Pettes v. Stephenson

Filing 13

OPINION and ORDER Denying Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, and Granting Leave to Proceed on Appeal in Forma Pauperis. Signed by District Judge Jonathan J.C. Grey. (SOso)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAMMY LEE PETTES,
Petitioner,

Case No. 21-cv-11726
Hon. Jonathan J.C. Grey

v.
GEORGE STEPHENSON,
Respondent.
/
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS, DENYING CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO PROCEED ON
APPEAL IN FORMA PAUPERIS
Petitioner Sammy Lee Pettes, a Michigan state prisoner proceeding
pro se, has filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his convictions for second-degree murder,
Mich. Comp. Laws § 750.317, and possession of a firearm during the
commission of a felony, Mich. Comp. Laws § 750.227b. Pettes raises three
claims: the trial court improperly admitted two photographs of him
holding a handgun, the trial court violated his right to a fair trial by
admitting hearsay testimony, and appellate counsel rendered ineffective
assistance.

The Court DENIES the petition and declines to issue a certificate
of appealability. The Court grants Petitioner leave to proceed in forma
pauperis on appeal.
I.

Background
Following a jury trial in Wayne County Circuit Court, Pettes was

convicted of second-degree murder and felony firearm for the shooting
death of Joseph Tanksley, Jr. on October 13, 2014 in Detroit. On October
26, 2015, he was sentenced to 15 to 30 years for the second-degree murder
conviction to be served consecutive to 2 years for the felony-firearm
conviction.
Pettes filed an appeal by right in the Michigan Court of Appeals.
The Michigan Court of Appeals set forth the following relevant facts:
This case arises from a conflict that occurred on the afternoon
of October 13, 2014. While there were variations in the
testimony, each witness to the events described a dispute
between two groups. The victim, Joseph Tanksley Jr. (Joe Jr.),
and his brother, Javontae Walker, resided with their mother
on the even-numbered side of Beaconsfield Street in Detroit.
Their father, Joseph Tanksley Sr. (Joe Sr.) was visiting on the
day of the incident. The group containing defendant was made
up of several young men who were visiting or planning to visit
a house on the odd-numbered side of the street just opposite
to the victim's home. The incident began when Javiez Maton,
a friend of Walker’s, walked down the street between the two
houses with his girlfriend, Carissma Funches. Several
individuals in the group on the odd-numbered side yelled a
2

vulgar comment at Funches. Maton responded appropriately,
and Walker, who had observed the interaction, also responded
verbally. One of the individuals on the odd-numbered side
then jumped off of the porch and put a pistol to Maton’s head.
Over the next several minutes, additional individuals,
including a young woman named Talaya Johnson, joined the
group on the odd-numbered side of Beaconsfield, and several
other individuals, including Walker’s father and Joe Jr., the
victim, joined the group of individuals on the even-numbered
side of the street as the verbal altercation continued. The man
threatening Maton with the pistol pulled back, but, several
minutes later, a firefight erupted. Joe Jr. was shot in the
firefight and died from his wounds that same day.
Talaya Johnson later identified defendant and another man,
Teandre Kennedy, as the shooters from the odd side of the
street, and Walker, who admitted to retaliating, as the only
shooter from the even side of the street.[] Johnson stated that
defendant was carrying a dark-colored six shot revolver and
that Kennedy was carrying a silver automatic. The bullet
ultimately recovered from Joe Jr.’s body was a revolver round.
The trial turned largely on the issue of identification.
Defendant was identified as the shooter at trial by Joe Sr.,
Walker, and Johnson. Joe Sr. and Walker were impeached on
the basis of the fact that both had failed to identify defendant
in a line-up shortly after the incident. Joe Sr. offered no
explanation for his failure to identify the defendant at the
line-up. Walker testified that he purposely did not identify
defendant because he wanted to take justice into his own
hands and did not want the police involved. Johnson, who did
identify defendant at the line-up, was impeached by
testimony from several other prosecution witnesses that
disputed her claim that she attempted to prevent the shooting
and instead testified that she urged the group on the oddnumbered side of the street to start shooting.

3

Defendant’s theory at trial was that he was not present at the
incident and that he was home with his mother, who offered
alibi testimony. Defendant also relied on the fact that out of
eight witnesses who viewed the line-up, only Johnson
identified him; the other seven did not identify him as the
shooter or even as having been present. The prosecution
explained the lack of line-up identifications as due to the fact
that defendant had an unusual hairstyle and, because they
could not find any other line-up participants with that hair
style, they had all the participants in the line-up wear hats in
order to avoid a situation where defendant obviously stood out
from the others. As a result, the most salient characteristic of
the defendant was not available for the witnesses to see
during the line-up.
People v. Pettes, No. 330711, 2017 WL 2303335, at *1-2 (Mich. Ct. App.
May 25, 2017). These facts are presumed correct on habeas review under
28 U.S.C. § 2254(e)(1). Wagner v. Smith, 581 F.3d 410, 413 (6th Cir.
2009).
The Michigan Court of Appeals affirmed Pettes’s conviction and
sentence. Pettes, 2017 WL 2303335 (Mich. Ct. App. May 25, 2017). Pettes
sought leave to appeal in the Michigan Supreme Court, which the court
denied. People v. Pettes, 501 Mich. 976 (Mich. Feb. 20, 2018).
Pettes then filed a motion for relief from judgment, but the trial
court denied the motion. 12/17/2019 Order, People v. Pettes, No. 15001023-01 (ECF No. 9-18). The Michigan Court of Appeals denied
Pettes’s application for leave to appeal, People v. Payne, No. 354421
4

(Mich. Ct. App. Oct. 23, 2020), as did the Michigan Supreme Court.
People v. Pettes, 507 Mich. 954 (Mich. June 1, 2021).
Pettes then filed this habeas petition on July 16, 2021. He seeks
relief on the following three claims. First, he claims that the trial court
abused its discretion when it allowed the admission of two Facebook
photographs. Second, Pettes claims he was denied his due process right
to a fair trial by the admission of irrelevant hearsay evidence concerning
a witness indicating being scared to testify, which he claims was
substantially more prejudicial than probative of defendant’s guilt for the
instant charges. Third, he claims that his appellate counsel was
ineffective, for failing to raise: (1) insufficient evidence, (2) ineffective
assistance of trial counsel, and (3) failure to call potential witnesses.
Respondent has filed an answer in opposition arguing that the
petition is untimely and, alternatively, that the claims are meritless.
(ECF No. 8.) Petitioner has not filed a reply brief.
II.

Legal Standard
A § 2254 habeas petition is governed by the heightened standard of

review set forth in the Anti-Terrorism and Effective Death Penalty Act
(AEDPA). 28 U.S.C. § 2254. To obtain relief, habeas petitioners who
5

challenge “a matter ‘adjudicated on the merits in State court’ [must] show
that the relevant state court ‘decision’ (1) ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law,’ or (2) ‘was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.’” Wilson v. Sellers, 548
U.S. 122, 124-25 (2018) (quoting 28 U.S.C. § 2254(d)). The focus of this
standard “is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007). “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) (internal citations and quotation marks omitted).
“A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). Also, a state-court’s factual determinations are presumed correct
on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited
6

to the record that was before the state court.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011).
III. Discussion
A. Statute of Limitations
Respondent argues that the petition is barred by the one-year
statute of limitations. A one-year limitations period applies to all habeas
corpus petitions. 28 U.S.C. § 2254(d)(1). A prisoner must file a federal
habeas corpus petition “from the latest” of four dates: (A) the date on
which the state-court judgment became final; (B) the removal date of an
unconstitutional state impediment to filing for federal habeas relief; (C)
the date the Supreme Court recognizes a new constitutional right made
retroactive and applicable to collateral review; or (D) the date the
prisoner discovered new facts that could not have been discovered
previously. 28 U.S.C. § 2244(d)(1).
Pettes is not relying on a newly-recognized constitutional right or
on newly-discovered facts, and he has not alleged that a state-created
impediment prevented him from filing a timely petition. Consequently,
the relevant subsection here is § 2244(d)(1)(A), which states that a

7

conviction becomes final at “the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
The Michigan Supreme Court denied Pettes’s application for leave
to appeal on February 20, 2018. People v. Pettes, 501 Mich. 976 (Mich.
Feb. 20, 2018). Pettes did not petition for a writ of certiorari with the
United States Supreme Court. His conviction became final on May 21,
2018, the last day that he could seek certiorari. Bronaugh v. Ohio, 235
F.3d 280, 283 (6th Cir. 2000) (one-year statute of limitations does not
begin to run until the 90-day period for filing a petition for a writ of
certiorari for direct review in the United States Supreme Court has
expired). The last day on which a petitioner can file a petition for a writ
of certiorari in the United States Supreme Court is not counted toward
the one-year limitations period, so the limitations period began on May
22, 2018. Id. at 285.
The limitations period continued to run until Pettes filed a motion
for relief from judgment in the trial court, on April 4, 2019. Respondent
argues that the motion was filed on April 23, 2019, which is the date the
motion was docketed. (ECF No. 8, PageID.266, ECF No. 9-1, PageID.316.)
Under the prisoner mailbox rule, a pro se prisoner’s court documents are
8

considered filed when the prisoner delivers them to prison authorities for
mailing. See Houston v. Lack, 487 U.S. 266, 270 (1988). Absent contrary
evidence, courts assume that a prisoner hands over a pleading to prison
officials on the date the prisoner signs the complaint. See Brand v.
Motley, 526 F.3d 921, 925 (6th Cir. 2008). While Pettes did not sign his
motion for relief from judgment, his signed proof of service is dated April
4, 2019. (See ECF No. 9-16, PageID.1530.) Thus, his motion is considered
filed on that date. The motion for relief from judgment tolled the
limitations period with 48 days remaining. 28 U.S.C. § 2244(d)(2) (“The
time during which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim
is pending shall not be counted toward any period of limitation.”). The
limitations period continued to be tolled until the Michigan Supreme
Court denied his application for leave to appeal on June 1, 2021. People
v. Pettes, 507 Mich. 954 (Mich. June 1, 2021). The limitations period
resumed running the following day, June 2, 2021, with 48 days
remaining. The petition was timely filed on July 16, 2021, three days
before the one-years limitations period expired.

9

B. Evidentiary Rulings
Pettes’s first two claims concern the trial court’s evidentiary
rulings. Alleged trial court errors in the application of state evidentiary
law are generally not cognizable as grounds for federal habeas relief. See
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of
a federal habeas court to reexamine state-court determinations on statelaw questions.”). State courts are the final arbiters of state law and
federal courts will not intervene in such matters. Estelle, 502 U.S. at 6768; see also White v. Steele, 602 F.3d 707, 711 (6th Cir. 2009) (“State
courts, after all are the final arbiters of the state law’s meaning and
application and [federal court] is not the appropriate forum to adjudicate
such issues.”) (internal quotation and citation omitted).
In rare circumstances, the federal courts will intervene when
evidentiary rulings may violate constitutional due process (and thereby
provide a basis for habeas relief) where the admission “is so extremely
unfair that its admission violates ‘fundamental conceptions of justice.’”
Dowling v. United States, 493 U.S. 342, 352 (1990) (quoting United States
v. Lovasco, 431 U.S. 783, 790 (1977)); Bugh v. Mitchell, 329 F.3d 496, 512
(2003). The Supreme Court “defined the category of infractions that
10

violate fundamental fairness very narrowly.” Estelle, 502 U.S. at 73
(1991).
To violate due process, an evidentiary decision must “offend[ ] some
principle of justice so rooted in the traditions and conscience of our
people.” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (citation
omitted). This standard accords the state courts “wide latitude ... with
regard to evidentiary matters under the Due Process Clause.” Id. To show
that admission of evidence violated due process, a petitioner generally
must identify “a Supreme Court case establishing a due process right
with regard to [the] specific kind of evidence” challenged. Moreland v.
Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012).
i. Facebook Photographs
Pettes challenges the admission of two photographs retrieved from
what the prosecutor contended was Pettes’s Facebook page. Each
photograph showed Pettes holding a handgun, an automatic in one
photograph and a revolver in the other. Pettes argues that the
photographs were not admitted for a proper purpose, lacked a proper
foundation, constituted improper propensity evidence under Mich. R.
Evid. 404(b), and were unfairly prejudicial.
11

Pettes challenged the admission of the photographs on direct
appeal and the Michigan Court of Appeals denied relief. The court ruled
that the evidence was relevant and probative because “[e]vidence of a
defendant’s possession of a weapon of the kind used in the offense with
which he is charged is routinely determined by courts to be direct,
relevant evidence of his commission of that offense.” Pettes, 2017 WL
2303335, at *2. The state court also held that Mich. R. Evid. 404(b) was
not implicated because the photographs were “not proof of any other
crime nor were they even proof of a bad act unless one defines holding a
gun or having access to a gun to be a bad act.” Id. That court also
determined that the officer-in-charge properly authenticated the
photographs under Mich. R. of Evid. 901(b)(1) and that any questions
regarding whether the Facebook page belonged to Pettes and whether
the photographs actually depicted him were properly left for the jury to
decide. Id. at *3.
Finally, the Michigan Court of Appeals held that the probative
value of the photographs was not outweighed by the possibility of unfair
prejudice. These are all issues of state law and the Court declines to
comment on or intervene in these findings.
12

Petitioner failed to show a due process violation. He has not pointed
to any authority, and the Court has found none, to establish that the
Michigan Court of Appeals’ decision was contrary to, or an unreasonable
application of, Supreme Court precedent.
Here, the trial court acted within the bounds of due process when it
admitted these photographs. Habeas relief is denied on this claim.
ii. Talaya Johnson’s Testimony
In his second claim, Pettes maintains that the admission of Talaya
Johnson’s testimony that she had been threatened violated his due
process right to a fair trial. The Michigan Court of Appeals held that the
trial court did not abuse its discretion in admitting this testimony:
At the outset of Johnson’s testimony, the prosecutor asked her
who fired the shots, and she stated that she could not
remember. Only after the prosecutor showed Johnson the
statement she gave pursuant to an investigative subpoena
and asked if it refreshed her memory did she testify that it
was defendant who fired the first shot. Later in the direct
exam, the prosecutor stated that Johnson seemed not to be
feeling well, a fact which she confirmed. The prosecutor then
went into a series of questions regarding Johnson’s behavior
on the day of the preliminary exam. It was brought out that
she had hidden in the courthouse bathroom during that
proceeding and did not testify. The prosecutor asked her to
explain that behavior. Johnson then testified that she and her
family had moved to Georgia because “after I talked to the
cops I had to move.” She explained that during defendant’s
preliminary exam, her brother called her and told her that
13

defendant’s girlfriend, told him that “she was going to send
someone to my mom’s house to shoot her house up.”
The trial court overruled hearsay and prejudice objections to
this testimony. It concluded that although the alleged report
given to her by her brother was an out-of-court statement, it
was not admitted for the truth of the matter asserted. Rather,
the court concluded that it was admitted to explain Johnson’s
fearful state of mind. Given that Johnson initially testified
that she could not remember who the shooter was, the
prosecution was entitled to present evidence that this failure
of memory was not due to doubts about the facts, but due to
fear of retribution. Therefore, the trial court’s ruling that the
statement was offered not for the truth of the matter asserted
but for its effect on the listener, was not an abuse of discretion.
We agree that the testimony about the alleged threats carried
with it a significant risk of prejudice as it strongly suggested
that whoever made the threats was worthy of punishment for
doing so. However, Johnson did not testify that the threats
came from defendant or even on his behalf. In addition, the
jury was given standard instructions about evaluation of a
witness’s testimony including the relevancy of threats or
promises made to a witness and that the jury was not to
consider whether defendant was a bad person or had
committed any other crimes.
Given the potential for prejudice, it would have been well
within the trial court’s discretion to exclude the testimony
about the alleged threats. However, for the reasons just
reviewed, we cannot say that it was an abuse of discretion for
the trial court to have allowed the jury to hear the testimony.
The trial court had the opportunity to observe Johnson’s
demeanor, which we do not, and it made a reasonable
judgment that the testimony was necessary for the jury to
properly evaluate her testimony, which was central to the
case.
14

Pettes, 2017 WL 2303335, at *4.
Pettes points to no Supreme Court case holding that testimony
about threats admitted into evidence, to explain a witness’s reluctance to
testify, violates due process, and the Court is aware of none. The state
court determined that the testimony was properly admitted under state
law and the Court declines to consider whether its application of state
law is correct.
C. Ineffective Assistance of Appellate Counsel
In his third claim, Pettes maintains that he received ineffective
assistance of appellate counsel because counsel failed to challenge the
sufficiency of the evidence and failed to raise claims of ineffective
assistance of trial counsel on appeal to the Michigan Court of Appeals.
To prove ineffective assistance of counsel, a movant must show that
counsel’s

performance

“fell

below

an

objective

standard

of

reasonableness” and that the deficient performance resulted in prejudice
to the defense, such that there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Courts “must judge the reasonableness of counsel’s challenged conduct
15

on the facts of the particular case, viewed as of the time of counsel’s
conduct,” and “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689-90. The standards created by Strickland and §
2254(d) make habeas review of ineffective-assistance claims “doubly
deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
In the context of an ineffective assistance of appellate counsel
claim, a petitioner must show that counsel was objectively unreasonable
in omitting a particular claim on appeal and that there is a reasonable
probability that, but for counsel’s error, petitioner would have prevailed
on appeal. Smith v. Robbins, 528 U.S. 259, 285 (2000). A defendant does
not have a constitutional right to have appellate counsel raise every nonfrivolous issue on appeal:
For judges to second-guess reasonable professional judgments
and impose on appointed counsel a duty to raise every
“colorable” claim suggested by a client would disserve the . . .
goal of vigorous and effective advocacy. . .. Nothing in the
Constitution or our interpretation of that document requires
such a standard.
Jones v. Barnes, 463 U.S. 745, 754 (1983).
i. Sufficiency of the Evidence
Pettes asserts that appellate counsel was ineffective for failing to
argue that insufficient evidence supported his second-degree murder
16

conviction. Specifically, he maintains that the prosecution failed to prove
the intent element of second-degree murder.
Sufficient evidence supports a conviction if, “after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original). The elements of second-degree murder under
Michigan law are: “(1) a death, (2) caused by an act of the defendant, (3)
with malice, and (4) without justification or excuse.” People v. Goecke, 457
Mich. 442, 463, (1998). Malice is defined as “the intent to kill, the intent
to cause great bodily harm, or the intent to do an act in wanton and
willful disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm.” Id. Malice may be
inferred from the use of a deadly weapon. People v. Carines, 597 N.W.2d
130, 136 (Mich. 1999).
The trial court issued the last reasoned state court opinion
addressing Pettes’s ineffective assistance of appellate counsel claims:
In the instant case, several witnesses testified that the
argument had already ended when the shooting began. Joe,
Sr. testified that they had all retreated back into their house
when the shooting began. He said that he and the group put
17

their rifle back into the house and stayed on the porch when
Defendant came toward them shooting while Kennedy walked
at an angle while shooting. Clearly, this is direct evidence that
there was a “wilful disregard of the likelihood that the natural
tendency of such behavior is to cause death or great bodily
harm.” Goecke, supra. Hence, the jury could reasonably infer
or conclude that “malice” was proven beyond a reasonable
doubt.
12/17/2019 Opinion at 5-6, People v. Pettes, No. 15-001023 (Wayne
County Cir. Ct. Dec. 17, 2019) (ECF No. 9-18, PageID.1546-47).
Pettes argues that, at most, the evidence supported a verdict of
manslaughter. The trial court’s decision is supported by the evidence,
including testimony the altercation had ended and Walker was in the
process of setting the rifle inside the house when Pettes began shooting
in Walker’s direction. Since the evidence is sufficient for a rational trier
of fact to find that Pettes acted with malice, Pettes cannot show that his
appellate counsel was ineffective for failing to raise this claim.
ii. Ineffective Assistance of Trial Counsel
Next, Pettes maintains that appellate counsel was deficient by
failing to raise two ineffective assistance of trial counsel claims.
Specifically, Pettes argues that defense counsel was ineffective for failing
to request a voluntary manslaughter instruction and for failing to call a
former co-defendant as a witness. To evaluate whether appellate counsel
18

performed deficiently by failing to raise the ineffective assistance of trial
counsel claims, the Court must “assess the strength of the claim[s] that
counsel failed to raise.” Henness v. Bagley, 644 F.3d 308, 317 (6th Cir.
2011).
The trial court held that counsel was not ineffective for failing to
move for a voluntary manslaughter instruction because the evidence did
not warrant the instruction. 12/17/2019 Opinion at 6-7 (ECF No. 9-18,
PageID.1547-48). Under Michigan law, “[a] homicide may be reduced to
voluntary manslaughter if the circumstances surrounding the killing
show that malice was negated by adequate and reasonable provocation
and the homicide was committed in the heat of passion.” People v. Harris,
190 Mich. App. 652, 661 (Mich. Ct. App. 1991). The trial court reasoned
that the evidence showed a “lapse of time from the time the argument . . .
ended, and when the shooting began” such that Pettes did not act in the
heat of passion and that the provocation was inadequate to “cause a
reasonable person to act out of passion rather than reason.” 12/17/2019
Opinion at 6-7 (ECF No. 9-18, PageID.1547-48).
Where, as here, a state court has assessed the necessity and
adequacy of a particular jury instruction under state law, a federal
19

habeas court cannot second-guess that state-law finding. Davis v.
Morgan, 89 F. App'x 932, 936 (6th Cir. 2003). “[T]he Constitution does
not requires a lesser-included offense instruction in non-capital cases.”
Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001). Moreover, a decision
not to request charges on lesser included offenses may be reasonable trial
strategy. See Tinsley v. Million, 399 F.3d 796, 808 (6th Cir. 2005); see also
Harrop v. Sheets, 430 F. App’x 500, 507 (6th Cir. 2011) (counsel could
have reasonably decided not to request a lesser offense instruction
because such an instruction “would have diluted the other arguments
[counsel] was advancing to the jury”). The decision to pursue an all or
nothing defense with the goal of achieving a complete acquittal can be a
reasonable one. Kelly v. Lazaroff, 846 F.3d 819, 830 (6th Cir. 2017). Here,
trial

counsel

may

have

concluded

that,

because

a

voluntary

manslaughter charge was inconsistent with the alibi defense, it was
better to forego that instruction and seek a full acquittal. Pettes failed to
overcome the presumption that counsel’s decision was the result of sound
trial strategy and is not entitled to habeas relief.
Next, Pettes argues that appellate counsel should have raised a
claim asserting defense counsel was ineffective for failing to call co20

defendant Teandre Kennedy as a witness. To support this claim, Pettes
cites an affidavit executed by Kennedy in 2019 and submitted for the first
time with Pettes’s motion for relief from judgment. (See ECF No. 9-20,
PageID.1720.) Kennedy stated, in relevant part:
On the day of October 13th, 2014 myself and Sammy Pettes
were on 11320 Lakepointe playing the game laughing and
joking. We then got bored so we both went our separate ways.
Sammy went to his mother’s house and I went to see a female
I met off Facebook. As I was walking up the block … I seen
her and her brothers arguing with neighbors. … I heard
threats about shooting. … [N]ext thing I know shots were
fired. So me being a peace maker I shot in the air to disp[e]rse
the group. I then ran to the mother of my child’s house for
safety because I didn’t know what was going on. … [The
police] were looking for Sammy and I, but we were not
together after we departed from Lakepointe. I also
volunteered to testify to tell them Sammy Pettes wasn’t there
but his lawyer didn’t call me out. The girl that testified said
Sammy was there because he was Hobsquad and she was mad
at him because she got jumped by some Hobsquad guys so she
chose Sammy Pettes out of anger.
(Id.)
The trial court noted that these types of affidavits are inherently
unreliable and untrustworthy and held that Pettes failed to overcome the
presumption that defense counsel’s decision not to call Kennedy was
sound trial strategy. The trial court concluded that because defense
counsel was not ineffective, appellate counsel was not ineffective for
21

failing to raise this claim on direct review. 12/17/2019 Opinion at 7-8
(ECF No. 9-18, PageID.1548-49).
The trial court’s determination was not contrary to, or an
unreasonable application of, Strickland or Jones. Kennedy’s affidavit
does not exonerate Pettes because Kennedy did not state that he saw the
shooter(s). He also cannot provide an alibi for Pettes because he does not
claim he was with Pettes at the time of the murder. The affidavit is also
not particularly credible given that it was signed over five years after the
shooting and more than four years after the trial. Long-delayed affidavits
like these which seek to exonerate a habeas petitioner are “treated with
a fair degree of skepticism.” Herrera v. Collins, 506 U.S. 390, 423 (1993).
Indeed, claims “based solely upon affidavits are disfavored because the
affiants’ statements are obtained without the benefit of crossexamination and an opportunity to make credibility determinations.” Id.
at 417. “[P]ostconviction statements by codefendants are particularly
suspect because codefendants may try to assume full responsibility for a
crime without any adverse consequences.” Allen v. Yukins, 366 F.3d 396,
405 (6th Cir. 2004). Particularly relevant here is that the affidavit does
not inculpate Kennedy in any way. Therefore, Kennedy could execute the
22

affidavit to help Pettes without endangering his own interests. In light of
the deferential standard of review applicable to ineffective assistance of
counsel claims, Petitioner fails to rebut the “strong presumption” that
counsel’s decision not to call Kennedy as a witness fell “within the wide
range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
Since the substance of Pettes’s ineffective assistance of trial counsel
claim lacks merit, Pettes fails to show a reasonable probability that his
conviction would have been reversed on direct appeal even if appellate
counsel had raised the issue. Thus, Pettes has not demonstrated that his
appellate counsel constitutionally ineffective.
IV.

Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal

may not proceed unless a certificate of appealability (“COA”) is issued
under 28 U.S.C. § 2253. A COA may be issued “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). A petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v.
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McDaniel, 529 U.S. 473, 484 (2000) (citation omitted). In this case, the
Court concludes that reasonable jurists would not debate the conclusion
that the petition fails to state a claim upon which habeas corpus relief
should be granted. Therefore, the Court will deny a certificate of
appealability.
The Court grants Pettes leave to appeal in forma pauperis because
an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R.
App. P. 24(a)(3)(A).
V.

Conclusion
For the reasons set forth, the Court DENIES the petition for writ

of habeas corpus and DENIES a certificate of appealability. If he chooses
to appeal this decision, Petitioner may proceed in forma pauperis.
SO ORDERED.

s/ Jonathan J.C. Grey
Hon. JONATHAN J.C. GREY
UNITED STATES DISTRICT JUDGE
DATED: August 28, 2024

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Certificate of Service
The undersigned certifies that the foregoing document was served upon
counsel of record and any unrepresented parties via the Court’s ECF
System to their respective email or First-Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 28, 2024.
s/ S. Osorio
Sandra Osorio
Case Manager

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