Lewis v. Smith

Filing 17

OPINION and ORDER DENYING 1 Petition for Writ of Habeas Corpus and DENYING a Certificate of Appealability Signed by District Judge Robert H. Cleland. (LWag)

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARIUS LEWIS,
Petitioner,
Case No. 17-14174
v.
WILLIS CHAPMAN, WARDEN, 1
Respondent
________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
Petitioner Darius Lewis, an inmate at the Thumb Correctional Facility in Lapeer,
Michigan, filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner challenges his felony murder conviction, Mich. Comp. Law § 750.316, for
which he is serving a term of life without parole. The petition raises claims of actual
innocence, ineffective assistance of counsel, improper denial of jury selection
peremptory challenges, and the prejudicial admission of photographs of the deceased
victim. For the reasons provided below, the court will deny the petition. The court will
also deny a certificate of appealability.
I.

BACKGROUND

A Wayne County Circuit Court jury convicted Petitioner of felony murder, Mich.
Comp. Law § 750.316, for the August 19, 2014 shooting death of Sa–Jad Al–Jabur.

1

The court amends the caption to the name of Petitioner Lewis’ current warden,
reflecting his current incarceration at the Thumb Correctional Facility, Lapeer, Michigan.
See Rule 2(a) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254.

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People v. Lewis, No. 326141, 2016 WL 3429683, at *1 (Mich. Ct. App. June 21, 2016).
Petitioner’s co-defendant, Doyle Mims, pleaded guilty to second-degree murder; in
exchange, additional counts of armed robbery and possession of a firearm during the
commission of a felony (felony-firearm) were dropped. Id. After a robbery charge was
dismissed, Petitioner was tried alone on charges of open murder, Mich. Comp. Laws §
750.316, and felony-firearm, Mich. Comp. Laws § 750.227b. Id. The state court of
appeals reported the trial testimony as follows:
The evidence showed that [co-defendant Doyle] Mims had sold cell phones
to the victim in the past. On the day of the offense, the victim arrived at the
house where Mims was then living. Mims and defendant were sitting outside
on the porch, apparently awaiting his arrival. Mims had a sealed box with a
Verizon label on it. The box contained miscellaneous household items, but
not cell phones. Mims’s grandfather, Roger Collins, Jr., testified that
defendant had a bulge in the front of his pants, which led Collins to believe
he might be carrying a gun. When the victim arrived, defendant and Mims
both went to meet him. Mims took the box and entered the front seat of the
victim’s car while defendant sat in the back. Suddenly, defendant pulled out
a gun and shot the victim in the back of the head. Defendant and Mims fled
the scene. Mims was later found in possession of a large amount of cash;
the bills were blood-stained. It was defendant’s theory at trial that Mims shot
the victim and defendant was “merely present.” The jury was instructed on
premeditated murder, felony murder (predicated on robbery or larceny), and
second-degree murder on the open murder charge and on felony-firearm. It
was also instructed on aiding and abetting. The jury found defendant guilty
of felony murder and not guilty of felony-firearm.
Id. at *1.
On February 13, 2015, Petitioner was sentenced to life without parole. (ECF No.
10-13, PageID.693.) Following Petitioner’s direct appeal by right, the Michigan Court of
Appeals affirmed his conviction, and the Michigan Supreme Court denied leave to
appeal. Id. at *7; People v. Lewis, 895 N.W.2d 520 (Mich. 2017).

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On direct appeal, Petitioner raised three issues through court-appointed counsel
and one additional issue in a pro se brief. 2 Lewis, 2016 WL 3429683 at *1–*7.
Petitioner’s appellate counsel argued that: (1) Petitioner was actually innocent and his
trial attorney ineffective for failing to present at trial an exculpatory witness or the
witness’s statements against interest; (2) Petitioner was denied a fair trial by the trial
court’s declaration of a jury before the defense could exercise all its peremptory
challenges; and (3) Petitioner was denied a fair trial because of the admission of gory
photographs of the victim. (ECF No. 10-14, PageID.715.) In his pro se Standard 4 brief,
Petitioner raised the sole argument of the insufficiency of the evidence. (Id. at
PageID.819.) The Court of Appeals affirmed his conviction and sentence.
Petitioner’s appellate attorney then filed leave to appeal to the Michigan Supreme
Court, raising the same three issues she raised in the Court of Appeals. (ECF No. 1015, PageID.906.) The Michigan Supreme Court affirmed the lower court in a standard
form order. People v. Lewis, 895 N.W.2d 520 (Mich. 2017).
Petitioner filed the instant petition for the writ of habeas corpus on December 19,
2017. In it, he raises the same three claims as his attorney raised in the state appellate
courts: (1) his actual innocence and ineffective assistance of counsel, (2) his inability to
use of all of his peremptory challenges, and (3) the admission of gory photographs of
the victim. The Respondent does not argue that Petitioner failed to exhaust any of these

2

Michigan criminal defendants may file a brief in propria persona for claims they
seek to raise on appeal, if appointed counsel does not include those claims in their
pleadings. See Standard 4, Michigan Supreme Court Administrative Order No. 2004-6
(2004) (establishing minimum standards for criminal defense appellate services).
Defendants are also entitled to “procedural advice and clerical assistance” from
appellate counsel to ensure their pro se pleadings will be accepted by the court. Id.
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claims. (ECF No. 9, PageID.86.) Petitioner also filed a writ of certiorari to the Supreme
Court, but it was denied on January 22, 2018. Lewis, 2016 WL 342968, cert. denied,
138 S. Ct. 933 (Jan. 22, 2018) (No. 17-6975).
Respondent filed his response and Rule 5 materials on July 3, 2018. Petitioner
filed a Reply on August 6, 2018. Thereafter, Petitioner filed a motion for leave to amend
his petition and a motion to stay the proceedings. (ECF Nos. 12, 14.) In his motion for
leave to amend, Petitioner brought to the court’s attention “recently discovered”
information related to instances of misconduct by his trial judge in other cases for which
the judge was disciplined. (ECF No. 12, PageID.979.) Petitioner asks the court to
consider the judge’s behavior in those cases in assessing his claim regarding the trial
court’s denial of his use of peremptory jury challenges. (Id. at PageID.980.) The court
denied Petitioner’s request for stay, construed Petitioner’s motion to amend as a motion
to supplement, and received the information related to Petitioner’s trial court judge.
(ECF No. 16, PageID.995.)
II.

STANDARD

Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, imposes the
following standard of review for habeas cases:
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

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(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.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law, or if the state court decides a case differently than the Supreme Court
on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405–06
(2000) (O’Connor, J., concurring). An “unreasonable application” of law occurs when “a
state-court decision unreasonably applies the law of [the Supreme Court] to the facts of
a prisoner’s case.” Id. at 409. “[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Id. at 411.
The AEDPA “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 citation 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) (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. Pursuant to section 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.

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Id. Although § 2254(d), as amended by the AEDPA, does not completely bar federal
courts from re-litigating claims which state courts previously rejected, a federal court
may grant habeas relief only “in cases where there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with” the Supreme Court’s
precedents. Id. A “readiness to attribute error [to a state court] is inconsistent with the
presumption that state courts know and follow the law.” Woodford v. Viscotti, 537 U.S.
19, 24 (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 of
correctness only with clear and convincing evidence. Id. Moreover, for claims that were
adjudicated on the merits in state court, habeas review is “limited to the record that was
before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
III.

DISCUSSION

A. Actual Innocence and Ineffective Assistance of Counsel
Petitioner claims that he is actually innocent and that his defense attorney was
constitutionally ineffective for failing to obtain the testimony of Petitioner’s co-defendant,
Doyle Mims, or to introduce Mims’s affidavits asserting Petitioner’s lack of involvement.
Petitioner argues that while Mims’s grandfather, Roger Collins, Jr., suggested that
Petitioner was the shooter at trial, Collins previously told the police that Mims shot the
victim. Mims did not testify at Petitioner’s trial, but signed an affidavit before trial stating
that Petitioner was not guilty, that someone else “taller and skinny” was the shooter, that
Mims was pressured by police into making the statement implicating Petitioner, and that
his grandfather, Collins, was under the influence of heroin the night of the shooting.

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(ECF No. 10-14, PageID.747.) Mims signed an additional affidavit after Petitioner’s trial
asserting that Petitioner was innocent and not involved in the offense “in any way.” (Id.
at PageID.748.) In his second affidavit, Mims also asserted that he wanted to testify on
Petitioner’s behalf. (Id.) Petitioner, in his reply brief, emphasizes that his conviction is
based on the testimony of a single witness, Collins, who Petitioner claims never
definitively identified him as the shooter. (ECF No. 10-11, PageID.496.) Petitioner
explains that Collins testified to asking the victim whether “Doyle [Mims] and them” were
responsible. (Id.; ECF No. 10-11, PageID.496 (trial transcript).) Petitioner asserts that
the testimony of Collins bolsters his defense that he was merely present at the shooting.
(ECF No. 11, PageID.496; ECF No. 10-11, PageID.496, 513 (trial transcript).)
The Michigan Court of Appeals found Mims’s statements regarding Petitioner’s
innocence to be inconsistent: Mims implicated Petitioner first to the police in his
statement and again when he pleaded guilty to second-degree murder. 2016 WL
3429683, at *2. Additionally, the Court of Appeals determined that defense counsel may
not have been aware of Mims’s exonerating affidavits. Id. In either event, the court
found that counsel was not ineffective for failing to call Mims or introduce his
exonerating affidavits. Id. at *3–*4.
The Supreme Court of the United States “ha[s] not resolved whether a prisoner
may be entitled to habeas relief based on a freestanding claim of actual innocence.”
McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (citing Herrera v. Collins, 506 U.S. 390,
404–405 (1993)). It has only permitted the use of such a claim to counter potential
rejection of a habeas petition for procedural default or status as a second, successive
petition. Id. (citing Herrera, 506 U.S. at 404).

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The Sixth Circuit recently analyzed such a freestanding claim in Stojetz v. Ishee,
892 F.3d 175 (6th Cir. 2018), cert. denied, Stojetz v. Snoop, 139 S. Ct. 1262 (2019).
That is, “rather than asserting a claim of innocence to overcome a procedural bar to the
consideration of a constitutional claim, . . . Stojetz argues that he is entitled to habeas
relief, full-stop, because he is innocent.” Id. at 207–08 (citing Schlup v. Delo, 513 U.S.
298, 326–27 (1995); House v. Bell, 547 U.S. 518, 554 (2006)). The court explained,
however, that “the threshold showing for such an assumed right would necessarily be
extraordinarily high.” Id. at 208 (citing Herrera, 506 U.S. at 417). The Sixth Circuit
declined to specifically resolve the issue of the threshold for asserting a freestanding
innocence claim but did suggest that “the showing required for such a hypothetical claim
would be greater than that required for a gateway-innocence claim.” Id.; House, 547
U.S. at 555. The court reasoned that if a petitioner “cannot meet the standard for a
gateway-innocence claim—viz., establishing that ‘it is more likely than not that no
reasonable juror would have found [him] guilty beyond a reasonable doubt[,]’” Stojetz,
892 F.3d at 208 (quoting Schlup, 513 U.S. at 327), then, logically, he cannot meet
Herrera’s “extraordinarily high” threshold. Id.
Such is the circumstance in this case. Apart from his self-profession of
innocence, the only purportedly exculpatory bits of evidence cited by Petitioner are the
assertions of his codefendant—inconsistently made though they are—that Petitioner is
innocent and “was not involved in any way” in the shooting of Al-Jabur. (ECF No. 10-14,
PageID.747–48.) However, “postconviction statements by codefendants are inherently
suspect because codefendants may try to assume full responsibility for the crime
without any adverse consequences.” Allen v. Yukins, 366 F.3d 396, 405 (6th Cir. 2004).

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Even more to the point, here, like the evidence at issue in Allen, Mims’s affidavits
“exculpate[]” Petitioner, “but do[] not actually inculpate” Mims himself. Id. (emphasis
omitted). Mims never takes responsibility for the shooting in either affidavit. As a result,
the “affidavit [is] inherently suspect because [he] could have signed the affidavit in order
to help his codefendant . . . without endangering his own interests.” Id. at 406; see also
Davis v. Bradshaw, 900 F.3d 315, 333 (6th Cir. 2018), cert. denied, 139 S. Ct. 1619
(2019). Finally, Mims’s assertions cannot establish Petitioner’s innocence because they
are inconsistent with trial testimony. Allen, 366 F.3d at 406. 3
In addition to his innocence claim, Petitioner argues that his defense attorney
was ineffective for failing to place Mims on the witness stand or to have Mims’s
“statement against interest” entered into the trial record. Claims for habeas relief based
on ineffective assistance of counsel are evaluated under a “doubly deferential”
standard. Abby v. Howe, 742 F.3d 221, 226 (6th Cir. 2014) (citing Burt v. Titlow, 571
U.S. 12, 15 (2013)). The first layer is the familiar deficient performance plus prejudice
standard of Strickland v. Washington, 466 U.S. 668, 687–88 (1984). That is, a habeas
petitioner must first show “that counsel’s representation fell below an objective standard
of reasonableness,” and “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Lafler v.

3

In his reply brief, Petitioner argues that the victim’s affirmative response to the
question by Collins of whether he was shot by “Doyle and them” is exonerating. (ECF
No. 11.) This argument is at odds with Collins’s actual testimony. Collins testified that he
saw Petitioner – whose name he did not know at the time – shoot the victim and that he
asked the victim about “Doyle and them” because he did not know Petitioner’s name.
(ECF No. 10-11, PageID.488–89, 496, 513.) Regardless, Petitioner was charged under
an aiding and abetting theory, so Petitioner’s insistence (with or without evidentiary
support) that Mims was the shooter does not demonstrate his innocence.
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Cooper, 566 U.S. 156, 163 (2012) (citations omitted). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Williams v. Lafler, 494 F.
App’x 526, 532 (6th Cir. 2012) (per curiam) (quoting Strickland, 466 U.S. at 694)).
Strickland requires a “strong presumption that counsel’s conduct [fell] within the wide
range of reasonable professional assistance[,]” Abby, 742 F.3d at 226 (citing Strickland,
466 U.S. at 689), and that “under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Bell, 535 U.S. at 698 (citing Strickland, 466 U.S. at
689).
The AEDPA provides a second layer of deference, under which the court may
“examine only whether the state court was reasonable in its determination that
counsel’s performance was adequate.” Abby, 742 F.3d at 226 (citing Burt, 134 S. Ct. at
18). Success on an ineffective assistance of counsel claim is relatively rare because the
Strickland standard is “‘difficult to meet.’” White v. Woodall, 572 U.S. 415, 419 (2014)
(quoting Metrish v. Lancaster, 569 U.S. 351, 357–58 (2013)). The “doubly deferential”
standard under AEDPA is even more difficult to meet because it requires the court to
give “both the state court and the defense attorney the benefit of the doubt.” Burt, 571
U.S. at 15. As a result, “the question is not whether counsel’s actions were reasonable,”
but whether “there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Richter, 562 U.S. at 105.
The court concludes that the rejection of Petitioner’s ineffective assistance of
counsel claim by the Michigan Court of Appeals was reasonable under this standard.
Petitioner argues that his counsel should have produced Mims to testify and that if Mims
invoked his Fifth Amendment privilege, and was thus unavailable, counsel should have

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introduced his statement as one against interest. (ECF No. 1, PageID.31–32.) This
argument lacks merit for several reasons.
First, as discussed above, Mims’s statements and actions vacillated between
implicating Petitioner—to police and at his plea hearing—and exonerating him via the
two affidavits. Accordingly, on the stand, the prosecution could have easily impeached
Mims over those inconsistencies. With that record, it is unlikely that a jury would have
afforded any credibility to his testimony.
Second, Mims’s affidavits do not qualify as “statements against interest.” Under
Michigan law, to admit a statement offered to exculpate a defendant, the following
criteria must be established:
(1) the declarant is unavailable to testify, (2) the statement is against the
declarant’s penal interest, (3) a reasonable person in the declarant’s
position would have believed the statement to be true, and (4) corroborating
circumstances clearly indicate the statement is trustworthy.
Lewis, 2016 WL 3429683, at *4 (citing People v. Barrera, 547 N.W.2d 280, 286
(Mich. 1996)). Mims’s affidavits fail to meet this test in at least two regards. First,
Mims does not implicate himself in any way; he asserts no more than Petitioner’s
supposed innocence and lack of involvement, and that does not qualify as a
statement against his interest. And second, Petitioner has not argued anything,
nor is support found in the record, to corroborate Mims’s assertions. To the
contrary, as explained above, an eyewitness to the shooting, Collins, specifically
identified Petitioner as the shooter.
Nor can Petitioner meet Strickland’s second prong; he cannot demonstrate any
prejudice from the omission of Mims’s testimony. In the presence of competing
eyewitness testimony, Mims’s inherently shaky testimony was untrustworthy and
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unlikely to have swayed the jury. See Rogers v. Doom, 477 F. App’x 343, 345 (6th Cir.
2012) (“Rogers did not show . . . how any witness’s testimony would have changed the
outcome of the trial.”).
This court must determine whether “there is any reasonable argument that
counsel satisfied Strickland’s deferential standard,” Richter, 562 U.S. at 105. As
explained above, defense counsel’s decision not to call Mims or seek the admission of
his unreliable and self-serving affidavits satisfies that standard. Accordingly, Petitioner’s
first claim does not entitle him to habeas relief.
B. Loss of Peremptory Challenges During Jury Selection
Petitioner next argues that he was denied a fair trial when the trial court declared
a jury while the defense still held ten peremptory challenges. The Michigan Court of
Appeals agreed that the trial court erred, describing the circumstances as follows:
In this case, 14 prospective jurors were selected from the venire. Following
voir dire, the trial court excused one juror for cause, the prosecutor
exercised one peremptory challenge, the defense exercised two
peremptory challenges, and four new prospective jurors were called. After
further voir dire, both parties passed for cause, the prosecutor passed on
peremptory challenges, and the defense exercised one peremptory
challenge. Rather than select a replacement and continue with voir dire, the
trial court stated that the case would proceed with the 13 remaining jurors.
Lewis, 2016 WL 3429683, at *5.
Nevertheless, the Court of Appeals correctly observed that Petitioner’s claim did
not raise a constitutional challenge, but one based on “a statutory or court-rule-based
right to exclude a certain number of jurors.” Id. Because Petitioner “did not actually
express any dissatisfaction” with the seated jury, nor did he provide any basis to find
that it was other than fair and impartial, the Court of Appeals held that Petitioner was not
prejudiced by this error and held that the error was harmless. Id. This court agrees.
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The United States Supreme Court has long held that such an error does not
violate a criminal defendant’s constitutional rights. “Because peremptory challenges are
within the States’ province to grant or withhold, the mistaken denial of a state-provided
peremptory challenge does not, without more, violate the Federal Constitution.” Rivera
v. Illinois, 556 U.S. 148, 158 (2009); accord, Georgia v. McCollum, 505 U.S. 42, 57
(1992) (“This Court repeatedly has stated that the right to a peremptory challenge may
be withheld altogether without impairing the constitutional guarantee of an impartial jury
and a fair trial”); Stilson v. United States, 250 U.S. 583, 586 (1919) (“There is nothing in
the Constitution of the United States which requires the Congress to grant peremptory
challenges.”). Thus, Petitioner is not entitled to habeas relief on his claim that he was
denied his right to exercise all of his peremptory challenges. He has also failed to
demonstrate either deficient attorney performance or prejudice related to this claim.
Petitioner’s motion to amend relates to this second claim. In the motion,
Petitioner states that he “recently discovered” that his trial judge was reprimanded in
2014 for misconduct in another, unrelated case. (ECF No. 12, PageID.979.) Petitioner
contends that the judge’s conduct that earlier case demonstrates his judge’s
“propensity” to deny Petitioner due process. (Id.) Putting aside issue of procedural
default, Petitioner fails to explain how the judge’s conduct in a separate and unrelated
case violated his due process rights in the instant matter. Generalized complaints of
judicial misconduct—especially complaints stemming from other cases—will seldom, if
ever, rise to the level of constitutional deprivation cognizable on collateral review. See,
e.g., Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“Of course, most questions
concerning a judge’s qualifications to hear a case are not constitutional ones.”); Duckett

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v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995) (internal citations and quotations omitted)
(“The standard for reversing a verdict because of general judicial misconduct during trial
is rather stringent . . . there must be an extremely high level of interference by the trial
judge which creates a pervasive climate of partiality and unfairness.”). To the extent
Petitioner’s motion to amend presents any additional argument related to his second
claim for habeas relief, it is without merit.
C. Admission of Photographs of the Deceased Victim
Finally, Petitioner argues that he was denied a fair trial due to the introduction of
photographs of the victim taken in the morgue. The state court of appeals held that the
trial court did not abuse its discretion in admitting the photographs because they “were
relevant and were not so gruesome as to divert the jury’s attention from the actual
issues in the case[.]” Lewis, 2016 WL 3429683, at *7.
Petitioner’s claim that the admission of the photographs denied him due process
lacks merit. In general, “[e]rrors by a state court in the admission of evidence are not
cognizable in habeas proceedings unless they so perniciously affect the prosecution of
a criminal case as to deny the defendant the fundamental right to a fair trial.” Biros v.
Bagley, 422 F.3d 379, 391 (6th Cir. 2005) (citing Roe v. Baker, 316 F.3d 557, 567 (6th
Cir. 2002)). Whether evidence was properly admitted or improperly excluded under
state law “is no part of the federal court’s habeas review of a state conviction [for] it is
not the province of a federal habeas court to re-examine state-court determinations on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68. (1991).
No clearly established Supreme Court law prohibits the introduction of such
photographs at a murder trial. See, e.g., Franklin v. Bradshaw, 695 F.3d 439, 456–57

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(6th Cir. 2012); Biros, 422 F.3d at 391; Frazier v. Huffman, 343 F.3d 780, 789 (6th Cir.
2003). Where there is a legitimate, evidentiary purpose for the admission of the
photographs, the admission of gory or gruesome photographs of a murder victim does
not entitle a petitioner to habeas relief. Biros, 422 F.3d at 391.
Here, the prosecutor offered the photographs of the victim’s gunshot wounds to
the head for the legitimate evidentiary purpose of demonstrating Petitioner’s intent to
kill. (ECF No. 10-10, PageID.212.) The court finds to be reasonable the determination
by the Michigan Court of Appeals that the trial court did not abuse its discretion in
admitting the photographs. Petitioner’s third claim for relief is denied.
IV.

CERTIFICATE OF APPEALABILITY

Before Petitioner may appeal the court’s decision, a certificate of appealability
must issue. 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). A petitioner must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved differently or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal citation and quotation marks omitted). The court will decline to issue a
certificate of appealability because it determines that reasonable jurists would not
debate the conclusion that the petition fails to state a claim upon which habeas corpus
relief should be granted.
V.

CONCLUSION

Petitioner is not entitled to habeas corpus relief on any of the claims raised in his

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petition or his motion to amend. Accordingly,
IT IS ORDERED that the Petition for Writ of Habeas Corpus (ECF No. 1) is
DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
s/Robert H. Cleland
/z
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: May 11, 2020
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, May 11, 2020, by electronic and/or ordinary mail.
s/Lisa Wagner
/x
Case Manager and Deputy Clerk
[phone]
S:\Cleland\Cleland\JUDGE'S DESK\C1 ORDERS\17-14174.LEWIS.2254.PS.HEK.RHC.docx

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