Anderson v. Warren

Filing 20

OPINION and ORDER denying with prejudice 13 Amended Petition for Writ of Habeas Corpus, denying 19 motion for an evidentiary hearing, denying certificate of appealability and denying permission to appeal in forma pauperis. Signed by District Judge George Caram Steeh. (MLan)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TY-RON STEVEN ANDERSON,
Petitioner,
v.

Case No. 2:18-cv-11690
Hon. George Caram Steeh

MIKE BROWN, 1
Respondent.
____________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING MOTION FOR EVIDENTIARY
HEARING, (3) DENYING CERTIFICATE OF APPEALABILITY,
AND (4) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
Ty-Ron Steven Anderson filed this habeas case under 28 U.S.C. §
2254, challenging his Wayne Circuit Court jury trial conviction for firstdegree murder, MICH. COMP. LAWS § 750.316, felon in possession of a
firearm, MICH. COMP. LAWS § 750.224f, and possession of a firearm during
the commission of a felony, MICH. COMP. LAWS § 750.227b.
Anderson’s initial habeas petition contained four claims, one of which
he did not present to the state courts on direct appeal. The court stayed the
petition, giving Anderson the choice of either deleting his unexhausted

1

The Court substitutes Anderson’s current Warden as the proper Respondent. See
Edwards v. Johns, 450 F. Supp. 2d 755, 757 (E.D. Mich. 2006).

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claim or returning to state court to file for post-conviction review. (ECF No.
4.) Anderson chose to file for state post-conviction review. After he was
denied relief by the state courts, Anderson returned here and filed an
amended petition, a motion to reopen the case, and a motion to expand the
record. (ECF Nos. 10, 11, and 12.) Having now exhausted his state court
remedies, the court lifted the stay, denied the motion to expand the record
without prejudice, and directed Respondent to file a responsive pleading
and copies of the state court record. (ECF No. 14.) After Respondent filed
its answer and the state records, (ECF Nos. 17 and 18), Anderson filed a
motion for an evidentiary hearing which also serves as a reply brief. (ECF
No. 19.) The case is now ready for decision.
Because the claims raised by Anderson in his initial and amended
petitions are without merit, the court will deny habeas relief. The court will
also deny Anderson’s pending motion for evidentiary hearing, deny a
certificate of appealability, and deny leave to appeal in forma pauperis.
I.
The charges against Anderson involved allegations that he provided
an assault rifle and dark hoodie for co-defendant Mosby, knowing that
Mosby intended to shoot-up the home of his former girlfriend, Cochran.
Anderson also agreed to meet and drive Mosby away from the scene after
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the shooting. Cochran’s eight-year-old son was shot and killed during the
incident. The Michigan Court of Appeals summarized the evidence
presented at trial:
This appeal involves the murder of eight-year-old [J.P.], who
lived at 682 East in an area known as the Brewster Projects.
The prosecution’s theory of the case was that Mosby became
enraged after his ex-girlfriend, Samona Cochran, accused
Mosby of breaking into her home. Mosby, accompanied by 16year-old Devontae Starks, used a SKS rifle he received from
Anderson to shoot at Cochran’s home, killing [J.P.] as he slept
in his bed in the early morning hours of July 30, 2014. The
defendants were tried together before separate juries.
Cochran testified that she stopped seeing Mosby in April 2014,
three months before the shooting. At that time, Mosby told
Cochran that if he “couldn’t have me, nobody would.” He had
threatened to break out her windows and kill the people around
her, causing her to file a police report. Cochran returned home
from breakfast on July 29, 2014, to find that her home had been
broken into. She called the police, who located her property
under a nearby tree. When officers first arrived, Cochran did not
name Mosby as a possible suspect. But Mosby called her,
accusing her of telling the officers that he was responsible.
While Cochran had not mentioned Mosby’s name to police, she
had discussed him as a possible suspect with her neighbors.
After arguing with Mosby, Cochran went back out to where the
officers were and specifically mentioned Mosby. Mosby left
voicemails for Cochran that day. In one, he threatened to “blow
your f*****’ brains.”
Starks testified for the prosecution as part of a plea deal. He
testified that Mosby was a neighborhood tattoo artist. The two
of them had a “joint venture” whereby Starks would sell
marijuana to Mosby’s customers. Starks testified that he and a
friend were responsible for breaking into Cochran’s home.
Starks’s friend believed that Cochran had stolen some
marijuana from him. The two men stole various items and left
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them under a nearby tree. Starks ran into Mosby shortly after
the robbery and heard Mosby angrily say that Cochran had
accused him of the theft. Mosby threatened to kill Cochran. Two
neighbors testified that Mosby said that he would kill Cochran
and her son because she was accusing Mosby of breaking into
her home. Starks did not tell Mosby that he was the person who
broke into Cochran’s home because he was afraid that Mosby
would kill him.
Early in the afternoon of July 29, 2014, Starks and Mosby left
the neighborhood so that Mosby could tattoo Starks’s
girlfriend’s sister. Throughout the afternoon, Mosby remained
angry. When Mosby and Starks returned to the neighborhood
that evening, Mosby told Starks that the shooting of the house
was about to go down. Anderson arrived in a black Jeep with a
passenger. Anderson gave Mosby a dark hoodie and a semiautomatic rifle and agreed to meet Mosby and Starks after the
shooting. Mosby and Starks went to the rear of Cochran’s home
where [J.P.] slept. Mosby aimed the gun at the building and
Starks ran. Starks heard multiple gunshots.
After the shooting, Starks and Mosby ran to their prearranged
location, where Anderson was waiting in his Jeep. Eventually,
Anderson dropped off Mosby and Starks. Starks gave the gun
to Anderson’s passenger before he left. Mosby and Starks went
to Starks’s girlfriend’s house, where Mosby threatened to kill
Starks if he told anyone. Starks gave Mosby money for a bus
ticket and a different shirt. Mosby and Starks later were
arrested.
Police executed a search warrant at Anderson’s house and
found the SKS rifle that had been used to kill [J.P.] along with a
magazine and bullets. Police technicians determined that
Anderson was the seventh most frequent contact on Mosby’s
cell phone.
On the morning after the shooting, Mosby sent a text to
Anderson, “News report 8-year-old boy shot.” During his jail
calls, Anderson indicated that “the juv,” presumably Starks,
would be testifying and said, “one of them n****s is telling.” At
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trial, the officer in charge testified that Starks’ mother had been
moved, as she had received threats from the person who had
been the passenger in defendant’s Jeep.
People v. Anderson, No. 327732 & 328134, 2016 WL 6667951 at *1-2
(Mich. Ct. App. Nov. 10, 2016).
Following his conviction, Anderson filed a claim of appeal in the
Michigan Court of Appeals. His brief on appeal filed by his appellate
attorney the following claims:
I. The evidence was insufficient to find Mr. Anderson guilty
beyond a reasonable doubt of first-degree premeditated
murder, even given the prosecutor’s theory that he aided or
abetted Mr. Mosby, given the complete absence of evidence
that Mr. Anderson knew what Mr. Mosby intended to do, let
alone that he specifically intended the result of first-degree
murder.
II. The prosecutor committed reversible error by misstating the
law regarding the knowledge required of an aider or abetter and
by several appeals for justice for 8-year-old [J.P.].
III. Mr. Anderson was denied the effective assistance of counsel
under the standards set forth in Strickland v. Washington due to
counsel’s failure to ask that Sgt. Mackie’s 9 direct examination
be stricken and the jury told to disregard it because she could
not adequately cross-examine him, her failure to object to
evidence regarding threats against witness Devontae Starks’
mother attributed not to Mr. Anderson but to a person who was
affiliated only with him, her failure to object to the prosecutor’s
misstatements of law regarding aiding or abetting, and her
failure to object to the prosecutor’s appeals to the jurors for
justice for [J.P.].

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The Michigan Court of Appeals affirmed in an unpublished opinion.
Anderson, 2016 WL 6667951. Anderson filed an application for leave to
appeal in the Michigan Supreme Court, raising the same claims and an
additional allegation of ineffective assistance of counsel. The Michigan
Supreme Court denied the application by standard form order People v.
Anderson, 895 N.W. 525 (Mich. 2017)(Table).
As indicated above, after filing his initial federal habeas petition, the
present case was stayed, and Anderson returned to the state trial court and
filed a motion for relief from judgment. (ECF Nos. 18-14 and 18-17.) The
motion raised multiple allegations of ineffective assistance of counsel.
Anderson asserts that his counsel was ineffective for: (a) failing to move for
an evidentiary hearing during his direct appeal, (b) failing to object to the
trial court’s answer to a jury question during deliberations, (c) failing to
investigate and call Ron Sutton as a defense witness, (d) failing to retain an
expert witness, and (e) failing to move to sever the case from Mosby.
The trial court initially denied the motion by order dated October 30,
2019, finding that the claim was barred by res judicata. Anderson appealed,
and the Michigan Court of Appeals reversed and remanded because a
motion for relief from judgment is governed by Michigan Court Rule 6.500

6

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et seq. and res judicata does not apply to new claims raised in such
proceedings. (ECF No. 18-19, PageID.17-4.)
On remand, by order dated May 3, 2021, the trial court again denied
Anderson’s motion for relief from judgment, denying the claims on the
merits in addition to once again referring to res judicata. (ECF No. 18-15.)
The court found that Anderson had not demonstrated that his counsel was
ineffective or that he was prejudiced with respect to the new allegations of
deficient performance. (Id., PageID.2286-91.)
Anderson appealed, and the Court of Appeals affirmed, finding that
“notwithstanding the fact that the trial court again erroneously held that res
judicata precluded relief in this case, the trial court addressed the merits of
defendant’s claims and concluded that defendant had not established
entitlement to relief. Defendant has not established that, in evaluating the
merits of his claims, the trial court erred in denying the motion for relief from
judgment.” (ECF No. 18-20, PageID.2647.)
Anderson appealed this order, but the Michigan Supreme Court
denied leave to appeal because “the defendant has failed to meet the
burden of establishing entitlement to relief under Mich. C. R. 6.508(D).”
(ECF No. 18-22, PageID.2917.)

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As indicated, Anderson then filed his amended petition, raising four
allegations of ineffective assistance of counsel. (ECF No. 13.) The court as
well as Respondent interpret the amended petition to supplement rather
than replace the original petition. Anderson thus raises four claims for relief
in this action:
I. Insufficient evidence was presented at trial to prove that
Anderson possessed the requisite mental state for first-degree
murder under an aiding and abetting theory.
II. The prosecutor committed misconduct by misstating the law
regarding the mental state for aiding and abetting and by
attempting to elicit sympathy for the victim during closing
argument.
III. Anderson’s counsel was ineffective for: (a) failing to move to
strike the direct examination testimony of Officer Mackie, (b)
failing to object to testimony that a prosecution witness was
threatened, (c) failing to object to the misconduct of the
prosecutor at issue in Claim II, (d) failing to interview and call
Sutton as a defense witness, (e) failing to object to the court’s
answer to a jury note, (f) failing to move to sever Anderson’s
trial from Mosby’s, and (g) and appellate counsel was
ineffective for failing to raise sub-claims (d)-(f) on direct appeal.
IV. Anderson’s appellate counsel was ineffective for failing to
properly move for an evidentiary hearing during direct appeal.
II.
28 U.S.C. § 2254(d) curtails federal habeas review of state
convictions for claims adjudicated on the merits by state courts. A habeas

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petitioner must demonstrate that the state court adjudication was “contrary
to” or “involved an unreasonable application of” clearly established
Supreme Court law. Id. A decision is “contrary to” clearly established
Supreme Court law if the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law or if the state court
decides a case differently than the Supreme Court 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.
Under this standard, 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. “[A] state court’s determination
that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)).

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III.
A.
Anderson asserts in his first claim that constitutionally insufficient
evidence was presented at trial to establish that he possessed the
necessary mental state to be convicted under an aiding-and-abetting theory
of first-degree murder. After reciting the applicable constitutional standard
and the state-law requirements for aiding and abetting, the Michigan Court
of Appeals rejected the claim on the merits:
The prosecution presented sufficient evidence to convict
Anderson of first-degree murder. Anderson provided Mosby
with the murder weapon and also provided transportation after
the shooting. A reasonable jury could conclude that Anderson
disregarded the likelihood that the natural tendency of his acts
was to cause death. Clearly Anderson performed acts or gave
encouragement that assisted Mosby in [J.P.]’s murder.
Anderson, 2016 WL 6667951 at *2-4.
In light of the evidence presented at Anderson’s trial, this decision
reasonably applied the clearly established Supreme Court standard. The
standard asks “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.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Habeas relief is warranted on a
sufficiency of the evidence claim only if the state court’s application of this
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standard was unreasonable. See 28 U.S.C. § 2254(d)(2). The court may
not “reweigh the evidence or redetermine the credibility of the witnesses”
because such an assessment “is generally beyond the scope of federal
habeas review of sufficiency of evidence claims.” Matthews v. Abramajtys,
319 F.3d 780, 788 (6th Cir. 2003).
Under Michigan law, to obtain a conviction of first-degree
premeditated murder the prosecution must prove that the defendant
intentionally killed the victim and that the killing was premeditated and
deliberate. People v. Anderson, 209 Mich. App. 527, 537 (1995). To
support a finding under Michigan law that a defendant aided and abetted in
the commission of a crime, the prosecutor must prove that:
1. the crime charged was committed by the defendant or some
other person;
2. the defendant performed acts or gave encouragement that
assisted the commission of the crime; and
3. the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the
time he gave aid and encouragement.
Riley v. Berghuis, 481 F. 3d 315, 322 (6th Cir. 2007)(citing People v.
Carines, 460 Mich. 750, 757-58 (1999)).
There is also an alternative way for a prosecutor to satisfy the third
element. A defendant possesses the requisite mental state for aiding and
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abetting where the criminal act committed by the principal is an “‘incidental
consequence[] which might reasonably be expected to result from the
intended wrong.’” People v. Robinson, 475 Mich. 1, 9 (2006)(quoting
Perkins, Criminal Law (3d ed.), pp. 741-43, 745). Thus, under an aidingand-abetting theory, a defendant must possess the criminal intent to aid,
abet, procure, or counsel the commission of an offense. Besides that
offense, a defendant is also criminally liable for crimes that are the natural
and probable consequences of the offense he intends to aid or abet. Id., at
15. Moreover, an aider and abettor’s state of mind may be inferred from all
of the facts and circumstances, including close association between the
defendant and the principal, the defendant’s participation in the planning
and execution of the crime, and evidence of flight after the crime. People v.
Turner, 213 Mich. App. 558, 568-69 (1995).
Here, evidence was presented at trail indicating that Mosby told
several people that he intended to murder Cochran and her son. He left a
voicemail for Cochran that he’d “blow your fuckin’ brains.” Tr. 4-15-15, at
10. He told another witness that “he was gonna kill her and her son.” Id. at
12. He told yet another witness that he was going to kill her and anyone
else in her house. Id. at 14-15, 151. He told a third person he was “gonna
kill this bitch.” 4-16-15, at 14. The evidence also indicated that Mosby was
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in contact with Anderson by phone and text message the day he made
these threats and the day of the murder.
The evidence further indicated that Anderson brought Mosby the
murder weapon, an assault rifle, and it was later found at Anderson’s
house. Anderson also had access to a less powerful handgun, but he leant
Mosby the more powerful and penetrating assault rifle. He also provided
Mosby with a dark colored hoodie to wear and a ride away from the scene
after the shooting. Before the shooting, there was an exchange of text
messages between Mosby and Anderson, with Anderson texting “Whatsup
B,” and Mosby replying, “We got problems.” Mosby texted for Anderson to
call him, and at some point he texted, “You left yet?” and Anderson
answered, “Indeed.” Tr. 4-17-15, at 111-112; Tr. 4-16-15, at 192-221; Tr. 421-15, at 104.
Anderson also made incriminating statements from jail. He told one
witness that the “juv,” which viewed most favorably to the prosecution was
a reference to Starks, was going to testify against them. Tr. 4-21-15, at
118-20. He was also recorded telling his wife not to say anything to anyone
and suggesting that as his wife, she could not be forced to testify against
him. Id. at 123-124.

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Taken together and viewed most favorably to the prosecution as the
established Supreme Court standard directs, sufficient evidence was
presented at trial to demonstrate beyond a reasonable doubt that Anderson
had the requisite mental state to aid and abet Mosby in committing firstdegree murder. Viewed most favorable to the prosecution, the evidence
indicated that Mosby was not discrete about his intentions. He told multiple
people that he was angry with Cochran and intended to kill her and her
son. The evidence that Anderson provided him with a powerful assault rifle
and dark hoodie after phone calls and text messages, and that he stayed in
the area to give Mosby and Starks a ride from the scene after the shooting,
constituted powerful circumstantial evidence that Mosby also told Anderson
that he planned to shoot up Cochran’s house. Given the evidence
presented, a rational juror could find beyond a reasonable doubt that, at a
minimum, Anderson knew that Mosby intended to shoot up Cochran’s
residence and that a natural and probable consequence of his actions was
that someone would be shot to death. The rejection of the claim by the
Michigan Court of Appeals was not unreasonable. Anderson fails to
demonstrate entitlement to habeas relief with respect to this claim.
B

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Anderson’s second claim asserts that the prosecutor rendered his
trial fundamentally unfair during closing argument by mischaracterizing the
mental state required for an aiding and abetting theory and by attempting to
elicit sympathy for the victim.
With respect to the first allegation regarding misstating the element,
the Michigan Court of Appeals rejected the claim on the merits as follows:
… During closing arguments, the prosecutor argued:
Now, Mr. Anderson. Mr. Anderson’s jury
you’re gonna get an instruction on aiding and
abetting. Did Anderson assist Mr. Mosby in any
way? You need to think about whether or not what
Mr. Mosby did was first-degree murder or seconddegree murder, because whatever Mr. Mosby did, is
what Mr. Anderson did, if he helped Mr. Mosby do it,
okay.
Now, this case I want you to look at this aiding
and abetting instruction. Okay. Anyone who
intentionally assists someone else who [sic]
committing a crime is guilty as the person who
directly commits it, and can be convicted of the
crime as an aider and abetter. To prove this charge,
we have to prove the following beyond a reasonable
doubt.
First, that the alleged crime was actually
committed, either by the defendant or someone
else. It doesn’t matter whether anyone else has
been convicted of that crime. Second, that before or
during the crime the defendant did something to
assist in the commission of the crime. Okay, we
have before and during in this case. We have Mr.
Anderson speaking with Mr. Mosby as of noon that
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day, remember that text? That text [“]we got
problems[“] that Mr. Mosby sends to Mr. Anderson.
This is around the same time that Mr. Mosby
is walking around the neighborhood threatening to
kill Samona and everybody else, threatening to kill
Samona, threatening to kill Samona and her son.
They continue to stay in contact and it’s not until Mr.
Anderson gets off work that he goes all the way
back to his house in Warren and directly back down
with the gun in this case, okay. So when we’re
talking about assisting, we’re talking about providing
the SKS assault rifle, providing that piece of clothing
to cover up it [sic], and providing him with a ride.
Third, that the time the defendant must have
intended the commission of the crime alleged, or
must have known that the other person intended its
commission, or that the crime alleged was a natural
and probable consequence of the commission of
the crime intended.
What does this mean? For the Anderson jury,
whatever Mr. Mosby does in for a penny, in for a
pound, Mr. Anderson is guilty of it. If Mr. Anderson,
if you want to give him all the benefit of the doubt in
the world, all the benefit of the doubt, and you think
that he just provided a gun to Mr. Mosby to shoot up
that house, what’s the natural probable
consequence of using an SKS assault rifle to shoot
up a house? That somebody’s gonna get hurt or
killed.
So you’ve got to think about what Mr. Mosby
intended. Whatever he intends transfers onto Mr.
Anderson if he’s helping him in anyway [sic]. But
even if you wanna give him any kind of benefit of
the doubt, there’s this language that you have to
consider also, the natural and probable
consequences of Mr. Anderson’s actions.
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***
When you think about the intent in this case,
this wasn’t like Mr. Anderson just brought a rifle
from around the block. It wasn’t an easy feat. He
actually had to drive many miles after
communicating with Mr. Mosby to go get that rifle.
And again, he had a choice. He could have brought
the .9 millimeter, but he brought the SKS assault
rifle. Why? Because that’s what Mosby wanted him
to do and he was more than happy to help.
What does an assault rifle do? Cuts through
walls. Mr. Mosby complained all day about wanting
to kill that bitch and her son. You think he didn’t tell
Mr. Anderson that? Why else would Mr. Anderson
go get the assault rifle? He provided it to Mosby, he
provided clothing to Mr. Mosby, and he provided the
ride. He’s an aider and abettor and he intended to
help Mr. Mosby do what he went there to do that
night.
Defense counsel took exception and argued to the jury
that Anderson had no knowledge of what Mosby intended to do
with the rifle:
But what is most important here is whether
Mr. Anderson had knowledge of any intent to
commit a crime, to commit a killing or a shooting at
all, and I submit to you at the outset that that
evidence is going to fail because it’s not there.
Excuse me.
Now, you also will be dealing with the felony
firearm and felon in possession charges. I am not
gonna waste a whole lot of time. The Eastwood
address is an address associated with Mr.
Anderson. His wife apparently lives there. The
police tell us he is coming out of that residence.
There are bills there in his name. There is clothing
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there that they say is Mr. Anderson’s. I think that
you can deal with that as you should.
My issue, and we take great exception, is with
the murder charge. Whether you believe that the
murder was premeditated or second-degree
murder, what is at the heart of the matter is whether
Mr. Anderson knew what was going to happen.
Whether Mr. Anderson assisted with the intent of
the killing knowing the intent of the shooter.
That is what aiding and abetting requires, is
that there be proof beyond a reasonable doubt that
he intentionally assisted before or during the killing
of [J.P.] And that he intended the killing or that he
knew that the shooter intended the killing himself.
***
But on this day, you hold Mr. Anderson’s fate
in your hand. You’re the finders of the facts. You’re
the judges of the facts. We ask that you do justice
and justice demands in this case that certainly as to
the murder charges, there is no proof beyond a
reasonable doubt of his knowledge, of his intent that
there be a killing or a shooting at that home, or that
he had knowledge before the crime that that was
going to be committed, or that he provided a
weapon for that to be done, it just does not exist on
this record. And so we ask you to do justice again.
In response, the prosecutor argued during rebuttal:
Mr. Anderson, oh he intended for Mr. Mosby
to do what he did. He intended to give him that rifle
to shoot up that house. This wasn’t a scare tactic.
He had a choice between guns. He also had several
choices to make, and he made the wrong one every
time. But again, it matters what Mr. Mosby intended.
What did Mr. Mosby intend? And for [sic] penny, in
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for a pound, Mr. Anderson helps him, he’s just as
guilty.
“Prosecutorial comments must be read as a whole and
evaluated in light of defense arguments and the relationship
they bear to the evidence admitted at trial.” People v. Brown,
279 Mich. App. 116, 135 (2008). It is clear that the prosecutor
was responding to Anderson’s argument that lack of knowledge
absolved him of any wrong-doing. Pointing to the evidence in
the record, the prosecutor mapped out Anderson’s knowledge.
She did not argue that lack of knowledge was irrelevant; rather,
she argued that the evidence clearly supported a finding that
Anderson acted purposefully and with full knowledge of the
natural and probable consequences of his conduct.
Additionally, the trial court properly instructed the jury on
the law of aiding and abetting and further instructed the jury:
“The lawyers’ statements and arguments and any commentary
are not evidence. They are only meant to help you understand
the evidence in each side’s legal theories. You should only
accept things the lawyers say that are supported by the
evidence or by your own common [ ] sense and general
knowledge.” Therefore, even if anything that the prosecutor
said could be construed as a misstatement of law, the jury was
correctly instructed.
Anderson, 2016 WL 6667951, at *5-8.
A prosecutor’s misconduct violates a criminal defendant’s
constitutional rights if it “‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” Darden v. Wainwright, 477
U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). Prosecutorial misconduct entails much more than conduct that is
“undesirable or even universally condemned.” Id. at 181 (internal quotation
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omitted). To constitute a due process violation, the conduct must have
been “so egregious so as to render the entire trial fundamentally unfair.”
Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000) (citations omitted).
The Darden standard “is a very general one, leaving courts ‘more
leeway ... in reaching outcomes in case-by-case determinations.’” Parker v.
Matthews, 567 U.S. 37, 48 (2012)(quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)(alteration in original). “That leeway increases in
assessing a state court’s ruling under AEDPA,” because the court “‘cannot
set aside a state court’s conclusion on a federal prosecutorial-misconduct
claim unless a petitioner cites ... other Supreme Court precedent that
shows the state court’s determination in a particular factual context was
unreasonable.’” Stewart v. Trierweiler, 867 F.3d 633, 638-39 (6th Cir.
2017)(quoting Trimble v. Bobby, 804 F.3d 767, 783 (6th Cir. 2015)).
The Michigan Court of Appeals reasonably rejected the claim. The
prosecutor suggested during closing argument that Anderson knew of
Mosley’s intent to murder Cochran and/or her son, but in the alternative,
she asserted that if they chose to give Anderson “the benefit of the doubt,”
he nevertheless at least knew that murder was a natural and probable
consequence of giving someone an assault rifle to shoot up a house. In
response, defense counsel ignored this alternative mental state for aiding
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and abetting and asserted that because there was no evidence that
Anderson knew Mosley was going to commit murder, the jury must acquit
him. It was in reply to this argument that the prosecutor used the phrase “in
for a penny, in for a pound,” to suggest that it did not matter if Anderson
knew Mosely intended to commit murder. While the prosecutor in her reply
did not explicitly mention the natural-and-probable-consequences
alternative, in the context of the exchange, it was clear she was responding
to defense counsel’s failure to address that alternative.
Moreover, the trial court’s proper instruction on the elements of aiding
an abetting rendered any alleged omissions or imprecision by the
prosecutor concerning the required mental state harmless. See United
States v. Deitz, 577 F. 3d 672, 696-97 (6th Cir. 2009). In light of the record
and the very general standard governing claims of prosecutorial
misconduct, the state court adjudication of this claim was reasonable.
With respect eliciting sympathy for the victim, the Court of Appeals
rejected the claim on the merits as follows:
Anderson next argues that the prosecutor improperly
appealed to the jury’s sympathy when she asked for justice for
[J.P.] in the following instances:
I’m gonna have one more chance to address
the Mosby jury in this case, when I do, I’m gonna
ask for justice—for justice for [J.P.]. No child should
be unsafe sleeping in their own bed. What Mr.
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Mosby did, it was deliberate, it was intentional. He
killed that little boy. He did it on purpose. I’m gonna
ask you to find him guilty when you return.
***
Under the cover of darkness, kill a woman and
her child. I’m gonna have another chance to
address you all, so when I do, I’m gonna ask for
justice for [J.P.] and I’m gonna ask that you return a
verdict guilty on all counts.
***
What happen[ed] to [J.P.], shouldn’t happen.
No child should be sleeping in their bed, minding
their own business and murdered in their sleep. Ms.
Cochran didn’t deserve this. [J.P.] didn’t deserve
this.
***
There are no do-overs with a trial. This is it
[J.P.], he gets justice from me, from you, or does he
get it? I’m gonna ask you to go back and do the
work, and that you return a verdict of guilty on all
counts.
“The prosecutor may not inject issues into a trial that are
broader than the defendant’s guilt or innocence. The prosecutor
commits misconduct when he or she invites jurors to suspend
their powers of judgment and decide the case on the basis of
sympathy or civic duty.” People v. Lane, 308 Mich. App. 38, 66
(2014). “A prosecutor may not appeal to the jury to sympathize
with the victim. Nor may a prosecutor urge the jury to convict as
part of its civic duty or on the basis of its prejudices.” Unger,
278 Mich. App. at 237. The issue is whether the prosecutor’s
comments deflected the jury’s attention from the evidence of
the case. Id. The prosecutor was not asking the jury to convict
Anderson so that someone could be held accountable for his
death and the family could have a measure of justice; instead,
the prosecutor clearly argued that, in light of all the evidence
presented at trial, Anderson was guilty and his conviction would
be just. Anderson, 2016 WL 6667951 at *8.
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Anderson, 2018 WL 4165246, at *6-8 (footnotes omitted).
This decision was not contrary to, nor did it involve an unreasonable
application of, clearly established Supreme Court law. It is well settled that
a prosecutor may not make remarks “calculated to incite the passions and
prejudice of the jurors,” United States v. Solivan, 937 F.2d 1146, 1151 (6th
Cir. 1991), or to encourage them to decide a case based upon their
feelings instead of the evidence. Johnson v. Bell, 525 F.3d 488, 484 (6th
Cir. 2008).
Here, it was reasonable for the Michigan Court of Appeals to find that
the remarks did not rise to the level of comments designed to incite
prejudice in the jury. See Puertas v. Overton, 168 F. App’x. 689, 701 (6th
Cir. 2006). The prosecutor’s comment about seeking justice for the young
victim and that he and his mother did not deserve what happened to them
could reasonably be viewed to be connected to the prosecutor’s main
theme that the evidence presented at trial proved Anderson’s guilt and that
justice, therefore, demanded a guilty verdict. The complained-of parts of
the argument were a minor aspect of an otherwise proper argument. At a
minimum, “fairminded jurists could disagree” whether the remarks crossed
the line, and as such, this court must defer to the state court decision.
Harrington, 562 U.S. at 101.
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Anderson fails to demonstrate entitlement to relief based on his
second claim.
C
Anderson’s third and fourth claims raise several allegations of
ineffective assistance of trial and appellate counsel. A few of the allegations
were raised on direct review and rejected on the merits by the Court of
Appeals, and the remaining allegations were raised in Anderson’s motion
for relief from judgment and rejected on the merits by the trial court. The
court will address the allegations separately.
1.
Anderson first argues that his trial counsel failed to move to strike
Sargent Mackie’s direct examination testimony when Mackie testified that
he did not recall everything Anderson said during his police interview after
Mackie failed to watch the videotape of the interview, thus depriving
Anderson of the opportunity to cross-examine Mackie about the interview.
The Court of Appeals considered and rejected the claim on the merits on
direct appeal:
Sergeant Samuel Mackie interviewed Anderson for six
hours. Although the interview was videotaped, the video was
not played for the jury because of the references to Anderson’s
parolee status at the time of the crime. At trial, Mackie testified
that defendant denied knowing anyone associated with the
case. On cross-examination, Mackie admitted that he could not
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recall everything and said that he was under the impression
that the videotape would be played for the jury. The trial court
asked, but did not order, Mackie to review the tape and resume
his testimony the following day.
Contrary to Anderson’s contention on appeal, Mackie did,
in fact, view the video. When trial began the following day,
defense counsel asked:
Q. Sergeant Mackie, on yesterday the judge asked
you to review the videotape of the interview. Did you
do that?
A. I did.
Defense counsel only asked a few questions. The trial
court later noted its dismay: “We sent the jury home, we
brought this witness back today only to have you ask him three
questions, which I mean it was really much to do [sic] about
nothing.” There was, therefore, no basis for counsel to ask that
Mackie’s testimony be stricken. “Counsel is not required to
raise meritless or futile objections.” People v. Eisen, 296 Mich.
App. 326, 329 (2012).
Anderson, 2016 WL 6667951, at *11-12.
The Sixth Amendment to the United States Constitution guarantees a
criminal defendant the right to the effective assistance of counsel. In
Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme
Court set forth a two-prong test for determining whether a habeas petitioner
has received the ineffective assistance of trial counsel. First, a petitioner
must prove that counsel’s performance was deficient. This requires a
showing that counsel made errors so serious that he or she was not
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functioning as counsel guaranteed by the Sixth Amendment. Strickland,
466 U.S. at 687. Second, a petitioner must establish that counsel’s
deficient performance prejudiced the defense. Counsel’s errors must have
been so serious that they deprived the petitioner of a fair proceeding. Id.
To satisfy the performance prong, a petitioner must identify acts that
were “outside the wide range of professionally competent assistance.” Id. at
690. A reviewing court’s scrutiny of counsel’s performance is highly
deferential. Id. at 689. There is a strong presumption that counsel rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. Id. at 690. The petitioner bears the
burden of overcoming the presumption that the challenged actions were
sound strategy.
As to the prejudice prong, a petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. A
reasonable probability is one that is sufficient to undermine confidence in
the outcome of the proceeding. Id. “On balance, the benchmark for judging
any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the

26

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[proceeding] cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
The Supreme Court has confirmed that a federal court’s
consideration of ineffective assistance of counsel claims arising from state
criminal proceedings is quite limited on habeas review due to the deference
accorded trial attorneys and state appellate courts reviewing their
performance. “The standards created by Strickland and § 2254(d) are both
‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’
so.” Harrington, 562 U.S. at 105 (internal and end citations omitted). “When
§ 2254(d) applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id.
The state court did not unreasonably apply this standard to
Anderson’s first allegation of ineffective assistance of counsel because the
record undermines the factual basis for the claim.
Sgt. Mackie testified on direct examination about taking a lengthy
statement from Anderson. Tr. 4-20-15, at 115-121. He indicated that the
interview was videotaped. Id. at 122. On cross-examination, Mackie
answered a number of questions about the statement, but he testified that
he could not recall whether Anderson made a certain response to one of
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the questions. When pressed by defense counsel, “Have you had an
opportunity to review the video before coming to testify?” Mackie
answered, “No, I was under the impression that it was just getting played to
the jury, and I was [not] gonna be asked all these questions.” Id. at 123-25.
The jury was then excused, and after an extended discussion, the
court asked Mackie to watch the videotape so he could answer defense
counsel’s questions. Id. at 125-129. The court adjourned for the day with
cross-examination to resume the following morning. When trial resumed,
defense counsel asked Mackie if he had reviewed the videotape as asked,
and Mackie answered, “I did.” Tr. 4-21-15, at 6. Defense counsel then
asked only a few more questions of Mackie. Id. at 6-7. This prompted the
frustrated response from the trial court about time having been wasted by
defense counsel where it turned out he did not have much more to ask
Mackie about the interview.
Contrary to Anderson’s allegation, his counsel was not prevented
from questioning Mackie about the interview. While Mackie had not
reviewed the video on the first day of cross-examination, at the direction of
the court he watched it the evening before his second day of testimony. It
was defense counsel who then chose to limit questioning on the second
day. Nothing in the record, therefore, suggests a basis for moving to strike
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Mackie’s direct examination testimony. The record reasonably supports the
decision of the state court.
2.
Anderson next asserts that his trial counsel failed to object to the
presentation of evidence that Sparks’ family members were threatened.
The Michigan Court of Appeals likewise rejected this claim on the merits on
direct appeal:
Anderson next argues that defense counsel was
ineffective for failing to object to testimony regarding threats to
Starks’s family. Starks’s mother and brother both received
threats and his mother was ultimately relocated. Starks
believed these threats came from “Titi,” who was Anderson’s
passenger on the night of the shooting. Evidence of threats
against a witness must be linked to the defendant if the
evidence is offered to show the defendant’s consciousness of
guilt. People v. Sholl, 453 Mich. 730, 740 (1996). A jury could
infer that Titi was a passenger in Anderson’s car when the
shooting occurred and was acting on Anderson’s behalf when
the alleged threats were made. Evidence that a witness was
threatened by someone other than the defendant is also
admissible for its relevance to the witness’s credibility to explain
a reluctance to testify, or to explain prior inconsistent
statements of the witness. People v. Johnson, 174 Mich. App.
108, 112 (1989); People v. Clark, 124 Mich. App. 410, 412-413
(1983). Even if Anderson’s attorney should have objected,
Anderson fails to show prejudice in light of the overwhelming
evidence against Anderson.
Anderson, 2016 WL 6667951, at *12.
The claim was reasonably decided. First, the state court found the
evidence of the threats was admissible because “Titi” was someone the
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evidence indicated was connected to Anderson as being a passenger in
Anderson’s vehicle at the time of the offense. Federal habeas courts “‘must
defer to a state court’s interpretation of its own rules of evidence and
procedure’ when assessing a habeas petition.” Miskel v. Karnes, 397 F.3d
446, 453 (6th Cir. 2005)(quoting Allen v. Morris, 845 F.2d 610, 614 (6th Cir.
1988)). The state court determination that the evidence was admissible
under Michigan law must be deferred to here in resolving petitioner’s
ineffective assistance of trial counsel claim. See Brooks v. Anderson, 292
F. App’x 431, 437-38 (6th Cir. 2008). Because this Court cannot logically
grant the writ based on ineffective assistance of counsel without
determining that the state court erred in its interpretation of its own law, the
Court must reject the allegation. See Davis v. Straub, 430 F.3d 281, 291
(6th Cir. 2005).
Moreover, the state court reasonable found that Anderson could not
demonstrate prejudice. No suggestion was made at trial by either the
witnesses or the prosecutor that Anderson had anything to do with the
threats. A police officer testified that he was never able to identify the
person making the threats. Tr. 4-21-15, at 91-92. In the absence of an
argument or inference that Anderson threatened the witnesses or that they
were threatened at his direction, Anderson cannot show that his counsel’s
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failure to object resulted in Strickland prejudice. The state court reasonably
rejected the allegation.
3.
Anderson asserts in his third and fourth allegations that his counsel
was ineffective for failing to object to the misconduct of the prosecutor
referred to above. Because those claims are without merit, counsel was not
ineffective for failing to raise objections to the comments. See Coley v.
Bagley, 706 F.3d 741, 752 (6th Cir. 2013)(“Omitting meritless arguments is
neither professionally unreasonable nor prejudicial.”)
4.
Anderson first presented the state courts with his next allegation of
ineffective assistance on post-conviction review. Anderson argues that his
counsel was ineffective for failing to investigate and call “Titi” as a defense
witness, who for the first time in court proceedings he revealed to be
someone named Ronald Sutton.2 Besides erroneously invoking res judicata
as grounds for rejecting the claim, the trial court also found that the claim
was without merit:

2

It is not clear that Anderson is raising his failure to call a defense cell-phone expert
claim in this action. If he is, he cannot demonstrate entitlement to relief because he
never proffered the state court nor this court with any evidence of a defense expert’s
proposed testimony. Burt v. Titlow, 571 U. S. 12, 23 (2013); Dunn v. Reeves, 141 S. Ct.
2405, 2407 (2021).
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The court is further unconvinced that the lack of testimony from
Ronald Sutton or an expert witness would have in any way
impacted the outcome of trial and finds no error in trial
counsel[‘]s decision not to pursue the testimony of either.
Defendant has not shown there is a reasonable probability that
had counsel presented the testimony of Ronald Sutton or an
expert witness, the outcome would have been different.
(ECF No. 18-15, PageID.2288.)
The claim was then presented to the Court of Appeals, which found
that the trial court correctly rejected Anderson’s claims on the merits:
[N]otwithstanding the fact that the trial court again erroneously
held that res judicata precluded relief in this case, the trial court
addressed the merits of defendant’s claims and concluded that
defendant had not established entitlement to relief. Defendant
has not established that, in evaluating the merits of his claims,
the trial court erred in denying the motion for relief from
judgment.
(ECF No. 18-20, PageID.2647.)
The determination that Anderson failed to demonstrate Strickland
prejudice was not objectively unreasonable. Anderson submitted an
affidavit to the trial court from Ronald Sutton, referred to at trial as “Titi,”
which was executed on Jul 23, 2018, several years after trial. Sutton states
that he was with Anderson on the night of the shooting. Sutton says that he
saw Anderson with Mosby and Starks, but contrary to Starks’ testimony,
Anderson purchased an assault rifle from Mosby, and then he was with
them when Anderson purchased ammunition at a gas station. Sutton did
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not see Anderson give a weapon and hoodie to Mosby, and Anderson
never agreed to wait for Mosby and Starks and drive them from the scene
of a shooting. Sutton says he was never contacted by Anderson’s attorney
and was willing to testify to his account at trial. (ECF No. 13, PageID.179.)
Anderson also submitted his own affidavit stating that he informed his
counsel about Sutton, but his counsel never contacted Sutton. (ECF No.
12, PageID.147.)3
Neither the state trial court nor the court of appeals explained the
rationale for their decision that the claim was without merit. In such
circumstances, pursuant to § 2254(d), “a habeas court must determine
what arguments or theories supported or ... could have supported, the state
court’s decision; and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision” of the Supreme Court. Harrington, 562 U.S.
at 101 (emphasis added).
There are arguments or theories for which there would be fairminded
disagreement whether the state court decisions are consistent with

3

Anderson filed a motion in this action for the Court to consider his and Sutton’s
affidavits. (ECF No. 12.) Because the affidavits were submitted to the state court and
apparently accepted by them, they will also be considered here as part of the record in
determining whether the state court adjudication was reasonable.
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Strickland. First, whereas Sutton’s affidavit contains a brief exculpatory
account, the evidence presented at trial against Anderson was quite strong
and is difficult to square with Sutton’s version of events.
Mosby was vocal about his intentions to kill everyone in Cochran’s
house to several witnesses. Text messages between Mosby and Anderson
strongly suggest that Anderson was aware of Mosby’s anger and what he
threatened to do. This occurred earlier in the day before Sutton claims
Mosby sold Anderson the rifle and went with him to purchase ammunition.
This odd sequencing proposed by Sutton’s affidavit is unexplained and
difficult to reconcile with Mosby having already shot up Cochran’s
residence. Because the rifle found at Anderson’s residence was the one
used in the murder, Anderson must now be claiming through Sutton’s
affidavit that he purchased the rifle after the shooting.
But if Sutton is to be believed, Anderson would have known either
immediately after the shooting or sometime later that Mosby had tricked
him into buying a murder weapon and the same type of ammunition used
during the shooting. Yet Anderson failed to raise that claim with police
during his lengthy interview. In fact, after initially denying that he knew
Mosby at all, Anderson told police that if the assault rifle and ammunition
found at his residence were used in the murder, that Mosby must have
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snuck in and put them there. Tr. 4-20-2015, at 136-37. This is far different
from Sutton’s claim that Mosby sold Anderson a rifle at or near the scene of
the shooting, an account that nevertheless placed Anderson at the location
and time of the murder. In other words, Sutton’s brief account does not
even square with what Anderson told police. Nor would have it been easy
for Anderson to reconcile a claim that he purchased a murder weapon with
the timing and contents of the text messages between himself and Mosby.
In light of the record evidence, there could at least be fairminded
disagreement between reasonable jurists whether the content of Sutton’s
affidavit demonstrates Strickland prejudice.
It is also noteworthy that Sutton did not execute the affidavit until
2018, several years after trial. Though Sutton says defense counsel never
contacted him, he does not explain why he failed to call counsel, or why he
failed to go police upon hearing that Anderson had been sold a murder
weapon and was falsely accused of murder. Certainly, police investigators
were keen on locating and interviewing “Titi” prior to trial as one of the
people who was with Mosby, Anderson, and Starks when the weapon was
exchanged. But officers were unable to identify “Titi” as Sutton. Tr. 4-212015, at 93-94. Sutton does not explain why he sat on what Anderson
claims is exonerating information before trial, during trial, and then for years
35

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afterwards. Long-delayed affidavits like these which seek to exonerate a
habeas petitioner are “treated with a fair degree of skepticism.” Herrera v.
Collins, 506 U.S. 390, 423 (1993). Indeed, claims “based solely upon
affidavits are disfavored because the affiants’ statements are obtained
without the benefit of cross-examination and an opportunity to make
credibility determinations.” Id. at 417.
The court concludes that fairminded jurists could disagree on how to
resolve this claim under Strickland. Accordingly, Anderson fails to
demonstrate entitlement to relief.
5.
Anderson asserts that his counsel was ineffective for failing to object
to the trial court’s one-word answer to a jury note. The trial court found that
the record suggested that defense counsel did not object to the answer as
a matter of strategy:
Defendant has failed to establish that there was a clear
error in the answer to the jury question provided by this Court.
As the transcript reflects the answer provided to the jury at
issue in this motion was drafted by stipulation of both the
Prosecution and the Defense.
THE COURT: I’ve received a note from the jury, and
this note came about thirty minutes ago. And it
says, are we basing our aiding and abetting
decision on Anderson on what we believe Mosby is
guilty of? I found this question to be quite
perplexing. [B]ut the attorneys did not, and they
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propose that I send them back a note that simply
says, y-e-s, yes. That’s what you all want me to do?
MS. POWELL-HOROWITZ: Yes, because –
THE COURT: All right.
MS. PETERSON: Your Honor, could the Court
share with me your perplexity?
THE COURT: I mean, what else could they think
they’re here for?
MS. PETERSON: Oh, okay.
THE COURT: I mean it’s like. It’s like for them to
send a note like this causes me to question, if they
understand what they’ve been doing here for the
past three weeks.
MS. PETERSON: Okay.
THE COURT: I mean, it’s been very clear that the
prosecution’s theory of this case is that Mr. Anderson
aided and abetted Mr. Mosby, who actually did a
shooting. So, I mean I don’t understand. I mean this
question is like asking are we supposed to be
deciding if water is wet.
MS. PETERSON: Gotcha. Okay.
THE COURT: That’s all.
MS. PETERSON: Very well, yes.
THE COURT: So, I will simply send them a note
that says, yes.
MS. PETERSON: Thank you.
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The transcript reflects that the Court went on the record
with the question presented by the jury and the proposed
answer by trial counsel thirty minutes after the note was
received from the jury. This indicates that both the Prosecution
and the Defense were given an opportunity to discuss the jury
question and given an opportunity to discuss the jury question
and come to their own decision about how to best answer the
inquiry of the jurors. Trial counsel for the Defendant, Angela
Peterson, did not fail to object to the answer provided by the
jury because she in fact played a direct role in drafting the
response. Her decision to answer the jurors[‘] question with
only one word yes appears to have been a matter of her trial
strategy. As such Defendant as failed to meet the burden to
overcome the presumption that defense counsel’s actions were
based on sound trial strategy.
(ECF No. 18-15, PageID.2288.)
This decision was reasonable. The question by the jury was terse and
open to interpretation. The attorneys apparently interpreted it to simply ask
whether the aiding-and-abetting charge against Anderson had to relate to
Mosby’s crime, to which the trial court expressed some exasperation and
agreed with the attorneys’ proposed one-word answer, “yes.” Anderson
suggests that the question could also be read more broadly, and the jury
was asking whether it could find Anderson guilty solely because they
believed Mosby was guilty.
The jury, however, had already been properly instructed on all the
elements of aiding and abetting. Tr. 4-22-2015, at 141-42. By confirming
the obvious point that the aiding and abetting charge related to Mosby’s
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crime, defense avoided – perhaps as a matter of strategy – another
instruction that the mens rea for aiding and abetting is satisfied by a mere
finding that murder was a natural and probable consequence of the aid
Anderson provided to Mosby.
Strickland directs reviewing courts to presume that counsel made
reasonable strategic decisions. The record shows that neither attorney was
perplexed by the note, and they jointly requested the simply affirmative
answer. While a more cautious attorney might prefer a detailed answer that
ensured the jury correctly understood the mens rea requirements for aiding
and abetting, counsel’s strategy of avoiding a second reading of the
instructions “need not be particularly intelligent or even one most lawyers
would adopt.” Cone v. Bell, 243 F.3d 961, 978 (6th Cir. 2001), rev’d on
other grounds, 535 U.S. 685 (2002). “Strategic choices by counsel, while
not necessarily those a federal judge in hindsight might make, do not rise to
the level of a Sixth Amendment violation.” McMeans v. Brigano, 228 F.3d
674, 682 (6th Cir. 2000). The rejection of this claim by the trial court was
not unreasonable.
6.
Anderson next asserts that his trial counsel failed to move to sever
his trial from Mosby’s. The trial court rejected the claim on the merits:
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Additionally, Defendant’s argument that trial counsel was
ineffective for failure to sever his trial from that of the
Codefendant is wholly without merit. In this case the
Prosecution filed a motion to consolidate citing judicial
economy. After hearing from the parties on the matter, including
objections raised by the defense, the Court granted the motion
to consolidate but provided each Defendant his own jury. The
jurors were kept separate at all times when court as not in
session and when appropriate during trial, the Defendant’s jury
was excused to avoid exposure to any arguments and or
evidence that was limitedly admissibly only for the
Codefendant. Accordingly, trial counsel cannot be said to be
ineffective for objections that were in fact raised. Additionally as
Defendant fails to satisfy the prejudice component, the court will
not consider whether Defendant would satisfy the performance
component of his ineffectiveness claim. See Strickland, 466
U.S. at 697 (stating court need not address both components of
ineffectiveness claim if defendant makes an insufficient
showing of one).
(ECF No. 18-15, PageID.2289.)
This decision was reasonable. Though Anderson was tried jointly with
Mosby, the two defendants had separate juries. Furthermore, Anderson’s
jury was not present in the courtroom to hear the evidence that was
admitted only against Mosby. The state court therefore reasonably
determined that Anderson failed to demonstrate a reasonably probability of
a more favorable result had he been tried separately from Mosby.
7.
Anderson asserts that his appellate counsel was ineffective for failing
to raise his post-conviction ineffective assistance of counsel claims on
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direct review. The failure to raise an issue on appeal can only be ineffective
“if there is a reasonable probability that inclusion of the issue would have
changed the result of the appeal.” McFarland v. Yukins, 356 F.3d 688, 699
(6th Cir. 2004). Because the state court addressed and found his postconviction claims to be without merit, Anderson fails to demonstrate that he
was prejudiced by the failure of his appellate counsel to raise the claims
earlier.
8.
Finally, Anderson asserts that his appellate counsel was ineffective
for failing to seek an evidentiary hearing during his direct appeal for the
three allegations of ineffective assistance of trial counsel presented in that
proceeding.
Appellate counsel, in fact, filed a motion for an evidentiary hearing.
(ECF No. 18-18, PageID.2347-53.) Even assuming that appellate counsel
was ineffective for failing to better assert entitlement to a hearing, Anderson
was not prejudiced because for the reasons stated above, he fails to show
that the underlying ineffective assistance of trial counsel claim have merit.
Anderson is therefore unable to establish that he was prejudiced by
appellate counsel’s failure to obtain a hearing. See, e.g., Davis v. Booker,

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594 F. Supp. 2d 802, 831 (E.D. Mich. 2009); rev’d on other grds, 589 F. 3d
302 (6th Cir. 2009).
The Court notes that Anderson requests a hearing here because he
was unable to obtain one in state court. (ECF No. 19.) But as explained, all
of Anderson’s claims were reasonably adjudicated in the state courts,
satisfying the limited standard or review set forth in § 2254(d)(1). Because
Anderson has not overcome the hurdle created by § 2254(d)(1), the court is
prohibited from considering evidence that is not already part of the state
court record. See Cullen v. Pinholster, 563 U.S. 170, 181-182 (2011).
As none of Anderson’s claims merit habeas relief, the petition will be
denied.
IV.
In order to appeal the court’s decision, Anderson must obtain a
certificate of appealability. 28 U.S.C. § 2253(c)(2). The applicant is required
to show that reasonable jurists could debate whether 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, 483-84 (2000). A federal district court may grant
or deny a certificate of appealability when the court issues a ruling on the
habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002).
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Here, jurists of reason would not debate the court’s conclusion that
Anderson has failed to demonstrate entitlement to habeas relief with
respect to his claims because they are devoid of merit.
Anderson is denied permission to appeal in forma pauperis because
any appeal would be frivolous. 28 U.S.C. § 1915(a)(3).
V.
Accordingly, the Court 1) DENIES WITH PREJUDICE the amended
petition for a writ of habeas corpus, 2) DENIES the motion for an
evidentiary hearing, 3) DENIES a certificate of appealability, and 4)
DENIES permission to appeal in forma pauperis.
SO ORDERED.
Dated: June 27, 2023

s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on
June 27, 2023, by electronic and/or ordinary mail and also on
Ty-Ron Steven Anderson #405128, Kinross Correctional
Facility, 4533 W. Industrial Park Drive,
Kincheloe, MI 49786.
s/Mike Lang
Deputy Clerk

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