Pruesner v. Rewerts

Filing 7

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. Signed by District Judge Victoria A. Roberts. (LVer)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT PRUESNER,
Petitioner,
v.

CASE NO. 2:20-CV-12164
HONORABLE VICTORIA A. ROBERTS

RANDEE REWERTS,
Respondent.
_____________________________/
OPINION & ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
& 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 Robert

Pruesner (“Petitioner”) was convicted of armed robbery and first-degree home invasion following
a jury trial in the Oakland County Circuit Court and was sentenced, as a fourth habitual offender,
to concurrent terms of 25 to 50 years imprisonment and 15 to 40 years imprisonment in 2017. In
his pleadings, Petitioner raises claims concerning the effectiveness of his two trial attorneys
(collectively referred to as trial counsel). The Court concludes that Petitioner is not entitled to
habeas relief on his claims.
II.

Facts and Procedural History
Petitioner’s convictions arise from the home invasion and armed robbery of a man named

Chaz Green at his home in Oakland County, Michigan in August, 2016. 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:

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According to the record, shortly after Chaz Green's girlfriend left for the night, a
man, wearing all black, with a “beanie” on his head and a bandana around his mouth,
forcibly entered Green's house through the back door. Green ran to the bedroom and
the man followed him there. The man, while holding a handgun, told Green to give
him “all the cash” or he would kill Green. Green gave him a bag that contained about
$700. The man demanded the rest of the cash, so Green went into the living room,
where he retrieved approximately $1,000 he had hidden there. The man demanded
more money and pulled out a second gun. Green testified that when he did so, the
bandana slipped down and Green had “a better view of his face for just a split
second.” The man threatened to kill Green if he called the police. Green waited a day
before calling the police.
Green testified that he believed that defendant was the person who robbed him. He
explained that he had met defendant at a bar through his cousin, Bradley Ormsby,
about a month before the crime. Green said that defendant noticed that he carried a
lot of cash, and Green explained to defendant that he did not “believe in banks.”
Green said that he may have told defendant about a recent lawsuit settlement that he
received. Green testified that only three people knew where he lived: his girlfriend,
Ormsby, and Ormsby's friend “Reese.” Green told law enforcement that he believed
Ormsby set up the robbery. Ormsby testified and denied any involvement in the
crime and denied that he told defendant where Green lived. Defendant did not testify.
People v. Pruesner, No. 337576, 2018 WL 4575146, *1 (Mich. Ct. App. Sept. 20, 2018)
(unpublished).
Following his convictions and sentencing, Petitioner filed an appeal of right, along with a
motion to remand for an evidentiary hearing, with the Michigan Court of Appeals raising the
following claims:
I.

Trial counsel were constitutionally ineffective in failing to argue against admission
of his prior convictions for breaking and entering a building, home invasion second
degree, and receiving and concealing stolen property for impeachment, where his
testimony [Pruesner’s] was crucial to the decisional process and the prior convictions
were only moderately probative of veracity.

II.

He was denied his Sixth Amendment right to the effective assistance of
counsel where his trial attorneys failed to investigate a potential alibi witness,
and failed to file the required notice of intent to present an alibi defense and
present the alibi witness, which would have been consistent with the defense
theory at trial that he was misidentified as the perpetrator of the charged
offenses.
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The Michigan Court of Appeals remanded the case to the trial court for an evidentiary hearing
“limited to the claim that defense counsel was ineffective because he failed to object to the use of
defendant’s prior convictions under MRE 609.” Id. at *3 (order following opinion). The
prosecution filed an application for leave to appeal with the Michigan Supreme Court, which was
denied. People v. Pruesner, 503 Mich. 912, 919 N.W.2d 641 (Mich. 2018) (unpublished).
The trial court then held an evidentiary hearing during which both of Petitioner’s trial
attorneys and Petitioner testified. Defense counsel James Makowski testified that he met with
Petitioner before trial, was aware of his prior convictions, thought that he had a good reasonable
doubt defense and a possible alibi defense via his mother, and wanted him to testify at trial. At their
very first meeting, however, Petitioner refused and said that he did not want to take the stand.
11/30/18 Evid. Hrg., pp. 9, 12-13, ECF No. 6-8, PageID.237, 240-241. Makowski testified that part
of the reason that he did not file a motion in limine to exclude the prior convictions was due to
ambiguity about who was representing Petitioner for a period of time. Id. at pp. 18-19, ECF No.
246-247. Makowski testified that he and defense counsel Elisha Oakes ultimately decided to work
together and met on November 28, 2016. At that meeting, they discovered that Petitioner had given
them “widely divergent versions of the story” that were “mutually exclusive,” so they decided to
conduct a joint meeting with Petitioner at the jail. Id. at pp. 24-25, PageID.252-253. During that
joint meeting, Petitioner confessed to committing the crime and said that his mother had lied to the
police to give him an alibi. Id. at p. 26, PageID.254. The attorneys realized they could not call
Petitioner to the stand, id. at p. 27, PageID.255, and they informed Petitioner of this fact. Id. at p.
34, PageID.262.

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Makowski recalled discussing Petitioner’s prior convictions for similar crimes with him and
stated that they would only have been admissible if Petitioner testified. Id. at pp. 28-29,
PageID.256-257. Makowski also recalled that the victim was aware of Petitioner’s prior convictions
(through a family member) and explained that if the victim brought them up, it would be grounds
for seeking a mistrial or dismissal. Id. at p. 31, PageID.259. Makowski believed that he informed
Petitioner that he could be impeached with his prior convictions if he testified at trial. Id. at p. 36,
PageID.264. Once Petitioner refused to take the stand and confessed to the crime during the joint
meeting, the defense strategy was to “poke holes’ in the case, namely challenging the police
investigation and the victim’s credibility. Id. at p. 27, PageID.265. Makowski testified that he told
Petitioner that he understood why he did not want to testify and explained that he advised Petitioner
not to testify because of his admission of guilt, not because of his prior convictions. Id. at p. 44,
PageID.272. He also stated that if Petitioner had been able to testify, he would have challenged the
admissibility of the prior convictions. Id. at p. 46, PageID.274.
Defense counsel Elisha Oakes testified that she met with Petitioner several times before trial,
11/30/18 Evid. Hrg. Tr., p. 57, ECF No. 6-9, PageID.285. When she first met with him, he “made
it very clear that he did not want to testify.” Id. at p. 59, PageID.287. She testified that the prior
criminal convictions were one reason to not testify, but that another reason arose at the joint
meeting, and that her defense strategy was to attack the credibility of the witnesses. Id. She was
aware of Petitioner’s mother as a potential alibi witness, but noted that there were discrepancies in
the stories told by Petitioner and his mother. Id. at pp. 60-61, PageID.288-289. Oakes ruled out the
alibi defense after the joint meeting in which Petitioner admitted his guilt and she realized that his
mother was lying. Id. at p. 62, PageID.290. Oakes confirmed that the joint meeting was

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necessitated by the fact that Petitioner told her and Makowski different versions of events and they
needed the meeting to clarify matters. Id. at p. 63, PageID.291.
Oakes recalled asking Petitioner if he wanted to testify and he declined. She advised him
that if he testified, his prior convictions could be admissible unless the judge found them more
prejudicial than probative. She noted that her advice changed once Petitioner admitted his guilt and
she then advised him that they could not put him on the stand. Id. at p. 65, PageID.293. Oakes
recalled getting the prosecution notice about the prior convictions, but she was not aware of any
witness, other than Petitioner, who could testify about them. Id. at pp. 67, 70, PageID.295, 298.
Oakes explained that she did not file a motion in limine because Petitioner made it very clear from
the preliminary examination to the day of trial that he was not testifying. Id. at p. 70, PageID.298.
She also testified that Petitioner admitted his guilt at the joint meeting and that he, at that meeting
or subsequent meetings, provided factual details of the crime, including the involvement of others.
Id. at p. 71, PageID.299. After Petitioner decided that he did not want to testify and then admitted
his guilt, the attorneys advised him that if he changed his mind and chose to testify, they would be
very limited in their ability to question him and, if he lied on the stand, they would have to
withdraw. Id. at pp. 82-83, PageID.310-311. Oakes confirmed that the attorneys decided not to call
Petitioner to testify, unless he demanded to do so, after he admitted his guilt due to ethics, as well
as concerns about his credibility and prior convictions. Id. at p. 83, PageID.311. The defense
strategy at trial was to attack the prosecution witnesses’ credibility and the police investigation and
to argue reasonable doubt. Id. at pp. 85-87, PageID.313-315. Oakes also testified that she and
Petitioner met after trial to discuss sentencing and Petitioner said that he would testify against two
other people who were involved in the crime in exchange for sentencing consideration. Id. at p. 91,

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PageID.319.
Petitioner testified that when he met with Oakes before the preliminary examination, she
advised him not to testify at the preliminary examination and told him that if he testified at trial “it
would sway the jury to believe that [he] was guilty” because of his similar prior criminal history.
11/30/18 Evid. Hrg., pp. 106-108, ECF No. 6-10, PageID.334-336. He said that there was no other
reason for him not to testify. Id. at p. 108, PageID.336. Petitioner testified that at the joint meeting,
the attorneys initially disagreed about the case, but then decided that the defense would be to rely
on the lack of evidence and for him to remain silent. He denied telling the attorneys that he
committed the crime and denied giving them details about the crime at that meeting or any other
time. Id. at pp. 109-110, PageID.337-338.
Petitioner said that he waived his right to testify based on his attorneys’ advice and his past
criminal history. Id. at p. 110, PageID.338. Petitioner said that he wanted to testify initially, but
changed his mind when he learned that his criminal history could be used against him. He said that
if the prior convictions would have been kept out, he would have testified at trial. Id. at p. 116,
PageID.344. Upon further questioning, Petitioner also stated that, in retrospect, he would have
testified even if the convictions were admitted. Id. at p. 118, PageID.346. Petitioner denied telling
Oakes that he would testify against two others for a sentencing deal. Id. at p. 119, PageID.347.
At the conclusion of the hearing, the trial court credited the testimony of the trial attorneys,
found that they had strategic and ethical reasons for ultimately advising Petitioner not to testify at
trial, concluded that the attorneys were not ineffective, and indicated that the court would deny the
motion for new trial. 11/30/18 Evid. Hrg., pp. 141-146, ECF Nos. 6-10, 6-11, PageID.369-374.
The Michigan Court of Appeals subsequently denied Petitioner relief on his claims and

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affirmed his convictions. People v. Pruesner (After Remand), No. 337576, 2019 WL 1085468, *1
(Mich. Ct. App. March 7, 2019). Petitioner filed an application for leave to appeal with the
Michigan Supreme Court, which was denied in a standard order, People v. Pruesner, 504 Mich.
947, 931 N.W.2d 317 (2019).
Petitioner thereafter filed his federal Habeas Petition raising the same two ineffective
assistance of counsel claims presented to the state courts on direct appeal of his convictions. ECF
No. 1. Respondent filed an Answer to the Petition contending that it should be denied for lack of
merit. ECF No. 5.
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

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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 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

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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.
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 decision
contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16.

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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.

Ineffective Assistance of Counsel - Prior Convictions Claim

Petitioner first asserts that he is entitled to habeas relief because trial counsel was ineffective
for failing to file a motion in limine to exclude his prior convictions, which precluded him from
testifying on his own behalf at trial. Respondent contends that this claim lacks merit.
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 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

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functioning as counsel as 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 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 that the [proceeding] cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
The Supreme Court 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 performances.
“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 (citations omitted). “When

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§ 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.
Applying the Strickland standard, the Michigan Court of Appeals denied relief on this
claim. The court explained in relevant part:
At the hearing, the two attorneys who represented defendant at his criminal trial
each testified that defendant did not want to testify during the trial. Defendant
testified at the hearing and agreed with this assessment, but asserted that he reached
this decision only after being told by counsel that his criminal convictions would
be used against him if he testified during the trial.
We have held that counsel is not ineffective for failing to file a motion in limine
opposing the introduction of prior convictions when the defendant indicated that he
never intended to testify. People v. Marshall, 298 Mich. App. 607, 615-616; 830
N.W.2d 414 (2012), vacated in part on other grounds 493 Mich. 1020 (2013). In
this case, the trial court found credible the attorneys' testimony that defendant
definitely was not going to testify. Further, both attorneys testified that defendant
eventually admitted to them that he had committed the crime and thus the attorneys
believed that they could not ethically put defendant on the stand. “[A]n attorney's
refusal to knowingly assist in the presentation of perjured testimony is not only
consistent with ... ethical obligations, but cannot be the basis of a claim of
ineffective assistance of counsel.” People v. Toma, 462 Mich. 281, 303 n.16; 613
N.W.2d 694 (2000). While defendant denied making this admission to defense
counsel, the trial court found the attorneys' testimony credible. Deferring to the trial
court's credibility determination, People v. Cartwright, 454 Mich. 550, 555; 563
N.W.2d 208 (1997), we conclude that defendant did not demonstrate that he was
denied effective assistance of counsel.
Pruesner (After Remand), 2019 WL 1085468 at *1.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. At the evidentiary hearing, Petitioner’s trial
attorneys testified that they did not file a motion in limine to exclude Petitioner’s prior convictions,
in part, because Petitioner was adamant that he did not want to testify at trial and his prior
convictions were otherwise not going to be admissible against him. Such conduct was reasonable,
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particularly given that they were able to challenge the police investigation and the victim’s
credibility and argue reasonable doubt without Petitioner’s testimony. See, e.g., Marshall v. Haas,
No. 14-11878, 2017 WL 24789, *9 (E.D. Mich. Jan. 3, 2017) (denying habeas relief on similar
claim that trial counsel was ineffective for not filing a motion in limine to exclude prior convictions
where the petitioner did not testify at trial); see also Greene v. Lafler, 447 F. Supp. 2d 780, 794
(E.D. Mich. 2006) (trial counsel was not ineffective for failing to effectively argue for exclusion
of petitioner’s prior conviction, even if he might have testified had conviction been suppressed,
where he did not testify, there was no mention of the prior conviction at trial, and counsel was able
to adequately present defense of misidentification without his testimony).
Moreover, Petitioner’s attorneys also testified that when they confronted Petitioner with his
inconsistent stories and he admitted his guilt of the offense, they agreed that he could not testify
at trial for ethical reasons (such that a motion to exclude his prior convictions was unnecessary) and
they would instead focus on challenging the police investigation and the victim’s credibility in an
effort to create reasonable doubt about his guilt. Such a strategy was reasonable under the
circumstances. To be sure, an attorney cannot be ineffective for abiding by ethical duties and
refusing to present perjured testimony. See Nix v. Whiteside, 475 U.S. 157, 176 (1986) (“If a
‘conflict’ between a client’s proposal and counsel’s ethical obligation gives rise to a presumption
that counsel’s assistance was prejudicially ineffective, every guilty criminal’s conviction would be
suspect if the defendant had sought to obtain an acquittal by illegal means. Can anyone doubt what
practices and problems would be spawned by such a rule and what volumes of litigation it would
generate?”). The fact that trial counsel’s strategy was ultimately unsuccessful does not mean that
counsel was ineffective. See Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002).

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Petitioner alleges that he wanted to testify at trial and he only refused to do so after trial
counsel told him that his prior convictions would be admitted against him. He further alleges that
he never admitted his guilt to counsel. The trial court (and the Michigan Court of Appeals),
however, rejected Petitioner’s testimony to that effect and instead credited trial counsel’s testimony
at the evidentiary hearing. Such credibility determinations are presumed correct and entitled to
deference on habeas review. 28 U.S.C. § 2254(e)(1); Davis v. Ayala, 576 U.S. 257, 271 (2015);
Miller-El v. Cockrell, 537 U.S. 322, 339 (2003); Marshall v. Lonberger, 459 U.S. 422, 434 (1983).
A habeas petitioner has the burden to rebut the presumption with clear and convincing evidence.
28 U.S.C. § 2254(e)(1); Davis, 576 U.S. at 271; see also Miller-el v. Dretke, 545 U.S. 231, 265
(2005) (a habeas court cannot disturb a trial court’s credibility determination unless evidence is
presented that is “too powerful to conclude anything” other than an erroneous determination by the
trial court). Petitioner makes no such showing. The evidentiary hearing record supports the
Michigan Court of Appeals’ denial of relief. Petitioner fails to establish that trial counsel was
ineffective under the Strickland standard. Habeas relief is not warranted on this claim.
B.

Ineffective Assistance of Counsel - Alibi Claim

Petitioner also asserts that trial counsel was ineffective for failing to sufficiently investigate
his alibi defense and call his mother to testify as an alibi witness. Respondent contends that this
claim lacks merit.
As discussed, in order to prevail on an ineffective assistance of counsel claim, a petitioner
must prove that trial counsel’s performance was deficient and that counsel’s performance
prejudiced the defense. Strickland, 466 U.S. at 687. To satisfy the performance prong, a petitioner
must identify acts that were “outside the wide range of professionally competent assistance.” Id.

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at 690. The reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at 689.
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.
The Michigan Court of Appeals did not distinctly address this issue on direct appeal, but
the court nonetheless concluded that trial counsel was not ineffective and affirmed Petitioner’s
convictions. Pruesner (After Remand), 2019 WL 1085468 at *1. Accordingly, the Court must
presume that the court rejected the claim on the merits and apply the AEDPA’s deferential standard
of review. See Bojaj v. Berghuis, 702 F. App’x 315, 320 (6th Cir. 2017) (“[W]hen a state court [is]
faced with a habeas petitioner’s constitutional argument but silently rejected it, ‘a federal habeas
court must presume’ that the state court adjudicated the federal claim on the merits.”).
The state court’s denial of relief is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts.1 It is well-settled that defense counsel must
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 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

1

The Court notes that it would reach the same result under a de novo standard of review.
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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 a known alibi witness can constitute ineffective assistance of counsel,
Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir. 2004), but counsel is not required to call a witness
whose credibility is questionable. Thurmond v. Carlton, 489 F. App’x 834, 840 (6th Cir. 2012).
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).
The record here indicates that trial counsel’s performance was not deficient. At the
evidentiary hearing, Petitioner’s trial attorneys testified that they reviewed the police reports, spoke
with Petitioner, and were aware that his mother could be a potential alibi witness. Counsel decided
not to call Petitioner’s mother as a witness after Petitioner confessed his guilt to them and they
realized that her version of events was not credible. Counsel was thus aware of the potential alibi
witness, investigated her, and had legitimate reasons not to present her at trial – namely their ethical
concerns about her veracity and the viability of the defense.
Counsel’s decision not to call Petitioner’s mother as an alibi witness due to concerns about
her credibility was reasonable. See, e.g., Stadler v. Berghuis, 483 F. App’x 173, 176-77 (6th Cir.
2012).
Given such issues with the purported alibi witness, trial counsel may have also reasonably
believed that contesting the prosecution’s case and casting doubt on the credibility of the victim
would be more effective than presenting an alibi defense which could be subject to significant
challenge. See, e.g., Hale v. Davis, 512 F. App’x 516, 522 (6th Cir. 2013) (stating that sometimes
it may be “better to try to cast pervasive suspicion of doubt” by challenging the prosecution’s case

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than to “strive to prove a certainty that exonerates”). To be sure, the record indicates that trial
counsel challenged the police investigation and the victim’s credibility and presented a solid
reasonable doubt defense. Again, the fact that counsel’s strategy was ultimately unsuccessful does
not mean that counsel was ineffective. Moss, 286 F.3d at 859. Petitioner fails to show that trial
counsel’s performance was deficient or that he was deprived of a substantial defense. He thus 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 is not entitled to federal habeas

relief on his claims. Accordingly, the Court DENIES and DISMISSES WITH PREJUDICE the
Petition for a Writ of Habeas Corpus.
Before Petitioner can appeal this decision, a Certificate of Appealability (“COA”) must
issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A COA may issue only if the
petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); 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). Petitioner
makes no such showing. The Court DENIES a COA.
Lastly, the Court concludes that an appeal from this decision cannot be taken in good faith.
See FED. R. APP. P. 24(a). The Court DENIES Petitioner leave to proceed in forma pauperis on
appeal. This case is closed.

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IT IS SO ORDERED.

s/ Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: May 6, 2022

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