Heavlin v. Howard

Filing 9

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus; Denying a Certificate of Appealability, and Denying Leave to Proceed in Forma Pauperis on Appeal - Signed by District Judge Nancy G. Edmunds. (LBar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JENNIFER LEA HEAVLIN,
Petitioner,
CASE NO. 2:20-CV-11705
HONORABLE NANCY G. EDMUNDS

v.
JEREMY HOWARD,
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 pro se habeas case brought pursuant to 28 U.S.C. § 2254. Michigan

prisoner Jennifer Lea Heavlin (“Petitioner”) was convicted of operating a motor vehicle
while intoxicated causing death, MICH. COMP. LAWS § 257.625(4), and failing to stop at the
scene of an accident, MICH. COMP. LAWS § 257.617(3), following a jury trial in the Wayne
County Circuit Court and was sentenced to concurrent terms of 7 to 15 years imprisonment
on those convictions in 2017. In her habeas petition, she raises claims concerning the
effectiveness of trial counsel, the jury instructions, the sufficiency of the evidence, and the
conduct of the prosecutor. For the reasons set forth, the Court denies the petition for a writ
of habeas corpus, denies a certificate of appealability, and denies leave to proceed in forma
pauperis on appeal.

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II.

Facts and Procedural History
Petitioner’s convictions arise from a motor vehicle accident that resulted in the death

of a woman passenger in another vehicle in November, 2014. The Michigan Court of
Appeals described the relevant facts, which are presumed correct on federal habeas
review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009),
as follows:
This case arises out of a motor-vehicle accident in the early hours of
November 8, 2014, which caused the death of Michelle Smith. Smith was in
the front-passenger seat of a vehicle driven by her boyfriend, Mark Pagan.1
A vehicle owned by defendant was traveling in the opposite direction. As
Pagan was making a left turn, the front-passenger corner of defendant's
vehicle struck the front-passenger side of Pagan's vehicle, causing Smith's
death. Inspector James Pouliot, head of the “Downriver Crash Response
Team,” determined that both drivers were at-fault in the accident. Pagan
made an improper left-hand turn by “cutting it sharp” instead of making a
90-degree turn at the intersection. Officer Aaron Biniarz, another member of
the Crash Response Team, determined that at the time of impact defendant's
vehicle was traveling 34 miles per hour in a 25 miles-per-hour zone.
According to Pouliot, if defendant's vehicle was traveling the speed limit, the
collision “probably” would not have occurred. Similarly, if Pagan made a
proper left turn, the accident would not have occurred because defendant's
vehicle “would have already passed” the intersection.
The primary question raised by the defense at trial was whether defendant
was the driver of her vehicle at the time of the accident. Brian Tarcia testified
that he came upon the accident and exited his vehicle to see if he could offer
help. Tarcia observed defendant exiting her vehicle through the driver-side
door.2 Tarcia said that defendant told him that she had called an ambulance
and that he should leave. Tarcia then heard people from the other vehicle
yelling for help, and he called 911. Tarcia said that defendant offered him
1

Pagan's cousin, Joseph Yates, was also in the vehicle.

2

It was undisputed that the front-passenger door to defendant's vehicle was stuck
shut and that defendant would have exited through the driver-side door even if she was
a passenger in the vehicle.

2

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money for a ride and tried to enter his vehicle. After Tarcia directed her away
from his vehicle, defendant “took off running.” Based on descriptions
obtained from witnesses at the scene, law enforcement found defendant at
a nearby gas station. Defendant denied that she had been drinking and that
she was involved in an accident. She was taken to the hospital, where she
submitted to a blood test. The results were 0.192 grams of alcohol per 100
milliliters of blood, more than twice the legal limit.
In an interview with law enforcement the next day, defendant admitted to
being in her vehicle at the time of the accident but denied that she was the
driver. About a year after the accident, defendant identified Bradley
Williamson as the driver. Williamson testified that on the night of accident he
drove defendant in her vehicle to a friend's house. However, he said that
defendant left the house without him and he denied being the driver of the
vehicle. Williamson willingly provided a DNA sample.
DNA evidence was recovered from defendant's vehicle's airbags. Jennifer
Jones, a forensic biologist for the Michigan State Police, found that
defendant's DNA matched the major donor to the driver-side airbag. Both
airbags contained minor donor DNA profiles, but Jones was unable to make
any conclusions regarding those profiles. Defendant presented the testimony
of a DNA expert, Mark Perlin, who used probabilistic genotyping technology
to analyze the DNA collected from the airbags.3 Using this technology, Perlin
found “strong” statistical evidence that both defendant's and Williamson's
DNA were present in the mixture obtained from the driver-side airbag. Perlin
estimated that 85% of the DNA corresponded to defendant and 15%
corresponded to Williamson. As for the passenger-side airbag, Perlin found
statistical support that defendant's DNA was present on the airbag but “no
support and some exclusionary support” that Williamson's DNA was part of
the mixture obtained from that airbag. Perlin estimated that “[r]oughly 40
percent” of the DNA found on the passenger-side airbag was attributable to
defendant.
Closing arguments focused in large part on the interpretation of DNA
evidence. The jury heard testimony about two types of DNA transfers, direct
and secondary. A direct transfer is when a person transfers his or her DNA
directly to an object. A secondary transfer occurs when that DNA is then
transferred to a different object. The prosecutor argued that, even if the jury
accepted Perlin's conclusions, it did not mean that Williamson was driving at
3

The State did not yet have their probabilistic genotyping software “online” when
it analyzed the DNA evidence in this case.

3

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the time of the accident. The prosecutor stated that it was more likely that
Williamson's DNA was transferred to the driver-side airbag through a
secondary transfer, via the prior occasions that he was in defendant's
vehicle. The defense explained that defendant's DNA was on the driver-side
airbag because, as a passenger in the vehicle, she crawled over the driver's
seat, thereby wiping her face on the airbag.
People v. Heavlin, No. 337758, 2019 WL 96501, *1-2 (Mich. Ct. App. Jan. 3, 2019)
(footnotes in original).
Following her convictions and sentencing, Petitioner filed an appeal of right with the
Michigan Court of Appeals raising several claims, including those raised on habeas review.
The court remanded the case for a pre-sentence investigation report correction, but
otherwise affirmed her convictions. Id. at *2-9. Petitioner filed an application for leave to
appeal with the Michigan Supreme Court, which was denied in a standard order. People
v. Heavlin, 504 Mich. 902, 929 N.W.2d 361 (2019).
Petitioner thereafter filed her federal habeas petition raising the following claims:
I.

Trial counsel was ineffective for failing to make a diligent effort to
locate a critical defense witness.

II.

The jury instructions did not include the standard instruction regarding
contributory negligence, so they failed to give the jury all the
information it needed to have a reliable causation determination. The
judge plainly erred by failing to give the instructions, or in the
alternative counsel was ineffective for failing to request it.

III.

Petitioner was denied effective assistance of trial counsel where trial
counsel did not motion trial court for their own reconstruction accident
expert to challenge the State’s two experts, Poulict and Piniarz,
knowing full well that their testimony would favor the State’s theory
thus leaving petitioner without any supportive expert testimony to
favor the petitioner. Trial counsel was fully aware of Poulict’s
preliminary testimony which would be given again at trial.

IV.

Petitioner is entitled to have her operating while intoxicated causing
death conviction vacated due to insufficiency of evidence to support
all elements.
4

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V.

The trial judge abused its discretion by allowing the prosecutor to
commit misconduct by (1) denigrating petitioner’s expert witness Dr.
Perlin, (2) continually arguing with Dr. Perlin, (3) prejudicing the jury
against Dr. Perlin’s techniques, (4) reducing Dr. Perlin’s credibility to
the jury, (5) mischaracterizing Dr. Perlin’s DNA interpretation forensics
results, (6) telling the jury that Dr. Perlin’s interpretations are
unreliable because no Daubert hearing had ever occurred in Michigan
to prove the reliability when in fact the prosecutor waived his rights to
a Daubert hearing, (7) mischaracterizing the evidence, and (8) eliciting
false testimony from witness Brian Tarcia.

Respondent filed an answer to the habeas petition contending that it should be denied the
second claim is barred by procedural default and all of the claims lack merit.
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 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) (1996).
“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
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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 to 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. “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, 521 U.S.
at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
The United States Supreme Court has held that “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)). 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
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possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of the Supreme Court. Id. Thus, in order
to obtain federal habeas relief, a state prisoner must show that the state court’s rejection
of a 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.;
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,
576 U.S. 113, 118 (2016).
Section 2254(d)(1) limits a federal 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,
125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71-72. 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
7

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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 “[i]t therefore cannot
form the basis for habeas relief under AEDPA.” 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
decisions of lower federal courts may be useful in assessing the reasonableness of the
state court’s decision. 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. 2d 354,
359 (E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal
habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with
clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
Habeas review is also “limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
IV.

Discussion
A.

Effectiveness of Trial Counsel - Claims I, III

Petitioner first asserts that she is entitled to habeas relief because trial counsel was
ineffective for failing to make a diligent effort to locate a defense witness and for failing to
file a motion for a defense accident reconstruction expert to challenge the prosecution’s
experts. Respondent contends that these claims lack merit.
The Sixth Amendment to the United States Constitution guarantees a criminal
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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 ineffective 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
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 [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
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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.
1.

Failing to Locate a Witness

Petitioner asserts that trial counsel was ineffective for failing to make a diligent
effort to locate a witness, Naomi Gonzalez, to testify for the defense. Applying the
Strickland standard, the Michigan Court of Appeals denied relief on this claim explaining
in relevant part:
At the preliminary examination, Gonzalez testified that she came upon the
crash scene and saw someone leaving defendant's vehicle with “a jacket
and a hood on.” Gonzalez said she did not see the person's face, nor could
she identify the person's gender. This testimony is arguably favorable to the
defense's theory that Williamson was the driver of the vehicle. However,
upon closer examination, Gonzalez's testimony is not consistent with that
theory. Gonzalez testified that she saw only one person leave defendant's
vehicle and did not see anyone else in the vehicle. Yet, according to the
defense, Williamson would have been the first person to leave the vehicle,
followed by defendant, as the passenger door was stuck shut. So, viewed
in context, Gonzalez's testimony offers little, if any, support for the defense
theory. Rather, her testimony was consistent with the prosecution's theory
that there was only one person in defendant's vehicle at the time of the
accident.
Further, Gonzalez's description of the person leaving defendant's vehicle
was consistent with other witness's descriptions. Again, Gonzalez said that
the person exiting defendant's vehicle was wearing a jacket with a “hood
on.” Other witnesses told law enforcement that the person fleeing the crash
scene was wearing a plaid jacket. Further, Gonzalez said that the person
she saw left the crash scene on Porter Ave., which was consistent with the
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witnesses who testified at trial that defendant traveled in that direction.
Gonzalez also testified that the person she saw was “a little bit” taller than
her, which accurately describes defendant's height. Moreover, an officer
testified that when defendant was brought back to crash scene, Gonzalez
identified defendant as “the person that fled from the scene.” Thus, had
Gonzalez testified at trial, she could have been impeached with her police
statement.
In sum, Gonzalez's preliminary examination testimony was somewhat
favorable to defendant because she could not identify the gender of the
person leaving the car. However, she saw only one person, which was
inconsistent with defendant's theory. In addition, Gonzalez provided no
evidence affirmatively supporting the defense. Further, there is evidence
that on the date of the incident she had identified defendant as the person
fleeing the scene. One may argue with counsel's decision not to call
Gonzalez as a witness, but the decision, when viewed solely on the basis
of the present record, had a strategic basis.
In support of her motion to remand to the trial court for an evidentiary
hearing, defendant provides an offer of proof that trial counsel wanted to call
Gonzalez as a witness but lost her contact information and failed to reobtain
it. Assuming that this is true, counsel's actions were not objectively
reasonable. However, for the reasons discussed, we conclude that
Gonzalez did not offer defendant a substantial defense, i.e., “one that could
have affected the outcome of the trial,” Putnam, 309 Mich. App. at 248, and
therefore defendant was not prejudiced by the alleged error. Further, we
note that, on appeal, the prosecutor provides Gonzalez's handwritten
statement to the police in which she identifies defendant as the person she
saw leaving the vehicle.
Heavlin, 2019 WL 96501 at *3 (footnotes omitted).
The Michigan Court of Appeals’ decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts. Well-established
federal law requires that defense counsel conduct a reasonable investigation into the facts
of a defendant’s case, or make a reasonable determination that such investigation is
unnecessary. Wiggins, 539 U.S. at 522-23; Strickland, 466 U.S. at 691; Stewart v
Wolfenbarger, 468 F.3d 338, 356 (6th Cir. 2007); Towns v. Smith, 395 F.3d 251, 258 (6th
Cir. 2005). The duty to investigate “includes the obligation to investigate all witnesses who
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may have information concerning . . . guilt or innocence.” Towns, 395 F.3d at 258. That
being said, decisions as to what evidence to present and whether to call certain witnesses
are presumed to be matters of trial strategy. When making strategic decisions, counsel’s
conduct must be reasonable. Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); see also
Wiggins, 539 U.S. at 522-23. The failure to call witnesses or present other evidence
constitutes ineffective assistance of counsel only when it deprives a defendant of a
substantial defense. Chegwidden v. Kapture, 92 F. App’x 309, 311 (6th Cir. 2004);
Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002).
Trial counsel may have reasonably decided not to call Gonzalez as a witness
because her potential trial testimony was, in several respects, consistent with the
testimony from prosecution witnesses, her testimony conflicted with the defense theory
that two people were in Petitioner’s car at the time of the accident, and she had identified
Petitioner as the driver of the vehicle to police shortly after the accident. Given such
circumstances, counsel’s decision was strategic and reasonable. The fact that counsel’s
strategy was ultimately unsuccessful does not mean that counsel was ineffective. 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, even if trial counsel’s failure to call Gonzalez as a witness
constitutes deficient performance, Petitioner fails to show that she was prejudiced by
counsel’s conduct. As discussed by the state court, Gonzalez’s potential testimony was
not particularly favorable to the defense. Furthermore, given the significant evidence of
guilt presented at trial, see discussion infra, there is no reasonable probability that her
testimony would have affected the outcome at trial. Petitioner fails to establish that trial
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counsel was ineffective under the Strickland standard.
2.

Failing to Request a Defense Accident Reconstruction Expert

Petitioner also asserts that trial counsel was ineffective for failing to request a
defense accident reconstruction expert to challenge the prosecution’s expert witnesses.
Applying the Strickland standard, the Michigan Court of Appeals denied relief on this claim
stating in relevant part:
An attorney's decision on whether to call an expert witness is a matter of trial
strategy. People v. Payne, 285 Mich. App. 181, 190; 774 N.W.2d 714
(2009). The record does not reveal whether trial counsel consulted an
accident reconstruction expert. We note that trial counsel's
cross-examination of the prosecution's accident reconstruction witnesses
was very limited. However, while it is possible that a different expert would
have reached different conclusions, e.g., that defendant was traveling less
than 34 miles per hour, defendant does not present an offer of proof as to
the expected testimony of a defense accident reconstruction expert.
“Without some indication that a witness would have testified favorably, a
defendant cannot establish that counsel's failure to call the witness would
have affected the outcome of his or her trial.” People v. Carll, 322 Mich. App.
690, 703; 915 N.W.2d 387 (2018). Thus, even assuming that trial counsel
erred by not retaining an expert witness, defendant fails to establish that she
was prejudiced by that error.
Heavlin, 2019 WL 96501 at *3.
The Michigan Court of Appeals’ decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts. Petitioner fails to
show that trial counsel erred and/or that she was prejudiced by counsel’s conduct. She
offers no expert testimony or other evidence to support her assertion that the prosecution
experts’ testimony was erroneous or could have been successfully refuted by another
expert. Conclusory allegations, without evidentiary support, are insufficient to warrant
federal habeas relief. See Cross v. Stovall, 238 F. App'x 32, 39-40 (6th Cir. 2007);
Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998) (conclusory allegations of ineffective
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assistance of counsel do not justify 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 on habeas review). Petitioner fails to establish
that trial counsel was ineffective under the Strickland standard. Habeas relief is not
warranted on these claims.
B.

Jury Instructions and the Effectiveness of Counsel - Habeas Claim II

Petitioner next asserts that she is entitled to habeas relief because the trial court
erred by failing to provide the jury with the standard instruction on contributory negligence
and, alternatively, trial counsel was ineffective for failing to request it. Respondent
contends that this claim is procedurally defaulted (in part) and that it lacks merit.
In order for habeas relief to be warranted on the basis of incorrect jury instructions,
a petitioner must show more than that the instructions are undesirable, erroneous or
universally condemned. Rather, taken as a whole, they must be so infirm that they
rendered the entire trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 72 (1991);
Henderson v. Kibbe, 431 U.S. 145, 154 (1977). A jury instruction is not to be judged in
artificial isolation, but must be considered in the context of the instructions as a whole and
the trial record. Jones v. United States, 527 U.S. 373, 391 (1999); Grant v. Rivers, 920
F. Supp. 769, 784 (E.D. Mich. 1996). The failure to give an instruction that is supported
by the evidence does not automatically justify habeas relief – the failure to instruct must
have rendered the trial fundamentally unfair. Cupp v. Naughten, 414 U.S. 141, 147
(1973); Daniels v. Lafler, 501 F.3d 735, 741 (6th Cir. 2007). “An omission, or an
incomplete instruction, is less likely to be prejudicial than a misstatement of the law.”
Henderson, 431 U.S. at 155. State law instructional errors rarely form the basis for federal
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habeas relief. Estelle, 502 U.S. at 71-72.
The Michigan Court of Appeals denied relief on this claim stating in relevant part:
In this case, the jury was instructed that it was required to find that
defendant was both a factual and proximate cause of Smith's death and was
given accurate definitions of those terms. The jury was also instructed in
accordance with M Crim JI 16.15:
There may be more than one cause of death. It is not enough
that the defendant's act made it possible for the death to
occur. In order to find that the death of Michelle Smith was
caused by the defendant, you must find beyond a reasonable
doubt that the death was the natural or necessary result of
defendant's acts.
Defendant argues that the trial court erred in failing to also give the jury M
Crim JI 16.20, which provides:
If you find that [named deceased ] was negligent, you may
only consider that negligence in deciding whether the
defendant's conduct was a substantial cause of the accident.
This instruction is based on the decision in People v. Tims, 449 Mich. 83,
97-99; 534 N.W.2d 675 (1995), which reaffirmed that negligence on the part
of the decedent is not an affirmative defense, but that a jury may consider
the decedent's negligence in determining whether the defendant's actions
were a proximate cause of death. Defendant's argument that the trial court
could have given a modified version of this instruction, i.e., with reference
to the negligence of the other driver, has some merit. However, M Crim JI
16.15 accurately explains the proximate cause standard and it was not plain
error not to give M Crim JI 16.20. No error results from the omission of an
instruction if the instructions as a whole covered the substance of the
omitted instruction. Kurr, 253 Mich. App. at 327.7
Even if M Crim JI 16.20 (or some variation thereof) should have been
presented to the jury, it is not more probable than not that the instruction
would have led to a different outcome. “[T]he contributory negligence of a
decedent will not exonerate a defendant of criminal responsibility, where the
defendant's negligence is a proximate cause of the decedent's death.”
People v. Bailey, 451 Mich. 657, 678; 549 N.W.2d 325 (1996) (citation
7

For the same reasons, we reject defendant's alternative argument that trial
counsel was ineffective for not requesting the instruction.
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omitted). There was substantial evidence presented to the jury from which
it could find that defendant was a proximate cause of the victim's death.
Defendant was highly intoxicated and driving 10 miles per hour over the
speed limit around 3.00 a.m. She had a BAC of .192, over twice the legal
limit. When officers found defendant at the gas station, she was “staggering,
unbalanced.” Officers declined to perform a field sobriety test because it was
apparent that defendant was intoxicated and that it would have been unsafe
to perform those tests. Officer Biniarz testified that there was no evidence
of “any pre-impact braking,” which allowed the jury to infer that defendant
was so intoxicated that she made no effort to avoid the collision. Thus,
substantial evidence supported the conclusion that a death arising from a
motor-vehicle accident was a direct and natural result of defendant's actions.
Defendant also suggests that the court should have instructed the jury that
a defendant is not a proximate cause of the accident if there was an
intervening, superseding cause. As the Supreme Court stated in Feezel:
Whether an intervening cause supersedes a defendant's
conduct is a question of reasonable foreseeability. [Schaefer,
473 Mich. at 437]. Ordinary negligence is considered
reasonably foreseeable, and it is thus not a superseding
cause that would sever proximate causation. Id. at 436-437.
In contrast, “gross negligence” or “intentional misconduct” on
the part of a victim is considered sufficient to “break the causal
chain between the defendant and the victim” because it is not
reasonably foreseeable. Id. Gross negligence, however, is
more than an enhanced version of ordinary negligence. Id. at
438. “It means wantonness and disregard of the
consequences which may ensue ....” People v. Barnes, 182
Mich. 179, 198; 148 NW 400 (1914). “Wantonness” is defined
as “[c]onduct indicating that the actor is aware of the risks but
indifferent to the results” and usually “suggests a greater
degree of culpability than recklessness ....” Black's Law
Dictionary (8th ed.). [Feezel, 486 Mich. at 195-196.]
Thus, in order for a jury to have found Pagan's actions to be a superseding
intervening cause they would have needed to conclude that his conduct
constituted gross negligence. Pagan had a BAC of .08, just over the legal
limit. MCL 257.625(1)(b). The Supreme Court has declined to decide
“[w]hether, in a multiple vehicle accident, a victim-driver's intoxication raises
a presumption of gross negligence ....” Feezel, 486 Mich. at 196 n 5.
Defendant also points out that Pagan made an improper left turn even
though he could see headlights of an oncoming vehicle “coming towards
[him] from behind the train tracks,” or, as one officer put it, “a little over the
length of a yard of a house.” Defendant argues this was grossly negligent
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because Pagan saw the danger of executing a turn when he could see
approaching traffic. However, Pagan's testimony indicates that his error was
in underestimating how fast defendant's vehicle was traveling, an
explanation that is certainly consistent with the fact that defendant was
speeding. Moreover, Pagan was traveling at a safe speed and a reasonable
jury could not conclude that an action as common as cutting a turn short
constitutes gross negligence rather than ordinary negligence. Pagan's turn
was not so unforeseeable that defendant should not be considered the
proximate cause of the victim's death, especially considering that defendant
was so intoxicated that she made no effort to avoid the crash.8 For those
reasons, even if the trial court should have given a jury instruction on
superseding intervening cause, it is unlikely that the jury would have found
that defendant was not a substantial cause of the accident. Accordingly, if
there was an instructional error, defendant was not prejudiced.
Heavlin, 2019 WL 96501 at *4-5 (footnotes in original).
The Michigan Court of Appeals’ 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 instructing the jury under Michigan law,
she merely alleges a violation of state law which does not justify federal habeas relief.
See, e.g., Rashad v. Lafler, 675 F.3d 564, 569 (6th Cir. 2012) (“a state court’s
interpretation of the propriety of a jury instruction under state law does not entitle a habeas
claimant to relief”). State courts are the final arbiters of state law and the federal courts
will not intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v.
Jago, 809 F.2d 326, 328 (6th Cir. 1987); see also Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (“a state court’s interpretation of state law, including one announced on direct
8

Section 627 of the Michigan Vehicle Code, MCL 257.1 et seq., provides in part:

(1) A person operating a vehicle on a highway shall operate that vehicle at
a careful and prudent speed ... having due regard to the traffic ... and any
other condition existing at the time. A person shall not operate a vehicle
upon a highway at a speed greater than that which will permit a stop within
the assured, clear distance ahead. [MCL 257.627(1).]
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appeal of the challenged conviction, binds a federal court on habeas review”); Sanford v.
Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Habeas relief does not lie for perceived errors
of state law. Estelle, 502 U.S. at 67-68 (“it is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions”).
Second, Petitioner fails to establish that the trial court’s failure to give the standard
contributory negligence instruction violated her federal due process rights. The trial court
properly instructed the jury on the elements of the charged offenses, including factual and
proximate causation. See 3/10/17 Trial Tr., ECF No. 8-20, PageID.1051-1054. In
particular, the trial court instructed the prosecution must prove that “but for the defendant’s
operation of the vehicle the death would not have occurred” and that “death or serious
injury must have been a direct and natural result of the operation of the vehicle.” Id. at
PageID.1051-1052. The trial court also instructed the jury that there “may be more than
one cause of death. It is not enough that the defendant’s act made It possible for the deat
to occur ... you must find beyond a reasonable doubt that the death was the natural or
necessary result of defendant’s acts.” Id. at PageID.1056. Such instructions were
sufficient to inform the jurors that they must find that Petitioner’s actions were the factual
and proximate cause of the victim’s death. Additionally, based upon the expert testimony
at trial, the jury was well aware that the actions of the driver of the victim’s vehicle also
contributed to the accident. See, e.g., 3/7/17 Trial Tr., ECF No. 8-17, PageID.754-755,
757, 764-765. Petitioner fails to show that the trial court’s failure to give the standard
contributory negligence instruction denied her a fundamentally fair trial.
Moreover, even if the trial court erred by failing to give the contributory negligence
instruction, such error was harmless.

For purposes of federal habeas review, a
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constitutional error is considered harmless if it did not have a “substantial and injurious
effect or influence” on the outcome of the proceeding. Brecht v. Abrahamson, 507 U.S.
619, 637 (1993); Ruelas v. Wolfenbarger, 580 F.3d 403, 411 (6th Cir. 2009) (ruling that
Brecht is “always the test” in the Sixth Circuit). Furthermore, a state court’s decision that
an error was harmless constitutes an adjudication “on the merits” to which the highly
deferential AEDPA standard applies. Davis v. Ayala, 576 U.S. 257, 269 (2015). Habeas
relief is thus not warranted unless the state court’s “‘harmlessness determination itself was
unreasonable.’” Id. (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007)). In this case, given
the substantial evidence of Petitioner’s guilt presented at trial, see discussion infra, the
alleged instructional error did not have a substantial or injurious effect on the jury’s verdict.
Lastly, given the Michigan Court of Appeals’ determination that the contributory
negligence instruction was not warranted and/or that the failure to give the instruction was
harmless error, Petitioner cannot establish that trial counsel erred and/or that she was
prejudiced by counsel’s conduct. Trial counsel cannot be deemed ineffective for failing to
make a futile or meritless argument. Tackett v. Trierweiler, 956 F.3d 358, 375 (6th Cir.
2020); Hoffner v. Bradshaw, 622 F.3d 487, 499 (6th Cir. 2010). Petitioner fails to establish
that trial counsel was ineffective under the Strickland standard. Habeas relief is not
warranted on this claim.
C.

Sufficiency of the Evidence - Claim IV

Petitioner next asserts that she is entitled to habeas relief because the prosecution
failed to present sufficient evidence to support her convictions – namely that she was the
driver of the vehicle and that her actions were the proximate cause of the victim’s death.
Respondent contends that this claim lacks merit.
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The Due Process Clause “protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citation and
footnote omitted). The sufficiency of the evidence standard “must be applied with explicit
reference to the substantive elements of the criminal offense as defined by state law,”
Jackson, 443 U.S. at 324 n. 16, and through the framework of 28 U.S.C. § 2254(d). Martin
v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus, under the AEDPA, challenges to the
sufficiency of the evidence “must survive two layers of deference to groups who might
view facts differently” than a reviewing court on habeas review – the factfinder at trial and
the state court on appellate review – as long as those determinations are reasonable.
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).
Additionally, “it is the responsibility of the jury – not the court – to decide what
conclusions should be drawn from the evidence admitted at trial.” Cavazos v. Smith, 565
U.S. 1, 2 (2011) (per curiam). A federal habeas court may not re-weigh the evidence or
re-determine the credibility of the witnesses. Marshall v. Lonberger, 459 U.S. 422, 434
(1983); Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). Rather, the court
must defer to the factfinder at trial for its assessment of the credibility of witnesses. Id.
As with any crime, the prosecution must prove beyond a reasonable doubt that the
defendant committed the charged offense. People v. Kern, 6 Mich. App. 406, 409, 149
N.W.2d 216 (1967). Direct or circumstantial evidence and reasonable inferences arising
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from that evidence may constitute satisfactory proof of the elements of an offense, People
v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993), including the identity of the
perpetrator, Kern, 6 Mich. App. at 409; see also People v. Johnson, 146 Mich. App. 429,
434, 381 N.W.2d 740 (1985), and the defendant’s intent or state of mind. People v.
Dumas, 454 Mich. 390, 398, 563 N.W.2d 31 (1997); see also People v. Nowack, 462 Mich.
392, 402-03, 614 N.W.2d 78 (2000).
Applying the Jackson standard, the Michigan Court of Appeals denied relief on this
claim. The court explained in relevant part:
Defendant argues that there was insufficient evidence for the jury to find that
she was driving her vehicle at the time of the accident. Contrary to
defendant's assertion on appeal, her expert's DNA analysis did not
definitively establish that Williamson was the driver of the vehicle. As the
prosecutor argued at trial, one could accept Perlin's findings and still
conclude that defendant—not Williamson—was in the driver's seat when the
vehicles collided and the airbags deployed. Although Perlin found that both
defendant's and Williamson's DNA was on the driver-side airbag, defendant
was a major donor while Williamson was a minor donor. This evidence
supports the conclusion that defendant was the driver of the vehicle.
Defendant argues that her DNA transferred to the airbag when she climbed
over the driver's seat to exit the vehicle. However, “it is unnecessary for the
prosecutor to negate every reasonable theory consistent with the
defendant's innocence. It is sufficient if the prosecution proves its own
theory beyond a reasonable doubt in the face of whatever contradictory
evidence the defendant may provide.” People v. Carson, 189 Mich. App.
268, 269; 471 N.W.2d 655 (1991). Further, if defendant was in the
passenger seat when the airbags deployed, one would expect that the
amount of DNA mixture attributable to her would be more than 40%.
Regardless if 40% constitutes a major or minor donor in this case, it is
significantly less DNA than what defendant left on the driver-side airbag.
Thus, even accepting Perlin's findings, the DNA evidence is more consistent
with defendant being the driver of the vehicle than Williamson. Moreover,
the jury heard testimony about how Williamson's DNA could have been
present in the vehicle when the airbags deployed even if he was not in the
vehicle at the time of accident. In addition to driving the vehicle the night of
the accident, Williamson estimated that he had driven the vehicle on about
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15 other occasions. Additionally, in an interview with law enforcement,
defendant disclosed that she and Williamson had sex in her vehicle.
Setting aside the DNA evidence, substantial circumstantial evidence
supported the jury's finding that defendant was the driver of the vehicle.
Defendant was the owner of the vehicle. Tarcia stopped at the crash and
observed defendant exiting the vehicle. No witness saw anyone else exiting
the vehicle. Defendant then fled the scene, which was evidence of guilty
knowledge. People v. Coleman, 210 Mich. App. 1, 4; 532 N.W.2d 885
(1995). Initially, she denied to the police that she was even involved in the
accident, and she did not identify Williamson as the purported driver of the
vehicle until a year after the accident. Williamson testified and denied being
the driver of the vehicle, which the jury apparently found credible. “This
Court will not interfere with the trier of fact's role of determining the weight
of the evidence or the credibility of witnesses.” Kanaan, 278 Mich. App. at
619. Viewing the evidence in a light most favorable to the prosecution, there
was sufficient evidence presented for a rational jury to find that defendant
was the driver of the vehicle. For the reasons discussed above, there was
also sufficient evidence presented for a rational jury to find that defendant
was a proximate cause of the accident.
Heavlin, 2019 WL 96501 at *6-7.
The Michigan Court of Appeals’ decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts. The prosecution
presented sufficient evidence to establish that Petitioner was the driver of the vehicle at
the time of the accident. Such evidence includes the expert testimony that Petitioner was
the major contributor of the DNA found on the driver’s side airbag (the circular airbag), see
3/8/17 Trial Tr., ECF No. 8-18, PageID.799. and that her injuries were consistent with the
damage to the steering wheel, see 3/7/17 Trial Tr., ECF No. 8-17, PageID.770-771, Brian
Tarcia’s testimony that he saw Petitioner exit the driver side of the vehicle, that she offered
him money for a ride, and that she fled the scene on foot, see 3/6/17 Trial Tr., ECF No.
8-16, PageID.586-589, Petitioner’s false statements to police when confronted at the gas
station shortly after the accident, see, 3/7/17 Trial Tr., ECF No. 8-17, PageID.665-667,
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Bradley Williamson’s testimony that he was not driving Petitioner’s vehicle nor was he in
the vehicle at the time of the accident. See 3/7/17 Trial Tr., ECF No. 8-17, PageID.696,
and Shaun Byram’s testimony that when he saw Petitioner and Williamson a day or two
after the accident, Petitioner had visible injuries (injuries she showed him), but Williamson
did not. See 3/8/17 Trial Tr., ECF No.8-18, PageID.869, 883. Such testimony, if believed,
established that Petitioner was the driver of her vehicle at the time of the accident such
that it was reasonable for the jury to convict her of the charged offenses.
Additionally, the prosecution presented sufficient evidence to establish that
Petitioner’s actions were the proximate cause of the victim’s death. Under Michigan law,
the causation element of a criminal offense consists of both factual causation and
proximate causation. People v. Feezel, 486 Mich. 184, 194, 783 N.W.2d 67 (2010) (citing
People v. Schaefer, 473 Mich. 418, 435, 703 N.W.2d 774 (2005)). “Factual causation
exists if a finder of fact determines that “but for” defendant’s conduct the result would not
have occurred.” Id. at 194-195 (citing Schaefer). If the criminal result would not have
occurred absent the defendant's conduct, then factual causation exists. Schaefer, 473
Mich. at 435-36. Proximate causation “is a legal construct designed to prevent criminal
liability from attaching when the result of the defendant's conduct is viewed as too remote
or unnatural.” Feezel, 486 Mich. at 195 (citing Schaefer). Proximate cause means that
“[t]he victim’s injury must be a ‘direct and natural result’ of the defendant’s action.”
Schaefer, 473 Mich. at 435. “If the finder of fact determines that an intervening cause
supersedes a defendant’s conduct ‘such that the causal link between the defendant’s
conduct and the victim’s injury was broken,’ proximate cause is lacking and criminal
liability cannot be imposed.” Feezel, 486 Mich. at 195 (quoting Schaefer). “In assessing
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criminal liability for some harm, it is not necessary that the party convicted of a crime be
the sole cause of that harm, only that he [or she] be a contributory cause that was a
substantial factor in producing the harm. The criminal law does not require that there be
but one proximate cause of harm found. Quite the contrary, all acts that proximately
cause the harm are recognized by the law.” People v. Bailey, 451 Mich. 657, 676, 549
N.W.2d 325 (1996).
The evidence at trial provided sufficient evidence to show that Petitioner’s conduct
was both the factual and proximate cause of the victim’s death. Such evidence included
police and expert testimony indicating that Petitioner was highly intoxicated at the time of
the accident with a blood alcohol level of .192, more that twice the legal limit, see 3/7/17
Trial Tr., ECF No. 8-17, PageID.714-715, that she driving 9-10 miles per hour over the
speed limit, see id. at PageID.724, 744, 755, that her driving speed was a cause of the
crash, see id. at PageID.757, and that she did not brake to avoid the crash when the
victim’s car turned in front of her vehicle. See id. at PageID.725. Such testimony, if
believed, was sufficient to demonstrate that Petitioner’s drunk driving and speeding was
both the factual cause and the proximate cause of the car accident and the victim’s death.
While the other driver’s actions may have contributed to the accident, it was reasonable
for the jury to conclude that such conduct was foreseeable, merely negligent, and did not
break the causal link between Petitioner’s actions and the victim’s death.
Petitioner challenges the jury’s evaluation of the testimony and evidence presented
at trial. However, it is the job of the fact-finder at trial, not a federal habeas court, to
resolve such evidentiary conflicts. Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d
594, 618 (6th Cir. 2002); see also Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983)
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(“A federal habeas corpus court faced with a record of historical facts that supports
conflicting inferences must presume – even if it does not affirmatively appear in the record
– that the trier of fact resolved any such conflicts in favor of the prosecution, and must
defer to that resolution.”). The jury’s verdict and the Michigan Court of Appeals’ decision
affirming that verdict were reasonable. Habeas relief is not warranted on this claim.
E.

Conduct of the Prosecutor - Claim V

Lastly, Petitioner asserts that she is entitled to habeas relief because the prosecutor
engaged in misconduct by denigrating and arguing with defense expert Dr. Perlin, mischaracterizing the DNA evidence, telling the jury that Dr. Perlin’s interpretations were
unreliable when an evidentiary hearing was not requested by the prosecutor, and eliciting
false testimony from witness Brian Tarcia. Respondent contends that these claims lack
merit.
The Supreme Court has made clear that prosecutors must “refrain from improper
methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S.
78, 88 (1935). To prevail on a claim of prosecutorial misconduct, a habeas petitioner must
demonstrate that the prosecutor’s conduct or remarks “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974); see also Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing
Donnelly); Parker v. Matthews, 567 U.S. 37, 45 (2012) (confirming that Donnelly/Darden
is the proper standard). The standard “is a very general one, leaving courts more leeway
... in reaching outcomes in case-by-case determinations.”

Parker, 567 U.S. at 48

(punctuation modified). “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
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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, 638-639 (6th Cir. 2017)
The Michigan Court of Appeals denied relief on these claims explaining in relevant
part:
Defendant presents numerous allegations of prosecutorial misconduct,
primarily focusing on the prosecutor's cross-examination of defense expert
Perlin. Specifically, the prosecutor asked Perlin whether TrueAllele's
scientific reliability had been proven in a Michigan court through a Daubert
hearing, and he answered negatively. Defendant argues that this line of
questioning was improper considering that the prosecutor declined to
request a Daubert hearing for her expert. On cross-examination, a party
“has a right to draw out from the witness and lay before the jury anything
tending or which may tend to contradict, weaken, modify, or explain the
testimony of the witness on direct examination or which tends or may tend
to elucidate the testimony or affect the credibility of the witness.” People v.
Bell, 88 Mich. App. 345, 349; 276 N.W.2d 605 (1979) (quotation marks and
citation omitted). The prosecutor's questions on this matter properly
highlighted for the jury that TrueAllele is a new and novel way to analyze
DNA evidence. Trial counsel could have requested a curative instruction to
inform the jury that the prosecution declined to request a Daubert hearing,
and reversal is not warranted when the prejudicial effect of the prosecutor's
statement could be cured by a curative instruction. People v. Unger, 278
Mich. App. 210, 235; 749 N.W.2d 272 (2008). Further, during redirect, Perlin
testified that TrueAllele has been ruled reliable in several other states and
that no such hearing has been held in Michigan. Thus, to the extent that the
prosecutor's question was improper or misleading, trial counsel cured any
harm to defendant.
Next, defendant argues that it was improper for the prosecutor to ask Perlin
about his compensation and to argue that the jury should consider the fact
that he was being paid for his testimony in weighing his credibility. MRE
611(c) provides that “[a] witness may be cross-examined on any matter
relevant to any issue in the case, including credibility.” Evidence of a
witness's bias is “almost always relevant.” People v. Layher, 464 Mich. 756,
764; 631 N.W.2d 281 (2001) (quotation marks and citation omitted). The fact
that an expert witness is being paid to testify is relevant to his or her
credibility because an expert witness may slant his or her testimony in favor
of the retaining party. See id. at 763. Thus, it was not improper for the
prosecutor to question Perlin about his compensation. Further, once
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evidence of an expert's compensation was elicited, the prosecutor was “free
to argue from the evidence presented at trial that an expert witness had a
financial motive to testify.” Unger, 278 Mich. App. at 237.
Defendant takes issue with the prosecutor confirming with Perlin that he did
not have a “wet laboratory” and asking questions about his staff member's
degrees. There was nothing improper about these questions. On direct
examination, Perlin testified at length about TrueAllele and how this program
works and therefore opened the door to questions about his work facility and
the people who execute the TrueAllele software. More generally, defendant
contends that the prosecutor impermissibly denigrated Perlin. As noted, the
prosecutor had a right to a thorough cross-examination and he was not
required to do so in the blandest possible terms. We also note that
defendant does not argue that the prosecutor denigrated her or her counsel.
Viewed in context, the prosecutor's cross-examination of Perlin did not deny
defendant a fair trial.
Defendant also argues that the prosecutor mischaracterized the DNA
evidence. “The prosecutor may not make a statement of fact that is
unsupported by the evidence. But the prosecutor may argue reasonable
inferences arising from the evidence to the extent that the inferences relate
to the prosecutor's theory of the case.” People v. Lane, 308 Mich. App. 38,
67; 862 N.W.2d 446 (2014) (footnotes omitted). Defendant contends that the
prosecutor erred in telling the jury that Williamson's DNA could have
transferred to the airbag without him being in the vehicle at the time of the
accident. However, while the experts testified that a secondary transfer of
DNA was less probable than a direct transfer, they also agreed that such a
transfer is possible. Thus, the prosecutor did not commit misconduct in
making this argument to the jury. Rather, the prosecutor made a reasonable
inference from the evidence that Williamson's DNA was deposited on the
driver-side airbag through a secondary transfer.
Defendant also argues that the prosecutor erred in stating that defendant
was not a major DNA contributor to the passenger-side airbag. Perlin
estimated that about 40% of the DNA found on that airbag belonged to
defendant. Perlin conceded that it was unclear whether 40% meant that
defendant should be considered a major contributor, considering that the
other contributors were minor: “[T]he terminology is ambiguous. You could
say she's the predominant contributor. Because some people call it major;
some people call it minor.” Perlin and the prosecutor also disagreed over
whether Perlin referred to defendant as a “minor contributor” in his report.
So there was evidentiary support for the prosecutor's argument that
defendant was not a major contributor to the passenger-side airbag. In sum,
the prosecutor did not misstate the DNA evidence.
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We have reviewed the remainder of defendant's claims of prosecutorial
misconduct and conclude that they are without merit. Defendant argues that
numerous comments by the prosecutor in opening statements and closing
arguments were either misleading or misrepresentations of the evidence.
Again, the prosecutor was allowed to make reasonable inferences from the
evidence and he was not required to state his arguments in the blandest
terms possible. We also conclude that there is no merit in defendant's claim
that the prosecutor elicited false testimony from Tarcia.
Heavlin, 2019 WL 96501 at *7-8 (footnotes omitted).
The Michigan Court of Appeals’ 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 prosecutor erred by questioning Dr. Perlin about his
compensation, laboratory, staff, and scientific process, she is not entitled to relief. The
state court ruled that such evidence was relevant to his credibility and properly admitted
under state law.

This Court is bound by that state law determination.

See, e.g.,

Bradshaw, 456 U.S. at 76; Sanford, 288 F.3d at 860. A prosecutor’s good faith effort to
admit evidence does not constitute misconduct, particularly where, as here, the trial court
admits the evidence. Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008). Petitioner fails
to show that the prosecutor erred, let alone that such conduct rendered her trial
fundamentally unfair.
Second, Petitioner is not entitled to relief on her claim that the prosecutor
improperly denigrated and argued with Dr. Perlin. It is well-settled that prosecutors "may
strike hard blows," but they are "not at liberty to strike foul ones." United States v. Young,
470 U.S. 1, 7 (1985) (quoting Berger, 295 U.S. at 88). In this case, the record shows that
the prosecutor challenged Dr. Perlin’s credibility and methods and argued from his
testimony and the other testimony at trial that his conclusions were unreliable.
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prosecutor may argue reasonable inferences from the evidence, Bates v. Bell, 402 F.3d
636, 646 (6th Cir. 2005), and may argue from the facts that a witness is or is not worthy
of belief. Portuondo v. Agard, 529 U.S. 61, 69 (2000). While the prosecutor may have
aggressively cross-examined Dr. Perlin, he did not personally denigrate him. Petitioner
fails to show that the prosecutor’s questions and argument with respect to Dr. Perlin were
improper and/or that they rendered her trial fundamentally unfair.
Third, Petitioner is not entitled to relief on her claim that the prosecutor mischaracterized the DNA evidence. While a prosecutor may not misstate the evidence,
United States v. Carter, 236 F.3d 777, 784 (6th Cir. 2001), or argue facts not in evidence,
Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000), see also Stermer v. Warren,
959 F.3d 704, 725 (6th Cir. 2020), a prosecutor can make arguments based upon the
evidence and has “leeway to argue reasonable inferences from the evidence” during
closing arguments. United States v. Crosgrove, 637 F.3d 646, 664 (6th Cir. 2011); Byrd
v. Collins, 209 F.3d 486, 535 (6th Cir. 2000). Such was the case here. The prosecutor’s
argument that Petitioner was the major contributor of the DNA on the driver side airbag
was supported by the expert testimony at trial, as was the prosecutor’s argument that
Petitioner was a minor contributor (40%) of the DNA on the passenger side airbag.
Petitioner fails to show that the prosecutor’s argument was improper and/or that it
rendered her trial fundamentally unfair.
Fourth, Petitioner is not entitled to relief on any claim that the prosecutor erred by
questioning Dr. Perlin about TrueAllele’s reliability for analyzing DNA evidence and
arguing that his method was unreliable when the prosecutor failed to request an
evidentiary hearing on the issue. Again, the state court ruled that such evidence was
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relevant and admissible under state law and this Court is bound by that decision. See,
e.g., Bradshaw, 456 U.S. at 76; Sanford, 288 F.3d at 860. A prosecutor’s good faith effort
to admit evidence does not constitute misconduct, particularly where, as here, the trial
court admits the evidence. Cristini, 526 F.3d at 900. Additionally, any prejudice to
Petitioner was mitigated by Dr. Perlin’s testimony on re-direct that the TrueAllele method
had been found to be reliable in other states but no such hearing had been held in
Michigan. Petitioner fails to show that the prosecutor’s conduct in his regard rendered her
trial fundamentally unfair.
Fifth, Petitioner is not entitled to relief on her claim that the prosecutor elicited false
testimony from witness Brian Tarcia. In particular, she alleges that Tarcia’s testimony that
she offered to pay him money for a ride and then fled the scene was false because a
police officer testified that his report did not include that information. The Supreme Court
has made clear that the "deliberate deception of a court and jurors by the presentation of
known and false evidence is incompatible with the rudimentary demands of justice." Giglio
v. United States, 405 U.S. 150, 153 (1972). It is thus well-settled that "a conviction
obtained by the knowing use of perjured testimony is fundamentally unfair, and must be
set aside if there is any reasonable likelihood that the false testimony could have affected
the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976) (footnote
omitted); see also Napue v. Illinois, 360 U.S. 264, 271 (1959); Coe v. Bell, 161 F.3d 320,
343 (6th Cir. 1998). To prevail on a claim that a conviction was obtained by evidence that
the government knew or should have known to be false, a defendant must show that the
statements were actually false, that the statements were material, and that the prosecutor
knew that the statements were false. Coe, 161 F.3d at 343. Petitioner bears the burden
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of proving that the disputed testimony constituted perjury. Napue, 360 U.S. at 270.
In this case, the mere fact that Tarcia testified about facts that were not included
in a police report does not mean that his testimony was false, nor does it show that the
prosecution knowingly presented false testimony. The fact that a witness contradicts
himself or changes his story does not establish perjury. See Macon v. Davis, 450 F. App’x
491, 493 (6th Cir. 2011) ("[M]ere inconsistent statements by the same witness are
insufficient to establish indisputable falsity."); Malcum v. Burt, 276 F. Supp. 2d 664, 684
(E.D. Mich. 2003). Mere inconsistencies in witnesses’ testimony also do not establish the
knowing use of false testimony. Coe, 161 F. 3d at 343. “While a prosecutor may not
knowingly use perjured testimony, a prosecutor is not required to ensure that prosecution
witnesses' testimony be free from all confusion, inconsistency, and uncertainty.” Jackson
v. Lafler, No. 06-CV-15676, 2009 WL 1313316, *12 (E.D. Mich. May 11, 2009). Petitioner
fails to establish that Tarcia’s testimony was false and/or that the prosecutor knowingly
presented false testimony which rendered her trial fundamentally unfair.
Furthermore, the record shows that the trial court properly instructed the jurors on
the law, explained that the attorneys’ statements, arguments, and questions are not
evidence, and directed the jurors to evaluate the credibility of witnesses and to decide the
case based solely on the evidence. See 3/10/17 Trial Tr., ECF No. 8-20, PageID.10571058. Such instructions mitigated any potential prejudice to Petitioner. See, e.g., Hamblin
v. Mitchell, 354 F.3d 482, 495 (6th Cir. 2003); Knapp v. White, 296 F. Supp. 2d 766, 776
(E.D. Mich. 2003). Jurors are presumed to follow the court’s instructions. Penry v.
Johnson, 532 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
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the law as charged, and they are expected to follow it.”). Petitioner fails to establish that
the prosecutor engaged in misconduct which rendered her trial fundamentally unfair.
Habeas relief is not warranted on these claims.
V.

Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to federal

habeas relief on her claims. Accordingly, the Court DENIES and DISMISSES WITH
PREJUDICE the petition for a writ of habeas corpus.
Before Petitioner may appeal, 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 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). Petitioner makes no such showing. 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 leave to proceed
in forma pauperis on appeal.
IT IS SO ORDERED.
s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: March 20, 2023
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