Daniels v. Rapelje

Filing 46

OPINION AND ORDER Denying Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SEAN DANIELS,
Petitioner,

Case Number: 11-12199
Honorable Mark A. Goldsmith

v.
DUNCAN MACLAREN,
Respondent.
/
OPINION AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING A CERTIFICATE OF APPEALABLITY
Petitioner Sean Daniels, currently in the custody of the Michigan Department of
Corrections, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He
challenges his convictions for first-degree premeditated murder, Mich. Comp. Laws §
750.316(1)(a), assault with intent to commit murder, Mich. Comp. Laws § 750.83, and possession
of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b.
The petition raises ten claims. For the reasons explained below, the Court denies the
petition. The Court denies a certificate of appealability and grants Petitioner leave to proceed on
appeal in forma pauperis.

I. BACKGROUND
The Michigan Court of Appeals provided this overview of the circumstances leading to
Petitioner’s convictions:
Defendant’s convictions arise from the November 4, 2007, shooting death of
Deshaun Williams and the nonfatal shooting of Jeanell Land, who was shot in the
legs. Land, who had known defendant for approximately three months before the
shooting, testified that defendant and Williams were involved in an argument after
defendant discovered that his van was missing. During the argument, defendant
told Williams, “If you got my van, motherf-----, I’ma shoot you in your face.”
Defendant then walked away and started frisking people who were outside to find
a gun, and asked if they had a gun. Defendant said he was going to “shoot this
motherf-----in the face. I’ma kill this motherf-----. He got my van.” Defendant then
called someone and asked for a gun. Williams and Land left the house in Land’s
car, but returned between 15 and 30 minutes later. Land heard defendant walk up
to their car and ask, “You got my van, motherf-----?” Defendant then shot Williams
and Land. Williams was shot three times, including once in the middle of the
forehead, and Land was shot twice in the legs.
People v. Daniels, No. 287769, 2010 WL 571841, *1 (Mich. Ct. App. Feb. 18, 2010).
Petitioner was tried by a jury in Wayne County Circuit Court. He was convicted of firstdegree premeditated murder, assault with intent to commit murder, and possession of a firearm
during the commission of a felony, and, on July 29, 2008, sentenced to life imprisonment for the
murder conviction, twenty to forty years for the assault conviction, and two years’ imprisonment
for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals. He claimed that he
received ineffective assistance of counsel and that insufficient evidence established his identity as
the shooter. The Michigan Court of Appeals affirmed Petitioner’s conviction. Id.
Petitioner filed an application for leave to appeal in the Michigan Supreme Court. He
raised the claims raised in the Michigan Court of Appeals and an additional claim regarding jury
instructions. The Michigan Supreme Court denied leave to appeal. People v. Daniels, 783 N.W.2d
376 (Mich. 2010).

2

Petitioner then filed a habeas corpus petition. He later moved for a stay to allow him to
exhaust additional claims in state court (Dkt. 16), which the Court granted (Dkt. 17).
Petitioner filed a motion for relief from judgment in the trial court. He raised six claims
for relief: (i) prosecutor’s office and police department withheld exculpatory evidence, presented
false testimony, and manufactured evidence; (ii) judicial misconduct; (iii) improper jury
instructions; (iv) ineffective assistance of appellate counsel; (v) cumulative error denied Petitioner
right to a fair trial; and (vi) good cause and prejudice excuse any default. The trial court denied
the motion. See 1/23/2013 Opinion (Dkt. 32-3.)
Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. The
Michigan Court of Appeals denied leave to appeal. People v. Daniels, No. 316725 (Mich. Ct. App.
Oct. 29, 2013). Petitioner filed an application for leave to appeal in the Michigan Supreme Court,
which was also denied. People v. Daniels, 846 N.W.2d 548 (Mich. 2014).
Petitioner moved to reopen this proceeding and to amend his petition. The Court granted
the motion and allowed amendment of the habeas corpus petition. See 10/31/14 Opinion and Order
(Dkt. 27). The habeas corpus petition raises these claims:
I. Petitioner was denied the effective assistance of counsel at trial where counsel
objected to the admission of autopsy photographs after the medical examiner’s
testimony and in front of the jury rather than in a motion in limine prior to trial.
II. Petitioner was denied the effective assistance of counsel at trial where counsel
had to be repeatedly reprimanded by the trial court for failing to examine witnesses
properly and for arguing with the court.
III. Petitioner was denied the effective assistance of counsel at trial where counsel
failed to present an opening statement, then refused to continue and complete his
closing statement. When he was advised of a time limit, counsel ended his closing
without informing the jury of Petitioner’s theory of the case.
IV. There was insufficient evidence that Petitioner was the shooter.

3

V. Daniels was denied his Fifth Amendment rights by the Wayne County
Prosecutor’s office and Detroit Police Department withholding exculpatory
evidence, use of false testimony and manufactured evidence by the prosecutor and
medical examiner, Detroit Police, and complaining witness. Daniels is actually and
legally innocent.
VI. The trial judge demonstrated judicial misconduct when he openly argued with
defense counsel, imposed an exact time limit on defense counsel’s closing
argument, walking off the bench during defense counsel’s closing arguments, and
failed to recommend defense counsel continue representing Daniels during closing
arguments, denying him a fair trial and his right to counsel.
VII. The trial court abused its discretion in managing the trial, depriving Daniels a
fair trial and due process of law by giving improper and erroneous jury instructions
as a whole.
VIII. Daniels was denied his right to effective assistance of appellate counsel by his
appellate counsel’s failure to raise trial counsel issues of error and issues pertaining
to the trial judge’s abuse of discretion.
IX. Daniels was denied a fair trial by cumulative error.
X. Daniels’s conviction must be reversed where the state courts violated his right
to equal protection where he demonstrated both good cause and prejudice under
Michigan Court Rules and Statutes.
II. STANDARD OF REVIEW
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, imposes the following standard of
review for habeas cases:
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.

4

28 U.S.C. § 2254(d).
A decision of a state court is “contrary to” clearly established federal law if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if
the state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). An “unreasonable
application” occurs when “a state-court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ
simply because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Id. at 411.
The Supreme Court has explained that a “federal court’s collateral review of a state-court
decision must be consistent with the respect due state courts in our federal system.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). Thus, the AEDPA “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). 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).
The Supreme Court has emphasized “that even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable.” Id. at 102. Furthermore, pursuant to section
2254(d), “a habeas court must determine what arguments or theories supported or . . . could have
supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with the holding in a prior
decision” of the Supreme Court. Id. Habeas relief is not appropriate unless each ground that
supported the state court’s decision is examined and found to be unreasonable under the AEDPA.

5

See Wetzel v. Lambert, 132 S. Ct. 1195, 1199 (2012). “If this standard is difficult to meet, that is
because it was meant to be.” Harrington, 562 U.S. at 102. Although 28 U.S.C. § 2254(d), as
amended by the AEDPA, does not completely bar federal courts from re-litigating claims that have
previously been rejected in the state courts, it preserves the authority for a federal court to grant
habeas relief only “in cases where there is no possibility fairminded jurists could disagree that the
state court’s decision conflicts with” the Supreme Court’s precedents. Id. Indeed, section 2254(d)
“reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction through appeal.” Id. at 102-03. A
“readiness to attribute error [to a state court] is inconsistent with the presumption that state courts
know and follow the law.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002). Therefore, in order to
obtain habeas relief in federal court, a state prisoner is required to show that the state-court’s
rejection of his claim “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington,
562 U.S. at 103. A state court’s factual determinations are presumed correct on federal habeas
review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness
only with clear and convincing evidence. Id. Moreover, for claims that were adjudicated on the
merits in state court, habeas review is “limited to the record that was before the state court.” Cullen
v. Pinholster, 563 U.S. 170, 181 (2011).
III. ANALYSIS
A. Ineffective Assistance of Trial Counsel Claims (Claims I-III)
Petitioner argues that he was denied the effective assistance of counsel when his trial
attorney: (1) objected to the admission of autopsy photographs after the medical examiner’s
testimony and in front of the jury rather than in a pretrial motion in limine; (2) was repeatedly

6

reprimanded by the trial court for failing to examine witnesses properly and for arguing with the
court; and (3) failed to present an opening statement and failed to complete his closing argument.
An ineffective assistance of counsel claim has two components. Strickland v. Washington,
466 U.S. 668 (1984). A petitioner must show that counsel’s performance was deficient and that
the deficiency prejudiced the defense. Id. at 687. To establish deficient representation, a petitioner
must demonstrate that counsel’s representation “fell below an objective standard of
reasonableness.” Id. at 688. In order to establish prejudice, a petitioner must show that, but for
the constitutionally deficient representation, there is a “reasonable probability” that the outcome
of the proceeding would have been different. Id. at 694.
The AEDPA “erects a formidable barrier to federal habeas relief for prisoners whose claims
have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013). The standard for
obtaining relief is “‘difficult to meet.’” White v. Woodall, 134 S. Ct. 1697, 1702 (2014), quoting
Metrish v. Lancaster, 133 S. Ct. 1781, 1786 (2013). In the context of an ineffective assistance of
counsel claim under Strickland, 466 U.S. 668 (1984), the standard is “all the more difficult”
because “[t]he 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 citations and
quotation marks omitted). “[T]he question is not whether counsel’s actions were reasonable,” but
whether “there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”
Id.
First, Petitioner argues that counsel was ineffective in objecting to the admission of autopsy
photographs in the presence of the jury rather than a pretrial motion in limine. Dr. Cheryl Loewe,
a deputy chief medical examiner for Wayne County, testified that she supervised the autopsy of
the victim in this case. Dr. Loewe testified that, during the course of the autopsy, photographs

7

were taken to document the victim’s wounds. She described the content of four exhibits which
were composites of photographs of the victim. See 3/19/2008 Tr. at 62-63, Pg. ID 516-17 (Dkt.
8-6). The photographs were not published to the jury at that time. Id. At the conclusion of Dr.
Loewe’s testimony, defense counsel moved to exclude the photographs from evidence because
they were unfairly prejudicial and unnecessary in light of Dr. Loewe’s description of their content.
Id. at 77-78, Pg. ID 531-32. Ultimately, the trial court admitted the photographs with some
redactions.1 Id. at 202, Pg. ID 656.
The Michigan Court of Appeals held that counsel was not ineffective in objecting to the
admission of the photographs in the presence of the jury. The state court reasoned that defense
counsel chose a strategy of trying to minimize the impact of the photographs by emphasizing, in
front of the jury, that the photographs were offered for an improper purpose – to sway the jury on
the basis of emotions rather than facts. Daniels, 2010 WL 571841 at *2. The state court found
that this deliberate strategy of communicating to the jury “the importance of not being swayed by
emotions and … cast[ing] defendant as a victim of an overzealous prosecutor” was a reasonable
one. Id. In evaluating the reasonableness of the state court’s decision, this Court finds particularly
relevant the fact that autopsy photographs are frequently admitted into evidence in conjunction
with a medical examiner’s testimony. Given this and anticipating that the photographs would be
admissible, it was reasonable for defense counsel to conclude that the best he could do was to use
an objection in front of the jury as an opportunity to argue that an “intelligent jury” would not find
the photographs useful. Id. The Court finds that the state court’s decision was not an unreasonable
application of Strickland.

1

The nature and extent of the redactions are not evident from the record.

8

Second, Petitioner argues that his defense counsel’s generally aggressive style worked to
the defense’s detriment. In closing argument, defense counsel characterized his own style as more
Billy Martin than Sparky Anderson.2 The trial transcript shows that defense counsel was assertive
and argumentative in his questioning of witnesses and, at times, truculent in his interactions with
the court. But defense counsel’s style was not clearly ineffective. He persistently challenged the
prosecution’s case and did so within the bounds of acceptable courtroom decorum. The Court,
therefore, finds that the Michigan Court of Appeals’ decision that defense counsel’s aggressive
style was strategic and calculated to challenge the prosecution’s case at every turn is not
unreasonable.
Finally, Petitioner argues that defense counsel was ineffective in failing to present an
opening statement and for discontinuing his closing argument after learning that he was subject to
a time limit of which he was previously unaware. The Michigan Court of Appeals held that
counsel’s decision not to give an opening statement was a reasonable trial strategy. Daniels, 2010
WL 571841 at *2. Petitioner has failed to show that the state court’s resolution of this claim was
an unreasonable application of Supreme Court precedent. In addition, Petitioner has failed to show
that there is a reasonable probability that the outcome of the trial would have been different had
his attorney given an opening statement. See Moss v. Hofbauer, 286 F.3d 851, 863-64 (6th Cir.
2002)

2

Billy Martin, best known for his several terms managing the New York Yankees, was considered
one of the “most brilliant game managers” in baseball, but also one of the most notoriously
combative. See Murray Chass, Billy Martin of the Yankees Killed in Crash on Icy Road,
N.Y.Times, Dec. 26, 1989, at A1, D9. In contrast, Sparky Anderson, an equally successful
manager of the Cincinnati Reds and Detroit Tigers, was known as a gentleman who encouraged
his players to place their dirty clothes in a bin so that the clubhouse workers did not have to pick
up after them. See Sparky Anderson, 1934-2010: 2 cities, 1 legend, Toledo Blade, Nov. 5, 2010.

9

Counsel’s decision to abort his closing argument before completing it is an unusual
circumstance. Defense counsel began his closing argument at 10:05 a.m. He discussed with the
jury some general principles by which they should abide in deciding the case, including that they
should reject any temptations to decide the case based on sympathy or emotion, and that they
should not allow the dramatic autopsy photographs to impact their decision. 3/20/2008 Tr. at 3644, Pg. ID 696-704 (Dkt. 8-7). After speaking for twelve minutes (10:17 a.m.), the court informed
defense counsel that twenty minutes remained for his closing argument. Id. at 45, Pg. ID 705.
Defense counsel and the trial court judge then engaged in a brief but testy exchange with defense
counsel claiming that he was unaware of a time limit, seeking clarification on the time limit, and,
ultimately, refusing to continue his closing argument. Id.at 45-47, Pg. ID 705-07. At 10:19 a.m.,
the jurors were excused. Id. at 47, Pg. ID 707. The trial court told defense counsel to let him know
when he wished to resume his closing argument. Id. Defense counsel did not resume his closing
argument. After twenty minutes, the jury reentered and jury instructions were provided. Id. at 4748, Pg. ID 707-08.
On direct review, the Michigan Court of Appeals held that defense counsel’s failure to
complete his closing argument was neither ineffective nor prejudiced Petitioner. The state court
explained:
[D]efense counsel’s decision to discontinue his closing argument likewise may be
deemed a matter of trial strategy. Given that there was strong eyewitness testimony
against defendant, which defense counsel was unable to shake despite good efforts,
defendant had no witnesses, and trial had been difficult, it is possible that defense
counsel was relying on jury sympathy and the potential perception that defendant
was not receiving a fair trial in order to obtain an acquittal because he had nothing
else to argue in the way of evidence.[ ] Defendant has not demonstrated that
counsel’s strategy was unsound. In addition, defendant has not established
prejudice. Defendant has not suggested what additional arguments could have been
made by defense counsel that would have resulted in a reasonable probability of a
different result. …

10

Daniels, 2010 WL 571841 at *2.
Defense counsel reacted petulantly to the trial court’s admonition that twenty minutes
remained of his time allotment. It is possible that defense counsel’s reaction was part of a strategy
to persuade the jury that the deck was stacked against Petitioner and he was not receiving a fair
trial. And, the Supreme Court has recognized that “it might sometimes make sense to forgo closing
argument altogether.” Yarborough v. Gentry, 540 U.S. 1, 6 (2003). Nevertheless, the Court need
not decide the reasonableness of that strategy because, even assuming that the strategy was an
unreasonable one, Petitioner has not shown that the state court decision finding no resulting
prejudice was contrary to or an unreasonable application of Supreme Court precedent. Petitioner
fails to identify particular arguments defense counsel could have made in closing argument that
may have swayed the jurors. The trial was relatively short (approximately one and a half days of
testimony) and so did not require a summary of weeks of testimony. The Michigan Court of
Appeals’ rejection of this claim was reasonable.
B. Sufficiency of the Evidence (Claim IV)
Next, Petitioner argues that the evidence was insufficient to establish beyond a reasonable
doubt that he was the perpetrator. He argues that the prosecution’s entire case rested on the
testimony of one witness, Jeanell Land, and that her testimony, absent any corroboration, was
insufficient to establish that he was the perpetrator.
“[T]he 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). On direct review, review of a sufficiency of
the evidence challenge must focus on 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

11

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
in original). In the habeas context, “[t]he Jackson standard must be applied ‘with explicit reference
to the substantive elements of the criminal offense as defined by state law.’” Brown v. Palmer,
441 F.3d 347, 351 (6th Cir. 2006), quoting Jackson, 443 U.S. at 324 n.16).
“Two layers of deference apply to habeas claims challenging evidentiary sufficiency.”
McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010), citing Brown v. Konteh, 567 F.3d 191, 20405 (6th Cir. 2009). First, the Court “must determine whether, viewing the trial testimony and
exhibits 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.” Brown, 567 F.3d at 205, citing
Jackson, 443 U.S. at 319. Second, if the Court were “to conclude that a rational trier of fact could
not have found a petitioner guilty beyond a reasonable doubt, on habeas review, [the Court] must
still defer to the state appellate court’s sufficiency determination as long as it is not unreasonable.”
Id. In short, “deference should be given to the trier-of-fact’s verdict, as contemplated by Jackson;
[then] deference should be given to the [state court’s] consideration of the trier-of-fact’s verdict,
as dictated by AEDPA.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (citation omitted).
The Jackson standard is “exceedingly general” and therefore Michigan courts are afforded
“considerable leeway” in its application. Davis v. Lafler, 658 F.3d 525, 535 (6th Cir. 2011).
Under Michigan law, to convict a defendant of first-degree murder, the prosecution must
prove that the defendant intentionally killed the victim and that the killing was premeditated and
deliberate. People v. Anderson, 531 N.W.2d 780, 786 (Mich. Ct. App. 1995). Premeditation and
deliberation may be established by evidence showing: “(1) the prior relationship of the parties; (2)
the defendant’s actions before the killing; (3) the circumstances of the killing itself; and (4) the
defendant’s conduct after the homicide.” People v. Schollaert, 486 N.W.2d 312, 318 (Mich. Ct.

12

App. 1992). Direct or circumstantial evidence and reasonable inferences arising from that
evidence may constitute satisfactory proof of the elements of an offense, People v. Jolly, 502
N.W.2d 177, 180 (Mich. 1993), including the identity of the perpetrator, Dell v. Straub, 194 F.
Supp. 2d 629, 647 (E.D. Mich. 2002), and the defendant’s intent or state of mind. People v.
Dumas, 563 N.W.2d 31, 34 (Mich. 1997).
The Michigan Court of Appeals rejected Petitioner’s invitation to find Land’s testimony
incredible because she gave a prior inconsistent statement to police and she smoked marijuana and
drank alcohol the night of the shooting. Daniels, 2010 WL 571841 at *3. The state court held that
assessing the credibility of witnesses was within the province of the jury, not the appellate court.
Id. The court concluded that Land’s testimony, by itself, was sufficient to establish Petitioner’s
identity. Id.
The Michigan Court of Appeals’ conclusion is supported by the record.

Petitioner

challenges Land’s credibility. But the Court does not have the benefit of observing Land’s
demeanor or voice inflections. The jury did have that benefit and obviously chose to credit Land’s
identification testimony. “A reviewing court does not reweigh the evidence or redetermine the
credibility of the witnesses whose demeanor has been observed by the trial court.” Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003), citing Marshall v. Lonberger, 459 U.S. 422, 434
(1983). Instead, faced with contradictory testimony, the Court “‘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.’” McDaniel v. Brown, 558 U.S. 120, 133
(2010), quoting Jackson, 443 U.S. at 326. Land’s testimony, if credited, supported the jury’s
finding that Petitioner was the shooter. Habeas relief is denied on this claim.
C.

Prosecutorial Misconduct (Claim V)

13

Petitioner next argues that habeas relief should be granted because the prosecutor engaged
in misconduct. The alleged misconduct centers on whether the victim received a gunshot wound
to the head. Petitioner alleges that the prosecutor went to elaborate lengths to falsely prove that
the victim received a gunshot wound to the head. According to Petitioner, the prosecutor withheld
medical records which established that the victim was not shot in the head, knowingly presented
false testimony about a gunshot wound to the victim’s head, provided the defense with inaccurate
police reports, allowed crime scene photographs to be altered and introduced knowingly altered
photographs at trial, intimidated witness Janet Land to persuade her to testify that the victim was
shot in the head.
Respondent argues that this claim is procedurally defaulted and, alternatively, meritless.
“[F]ederal courts are not required to address a procedural-default issue before deciding against the
petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003), citing Lambrix v.
Singletary, 520 U.S. 518, 525 (1997). “Judicial economy might counsel giving the [other] question
priority, for example, if it were easily resolvable against the habeas petitioner, whereas the
procedural-bar issue involved complicated issues of state law.” Lambrix, 520 U.S. at 525. In this
case, the Court finds that the interests of judicial economy are best served by addressing the merits
of Petitioner’s claims.
To demonstrate a Brady violation, (1) “[t]he evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching;” (2) “that evidence must
have been suppressed by the State, either willfully or inadvertently;” and (3) “prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999), citing Brady v. Maryland, 373 U.S.
83 (1967). “There is no Brady violation where a defendant knew or should have known the
essential facts permitting him to take advantage of any exculpatory information, or where the

14

evidence is available . . . from another source, because in such cases there is really nothing for the
government to disclose.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998) (internal quotation marks
omitted). A defendant does not have to show that “disclosure of the evidence would have
ultimately led to an acquittal;” he must, instead “establish that in the absence of the evidence he
did not receive a fair trial, ‘understood as a trial resulting in a verdict worthy of confidence.’”
Gumm v. Mitchell, 775 F.3d 345, 363 (6th Cir. 2014), quoting Kyles v. Whitley, 514 U.S. 419,
434 (1995).
Petitioner alleges that Williams’ gunshot wound to the head was staged and that the
evidence was fabricated and witnesses convinced to lie. In support of this claim, he cites the
Wayne County Medical Examiner’s report stating that the victim sustained “MGSWs [multiple
gunshot wounds] to the body.” Medical Examiner’s Report, Ex. 1 to Petition, Pg. ID 1098 (Dkt.
22-1). He argues that the report would have specified that one of the wounds was to the head if
that indeed had been true. He argues that medical documents which would have established
Williams was not shot in the head have been withheld from him and that the many witnesses who
testified to a head wound were coached, coerced or fooled into providing false testimony.
On collateral review in state court, the trial court found unpersuasive Petitioner’s argument
that evidence that Williams suffered a gunshot wound to the head was fabricated. See 1/23/13
Order, Pg. ID 1401 (Dkt. 32-3). “Mere speculation and conjecture” are “simply not enough to
demonstrate a Brady violation.” United States v. Guzman, 571 Fed. App’x 356, 365 (6th Cir.
2014). Accord Henness v. Bagley, 644 F.3d 308, 325 (6th Cir. 2011) (speculation about the
potential that favorable evidence was withheld is, by itself, insufficient to establish a Brady
violation).

Here, Petitioner’s arguments are based upon speculation about a far-reaching

15

conspiracy to manufacture a head wound.

Nothing more.

He fails to show prosecutorial

misconduct and habeas relief is denied.
D. Judicial Misconduct (Claim VI)
Petitioner next argues that he was denied a fair trial by the trial court’s management of the
proceedings and judicial rulings that, Petitioner’s argues, evidenced judicial bias. Specifically,
Petitioner maintains that the trial judge engaged in misconduct by openly arguing with defense
counsel and by his handling of defense counsel’s closing argument.
“[T]he Due Process Clause clearly requires a fair trial in a fair tribunal before a judge with
no actual bias against the defendant or interest in the outcome of his particular case.” Bracy v.
Gramley, 520 U.S. 899, 904-05 (internal quotation marks and citation omitted). An impartial judge
is a necessary component of a fair trial. In re Murchison, 349 U.S. 133, 136 (1955). The Supreme
Court established the standard for assessing claims of judicial bias in Liteky v. United States, 510
U.S. 540 (1994). “[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality motion.” Id. at 555. A judge’s remarks that are “critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge.” Id. Even a judge’s expressions of “impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men and women, even after having been
confirmed as federal judges, sometimes display” do not, standing alone, establish a due process
violation. Id. at 555-56.
The trial court’s expressions of impatience with defense counsel were limited and a
reasonable response to defense counsel’s combative style. “A terse or frustrated exchange” does
not constitute bias so long as it does not reveal an underlying bias. Ajanel-Gonzalez v. Sessions,
685 Fed. App’x 419, 428 (6th Cir. 2017). Here, the trial court’s interactions with defense counsel

16

did not undermine defense counsel’s credibility and did not demonstrate a deep-seated antagonism
against Petitioner. Similarly, the trial court’s actions during closing arguments did not evidence a
high degree of favoritism or antagonism. The trial court advised defense counsel that he had
twenty minutes remaining in closing argument, which would have provided him a total of
approximately thirty minutes, about the same as the time used by the prosecutor for her closing
argument. The record shows that the trial court judge did not, as Petitioner alleges, exit the
courtroom during defense counsel’s closing argument. Instead, when defense counsel refused to
continue with his closing argument, the trial court dismissed the jury and then exited the
courtroom. The trial court’s failure to sit in silence in the courtroom in no way evidences any bias
or antagonism. Habeas relief is denied.
E. Jury Instructions (Claim VII)
Petitioner raises several claims that jury instruction-related deficiencies violated his right
to due process. He argues that the substance of the jury instructions were insufficient in four ways:
the trial court gave an incorrect instruction on the intent element of first-degree murder; the trial
court omitted an element of second-degree murder; the trial court referenced a potential
manslaughter verdict, but failed to instruct the jury on the elements of manslaughter; and the trial
court failed to give an Allen instruction. Second, Petitioner challenges the procedures associated
with the jury instructions: the trial court failed to verify that the court reporter was present before
responding to the jurors’ note, resulting in ex parte communications with the prosecution and jury
regarding the number of jurors to keep; trial court left the bench without noting defense counsel’s
objections; and the trial court did not provide defense counsel an opportunity to look at or approve
the verdict form.

17

The Court first considers Petitioner’s claims regarding the substance of the jury
instructions. “It is a fundamental Constitutional law that no one may be convicted of a crime
absent proof beyond a reasonable doubt of every fact necessary to constitute that crime.” Glenn
v. Dallman, 686 F.2d 418, 420 (6th Cir. 1982). To show that a jury instruction violates due process,
a habeas petitioner must demonstrate both that the instruction was ambiguous and that there was
‘a reasonable likelihood’ that the jury applied the instruction in a way that relieved the State of its
burden of proving every element of the crime beyond a reasonable doubt.” Waddington v.
Sarausad, 555 U.S. 179, 190-91 (2009) (citations omitted). A petitioner is entitled to habeas relief
only if the defective jury instruction “so infected the entire trial that the resulting conviction
violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973). A federal court may not
grant the writ of habeas corpus on the ground that a jury instruction was incorrect under state law,
Estelle v. McGuire, 502 U.S. 62, 71-72 (1991), and “[a]n omission, or an incomplete instruction,
is less likely to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145,
155 (1977). The jury instruction “must be considered in the context of the instructions as a whole
and the trial record.” Estelle, 502 U.S. at 72. A state court’s finding that challenged jury
instructions “adequately reflected the applicable state law and corresponding state charges” is
binding on federal habeas review. White v. Steele, 629 F. App’x 690, 695 (6th Cir. 2015). “The
exception is when the instruction is so flawed as a matter of state laws as to “infect[] the entire
trial’ in such a way that the conviction violates federal due process.” Rashad v. Lafler, 675 F.3d
564, 569 (6th Cir. 2012), quoting Kibbe, 431 U.S. at154.
Petitioner argues that the trial court gave an incorrect instruction on the intent element of
first-degree murder. Michigan’s standard jury instruction for first-degree premeditated murder
contains four elements: (1) that the defendant caused the death of the victim; (2) that the defendant

18

intended to kill the victim; (3) that the intent to kill was premeditated; and (4) that the killing was
deliberate. See Mich. Crim. Jury Instructions 16.1(6) at 16-3-4 (2d ed.). The trial court instructed
the jury that Petitioner must have intended to kill the victim, that the intent to kill was thought out
beforehand, and that the killing was deliberate. 3/20/2008 Tr. at 56, Pg. ID 716 (Dkt. 8-7). Further
the court instructed that first-degree premeditated murder is a specific intent crime, requiring a
showing of only “one intent at the time of that act, and that is to commit the crime of murder, or
to kill that person.” Id. Petitioner fails to identify specifically what portion of the trial court’s
instruction fails to convey the intent element of first-degree premeditated murder. The instructions
given comply with Michigan’s standard criminal jury instructions. Relief is denied on this claim.
Petitioner next argues that the trial court omitted an element of second-degree murder. In
Michigan, the elements of the lesser-included offense of second-degree murder are: (1) a death;
(2) caused by an act of the defendant; (3) with malice; and (4) without justification. People v.
Mendoza, 664 N.W.2d 685, 689 (2003). Malice is defined as “an intent to commit an unjustified
and inexcusable killing[,]” id. at 691 (citation omitted), or “the wanton and willful disregard of the
likelihood that the natural tendency of such behavior is to cause death or great bodily harm.”
People v. Werner, 659 N.W.2d 688, 692 (2002) (internal quotation marks and citation omitted).
Although the trial court’s instruction on second-degree murder did not use the word “malice,” the
instruction adequately conveyed the element of malice by requiring a finding that Petitioner had
the intent to commit serious bodily harm or the intent to do an act that “created a very high risk of
death or great bodily harm knowing that death or such harm would be the likely consequence of
his action.” 3/20/2008 Tr. at 57, Pg. ID 717.
Petitioner next challenges the trial court’s reference to a potential manslaughter verdict,
but failed to instruct the jury on the elements of manslaughter. The record does not support this

19

claim because the trial court instructed the jury on the elements of manslaughter. This claim is
denied.
Petitioner next argues that the trial court erred in failing to give an Allen charge when the
jury reported after three hours of deliberations that they were at an impasse. “[A] trial court may
properly encourage a deadlocked jury to continue its deliberations and attempt to reach a verdict.”
United States v. Aloi, 9 F.3d 438, 443 (6th Cir. 1993), citing Allen v. United States, 164 U.S. 492,
501-02 (1896). “A charge that strays too far from the charge approved in Allen will rise to the
level of a constitutional violation only if ‘in its context and under all the circumstances, [the
charge] ... was coercive.’” Id. quoting Williams v. Parke, 741 F.2d 847, 850 (6th Cir.1984)
(additional internal quotation omitted). In this case, the trial court’s instruction to the jurors to
continue deliberation was not coercive.

The trial court reminded the jurors to approach

deliberations with an open mind, but cautioned them not to change their minds simply for the
purpose of reaching a verdict. 3/20/2008 Tr. at 76-77, Pg. ID 736-37. The Court finds no error in
the trial court’s instruction.
The Court now turns to Petitioner’s challenges to the procedures associated with the jury
instructions. First, Petitioner argues that the trial court failed to verify that the court reporter was
present before responding to the jurors’ note and that this error constituted an improper ex parte
communication. An ex parte communication is a “communication between counsel and the court
when opposing counsel is not present.” Black’s Law Dictionary (10th ed. 2014). The situation
presented here did not involve an ex parte communication as it is apparent from Petitioner’s claim
and the record that neither defense counsel nor the prosecutor were absent during the court’s
communication with the jury. See 3/20/08 Tr. at 79, Pg. ID 739.

20

Related to his ex parte communication claim, Petitioner argues that the trial court judge
left the bench without noting defense counsel’s objections. The trial court dismissed defense
counsel’s objection, noting that an ex parte communication did not occur because both attorneys
were present. The judge then left the courtroom. Defense counsel continued to state his objections
on the record. While the trial judge should have remained in the courtroom for the objections, the
court already had found no ex parte communication. Counsel also lodged an objection to the trial
court’s failure to give an Allen charge. As discussed above, Petitioner has failed to show that the
court’s failure to give a specific Allen charge implicated his right to due process or a fair trial.
Relief is denied on this claim.
Finally, Petitioner argues that the trial court improperly failed to provide defense counsel
an opportunity to review or approve the verdict form. Petitioner does not allege that the verdict
form was inaccurate of incorrect. He therefore has not shown that his due process rights were
implicated by counsel’s failure to review the verdict form.
F. Ineffective Assistance of Appellate Counsel (Claim VIII)
Petitioner raises a claim that his appellate attorney was ineffective in failing to raise claims
raised in this habeas petition but not raised on direct appeal. The Supreme Court has held that a
petitioner does not have a constitutional right to have appellate counsel raise every non-frivolous
issue on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). Strategic and tactical choices
regarding which issues to pursue on appeal are “properly left to the sound professional judgment
of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
The claims raised in this petition and on collateral review in state court are meritless.
Appellate counsel need not raise non-meritorious claims on appeal. Shaneberger v. Jones, 615

21

F.3d 448, 452 (6th Cir. 2010), citing Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).
Accordingly, the Court will deny habeas corpus relief on this claim.
G. Cumulative Effect of Alleged Errors (Claim IX)
Petitioner argues that the cumulative effect of the errors alleged in his petition violated his
right to a fair trial. On habeas review, a claim that the cumulative effect of errors rendered a
petitioner’s trial fundamentally unfair is not cognizable. Sheppard v. Bagley, 657 F.3d 338, 348
(6th Cir. 2011), citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005). Therefore, Petitioner is
not entitled to relief on this claim.
H.

State Court’s Application of State Court Rule (Claim X)
Finally, Petitioner argues that the state court erred in finding that he did not satisfy the

“cause and prejudice” requirement under Michigan Court Rule 6.508(D)(3) and his procedural
default, therefore, should have been excused by the state court. Respondent asserts that this claim
is not cognizable on federal habeas review.
“The Sixth Circuit consistently [has] held that errors in post-conviction proceedings are
outside the scope of federal habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir.
2007). See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (holding that states have no
constitutional obligation to provide post-conviction remedies); Greer v. Mitchell, 264 F.3d 663,
681 (6th Cir. 2001) (“[H]abeas corpus cannot be used to mount challenges to a state’s scheme of
post-conviction relief.”); Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986) (holding that habeas
corpus is not the proper means by which prisoners should challenge errors or deficiencies in state
post-conviction proceedings). Even if the state court improperly refused to review the merits of
Petitioner’s claims because it erred in applying the state’s own post-conviction review procedures,

22

Petitioner’s federal constitutional rights were not implicated because he had no constitutional right
to post-conviction review.
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. Rule 11 of the Rules
Governing Section 2254 Proceedings now requires that the Court “must issue or deny a certificate
of appealability when it enters a final order adverse to the applicant.” 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). The substantial showing threshold is satisfied when a petitioner demonstrates “that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In this case, the Court concludes that reasonable jurists would not debate the Court’s
conclusion that none of the claims in the habeas petition warrant relief. Therefore, the Court denies
a certificate of appealability.
V. LEAVE TO PROCEED IN FORMA PAUPERIS
The standard for granting an application for leave to proceed in forma pauperis (IFP) is a
lower standard than the standard for certificates of appealability.

Foster v. Ludwick, 208

F.Supp.2d 750, 764 (E.D. Mich. 2002), citing United States v. Youngblood, 116 F.3d 1113, 1115
(5th Cir. 1997). While a certificate of appealability may only be granted if a petitioner makes a
substantial showing of the denial of a constitutional right, a court may grant IFP status if it finds
that an appeal is being taken in good faith. Id. at 764-765; 28 U.S.C. § 1915(a)(3); Fed. R. App.
24(a). “Good faith” requires a showing that the issues raised are not frivolous; it does not require
a showing of probable success on the merits. Foster, 208 F.Supp.2d at 765. The Court finds that

23

an appeal could be taken in good faith and Petitioner may proceed in forma pauperis on appeal.
Id.
VI. CONCLUSION
For the reasons set forth above, the Court denies the petition for writ of habeas corpus,
declines to issue a certificate of appealability, and grants leave to appeal in forma pauperis.
SO ORDERED.
Dated: March 13, 2018
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

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 March 13, 2018.
s/Karri Sandusky
Case Manager

24