than a band.” Williams explained
that her text meant to lay Johnson on the ground and take his money. A
band was a thousand. Williams assumed that Johnson had that kind of
money because he was a drug dealer, but did not see any money and did
not know where Johnson kept his money. (TIII, 202-203)
Williams texted Smith, “I’ll come outside and act like you my ride and
they you come on in.” (TIII, 203) At 12:23 a.m., Williams texted Smith,
“In the car with Tick and Shone. I’m going to go to Irwin, he drunk.”
Williams explained that the text was a lie because she did not want Smith
to know that she was alone with Johnson at his house. (TIII, 205) At
12:28 a.m., Smith texted Williams, “Go in the crib. And see who there.
What I’m pulling up.” Williams texted, “K I’m on my way there now,”
still pretending that she was not at Johnson’s house. (TIII, 208) Williams
texted her sister Shaee, “I need you to call right now and say I’m on my
way please,” so that Johnson would think she was walking out to her
sister. (TIII, 209-210) At 12:43 a.m. Williams texted Smith, “Hurry
babe, please.”
Williams walked out to the street and saw Thompson pulling up.
Williams left the side door unlocked. Williams got in the car and
Defendant was in the back seat and Smith was in the front passenger
8

seat. (TIII, 211, 214) Williams asked, “Who is that?” because Defendant
had a hood on and she did not recognize him. Williams told Smith that
Johnson was alone and there may be a gun under the sofa cushion. (TIII,
215-216) Smith asked for something to cover his face and Williams gave
him a white t-shirt. Smith and Defendant got out of the car and went
towards the house. Williams knew that Defendant and Smith were
armed. (TIII, 217-218)
Not even a minute later, Williams heard gunshots. She said, “Oh shit”
and jumped out of the car and started running away from Irwin because
she was scared. Williams thought that Smith and Defendant were going
to just rob Johnson and she did not want anybody to shoot him. (TIII,
219-220) Thompson drove up and Smith was in the front seat making
gestures and mouthing, “What the fuck?” Williams got in the car and
Smith turned around and threw a couple of punches at Williams with a
closed fist. Defendant told Smith to stop because he was scaring her.
Smith stopped and turned around. (TIII, 221-222)
They drove to Martin Luther King and Auburn and Smith told
Thompson to take side streets. Williams saw approximately three
sheriff’s vehicles with their sirens and lights on heading the way they
just came from. Defendant said, “We need to get these guns out the car.”
(TIII, 223-224) Williams told Thompson to drop her off at the
Woodcrest Apartments because her brother, Will Terry, lived there.
Williams and Smith went inside Terry’s apartment and Smith hid his gun
under the seat cushion. Williams observed that the gun was black and
big. (TIII, 225-227) Williams noticed there was blood on the white
t-shirt she had given Smith. Williams took the shirt and threw it over the
side of her brother’s gate where there was a Popeye restaurant. (TIII,
227-228) Smith was jealous about Johnson and said, “If I got it in my
mind that you was about to fuck that nigger I’ll kill you or hurt you.”
(TIII, 228-229)
At approximately 4:00 a.m., Terry took Williams and Smith to Larkin’s
apartment. (TIII, 232) When they arrived, Defendant, Love, Thompson,
and Larkin were there. Smith still had his gun. Williams called her
mother to pick her up and her mother told her she would be there in the
morning. (TIII, 233-234) Smith and Defendant left the room for a few
minutes and then Smith returned. Five minutes later, Larkin came in the
9

bedroom and put two guns in the closet on the top shelf. (TIII, 235)
Smith’s gun was a semi-automatic. (TIII, 236) One of the two guns
looked like the gun at Terry’s house. (TIII, 237)
At approximately 5:19 a.m., Williams got a text from her friend Tanisha
that said, “Rashone gone, I’m crying.” Williams was shocked. (TIII,
237-238) Smith read the text and did nothing at all. (TIII, 239) Five
minutes later, Williams’ mother called her to tell her the police were at
her house. (TIII, 239) Williams told her mother that she was on the north
side and would call her later because she was scared to talk to the police.
(TIII, 240) Smith told Thompson that Williams wanted to leave and
Defendant told Williams to take the battery out of her phone. Defendant
also asked Williams if she was texting Johnson prior to this and to tell
the police that she did not know anything. (TIII, 242-243) Thompson
took Williams to Tick’s house and Thompson left with Smith in the car.
(TIII, 244)
Williams’ mother picked her up and she went to the Pontiac Police
Department. Detectives Emmons and Miller questioned Williams. (TIII,
245) Williams had been in police custody ever since that day. (TIII, 246)
Williams never communicated with Thompson since the incident. (TIII,
247) Williams gave the police several statements over three days. (TIII,
250-251) Williams decided to cut a deal when she was charged with
murder and the police had obtained Williams’ text messages. (TIII,
251-252)
Williams did not feel bad about setting Johnson up, but she did feel bad
that he was deceased. (TIII, 253) Williams had a prior conviction for
retail fraud third degree. (TIII, 271) Williams admitted that everything
in her first and second statements to the police were basically lies. (TIII,
277)
Adam Miller, a detective with the OCSD, testified that he spoke with
Williams on April 6, 7, and 8, 2013. After speaking with Williams on
Sunday, April 7, Miller went to the Wingsong Apartments where Ricky
Larkin lived because they had information about the blue Malibu that
may be involved in the homicide. Miller located the Malibu in the
parking lot of 1300 block of Gambrell. (TIII, 284) Miller and Emmons
watched the car and an hour later, Thompson got in the car and left. A
10

marked police car stopped the Malibu. An inventory search of the
Malibu was performed and the car was sent to the impound lot. Larkin
later consented to a search of the vehicle and a crime scene technician
went over the car. (TIII, 285-287) No guns were ever recovered in this
case. (TIII, 289) Larkin’s apartment was never searched because the
police did not obtain information about possible guns at the apartment
until months later. (TIII, 300-302) The police looked for Defendant
everywhere and they were not able to find him until June 10, 2013. (TIII,
310-311; TIV, 12-14) Defendant was in custody in the Wayne County
Jail. (TIV, 17)
Chad Emmons, a detective with the OCSD, testified that he received an
anonymous tip regarding Charona Williams setting up the murder on
April 6, 2013, at approximately 3:00 a.m. (TIV, 21) Emmons found out
that Williams was dating Johnson. He went to Williams’ mother’s house
in Troy to speak with her and Williams subsequently went to the
substation sometime after 8:00 a.m. (TIV, 22-25)
The People rested. (TIV, 30)
Ricky Larkin testified that he was 22 years old and lived in his mother’s
apartment on April 6, 2013. Larkin knew Defendant from school. (TIV,
31-32) On the evening of April 5, 2013, Larkin was at the apartment
with his girlfriend, Simone Brown, her cousin Jamia, Jermaine, and
Thompson. Defendant was not there. (TIV, 33) Larkin let Thompson use
his car because Thompson did not want to be a third wheel. Thompson
left a little before 10:00 p.m., which was before the ladies arrived. (TIV,
34)
Thompson came back alone around 12:00 or 1:00 a.m. and no one other
than Larkin was at the apartment. Larkin went with Thompson to the
Coney Island from approximately 2:00 a.m. until 3:00 a.m. and then they
returned to Larkin’s apartment. (TIV, 35-36) Larkin spoke with
Detective Miller on April 8, 2013 for an hour and then he was let go.
(TIV, 37-38)
Larkin denied that Smith ever asked him for a ride early on Saturday
morning, April 6, 2013. Larkin was impeached with his statement dated
April 7, 2013 to Detective Emmons that stated, “He called me Saturday
11

morning for a ride, but I was busy with my cousin.” Larkin stated that he
did not recall Smith calling him. (TIV, 42-43) However, Larkin
mentioned Smith calling him on Saturday morning at least four times in
his statement. Larkin stated that he did not recall talking to him. (TIV,
46-48) Larkin was sure that Smith was not at his apartment asking to use
the car with Defendant and that he let Thompson use the car and the
three of them left. (TIV, 49-50)
Larkin did not recall Defendant’s mother calling to tell him about
Johnson’s killing. (TIV, 51) However, Larkin’s statement to police on
April 7, 2013 stated that Defendant’s mom “was the one who actually
called me and told me about everything.” (TIV, 51-52) Larkin testified
that his girlfriend arrived after Thompson left, but his statement to police
said, “It was me, him and another female and he didn’t want to be sitting
around while we was there.” (TIV, 68) Larkin could not recall if
Williams stayed at his apartment on Thursday night. Larkin saw Smith
and Defendant on Friday earlier in the day. (TIV, 69-70) Larkin had no
idea how much weed he smoked that night. (TIV, 72) Larkin did not like
talking to the police. (TIV, 73)
The defense rested. (TIV, 79) Defendant chose not to testify. (TIV,
81-82)
Pros. App. Brf., pp. 1-14.
Following his convictions and sentencing, Petitioner filed an appeal of right
with the Michigan Court of Appeals essentially raising the same claims presented on
habeas review. The court denied relief on those claims and affirmed his convictions
and sentences. People v. Daniels, No. 324565, 2016 WL 1125939 (Mich. Ct. App.
March 22, 2016). Petitioner filed an application for leave to appeal with the Michigan
Supreme Court, which was denied in a standard order. People v. Daniels, 500 Mich.
882, 886 N.W.2d 439 (2016).

12

Petitioner thereafter filed his federal habeas petition raising the following
claims:
I.

The great weight of the evidence was insufficient to sustain the
verdict and the Michigan Court of Appeals’ decision affirming his
convictions was contrary to or an unreasonable application of
clearly established federal law.

II.

The jury instructions were improper and deprived him of a
fundamental right to due process and his defense counsel was
ineffective for failing to timely object.

III.

The prosecution violated his constitutional right to a fair trial
when it suppressed evidence that it had a duty to disclosed and
such violation of Brady v. Maryland, 373 U.S. 83 (1963), was not
immaterial but substantial.

IV.

Trial counsel was ineffective for failing to conduct a thorough
investigation and present an adequate defense.

Respondent filed an answer to the habeas petition contending that it should be denied
because certain claims are procedurally defaulted and all of the claims lack merit.
Petitioner filed a reply to that answer, as well as a subsequent amendment providing
additional argument in support of his petition.
III.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal
courts must use when considering habeas petitions brought by prisoners challenging
their state court convictions. The AEDPA provides in relevant part:

13

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim-(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d) (1996).
“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 [that]
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 § 2254(d)(1) 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). However, “[i]n order
for a federal court find a state court’s application of [Supreme Court] precedent
‘unreasonable,’ the state court’s decision must have been more than incorrect or

14

erroneous. The state court’s application must have been ‘objectively unreasonable.’”
Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409.
The “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) (quoting Lindh, 521 U.S. at 333, n. 7).
“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) (citing Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized that
“even a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Pursuant to § 2254(d), “a habeas court must determine what arguments or theories
supported or . . . could have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision” of the Supreme Court.
Id. Thus, in order to obtain habeas relief in federal court, a state prisoner must show
that the state court’s rejection of his claim “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id. at 103; see also White v. Woodall, 572
U.S. 415, 419-20 (2014). Federal judges “are required to afford state courts due
15

respect by overturning their decisions only when there could be no reasonable dispute
that they were wrong.” Woods v. Donald, 575 U.S. 312, 316 (2015). A habeas
petitioner cannot prevail as long as it is within the “realm of possibility” that
fairminded jurists could find the state court decision to be reasonable. Woods v.
Etherton, 136 S. Ct. 1149, 1152 (2016).
Section 2254(d)(1) limits a federal habeas court’s review to a determination
of whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision.
Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)
(noting that the Supreme Court “has held on numerous occasions that it is not ‘an
unreasonable application of’ ‘clearly established Federal law’ for a state court to
decline to apply a specific legal rule that has not been squarely established by this
Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 123 (2008) (per curiam));
Lockyer v. Andrade, 538 U.S. at 71-72. Section 2254(d) “does not require a state
court to give reasons before its decision can be deemed to have been ‘adjudicated on
the merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does not require citation
of [Supreme Court] cases–indeed, it does not even require awareness of [Supreme
Court] cases, so long as neither the reasoning nor the result of the state-court decision
contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S.
at 16.
16

The requirements of clearly established law are to be determined solely by
Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly
established Federal law as determined by the Supreme Court’” and it cannot provide
the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012)
(per curiam); see also Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam). The
decisions of lower federal courts, however, may be useful in assessing the
reasonableness of the state court’s resolution of an issue. Stewart v. Erwin, 503 F.3d
488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.
2003) and Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002)).
A state court’s factual determinations are presumed correct on federal habeas
review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption
only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998). Moreover, habeas review is “limited to the record that was before the state
court.” Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
IV.

Analysis
A.

Procedural Default

As an initial matter, Respondent contends that habeas claims are barred by
procedural default. The Court declines to address this procedural defense. It is not a
jurisdictional bar to review of the merits. Howard v. Bouchard, 405 F.3d 459, 476
(6th Cir. 2005). Moreover, federal courts on habeas review “are not required to
17

address a procedural-default issue before deciding against the petitioner on the
merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v.
Singletary, 520 U.S. 518, 525 (1997)). The Supreme Court has explained the
rationale behind such a policy: “Judicial economy might counsel giving the [other]
question priority, for example, if it were easily resolvable against the habeas
petitioner, whereas the procedural-bar issue involved complicated issues of state
law.” Lambrix, 520 U.S. at 525.
Such is the case here. The procedural issues are complex and the substantive
claims are more readily decided on the merits. Accordingly, the Court shall proceed
to the merits of Petitioner’s claims.
B.

Merits
1.

Great Weight/Insufficient Evidence Claim

Petitioner first asserts that he is entitled to habeas relief because the verdict
was against the great weight of the evidence and the prosecution failed to present
sufficient evidence to support his convictions for felony murder and armed robbery.
Respondent contends that this claim lacks merit.
The Due Process Clause “protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The relevant question
is whether, after viewing the evidence in the light most favorable to the prosecution,
18

any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (internal citation
and footnote omitted). The sufficiency of the evidence standard “must be applied
with explicit reference to the substantive elements of the criminal offense as defined
by state law,” Jackson, 443 U.S. at 324 n. 16, and through the framework of 28
U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus, under
the AEDPA, challenges to the sufficiency of the evidence must survive “two layers
of deference to groups who might view facts differently” than a reviewing court on
habeas review – the factfinder at trial and the state court on appellate review – as long
as those determinations are reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.
2009).
Additionally, “it is the responsibility of the jury – not the court – to decide
what conclusions should be drawn from the evidence admitted at trial.” Cavazos v.
Smith, 565 U.S. 1, 2 (2011) (per curiam). A federal court may not re-weigh the
evidence or re-determine the credibility of the witnesses. Marshall v. Lonberger, 459
U.S. 422, 434 (1983); Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003).
A habeas court must defer to the factfinder at trial for its assessment of the credibility
of witnesses. Id.
Under Michigan law, a person who commits murder during the perpetration
of a felony is guilty of first-degree murder. Mich. Comp. Laws § 750.316(b). The
19

elements of felony murder are: (1) the killing of a human being, (2) with the intent
to kill, to do great bodily harm, or to create a very high risk of death or great bodily
harm with knowledge that death or great bodily harm was the probable result [i.e.,
malice], (3) while committing, attempting to commit, or assisting in the commission
of any of the felonies specifically enumerated in the statute. See Matthews v.
Abramajtys, 319 F.3d 780, 789 (6th Cir. 2003) (citing People v. Carines, 460 Mich.
750, 759 (1999)); People v. Smith, 478 Mich. 292, 318-19 (2007). The facts and
circumstances of the killing may give rise to an inference of malice, including
evidence that the defendant used a deadly weapon. Carines, 460 Mich. at 759.
Armed robbery is an enumerated felony under the statute. The elements of
armed robbery are that the defendant: (1) in the course of committing a larceny of any
money or other property that may be the subject of a larceny, used force or violence
against any person who was present or assaulted or put the person in fear, and (2) in
the course of committing the larceny, either possessed a dangerous weapon,
possessed an article used or fashioned in a manner to lead any person present to
reasonably believe that the article was a dangerous weapon, or represented orally or
otherwise that he or she was in possession of a dangerous weapon. People v.
Chambers, 277 Mich. App. 1, 7-8 (2007); Mich. Comp. Laws §§ 750.529, 750.530.
To convict a defendant under an aiding and abetting theory, a prosecutor must
show that: (1) the crime charged was committed by the defendant or some other
20

person; (2) the defendant performed acts or gave encouragement that assisted the
commission of the crime; and (3) the defendant intended the commission of the crime
or knew that the principal intended to commit the crime at the time he or she gave aid
and encouragement. Carines, 460 Mich. at 757-58; see also People v. Robinson, 475
Mich. 1, 6, (2006); Mich. Comp. Laws § 767.39. An aider and abettor’s state of mind
may be inferred from all the facts and circumstances, including a close association
between the defendant and the principal, the defendant’s participation in the planning
or execution of the crime, and evidence of flight after the crime. Carines, 460 Mich.
at 757-58.
As with any crime, the prosecution must prove beyond a reasonable doubt that
the defendant committed the charged offenses. People v. Oliphant, 399 Mich. 472,
489 (1976); People v. Yost, 278 Mich. App. 341, 356 (2008); People v. Kern, 6 Mich.
App. 406, 409 (1967). Direct or circumstantial evidence and reasonable inferences
arising from that evidence may constitute satisfactory proof of the elements of an
offense, People v. Nowack, 462 Mich. 392, 399-400 (2000); People v. Jolly, 442
Mich. 458, 466 (1993), including the identity of the perpetrator, Dell v. Straub, 194
F. Supp. 2d 629, 647-48 (E.D. Mich. 2002); Kern, 6 Mich. App. at 409, and intent or
state of mind. People v. Dumas, 454 Mich. 390, 398 (1997).
Citing the Jackson standard and the foregoing state law principles, the
Michigan Court of Appeals ruled that the prosecution presented sufficient evidence
21

to support Petitioner’s convictions for felony murder and armed robbery. The court
explained in relevant part:
Defendant's claim that his conviction(s) cannot stand because “nothing
was taken,” and therefore no robbery occurred, is without merit. The
felony murder statute specifically states that the murder need only have
occurred during the “attempt to perpetrate” one of the enumerated
felonies. MCL 750.316(1)(b). Moreover, under the Legislature's armed
robbery statute, MCL 750.530, “a completed larceny is no longer
necessary to sustain a conviction for the crime of robbery or armed
robbery.” People v. Williams, 491 Mich. 164, 166; 814 NW2d 270
(2012).
***
The evidence supports the conclusion that defendant committed armed
robbery as either a principal or an aider and abettor. Charona Williams
testified that she texted Rickey Smith from Johnson's house and told
Smith that she had a “lick” for him. Allante Thompson then drove Smith
and defendant to Johnson's house. According to Williams, defendant
had his hood tied around his head, and she gave Smith a white t-shirt to
put over his face. She warned Smith that Johnson might have a gun
under a cushion in the house. Both Williams and Thompson testified
that defendant and Smith then got out of the car and entered Johnson's
house. Not a minute later, Williams heard gunshots,1 and Smith and
defendant came out of the house and back into the car. Later that
morning, defendant and Smith told Thompson that they had gone into
Johnson's house to rob him and that while there, they all got into a tussle
and defendant fired one shot upwards toward Johnson's stomach or
chest, and Smith fired two shots toward the ground. Thompson further
testified that defendant told him that he used a 9–mm gun and Smith
used a .45–caliber gun. Johnson ended up dying as a result of being shot
multiple times.
From this evidence, the inescapable inference is that defendant and
Smith both entered Johnson's house to steal money from him. Defendant
attempted to conceal his identity before entering Johnson's home and
admitted afterward that it was intention to rob Johnson. Further,
1

Thompson testified that he heard what sounded like a crash.
22

defendant admitted that he had a 9–mm gun and fired it during the
robbery attempt. Alternatively, at a minimum, the evidence supports the
finding that defendant aided in the commission of the attempted robbery
with knowledge at the time that Smith intended to rob Johnson.
Defendant also challenges the sufficiency of the evidence in support of
his felony-murder conviction on the basis that he did not possess the
requisite malice for felony murder. Malice may be inferred “from
evidence that the defendant intentionally set in motion a force likely to
cause death or great bodily harm.” Carines, 460 Mich. at 759.
Here, there was evidence that defendant entered Johnson's home with
a 9–mm gun and fired it at Johnson. The fact that the shot missed during
the struggle does not negate the intent that defendant had at the time.
The jury was still free to infer that defendant had at the time an intent
to kill or cause great bodily harm from his use of the firearm. See id.
(“Malice may also be inferred from the use of a deadly weapon.”).
Alternatively, the evidence was also sufficient for a rational jury to find
that defendant had the requisite malice to be convicted of felony murder
under an aiding and abetting theory.
***
. . . like before, defendant's use of a firearm could allow the jury to infer
the requisite malice. See Carines, 460 Mich. at 759. Further, . . . [a]
natural and probable consequence of armed robbery, the crime
defendant either committed as a principal or aided and abetted, is death
or great bodily harm. Thus, there was sufficient evidence that defendant
“wantonly and willfully disregarded the likelihood that the natural
tendency of his behavior was to cause death or great bodily harm.”
Daniels, 2016 WL 1125939 at *1-3 (footnote in original).
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. As an initial matter, Petitioner
is not entitled to habeas relief on any claim that the jury verdict was against the great
weight of the evidence. It is well-established that habeas review is not available to
23

correct errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not
the province of a federal habeas court to reexamine state-court determinations on
state-law questions”). The federal constitution requires only that the evidence be
sufficient to sustain the conviction under the standard established in Jackson v.
Virginia, 443 U.S. 307 (1979). Where the evidence is sufficient as a matter of due
process, a claim that the verdict was against the weight of the evidence presents a
state law issue which is not cognizable on habeas review. A federal habeas court has
no power to grant relief on the ground that a state conviction is against the great
weight of the evidence. Cukaj v. Warren, 305 F. Supp. 2d 789, 796 (E.D. Mich.
2004); Dell v. Straub, 194 F. Supp. 2d 629, 648 (E.D. Mich. 2002). Habeas relief is
thus not warranted on such a basis.
Similarly, to the extent that Petitioner contests the Michigan Court of Appeals’
interpretation of state law regarding the elements of the offenses, he is not entitled
to relief. It is well-settled that “a state court’s interpretation of state law, including
one announced on direct appeal of the challenged conviction, binds a federal court
sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford v.
Yukins, 288 F.3d 855, 860 (6th Cir. 2002). State courts are the final arbiters of state
law and federal courts will not intervene in such matters. Lewis v. Jeffers, 497 U.S.
764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987). Habeas relief
does not lie for perceived errors of state law. Estelle, 502 U.S. at 67-68.
24

With respect to the sufficiency of the evidence under the Jackson standard, the
record indicates that the prosecution presented sufficient evidence to establish that
Petitioner committed first-degree felony murder and armed robbery and that he acted
with the requisite intent to support his convictions. The testimony of Allante
Thompson and Charona Williams, and reasonable inferences therefrom, establish that
Petitioner was one of the perpetrators of the crimes, either as a principle or as an aider
and abettor, that Petitioner went to the victim’s house with his cohort, Ricky Smith,
intending to rob the victim of money, that Petitioner and Smith were both armed with
guns and made efforts to conceal their identities, that Petitioner fired his weapon at
the victim and Smith also fired his weapon during the robbery attempt, and that the
victim died from a gunshot wound that he suffered during the incident.
Petitioner challenges the credibility determinations and inferences the jury
drew from the testimony presented at trial. However, it is the job of the fact-finder
at trial, not a federal habeas court, to resolve such evidentiary conflicts. Cavazos, 565
U.S. at 7; Jackson, 443 U.S. at 326; Martin, 280 F.3d at 618; see also Walker v.
Engle, 703 F.2d 959, 970 (6th Cir. 1983) (“A federal habeas corpus 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.”). The
jury’s verdict was supported by the trial testimony. The evidence presented at trial,
25

viewed in a light favorable to the prosecution, established beyond a reasonable doubt
that Petitioner committed the crimes, either as a principle or as an aider and abettor,
and that he acted with the requisite intent to support his convictions. More
importantly, for purposes of federal habeas review, the Michigan Court of Appeals’
decision to that effect was reasonable. Habeas relief is not warranted on this claim.
2.

Jury Instruction Claim and Related Ineffective Assistance of
Counsel Claim

Petitioner next asserts that he is entitled to habeas relief because the trial court
erred in instructing the jury by failing to instruct on M. Crim. JI 2.19 (multiple
defendants on trial together), failing to instruct on M. Crim. JI 8.5 (mere presence),
and failing to instruct on the lesser offense of voluntary manslaughter. Petitioner
relatedly asserts that trial counsel was ineffective for failing to object to the jury
instructions at trial. Respondent contends that the jury instruction claim is
waived/procedurally defaulted and that the claims lack merit.
In order for habeas relief to be warranted on the basis of incorrect jury
instructions, a petitioner must show more than the instructions are undesirable,
erroneous or universally condemned. Rather, taken as a whole, they must be so infirm
that they rendered the entire trial fundamentally unfair. Estelle, 502 U.S. at 72;
Henderson v. Kibbe, 431 U.S. 145, 154 (1977). If an instruction is ambiguous and not
necessarily erroneous, it violates the Constitution only if there is a reasonable

26

likelihood that the jury applied the instruction improperly. Binder v. Stegall, 198 F.3d
177, 179 (6th Cir. 1999). A jury instruction is not to be judged in artificial isolation,
but must be considered in the context of the instructions as a whole and the trial
record. Jones v. United States, 527 U.S. 373, 391 (1999); Grant v. Rivers, 920 F.
Supp. 769, 784 (E.D. Mich. 1996). The failure to give an instruction that is supported
by the evidence does not automatically justify habeas relief – the failure to instruct
must have rendered the trial fundamentally unfair. Henderson, 431 U.S. at 155 (“An
omission, or an incomplete instruction, is less likely to be prejudicial than a
misstatement of the law.”). State law instructional errors rarely form the basis for
federal habeas relief. Estelle, 502 U.S. at 71-72.
The Michigan Court of Appeals ruled that Petitioner waived any review of the
jury instructions because defense counsel expressed satisfaction with the instructions
as given. The court nonetheless further ruled that the claims of instructional error
lacked merit because the instructions were not warranted based upon the evidence
presented at trial. The court explained:
Defendant avers that the court erred because it failed to provide the
instruction provided in M. Crim. JI 2.19. This instruction provides that
when there are multiple defendants “on trial together,” the jury is to
consider each of them separately and is to decide the case based on the
evidence and the law that applies to each defendant. However, while
there were other individuals who pleaded guilty related to the murder of
Johnson, defendant was the sole defendant on trial. Thus, it would have
been nonsensical and improper for the court to provide this instruction.

27

Defendant also claims that the jury should have been instructed on M.
Crim. JI 8.5, which provides that mere presence, even with knowledge
that an offense is about to be committed, is insufficient to make that
person liable on an aiding and abetting theory. But in order to give a
particular instruction to the jury, there must be evidence to support it.
People v. Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000);
People v. Johnson, 171 Mich App 801, 804; 430 NW2d 828 (1988).
Here, the evidence shows that defendant was more than just a mere
bystander. Instead, the evidence demonstrates that he wielded a gun,
attempted to conceal his face with a hood, entered Johnson's home with
Smith, and fired his gun toward Johnson. As a result, the evidence did
not support providing M. Crim. JI 8.5 to the jury.
Defendant alleges that the jury should have been instructed on the lesser
offense of voluntary manslaughter. “Voluntary manslaughter is an
intentional killing committed under the influence of passion or hot
blood produced by adequate provocation and before a reasonable time
has passed for the blood to cool.” People v. Hess, 214 Mich App 33, 38;
543 NW2d 332 (1995). However, there was no evidence presented that
purported to show that defendant was, at the time of the killing, acting
“under the influence of passion or hot blood produced by adequate
provocation.” Rather, the evidence established that this was a planned
robbery attempt. Thus, the jury was not entitled to be instructed on
voluntary manslaughter. See Canales, 243 Mich App at 574; Johnson,
171 Mich App at 804.
Daniels, 2016 WL 1125939 at *3-4.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. The instruction on multiple
defendants was not warranted because it only applies to multiple defendants tried
together in one trial. In this case, the other defendants, Smith and Williams, pleaded
guilty, and Petitioner was tried alone. The instruction on mere presence was not
warranted because, as discussed supra, there was ample evidence that Petitioner was
28

an active participant in the crime, not merely present when it occurred. The
instruction on voluntary manslaughter was not warranted because the evidence
indicated that the fatal shooting occurred during a planned robbery attempt, not in
response to adequate provocation and in the heat of passion. Petitioner fails to show
that a state law error occurred, let alone one of constitutional dimension, as to this
issue. The jury instructions, as given, adequately informed the jurors of the elements
of the crimes, the burden of proof, and the proper consideration of the evidence. The
omission of the aforementioned instructions did not render the trial fundamentally
unfair. Habeas relief is not warranted on this claim.
Petitioner relatedly asserts that trial counsel was ineffective for failing to object
to the jury instructions at trial. The Sixth Amendment to the United States
Constitution guarantees a criminal defendant the right to the effective assistance of
counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the United States
Supreme Court set forth a two-prong test for determining whether a habeas petitioner
has received ineffective assistance of counsel. First, a petitioner must prove that
counsel’s performance was deficient. This requires a showing that counsel made
errors so serious that he or she was not functioning as counsel as guaranteed by the
Sixth Amendment. Strickland, 466 U.S. at 687. Second, the petitioner must establish
that counsel’s deficient performance prejudiced the defense. Counsel’s errors must
have been so serious that they deprived the petitioner of a fair trial or appeal. Id.
29

To satisfy the performance prong, a petitioner must identify acts that were
“outside the wide range of professionally competent assistance.” Id. at 690. The
reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at 689.
There is a strong presumption that trial counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.
Id. at 690. The petitioner bears the burden of overcoming the presumption that the
challenged actions were sound trial strategy.
As to the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. A reasonable probability is one that is
sufficient to undermine confidence in the outcome of the proceeding. Id. On balance,
“[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the
[proceeding] cannot be relied on as having produced a just result.” Id. at 686.
The Supreme Court has confirmed that a federal court’s consideration of
ineffective assistance of counsel claims arising from state criminal proceedings is
quite limited on habeas review due to the deference accorded trial attorneys and state
appellate courts reviewing their performance. “The standards created by Strickland
and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem,
review is ‘doubly’ so.” Harrington, 562 U.S. at 105 (internal and end citations
30

omitted). “When § 2254(d) applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id.
Given the Michigan Court of Appeals’ decision and this Court’s decision that
the jury instructions were appropriate under state law and did not render the trial
fundamentally unfair, Petitioner cannot establish that trial counsel erred and/or that
he was prejudiced by counsel’s conduct.2 Counsel cannot be deemed ineffective for
failing to make a futile or meritless objection. See Coley v. Bagley, 706 F.3d 741, 752
(6th Cir. 2014) (“Omitting meritless arguments is neither professionally unreasonable
nor prejudicial.”); United States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000).
Habeas relief is not warranted on this claim.
3.

Non-Disclosure of Evidence Claim

Petitioner also asserts that he is entitled to habeas relief because the
prosecution failed to disclose evidence – police reports containing statements from
Samone Brown, Jamya Abrams, and Danny Wallace (and his son) – in violation of
his constitutional rights. Respondent contends that this claim is procedurally
defaulted and that it lacks merit.
The United States Supreme Court has made clear that prosecutors must “refrain

2

Petitioner did not raise this particular claim of ineffective assistance of
counsel in the state courts. Accordingly, the Court’s review of this issue is de novo.
31

from improper methods calculated to produce a wrongful conviction.” Berger v.
United States, 295 U.S. 78, 88 (1935). A prosecutor’s failure to disclose evidence
favorable to the defense constitutes a denial of due process “where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). To find a Brady
violation, not only must the evidence be suppressed, it must be material and favorable
to the defense. Elmore v. Foltz, 768 F.2d 773, 777 (6th Cir. 1985). Favorable
evidence is material “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985); see also Kyles v. Whitley, 514
U.S. 419, 432–36 (1995). Material evidence is that which is “so clearly supportive
of a claim of innocence that it gives the prosecution notice of a duty to produce.”
United States v. Clark, 988 F.2d 1459, 1467 (6th Cir. 1993). The duty to disclose
favorable evidence includes the duty to disclose impeachment evidence. Bagley, 473
U.S. at 682; Giglio v. United States, 405 U.S. 150, 154-55 (1972).
The Brady rule only applies to “the discovery, after trial, of information which
had been known to the prosecution but unknown to the defense.” United States v.
Agurs, 427 U.S. 97, 103 (1976). A Brady violation does not occur if the defendant
knew or should have known the essential facts or if the evidence is available from
another source. Spirko v. Mitchell, 368 F.3d 603, 611 (6th Cir. 2004); Coe v. Bell,
32

161 F.3d 320, 344 (6th Cir. 1998). A Brady violation does not occur if previously
undisclosed evidence is disclosed during trial unless the defendant is prejudiced by
its prior non-disclosure. United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986).
Thus, in order to establish a Brady violation, a petitioner must show that: (1)
evidence was suppressed by the prosecution in that it was not known to the petitioner
and not available from another source; (2) the evidence was favorable or exculpatory;
and (3) the evidence was material to the question of guilt. Carter v. Bell, 218 F.3d
581, 601 (6th Cir. 2000). The petitioner bears the burden of establishing a Brady
violation. Id.
The Michigan Court of Appeals denied relief on this claim ruling that
Petitioner failed to establish a Brady violation. The court explained in relevant part:
Defendant asserts that the witness statements from three witnesses
(Samone Brown, Jamya Abrams, and Danny Wallace) are implicated in
this claim. However, notably, defendant never alleges that the
prosecutor failed to disclose the statements from Brown and Abrams.
Instead, defendant cursorily avers that the statements from them
“directly contradict the testimony” of other witnesses because “they
refute the assertions of his presence at Ricky Larkin's apartment.” Thus,
without any evidence that the prosecutor had possession of these
statements and did not turn them over to defendant, defendant cannot
establish plain error. Moreover, the statements did not materially help
defendant. The statements merely provide that, according to these
witnesses, defendant was not at Larkin's apartment between 10:00 p.m.
and midnight on April 5, 2013. While there was some other testimony
that defendant was at Larkin's apartment on April 5, the record
demonstrates that the shooting happened after midnight, and defendant's
admissions that took place at Larkin's apartment happened around 4:00
a.m. the following day. Consequently, had the evidence been disclosed,
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there is not a reasonable probability of a different outcome, and
therefore defendant is not entitled to relief.3
The witness statement of Wallace also was not helpful to defendant.
While defendant does allege that this statement was not provided by the
prosecution, there is nothing in the record to support this assertion.4
Additionally, the materiality of the statement is dubious. In the
statement, Wallace says that on the night of the shooting, he heard a
knock on his front door, and after opening it, saw the victim Johnson,
who said “I've been shot.” Defendant asserts that this is exculpatory
because Johnson did not provide any names of the shooters or
alternatively claim that he was shot during a robbery. Defendant's
position is devoid of any merit or logic on its face. Obviously, someone
shot Johnson. The fact that he did not describe the circumstances of the
shooting during his final breaths to his neighbor is no reason to think
that defendant or anyone else did not perform the crime. Hence, the
evidence did not have any exculpatory value, and any Brady claim
necessarily fails.
Daniels, 2016 WL 1125939 at *4-5 (footnotes in original).
The state court’s denial of relief is neither contrary to Supreme Court precedent
nor an unreasonable application of federal law or the facts. First, Petitioner fails to
allege facts showing that the police statements containing these three witnesses’
statements were actually suppressed by the prosecution and not given to defense

3

Indeed, the jury was presented with this information. Larkin testified that,
while Brown and Abrams were present, defendant was not at the apartment on the
evening of April 5.
4

Notably, defendant provided copies of the police reports that contained the
statements by Brown, Abrams, and Wallace. Defendant does not explain how he
came into possession of them if the prosecutor did not initially provide these
statements. Indeed, the prosecution provided a proof of service that indicates that it
provided discovery materials to defendant, which included “police narrative
reports.”
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counsel. To be sure, Brown’s and Abrams’ statements are part of a report that
includes Charona Williams’ statement and the prosecution’s proof of service
indicates that they turned over police narrative reports. Petitioner does not indicate
when or how he obtained the police reports containing the statements if not from the
prosecution at the time of trial. Conclusory allegations, without evidentiary support,
are insufficient to justify habeas relief. Cross v. Stovall, 238 F. App’x 32, 39-40 (6th
Cir. June 14, 2007); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998); see also
Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions and
conclusory allegations do not provide sufficient basis for an evidentiary hearing in
habeas proceedings).
Second, none of the statements exonerate Petitioner or are particularly
favorable to the defense. While Brown and Abrams both stated that they were at
Ricky Larkin’s residence between 10:00 p.m. and midnight on April 5, 2013 and did
not mention Petitioner being present, they were not at Larkin’s residence during the
early morning hours on April 6, 2013, they did not witness the crime, and they were
not at Larkin’s residence after the crime occurred. While Wallace (and his son)
reported that the victim came to the door and said that he had been shot, Wallace
offered no other information about the crime. The fact that the victim did not
elaborate on the circumstances of the shooting was not exculpatory, favorable to the
defense, nor otherwise material to the case.
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Third, Petitioner fails to show that there is a reasonable probability that the
statements would have affected the outcome at trial. The testimony from Thompson
and Williams provided substantial evidence of Petitioner’s guilt and the allegedly
undisclosed reports did not concern the circumstances of the crime, exculpate
Petitioner, nor provide an new avenue of defense (other than possibly impeaching
when Petitioner was at Larkin’s residence). Petitioner fails to establish a violation of
his constitutional rights or, more aptly, that the Michigan Court of Appeals’ decision
was unreasonable. Habeas relief is not warranted on this claim.
4.

Ineffective Assistance of Counsel Claim

Lastly, Petitioner asserts that he is entitled to habeas relief because trial
counsel was ineffective for failing to investigate his case and present an adequate
defense at trial. In particular, he asserts that counsel should have called his mother
to testify at trial and should have interviewed and presented Ricky Smith to testify
at trial. Respondent contends that this claim is partially procedurally defaulted and
that it lacks merit.
As previously discussed, the Sixth Amendment guarantees a criminal
defendant the right to the effective assistance of counsel at trial. To establish that trial
counsel was ineffective, a habeas petitioner must prove that counsel’s performance
was deficient and that counsel’s deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687. A reviewing court’s scrutiny of counsel’s performance
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is highly deferential and there is a strong presumption that trial counsel exercised
reasonable professional judgment. Id. at 689-90; see also Harrington, 562 U.S. at
105. A habeas petitioner is only entitled to relief if he or she can show that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
As to the duty to investigate, it is well-settled that defense counsel must
conduct a reasonable investigation into the facts of a defendant’s case, or make a
reasonable determination that such investigation is unnecessary. Wiggins, 539 U.S.
at 522-23; Strickland, 466 U.S. at 691; Stewart v Wolfenbarger, 468 F.3d 338, 356
(6th Cir. 2007). The duty to investigate “includes the obligation to investigate all
witnesses who may have information concerning . . . guilt or innocence.” Towns v.
Smith, 395 F.3d 251, 258 (6th Cir. 2005). That being said, decisions as to what
evidence to present and whether to call certain witnesses are presumed to be matters
of trial strategy. When making strategic decisions, counsel’s conduct must be
reasonable. Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); see also Wiggins, 539
U.S. at 522-23. The failure to call witnesses or present other evidence constitutes
ineffective assistance of counsel only when it deprives a defendant of a substantial
defense. Chegwidden v. Kapture, 92 F. App’x 309, 311 (6th Cir. Mar. 18, 2004);
Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002).
The Michigan Court of Appeals denied relief on this claim finding that
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Petitioner failed to establish that counsel was ineffective under the Strickland
standard. The court explained in relevant part:
Defendant claims that counsel's performance was constitutionally
deficient because he failed to investigate and call defendant's mother as
a witness, who supposedly would attest that defendant was with her
until at least 10:30 p.m. on April 5, 2013. But who to call as a witness
is a matter of trial strategy, which we will not second guess. People v.
Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). At the outset,
with no evidentiary hearing, there is nothing on the record that indicates
how defendant's mother would have testified at trial. Accordingly, his
claim of ineffective assistance fails for the failure to establish the
necessary factual predicate. People v. Hoag, 460 Mich 1, 6; 594 NW2d
57 (1999). Moreover, as noted above, the murder did not occur until
after midnight, so even if the jury was presented with the “fact” that
defendant was with his mother until 10:30 p.m., there was not a
reasonable probability that there would have been a different outcome,
given defendant's admissions and the damning testimony from
Thompson and Williams.
Defendant also claims that his trial counsel was constitutionally
deficient by not interviewing Smith. However, there is nothing on the
record to indicate that counsel did not attempt to interview Smith.
Furthermore, in Smith's affidavit that defendant produced on appeal,
Smith simply avers that defendant was not with Smith at any time on
April 5, 2013. Again, the crimes with which defendant was convicted
occurred on April 6, 2013. Smith, who pleaded guilty to his role in the
murder, omitted any reference in his affidavit to being with defendant
on April 6, which was the critical time period, and the jury surely would
have viewed this as a glaring omission. In brief, if counsel had produced
Smith for trial and Smith only testified, consistent with his affidavit,
then there would not have been a reasonable probability that the jury's
verdict would have been different. Thus, any claims of ineffective
counsel based on the failure to investigate and/or call Smith as a witness
necessarily fails.
Defendant also argues that his trial counsel was ineffective because he
failed to present an adequate defense. Defendant states that counsel
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failed to challenge the prosecutor's case by failing “to attack [the]
necessary elements of the offenses charged” and failing to assert that
defendant was not present at the crime. To the extent that this claim is
based on counsel's failure to produce Brown, Abrams, Wallace, and
Smith as witnesses, the claim fails for the reasons provided previously.
Additionally, to the extent that the claim is based on counsel's general
failure “to attack [the] necessary elements of the offenses,” defendant
provides no further argument on what counsel either did inappropriately
or should have done. Accordingly, the issue is abandoned. . . .
Daniels, 2016 WL 1125939 at *5-6.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. In this case, the record
indicates that trial counsel sufficiently investigated potential witnesses and made
strategic decisions about which witnesses to present at trial. While Petitioner
contends that counsel should have called his mother as a witness and that she would
have testified that he was at home with her until 10:30 p.m. on the April 5, 2013, he
fails to present an affidavit from her or other evidence to support this assertion. As
noted, conclusory allegations are insufficient to warrant federal habeas relief. Cross,
238 F. App’x at 39-40; Workman, 178 F.3d at 771; see also Washington, 455 F.3d
at 733.
Additionally, counsel may have reasonably decided not to call Petitioner’s
mother as a witness due to credibility concerns, see, e.g., Stadler v. Berghuis, 483 F.
App’x 173, 176-77 (6th Cir. June 5, 2012) (counsel’s decision not to pursue an alibi
defense was reasonable given concerns about family members’ credibility), and the
39

fact that her testimony would not have provided Petitioner with an alibi given that the
crime occurred during the early morning hours on April 6, 2013. The fact that
counsel’s strategy was unsuccessful does not mean that counsel was ineffective. See
Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (an ineffective assistance of
counsel claim “cannot survive so long as the decisions of a defendant's trial counsel
were reasonable, even if mistaken”).
With respect to Ricky Smith, the record is unclear whether trial counsel
attempted to interview him or was otherwise aware of his possible testimony as set
forth in his affidavit. If counsel was aware of such potential testimony, he may have
reasonably decided not to call Smith as a witness because Smith states that he was not
with Petitioner on April 5, 2013, but does not discuss April 6, 2013 – when the crime
occurred – in his affidavit. Similarly, if counsel was unaware of such potential
testimony because he failed to interview Smith, Petitioner cannot establish that he
was prejudiced by counsel’s conduct given that Smith’s affidavit only concerns April
5, 2013 and not April 6, 2013. Smith also does not indicate in his affidavit that he
would have been willing to testify on Petitioner’s behalf at the time of trial. Petitioner
was not deprived of a substantial defense based upon counsel’s conduct in not
producing these potential witnesses.
Petitioner also alleges that trial counsel failed to sufficiently contest the
elements of the offenses and to argue that he was not present at the crime and was
40

actually innocent. Such a claim is belied by the record. The record indicates that trial
counsel challenged the prosecution’s case, presented a defense witness, and made
reasonable arguments in support of the defense case. Petitioner’s assertions to the
contrary are speculative and conclusory. He offers no specific factual or legal
arguments that would have been beneficial to his defense. As noted, conclusory
allegations are insufficient to warrant federal habeas relief. Cross, 238 F. App’x at
39-40; Workman, 178 F.3d at 771; see also Washington, 455 F.3d at 733. Petitioner
fails to establish that trial counsel was ineffective under the Strickland standard.
Habeas relief is not warranted on this claim.
V.

Conclusion
For the reasons stated, the Court concludes that Petitioner’s habeas claims lack

merit and that he is not entitled to relief. Accordingly, the Court DENIES and
DISMISSES WITH PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal the Court’s decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). When a court denies relief
on the merits, the substantial showing threshold is met if the petitioner demonstrates
that reasonable jurists would find the court’s assessment of the claim debatable or
wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this
41

standard by demonstrating that . . . jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). Having conducted the requisite review, the Court concludes
that Petitioner fails to make a substantial showing of the denial of a constitutional
right as to his habeas claims. Accordingly, the Court DENIES a certificate of
appealability.
Lastly, the Court concludes that an appeal from the Court’s decision cannot be
taken in good faith. See Fed. R. App. P. 24(a). Accordingly, the Court DENIES
Petitioner leave to proceed in forma pauperis on appeal. This case is CLOSED.
IT IS SO ORDERED.

Dated: June 8, 2020

s/Paul D. Borman
Paul D. Borman
United States District Judge

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