Anderson v. Winn

Filing 13

OPINION and ORDER DENYING Petition for Writ of Habeas Corpus, DENYING a Certificate of Appealability, and GRANTING Permission to Appeal in forma pauperis. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2:18-CV-11133-TGB

STEVEN B. ANDERSON,
Plaintiff,

ORDER
vs.
THOMAS WINN,
Defendant.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING PERMISSION TO APPEAL IN FORMA PAUPERIS
Steven B. Anderson, (“Petitioner”), a Michigan prisoner, filed this
action under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial
in the Kalamazoo Circuit Court of first-degree premeditated murder,
MICH. COMP. LAWS § 750.316, assault with intent to commit murder,
MICH. COMP. LAWS § 750.83, 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. Petitioner was
sentenced as a third-time habitual felony offender to a controlling
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sentence of life imprisonment for the murder conviction and lesser terms
for his other offenses.
The petition raises ten claims: (1) the prosecutor committed
misconduct by introducing false testimony, (2) Petitioner was denied the
effective assistance of trial and appellate counsel, (3) the trial court erred
in admitting hearsay, (4) the trial court erred in failing to intervene when
the prosecutor committed misconduct, (5) the prosecutor engaged in
additional acts of misconduct, (6) the prosecutor withheld exculpatory
evidence, (7) Petitioner’s trial counsel was ineffective for additional
reasons, (8) the trial court lacked jurisdiction, (9) the jury’s verdict was
against the great weight of the evidence, and (10) the ineffectiveness of
Petitioner’s appellate counsel constitutes cause to excuse any procedural
default of the claims raised on state post-conviction review.
The Court denies the petition because Petitioner’s claims are
without merit or barred by his state court procedural default. The Court
also denies Petitioner a certificate of appealability, but grants permission
to appeal in forma pauperis.

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I. Background
The Michigan Court of Appeals summarized the facts surrounding
Petitioner’s case as follows:
The prosecution arises out of a shooting in Kalamazoo
in which one man was killed and a second man was injured.
There was strong evidence reflecting that the attack on the
two victims was perpetrated by Anderson, Wright, who had
allegedly been assaulted weeks earlier by, among others, the
homicide victim, and Jaquan Henderson, who was convicted
of second-degree murder and other charges following a
separate trial. The evidence showed that, during the
commission of the offenses, Wright wielded and fired a .44
caliber handgun, Henderson employed a .380 caliber weapon,
and that Anderson discharged a shotgun. The evidence
further indicated that the surviving victim had been struck by
shotgun fire, while the deceased was hit by a gunfire from a
.44 caliber firearm.
People v. Anderson, 2014 WL 2931820, at *1 (Mich. Ct. App. June 26,
2014).
The evidence presented at trial indicated that on December 17,
2011, Romney Hunter and other men assaulted and robbed Robert
Wright. Wright was hospitalized after the assault. Wright told the police
he did not know who assaulted him.
A few weeks later, during the early evening hours of January 8,
2012, Hunter and Troy Whitfield were standing outside a residential
address in Kalamazoo, while friends were drinking and working on a
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vehicle parked in the driveway. Whitfield heard shots, so he jumped in
the back of the vehicle, and he and two other men drove away. Whitfield
sustained two shots to his leg.
When Whitfield and the others returned to the scene, Whitfield saw
Hunter lying on the ground at the end of the driveway. Hunter had been
shot in the chest and killed. An ambulance arrived and transported
Whitfield to the hospital.
On the ground at the scene of the shooting the police found
Petitioner’s cell phone. They also found several spent casings and an
empty 12-gauge shotgun shell. A shotgun consistent with the shell found
at the scene was subsequently located in the Kalamazoo River.
Santrell Sandifer testified that on January 8, 2012, he was with
Petitioner when Petitioner saw Hunter. Petitioner called Wright and told
him that he spotted one of the guys that jumped him. They met up with
Wright, and Petitioner handed him a handgun. Henderson was also
present. Sandifer was charged with two counts of accessory after the fact
and testified as a prosecution witness pursuant to a plea agreement.
Sandifer testified that Petitioner, Wright, and Henderson walked
towards the house where the shooting eventually happened, while
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Sandifer drove past them. Sandifer heard gunshots. He saw Petitioner
running through a field, and he saw Henderson and Wright running
down the street.
Petitioner got in Sandifer’s car and they drove to Bernice Wyatt’s
house; Wyatt was Petitioner’s girlfriend. Sandifer saw Petitioner pull a
shotgun out of his pants leg. Petitioner said that the shotgun jammed
and that he had lost his cell phone. (The shotgun later found in the
Kalamazoo River, which matched the shotgun shell discovered at the
scene of the shooting, was also jammed.) Sandifer later heard Petitioner
call Wyatt and tell her to have someone take the guns to his sister’s
house.
Joshua Shoffner testified that he was friends with Petitioner. He
identified photographs of the men brandishing guns that were consistent
with those used in the shooting. On the evening of January 8, 2012,
Shoffner was at Wyatt’s home. Petitioner told Shoffner that he was
present at a shooting and that his shotgun jammed after he shot it.
Petitioner also said that he dropped his cell phone at the scene.
Later, at Wyatt’s direction, Shoffner took a garbage bag to another
house. He saw the barrel of a shotgun poking out of the bag. The next
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morning Shoffner heard Petitioner talking to someone on the phone
about getting rid of something in the river.
Claudia Ford testified that Wright was the father of her children.
On January 8, 2012, Ford heard Wright call Petitioner and Henderson.
She was also present in the car with Wright when he met Petitioner and
Sandifer. She did not see any guns, but she heard a reference to the
shotgun. Ford testified that they drove to the area of the shooting, and
Henderson and his brother arrived in another vehicle. Ford testified
pursuant to a plea agreement in a pending drug case.
Ford observed Wright, Petitioner, and Henderson walk off. She did
not see any weapons. Ford heard gunshots. She saw Henderson get into
one vehicle while Wright walked back from the location of the shooting.
Sheila Mister testified that a few days after the shooting, Shoffner
brought a black garbage bag to her home. He placed it on her back porch,
where it remained until it was removed a few days later.
Prior to Petitioner’s trial, co-defendant Jaquan Henderson was
tried and convicted of second-degree murder. When the prosecutor called
Henderson as a witness, Petitioner’s counsel objected, arguing that the
prosecutor was knowingly presenting false testimony. Defense counsel
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noted that Henderson testified in his own defense at his trial that he lied
to the police during interviews, and that the prosecutor conducted a
lengthy cross examination “where it was apparent that [the prosecutor]
caught Mr. Henderson, again, even lying during his own trial.” ECF No.
8-10 PageID.696.
Defense counsel indicated that she had reviewed Henderson’s trial
transcripts, and that “it was very apparent to the prosecution that he was
not truthful at his own testimony. There were numerous pages where he
was cross-examined by the – by the prosecutor where it came off that he
was not truthful. So, I – I have no faith that this man will uphold his oath
to tell the truth today. He’s not been truthful up until this point.” Id. at
PageID.696–97.
The prosecutor responded:
[W]hat was given in terms of any, I guess, incentive to
testify on Mr. Henderson’s behalf is that when he testifies, the
thing that I can do for him is, I will write to the prison as it
relates to his cooperation in this matter and I will explain
fully what he has done in that regards. It was also discussed
with his appellate attorney and that Mr. Henderson should be
aware, that if his appeal somehow was successful that
anything he says here in court today that he could not be
facing charges on any more serious matter if it went back,
because that was first-degree open – murder back then. The
jury came with second-degree. So, whatever happens here, if
his appeals granted, it would still go back and he would be
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subject to not the more serious first-degree – life time without
parole offense. And, I believe that Mr. Henderson was made
aware of that.
Id. at PageID.699–700.
The trial court overruled the objection, stating:
That’s certainly something that the attorneys can
explore given what was indicated in the police reports. I don’t
know what’s in there. I don’t have those in front of me. Given
his testimony at trial – but, I’m not here to make a decision as
to whether or not somebody’s lying or not. That’s up to the
jury. They can certainly make that determination on their
own, and unfortunately there are folks that do not tell the
truth under oath. And, again, that’s for the jury to sort out. I
don’t – I’m not aware of any authority I have to exclude
someone just because they have said an inconsistent
statement, or again, have lied in the past. That’s not for me to
determine. That’s for all of you to question with regards to
cross-examination.
Id. at PageID.700.
Defense counsel renewed the objection later in the trial, noting that
Henderson had taken a polygraph examination which indicated he was
being deceptive. ECF No. 8-11 PageID.755–56. The prosecutor informed
the court that the polygraph questions related to a firearm and what he
may have done with it during the commission of the offense. The
detectives then re-interviewed him, and he gave further information. Id.
at PageID.756. The prosecutor added, “Let’s be clear, I’m not putting up
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a witness who I believe will lie intentionally about any material fact in
this case.” Id. at PageID.756–57.
Henderson testified that he was then in prison because of his role
in the shooting. He was testifying in exchange for the prosecutor writing
a letter to the prison authorities. Henderson testified that had known
Wright for about a year. Henderson met Petitioner on the night of the
incident. On January 8, 2012, Wright called Henderson and told him to
meet him in a residential neighborhood. When Henderson arrived,
Wright asked him to beat up a guy who was around the corner because
the guy had jumped him.
Petitioner and Sandifer then arrived. Wright told Petitioner that he
was going to have Henderson “whoop” the guy. Petitioner said “I ain’t
come to watch nobody fight. I’m fixin’ to body one of them.” Id. at
PageID.716. Petitioner showed Henderson a pistol-gripped shotgun that
was underneath his sweatshirt.
The three men walked to the scene of the shooting. Petitioner fired
the first shot with the shotgun toward Whitfield, but then Henderson saw
Petitioner struggle with the gun. Petitioner told Henderson to shoot.
Henderson testified that he fired a handgun in the air several times.
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Henderson ran away, and he heard more shots fired. He did not see if
Wright fired any shots.
Sandifer drove up in a vehicle and Petitioner jumped inside. The
men went their separate ways, and Henderson threw his handgun away.
Later, Wright told Henderson that Petitioner dropped his cell phone
during the incident. Henderson subsequently discarded the shotgun used
in the incident in the river. He later told the police where he threw it.
On cross-examination, Henderson testified that he was serving a
35-to-80-year sentence, and that the prosecutor had agreed to write a
letter to the prison on his behalf. Henderson claimed that he was
testifying at the instant trial to bring closure to Hunter’s family because
they needed to know who shot Hunter.
Henderson admitted that he had lied to the police when they
interviewed him prior to trial. He had an ongoing relationship with
Detective Ghiringhelli as a paid informant. Henderson was trying to
pump him for information, and he was trying to steer Ghiringhelli in
another direction. Henderson decided to be truthful after the police
showed him that his cell phone number was involved. He admitted that
he met with the police on several occasions, that he made lengthy
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statements, and that he told them “partly truth and partly lies.” Id. at
PageID.758, 825.
Henderson admitted that in his first statement to Ghiringhelli, he
untruthfully said he was shooting dice at the time of the incident and not
involved. His second statement was to Detective Beauchamp, in which he
admitted he was involved in the incident, but he lied about certain
details. The third statement was to a few other detectives, and
Henderson admitted he lied again about several details.
Henderson’s brother, Daniel Jones-Davis, testified that he drove
with his brother to the scene of the shooting. Jones-Davis heard shots,
and Henderson ran back to his vehicle. He did not see Henderson with a
firearm. He later dropped his brother off near two bridges, but he didn’t
know what his brother did at the bridges.
Detective Michael Hecht testified that he interviewed Petitioner on
January 11, 2012. Petitioner initially said that he was at Wyatt’s home
at the time of the incident. He said he lost his cell phone earlier that day.
After Hecht told Petitioner that they found his at the scene, the interview
ended.

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Detective Brian Beauchamp testified that he reviewed phone calls
made at the jail between Shoffner and Petitioner, during which the men
used nicknames for two of the guns used in the shooting. Cell phone
records were admitted showing communications between Petitioner,
Ford, Henderson, Constance Searcy, Wright, and Wyatt around the time
of the incident.
Following his conviction and sentence, Petitioner filed a claim of
appeal in the Michigan Court of Appeals. His brief on appeal raised the
following claims:
I. Is Defendant entitled to a new trial where he was denied
his state and federal due process rights where his convictions
were obtained through the use of false and/or perjured
testimony by co-defendant Jaquan Henderson, and where the
prosecutor presented inconsistent theories during the July
trial of co-defendant Henderson and the instant trial of Mr.
Anderson?
II. Did the trial court commit plain error in failing to instruct
the jury that it should view with caution the testimony of
Santrell Standifer, Claudia Ford, and Joshua Shoffner, who
were accomplices during and/or after the fact to Mr.
Anderson’s alleged crimes? Did this deny Mr. Anderson his
state and federal constitutional right to present a defense?
III. Alternatively was Petitioner denied his state and federal
constitutional right to the effective assistance of counsel,
where trial counsel failed to request a cautionary instruction
on the unreliability of accomplice testimony with regard to
Sandifer, Ford and Shoffner?
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Petitioner also filed a supplemental pro se brief in which he raised
the following additional claim:
Was Defendant’s right to a fair trial contaminated,
compromised and ultimately corrupted through a series of
errors perpetrated by defense counsel?
The Michigan Court of Appeals affirmed Petitioner’s convictions in
an unpublished opinion. Anderson, 2014 WL 2931820, at *7.
Petitioner subsequently filed an application for leave to appeal in
the Michigan Supreme Court, raising the same claims that he presented
to the Michigan Court of Appeals, along with the following new claims:
I. Defendant’s due process of rights were violated. Key
components as defined in MCR 8.119(C) and MCR 2.107(G)
were not followed, making my arrest a violation of my due
process of rights.
II. Prosecutorial misconduct[:] prosecutor violated my state
and federal constitutional rights by failing to give exculpatory
evidence to the defense. Brady violation.
III. The aiding and abetting law is unconstitutional and has
deprived me the rights to a fair trial.
The Michigan Supreme Court denied the application because it was
not persuaded that the questions presented should be reviewed by the
Court. People v. Anderson, 858 N.W.2d 454 (Mich. 2015) (Table).

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Petitioner returned to the trial court and filed a motion for relief
from judgment, raising the following claims:
I. The Defendant was denied his state and federal
constitutionally protected right to effective assistance of
counsel where counsel failed to present a defense, investigate
and call witnesses to testify in Defendant’s favor, denying him
compulsory process.
II. The trial judge abused her discretion, violating
Defendant’s due process and rights to a fair trial when she
failed to stop the prosecutor’s prejudicial actions.
III. The trial court abused its discretion and reversibly
prejudiced the Defendant when admitting hearsay testimony
into evidence which violated the Confrontation Clause. Trial
judge further abused her discretion in allowing jury
instructions, that relieved the prosecution of its burden of
proving every element of the first-degree murder charge
beyond a reasonable doubt.
IV. The verdict is against the great weight of the evidence,
constituting in a miscarriage of justice, violating Defendant’s
Fourteenth Amendment right.
V. Defendant is entitled to relief from judgment where
misconduct clearly demonstrates that a fraud was
perpetrated upon the court by the prosecutor.
VI. Defendant was denied due process of his constitutional
rights where the prosecutor suppressed exculpatory and
impeachment evidence and where law enforcement failed to
collect evidence in bad faith, preventing the Defendant from
having a fair trial.
VII. Trial counsel’s failure to object to the criminal complaint
rendered her ineffective. Jurisdictional defect, due process,
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and unlawful detainment all arose out of the invalid,
insufficient criminal complaint violating multiple state and
federal rights of the defendant.
VIII. Defendant inserts that his equal protection rights were
violated where the district judge abused her discretion in
binding Defendant over on open murder charges and where
circuit court judge abused her discretion in denying motion to
quash bind over.
The trial court denied the motion for relief from judgment under
Michigan Court Rule 6.508(D)(2) and (3), finding that review of the new
claims was barred by Petitioner’s failure to show that his appellate
counsel was ineffective for failing to raise the claims on direct review.
ECF No. 8-22.
Petitioner filed an application for leave to appeal in the Michigan
Court of Appeals. The court denied the application for leave to appeal for
failure to establish that the trial court erred in denying the motion for
relief from judgment. People v. Anderson, No. 335589 (Mich. Ct. App.
April 4, 2017). Petitioner appealed this decision to the Michigan Supreme
Court, but his application for leave to appeal was denied under Michigan
Court Rule 6.508(D). People v. Anderson, 908 N.W.2d 887 (Mich. 2018)
(Table).

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II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of
constitutional claims raised by a state prisoner in a habeas action if the
claims were adjudicated on the merits by the state courts. Relief is barred
under this section unless the state court adjudication was “contrary to”
or resulted in an “unreasonable application of” clearly established
Supreme Court law.
“A state court’s decision is ‘contrary to’ . . . clearly established law
if it ‘applies a rule that contradicts the governing law set forth in
[Supreme Court cases]’ or if it ‘confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [this] precedent.’” Mitchell
v. Esparza, 540 U.S. 12, 15–16 (2003), quoting Williams v. Taylor, 529
U.S. 362, 405–06 (2000).
“[T]he ‘unreasonable application’ prong of the statute permits a
federal habeas court to ‘grant the writ if the state court identifies the
correct governing legal principle from [the Supreme] Court but
unreasonably applies that principle to the facts’ of petitioner’s case.”

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Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529 U.S. at
413.
“A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“Section 2254(d) reflects the view that habeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal. . . . As a condition
for obtaining habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103 (internal
quotation omitted).
III. Analysis
A. Prosecutorial Misconduct
Petitioner first claims that the prosecutor committed misconduct by
eliciting false testimony from Henderson. He argues that the prosecutor
17

maintained during Henderson’s trial that he was untruthful, but then
reversed course during Petitioner’s trial by calling him as a witness and
urging the jury to believe his testimony in the later proceeding.
After reciting the controlling constitutional standard, the Michigan
Court of Appeals denied relief on the merits by finding that the
prosecutor did not take contradictory positions with respect to
Henderson, and Petitioner did not show that the prosecutor knew his
testimony to be false:
Anderson focuses on statements made by Henderson at
both Henderson’s trial and at Anderson’s trial, wherein
Henderson testified that Anderson had a shotgun, that
Anderson threatened him with the shotgun and made him
stay at the scene, that Anderson made him fire his .380 caliber
weapon, that Anderson fired first at one of the victims, that
Henderson simply fired his gun into the air, and that part of
the plan had been to rob the victims and shoot them if they
attempted to use a gun.
Initially, we point out that Anderson fails to supply any
relevant support for his conclusory position that Henderson's
testimony was false. Indeed, Anderson’s appellate claims
indicate that Henderson’s testimony at the two trials was
consistent. Anderson argues that the prosecutor at
Henderson’s trial adamantly maintained to the jury that
Henderson was a liar, yet that very same prosecutor at
Anderson’s trial vigorously contended that Henderson was a
credible witness. It appears, therefore, that Anderson’s theory
is that Henderson’s testimony at Anderson’s trial was false,
given that the prosecutor accused Henderson of lying at
Henderson's trial, and that the prosecutor thus knowingly
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used false testimony at Anderson’s trial. We fail to see how
this theory necessarily establishes the falsity of Henderson’s
testimony. Moreover, at Henderson’s trial, the prosecutor
never asserted that Henderson was lying about Anderson
being involved and participating in the offenses, about
Anderson providing assistance in carrying out the crimes,
about Anderson wielding a shotgun, and about Anderson first
discharging the shotgun. On these matters, the prosecutor’s
theory at both trials was entirely consistent.1 Rather, at
Henderson's trial, the prosecutor challenged Henderson's
credibility regarding his claims that he only thought that a
beating would take place, not a shooting and killing, that
Anderson forced him to fire his gun, and that Henderson
innocently shot into the air in response. At Anderson’s trial,
the prosecutor’s arguments that Henderson was credible were
not expressly linked to Henderson's intent or his belief as to
whether or not a shooting would occur, to Anderson forcing
Henderson to fire his gun, or to Henderson shooting skyward.
In fact, the prosecutor specifically acknowledged to the jury
that Henderson clearly was “not clean” and had been deeply
involved in the offenses, firing his .380 caliber weapon.
Furthermore, Henderson’s criminal intent and discharge of
his weapon ultimately did not have any meaningful bearing
on Anderson's guilt. Assuming that any of Henderson’s
testimony at Anderson’s trial was tainted, it was not material
to Anderson's guilt and did not affect the jury's verdict,
especially considering the overwhelming evidence of
Anderson's guilt, including admissions to friends and physical
evidence, aside from Henderson's testimony. Aceval, 282
Mich. App. at 389. Reversal is unwarranted.
[FN 1:] As such, the prosecutor did not present
“inherently factually contradictory theories,” given that there
was no inconsistency at the core of the prosecutor's cases
against defendants for the same crime. Smith v. Groose, 205
F.3d 1045, 1052 (8th Cir. 2000).

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[FN 2:] We note that, although Henderson made
inconsistent statements to police prior to the trials, the
statements were not concealed by the prosecutor and
Anderson freely used them in an attempt to impeach
Henderson's credibility.
Anderson, 2014 WL 2931820, at *1–2.
This decision did not involve an unreasonable application of clearly
established Supreme Court law. “The deliberate deception of court and
jury by the presentation of testimony known to be perjured violates a
defendant’s due-process rights.” Monea v. United States, 914 F.3d 414,
421 (6th Cir. 2019) (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935))
(internal quotation marks omitted); see also Giglio v. United States, 405
U.S. 150, 153 (1972). “To prevail on such a claim, [the petitioner] must
show that the Government knowingly presented false testimony that
materially affected the proceeding.” Monea, 914 F.3d at 421 (citing
United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989)). A
petitioner cannot simply point to “[m]ere inconsistencies in the
testimony,” but must show that the testimony is “indisputably false.” Id.
(quoting Lochmondy, 890 F.2d at 823) (internal quotation marks
omitted).

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As the state court reasonably concluded, Henderson’s testimony at
the two trials was fairly consistent. At both proceedings he minimized his
own involvement in the crime and shifted blame to the other men.
Petitioner fails to identify exactly what portion of Henderson’s testimony
is indisputably false. Rather, he argues only that Henderson was an
unreliable witness because he lied to the police, failed a polygraph
examination, and because the trial prosecutor argued in closing that
Henderson minimized his involvement and was still not being completely
truthful. But the prosecutor did not attempt to pass indisputably false
testimony off as the truth at Petitioner’s trial. Rather, the prosecutor
properly argued that the portion of Henderson’s testimony describing
Petitioner and Wright’s involvement in the shooting was true despite his
efforts to minimize his own culpability. The prosecutor openly
acknowledged the problems with Henderson’s credibility as to his own
culpability. The jury was not misled, and in any event, pointing to mere
inconsistencies in Henderson’s testimony does not show that the
prosecutor committed reversable misconduct. Lochmondy, 890 F.2d at
822.

21

Moreover, a habeas petitioner is not entitled to relief based on trial
court error unless he demonstrates that the error “had a substantial and
injurious effect or influence in determining the jury’s verdict,” Brecht v.
Abrahamson, 507 U.S. 619, 622 (1993); Holland v. Rivard, 800 F.3d 224,
243 (6th Cir. 2015). A showing of “substantial and injurious effect or
influence” means “actual prejudice.” Gover v. Perry, 698 F.3d 295, 299
(6th Cir. 2012) (citing Brecht, 507 U.S. at 637).
The success of the prosecution in no way hinged on Henderson,
significant as he was. Aside from Henderson, multiple witnesses testified
to Petitioner’s involvement in the crime and his incriminating statements
and actions following the shooting. The accounts of these witnesses were
corroborated by the fact that Petitioner’s cell phone was found at the
scene and the shotgun was found in the river. Any error in the admission
of Henderson’s testimony did not have a substantial impact on the
outcome of the trial.
Petitioner’s first claim is without merit.
B. Ineffective Assistance of Trial Counsel
Part of Petitioner’s second claim was raised in on direct appeal in
his pro se supplemental brief. Petitioner claims that his trial counsel was
22

ineffective for failing to call a number of witnesses in his defense and for
a variety of other reasons. After reciting the controlling constitutional
standard, the Michigan Court of Appeals rejected the claim on the merits
as follows:
Anderson argues that defense counsel failed to
interview and call several lay witnesses to testify in regard to
whether the victims and/or their friends may have also had
guns at the scene of the shooting and to impeach a witness
who testified against Anderson. In support, Anderson relies
solely on his own unsworn affidavit. “Because the defendant
bears the burden of demonstrating both deficient performance
and prejudice, the defendant necessarily bears the burden of
establishing the factual predicate for his claim.” Carbin, 463
Mich. at 600. The unsworn affidavit falls woefully short of
establishing the factual predicate for Anderson's claim, i.e.,
establishing what these other purported witnesses would
have testified to had they been called to the stand. Moreover,
the requisite prejudice has not been established. Even had the
victims been carrying guns, the evidence overwhelmingly
showed that the victims were effectively ambushed, not that
Anderson, Wright, and Henderson fired in self-defense. And
the impeachment of the one witness would not have affected
the outcome of the trial in light of the extensive evidence of
Anderson's guilt.
Anderson also argues that defense counsel was
ineffective for failing to call an expert witness on firearms.
Anderson, however, has not shown that counsel failed to
investigate the possibility of an expert and, in the absence of
how an expert would have testified, Anderson has not
overcome the strong presumption that counsel’s decision not
to call an expert was sound trial strategy, nor has prejudice
been established. Carbin, 463 Mich. at 600.
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Related to counsel’s investigation of Anderson’s case,
Anderson also alleges on appeal that counsel failed to explore:
evidence of other potential weapons, evidence of another
shooter, and the origins of the weapons used in the shooting
to establish that Anderson had no connection to the guns.
These claims are not well-developed and nothing in the record
indicates that counsel failed to investigate these matters or
that, had these issues been explored, there was a reasonable
probability of a different outcome (prejudice). Carbin, 463
Mich. at 600. Anderson has not satisfied his burden of
establishing the factual predicate of his claims. Id.
Anderson next maintains on appeal that defense counsel
infringed on his right to testify. Informed on the record that
he had a right to testify, Anderson stated that he was not
going to testify, thereby waiving his right to do so. See People
v. Simmons, 140 Mich. App. 681, 685 (1985). On appeal, he
has not presented any support for his claim that counsel
advised him unreasonably or even that, but for counsel’s
performance, he would have testified. Reversal is
unwarranted.
Anderson, 2014 WL 2931820, at *4–5.
This decision was a reasonable application of the law. To establish
ineffective assistance of counsel, a defendant must show both that: (1)
counsel’s performance was deficient, i.e., “that counsel’s representation
fell below an objective standard of reasonableness”; and (2) the deficient
performance resulted in prejudice to the defense. Strickland v.
Washington, 466 U.S. 668, 687–88 (1984). “[A] court must indulge a
strong presumption that counsel’s conduct falls within the wide range of
24

reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). The test for prejudice is whether
“there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.
Given that Petitioner did not proffer the state courts with any
evidence to support his claims of ineffective assistance of trial counsel, it
was not unreasonable for the state appellate court to find that he did not
overcome the presumption that trial counsel’s alleged failings were the
result of reasonable trial strategy. The state court did not have before it
any evidence showing that counsel inadequately investigated the case or
failed to present additional defense evidence. Moreover, as the state court
found, the evidence presented at trial overwhelmingly indicated
Petitioner’s guilt. Petitioner made damning admissions to multiple
witnesses following the incident. His presence at the scene was
corroborated by his dropping his cell phone, and his involvement was
further established by evidence indicating that his shotgun was found in
the river where he directed it to be discarded, and in the jammed
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condition that he described. On this record, Petitioner has failed to show
that his counsel performed deficiently or that there was a reasonable
probability that the result would have been different but for his counsel’s
alleged failings.
Moreover, habeas review under 28 U.S.C. § 2254(d) is “limited to
the record that was before the state court that adjudicated the claim on
the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Petitioner
offered the state courts only his own affidavit claiming that he had
additional witnesses to present in his defense. Petitioner offered no
evidence to prove the content of the missing testimony or the availability
of other witnesses. He therefore failed to establish in the state courts that
his counsel performed deficiently or that he was prejudiced. See Clark v.
Waller, 490 F.3d 551, 557 (6th Cir. 2007) (citing Stewart v. Wolfenbarger,
468 F.3d 338, 353 (6th Cir. 2006)).
The state adjudication of the ineffective assistance of trial counsel
claims raised on direct review was reasonable. Petitioner has failed to
demonstrate entitlement to relief with respect to this claim.

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C. Procedural Default
Petitioner’s remaining claims were presented to the state courts in
his motion for relief from judgment and the appeal that followed its
denial. Petitioner claims that his appellate counsel was ineffective for
failing to raise these claims on direct appeal. The trial court found review
of the claims barred under Michigan Court Rule 6.508(D)(3) because
Petitioner failed to demonstrate “good cause” by way of his ineffective
assistance of appellate counsel claim. See ECF No. 8-22. The Michigan
Court of Appeals and Michigan Supreme Court subsequently denied
relief in short orders.
When the Respondent in a habeas case raises a procedural default
defense, as here, the district court must address it before reaching the
merits of the defaulted claims, especially when the procedural default
question is clear. Sheffield v. Burt, 731 F. App’x 438 at 441 (6th Cir.
2018).
If a claim is not considered by a state court “due to a state
procedural rule that prevents the state courts from reaching the merits
of the petitioner’s claim, that claim is procedurally defaulted and may not
be considered by the federal court on habeas review.” Seymour v. Walker,
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224 F.3d 542, 549–50 (6th Cir. 2000) (citing cases). It is well-established
that Rule 6.508(D)(3) is such a rule, and that its application by the state
court bars habeas review of the defaulted claims. Amos v. Renico, 683
F.3d 720, 733 (6th Cir. 2012); Willis v. Smith, 351 F.3d 741, 745 (6th Cir.
2003). The state trial court applied this rule to Petitioner’s postconviction claims, and they are therefore barred from review absent a
showing of cause and prejudice or that a failure to review the defaulted
claims would result in a fundamental miscarriage of justice. Guilmette v.
Howes, 624 F.3d 286, 289–92 (6th Cir. 2010) (en banc); Wainwright v.
Sykes, 433 U.S. 72, 84–87 (1977).
Petitioner claims that the ineffectiveness of his appellate attorney
constitutes cause to excuse his procedural default. Ineffective assistance
of appellate counsel can establish cause for a procedural default. See
Ivory v. Jackson, 509 F.3d 284, 294 (6th Cir. 2007). However, appellate
counsel does not need “to raise every nonfrivolous claim on direct appeal.”
Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). A petitioner can
overcome the presumption of effective assistance of counsel only when
the “[omitted] issues are clearly stronger than those presented.” Id.
(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). A petitioner
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must show that the claims he contends should have been raised on appeal
were “dead-bang winner[s].” Meade v. Lavigne, 265 F. Supp. 2d 849, 870
(E.D. Mich. 2003), aff’d, 104 F. App’x 461 (6th Cir. 2004). “A ‘dead-bang
winner’ is an issue which was obvious from the trial record . . . and one
which would have resulted in a reversal on appeal.” Id. (internal citations
and quotation marks omitted).
Petitioner’s post-conviction review claims were not dead-bang
winners, and so appellate counsel was not ineffective for failing to raise
them. Appellate counsel raised reasonable claims on direct appeal, the
first one of which still forms Petitioner’s lead claim. Moreover, for the
reasons stated by the trial court in rejecting Petitioner’s post-convictions
claims on the merits in the alternative, Petitioner has failed to show that
his procedurally defaulted claims have any merit, let alone that they
were “dead-bang winners.” Bason v. Yukins, 328 F. App’x. 323, 324 (6th
Cir. 2009). Petitioner has failed to demonstrate cause to excuse his
default.
As Petitioner’s claims lack merit or are barred from review, the
petition will be denied.

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IV. Certificate of Appealability
Before Petitioner may appeal this decision, the Court must
determine whether to issue a certificate of appealability. 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). To satisfy § 2253(c)(2),
Petitioner must show “that reasonable jurists could debate whether (or,
for that matter, 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, 484
(2000) (citation and internal quotation marks omitted).
The Court finds that reasonable jurists would not debate the
resolution of Petitioner’s claims because they are devoid of merit or
barred from review. The Court will therefore deny a certificate of
appealability.
If Petitioner chooses to appeal the Court’s decision, however, he
may proceed in forma pauperis because an appeal could be taken in good
faith. 28 U.S.C. § 1915(a)(3).

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V. Conclusion
Accordingly, the Court DENIES WITH PREJUDICE the petition
for a writ of habeas corpus, DENIES a certificate of appealability, and
GRANTS permission to appeal in forma pauperis.
SO ORDERED.

DATED April 30, 2019
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the parties of
record on this date, April 30, 2019, by electronic and/or ordinary mail.
S/A. Chubb
Case Manager and Deputy Clerk

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