Thompkins v. Trierweiler

Filing 13

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

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DESEANTA R. THOMPKINS, #500757,
Petitioner,
CASE No. 2:18-CV-11775
v.

PAUL D. BORMAN
United States District Judge

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

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

prisoner Deseanta R. Thompkins (“Petitioner”) challenges his conviction for
first-degree premeditated murder, MICH. COMP. LAWS § 750.316(1)(a), which
was imposed following a jury trial in the Wayne County Circuit Court. He
was sentenced to life imprisonment without the possibility of parole in 2015.
In his pleadings, Petitioner raises claims concerning the non-disclosure of
evidence, the exclusion of a co-defendant’s statement, and the admission of
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witness testimony relating a co-defendant’s statements, and the effectiveness
of trial counsel. For the reasons set forth herein, the Court denies the petition
for a writ of habeas corpus. The Court also denies a certificate of appealability
and denies Petitioner leave to proceed in forma pauperis on appeal.
II.

Facts and Procedural History
Petitioner’s conviction arises from a fatal shooting at a bus stop in

Detroit, Michigan in 2013. Petitioner was tried in a joint trial with codefendants Leander Stacey Thompkins (“Leander”) and William Roy Lee
(“Lee”). Petitioner and Lee were tried before the one jury and Leander was
tried before a separate jury. The Michigan Court of Appeals described the
underlying facts, which are presumed correct on habeas review, see 28 U.S.C.
§ 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:
The twenty-five year old victim in this case,
Jonathon Michael Stokes (a/k/a “Slim”), was found
shot to death near a bus stop in the City of Detroit
on July 31, 2013. The victim's identification was
found next to his body. His front pockets were
turned inside out as though someone had rummaged
through his pockets and his Cartier glasses were
nowhere to be found. The victim had been shot five
times—four times in the legs and once in his head;
all shots were from behind. The four bullets
recovered from the victim's body revealed that all
bullets came from the same barrel of a .38 caliber
weapon.
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Defendants were charged in the victim's murder and
were tried together. Deseanta and Leander are
cousins. Deseanta was also known as “D,” “De” or
“Day.” Leander was sometimes referred to as “Le
Le.” Although tried together, there were two
juries—one for Leander and another for Deseanta
and Lee. At trial, it was the prosecutor's theory that
defendants were upset with the victim and thought
he was a “snitch.” In contrast, defendants argued
that this was a case of mistaken identity and that the
shooter was actually Leander's cousin, Dejuan
Griffin (Griffin), whose street name was similar to
Deseanta's—“Da Da.”
Jeffrey Pursey testified that on the night of the
murder he was on his way to a liquor store on Seven
Mile between Grand River and Telegraph to meet a
friend and go to the casino. Pursey was unable to
pull into the driveway of the liquor store because
there were three individuals in the way. One
individual had on dark pants and a black hoody.
Another had on dark pants and a white shirt. Pursey
was not entirely sure what the third individual was
wearing, but knew he was wearing dark clothing. At
trial, Pursey identified Lee as the one in the white tshirt and Deseanta as the one in the hoody. Pursey
testified that Lee actually waved Pursey into the
parking lot. Pursey's friend arrived within a couple
of minutes. Pursey put his phone and charger on his
friend's front seat and was planning to go into the
liquor store to grab a drink when he heard five
gunshots.
Pursey went up to Seven Mile and saw the same
three individuals running toward him. Pursey
grabbed his phone from his friend's car and dialed
911 while driving to the area. He saw a body lying
on the ground. Pursey called 911 and later gave
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Detective Detrick Mott a written statement and
identified Lee from a photo array as the individual
who waved him into the parking lot and the one he
later saw running towards him. Pursey identified
Deseanta from another array as the individual in the
black hoody.
All three defendants attacked the credibility of
Pursey's testimony because the victim's family had
given Pursey $12,000 before trial as a reward for his
cooperation. The victim's mother, Dorothy Strong–
Stokes, testified that she and her husband had
originally put up a $27,500 reward with Crime
Stoppers, hoping to apprehend their son's killers.
Although Pursey provided critical information in
the case and had testified at several preliminary
examinations, Crime Stoppers informed Strong–
Stokes that Pursey did not qualify to receive the
reward because he had not made a tip directly to
them. Crime Stoppers told Strong–Stokes that if she
wanted Pursey to have the money, she would have
to do it herself. They returned the Stokes' money.
Strong–Stokes testified that she felt $12,000 was a
fair reward. She did not intend the payment as a
bribe for Pursey's testimony. Pursey denied that the
$12,000 influenced his testimony at a later
preliminary examination or at trial. In fact, when
Pursey gave his statement to police and positively
identified Lee and Deseanta, he was unaware that
there was a reward through Crime Stoppers.
The only witness at the bus stop the night of the
murder was Castro Pettway. Pettway saw three
individuals approaching from the east. One had on
a black hoody and another was wearing a white tshirt. They stopped about 40 feet before the bus stop
and were talking amongst themselves. They
continued to approach the bus stop when the
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individual wearing the hoody mentioned something
to the victim about a bus and pulled out a gun.
Pettway heard and saw the first shot fired and then
ran. He heard three or four more shots. Pettway
waited approximately five minutes and then went
back to retrieve his bag. Pettway could not identify
the shooters at trial.
Walter Williams was doing some maintenance in
the area where the murder occurred. He heard four
gunshots in the distance. From a window, Williams
could see that there was a man on the ground and
four others around him. Three of the men were
kneeling down and appeared to be going through the
man's pockets. Like Pettway, Williams could not
identify any of the individuals at trial.
Another key witness for the prosecution was
Diamond Ruff (Ruff), who testified that she was
with all three defendants the night of the shooting.
Ruff testified that she had known the victim for
seven years and he was once her best friend. She
knew Lee as “Will,” Deseanta as “De” (the letter),
and Leander as “Lee” or “Lee Lee.” Ruff testified
that both the victim and defendants sold marijuana.
On the day of the murder, Ruff had been drinking
Cognac since the morning. She also had been
smoking “kush,” which she described as a more
“exotic” and “stronger” form of weed. Ruff was
riding around with defendants in Lee's Yukon or
Suburban. She probably “dozed off” in the car from
smoking and drinking. At approximately 10:00
p.m., Deseanta went to the store to buy more liquor
and blunts. Lee received a phone call and told the
caller, “be there in a minute.” All three defendants
then got out of the car. Defendants returned after
approximately 10 minutes. They seemed “hyped
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up” so Ruff asked them what was happening.
Leander said, “I got that n* * * * *, I got that n* * *
* *.” In her statement to police, Ruff said that
Defendant Leander Thompkins said, “I got that n*
* * * *, I got that n* * * * * ... I had to pop a n* * *
* * a couple of times. That n* * * * * got handled.”
Ruff did not know what Leander was talking about.
Defendants dropped her off at a friend's house.
While at her friend's house, Ruff received a call that
the victim was dead. Ruff put together a candlelight
vigil, which defendants attended. Although Ruff
could have contacted the victim's parents with
information about the murder, she was scared to do
so. Ruff eventually gave Mott a statement and
identified defendants from photo arrays.
As part of his investigation, Mott went to the liquor
store to see if there was useable surveillance
footage. Because the footage ran a ten hour loop,
Mott had to capture the video on his phone's camera.
Therefore, as the parties acknowledged, the footage
was not good. The jury watched the surveillance
video from inside and outside the store.
Mott testified that Lee gave police a statement on
November 22, 2013. The video was played for the
Deseanta/Lee jury, only. In the statement, Lee told
Mott that Leander was there at the time of the
shooting, but blamed the shooting on “Day” or
“Day Day” (Griffin), who shot the victim because
“he was snitching or being an informant in the
neighborhood.”
Mott testified that Leander also made an informal
statement to police on November 22, 2013 at which
time Leander indicated he was with his cousin at the
time of the shooting. Mott spoke with Leander a
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second time on November 25, 2013. Leander denied
that he was present during the murder, but
implicated his cousin, Griffin, saying “that's the
kind of person he is.” Leander demonstrated for
Mott how Griffin shot the victim. Griffin had asked
Dwayne Haywood to borrow a weapon, but Leander
did not think Griffin was going to kill the victim.
Leander vehemently denied being part of the crime.
He was released from custody shortly after making
his statement, but was later re-arrested after Mott
had a chance to interview Ruff and learned that
Leander admitted to shooting the victim.
In front of the Deseanta/Lee jury, only, Hasheem
Beamon testified that, on the night of the murder, he
was with defendants, as well as Haywood, “Da Da”
(Griffin) and “50.” At some point, Leander, “Da
Da” and “50” left; neither Lee nor Deseanta went
with them. Shortly after they left, Beamon heard
gunshots. The men returned and Leander said that
they shot someone named “Slim.” Leander said he
shot first and then “Da Da” took the gun and
“finished him off .” They told Beamon that “Slim”
was a snitch: “They told me they had to kill a n* *
* * *.” Beamon gave Mott a statement on February
19, 2014, identifying both Leander and Deseanta,
but adding that Deseanta and Lee “didn't have s* *
* to do with this.”
Brandy Harris testified that the victim was her
cousin. She was planning to pick him up the night
of the murder. In a phone call earlier that day, the
victim reported that he had just had a fight with
someone who had called him a snitch. Harris
remembered that one of the houses that the victim
frequented had been raided. Later, Harris saw that a
Caucasian man had the victim's phone and when
Harris asked the man where the victim was, he told
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her that the victim had gone to the gas station. After
learning that the victim had been shot, Harris went
to retrieve the victim's phone from the Caucasian
man, who threw it at her. Mott acknowledged that a
white man on Wormer, Patrick Boggs, was later
arrested on unrelated charges. Mott did not believe
Boggs was connected to the homicide.
In front of the Deseanta/Lee jury, only, Shenequia
Carr (Peaches) testified that she was with Deseanta
at her house at the time of the murder. They heard
shots and police sirens and walked to where the
shooting occurred. In a surveillance photo, Carr
identified the man in a hoody as “Da Da,” whom she
also saw that night. Carr testified she saw Lee with
Haywood a couple of doors down. She did not see
Ruff with any of the defendants.
Although Leander, Haywood's widow (Roslyn
Haywood), Beamon, and Carr, accused “Da Da”
(Griffin) of being responsible for the crime,
attempts at locating him were unsuccessful. Mott
admitted that he initially associated “Da Da” with
Deseanta.
People v. Thompkins, No. 326028, 2016 WL 4212142, *1–4 (Mich. Ct. App.
Aug. 9, 2016) (unpublished) (footnotes omitted).
Following his conviction and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals raising the first three claims
presented on habeas review. The court denied relief on those claims and
affirmed Petitioner’s conviction and sentence. Id. at pp. 4–8. Petitioner filed
an application for leave to appeal with the Michigan Supreme Court raising
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the same claims, which was denied in a standard order. People v. Thompkins,
500 Mich. 947, 890 N.W.2d 661 (2017).
Petitioner thereafter filed this federal habeas petition raising the
following claims:
I.

Due process violation: Withholding and suppression of
material evidence by the prosecution.

II.

Denial of right to a fair trial. A recorded interview which
contains exculpatory statements by a co-defendant were
included in his jury, but excluded from my own.

III.

Confrontation Clause violation. I was deprived of my rights
under the Confrontation Clause at trial.

IV.

Ineffective Assistance of Counsel. Multiple instances before
and during trial [where] my counsel failed to provide
effective defense and prejudiced the outcome of my case.
(ECF No. 1)

Respondent filed an Answer to the habeas petition contending that it should
be denied because the first three claims lack merit but failed to address the
fourth claim. (ECF No. 7.)

III. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of
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review that federal courts must use when considering habeas petitions brought
by prisoners challenging their state court convictions. The AEDPA provides
in relevant part:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim—
(1) Resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) Resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d)

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“A state court’s decision is ‘contrary to’ ... clearly established law if it ‘applies
a rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [that]
precedent.’ ” Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (per curiam) (quoting
Williams v. Taylor, 529 U.S. 362, 405–06 (2000)); see also Bell v. Cone, 535 U.S.
685, 694 (2002). “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a
federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal principle from [the Supreme] Court but unreasonably applies that
principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520
(2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However,
“[i]n order for a federal court find a state court’s application of [Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been more than
incorrect or erroneous. The state court’s application must have been ‘objectively
unreasonable.’ ” Wiggins, 539 U.S. at 520–21 (citations omitted); see also Williams,
529 U.S. at 409. The “AEDPA thus imposes a ‘highly deferential standard for
evaluating state-court rulings,’ and ‘demands that state-court decisions be given the
benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v.
Murphy, 521 U.S. 521, 333, n. 7); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
curiam)).
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A state court’s determination that a claim lacks merit “precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has
emphasized “that even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S.
63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must determine what
arguments or theories supported or ... could have supported, the state court’s
decision; and then it must ask whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the holding in a prior decision”
of the Supreme Court. Id., at 102. Thus, in order to obtain habeas relief in federal
court, a state prisoner must show that the state court’s rejection of his claim “was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Id., at 103; see
also White v. Woodall, 572 U.S. 415, 419–20 (2014). Federal judges “are required
to afford state courts due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong.” Woods v. Donald, 575 U.S.
312, 316 (2015). A habeas petitioner cannot prevail as long as it is within the “realm
of possibility” that fairminded jurists could find the state court decision to be
reasonable. Woods v. Etherton, _ U.S. _, 136 S. Ct. 1149, 1152 (2016).
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Section 2254(d)(1) limits a federal habeas court’s review to a determination
of whether the state court’s decision comports with clearly established federal law
as determined by the Supreme Court at the time the state court renders its decision.
Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122
(2009) (noting that the Supreme Court “has held on numerous occasions that it is
not ‘an unreasonable application of clearly established Federal law’ for a state court
to decline to apply a specific legal rule that has not been squarely established by
this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 123 (2008) (per curiam));
Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). Section 2254(d) “does not require
a state court to give reasons before its decision can be deemed to have been
‘adjudicated on the merits.’ ” Harrington, 562 U.S. at 100. Furthermore, it “does
not require citation of [Supreme Court] cases—indeed, it does not even require
awareness of [Supreme Court] cases, so long as neither the reasoning nor the result
of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002);
see also Mitchell, 540 U.S. at 16.
The requirements of clearly established law are to be determined solely by
Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly
established Federal law as determined by the Supreme Court’” and it cannot provide
the basis for federal habeas relief. Parker v. Matthews, 567 U.S. 37, 48–49 (2012)
(per curiam); see also Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam). The
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decisions of lower federal courts, however, may be useful in assessing the
reasonableness of the state court’s resolution of an issue. Stewart v. Erwin, 503
F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th
Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).
A state court’s factual determinations are presumed correct on federal habeas
review.

See 28 U.S.C. § 2254(e)(1).

A habeas petitioner may rebut this

presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d
358, 360–61 (6th Cir. 1998). Moreover, habeas review is “limited to the record that
was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
IV. Analysis
A.

Non-Disclosure of Evidence Claim

Petitioner first asserts that he is entitled to habeas relief because the prosecutor
failed to disclose evidence prior to trial. Specifically, he asserts that the prosecutor
failed to disclose the following: (1) co-defendant Leander’s recorded police
interview in which he inculpated DeJuan Griffin and exculpated Petitioner, (2) the
fact that Pursey received a $12,000 reward from the victim’s family, and (3)
evidence that Petitioner was seen ripping down Crime Stoppers’ posters.
Respondent contends that this claim lacks merit.
As an initial matter, to the extent that Petitioner asserts that the prosecutor
violated a state court discovery order, this claim is not cognizable on habeas review.
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It is well-settled that there is no general constitutional right to discovery in a
criminal case. Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Any violation of
state discovery rules raises a state law issue that is not cognizable on habeas review.
See Lorraine v. Coyle, 291 F.3d 416, 441 (6th Cir. 2002); Burns v. Lafler, 328 F.
Supp. 2d 711, 723 (E.D. Mich. 2004); Meade v. Lavigne, 265 F. Supp. 2d 849, 867
(E.D. Mich. 2003).
Petitioner also asserts a violation of his constitutional rights as to this issue.
A prosecutor’s failure to disclose evidence favorable to the defense constitutes a
denial of due process “where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady
v. Maryland, 373 U.S. 83, 87 (1963). To find a Brady violation, not only must the
evidence be suppressed, it must be material and favorable to the defense. Elmore
v. Foltz, 768 F.2d 773, 777 (6th Cir. 1985). Favorable evidence is material “if there
is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” United States v. Bagley, 473
U.S. 667, 682 (1985); see also Kyles v. Whitley, 514 U.S. 419, 432–36 (1995).
Material evidence is that which is “so clearly supportive of a claim of innocence
that it gives the prosecution notice of a duty to produce.” United States v. Clark,
988 F.2d 1459, 1467 (6th Cir. 1993). The duty to disclose favorable evidence

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includes the duty to disclose impeachment evidence. Bagley, supra; Giglio v.
United States, 405 U.S. 150, 154–55 (1972).
The Brady rule only applies to “the discovery, after trial of information which
had been known to the prosecution but unknown to the defense.” United States v.
Agurs, 427 U.S. 97, 103 (1976). A Brady violation does not occur if previously
undisclosed evidence is disclosed during trial unless the defendant is prejudiced by
its prior non-disclosure. United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986).
Thus, in order to establish a Brady violation, a petitioner must show that: (1)
evidence was suppressed by the prosecution in that it was not known to the
petitioner and not available from another source; (2) the evidence was favorable or
exculpatory; and (3) the evidence was material to the question of guilt. Carter v.
Bell, 218 F.3d 581, 601 (6th Cir. 2000). The petitioner bears the burden of
establishing a Brady violation. Id.
Citing Brady and applying the foregoing standards, the Michigan Court of
Appeals denied relief on this claim. The court explained in relevant part:
Deseanta first argues that the prosecutor failed to provide
him with Leander's recorded police interview in which
Leander inculpated Griffin and exculpated Deseanta.
However, as will be discussed in further detail later in this
opinion, the evidence was inadmissible in Deseanta's case
because Leander's statement was not against Leander's
penal interest and lacked sufficient corroborating evidence
of trustworthiness. Because the evidence was
inadmissible, it cannot be considered material.
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Deseanta next argues that the prosecutor suppressed
evidence that Pursey had received $12,000 from the
victim's family as a “reward.” Mott testified that he
learned Pursey had received the money following the final
preliminary hearing in July 2014. Mott should have
brought that information to the prosecutor's attention prior
to trial, which started several months later in December
2014. Such evidence called into question Pursey's
credibility. Still, Deseanta was not deprived of a fair trial.
Evidence relating to the $12,000 played a significant role
at trial. All of the defendants vigorously attacked Pursey's
credibility and the jury was made fully aware that he had
been paid prior to trial.
Finally, Deseanta complains that defense counsel was not
made aware that Mott saw the defendants pulling down
Crime Stopper flyers because such information was not
included in Mott's reports. However, as the prosecutor
points out, Deseanta fails to indicate how this evidence
was favorable to him. In fact, evidence that Deseanta was
seen taking down Crime Stoppers posters seems rather
incriminating. To the extent Deseanta argues that the
evidence (or lack thereof) was relevant to Mott's overall
credibility, defense counsel pursued Mott's failure to
include the information in his reports. The jury was,
therefore, apprised of Mott's alleged lack of credibility.
There is simply no indication that the “evidence” was
material to Deseanta or deprived him of a fair trial.
Thompkins, 2016 WL 4212142 at *4–5.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. First, as to Leander’s
interview, it is well-settled that “withheld information is material under Brady only
if it would have been admissible at trial or would have led directly to admissible
evidence.” Gumm v. Mitchell, 775 F.3d 345, 363 (6th Cir. 2014). The Sixth Circuit
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has noted that inadmissible information “is not evidence at all” for purposes of
Brady and therefore cannot directly affect the outcome of a trial. Wogenstahl v.
Mitchell, 668 F.3d 307, 325 n. 3 (6th Cir. 2012) (internal citation omitted). Given
the state court’s ruling that Leander’s statements to police were inadmissible
hearsay and given that Petitioner neither alleges nor establishes that the interview
would have directly led to admissible evidence, Petitioner cannot establish a Brady
violation.
As to Pursey’s reward, the record shows that while Detective Mott knew about
this information before trial, the prosecutor first learned of it during jury voir dire,
then promptly investigated and disclosed it to the defense. See 12/4/14 Trial Tr.,
pp. 144–146, ECF No. 8-10, PageID.1225–1227; 12/8/14 Trial Tr., pp. 228-229,
ECF No. 8-11, PageID.1565–1566. Petitioner was thus aware of this impeachment
evidence at the time of trial and, along with the other defendants, had the
opportunity to thoroughly explore this issue while questioning witnesses at trial.
See 12/15/14 Trial Tr., pp. 99–106, 124–126, 139–143, 155–159, ECF No. 8-15,
PageID.2419–2426, 2444–2446, 2459–2463, 2475–2479. Petitioner fails to show
that his defense was impaired by the late disclosure of the reward payment so as to
establish a Brady violation.
With respect to the flyers, this information was disclosed at the time of trial
and Petitioner fails to show that such information was particularly relevant or
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material or, more importantly, that it was exculpatory. To be sure, such evidence
seems to be rather inculpatory. Consequently, Petitioner fails to establish a Brady
violation or to otherwise show that the admission of this testimony rendered his trial
fundamentally unfair. Habeas relief is not warranted on this claim.
B.

Exclusion of Evidence Claim

Petitioner relatedly asserts that he is entitled to habeas relief because he was
denied the right to present a defense when the trial court excluded co-defendant
Leander’s police statement that DeJuan Griffin was the shooter as inadmissible
hearsay. Respondent contends that this claim lacks merit.
A federal court may only grant habeas relief to a person who is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Alleged trial court errors in the application of state evidentiary law are
generally not cognizable as grounds for federal habeas relief. See Estelle v.
McGuire, 502 U.S. 62, 63 (1991) (“it is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions”); Serra v. Michigan
Dep’t of Corrections, 4 F.3d 1348 (6th Cir. 1993). An error in state procedure or
evidentiary law does not rise to the level of a federal constitutional claim warranting
habeas relief, “unless the error renders the proceeding so fundamentally unfair as to
deprive the petitioner of due process under the Fourteenth Amendment.” McAdoo
v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (quoting Estelle, 502 U.S. at 69–70); see
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also Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500
F.3d 514, 519–20 (6th Cir. 2007)); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.
2003).
The right of an accused to present a defense has long been recognized as
“fundamental element of due process.” Washington v. Texas, 388 U.S. 14, 19
(1967); see also Holmes v. South Carolina, 547 U.S. 319, 329–31 (2006);
Chambers v. Mississippi, 410 U.S. 284, 302 (1973). A defendant’s right to present
a defense is not unlimited, however, and may be subject to “reasonable restrictions.”
United States v. Scheffer, 523 U.S. 303, 308 (1998). For example, a defendant “does
not have an unfettered right to offer evidence that is incompetent, privileged, or
otherwise inadmissable under standard rules of evidence.” Montana v. Egelhoff,
518 U.S. 37, 42 (1996) (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)); see
also Holmes, 547 U.S. at 326 (recognizing that “well-established rules of evidence
permit trial judges to exclude evidence if its probative value is outweighed by
certain other factors such as unfair prejudice, confusion of the issues, or potential
to mislead the jury”). State rules excluding evidence from criminal trials “do not
abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or
‘disproportionate to the purposes they are designed to serve.’” Scheffer, 523 U.S.
at 308 (internal citations omitted). “A defendant’s interest in presenting . . .
evidence may thus bow to accommodate other legitimate interest in the criminal
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trial process.” Id. In such cases, the question is not whether the jury would reach
a different result, but whether the defendant was afforded “a meaningful
opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690
(1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)); Chambers,
410 U.S. at 302.
The Michigan Court of Appeals denied relief on this claim as a matter of state
and federal law. The court explained in pertinent part:
In Leander's November 25, 2013 statement, Leander
implicated his cousin Griffin, indicating that Griffin had
an argument with the victim, borrowed a gun, and boasted
of shooting the victim.
Leander's statement to police was hearsay. “‘Hearsay’ is a
statement, other than the one made by the defendant while
testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” MRE 801(d).
Hearsay is not admissible except as provided by the rules
of evidence. A statement against penal interest is only
admissible if the declarant is unavailable.5 MRE 804(b)(3)
provides:
A statement which was at the time of its making so far
contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the
declarant against another, that a reasonable person in the
declarant's position would not have made the statement
unless believing it to be true. A statement tending to
expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the
trustworthiness of the statement.
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The trial court correctly concluded that Leander's
statement to police did not constitute a statement against
his own penal interest; instead, Leander asserted that he
was merely present when some of the discussions took
place and otherwise vehemently denied any wrongdoing.
Leander's statement did not, on its face, facially expose
Leander to criminal liability.
In any event, even if Leander's statement could be
construed as against his penal interest, because the
statement was offered to exculpate Deseanta from criminal
liability, an additional hurdle had to be cleared. As the
proponent of the evidence, Deseanta had to show that
corroborating circumstances clearly indicated the
trustworthiness of Leander's statement. MRE 804(b)(3). In
People v. Poole, 444 Mich. 151, 163; 506 NW2d 505
(1993), overruled in part by People v. Taylor, 482 Mich.
368, 378; 759 NW2d 361 (2008), the Supreme Court
discussed “[t]he indicia of reliability necessary to establish
that a hearsay statement has particularized guarantees of
trustworthiness” and concluded:
In evaluating whether a statement against penal interest
that inculpates a person in addition to the declarant bears
sufficient indicia of reliability to allow it to be admitted as
substantive evidence against the other person, courts must
evaluate the circumstances surrounding the making of the
statement as well as its content.
The presence of the following factors would favor
admission of such a statement: whether the statement was
(1) voluntarily given, (2) made contemporaneously with
the events referenced, (3) made to family, friends,
colleagues, or confederates—that is, to someone to whom
the declarant would likely speak the truth, and (4) uttered
spontaneously at the initiation of the declarant and without
prompting or inquiry by the listener.
On the other hand, the presence of the following factors
would favor a finding of inadmissibility: whether the
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statement (1) was made to law enforcement officers or at
the prompting or inquiry of the listener, (2) minimizes the
role or responsibility of the declarant or shifts blame to the
accomplice, (3) was made to avenge the declarant or to
curry favor, and (4) whether the declarant had a motive to
lie or distort the truth. [Id. at 165.]
Granted, and as discussed in further detail below, Poole
was subsequently partially overruled in Taylor to the
extent Poole found that the Confrontation Clause had any
application to nontestimonial statements. And Leander's
statement was not being used as substantive evidence
against another person. But the factors Poole discusses
when looking to whether a statement has sufficient indicia
of trustworthiness is still helpful. Here, Leander's
statement was made to law enforcement during an
interrogation at which time Leander minimized his role
and shifted blame to Griffin. Leander had a strong
motivation to lie or distort the truth and his statement was
primarily self-serving. Under those circumstances, it
cannot be said that Leander's statement to police had
sufficient corroborating circumstances indicating the
trustworthiness of his statement. The trial court, therefore,
did not abuse its discretion in refusing to permit Deseanta
to present the statement to the jury.
Although the trial court refused to permit Deseanta to
present Leander's statement to the jury, Deseanta was not
denied his right to present a defense and, in fact, placed
blame for the shooting squarely on Leander and Griffin.
At trial, Beamon testified that Leander and Griffin
admitted to shooting “Slim” for being a snitch, with
Leander firing the first shot and Griffin “finishing him
off.” Beamon gave Mott a statement on February 19, 2014,
identifying both Leander and Deseanta, but adding that
Deseanta “didn't have s* * * to do with this.” Additionally,
in his statement to police, Lee blamed the shooting on
Griffin. Deseanta was able to present the jury with his
theory that he was mistaken for Griffin based on their
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similar street names. Defendant was not denied his right to
present a defense.
Thompkins, 2016 WL 4212142 at *5–7.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. First, to the extent that
Petitioner asserts that the trial court erred in excluding the testimony under the
Michigan Rules of Evidence or other Michigan law, he merely alleges a violation
of state law which does not entitle him to federal habeas relief. See, e.g., Wheeler
v. Jones, 59 F. App’x 23, 28 (6th Cir. 2003). State courts are the final arbiters of
state law and the federal courts will not intervene in such matters. See Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); see also Bradshaw v. Richey, 546 U.S. 74, 76
(2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002).
Second, Petitioner fails to show that the exclusion of the proposed testimony
violated his constitutional rights. The trial court’s ruling was reasonable and meant
to preclude the admission of hearsay under state law because the declarant, codefendant Leander, gave the statements in a police interview but did not testify at
trial. The hearsay statements that the defense sought to admit did not fit within any
exceptions to the hearsay rule. Those statements were also not reliable given that
co-defendant Leander sought to minimize his own involvement by asserting that he
was merely present and that Griffin was responsible for the shooting.

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More importantly, Petitioner was able to present evidence in support of his
defense that he was not involved in the crime and that Griffin was the shooter. For
example, Hasheem Beamon testified that Leander and Griffin admitted shooting the
victim for being a snitch with Leander firing the first shot and Griffin finishing him
off, and that Petitioner was not involved in the shooting. Beamon also gave the
police a statement in which he identified Leander and Griffin and said that Petitioner
was not involved. See 1/8/15 Trial Tr., pp. 139–141, 163, 185, 188, ECF No. 8-18,
PageID.3024–3026, 3048, 3070, 3073. Additionally, Petitioner presented an alibi
defense through witness Shenequia Carr, see 1/13/15 Trial Tr., pp. 106–108, ECF
No. 8-20, PageID.3408–3410, and argued his defense theory that others were
responsible for the shooting and he was mistaken for Griffin based upon their
similar street names. See 1/15/15 Trial Tr., pp. 19, 23, ECF No. 8-23, PageID.3762,
3766. Lastly, Petitioner challenged the credibility of prosecution witnesses, pointed
out inconsistencies in the testimony, and argued that there was reasonable doubt
about his involvement in the crime. The record thus reveals that Petitioner was able
to present a meaningful defense at trial. See, e.g., Wynne v. Renico, 606 F.3d 867,
870–71 (6th Cir. 2010) (state trial court did not violate petitioner’s right to present
a defense at murder trial by excluding propensity evidence of third party guilt where
defendant had opportunity to present other, proper evidence in support of defense
theory). Petitioner fails to establish that the trial court’s evidentiary ruling violated
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his right to present a defense or otherwise rendered his trial fundamentally unfair.
Habeas relief is not warranted on this claim.
C.

Confrontation & Evidentiary Claim

Petitioner also asserts that he is entitled to habeas relief because the trial court
violated his confrontation rights by admitting co-defendant Leander’s statements to
Diamond Ruff in which he admitted shooting the victim. Respondent contends that
this claim lacks merit.
The Sixth Amendment guarantees the right of an accused in a criminal
prosecution “to be confronted with the witnesses against him.” U.S. Const. amend.
VI. The Confrontation Clause provides criminal defendants the right to confront
and cross-examine witnesses against them.

See, e.g., Davis v. Alaska, 415 U.S.

308, 315 (1973). The right to confront adverse witnesses generally prevents a court
from admitting an out-of-court statement against a criminal defendant. California
v. Green, 399 U.S. 149, 155–58 (1970). The Sixth Amendment protections,
however, are not so broad as to exclude the admission of all hearsay statements
against a defendant despite his or her inability to confront the declarant at trial. See
Maryland v. Craig, 497 U.S. 836, 847–48 (1990).

The constitutionality of

admitting a hearsay statement depends on whether the statement is testimonial or
non-testimonial in nature and on the circumstances surrounding the making of the
statement.
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In Bruton v. United States, 391 U.S. 123, 126 (1968), the Supreme Court ruled
that the admission at a joint trial of a non-testifying co-defendant’s confession to
police which implicates the defendant violates the Confrontation Clause even if the
trial court instructs the jury not to consider the incriminating statements in
determining the defendant’s guilt. An exception to this rule is when the codefendant’s confession “is redacted to eliminate not only the defendant’s name, but
any reference to his or her existence.” Richardson v. Marsh, 481 U.S. 200, 211
(1987). No Bruton violation results when a co-defendant’s statement does not
expressly implicate a defendant in the charged offense because such a statement is
not “powerfully incriminating.” Vincent v. Parke, 942 F.2d 989, 991 (6th Cir.
1991). Rather, Bruton only applies when a “codefendant’s confession ‘expressly
implicat[es]’ the defendant as [an] accomplice.” Marsh, 481 U.S. at 208 (quoting
Bruton, 391 U.S. at 124, n. 1).
In Crawford v. Washington, 541 U.S. 36, 54 (2004), the Supreme Court held
that the testimonial statement of a witness who does not appear at trial is
inadmissible unless the witness is unavailable to testify and the defendant has had
a prior opportunity to cross-examine the witness. Testimonial statements include
preliminary hearing testimony, grand jury testimony, prior trial testimony, and
statements made during police interrogations.

Testimonial statements do not

include remarks made to family members or acquaintances, business records, or
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statements made in furtherance of a conspiracy. Id. at 51–52, 56; United States v.
Martinez, 430 F.3d 317, 328–29 (6th Cir. 2005); see also United States v. Stover,
474 F.3d 904, 912–13 (6th Cir. 2007). Additionally, the Confrontation Clause is
not implicated, and need not be considered, when non-testimonial hearsay is at
issue. See Davis v. Washington, 547 U.S. 813, 823–24 (2006); see also Whorton v.
Bockting, 549 U.S. 406, 420 (2007) (noting that the Confrontation Clause “has no
application to such statements and therefore permits their admission even if they
lack indicia of reliability”); Doan v. Carter, 548 U.S. 449, 458 (6th Cir. 2008).
The Michigan Court of Appeals denied relief on this claim, explaining in
relevant part:
A defendant's Sixth Amendment right to confront the
witnesses against him is violated if the trial court allows
the admission of a non-testifying codefendant's confession
implicating the defendant at a joint trial. Bruton, 391 U.S.
at 127–128; Pipes, 475 Mich. at 269. Additionally, out-ofcourt testimonial statements by nontestifying witnesses
are not admissible under the Confrontation Clause unless
the witness is unavailable and the defendant had an
opportunity to cross-examine the witness. Crawford v.
Washington, 541 U.S. 36, 51–52; 124 S Ct 1354; 156 L Ed
2d 177 (2004); People v. Nunley, 491 Mich. 686, 698; 821
NW2d 642 (2012).
However, Crawford has no application in this case
because Leander's statement was non-testimonial in
nature. “[T]he right of confrontation is concerned with a
specific type of out-of-court statement, i.e., the statements
of ‘witnesses,’ those people who bear testimony against a
defendant.” People v. Fackelman, 489 Mich. 515, 528;
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802 NW2d 552 (2011). Our United States Supreme Court
has explained:
The text of the Confrontation Clause ... applies to
“witnesses” against the accused—in other words, those who
“bear testimony.” 2 N. Webster, An American Dictionary of
the English Language (1828). “Testimony,” in turn, is
typically “[a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact.” Ibid. An
accuser who makes a formal statement to government
officers bears testimony in a sense that a person who makes
a casual remark to an acquaintance does not. The
constitutional text, like the history underlying the commonlaw right of confrontation, thus reflects an especially acute
concern with a specific type of out-of-court statement.
[Crawford, 541 U.S. at 51.]
Nor does Bruton have any application to this case because,
not only was Leander's statement non-testimonial, but
Leander did not specifically implicate Deseanta or Lee or
attempt to shift the blame for the shooting onto his
codefendants. When nontestimonial hearsay is at issue, the
states are afforded the opportunity to create their own rules
of admissibility. Crawford, 541 U.S. at 68. Thus, the
relevant inquiry is whether Leander's statement to Ruff
qualifies under the rules of evidence. The trial court found
Leander's statement admissible both as an excited
utterance and as a statement against penal interest.
Thompkins, 2016 WL 4212142 at *7–8 (footnote omitted).
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. First, Petitioner is not
entitled to relief on any perceived violation of Michigan law with respect to this
issue. As discussed, alleged trial court errors in the application of state evidentiary
law are generally not cognizable as grounds for federal habeas relief. See Estelle,
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502 U.S. at 67–68; Serra, 4 F.3d at 1354. Only when an evidentiary ruling is “so
egregious that it results in a denial of fundamental fairness” may it violate due
process and warrant habeas relief. McAdoo, 365 F.3d at 494 (citing Estelle, 502
U.S. at 69–70); see also Wynne, 606 F.3d at 871 (citing Bey, 500 F.3d at 519–20);
Bugh, 329 F.3d at 512.
Second, Petitioner fails to establish a constitutional violation. Leander’s
statements to Ruff were non-testimonial and did not directly implicate Petitioner in
the shooting. Consequently, the admission of those statements did not violate
Petitioner’s constitutional rights, see, e.g., United States v. Boyd, 640 F.3d 657, 665
(6th Cir. 2011) (“[S]tatements made to friends and acquaintances are nontestimonial.”); United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009)
(“Because it is premised on the Confrontation Clause, the Bruton rule, like the
Confrontation Clause itself, does not apply to nontestimonial statements.”), or
otherwise render his trial fundamentally unfair. Habeas relief is not warranted on
this claim.
Petitioner further asserts that he is entitled to habeas relief because the trial
court erred in allowing Diamond Ruff to identify Petitioner in the liquor store
surveillance video. Respondent did not address this issue as part of this claim.
Again, as discussed, alleged trial court errors in the application of state
evidentiary law are generally not cognizable as grounds for federal habeas relief.
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See Estelle, 502 U.S. at 67–68; Serra, 4 F.3d at 1354. Only when an evidentiary
ruling is “so egregious that it results in a denial of fundamental fairness” may it
violate due process and warrant habeas relief. McAdoo, 365 F.3d at 494 (citing
Estelle, 502 U.S. at 69–70); see also Wynne, 606 F.3d at 871 (citing Bey, 500 F.3d
at 519–20); Bugh, 329 F.3d at 512.
The Michigan Court of Appeals denied relief on this claim. The court
explained:
Ruff testified that she had the opportunity to observe
surveillance videos. The prosecutor played the video and
Ruff identified the liquor store and Lee's vehicle in the
parking lot. She also identified Deseanta as the man inside
the store, covering his face.
The identification testimony in this case constituted lay
opinion testimony. Fomby, 300 Mich App at 50. MRE 701
provides: “If the witness is not testifying as an expert, the
witness' testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness' testimony
or the determination of a fact in issue.” In Fomby, this
Court cited federal case law that “the issue of whether the
defendant in the courtroom was the person pictured in a
surveillance photo was a determination properly left to the
jury.” Fomby, 300 Mich App at 52. “[W]here a jury is as
capable as anyone else of reaching a conclusion on certain
facts, it is error to permit a witness to give his own opinion
or interpretation of the facts because it invades the
province of the jury.” People v. Drossart, 99 Mich App
66, 80; 297 NW2d 863 (1980). In Fomby, the Court
concluded that there was no reason to believe that the
witness who offered the identifying testimony was “more
likely to identify correctly the person than is the jury” and,
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in so doing Fomby Court acknowledged that there are
times when specific identification testimony is
appropriate. Id. (internal quotation marks omitted).
Here, Ruff testified that she was well acquainted with all
of the defendants and had known them for several months
before the night of the murder. She had spent the evening
with them and was present when they were at the liquor
store. Because the video was on a loop and was in jeopardy
of being taped over, Mott had to capture the images on his
phone. By all accounts, the footage was grainy and shaky.
Ruff was, therefore, more likely to correctly identify the
individual in the surveillance video than the jury and did
not invade the province of the jury.
Thompkins, 2016 WL 4212142 at *8.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. First, there is generally no
prohibition on a witness offering opinion testimony which goes to an ultimate issue
in a case. Both the Federal and Michigan Rules of Evidence permit such testimony.
See Fed R. Evid. 704(a); Mich. R. Evid. 704. Thus, there is no clearly established
federal law as determined by the Supreme Court which suggests that the admission
of such evidence violates the Constitution. See, e.g., Davis v. Trierweiler, No. 1514420, 2018 WL 1586487, *10 (E.D. Mich. March 31, 2018) (citing Hopp v. Burt,
No. 03-10153, 2007 WL 162248, *9 (E.D. Mich. Jan. 16, 2007)).
Second, Petitioner fails to show that Ruff’s identification testimony was
improper or that its admission violated his due process rights. Under Michigan law,
lay opinion testimony is admissible if it is “(a) rationally based on the perception of
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the witness and (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue.” Mich. R. Evid. 701. In this case, Ruff’s
identification of Petitioner from the liquor store surveillance video was based upon
her familiarity with him and her presence at the scene. Her testimony helped the
jury to determine whether Petitioner was in the liquor store at the time in question,
particularly since the video recording was not of the clearest quality. Consequently,
Petitioner fails to establish that the admission of Ruff’s identification testimony was
improper or that it rendered his trial fundamentally unfair. Habeas relief is not
warranted on this claim.
D.

Ineffective Assistance of Counsel Claim

Lastly, Petitioner asserts that he is entitled to habeas relief because trial
counsel was ineffective for agreeing to a separate jury from co-defendant Leander
and for failing to properly cross-examine Detective Mott and Diamond Ruff.
Respondent does not address this claim.
The record indicates that Petitioner did not raise this claim on direct appeal in
the state courts. It is well-established, however, that a state prisoner filing a federal
habeas petition under 28 U.S.C. §2254 must first exhaust available state remedies
as to each of his or her claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
(“state prisoners must give the state courts one full fair opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
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appellate review process”); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Petitioner did not do so with respect to this claim. Consequently, it is unexhausted
and subject to dismissal.
The Court, however, declines to dismiss the claim (or the case) on such a
procedural basis. While the exhaustion requirement is strictly enforced, it is not a
jurisdictional prerequisite for bringing a habeas petition. Granberry v. Greer, 481
U.S. 129, 134–35 (1987); Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000).
For example, an unexhausted claim may be addressed if the pursuit of state court
remedies would be futile, Witzke v. Withrow, 702 F. Supp. 1338, 1348 (W.D. Mich.
1988), or if the unexhausted claim is meritless such that addressing it would be
efficient and not offend federal-state comity. Prather v. Rees, 822 F.2d 1418, 1422
(6th Cir. 1987); see also 28 U.S.C. § 2254(b)(2) (habeas petition may be denied on
the merits despite the failure to exhaust state remedies). Such is the case here. The
interests of justice are best served by adjudicating the merits of this claim. Because
the state courts have not addressed this issue, the Court shall review the claim de
novo.
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 twoprong test for determining whether a habeas petitioner has received ineffective
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assistance of counsel. First, a petitioner must prove that counsel’s performance was
deficient. This requires a showing that counsel made errors so serious that he or
she was not functioning as counsel as guaranteed by the Sixth Amendment.
Strickland, 466 U.S. at 687. Second, the petitioner must establish that counsel’s
deficient performance prejudiced the defense. Counsel’s errors must have been so
serious that they deprived the petitioner of a fair trial or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts that were
“outside the wide range of professionally competent assistance.” Id. at 690. The
reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at
689. There is a strong presumption that trial counsel rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.

Id. at 690.

The petitioner bears the burden of overcoming the

presumption that the challenged actions were sound trial strategy.
As to the prejudice prong, a petitioner must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. A reasonable probability is one that is
sufficient to undermine confidence in the outcome of the proceeding. Id. “On
balance, the benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process

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that the [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.
Because Petitioner did not raise his ineffective assistance of trial counsel
claim in the state courts on direct appeal, neither the Michigan Court of Appeals
nor the Michigan Supreme Court addressed the issue. Consequently, the Court shall
conduct a de novo review of the claim. See, e.g., Ferensic v. Birkett, 451 F. Supp.
2d 874, 887 (E.D. Mich. 2006) (performing de novo review of unexhausted habeas
claim).
Petitioner first asserts that trial counsel was ineffective for agreeing to a
separate jury from that of co-defendant Leander. Petitioner believes that if they had
one jury Leander’s police statements (implicating Griffin) would have been
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admissible in his case and provided exculpatory evidence. Petitioner is mistaken.
First, Petitioner fails to show that counsel was deficient for agreeing to have a
separate jury from that of Leander. The record indicates that counsel agreed to a
separate jury because the prosecution erroneously told the parties and the court that
Leander’s police interview implicated Petitioner in the shooting. At the time,
Leander’s statement had not yet been provided to the parties. See 1/13/15 Trial Tr.,
pp. 41–42, ECF No. 8-20, PageID.3343–3344.

Given the prosecution’s

misrepresentation and the timing of events, it was reasonable for counsel to agree
to a jury separate from Leander. To be sure, counsel initially moved for a separate
jury for Petitioner because the prosecution had more incriminating evidence against
his co-defendants, particularly Leander, than against him (although that initial
motion was denied by the trial court). See 11/21/14 Hrg. Tr., ECF No. 8-6.
Second, Petitioner fails to establish prejudice. If there had been one jury,
Leander’s statement would have still been hearsay with respect to Petitioner and
deemed inadmissible against him as was done before his separate jury. See
discussion supra. In fact, the trial court explicitly stated that if the defendants had
been tried before one jury, it would have instructed the jurors that they could only
consider Leander’s statement against him and could not consider it with respect to
the other defendants. See 1/13/15 Trial Tr., p. 43, ECF No. 8-20, PageID.3345.
Jurors are presumed to follow the court’s instructions. See Penry v. Johnson, 532
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U.S. 782, 799 (2001) (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987));
United States v. Powell, 469 U.S. 57, 66 (1984) (“Jurors ... take an oath to follow
the law as charged, and they are expected to follow it.”). Consequently, Petitioner
cannot establish that he was prejudiced by counsel’s conduct. He fails to show that
trial counsel was ineffective under the Strickland standard.
Petitioner also asserts that trial counsel was ineffective for failing to properly
cross-examine Detective Mott about his initial mix up of Petitioner’s and Griffin’s
identities due to their similar street names. The record, however, indicates that
counsel cross-examined Mott about the issue specifically and Mott admitted his
mistake. See 1/12/15 Trial Tr., p. 125, ECF No. 8-19, PageID.3256. Counsel also
discussed Mott’s mix-up, as well as other perceived mistakes in his handling of the
investigation, during closing arguments. See 1/15/15 Trial Tr., pp. 19, 20-23, ECF
No. 8-23, PageID.3762, 3764–3766. Counsel’s conduct was reasonable. The fact
that counsel’s argument was ultimately unsuccessful does not mean that counsel
was ineffective. See Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (an
ineffective assistance of counsel claim “cannot survive so long as the decisions of
a defendant’s trial counsel were reasonable, even if mistaken”).

Moreover,

Petitioner fails to indicate what more counsel could have done to benefit his defense
as to this issue. Conclusory allegations are insufficient to warrant habeas relief.
See Cross v. Stovall, 238 F. App’x 32, 39–40 (6th Cir. 2007); Workman v. Bell, 178
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F.3d 759, 771 (6th Cir. 1998) (conclusory allegations of ineffective assistance of
counsel do not justify federal habeas relief); see also Washington v. Renico, 455
F.3d 722, 733 (6th Cir. 2006) (bald assertions and conclusory allegations do not
provide sufficient basis for an evidentiary hearing in habeas proceedings).
Petitioner fails to show that trial counsel was ineffective under the Strickland
standard.
Lastly, Petitioner asserts that trial counsel was ineffective for failing to
properly investigate and cross-examine Diamond Ruff because counsel did not
learn that there was a man named Diamond Williamson, as well as a woman named
Diamond Ruff, involved in this case and that Ruff was part of Griffin’s crew that
committed robberies and other crimes. Petitioner states that this information was
in Leander’s police interview, which was not provided to the defense until the time
of trial. As an initial matter, Petitioner fails to show that trial counsel was deficient
for not discovering or investigating this information, given that Leander’s interview
was not disclosed to the defense until the time of trial. Counsel cannot be deemed
deficient for the prosecution’s late disclosure.
Nonetheless, Petitioner also fails to establish that he was prejudiced by
counsel’s conduct.

First, he fails to show how information about Diamond

Williamson would have benefitted his defense. As noted, conclusory allegations
are insufficient to justify habeas relief.
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Workman, 178 F.3d at 771; see also Washington, 455 F.3d at 733. Second, while
information that Diamond Ruff was “part of Griffin’s crew” might have provided
impeachment evidence, the record indicates that counsel (along with counsel for the
co-defendants) cross-examined Ruff and made reasonable efforts to challenge her
version of events and impeach her credibility. In particular, counsel emphasized
Ruff’s relationship/friendship with the victim, her drinking/drug use, her conflicting
statements, and the fact that she did not witness the shooting. See 12/16/14 Trial
Tr., pp. 38-42, 85, ECF No. 8-16, PageID.2598–2602, 2645. Counsel also attacked
Ruff’s credibility during closing arguments. See 1/15/15 Trial Tr., pp. 15-16, ECF
No. 8-23, PageID.3758–3759.

Given such circumstances, Petitioner fails to

establish that trial counsel was ineffective under the Strickland standard. Habeas
relief is not warranted on this claim.
V.

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

and that he is not entitled to federal habeas relief. Accordingly, the Court DENIES
and DISMISSES WITH PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal this decision, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of
appealability may issue only if the petitioner makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief
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on the merits, the substantial showing threshold is met if the petitioner demonstrates
that reasonable jurists would find the court’s assessment of the claim debatable or
wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies
this standard by demonstrating that ... jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). Having conducted such a review, the Court concludes
that Petitioner fails to make a substantial showing of the denial of a constitutional
right as to his habeas claims. Accordingly, the Court DENIES a certificate of
appealability.
Lastly, the Court concludes that an appeal from this decision cannot be taken
in good faith. See FED. R. APP. P. 24(a). Accordingly, the Court DENIES Petitioner
leave to proceed in forma pauperis on appeal. This case is CLOSED.
IT IS SO ORDERED.

Dated: February 17, 2021

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

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