Nichols v. Nagy

Filing 28

OPINION and ORDER (1) Denying the Petition for Writ of Habeas Corpus; (2) Declining to Issue a Certificate of Appealability; and (3) Denying Leave to Appeal In Forma Pauperis. Signed by District Judge Paul D. Borman. (KSan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ELMORE NICHOLS, Jr.,
Petitioner,
v.

CIVIL NO. 2:18-CV-10885
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

JOHN DAVIDS,
Respondent,
____________________________________/
OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS; (2) DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY; AND (3) DENYING LEAVE TO APPEAL IN FORMA
PAUPERIS
Elmore Nichols, Jr., (“Petitioner”), confined at the Thumb Correctional
Facility in Lapeer, Michigan, filed a pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for first-degree
home invasion, Mich. Comp. Laws § 750.110a(2); and being a fourth felony habitual
offender, Mich. Comp. Laws § 769.12. For the following reasons, the petition for
writ of habeas corpus is DENIED WITH PREJUDICE.

I. BACKGROUND
Petitioner was convicted following a jury trial in the Wayne County Circuit
Court. This Court recites verbatim the relevant facts relied upon by the Michigan
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Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant’s conviction arose from a break-in at the complainant’s
Lincoln Park home. The intruder assaulted the complainant, but ran out
of the home when the complainant screamed. Officers responded to the
area of complainant’s house and saw a man matching the description of
the intruder running down the street. The officers pursued the man and
arrested him. The complainant later identified defendant as the intruder.
The prosecutor charged defendant with first-degree home invasion with
intent to commit third-degree criminal sexual conduct therein, MCL
750.110a, and with assault with intent to commit sexual penetration,
MCL 750.520g.
People v. Nichols, No. 316432, 2014 WL 4854440, at * 1 (Mich. Ct. App. Sept. 30,
2014). Petitioner’s conviction was affirmed on appeal. Id., lv. den. 498 Mich. 852,
865 N.W.2d 11 (2015).
Petitioner filed a post-conviction Motion for Relief from Judgment with the
trial court, raising what make up the second through ninth claims in his original
habeas petition. The trial judge denied the motion. People v. Nichols, No. 12007351-01 (Wayne Cty. Cir. Ct., Mar. 29, 2016). The Michigan Court of Appeals
denied Petitioner leave to appeal. People v. Nichols, No. 333395 (Mich.Ct.App.
Nov. 16, 2016). Petitioner then filed an application for leave to appeal to the
Michigan Supreme Court, but that Court rejected his application under Mich. Ct. R.
7.305(C) because it was filed more than 56 days after the Michigan Court of Appeals
issued its decision. See Letter from the Clerk of the Court of the Michigan Supreme
Court, dated August 22, 2017. (ECF No. 11-19, PageID.1360).
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Petitioner filed a motion to reissue judgment with the Michigan Court of
Appeals, on the grounds that he did not timely receive a copy of their decision
denying his post-conviction appeal on November 16, 2016. Petitioner claimed he
was not informed of the Michigan Court of Appeals’ decision until May 22, 2017.
Petitioner asked that the order be reissued so that he could file a timely postconviction appeal with the Michigan Supreme Court. (ECF No. 3-1, PageID.220–
31). The motion to reissue judgment was denied on June 29, 2017. See Letter from
the Chief Clerk of the Michigan Court of Appeals, dated June 29, 2017. (ECF No.
3-1, PageID.232). The Michigan Court of Appeals denied Petitioner’s Motion for
Reconsideration. See Letter from the Chief Clerk of the Michigan Court of Appeals,
dated August 9, 2017. (ECF No. 3-1, PageID.243).
Petitioner then filed a motion for superintending control with the Michigan
Supreme Court, asking the Michigan Supreme Court to order the Michigan Court of
Appeals to reissue their judgment so that Petitioner could file a timely appeal. (ECF
No. 3-1, PageID.247-73).
While the complaint for superintending control was pending, Petitioner filed
his petition for writ of habeas corpus, raising nine claims for relief. (ECF No. 1).
Respondent filed an answer on October 2, 2018. (ECF No. 10).
On October 26, 2018, the Michigan Supreme Court granted Petitioner’s
complaint for superintending control and ordered the Michigan Court of Appeals “to
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docket the plaintiff’s June 26, 2017 Motion to Reissue Judgment in Docket No.
333395 as a motion, and to issue an order deciding the motion.” Nichols v. Court of
Appeals, 503 Mich. 883, 918 N.W.2d 535 (2018).
This Court’s predecessor, Judge Robert H. Cleland, granted Petitioner’s
motion to hold the case in abeyance so that Petitioner could properly exhaust his
state court claims. Nichols v. Nagy, No. 18-10885, 2019 WL 316534 (E.D. Mich.
Jan. 24, 2019).
Petitioner filed a motion for the Michigan Court of Appeals to reissue its
November 16, 2016, order denying the application for leave to appeal from the denial
of his Motion for Relief from Judgment, so that Petitioner could file a timely
application for leave to appeal in the Michigan Supreme Court. The Michigan Court
of Appeals granted the motion and reissued the order. People v. Nichols, No. 333395
(Mich.Ct.App. Oct. 31, 2018) (ECF No. 26-3, PageID.1850).
Petitioner filed an application for leave to appeal with the Michigan Supreme
Court. The Michigan Supreme Court vacated the trial court’s denial of the Motion
for Relief from Judgment, finding that, when ruling on the motion, the trial judge
inadvertently reviewed Petitioner’s direct appeal of his other Wayne County homeinvasion conviction, rather than the conviction at issue in this case. The case was
remanded back to the trial court for reconsideration of the Motion for Relief from
Judgment. People v. Nichols, 503 Mich. 953, 923 N.W.2d 248 (2019).
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On remand, the trial judge again denied the Motion for Relief from Judgment.
The trial judge denied Petitioner’s first three claims under res judicata, because the
judge erroneously believed these were claims that Petitioner had raised on his direct
appeal. The judge then denied claims four through seven on the merits and under
Michigan Court Rule 6.508(D)(3). People v. Nichols, No. 12-007351-01-FC (Wayne
Cty.Cir.Ct., Sept. 6, 2019) (ECF No. 26-1).
The Michigan Court of Appeals peremptorily vacated the trial judge’s
adjudication of the first three claims in the Motion for Relief from Judgment. The
Court of Appeals determined that the trial judge again erred in denying those claims
under res judicata, remanding for reconsideration of those claims. In all other
respects, however, the Court of Appeals denied the application for leave to appeal.
People v. Nichols, No. 351072 (Mich. Ct. App. Jan. 8, 2020) (ECF No. 26-5,
PageID.2023). The Michigan Supreme Court denied Petitioner’s application for
leave to appeal because Petitioner failed to meet the burden of establishing
entitlement to relief under MCR 6.508(D). People v. Nichols, 505 Mich. 1083, 943
N.W.2d 131 (2020).
On the subsequent remand, the trial judge issued a form order denying the
motion for relief from judgment. People v. Nichols, No. 12-007351-01-FC (Wayne
Cty.Cir.Ct., June 3, 2021)(ECF No. 26-2). The Michigan appellate courts denied

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Petitioner leave to appeal. People v. Nichols, No. 358005 (Mich.Ct.App. Sept. 29,
2021); lv. den. 509 Mich. 909, 974 N.W.2d 202 (2022).
Judge Cleland subsequently reopened the case and permitted Petitioner an
extension of time to file an amended petition. (ECF No. 21). Petitioner filed an
amended habeas petition. (ECF No. 22). Respondent filed an answer that supplanted
the original answer filed and addressed the issues raised in both the original and
amended habeas petitions. (ECF No. 25).
Petitioner, in his original and amended petitions, seeks relief on the following
grounds. In the interests of judicial clarity, the Court will paraphrase the claims
rather than recite them verbatim: (1) the trial judge erred in giving the jurors a verbal
instruction regarding the criminal sexual conduct element of first-degree home
invasion that differed from the written instruction, (2) the victim’s identification of
the Petitioner at the live line-up was infected by police influence and was based upon
a newspaper photograph of the Petitioner rather than the victim’s own perceptions;
trial counsel was ineffective for failing to object to the in-court identification, (3) the
evidence was insufficient to convict; trial counsel was ineffective for not challenging
the sufficiency of evidence at trial; (4) the trial judge considered conduct that
Petitioner had been acquitted of in imposing sentence; trial counsel was ineffective
for failing to object; (5) trial counsel was ineffective for failing to seek preclusion of
the introduction of the state’s DNA evidence where the DNA evidence was
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misleading, consisted of DNA mixtures from multiple sources, where there was no
determination as to a major contributor to the DNA mixture, or where the results of
the DNA testing was inconclusive, (6) trial counsel was ineffective for failing to
obtain an independent DNA expert, (7) trial counsel was ineffective for failing to
call exculpatory witnesses, (8) appellate counsel was ineffective, and (9) the trial
judge erred in denying some of Petitioner’s post-conviction claims on the erroneous
belief that they were barred by res judicata.
II. STANDARD OF REVIEW
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 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
(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
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Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S.
362, 405–06 (2000). An “unreasonable application” 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
410–11.

III. DISCUSSION
A. Claim # 1. The jury instruction claim.
Petitioner first alleges that his due process rights were violated because the
judge’s verbal instruction concerning the criminal sexual conduct element for firstdegree home invasion was different from the written instruction.
The burden of demonstrating that an erroneous instruction was so prejudicial
that it will support a collateral attack upon the constitutional validity of a state court
conviction is even greater than the showing required in a direct appeal. The question
in such a collateral proceeding is whether the ailing instruction so infected the entire
trial that the resulting conviction violates due process, not merely whether the
instruction is undesirable, erroneous, or even “universally condemned,” and an
omission or incomplete instruction is less likely to be prejudicial than a misstatement
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of the law. Henderson v. Kibbee, 431 U.S. 145, 154-155 (1977). The challenged
instruction must not be judged in isolation but must be considered in the context of
the entire jury charge. Jones v. United States, 527 U.S. 373, 391 (1999). Further,
any ambiguity, inconsistency or deficiency in a jury instruction does not by itself
necessarily constitute a due process violation. Waddington v. Sarausad, 555 U.S.
179, 190 (2009). It is not enough that there might be some “slight possibility” that
the jury misapplied the instruction. Id. at 191.
Moreover, in determining whether to grant habeas relief to a petitioner based
upon an erroneous jury instruction, the reviewing court must determine whether that
instruction had a substantial and injurious effect or influence on the jury’s verdict.
See Hedgpeth v. Pulido, 555 U.S. 57, 61–62 (2008); California v. Ray, 519 U.S. 2,
5 (1996).
Mich. Comp. Laws § 750.110a(2) states that:
A person who breaks and enters a dwelling with intent to commit a
felony or a larceny in the dwelling or a person who enters a dwelling
without permission with intent to commit a felony or a larceny in the
dwelling is guilty of home invasion in the first degree if at any time
while the person is entering, present in, or exiting the dwelling either
of the following circumstances exists:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.
Michigan’s first-degree home invasion statute includes all the elements of the
burglary of a dwelling, but also requires that the defendant be armed with a
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dangerous weapon and/or that the dwelling be occupied. See Johnson v. Warren, 344
F. Supp. 2d 1081, 1093 (E.D. Mich. 2004) (citing United States v. Garcia-Serrano,
107 F. App’x. 495, 496–97 (6th Cir. 2004)).
The factual basis for Petitioner’s claim was laid out by the Michigan Court of
Appeals:
During the jury instruction conference at the close of trial, the trial court
informed counsel that the instruction on the home invasion charge
would reference intent to commit criminal sexual conduct (CSC), but
would not reference a degree of CSC. Both counsel agreed to this
approach. The trial court prepared written instructions for the jurors,
including the home invasion instruction. Regarding the CSC element of
the home invasion charge, the written instruction stated: “Third, that
when the defendant broke and entered the dwelling, he intended to
commit criminal sexual conduct.”
Before giving the jury the final instructions, the trial court told the
jurors to read along in their written instructions while the court verbally
instructed them. When the court came to the home invasion charge, the
court misstated the instruction, as follows: “third, the People have to
establish that when the defendant broke and entered the building, he
intended to commit criminal sexual conduct involving penetration”
(emphasis added). At the time, no one questioned the discrepancy
between the verbal instruction and the written instruction.
However, during deliberations, the jury sent a question to the court: “Is
it possible to find guilty on count one (home invasion) but not guilty on
count two (assault with intent to commit criminal sexual conduct
involving penetration)? The third element on count one states ‘intended
to commit criminal sexual conduct’ but does not say ‘involving
penetration.’” The trial court discussed the question with counsel, and
defense counsel stated that the jury should be advised that third degree
criminal sexual conduct requires proof of penetration. After further
discussion, the trial court called in the jury, reread their question aloud,
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and told them, “that’s exactly what your instruction that you took in
says. Also, I think if you look at your verdict forms, they say you may
mark one box on each of those on each of the sheets that you got. On
each sheet you can mark a box.”
The jury deliberated for approximately forty more minutes, and then
sent another question to the court: “What is the definition of criminal
sexual conduct?” Approximately thirty-five minutes later, before the
court had convened to answer the jury’s question, the jury informed the
court that it had reached a verdict. The jury found defendant guilty on
the charge of first-degree home invasion, and not guilty on the charge
of assault with attempt to commit sexual penetration.
People v. Nichols, 2014 WL 4854440, at *1. The Michigan Court of Appeals
rejected Petitioner’s claim:
The trial court’s written instruction correctly described the statutory
element of intent to commit a felony, specifically, CSC. When the jury
asked for clarification regarding the CSC element of the home invasion
charge, the trial court’s answer indicated that the jury should refer to
their written instructions. The written instruction was sufficient to
inform the jury that the prosecutor had the burden of proving that
defendant intended to commit a criminal sexual assault when he broke
into the complainant’s home.
Defendant argues that reversal is required, and asserts that the trial court
several times referenced sexual penetration as an element of the home
invasion charge. The record contradicts defendant’s argument. The
court correctly described the element in the preliminary instruction
given to the jurors, as follows: “Third, that when the defendant broke
and entered the dwelling, he intended to commit criminal sexual
conduct.” Before and during voir dire, the trial court twice referenced
“criminal sexual conduct third degree” regarding the home invasion
charge, but did not reference penetration. Viewed as a whole, the jury
instructions adequately informed the jurors of the prosecutor’s burden
of proof, and the jury’s request for clarification resolved any confusion
that might have arisen from the discrepancy between the verbal
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instructions and the written instructions. Accordingly, the discrepancy
between the verbal instruction and the written instruction does not
warrant reversal of defendant’s conviction.
People v. Nichols, 2014 WL 4854440 at * 2.
“Jury instructions in a criminal case must be evaluated in the context of the
overall charge.” Wood v. Marshall, 790 F.2d 548, 551 (6th Cir. 1986). Although the
written instruction contradicted the oral instruction concerning the CSC element for
first-degree home invasion, when viewing the instructions as a whole, Petitioner’s
constitutional rights were not violated. Id. The correct instruction concerning the
elements for first-degree home invasion was written, rather than oral, and correctly
explained the requisite elements for the offense. Id. In fact, several times during the
trial, the judge informed the jury that the prosecutor was required to prove that
Petitioner intended to commit criminal sexual conduct when he broke into the
victim’s house, not that he intended to commit sexual penetration. The written
instructions correctly stated this element of first-degree home invasion. In response
to the jury’s question, the judge referred them back to the written instruction. In light
of the foregoing, Petitioner is not entitled to habeas relief.
In any event, any error by the judge in orally instructing the jurors that they
had to find that Petitioner intended to commit sexual penetration when he broke into
the victim’s home, rather than simply engage in some form of criminal sexual
conduct, would not entitle Petitioner to habeas relief because the error was
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advantageous to Petitioner in that it increased the burden of proof for the prosecutor.
“When the putative error in a criminal jury instruction is such that it tends to narrow
the indictment or to elevate the government’s burden of proof, the defendant cannot
be heard to complain about prejudice.” United States v. Deppe, 509 F.3d 54, 59 (1st
Cir. 2007); See also Roland v. Mintzes, 554 F. Supp. 881, 889 (E.D. Mich. 1983)
(Any error by state trial judge in instructing jurors that they had to find that the
petitioner acted with premeditation and deliberation to find him guilty of first-degree
felony-murder was not prejudicial to petitioner since the instructions increased the
prosecution’s burden of proof by suggesting that it had to prove that the murder was
both premeditated and committed during a felony). Petitioner is not entitled to relief
on his first claim.
B. Claim # 2. The suggestive identification/ineffective assistance of
counsel claim.
Petitioner next claims that the victim’s identification of him was tainted by a
suggestive identification procedure. In the alternative, Petitioner argues that trial
counsel was ineffective for failing to object.
Respondent argues that Petitioner’s suggestive identification claim is
unexhausted because Petitioner only raised, in the state courts, a claim that trial
counsel was ineffective for failing to object to the suggestive identification
procedure, but did not raise an independent claim that the victim’s identification of
Petitioner was the result of a suggestive identification procedure. Respondent
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further argues that the claim is now procedurally defaulted because Petitioner no
longer has any state court remedy to exhaust his claim. Respondent makes this same
argument for Petitioner’s third and fourth claims.
Generally, a state prisoner seeking federal habeas relief must first exhaust his
available state court remedies before raising a claim in federal court. 28 U.S.C. §
2254(b) and (c). See Picard v. Connor, 404 U. S. 270, 275-78 (1971). A claim may
be considered “fairly presented” only if the petitioner asserted both the factual and
legal basis for his claim in the state courts. McMeans v. Brigano, 228 F. 3d 674, 681
(6th Cir. 2000). The doctrine of exhaustion mandates that the same claim under the
same theory be presented to the state courts before it can be raised in a federal habeas
petition. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). “Even the same claim,
if raised on different grounds, is not exhausted for the purpose of federal habeas
review.” Rayner v. Mills, 685 F.3d 631, 643 (6th Cir. 2012).
Respondent is correct that “bringing an ineffective assistance claim in state
court based on counsel’s failure to raise an underlying claim does not preserve the
underlying claim for federal habeas review because the two claims are analytically
distinct.” Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008). Petitioner no longer
has any available state court remedies with which to exhaust his underlying
substantive claims, because under M.C.R. 6.502(G)(1), a criminal defendant in
Michigan is only permitted to file one post-conviction Motion for Relief from
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Judgment. See Gadomski v. Renico, 258 F. App’x. 781, 783 (6th Cir. 2007).
Petitioner has no remaining state court remedies with which to properly exhaust the
underlying substantive claims found in claims two through four. Thus, the claims
should be considered procedurally defaulted. Hannah v. Conley, 49 F.3d 1193,
1195–96 (6th Cir. 1995).
Procedural default, however, is not a jurisdictional bar to review of a habeas
petition the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). “[F]ederal courts are
not required to 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)). “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. Petitioner’s underlying substantive claims
are related to his ineffective assistance of counsel claims. This Court will be required
to analyze the merits of the underlying substantive claims to determine whether trial
counsel was ineffective in failing to object. Accordingly, the Court will discuss the
merits of the underlying substantive claims as well as the ineffective assistance of
counsel claims.

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Petitioner, in his second claim, alleges that the victim’s out-of-court and incourt identifications were tainted by the fact that she saw a picture of Petitioner in a
newspaper that was taken after his arrest and which identified him as the suspect.
Due process protects the accused against the introduction of evidence which
results from an unreliable identification obtained through unnecessarily suggestive
procedures. Moore v. Illinois, 434 U.S. 220, 227 (1977). To determine whether an
identification procedure violates due process, courts look first to whether the
procedure was impermissibly suggestive; if so, courts then determine whether, under
the totality of circumstances, the suggestiveness has led to a substantial likelihood
of an irreparable misidentification. Kado v. Adams, 971 F. Supp. 1143, 1147–48
(E.D. Mich. 1997) (citing to Neil v. Biggers, 409 U.S. 188 (1972)). Courts consider
five factors in determining the reliability of identification evidence:
1. the witness’s opportunity to view the criminal at the time of the
crime;
2. the witness’s degree of attention at the time of the crime;
3. the accuracy of the witness’s prior description of the defendant;
4. the witness’s level of certainty when identifying the suspect at the
confrontation; and,
5. the length of time that has elapsed between the time and the
confrontation.
Neil v. Biggers, 409 U.S. at 199–200.
If a defendant fails to show that the identification procedures are
impermissibly suggestive, or if the totality of the circumstances indicate that the
identification is otherwise reliable, no due process violation has occurred; so long as
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there is not a substantial misidentification, it is for the jury or factfinder to determine
the ultimate weight to be given to the identification. See United States v. Hill, 967
F.2d 226, 230 (6th Cir. 1992).
Petitioner failed to show that the victim’s in-court identification was the
product of a suggestive pre-trial identification. Thus, there was no basis for its
suppression. Indeed, “the Supreme Court has never held that an in-court
identification requires an independent basis for admission in the absence of an
antecedent improper pre-trial identification.” Cameron v. Birkett, 348 F. Supp. 2d
825, 843 (E.D. Mich. 2004). Moreover, “the Due Process Clause does not require a
preliminary judicial inquiry into the reliability of an eyewitness identification when
the identification was not procured under unnecessarily suggestive circumstances
arranged by law enforcement.” Perry v. New Hampshire, 565 U.S. 228, 248 (2012).
According to the victim, her friend Joseph Baffi was checking the paper for
estate sales when the victim saw Petitioner’s photograph. The victim saw the picture
first; her friend did not point it out to her. The victim immediately recognized
Petitioner as her assailant and pointed that out to Mr. Baffi. The victim testified that
she was certain that Petitioner was her assailant even before she read the
accompanying headline or article. (ECF No. 11-8, PageID.744–46).
As mentioned above, “only police-created impermissibly suggestive
circumstances implicate due process concerns and thus require a reliability
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assessment by the trial court.” Schroeder v. Premo, 714 F. App’x. 666, 669 (9th Cir.
2017). The police were not involved with having the victim view the newspaper
story with Petitioner’s photograph and information that he had been arrested, thus,
the victim was not subjected to an improper suggestive pre-trial identification. Id.
The victim’s inadvertent viewing of Petitioner’s photograph in the newspaper was
not the result of a suggestive pre-trial identification procedure. See United States v.
Greenstein, 322 F. App’x. 259, 263 (3rd Cir. 2009). The victim “recognized
[petitioner] by coincidence, not as part of a formal identification procedure-nor one
that was unnecessarily suggestive.” United States v. Greenstein, 322 F. App’x. at
263–64.
Moreover, Petitioner failed to show that the subsequent live-lineup procedure
was improper. The victim testified that no one told her who to identify, which
position Petitioner was standing in, what he was wearing, or other details that would
identify Petitioner as the suspect. (ECF No. 11-8, PageID.747-48). In fact, an
independent defense attorney was present for the lineup and the parties stipulated at
trial that the attorney’s testimony would have been that the people in the lineup were
sufficiently similar with respect to their physical attributes, since no photograph was
taken of the venire. (ECF No. 11-9, PageID.876–77). The fact that the lineup
attorney would have testified at trial that he believed that the lineup was fair, further
supports a finding that the lineup was not unduly suggestive. See Gullick v. Perrin,
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669 F.2d 1, 5 (1st Cir. 1981); see also Hampton v. Ludwick, No. 2:09-12842, 2010
WL 4683909, at *6 (E.D. Mich. Nov. 10, 2010).
Finally, assuming the pre-trial identification was suggestive, the victim had
an independent basis for her in-court identification of Petitioner as her assailant. The
victim testified that the assault occurred in close proximity (approximately 12 feet
when Petitioner first entered the house), that the assault lasted approximately two
minutes, and that she got at least glimpses of Petitioner’s face. (ECF No. 11-8,
PageID.732, 740, 752). More importantly, the victim gave a description of the
assailant to police and was certain of her identification in court. (ECF No. 11-8
PageID.213; ECF No. 11-9, PageID.785).
The victim testified that she was in close proximity to Petitioner during the
assault and was able to get a glimpse of his face. The victim never identified anyone
else as being her assailant. These factors all support a finding that an independent
basis existed for the victim’s in-court identification of Petitioner. See Robertson v.
Abramajtys, 144 F. Supp. 2d 829, 847 (E.D. Mich. 2001).
In addition, with respect to the victim’s attentiveness to the situation, courts
tend to “place greater trust in witness identifications made during the commission of
a crime because the witness has a reason to pay attention to the perpetrator.” Howard
v. Bouchard, 405 F.3d 459, 473 (6th Cir. 2005); See also United States v. Meyer,
359 F.3d 820, 826 (6th Cir. 2004) (finding heightened degree of attention where the
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witness spoke with the robber and studied his features while looking for an
opportunity to escape); United States v. Crozier, 259 F.3d 503, 511 (6th Cir. 2001)
(finding heightened degree of attention where robber confronted witnesses with a
gun). Because the victim was being sexually assaulted in her own home, it was not
unreasonable for the state courts to conclude that she paid a high degree of attention
to her assailant.
Moreover, even if there were slight discrepancies between the victim’s initial
description of her assailant and Petitioner’s appearance, as Petitioner alleges, this is
insufficient to render the in-court identification suspect, because the victim was able
to get a good look at Petitioner and testified that she was certain in her identification
of Petitioner as her assailant. See United States v. Hill, 967 F.2d at 232-33 (in-court
identification of alleged bank robber held admissible despite five years between
incident and trial and slight inaccuracies in witness’s description of robber, where
witness’s view of robber was brightly lit and unobstructed and she showed high
degree of certainty in her in-court identification).
Finally, the reliability of the victim’s in-court identification is supported by
the fact that she “testified without equivocation” that Petitioner was her assailant.
Howard, 405 F.3d at 473.
In addition to considering the reliability of the actual identification, courts also
look to other evidence to determine whether, if the identification was tainted,
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permitting the identification was a constitutional error because it created a very
substantial likelihood of irreparable misidentification, or whether the error was
harmless. Robertson, 144 F. Supp. 2d at 848.
Police spotted and arrested Petitioner in the vicinity of the victim’s home
minutes after the assault. (ECF No. 11-8, PageID.680-85; 702-07). Petitioner
matched the description of the suspect and his clothing and items in his car were
consistent with those reported by the victim. (ECF No. 11-8, PageID.682, 709–13,
716). Moreover, the DNA evidence could not exclude Petitioner and the victim from
the gloves in Petitioner’s car—the same gloves he wore when he assaulted the
victim. (ECF No. 11-9, PageID.860–66).
Given the above evidence against Petitioner, any error in admission of the
victim’s allegedly unreliable identification testimony was harmless error at best. See
Solomon v. Curtis, 21 F. App’x. 360, 363 (6th Cir. 2001). Petitioner is not entitled
to relief on his suggestive identification claim.
The Court also rejects Petitioner’s related ineffective assistance of counsel
claim.
A defendant must satisfy a two-prong test to establish the denial of the
effective assistance of counsel. First, the defendant must show that, considering all
of the circumstances, counsel’s performance was so deficient that the attorney was
not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland v.
21

Washington, 466 U.S. 668, 687 (1984). The defendant must overcome a strong
presumption that counsel’s behavior lies within the wide range of reasonable
professional assistance. Id. In other words, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be sound
trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that
such performance prejudiced his defense. Id.

To demonstrate prejudice, the

defendant 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. The Supreme Court’s holding in Strickland places the burden on the defendant
who raises a claim of ineffective assistance of counsel, and not the state, to show a
reasonable probability that the result of the proceeding would have been different,
but for counsel’s allegedly deficient performance. See Wong v. Belmontes, 558 U.S.
15, 27 (2009).1
Although counsel did not move to suppress the victim’s identifications of
Petitioner, she did cross-examine the victim extensively about some of the problems
with her identification of Petitioner, such as the limited time that the assault took
place, the fact that the victim was in fear from being assaulted, and discrepancies in
the victim’s description of the suspect that differed from Petitioner’s appearance.

To avoid repetition, the Court will not repeat the Strickland standard when
addressing each of Petitioner’s individual ineffective assistance of counsel claims.
22

1

(ECF No. 11-8, PageID.754–59, ECF No. 11-9, PageID.769–78, 785–87). Even if
counsel had not objected to the in-court identification of Petitioner, the decision to
attack the credibility of the victim’s identification of Petitioner through crossexamination was a reasonable trial strategy that defeats Petitioner’s ineffective
assistance of trial counsel claim. See Scott v. Elo, 100 F. App’x. 332, 333–34 (6th
Cir. 2004).
More importantly, Petitioner failed to show that the identification procedure
employed with the victim was unduly suggestive and has thus failed to show that his
lawyer was ineffective for failing to move for suppression of the victim’s pre-trial
identification. See Perkins v. McKee, 411 F. App’x. 822, 833 (6th Cir. 2011).
Furthermore, since the victim’s identification of Petitioner was independently
reliable for the reasons mentioned above, Petitioner was not prejudiced, as required
to establish ineffective assistance, by trial counsel’s failure to make a pretrial motion
to suppress the victim’s in-court and out-of-court identifications on the basis that the
pre-trial identification procedures were suggestive. See Howard v. Bouchard, 405
F.3d at 481–85. Finally, because of the additional evidence against the Petitioner in
this case, counsel was not ineffective in failing to make a pre-trial motion to suppress
the victim’s identification of the Petitioner. See Riley v. Jones, 476 F. Supp. 2d 696,
710 (E.D. Mich. 2007). Petitioner is not entitled to relief on his second claim.
C. Claim # 3. The sufficiency of evidence/ineffective assistance of counsel
claim.
23

Petitioner next contends that there was insufficient evidence to establish his
identity as the perpetrator. Alternatively, Petitioner argues that trial counsel was
ineffective for failing to challenge the sufficiency of the evidence.
It is beyond question that “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). But the crucial question on review of the sufficiency of the evidence to
support a criminal conviction is, “whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 318 (1979). A court need not “ask itself whether it believes that the evidence
at the trial established guilt beyond a reasonable doubt.” Instead, the relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Id. at 318-19 (internal citation and footnote
omitted) (emphasis in the original).
When considering a challenge to the sufficiency of the evidence to convict,
the reviewing court must give circumstantial evidence the same weight as direct
evidence. See United States v. Farley, 2 F.3d 645, 650 (6th Cir. 1993).
“Circumstantial evidence alone is sufficient to sustain a conviction and such
evidence need not remove every reasonable hypothesis except that of guilt.” United
24

States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006) (internal quotation omitted); see
also Saxton v. Sheets, 547 F.3d 597, 606 (6th Cir. 2008) (“A conviction may be
sustained based on nothing more than circumstantial evidence.”). Moreover,
“[c]ircumstantial evidence is not only sufficient, but may also be more certain,
satisfying and persuasive than direct evidence.” Desert Palace, Inc. v. Costa, 539
U.S. 90, 100 (2003) (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508
n.17 (1957)); see also Holland v. United States, 348 U.S. 121, 140 (1954)
(circumstantial evidence is “intrinsically no different from testimonial evidence,”
and “[i]f the jury is convinced beyond a reasonable doubt, we can require no more”).
A federal habeas court cannot overturn a state court decision that rejects a
sufficiency of the evidence claim simply because the federal court disagrees with the
state court’s resolution of that claim. Instead, a federal court may grant habeas relief
only if the state court decision was an objectively unreasonable application of the
Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011). “Because rational
people can sometimes disagree, the inevitable consequence of this settled law is that
judges will sometimes encounter convictions that they believe to be mistaken, but
that they must nonetheless uphold.” Id. Indeed, for a federal habeas court reviewing
a state court conviction, “the only question under Jackson is whether that finding
was so insupportable as to fall below the threshold of bare rationality.” Coleman v.
Johnson, 566 U.S. 650, 656 (2012). A state court’s determination that the evidence
25

does not fall below that threshold is entitled to “considerable deference under [the]
AEDPA.” Id.
Finally, on habeas review, a federal court does not reweigh the evidence or
redetermine the credibility of the witnesses whose demeanor was observed at trial.
Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder
to weigh the probative value of the evidence and resolve any conflicts in testimony.
Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). A habeas court therefore must
defer to the fact finder for its assessment of the credibility of witnesses. Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003).
Under Michigan law, “[T]he identity of a defendant as the perpetrator of the
crimes charged is an element of the offense and must be proved beyond a reasonable
doubt.” Byrd v. Tessmer, 82 F. App’x. 147, 150 (6th Cir. 2003) (citing People v.
Turrell, 25 Mich. App. 646, 181 N.W.2d 655, 656 (1970)).
The victim positively identified Petitioner at trial as her assailant. The Court
notes that “the testimony of a single, uncorroborated prosecuting witness or other
eyewitness is generally sufficient to support a conviction.” Brown v. Davis, 752 F.
2d 1142, 1144 (6th Cir. 1985) (internal citations omitted). The victim’s unequivocal
identification of Petitioner at trial as her attacker was sufficient to support
Petitioner’s conviction. See Thomas v. Perry, 553 F. App’x. 485, 487–88 (6th Cir.
2014). Although Petitioner attacks the quality of the eyewitness identification, he is
26

basically asking this Court to re-weigh the testimony and credibility of the evidence,
which this Court cannot do. See United States v. Campbell, 18 F. App’x. 355, 358
(6th Cir. 2001) (quoting United States v. Tipton, 11 F.3d 602, 609 (6th Cir. 1993)).
This portion of Petitioner’s insufficiency of evidence claim rests on an allegation of
the victim’s credibility, which is the province of the jury. See Tyler v. Mitchell, 416
F.3d 500, 505 (6th Cir. 2005).
In addition to the positive eyewitness identifications, there was circumstantial
evidence to establish Petitioner’s identity as the victim’s assailant. Identity of a
defendant can be inferred through circumstantial evidence. See Dell v. Straub, 194
F. Supp. 2d 629, 648 (E.D. Mich. 2002).
Police spotted and arrested Petitioner in the vicinity of the victim’s home
minutes after the assault and at a time when few persons were out on the street. This
is circumstantial evidence that supports a finding that Petitioner was the person who
had recently broken into the victim’s house. See Burger v. Prelesnik, 826 F. Supp.
2d 997, 1016 (E.D. Mich. 2011). Petitioner matched the description of the suspect
and his clothing, and the items discovered in his car were consistent with those
reported by the victim.

This is further circumstantial evidence establishing

Petitioner’s identity as the perpetrator. See e.g., United States v. Eastman, 645 F.
App’x. 476, 481 (6th Cir. 2016). Finally, the DNA evidence could not exclude
Petitioner and the victim from the gloves found in Petitioner’s car, the identical
27

gloves worn by the victim’s assailant. Evidence that the glove contained a mixture
of DNA, of which Petitioner could not be excluded as one of the contributors, was
sufficient, along with the other evidence, to support the jury’s guilty verdict. See
United States v. Kittrell, 269 F. App’x. 338, 342 (4th Cir. 2008).
Sufficient evidence supported the verdict. Counsel’s failure to move for a
directed verdict did not amount to ineffective assistance of counsel. Maupin v. Smith,
785 F.2d 135, 140 (6th Cir. 1986); see also Hurley v. United States, 10 F. App’x.
257, 261 (6th Cir. 2001). Petitioner is not entitled to relief on his third claim.
C. Claim # 4. The sentencing/ineffective assistance of counsel claim.
Petitioner next contends that the judge improperly considered conduct that
Petitioner had been acquitted of when she sentenced Petitioner to the high end of
the sentencing guidelines range of 87-290 months. Specifically, Petitioner notes
that the judge referred to him as a “serial rapist” at sentencing and used this to
justify sentencing Petitioner at the top end of the guidelines range.
A sentencing court may properly consider conduct of which a defendant
has been acquitted, so long as the conduct has been proven by a preponderance
of the evidence. United States v. Watts, 519 U.S. 148, 157 (1997); United States
v. White, 551 F.3d 381, 383-84 (6th Cir. 2008); Erdman v. Tessmer, 69 F. Supp.
2d 955, 963 (E.D. Mich. 1999). Although Petitioner was acquitted of the charge
of assault with intent to commit criminal sexual penetration, the victim’s
28

testimony established by a preponderance of the evidence that Petitioner intended
to sexually assault the victim. Petitioner put his hands on the victim as she
wrestled with him to get away. During the struggle, the victim said Petitioner
“was pulling on his pants.” (ECF No. 11-8, PageID.736–37). Petitioner was able
to get them “down near his knees,” until the victim screamed, scaring Petitioner
off. (ECF No. 11-8, PageID.738–39). When the victim ran to her husband’s room,
she said “somebody was in this house and tried to rape me.” (ECF No. 11-8,
PageID.740). Attempted rape is also what the victim reported to police after the
assault. (ECF No. 11-8, PageID.681). Thus, it was more likely than not that
Petitioner intended some kind of sexual act as he assaulted the victim. Indeed,
the home invasion for which Petitioner was convicted in this case specified that
he entered the home “with the intent to commit criminal sexual conduct.” See
People v. Nichols, 2014 WL 4854440, at *1.
In any event, the judge did not use acquitted charges in this or other cases
when sentencing Petitioner. Although the judge observed that she acquitted
Petitioner of criminal sexual conduct in a prior case, the judge did not base her
sentence on that case. Instead, the judge based her sentence on the guidelines in
this case and the fact that Petitioners had been convicted of criminal-sexualconduct charges in Alabama and served 30 years of imprisonment for those
charges before returning to Michigan to commit the instant offense, along with
29

at least one other offense in Wayne County. That is also the reason the judge
called Petitioner a “serial rapist”—because his criminal record demonstrated that
he was. (ECF No. 11-12, PageID.968–69). Petitioner is not entitled to relief on
his sentencing claim.
The Court also rejects Petitioner’s related ineffective assistance of counsel
claim.
A defendant has the right to the effective assistance of counsel at sentencing
in both noncapital and capital cases. See Lafler v. Cooper, 566 U.S. 156, 165 (2012).
Although sentencing does not involve a criminal defendant’s guilt or innocence,
“ineffective assistance of counsel during a sentencing hearing can result in
Strickland prejudice because ‘any amount of [additional] jail time has Sixth
Amendment significance.’” Id. (quoting Glover v. United States, 531 U.S. 198, 203
(2001)).
Petitioner failed to show that the judge’s sentence was based on any improper
considerations. Accordingly, Petitioner failed to show that counsel was ineffective
for failing to object. Petitioner is not entitled to relief on his fourth claim.
D. Claims # 5-8. The procedurally defaulted claims/the ineffective
assistance of appellate counsel claim.
Respondent argues that Petitioner’s fifth through seventh claims are
procedurally defaulted because Petitioner raised these claims for the first time on

30

post-conviction review and failed to show cause and prejudice, as required by
M.C.R. 6.508(D)(3), for not raising the claims on his direct appeal.
When the state courts clearly and expressly rely on a valid state procedural
bar, federal habeas review is also barred unless petitioner can demonstrate “cause”
for the default and actual prejudice because of the alleged constitutional violation,
or can demonstrate that failure to consider the claim will result in a “fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750–51 (1991). If
petitioner fails to show cause for his procedural default, it is unnecessary for the
court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986).
However, in an extraordinary case, where a constitutional error has probably resulted
in the conviction of one who is actually innocent, a federal court may consider the
constitutional claims presented even in the absence of a showing of cause for
procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986). However, to
be credible, such a claim of innocence requires a petitioner to support the allegations
of constitutional error with new reliable evidence that was not presented at trial.
Schlup v. Delo, 513 U.S. 298, 324 (1995). “‘[A]ctual innocence’ means factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,
624 (1998).

31

The Michigan Supreme Court rejected Petitioner’s post-conviction appeal on
the ground that “the defendant has failed to meet the burden of establishing
entitlement to relief under MCR 6.508(D).” People v. Nichols, 505 Mich. at 1083.
Although the Michigan Court of Appeals remanded the matter to the trial court to
address the claims that the judge had erroneously denied on the basis of res judicata,
the Court of Appeals denied the application for leave to appeal regarding what make
up Petitioner’s fifth through seventh claims “because the defendant failed to
establish that the trial court erred in denying the motion for relief from judgment.”
People v. Nichols, No. 351072 (Mich. Ct. App. Jan. 8, 2020). (ECF No. 26-5,
PageID.2023). These orders, however, did not refer to subsection (D)(3) nor did they
mention Petitioner’s failure to raise his claims on his direct appeal as their rationale
for rejecting his post-conviction appeals. Because the form orders in this case are
ambiguous as to whether they refer to procedural default or a denial of postconviction relief on the merits, the orders are unexplained. See Guilmette v. Howes,
624 F.3d 286, 291 (6th Cir. 2010). This Court must “therefore look to the last
reasoned state court opinion to determine the basis for the state court’s rejection” of
Petitioner’s claims. Id.
The Wayne County Circuit Court judge, in rejecting Petitioner’s fifth through
seventh claims, indicated that Petitioner was not entitled to relief on his claims
because he failed to show cause and prejudice, as required by M.C.R. 6.508(D)(3),
32

for failing to raise the issues on his direct appeal. People v. Nichols, No. 12-00735101-FC, *9–10 (Wayne Cty.Cir.Ct., Sept. 6, 2019) (ECF No. 26-1, PageID.1845-46).
Because the trial court judge denied Petitioner post-conviction relief based on the
procedural grounds stated in M.C.R. 6.508(D)(3), Petitioner’s fifth through seventh
claims are procedurally defaulted pursuant to M.C.R. 6.508(D)(3). See Ivory v.
Jackson, 509 F.3d 284, 292-93 (6th Cir. 2007). Petitioner’s fifth through seventh
claims are procedurally defaulted.2
Petitioner alleges ineffective assistance of appellate counsel as cause to
excuse his procedural default.

Petitioner, however, has not shown that appellate

counsel was ineffective. It is well-established that a criminal defendant does not
have a constitutional right to have appellate counsel raise every non-frivolous issue
on appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983). The United States
Supreme Court has explained:
“For judges to second-guess reasonable professional judgments and
impose on appointed counsel a duty to raise every ‘colorable’ claim
suggested by a client would disserve the ... goal of vigorous and
effective advocacy.... Nothing in the Constitution or our
interpretation of that document requires such a standard.”
Id. at 463 U.S. at 754.

Petitioner could not have procedurally defaulted his ineffective assistance of
appellate counsel claim, because state post-conviction review was the first
opportunity that he had to raise this claim. See Guilmette, 624 F.3d at 291. However,
for the reasons stated below, Petitioner is not entitled to habeas relief on this claim.
33

2

Moreover, “[A] brief that raises every colorable issue runs the risk of burying
good arguments-those that, in the words of the great advocate John W. Davis, ‘go
for the jugular,’-in a verbal mound made up of strong and weak contentions.” Id. at
463 U.S. at 753 (citations omitted).
The Supreme Court has subsequently noted that:
“Notwithstanding Barnes, it is still possible to bring a Strickland
claim based on counsel’s failure to raise a particular claim,but it is
difficult to demonstrate that counsel was incompetent.”
Smith v. Robbins, 528 U.S. 259, 288 (2000).
Strategic and tactical choices regarding which issues to pursue on appeal are
“properly left to the sound professional judgment of counsel.” United States v. Perry,
908 F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate
advocacy” is the “process of ‘winnowing out weaker arguments on appeal and
focusing on those more likely to prevail.” Smith v. Murray, 477 U.S. at 536 (quoting
Barnes, 463 U.S. at 751–52). “Generally, only when ignored issues are clearly
stronger than those presented will the presumption of effective assistance of
appellate counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir.
2002).

Appellate counsel may deliver deficient performance and prejudice a

defendant by omitting a “dead-bang winner,” which is defined as an issue which was
obvious from the trial record and would have resulted in a reversal on appeal. See
Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).
34

Petitioner failed to show that appellate counsel’s performance fell outside the
wide range of professionally competent assistance by omitting the claims that
Petitioner raised for the first time in his post-conviction Motion for Relief from
Judgment. Appellate counsel filed a sixteen-page appellate brief which raised the
jury instruction claim that Petitioner himself raises as the first claim in his petition.3
Petitioner has not shown that appellate counsel’s strategy in presenting this claim
and not raising other claims was deficient or unreasonable. Moreover, for the
reasons stated by the Assistant Michigan Attorney General in his answer to the
petition for writ of habeas corpus, none of the claims raised by Petitioner in his postconviction motion were “dead bang winners.” Because the defaulted claims are not
“dead bang winners,” Petitioner has failed to establish cause for his procedural
default of failing to raise these claims on direct review. See McMeans v. Brigano,
228 F.3d 674, 682-83 (6th Cir. 2000).
Because these post-conviction claims lack merit, this Court must reject any
independent ineffective assistance of appellate counsel claim raised by Petitioner.
“[A]ppellate counsel cannot be found to be ineffective for ‘failure to raise an issue
that lacks merit.’” Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir. 2010).
Additionally, Petitioner has not established that a fundamental miscarriage of
justice has occurred. The miscarriage of justice exception requires a showing that a

3

See Defendant-Appellant’s Brief on Appeal (ECF No. 11-13, PageID.987–1007).
35

constitutional violation probably resulted in the conviction of one who is actually
innocent. Petitioner’s sufficiency of evidence claim (Claim # 3) is insufficient to
invoke the actual innocence doctrine to the procedural default rule. See Malcum v.
Burt, 276 F. Supp. 2d 664, 677 (E.D. Mich. 2003).
Finally, assuming that Petitioner had established cause for the default of his
claims, he would be unable to satisfy the prejudice prong of the exception to the
procedural default rule, because his claims would not entitle him to relief. The cause
and prejudice exception is conjunctive, requiring proof of both cause and prejudice.
See Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007). For the reasons stated by
the Assistant Michigan Attorney General in the answer to the petition for writ of
habeas corpus, and the Wayne County Circuit Court judge in the opinion and order
denying the post-conviction motion, Petitioner failed to show that his procedurally
defaulted claims have any merit. In particular, the reasons justifying the denial of
Petitioner’s procedurally defaulted claims were “ably articulated by the” Wayne
County Circuit Court judge in rejecting these claims, thus, “the issuance of a full
written opinion” by this Court regarding these claims “would be duplicative and
serve no useful, jurisprudential purpose.” See e.g., Bason v. Yukins, 328 F. App’x.
323, 324 (6th Cir. 2009).
E. Claim # 9. The post-conviction claim.

36

Petitioner lastly claims he is entitled to habeas relief because the trial judge
erroneously invoked the doctrine of res judicata to initially reject several of
Petitioner’s post-conviction claims.
Petitioner’s claim that the Michigan courts wrongfully denied him postconviction relief is non-cognizable. This Court notes that “[t]he Sixth Circuit
consistently held that errors in post-conviction proceedings are outside the scope of
federal habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007).
Thus, a federal habeas corpus petition cannot be used to mount a challenge to a
state’s scheme of post-conviction relief. See Greer v. Mitchell, 264 F.3d 663, 681
(6th Cir. 2001). The reason for this is that states have no constitutional obligation
to provide post-conviction remedies. Id. (citing to Pennsylvania v. Finley, 481 U.S.
551, 557 (1987)).
The Court denies the petition for writ of habeas corpus. The Court also denies
Petitioner a certificate of appealability. To obtain a certificate of appealability, a
prisoner must make a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show
that reasonable jurists could debate whether, or agree that, the petition should have
been resolved in a different manner, or that the issues presented were adequate to
deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 48384 (2000). When a district court rejects a habeas petitioner’s constitutional claims
37

on the merits, the petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims to be debatable or wrong. Id.
at 484.

Likewise, when a district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional claims, a
certificate of appealability should be issued, and an appeal of the district court’s
order may be taken, if the petitioner shows that reasonable jurists would find it
debatable whether the petitioner states a valid claim of the denial of a constitutional
right, and that reasonable jurists would find it debatable whether the district court
was correct in its procedural ruling. Id. at 484. “The district court must issue or deny
a certificate of appealability when it enters a final order adverse to the applicant.”
Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
The Court denies Petitioner a certificate of appealability because reasonable
jurists would not find this Court’s assessment of Petitioner’s claims to be debatable
or wrong. Johnson v. Smith, 219 F. Supp. 2d 871, 885 (E.D. Mich. 2002). Petitioner
is denied leave to appeal in forma pauperis because the appeal would be frivolous.
See Fed. R. App. P. 24(a).

38

IV. CONCLUSION
Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ
of habeas corpus. The Court further DENIES a certificate of appealability and leave
to appeal in forma pauperis.
SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
DATED: October 20, 2023

39