Griffes v. Rivard

Filing 26

OPINION and ORDER Denying the Petition for a Writ of Habeas Corpus (Dkt. 1 ), Declining to Issue a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Mark A. Goldsmith. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDWARD GRIFFES,
Petitioner,
Case No. 11-cv-14227
v.
HON. MARK A. GOLDSMITH
STEVEN RIVARD,
Respondent.
_________________________________/
OPINION AND ORDER
DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS (Dkt. 1), DECLINING
TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO
APPEAL IN FORMA PAUPERIS
Petitioner Edward Griffes has filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Dkt. 1), challenging his conviction for first-degree felony murder, Mich.
Comp. Laws § 750.316(b); felony firearm, Mich. Comp. Laws § 750.227b; and receiving and
concealing stolen property (firearms), Mich. Comp. Laws § 750.535(2)(b). For the reasons
stated below, the Court denies the petition for a writ of habeas corpus, declines to issue a
certificate of appealability, and grants leave to appeal in forma pauperis.
I. BACKGROUND
Petitioner was convicted of the above charges following a jury trial in the Montcalm
County Circuit Court, in which he was tried jointly with his co-defendants Heath McGowan and
Clint McGowan.

This Court recites verbatim the relevant facts relied upon by the Michigan

Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C.
§ 2254(e)(1).

See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This appeal concerns the murder of 88-year old Henry Marrott
within his home. Marrott was widely referred to as “Walking

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Sam” in the local area and in the town of Trufant, Michigan where
he resided. Marrott’s body was discovered by his lawn care
service, having noticed an odor emanating from the home and a
massive amount of flies at a window. Upon entering the home, a
member of the lawn crew observed the victim’s legs hanging out
of a bed. On investigation, police observed the basement door
area to be ajar and that the locking mechanism to the basement
“appeared to have been broken or jimmied somehow.”
*

*

*

[I]t was not until a one-man grand jury was convened in the fall of
2005 that information was obtained and “this case burst wide
open.” Following a five-day hearing, in early 2006 the grand jury
authorized indictments for Heath McGowan, Clint McGowan,
Eddie Griffes, Michael Hansen and Melissa Mudgett 1 on 14
separate counts, including open murder and felony murder. In
addition, indictments were also authorized for Tara Waldorf and
Brian Hansen for one count each of accessory after the fact.
Ultimately, co-defendant Michael Hansen pleaded guilty to
second-degree murder, receiving a sentence of 222 to 50 years
imprisonment. In return, Hansen testified regarding the events
leading up to and occurring after the murder. According to
Hansen, while at the home of Tiffany Taylor, he and Heath were
informed that Marrott had both Oxycontin and money in his home.
Later, when at Jody Smith’s apartment, Smith and the
co-defendants discussed going to the victim’s house when he
would not be there to steal the money and drugs. Heath and Clint
McGowan, along with Griffes, Hansen and two women, Tara
Waldorf and Melissa Mudgett drove to the victim’s home in the
evening. Waldorf and Mudgett remained in the vehicle. The
McGowans, Hansen and Griffes entered the victim’s home.
Hansen remained at the front door as a lookout. Contrary to their
expectations, Marrott was at home and argued with Heath.
Hansen indicated that Heath struck Marrott in the head “with his
hand or something.” While in the home, the McGowans and
Griffes searched for drugs and money and left with an “old black
powder pistol,” an unknown quantity of Oxycontin pills and a
“lock box” containing money. The four men and two women
then drove to a state recreational facility for the visually disabled
located near the home of McGowans’ parents, later referred to as
1

The correct spelling of the last name of this witness is Mudget. See 9/27/2006 Trial Tr. at 166
(Dkt. 17-14)

2

“the blind camp.”
divided.

At that location, the pills and money were

People v. McGowan, Nos. 274829, 275197, 276385, 2009 WL 4827442, at *1 (Mich. Ct. App.
Dec. 15, 2009) (per curiam).

Petitioner’s conviction was affirmed on appeal.

Id., leave denied

783 N.W.2d 342 (Mich. 2010).
Petitioner filed a post-conviction motion for relief from judgment pursuant to Mich. Ct.
R. 6.500 et. seq., which was denied. People v. Griffes, No. 06-M-7355-FH, Order (Montcalm
County Circuit Court Nov. 2, 2012) (Dkt. 17-29). The Michigan appellate courts then denied
Petitioner leave to appeal.

People v. Griffes, No. 316007 (Mich. Ct. App. Dec. 27, 2013) (Dkt.

17-32), leave denied 849 N.W.2d 382 (Mich. 2014).
Petitioner seeks a writ of habeas corpus on the following grounds:
i.

“It was an abuse of discretion for the court to deny change of
venue, or to sever, and failure to order a separate jury for
Defendant Griffes where the court was aware that Griffes’
defenses were inconsistent and a separate jury could focus on such
evidence related solely to Griffes[’] culpability in the allegation of
his presence at the crime scene, thereby reducing the likelihood of
a conviction by association with defendant Heath McGowan.”

ii.

“It was an abuse of discretion for the court to deny indigent
Defendant Griffes expert witness fees related to the scientific
effects of methamphetamine where the prosecution intended to call
methamphetamine addicts groomed by the police to change their
testimony that Griffes was not present at the crime scene and to
buttress this with police ‘expert meth addict memory testimony’ at
trial.”

iii.

“It was error for prosecution to present and the court to allow a
police officer to testify as an expert witness in the psychology of
memory of drug addicts, where the police officer was not qualified
as an expert and there is no recognized science in the recovery of
memory.”

iv.

“There was insufficient evidence at trial to prove beyond a
reasonable doubt that Defendant Griffes was present at the break in
and murder of Henry Marrott on July 19, 2002, where there was no

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physical evidence of his presence, his identification was by drug
addicts who benefitted by implicating him with changed stories
influenced by police tactics and where he was physically incapable
of participating, Griffes having suffered a fracture of his left hip
socket and third degree burns on his foot, hospitalized from June
23, 2002 until July 26, 2002, and being confined to a wheelchair
until July 26, 2002, when he was allowed to use crutches alleging
to have been a passenger in a cramped small car containing five
other individuals, exiting the vehicle and running from the victim=s
home, without the benefit of a wheelchair or crutches, on the night
of July 19, 2002.”
v.

“The trial court committed reversible error during the jury
selection process, especially when it permitted the prosecution to
exercise seven consecutive peremptory challenges and also
because it denied each defendant the 20 statutory challenges to
which they were entitled.”

vi.

“The prosecutor prejudiced defendant with improper arguments in
violation of his United States Constitution Amendments V, VI,
XIV[.]”

vii.

“Unduly suggestive witness identification violated defendant’s due
process[.]”

viii.

“Defendant was denied effective assistance of trial counsel
violating his VI Amendment[.]”

ix.

“Defendant was prejudiced by ineffective assistance of appellate
counsel violating his VI Amendment[.]”

x.

“Defendant was denied his right to counsel violating his VI
Amendment when Judge Miel denied G.R. Frie’s motion to appear
as co-counsel[.]”

Pet’r Mem. at 11-12 (cm/ecf pages) (Dkt. 13); see also Pet. at 14-18 (cm/ecf pages) (Dkt. 1).
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:

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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.
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, 131 S. Ct. 770, 786 (2011). The
Supreme Court has emphasized “that even a strong case for relief does not mean the state court’s

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contrary conclusion was unreasonable.”

Id.

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. 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, 131
S. Ct. at 786. 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. 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, 131 S. Ct. at 786-787.
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.; Warren v. Smith, 161 F.3d 358, 360-361 (6th Cir. 1998).

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Moreover, 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. Claim One: The Pretrial-Publicity/Separate-Jury Claim
Petitioner alleges that the trial judge should have granted his motion to change venue
because of extensive pretrial publicity.

The Michigan Court of Appeals rejected Petitioner’s

claim as follows:
Defendant Griffes filed a pre-trial motion seeking a change of
venue, asserting that ongoing publicity in the local media in this
small community precluded a fair trial due to “community
sentiment and widespread exposure.” Griffes contended an
impartial jury could not be found to hear this case. The trial court
denied the motion based on defendant’s failure to show actual
prejudice or such deep-seated animosity within the community to
preclude the selection of a fair and impartial jury, but agreed to
revisit the issue if a jury could not be selected. Following the
seating of a jury, defendant renewed his motion for a change of
venue. The trial court denied the motion, based on the majority
of jurors stating they were not familiar with the case and the
averments of the remaining jurors, who acknowledged seeing some
media coverage of the case, indicating their ability to remain
impartial and render a decision based on the evidence to be
presented at trial.
McGowan, 2009 WL 4827442, at *17.
Prejudice to a defendant can be presumed in cases where the influence of the news media,
either in the community at large, or in the courtroom itself, “pervaded the proceedings.” Murphy
v. Florida, 421 U.S. 794, 798-799 (1975). However, pretrial publicity, even pervasive adverse
publicity, does not inevitably lead to an unfair trial.
(6th Cir. 1998).

See DeLisle v. Rivers, 161 F.3d 370, 382

The “indicia of impartiality” on the part of a jury is disregarded only in those

cases “where the general atmosphere in the community or the courtroom is sufficiently
inflammatory.”

Id. at 382 (quoting Murphy, 421 U.S. at 802).

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The mere prior knowledge of

the existence of a case, or familiarity with the issues involved, or even some pre-existing opinion
as to the merits of the case, does not, in and of itself, raise a presumption of a jury taint.

Id.

A

person is not automatically rendered unqualified to serve as a juror merely because he or she has
been exposed to media coverage of the charged offense.

Instead, the issue becomes whether the

exposure to media publicity will preclude the individual from returning a verdict based solely on
the person’s application of the law as stated to the evidence presented. Dell v. Straub, 194 F.
Supp. 2d 629, 654 (E.D. Mich. 2002).
In the present case, Petitioner has presented no evidence that showed the type of
extensive or inflammatory pretrial publicity that has been condemned by the Supreme Court.
The Supreme Court has emphasized the negative effect of pretrial publicity when the publicity
amounts to an “out-of-court campaign to convict,” reflecting “inflamed public sentiment.”
DeLisle, 161 F.3d at 385 (quoting Shepherd v. Florida, 341 U.S. 50, 52-53 (1951)).

Coverage

that consists of “straight news stories rather than invidious articles which tend to arouse ill will
and vindictiveness” are not so troubling.

Id. at 385 (quoting Beck v. Washington, 369 U.S.

541, 556 (1962)).
Petitioner has failed to show that any of the media coverage was unduly inflammatory or
designed to arouse “ill will” or community prejudice.

The media exposure was not so

inflammatory so as to render Petitioner’s trial unfair, particularly where the vast majority of the
stories appear to have simply provided facts about Petitioner’s case.

See Deel v. Jago, 967 F.2d

1079, 1087-1088 (6th Cir. 1992).
In addition, there is nothing from the record or the habeas petition to indicate that the
courthouse in Petitioner’s trial was “conducted in a circus atmosphere, due in large part to the
intrusion of the press.” Murphy, 421 U.S. at 799 (quoting Estes v. Texas, 381 U.S. 532(1965)).

8

Petitioner has presented no evidence to demonstrate that the general atmosphere in the
community or courtroom was “sufficiently inflammatory” for either the Michigan courts or this
Court to disregard the jury’s “indicia of impartiality.”

Id. at 802.

Petitioner has not presented

any evidence that his trial took place under the conditions of “total chaos” that prevailed in cases
like Estes or Sheppard v. Maxwell, 384 U.S. 333 (1966). A review of those cases leaves no
doubt that it was “that chaos which drove those decisions.”

DeLisle, 161 F.3d at 384.

Because the record does not indicate that Petitioner’s trial took part in a “circus like
atmosphere,” this Court cannot presume prejudice to Petitioner’s case merely because the jurors
were exposed to pretrial publicity about the case.

Dell, 194 F. Supp. 2d at 655.

Petitioner has also failed to show actual prejudice to his case from the jurors’ exposure to
the pretrial publicity. To demonstrate actual prejudice, a habeas petitioner must show that one
or more jurors entertained an opinion before trial that petitioner was guilty and that these jurors
could not put this prejudice aside and render a verdict based solely upon the evidence. Id.
The test for whether pretrial publicity necessitates a change in venue is whether a juror exposed
to pretrial publicity can lay aside his or her impression or opinion and render a verdict based
upon the evidence presented in court. Id.
The trial court judge removed Dean Voss, Juror Number 547, during voir dire when Voss
said that he had a problem with individuals that were given immunity for their testimony and that
he would view the individual as “somebody [who] bartered their freedom for that testimony.”
9/12/2006 Trial Tr. at 67 (Dkt. 17-9).

The trial court judge also excused Joni Brooks, Juror

Number 66, during voir dire when she informed the court that she had formed an opinion and
would not be able to set the opinion aside to render a true verdict based only on the evidence
presented in the courtroom during trial. Id. at 68.

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Following the jury selection, the trial court judge revisited the motion for a change of
venue and ruled as follows:
I don’t think in the overall, there’s a basis here for a change of
venue because we do have 14 jurors here who either indicated they
had no information about the publicity involved, if they had some,
they had no opinion about it and maybe at best, two said they had
an opinion and could set it aside.
Id. at 129.
Every prospective juror who had formed an opinion about Petitioner from exposure to the
pretrial publicity and could not render a fair verdict was removed from the jury by the judge. In
light of the fact that every potential juror who had formed an opinion regarding Petitioner’s guilt
was removed from the jury, Petitioner is unable to show that he was prejudiced by the pretrial
publicity. See White v. Mitchell, 431 F.3d 517, 532 (6th Cir. 2005).
The mere fact that jurors were excused because they indicated that they could not be fair
and impartial is insufficient to establish that the jurors who were ultimately seated were partial or
biased.

See Murphy, 421 U.S. at 803 (fact that 20 of 78 prospective jurors were excused

because they indicated an opinion as to the defendant’s guilt did not conclusively suggest a
community with a sentiment so poisoned against defendant as to impeach the indifference of
jurors who displayed no animus of their own).
There is nothing from the record to show that any pretrial publicity tainted the jury pool
where two jurors, at most, indicated that they had formed an opinion but could set that opinion
aside.

A prospective juror’s exposure to pretrial publicity does not merit his or her

disqualification, where the juror states unequivocally that he would decide the case on the facts
brought out at trial.

McQueen v. Scroggy, 99 F.3d 1302, 1319 (6th Cir. 1996). Petitioner has

failed to establish actual prejudice on the part of these jurors in light of the fact that all of the

10

jurors seated indicated that they would base their judgment solely upon the evidence introduced
in the trial court.

Dell, 194 F. Supp. 2d at 656.

Because he has failed to provide clear and

convincing evidence that the jurors empaneled could not be impartial, Bell v. Hurley, 97 F.
App’x. 11, 19 (6th Cir. 2004), Petitioner is not entitled to habeas relief on his change of venue
claim.
Petitioner next alleges that he should never been tried by the same jury as co-defendant
Heath McGowan, because Heath McGowan had made numerous culpable statements to other jail
inmates who were expected to testify at trial. Petitioner contends that he could not receive a
fair trial due to the great danger that a jury considering the charges against Heath and Clint
McGowan could convict Petitioner because of his association with the co-defendants. Pet’r
Mem. at 27-28.
A criminal defendant is not entitled to a separate trial merely because he or she might
have had a better chance for acquittal in a separate trial, Zafiro v. United States, 506 U.S. 534,
540 (1993), nor does a criminal defendant have a right to a separate trial merely because the
defendant and the co-defendant present antagonistic defenses, Stanford v. Parker, 266 F.3d 442,
458 (6th Cir. 2001). The Supreme Court, in fact, has indicated that “mutually antagonistic
defenses are not prejudicial per se.” Zafiro, 506 U.S. at 538.

A court should grant severance

“only if there is a serious risk that a joint trial would compromise a specific trial right of one of
the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”
Id. at 539. A habeas petitioner who seeks habeas relief on the basis of a state trial court’s
failure to sever his or her trial from his or her co-defendant’s trial bears a very heavy burden.
Stanford, 266 F.3d at 459.

Joinder of defendants for trial is the preferred course, which creates

a presumption in favor of joinder which must be overcome by the party seeking severance.

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See

Foster v. Withrow, 159 F. Supp. 2d 629, 641 (E.D. Mich. 2001).
Petitioner is not entitled to habeas relief on his claim because he has failed to show that
he and his co-defendants had mutually antagonistic defenses.

Each of the co-defendants denied

responsibility for the crime, which was not antagonistic to Petitioner’s defense that he did not
commit the crime.

The record reflects that counsel for co-defendant Heath McGowan informed

the jury during opening statement that “our defense is that our clients did not do it. Our clients
were not there on July 19th or 20th.

They were never at Henry Marrott’s house and I think the

evidence will support that.” 9/12/2006 Trial Tr. at 160.
Petitioner also concedes that he was never implicated in the murder by Heath McGowan,
and that McGowan denied knowing him at the time of the murder.

Pet’r Mem. at 27.

could have believed Petitioner’s theory based on the evidence presented.

The jury

See United States v.

Carter, 760 F.2d 1568, 1574 (11th Cir. 1985) (alibi defense and mere presence defense to drug
conspiracy charges not irreconcilable).

Further, there has been no showing that McGowan’s

defense was “predicated solely on” Petitioner’s guilt.

All three defendants raised the same

defense — “a denial of any involvement or participation in the crime.”
4827442, at *19.

McGowan, 2009 WL

Antagonistic defenses occur “when one person’s claim of innocence is

predicated solely on the guilt of a co-defendant.” United States v. Harris, 9 F.3d 493, 501 (6th
Cir. 1993).

Because Petitioner has failed to show that Heath McGowan’s defense was

irreconcilably antagonistic to his own, Petitioner is not entitled to relief on his separate jury
claim.
B. Claim Two: The Expert-Witness Claim
Petitioner next claims that the state trial court erred by denying him expert witness fees to
procure an expert witness to testify on the effects of methamphetamine use on the

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methamphetamine user.

Petitioner’s attorney made the request at the motion hearing held on

April 13, 2006, arguing that an expert on the effect of methamphetamine on the user would
discredit the prosecution’s witness and show their testimony to be unreliable.

The trial court

denied Petitioner’s request for expert witness fees, finding that the reasons “defendants want
them here is for is to have Dr. Kuslikis to testify about the credibility of witnesses and that’s not
understanding the evidence to determine the facts at issue.” See McGowan, 2009 WL 4827442,
at *3.
The Michigan Court of Appeals found:
Contrary to defendants’ assertions, the trial court properly declined
to award expert witness fees. Defendants’ proposed expert was to
be used to call into question the testimony of witnesses who were
admitted methamphetamine addicts based on problems evidenced
with memory and cognitive functioning. Given that every
witness identified as a methamphetamine user openly
acknowledged that they experienced problems with their memory
and recall of events, an expert was unnecessary. Each witness, on
direct examination by the prosecutor, repeatedly acknowledged
their inability to clearly recall events or place events into a time
perspective and complained of difficulties with their memories.
The lack of reliability regarding their recall was further explored
and emphasized on cross-examination. Even testimony by the
lead investigating officer, Wolter, acknowledged that
methamphetamine addicts demonstrated poor memories and
difficulty with the recall and temporal sequencing of events. At
best, an expert’s testimony would have been merely duplicative
and the absence of an appointed expert did not serve to deprive
defendants of an opportunity to put forth their defense.
Id. at *4.
The main question for this Court is whether clearly established federal law mandates the
appointment of such an expert witness.

The phrase “clearly established federal law,” for

purposes of § 2254(d)(1), is the governing legal principle or principles set forth by the Supreme
Court at the time that the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63,

13

71-72 (2003).

A habeas court may, therefore, look only at the holdings of the Supreme Court as

they existed at the time of the relevant state court decision to determine whether the state court
decision was contrary to, or an unreasonable application of, clearly established federal law.
Mitzel v. Tate, 267 F.3d 524, 530-31 (6th Cir. 2001).

The “clearly established law”

requirement contained in § 2254(d)(1) is a codification of the Supreme Court’s anti-retroactivity
rule enunciated in Teague v. Lane, 489 U.S. 288 (1989), which required federal habeas courts to
deny habeas relief that was contingent upon a rule of federal law that had not been announced
until after the state court conviction became final.

See Williams v. Taylor, 529 U.S. at 379-80.

The Supreme Court precedent that would most closely address Petitioner’s claim is Ake
v. Oklahoma, 470 U.S. 68, 83 (1985), where the Supreme Court held that, when an indigent
defendant demonstrates to a trial judge that his or her sanity at the time of the commission of the
offense is to be a significant factor at trial, the state must assure a criminal defendant access to a
competent psychiatrist who will conduct an appropriate examination and assist in the evaluation,
preparation, and presentation of the defense.
The Supreme Court, however, has never extended the rule in Ake to apply to the
appointment of experts on issues other than a defendant’s sanity. In Caldwell v. Mississippi,
472 U.S. 320, 323 n.1 (1985), the Supreme Court indicated that, given that the petitioner had
offered little more than undeveloped assertions that the assistance of a criminal investigator, a
fingerprint expert, and a ballistics expert would be beneficial, there was no due process
deprivation by the state court judge’s denial of these requests.

Because the petitioner failed to

make such a showing, the Supreme Court indicated that there was “no need to determine as a
matter of federal constitutional law what if any showing would have entitled a defendant to
assistance of the type here sought.” Id.

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A number of courts have held that a habeas petitioner was not entitled to habeas relief
based on a state trial court’s failure to appoint a non-psychiatric expert witness, because the
Supreme Court has yet to extend Ake to such non-psychiatric expert witnesses.

See Weeks v.

Angelone, 176 F.3d 249, 264-265 (4th Cir. 1999) (habeas petitioner’s entitlement to expert
assistance at trial in the fields of pathology and ballistics would require the announcement of a
new rule, in violation of Teague’s anti-retroactivity principle, because at the time that
petitioner’s conviction became final, Supreme Court precedent required only that an indigent
defendant be appointed psychiatric experts when his sanity was at issue); Jackson v. Ylst, 921
F.2d 882, 886 (9th Cir. 1990) (habeas petitioner’s claim that his due process rights violated when
he denied the appointment of an expert on eyewitness identification proposed a new rule in
violation of Teague, and therefore could not serve as a basis for federal habeas relief); McKenzie
v. Jones, No. 00-CV-74577-DT, 2003 WL 345835, *3 (E.D. Mich. Jan. 29, 2003) (in light of the
fact that the Supreme Court had not yet extended its holding in Ake to require the appointment of
non-psychiatric experts to indigent criminal defendants, habeas petitioner was not entitled to a
certificate of appealability, because he was unable to show that the state court’s refusal to appoint
an independent pathologist was contrary to, or an unreasonable application of, clearly established
federal law); Walters v. Maschner, 151 F. Supp. 2d 1068, 1076 (N.D. Iowa 2001) (petitioner had
no clearly established right to the appointment of an expert to aid in jury selection, thus, the denial
of such an expert did not warrant federal habeas relief).
Because Petitioner did not have a clearly established federal right to the appointment of a
non-psychiatric expert, the trial court’s failure to appoint an expert on methamphetamine use
does not entitle Petitioner to a writ of habeas corpus.
Moreover, assuming such a right exists, Petitioner is still not entitled to habeas relief.

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Petitioner has failed to show how the denial of a methamphetamine expert witness substantially
prejudiced him at trial, because each of the witnesses at issue admitted to having severe memory
problems, and the lead investigating officer testified that methamphetamine addicts demonstrate
poor memories and difficulty with the recall and temporal sequencing of events.

Testimony by

an expert witness would be duplicative of the testimony given by the witnesses and the lead
investigator on this issue.

The benefit of an expert witness would be entirely speculative.

See

Moore v. Reynolds, 153 F.3d 1086, 1112 (10th Cir. 1998). Because Petitioner has offered no
more than an “undeveloped assertion” on how an expert on the use of methamphetamine would
have been beneficial to his case, the trial court did not deprive Petitioner of due process by
denying his request for such assistance. Id. (citing Caldwell v. Mississippi, 472 U.S. at 323
n.1).

Therefore, Petitioner is not entitled to habeas relief on his second claim.
C. Claim Three: The Evidentiary Claim
Petitioner alleges that it was error for the prosecution to present, and the court to allow, a

police officer to testify as an expert witness on the psychology of the memory of drug addicts.
Detective Sally Wolter described to the jury how she interviewed methamphetamine
users:
One of the problems with meth addicts and Oxycontin addicts who
are up for days and weeks at a time, is that they have the inability
to recall, such that you and I would have. It’s not that they would
never remember, but they have to have a trigger in order to bring
out that particular event. They will remember certain events in
their life that is important. Other events that are not, are lost and
unless you explain to them, certain events and trigger something
that’s going to remind them of that event, they will deny until the
day=s end, that they were a participant or even a witness to what
happened. That’s what occurred with all these witnesses that I
encountered in this case.
9/29/2006 Trial Tr. at 126 (Dkt. 17-16).

16

Wolter testified that she has interviewed “hundreds” of methamphetamine users during
her career. Id. at 124-125.

Wolter’s testimony was based on her perception of witnesses in

connection with her experience as a police officer.

Furthermore, the trial court instructed the

jury that it was to consider Wolter’s testimony by the same standard it used to evaluate the
testimony of any other witness.

10/25/2006 Trial Tr. at 218-219 (Dkt. 17-18).

Errors in the application of state law, especially rulings regarding the admissibility of
evidence, are usually not questioned by a federal habeas court.
542, 552 (6th Cir. 2000).

Seymour v. Walker, 224 F.3d

In addition, federal habeas courts “‘must defer to a state court’s

interpretation of its own rules of evidence and procedure’ when assessing a habeas petition.”
Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting Allen v. Morris, 845 F.2d 610, 614
(6th Cir. 1988)).

The Michigan Court of Appeals concluded that Wolter’s testimony was

permissible lay opinion under state evidentiary law. This Court, sitting on federal habeas
review, may not conclude otherwise, and, thus, Petitioner is not entitled to habeas relief on his
claim that Wolter’s testimony was impermissible lay opinion testimony.

See Charles v. Thaler,

629 F.3d 494, 500 (5th Cir. 2011). Therefore, Petitioner’s third claim is without merit.
D. Claim Four: The Sufficiency-of-Evidence Claim.
Petitioner claims that there was insufficient evidence to prove beyond a reasonable doubt
that he was present at the break in and murder of Henry Marrott on July 19, 2002.
It is beyond question that “the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970). But the critical inquiry on
review of the sufficiency of the evidence to support a criminal conviction is, “whether the record
evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v.

17

Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court to “ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Id.
at 334 (emphasis in original). Instead, the relevant question is whether, “after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Id. (emphasis in original).
A federal habeas court may not overturn a state court decision that rejects a sufficiency of
the evidence claim simply because the federal court disagrees with the state court’s resolution of
that claim. Instead, a federal court may grant habeas relief only if the state court decision was an
objectively unreasonable application of the Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2,
4 (2011). “Because rational people can sometimes disagree, the inevitable consequence of this
settled law is that judges will sometimes encounter convictions that they believe to be mistaken,
but that they must nonetheless uphold.” Id. For a federal habeas court reviewing a state court
conviction, “the only question under Jackson is whether that finding was so insupportable as to fall
below the threshold of bare rationality.” Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012).
On habeas review, a federal court does not reweigh the evidence or re-determine the
credibility of the witnesses whose demeanor was observed at trial. Marshall v. Lonberger, 459
U.S. 422, 434 (1983). It is the province of the fact finder to weigh the probative value of the
evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir.
1992). A habeas court, therefore, must defer to the fact finder for its assessment of the credibility
of witnesses. Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003).
Under Michigan law, the elements of first-degree felony murder are:
(1) the killing of a human being; (2) with an intent to kill, to do
great bodily harm, or to create a high risk of death or great bodily
harm with knowledge that death or great bodily harm is the
probable result, (3) while committing, attempting to commit, or

18

assisting in the commission of any of a set of specifically
enumerated felonies.
Id. at 789 (citing People v. Carines, 597 N.W. 2d 130, 136 (Mich. 1999)).
The Michigan Supreme Court has indicated that a “jury can properly infer malice from
evidence that a defendant set in motion a force likely to cause death or great bodily harm.”
People v. Aaron, 299 N.W.2d 304, 327 (Mich. 1980).
use of a deadly weapon.”

“Malice may also be inferred from the

Carines, 597 N.W. at 136.

To support a finding under Michigan law that a defendant aided and abetted in the
commission of a crime, the prosecutor must show that:
(1) the crime charged was committed by the defendant or some
other person; (2) the defendant performed acts or gave
encouragement that assisted the commission of the crime; and (3)
the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time
he gave aid and encouragement.
Riley v. Berghuis, 481 F.3d 315, 322 (6th Cir. 2007) (citing Carines, 597 N.W.2d at 135).
Under Michigan law, “the identity of a defendant as the perpetrator of the crimes charged is
an element of the offense and must be proved beyond a reasonable doubt.” Byrd v. Tessmer, 82
F. App’x 147, 150 (6th Cir. 2003) (citing People v. Turrell, 181 N.W.2d 655, 656 (Mich. Ct. App.
1970)).
The Michigan Court of Appeals found that the prosecution presented sufficient evidence
that would permit a rational trier of fact to conclude beyond a reasonable doubt that Petitioner
participated in the murder and larceny to sustain his conviction as follows:
Based on the testimony of three accomplices, Griffes and his
co-defendants went to the victim’s home with the intent of stealing
Oxycontin and money. Griffes was in the home of the victim when
Heath McGowan repeatedly struck Henry Marrott about the head
with an object, causing his death. During this assault, Griffes
participated in the search of the victim’s home for drugs and cash.

19

Although Heath and Clint McGowan denied knowing Griffes at the
time of the murder, Mike Hansen, Tara Waldorf and Melissa
Mudgett all placed him at the crime scene and in the vehicle with
them. As such, sufficient evidence of Griffes’ participation in the
murder and surrounding larceny existed to sustain his conviction.
McGowan, 2009 WL 4827442, at *22.
This Court notes that “the testimony of a single, uncorroborated prosecuting witness or
other eyewitness is generally sufficient to support a conviction.” Brown v. Davis, 752 F.2d 1142,
1144 (6th Cir. 1985). In the present case, three accomplices testified that Petitioner was at the
crime scene and in the car with them. This evidence was sufficient to support Petitioner’s
convictions. See Brown v. Burt, 65 F. App’x 939, 944 (6th Cir. 2003).
Petitioner claims that it was impossible for him to have participated in the robbery and
murder due to serious injuries that he received following an automobile accident. The Michigan
Court of Appeals rejected this portion of Petitioner’s claim as follows:
Defendant asserts that his participation in the crime was physically
impossible due to his injuries following the automobile accident.
While all of the medical personnel cited by Griffes confirm the
nature and extent of these injuries, they could not verify whether he
ignored medical restrictions and ambulated. While all opined
ambulation might be painful, it was not deemed impossible. In
fact, Hendler, a home health service provider, observed defendant
on July 23, 2002, ambulate approximately 80 feet. Mike Hansen
also indicated observing Griffes ambulate and his presence at the
apartment of Jody Smith when a decision was made to rob Marrott’s
home, which was confirmed by Smith. In addition, while
acknowledging memory problems, Christy Lawler testified that she
saw Griffes shortly after his motor vehicle accident riding a bicycle
while carrying crutches. While unsure of the specific date of this
encounter, Lawler indicated that Griffes showed her his skin graft,
which appeared raw and still required bandaging. Griffes also
claims that the witnesses who place him at the crime scene either
lied or had poor memories due to their addictions, making any
identification by these witnesses suspect. However, Hansen,
Waldorf and Mudgett all testified before the grand jury and at trial
that they were with Griffes at the scene. By claiming that the
20

testimony of these witnesses should be disregarded because they
either lied or had poor memories of the event, Griffes essentially
requests that this Court make a credibility determination regarding
these witnesses and their testimony. Questions pertaining to the
credibility of witnesses are the province of the jury and we will not
reconsider them. Because the testimony of these witnesses is
sufficient to establish that Griffes was present and a participant at
the murder scene, his claim of error lacks merit.
McGowan, 2009 WL 4827442, at *22.
Furthermore, Michael Hansen testified that he noticed that Griffes walked with a cane
when they got out of the car and walked towards Marrott’s home. 9/25/2006 Trial Tr. at 97 (Dkt.
17-12). Griffes’ friends observed him being mobile in the days following his accident. Cristy
Lawler testified that she saw Griffes “riding a bike with crutches and he showed [her] the skin graft
on his leg.” 9/28/2006 Trial Tr. at 198-200 (Dkt. 17-15). Jody Smith, who previously lived with
Griffes, testified that he was able to walk up the stairs to her apartment. 9/26/2006 Trial Tr. at
120-121 (Dkt. 17-13). Heather Wisniewski, co-defendant Clint McGowan’s girlfriend, testified
that Griffes did not have any trouble moving around when he would visit McGowan in July 2002.
9/26/2006 Trial Tr. at 85.
A federal court reviewing a state court conviction on habeas review that is “faced with a
record of historical facts that supports conflicting inferences must presume — even if it does not
affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution.”

Cavazos, 132 S. Ct. at 6. Although there

may have been some evidence to support Petitioner’s claim that his injuries precluded his
involvement in the crime, “in light of the deference to be accorded to state-court factfinding
under § 2254(e), as well as the traditional deference accorded to the jury’s resolution of disputed
factual issues,” Petitioner is unable to show that the Michigan Court of Appeals’ unreasonably
determined that the prosecutor disproved Petitioner’s impossibility to commit the crime claim.

21

See, e.g., Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
Because there were multiple pieces of evidence, including eyewitness testimony, to
establish Petitioner’s identity as one of the perpetrators in this case, the Michigan Court of Appeals
did not unreasonably apply Jackson in rejecting Petitioner’s sufficiency of evidence claim. See
Moreland v. Bradshaw, 699 F.3d 908, 919-21 (6th Cir. 2012). Therefore, Petitioner’s sufficiency
of the evidence claim is without merit.
E. Claim Five: The Peremptory-Challenge Claim
Petitioner next contends that the trial court committed reversible error during jury selection
because the number of peremptory challenges afforded each defendant was insufficient, and
because of inconsistencies in the method of permitting the parties to exercise their peremptory
challenges. The Michigan Court of Appeals considered and rejected these arguments.
While noting an apparent conflict that existed at the time of Petitioner’s trial between a
court rule, Mich. Ct. R. 6.412(E)(1), and a statute, Mich. Comp. Laws § 768.13, pertaining to
number of peremptory challenges permitted to each side, the court of appeals held the court rule
governed because peremptory challenges are a matter of practice and procedure for the
administration of the state court. McGowan, 2009 WL 4827442, at *6; accord Lakin v. Stine,
358 F. Supp. 2d 605, 617-618 (E.D. Mich. 2005) (holding that court rule regarding the number of
peremptory challenges takes precedence over statute because such challenges are “matters
pertaining to practice and procedure”).

As each side was afforded the proper number of

challenges under the court rule, the court concluded that the defendants had failed to demonstrate
any error. McGowan, 2009 WL 4827442, at *6.2

Ultimately, this decision was a state-court

2 Mich. Ct. R. 6.412(E)(1) provides that, when three defendants are tried jointly, as occurred in
Petitioner’s case, each defendant is entitled to nine peremptory challenges. Under these
circumstances, the prosecutor is entitled to the total number of peremptory challenges to which all

22

determination of a state-law question, the reexamination of which is not within the province of
this Court. Drain v. Woods, 902 F. Supp. 2d 1006, 1033 (E.D. Mich. 2012); see also Greer v.
Mitchell, 264 F.3d 663, 675 (6th Cir. 2001) (“Generally, a federal habeas court sitting in review
of a state-court judgment should not second guess a state court’s decision concerning matters of
state law.”); Czuj v. Berhuis, No. 2:10-CV-10392, 2013 WL 757624, at *8 (E.D. Mich. Feb. 28,
2013) (“[E]ven if the trial judge in this case somehow erred by failing to award Petitioner
additional peremptory challenges, it was an error of state law that is not cognizable on federal
habeas review.”).3
Similarly, regarding the argument that the trial court failed to follow the proper rotational
method for exercising peremptory challenges, the court of appeals first acknowledged that there
is no right to peremptory challenges under the U.S. Constitution; rather, the existence and
manner of exercising peremptory challenges arise under state law.

McGowan, 2009 WL

4827442, at *6; Mich. Comp. Laws § 768.12; Mich. Ct. R. 6.412(E); Mich. Ct. R. 2.511(E)(3);
see also Lakin, 358 F. Supp. 2d at 617 (“Because peremptory challenges are creatures of statute
and are not required by the Constitution, it is for the State to determine the number of
peremptory challenges allowed and to define their purpose and the manner of their exercise.”).
The court concluded that the process used in Petitioner’s trial, while flawed, was neither unfair
nor deprived Petitioner of having an impartial jury under state law. McGowan, 2009 WL
4827442, at *7. Again, this Court does not second guess a state-court determination of a
state-law question.

Greer, 264 F.3d at 675; Drain, 902 F. Supp. 2d at 1033;

the defendants are entitled — meaning, for three defendants, the prosecutor was entitled to 27
peremptory challenges. This allocation of challenges was properly followed in Petitioner’s case.
3 Notably, Petitioner’s counsel exercised ten peremptory challenges during jury selection — one

more than Petitioner was entitled to under the court rule.
23

Further, it can hardly be said that the state-court decision was either contrary to, or an
unreasonable application of, clearly established federal law.

The Supreme Court has repeatedly

held that peremptory challenges are not of a federal constitutional dimension.

See Rivera v.

Illinois, 129 S. Ct. 1446, 1454 (2009) (“[B]ecause peremptory challenges are within the States’
province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does
not, without more, violate the Federal Constitution.”); see also Georgia v. McCollum, 505 U.S.
42, 57 (1992) (“This Court repeatedly has stated that the right to a peremptory challenge may be
withheld altogether without impairing the constitutional guarantee of an impartial jury and a fair
trial”); Stilson v. United States, 250 U.S. 583, 586 (1919) (“There is nothing in the Constitution
of the United States which requires the Congress to grant peremptory challenges.”). Petitioner
has failed to put forth any Supreme Court precedent to suggest that there is a federal
constitutional right concerning the manner in which peremptory challenges are exercised.
Therefore, Petitioner’s fifth claim is without merit.
F. Claims Six Through Ten: The Procedurally Defaulted Claims
Respondent contends that Petitioner’s remaining claims are procedurally defaulted
because Petitioner raised these claims for the first time in his post-conviction motion, and failed
to show cause and prejudice for failing to raise these claims in his appeal of right, as required by
Mich. Ct. R. 6.508(D)(3).
When the state courts clearly and expressly rely on a valid state procedural bar, federal
habeas review is also barred unless petitioner can demonstrate “cause” for the default and actual
prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to
consider the claim will result in a “fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750-751 (1991).

If a petitioner fails to show cause for his procedural default, it is

24

unnecessary for the court to reach the prejudice issue.
(1986).

Smith v. Murray, 477 U.S. 527, 533

In an extraordinary case, where a constitutional error has probably resulted in the

conviction of one who is actually innocent, a federal court may consider the constitutional claims
presented even in the absence of a showing of cause for procedural default. Murray v. Carrier,
477 U.S. 478, 479-480 (1986).

However, to be credible, such a claim of innocence requires a

petitioner to support the allegations of constitutional error with new reliable evidence that was
not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). “‘[A]ctual innocence’ means
factual innocence, not mere legal insufficiency.”

Bousley v. United States, 523 U.S. 614, 624

(1998).
Michigan Court Rule 6.508(D)(3) provides that a court may not grant relief to a
defendant if the motion for relief from judgment alleges grounds for relief that could have been
raised on direct appeal, absent a showing of good cause for the failure to raise such grounds
previously and actual prejudice resulting therefrom.

For purposes of a conviction following a

trial, “actual prejudice” means that “but for the alleged error, the defendant would have had a
reasonably likely chance of acquittal.”

Mich. Ct. R. 6.508(D)(3)(b)(I).

The Supreme Court has noted that “a procedural default does not bar consideration of a
federal claim on either direct or habeas review unless the last state court rendering a judgment in
the case ‘clearly and expressly’ states that its judgment rests on the procedural bar.” Harris v.
Reed, 489 U.S. 255, 263 (1989).

If the last state court judgment contains no reasoning, but

simply affirms the conviction in a standard order, the federal habeas court must look to the last
reasoned state court judgment rejecting the federal claim and apply a presumption that later
unexplained orders upholding the judgment or rejecting the same claim rested upon the same
ground.

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

25

The Michigan Court of Appeals and the Michigan Supreme Court rejected Petitioner’s
post-conviction appeal “because the defendant failed to meet the burden of establishing
entitlement to relief under MCR 6.508(D).” These orders, however, did not refer to subsection
(D)(3).

Nor did they mention Petitioner’s failure to raise these claims on his direct appeal as

their rationale for rejecting his post-conviction claims.

Because the form orders in this case

citing Rule 6.508(D) are ambiguous as to whether they refer to procedural default or a denial of
post-conviction relief on the merits, the orders are unexplained. See Guilmette v. Howes, 624
F.3d 286, 291 (6th Cir. 2010).

This Court must “therefore look to the last reasoned state court

opinion to determine the basis for the state court’s rejection” of Petitioner’s claims.

Id.

In the present case, the Montcalm County Circuit Court judge, in rejecting Petitioner’s
motion for relief from judgment, initially recited the provisions of Mich. Ct. R. 6.508(D)(3) and
its requirement that, to obtain post-conviction relief on a ground that could have been raised on
direct appeal, a defendant was required to show good cause for failing to raise such a claim on
appeal, as well as actual prejudice from the alleged irregularity.

People v. Griffes, No.

06-M-7355-FH, Order at *3 (Montcalm County Circuit Court Nov. 2, 2012).

In denying the

motion, the judge stated:
The Defendant has not met his burden of showing both good cause
and actual prejudice required by Michigan law. Further, this
Court is unable to find that but for the claimed errors, the
Defendant would have otherwise had a reasonable likelihood of
acquittal.
Id. at *3.
The trial court judge clearly denied Petitioner post-conviction relief based on the
procedural grounds stated in Mich. Ct. R. 6.508(D)(3).

Therefore, Petitioner’s post-conviction

claims are procedurally defaulted pursuant to Mich. Ct. R. 6.508(D)(3). See Ivory v. Jackson,

26

509 F.3d 284, 292-293 (6th Cir. 2007); see also Howard v. Bouchard, 405 F.3d 459, 477 (6th
Cir. 2005).4
With respect to his post-conviction claims, Petitioner alleges ineffective assistance of
appellate counsel as cause to excuse his procedural default. Petitioner, however, has not shown
that appellate counsel was ineffective.
It is well established that a criminal defendant does not have a constitutional right to have
appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745,
751 (1983).

The Supreme Court has explained:
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.

Id. at 754.
Moreover, “a brief that raises every colorable issue runs the risk of burying good
arguments — those that, in the words of the great advocate John W. Davis, ‘go for the jugular,’
— in a verbal mound made up of strong and weak contentions.”

Id. at 753.

The Supreme Court has subsequently noted that:
Notwithstanding Barnes, it is still possible to bring a Strickland [v.
Washington, 466 U.S. 668 (1984] claim based on [appellate]
counsel’s failure to raise a particular claim [on appeal], but it is
difficult to demonstrate that counsel was incompetent.”
Smith v. Robbins, 528 U.S. 259, 288 (2000).
Strategic and tactical choices regarding which issues to pursue on appeal are “properly
4

Petitioner could not have procedurally defaulted his ineffective assistance of appellate counsel
claim, because state post-conviction review was the first opportunity that he had to raise this
claim. See Guilmette, 624 F.3d at 291. However, for the reasons stated below, Petitioner is
not entitled to habeas relief on this claim.

27

left to the sound professional judgment of counsel.”
(6th Cir. 1990).

United States v. Perry, 908 F.2d 56, 59

“The hallmark of effective appellate advocacy” is the “process of ‘winnowing

out weaker arguments on appeal and focusing on’ those more likely to prevail.”
Murray, 477 U.S. at 536 (quoting Barnes, 463 U.S. at 751-752).

Smith v.

“Generally, only when ignored

issues are clearly stronger than those presented will the presumption of effective assistance of
appellate counsel be overcome.”

Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002).

Appellate counsel may deliver deficient performance and prejudice a defendant by omitting a
“dead-bang winner,” which is defined as an issue which was obvious from the trial record and
would have resulted in a reversal on appeal.

Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D.

Mich. 2003).
Petitioner has failed to show that appellate counsel’s performance fell outside the wide
range of professionally competent assistance by omitting the claims that Petitioner raised for the
first time in his post-conviction motion for relief from judgment.

Appellate counsel filed a

50-page appellate brief, which raised the first five claims that Petitioner presented in his petition.
See Def. Br. at 39-88 (cm/ecf pages) (Dkt. 17-30).

Petitioner has not shown that appellate

counsel’s strategy in presenting these five claims and not raising other claims was deficient or
unreasonable.

Moreover, for the reasons stated in Respondent’s answer to the petition for writ

of habeas corpus, none of the claims raised by Petitioner in his post-conviction motion were
“dead-bang winners.” Because the defaulted claims are not “dead-bang winners,” Petitioner
has failed to establish cause for his procedural default of failing to raise these claims on direct
review.

See McMeans v. Brigano, 228 F.3d 674, 682-683 (6th Cir. 2000).
Because these post-conviction claims lack merit, this Court must reject any independent

ineffective assistance of appellate counsel claim raised by Petitioner: “[A]ppellate counsel

28

cannot be found to be ineffective for ‘failure to raise an issue that lacks merit.’” Shaneberger v.
Jones, 615 F.3d 448, 452 (6th Cir. 2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001)).
In the present case, Petitioner has failed to show cause to excuse his default.

Because

Petitioner has not demonstrated any cause for his procedural default, it is unnecessary for the
court to reach the prejudice issue. Smith, 477 U.S. at 533. Furthermore, Petitioner has not
presented any new reliable evidence to support any assertion of innocence that would allow this
Court to consider these claims as a ground for a writ of habeas corpus, in spite of the procedural
default.

Petitioner’s sufficiency of evidence claim (Claim Four, discussed supra) is insufficient

to invoke the actual innocence doctrine to the procedural-default rule.
F. Supp. 2d 664, 677 (E.D. Mich. 2003).

See Malcum v. Burt, 276

Because Petitioner has not presented any new reliable

evidence that he is innocent of these crimes, a miscarriage of justice will not occur if the court
declined to review the procedurally defaulted claims on the merits.

See Welch v. Burke, 49 F.

Supp. 2d 992, 1007 (E.D. Mich. 1999).
Assuming that Petitioner had established cause for his default, he would be unable to
satisfy the prejudice prong of the exception to the procedural-default rule, because his claims
would not entitle him to relief. The cause-and-prejudice exception is conjunctive, requiring
proof of both cause and prejudice. See Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007).
For the reasons stated by Respondent in the answer to the petition for a writ of habeas corpus,
Petitioner has failed to show that his post-conviction claims have any merit.

Therefore,

Petitioner is not entitled to habeas relief on his remaining claims.
E. Certificate of Appealability and Leave to Proceed In Forma Pauperis on Appeal

29

Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue.

See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate

of appealability may issue “only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).

When a court rejects a habeas claim on the

merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable
jurists would find the district court’s assessment of the constitutional claim debatable or wrong.
See Slack v. McDaniel, 529 U.S. 473, 484 (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, 537 U.S. at 327. In applying that standard, a
district court may not conduct a full merits review, but must limit its examination to a threshold
inquiry into the underlying merit of the petitioner’s claims.

Id. at 336-337.

“The district court

must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; Castro v. United
States, 310 F.3d 900, 901 (6th Cir. 2002).
Likewise, when a district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying merits, a certificate of appealability should issue, and an appeal
of the district court’s order may be taken, if the petitioner shows that “jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack, 529 U.S. at 484. When a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the petition should be allowed to proceed
further. In such a circumstance, no appeal would be warranted. Id.

30

Having considered the matter, the Court concludes that Petitioner has failed to make a
substantial showing of the denial of a constitutional right as to the foregoing habeas claims and that
reasonable jurists could not debate the correctness of the Court’s procedural ruling. Accordingly,
a certificate of appealability is not warranted in this case.
Although the Court denies a certificate of appealability to Petitioner, the standard for
granting an application for leave to proceed in forma pauperis 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)). Whereas 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 in forma pauperis 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. P. 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. Although jurists of reason would
not debate the Court’s resolution of Petitioner’s claims, the issues are not frivolous; therefore, an
appeal could be taken in good faith and Petitioner may proceed in forma pauperis on appeal. Id. at
764-765.
IV.

CONCLUSION

For the reasons stated above, the Court denies the petition for a writ of habeas corpus
(Dkt. 1), declines to issue a certificate of appealability, and grants permission to proceed in
forma pauperis on appeal.
SO ORDERED.
Dated: December 12, 2016
Detroit, Michigan

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

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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 December 12, 2016.
s/Shawna C. Burns
Case Manager Generalist

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