Jackson v. Smith

Filing 25

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 20 AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL LLOYD JACKSON,
Petitioner,
CASE NO. 4:12-CV-11463
HONORABLE GERSHWIN A. DRAIN
UNITED STATES DISTRICT COURT

v.

KATHLEEN OLSEN,
Respondent.
_______________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS [20] AND DECLINING TO ISSUE CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Michael Lloyd Jackson, (“Petitioner” or “Jackson”), incarcerated at the
Ojibway Correctional Facility in Marenisco, Michigan, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 20. In his application, filed
pro se, Petitioner challenges his conviction for felon in possession of a firearm,
Mich. Comp. Laws § 750.224f; possession of a short-barreled shotgun, Mich.
Comp. Laws § 750.224b; and two counts of possession of a firearm in the
commission of a felony (“felony-firearm”), Mich. Comp. Laws § 750.227b. For
the reasons stated below, the petition for writ of habeas corpus is DENIED.
Accordingly, the Court will also DENY Petitioner’s Request for a Certificate of

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Appealability and Leave to Appeal In Forma Pauperis.
I. Background
Petitioner was convicted following a jury trial in the Bay County Circuit
Court. 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). The
Michigan Court of Appeals stated:
This case has its origins in an apparent altercation between several
men at a residence in the early morning hours of July 4, 2008, in Bay
City, Michigan.
James Lyman testified that he was a police officer with the Bay City
police department. Lyman stated that he responded to a dispatch
concerning a fight that possibly involved a firearm. As he drove
toward the area indicated in the dispatch, he saw three men headed
away from him and toward 11th Street and another three men headed
toward his car. Lyman stopped his car, exited, and ordered the three
men approaching him to the ground. Lyman agreed that defendant
was yelling and excitable at the scene and that he said something to
the effect that those other guys were “swingin’ on some girls,” which
he understood to mean striking them. Because the three men would
not comply with his order, he drew his gun and repeated his order.
Eventually, the three men got on the ground.
Officer John Harned testified that he was following Lyman on the
way to the scene. He saw Lyman pull over next to three men. He,
however, proceeded past Lyman and drove towards the three men
who were walking away. The three men ran to the west and he lost
them. Harned testified that all three of the men that ran away were
wearing white t-shirts. After he lost sight of the three men, Harned
went back to the point where Lyman stopped and helped him secure

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the scene.
Officers Leslie Gillespie and Brad Peter testified that they too
responded to the dispatch. When she arrived, Gillespie saw that
Lyman had three suspects on the ground at gun point. She assisted
officer Lyman in handcuffing the suspects. When Peter arrived,
Lyman and Gillespie had already secured the three suspects. Gillespie
also noticed that a car was parked somewhat “cock-eyed into a
driveway”; part of the car was “in the road, part was up into the
driveway.” She said she recognized the car from a stop that she had
made two weeks earlier and that the car belonged to defendant. She
said the car was running, had its lights on, and the front driver’s side
door was open. She also said that defendant had some injuries to his
face—his eye was swollen.
Dawn Harsch testified that she lived next door to the home at issue. In
the early morning hours of July 4, 2008, she heard “a lot of yelling”
and so she looked outside. She saw a taller black man with a gun. The
man started to take off his shirt and passed the gun to a shorter black
man. The shorter black man then took the gun and stuck it in her yard.
She stated that the shorter black man had a shirt on. Harsch told her
husband to call 9–1–1, but the police arrived even before he could
call. She then got her robe and went outside to tell an officer where
the gun was located.
Officer Peter said that a neighbor approached him at the scene and
spoke to him. After he spoke with her, Peter searched the bushes near
the woman’s home next to a fence. There he found a small sawed-off
shotgun. Peter said that the neighbor indicated that the man with no
shirt had had the shotgun. Defendant had no shirt on. The other two
men detained at the scene, Cory Jackson—defendant’s brother—and
Malcolm Baty, both had shirts on. Harned said that he found a t-shirt
lying in the driveway just south of where they located the gun. Harned
noted that defendant was the only person at the scene who did not
have a shirt on.
....

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At trial, the prosecutor asked Harsch whether an officer had asked her
if she could identify the man who had the gun and she testified that
“he did.” The prosecutor then asked her whether she pointed to one of
the men in custody and she said, “no.” The prosecutor later called
Officer Peter to the stand and asked him whether he had asked Harsch
if she could identify the man who had the shotgun at the scene and he
stated that he did. When the prosecutor asked what she did or said,
defendant’s trial counsel objected to the question because it asked for
hearsay. The prosecutor responded that he was offering the testimony
as a prior inconsistent statement because Harsch had testified that she
did not identify defendant as the taller black man who had the
shotgun. See MRE 801(d)(1)(A). The trial court agreed that the
testimony was admissible for that purpose. At that point, Peter
testified that, after he asked Harsch if she could identify the man with
the shotgun, she “pointed to the black male subject who was on the
ground who had no shirt on.” Defendant’s trial counsel then cross
examined Peter about the circumstances under which Harsch pointed
out defendant and noted that she might simply have pointed to him
because he was the only man left who was not wearing a shirt.
After defendant’s trial counsel made his motion for a directed verdict,
the prosecutor asked the trial court to instruct the jury that Peter’s
testimony that Harsch pointed to defendant could be used as
substantive evidence that defendant possessed the shotgun, rather than
just evidence of a prior inconsistent statement. The trial court agreed
that it was admissible for that purpose under MRE 801(d)(1)(C) and
later instructed the jury that it could use the testimony as evidence that
defendant possessed the shotgun.
People v. Jackson, No. 294112, 2011 WL 192390, at *1–2, 9–10 (Mich. Ct. App.
Jan. 20, 2011).
Petitioner’s conviction was affirmed on appeal by the Michigan Court of
Appeals, although the case was remanded to the trial court to amend the judgment
of sentence to reflect the correct amount of credits for time served. Id. at *1.

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Petitioner did not file an application for leave to appeal to the Michigan Supreme
Court. See Aff. of Corbin R. Davis, Clerk of the Michigan S. Ct., dated July 24,
2012. Dkt. No. 7-15.
Jackson filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254, which was held in abeyance to permit him to return to the state courts to
exhaust additional claims which had not yet been presented to the state courts.
Jackson v. Smith, No. 4:12-CV-11463, 2013 WL 2447783 (E.D. Mich. June 5,
2013), Dkt. No. 15.
Petitioner filed a post-conviction motion for relief from judgment with the
trial court, which was denied. People v. Jackson, No. 08-10666-FH (Bay Cty. Cir.
Ct. July 1, 2013), reconsideration denied, No. 08-10666-FH (Bay Cty. Cir. Ct. July
31, 2013). The Michigan appellate courts denied Jackson leave to appeal. People
v. Jackson, No. 318547 (Mich. Ct. App. Mar. 17, 2014), leave denied, 497 Mich.
903, 856 N.W.2d 35 (2014).
On September 12, 2016, this Court reopened the case to the Court’s active
docket, amended the caption, and permitted Petitioner to file an amended habeas
petition. See Dkt. No. 21.
In his original habeas application, Petitioner sought relief on the following
grounds:

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I.

There was insufficient evidence that he possessed the shotgun,
so as to support his conviction.

II.

There was insufficient evidence to convict him on the felon in
possession of a firearm charge because there was no requisite
felony, and Petitioner’s counsel was ineffective for stipulating
that there was a requisite felony.

III.

The trial court violated his due process rights when it admitted
a police officer’s testimony about another witness’s statement
of identification, where there was no proper identification
procedure.

Dkt. No. 1, p. 17 (Pg. ID 17). In his amended habeas application, Petitioner raises
additional claims, which this Court will number as claims four through six:
IV.

His conviction for felon in possession of a firearm violated the
Ex Post Facto Clause and the Due Process Clause.

V.

He was denied the effective assistance of appellate counsel
where his attorney did not raise issues in his appeal as of right.

VI.

He was denied the effective assistance of trial counsel because
trial counsel stipulated to a prior conviction that allegedly did
not exist.
II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 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--

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(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
where (1) “the state court arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law”; or (2) “the state court confronts facts that
are materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [the Supreme Court].” Williams v. Taylor, 529 U.S.
362, 405 (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. Rather, “a
state court’s determination that a claim lacks merit precludes federal habeas relief
so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). To obtain habeas relief in federal court then,

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state prisoners must show that the state court’s rejection of their claims “was so
lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.” Id. at 103. A
habeas petitioner should not obtain relief as long as it is within the “realm of
possibility” that fairminded jurists could find the state court decision to be
reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
III. Discussion
A. Claims One and Two: Sufficiency of the Evidence
Petitioner first contends that there was insufficient evidence to convict him.
The Court disagrees.
“[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).
“[T]he critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction must be not simply to determine whether the jury was properly
instructed, but to determine whether the record evidence could reasonably support
a finding of guilt beyond a reasonable doubt.” Jackson v. 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

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doubt.” Id. at 334 (quoting Woodby v. INS, 385 U.S. 276, 282 (1966)). “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. at 319 (internal
citation omitted).
Significantly, “a federal court may not overturn a state court decision
rejecting a sufficiency of the evidence challenge simply because the federal court
disagrees with the state court.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per
curiam). Rather, a federal court may grant habeas relief only if the state court
decision was an objectively unreasonable application of the Jackson standard. Id.
“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. Indeed, for a
federal 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).
Finally, on habeas review, a federal court does not reweigh the evidence or
reevaluate the credibility of witnesses whose demeanor was observed at trial.
Marshall v. Lonberger, 459 U.S. 422, 434 (1983). “It is the province of the

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factfinder, here the state trial court, to weigh the probative value of the evidence
and resolve any conflicts in the testimony.” Neal v. Morris, 972 F. 2d 675, 679
(6th Cir. 1992) (citing Jackson, 443 U.S. at 319). 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). The Court does not apply the
reasonable doubt standard when determining the sufficiency of evidence on habeas
review. Walker v. Russell, 57 F. 3d 472, 475 (6th Cir. 1995).
Petitioner’s initial claim is that there was insufficient evidence to establish
that he handled the shotgun. Petitioner further asserts that even if the evidence
demonstrated he temporarily handled the shotgun, this was insufficient to prove
that he unlawfully possessed the shotgun as a matter of law.
The Michigan Court of Appeals rejected Petitioner’s claim, concluding:
Here, Harsch testified that she looked outside after she heard “a lot of
yelling” and saw a taller black man with a gun. She said that the taller
man walked to the driveway near her house and, as he started to take
off his shirt, he passed the gun to a shorter black man. The shorter
man then took the gun and stuck it in her yard. Other testimony and
evidence established that a short-barreled shotgun was found where
Harsch saw the shorter black man place the gun.
This evidence was sufficient to establish that the taller black man
actually or constructively possessed the shotgun. Harsch stated that
she saw the taller black man holding the gun and that he passed it to
the shorter man after he began to take his shirt off. From this
testimony, a reasonable jury could infer that the taller black man had
actual possession of the shotgun—even if momentary—and only

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passed it to the shorter man because he could not continue to hold the
weapon while removing his shirt. Further, a reasonable jury could also
conclude that the shorter man took possession at the taller man’s
direction and, from that, could also find that the taller man continued
to have constructive possession even after he passed the weapon to the
shorter man. Thus, if there was sufficient evidence to establish that
defendant was the taller black man, then there was also sufficient
evidence to establish that defendant possessed the shotgun.
Although Harsch did not identify defendant as the taller black man at
trial, her testimony established that the taller black man took off his
shirt. She also stated that the shorter black man had his shirt on and
that the police arrived on the scene just moments after she saw the
taller man hand the shotgun to the shorter man. Lyman testified that
when he arrived on the scene there were three black men approaching
his car and three walking away. Lyman stopped the three men who
were approaching his car. He noted that defendant was among the
three men and that he was the only person who had no shirt. The
officers also found a t-shirt on the driveway. Harned testified that he
passed Lyman and pursued the three men who were moving away.
Although he did not apprehend those men, Harned stated that all three
had white t-shirts on.
Given the evidence that the police arrived on the scene shortly after
Harsch observed the episode with the gun, a reasonable jury could
infer that all the participants in the altercation were in or near the yard
at the time the police arrived. Because the officers’ testimony
established that defendant was the only man of the six observed at the
scene who did not have on a shirt, the jury could reasonably infer that
defendant was the taller black man that Harsch saw with the shotgun.
Therefore, there was sufficient evidence to establish that defendant
possessed the shotgun at issue. The trial court properly denied
defendant’s motion for a directed verdict premised on the sufficiency
of the evidence.
Jackson, 2011 WL 192390, at *3 (internal footnote and citation omitted).
Additionally, the Michigan Court of Appeals determined that under Michigan law

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“momentary innocent possession is not a defense to being a felon-in-possession.”
Id. at *3 n.1 (citing People v. Hernandez–Garcia, 477 Mich. 1039, 728 N.W.2d
406, 406 (2007); People v. Dupree, 284 Mich. App. 89, 771 N.W.2d 470, 478 n.1
(2009)).
Petitioner also argues there was insufficient evidence to establish that he
was the taller man, whom Ms. Harsh identified, in possession of the shotgun. This
argument lacks merit.
Under Michigan law, “[t]he 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, 25 Mich. App. 646, 181 N.W.2d 655, 656 (1970)).
“Circumstantial evidence alone is sufficient to support a conviction, and ‘[i]t is
not necessary for the evidence to exclude every reasonable hypothesis except that
of guilt.’” Johnson v. Coyle, 200 F. 3d 987, 992 (6th Cir. 2000) (quoting United
States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999)). “Identity of a defendant can be
inferred through circumstantial evidence.” Dell v. Straub, 194 F. Supp. 2d 629,
648 (E.D. Mich. 2002) (citing United States v. Kwong, 14 F.3d 189, 193 (2nd Cir.
1994)).
Here, there was enough circumstantial evidence to establish that Petitioner

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was the taller African-American male who initially handled the shotgun. Ms.
Harsch saw the taller man and observed that he was in possession of a shotgun.
This man removed his shirt while passing the shotgun to a shorter man, and the
shorter man placed the weapon in Ms. Harsch’s yard. Moments later, the police
found the shotgun in Ms. Harsch’s yard. When Officer Lyman arrived on the
scene, he saw three African-American males walking toward his car and three
men walking away from the scene.

Officer Lyman stopped the three men

approaching his car. He testified that Petitioner was the only man not wearing a
shirt, and a t-shirt was discovered in the driveway. Officer Harned passed the
three men walking away from the scene and observed that they all were wearing
shirts. Finally, although Ms. Harsch at trial did not identify Petitioner as the taller
man at the crime scene, Officer Peters testified that while at the scene he had
asked Ms. Harsch to identify the man with the shotgun, and she pointed to
Petitioner, the only man on the ground not wearing a t-shirt.
Given that Jackson was the only shirtless person at the crime scene and was
identified by Ms. Harsch at the scene, a rational trier of fact could conclude that
Jackson was the man Ms. Harsch observed handing the shotgun to the shorter
man.
Petitioner argues that the state court determination is erroneous because

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certain defense witnesses testified that other men walking in the vicinity had their
shirts off. See Dkt. No. 7-6, Tr. 4/29/09, p. 115, 136 (Pg. IDs 384, 405). The
Court finds this argument unavailing.
A federal court sitting on habeas corpus “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,
565 U.S. at 7 (quoting Jackson, 443 U.S. at 326). Because the evidence must be
viewed in the light most favorable to the prosecution, it is reasonable to conclude
that the jury disregarded the defense witnesses’ testimony and determined
Petitioner was the only person at the crime scene not wearing a shirt. See, e.g.,
United States v. Elder, 90 F.3d 1110, 1122 (6th Cir. 1996) (construing evidence in
light most favorable to the prosecution and holding jury disregarded testimony of
defendant and defense witnesses in favor of testimony from co-conspirator
regarding defendant’s involvement in criminal organization).
Petitioner also argues there was insufficient evidence to overcome his
defense that his temporary handling of the shotgun did not constitute illegal
possession of the shotgun. This argument lacks merit.
“The elements of felony-firearm are that [the defendant] possessed a

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firearm while committing, or while attempting to commit, a felony offense.” See
Parker v. Renico, 506 F.3d 444, 448 (6th Cir. 2007) (citing Mich. Comp. Laws §
750.227b). The elements of felon in possession of a firearm in Michigan are:
“that (1) [the defendant] was convicted of a felony; (2) [the defendant] possessed
a firearm; and (3) at the time of possession, less than three or five years,
depending on the underlying felony, passed since [the defendant] had completed
his previous term of incarceration, satisfied all conditions of probation and parole,
and paid all fines.” Id. (citing Mich. Comp. Laws § 750.224f). To convict
Petitioner of possessing a short-barreled shotgun, the prosecution had to prove that
he actually or constructively possessed a short-barreled shotgun. People v. Hill,
433 Mich. 464, 446 N.W.2d 140, 142–43 (1989). A “short-barreled shotgun”
includes a shotgun that has one or more barrels less than eighteen inches in length.
Id. at 143 n.5 (citing what is now Mich. Comp. Laws § 750.222(i)).
Under Michigan law, possession of a firearm can be either actual or
constructive.

Parker, 506 F.3d at 448 (citing Hill, 446 N.W.2d at 143).

Specifically, “a person has constructive possession if there is proximity to the
[weapon] together with indicia of control.” Id. (quoting Hill, 446 N.W.2d at 143.)
“Put another way, a defendant has constructive possession of a firearm if the
location of the weapon is known and it is reasonably accessible to the defendant.”

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Id. at 448 n.3 (quoting Hill, 446 N.W.2d at 143). “As applied, ‘reasonable access’
is best calibrated to instances where a defendant commits a crime emboldened by
a firearm available, but not in hand.” Id. “Constructive possession exists when a
person does not have actual possession but instead knowingly has the power and
the intention at a given time to exercise dominion and control over an object,
either directly or through others.” Id. at 449 (quoting United States v. Craven, 478
F. 2d 1329, 1333 (6th Cir. 1973), abrogated on other grounds by Scarborough v.
United States, 431 U.S. 563 (1977)) (construing Michigan law).
In this case, there was sufficient evidence to establish that Petitioner
possessed the shotgun, so as to support his convictions. He was seen handling the
shotgun before giving it to another man, who hid it in Ms. Harsch’s yard. The
state court concluded Petitioner’s momentary possession of the shotgun was
sufficient to support his convictions; it held that “momentary innocent possession
is not a defense to being a felon-in-possession.” Jackson, 2011 WL 192390, at *3
n.1 (citing People v. Hernandez–Garcia, 477 Mich. 1039, 728 N.W.2d 406, 406
(2007); People v. Dupree, 284 Mich. App. 89, 771 N.W.2d 470, 478 n.1 (2009)).
Although the court did not explicitly mention the felony-firearm or short-barreled
shotgun charges, the court’s statement shows that momentary possession of the
shotgun is not a defense to these charges.

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“[A] state court’s interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal court sitting in habeas
corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005). “[S]tate courts are the
ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975).
“What is essential to establish an element, like the question whether a given
element is necessary, is a question of state law.” Sanford v. Yukins, 288 F.3d 855,
862 (6th Cir. 2002) (quoting Bates v. McCaughtry, 934 F.2d 99, 103 (7th Cir.
1991)). Moreover, a federal court on habeas corpus must distinguish a sufficiency
of evidence claim from state law claims disguised as Jackson claims. Id. (citing
Bates, 934 F.2d at 102). Thus, “when a habeas petition is predicated upon just
one of several plausible interpretations of underlying state law, federal courts have
declined to review state convictions on insufficiency-of-evidence grounds.”
Jenkins v. Dailey, 348 F. App’x 114, 119 (6th Cir. 2009).
This Court must therefore defer to the Michigan Court of Appeals’
construction of the elements of state crimes. See Coe v. Bell, 161 F.3d 320, 347
(6th Cir. 1998). As the Michigan Court of Appeals concluded that Petitioner’s
momentary possession of the shotgun was sufficient to establish the elements of
the various firearms offenses, this Court cannot revisit that determination.
Accordingly, Petitioner is not entitled to relief on his first claim.

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In his second claim, Petitioner argues there was insufficient evidence to
convict him of being a felon-in-possession, as none of his prior convictions were
felonies as that term is used in Mich. Comp. Laws § 750.224f(5) and (6). The
state court rejected Petitioner’s claim because his trial counsel had stipulated that
he was ineligible to possess a firearm. Jackson, 2011 WL 192390, at *8.
The Court finds Petitioner’s argument unavailing. “Every federal appellate
court that has addressed the issue has held that by entering into the stipulation, a
criminal defendant waives his right to assert the government’s burden of
presenting evidence to the jury on the stipulated elements of the criminal offense,
‘including a reading of the stipulation itself.’” Mattox v. Davis, 549 F. Supp. 2d
877, 909 (W.D. Mich. 2008) (quoting United States v. Harrison, 204 F.3d 236,
240–41 (D.C. Cir. 2000)) (internal citations omitted). Petitioner’s stipulation that
he was ineligible to possess a firearm waived his right to contest the sufficiency of
the evidence on this element of the felon-in-possession offense.

Id. at 910.

Accordingly, the state court decision on this issue was not contrary to, or an
unreasonable application of, Supreme Court holdings. See id.
B. Claims Two, Four, Five and Six: Ineffective Assistance of Counsel,
and the Due Process Clause and Ex Post Facto Clause
For clarity, the Court will examine Petitioner’s second, fourth, fifth and sixth

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claims together.
In his second and fifth claims, Petitioner argues that trial counsel was
ineffective for stipulating that he was ineligible to possess a firearm, because his
prior convictions were not felonies as used in Mich. Comp. Laws § 750.224f(5)
and (6). The Michigan Court of Appeals found this argument unconvincing:
Defendant had several prior convictions including a conviction for
attempting to resist and obstruct an officer. Although defendant argues
that this attempt was not a felony because the attempt statute provides
that it is punishable by 2 years in prison, see MCL 750.92(3), MCL
750.224f(5) defines a felony to include an attempt to commit a felony
that is itself punishable by 4 or more years. Thus, whether an attempt
constitutes a felony must be ascertained by reference to the underlying
felony, not the statute providing penalties for attempting to commit an
offense. The offense of resisting and obstructing is generally
punishable by imprisonment for not more than 2 years. MCL
750.479(2). However, if the violation causes an injury requiring
medical attention, it is punishable by imprisonment for not more than
4 years. MCL 750.479(3). If the violation caused a serious impairment
of body function or death, the defendant may be imprisoned for up to
10 years or 20 years respectively. MCL 750.479(4) and (5). Thus, an
attempt to commit the offense prohibited under MCL 750.479 can
constitute a felony within the meaning of MCL 750.224f(5), if the
defendant attempted to resist and obstruct causing bodily injury
requiring medical treatment, serious impairment of body function, or
death.
In this case, defendant notes that he was sentenced under MCL 750
.92(3), so the underlying offense had to be subject to imprisonment
for less than five years. But a felony under MCL 750.224f(5) is any
crime punishable by 4 years or more. So the fact that defendant was
ultimately sentenced under MCL 750.92(3) does not preclude the
possibility that defendant’s underlying crime constituted a felony
within the meaning of MCL 750.224f(5). Given that defendant was

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originally charged with resisting and obstructing as well as attempting
to disarm an officer, it is possible that the prosecution could have
presented evidence that defendant attempted to assault an officer and
that when he did so he had the intent to physically injure the officer.
Such an attempt would constitute a felony within the meaning of
MCL 750.224f(5) and, because it includes an element of physical
force against another, it would be a specified felony under MCL
750.224f(6). Given defendant’s record, defendant’s trial counsel
might reasonably have concluded that it was best to stipulate to this
element rather than invite the prosecutor to present evidence
concerning the circumstances involved in the prior conviction that
might be more prejudicial to defendant.
Defendant’s trial counsel’s stipulation that defendant was ineligible to
possess a firearm under MCL 750.224f was sufficient to support his
conviction and defendant has not shown that this decision fell below
an objective standard of reasonableness.
Jackson, 2011 WL 192390, at *8–9 (internal citations omitted).
To show the denial of effective assistance of counsel under the Constitution,
defendants must satisfy a two prong test. First, defendants must demonstrate that,
considering the circumstances, “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing,
the defendant must overcome a strong presumption that counsel’s behavior lies
within the wide range of reasonable professional assistance. Id. at 689. In other
words, a petitioner must overcome the presumption that the challenged action
might be sound trial strategy. Id.

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Second, a petitioner must show that counsel’s performance prejudiced his
defense. Id. at 687. To demonstrate prejudice, a defendant must show that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “Strickland’s test for
prejudice is a demanding one. ‘The likelihood of a different result must be
substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th
Cir. 2011) (quoting Harrington v. Richter, 562 U.S. 86, 101, 112 (2011)).
“Strickland places the burden on the defendant, not the State, to show a ‘reasonable
probability’ that the result would have been different.” Wong v. Belmontes, 558
U.S. 15, 27 (2009). Strickland also applies to claims of ineffective assistance of
appellate counsel. See Whiting v. Burt, 395 F. 3d 602, 617 (6th Cir. 2005).
Moreover, on habeas review, “[t]he question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was
incorrect but whether [it] was unreasonable—a substantially higher threshold.’”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (alterations in original) (quoting
Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “The pivotal question is whether
the state court’s application of the Strickland standard was unreasonable. This is
different from asking whether defense counsel’s performance fell below
Strickland’s standard.”

Harrington, 562 U.S. at 101.

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Indeed, “because the

Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.” Knowles,
556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Pursuant to 28 U.S.C. § 2254(d)(1), a “doubly deferential judicial review” applies
to a habeas petitioner’s Strickland claim. Id. Thus, on habeas review, “a state
court must be granted a deference and latitude that are not in operation when the
case involves review under the Strickland standard itself.” Harrington, 562 U.S. at
101. “Surmounting Strickland’s high bar is never an easy task.” Id. at 105
(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Criminal defendants in federal court should be allowed to stipulate to felonyconvict status without specifically identifying the nature and type of their felony
conviction. See, e.g., Old Chief v. United States, 519 U.S. 172, 191–92 (1997).
This type of stipulation is allowed “when the name or nature of the prior offense
raises the risk of a verdict tainted by improper considerations, and when the
purpose of the evidence is solely to prove the element of prior conviction.” Id. at
174. Michigan permits a similar procedure. See People v. Mayfield, 221 Mich.
App 656, 562 N.W. 2d 272, 275 (1997).
Moreover, “factual stipulations to elements of a crime are often the product
of a sound trial strategy.” United States v. Monaghan, 409 F. App’x 872, 877 (6th

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Cir. 2011). “For example, where a prior felony conviction is an element of the
offense, a sound strategy may be to stipulate to the existence of the conviction
rather than allow the jury to hear details about the earlier crime.” Id. (internal
citations omitted).
Petitioner has not overcome the presumption that counsel’s stipulation was
“the product of a sound trial strategy.” See id. He argues that his prior conviction
for attempted resisting and obstructing a police officer cannot qualify as a
predicate felony because it was a two-year misdemeanor. Yet the state court
concluded that as a matter of law his conviction could qualify as a predicate
offense, because it was an attempt to commit a felony. As this Court “cannot
logically grant the writ based on ineffective assistance of counsel without
determining that the state court erred in its interpretation of its own law,” the Court
must reject Petitioner’s ineffective assistance of trial counsel claim. See Davis v.
Straub, 430 F.3d 281, 291 (6th Cir. 2005). The state court determined Petitioner’s
conviction for attempted resisting and opposing a police officer could serve as a
predicate offense for his felon in possession of a firearm conviction, and this Court
must defer to the state-court’s finding that Petitioner’s counsel was not ineffective
for stipulating that Petitioner was ineligible to possess a firearm.
Haeberlin, 579 F.3d 627, 648–49 (6th Cir. 2009).

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Hodge v.

In his fourth claim Petitioner argues that because he was not convicted of a
felony, his felon in possession of a firearm conviction violates the Ex Post Facto
Clause and the Due Process Clause. Specifically, Jackson argues that the predicate
offense for his felon in possession conviction—attempted resisting and obstructing
a police officer—and the offense’s completed charge were misdemeanors. He
contends that two years after his conviction, Michigan amended the relevant statute
to make resisting and obstructing a police officer a four-year felony, where the
officer suffered bodily injury and needed medical care. In other words, according
to Petitioner, only after his conviction did his crime become a felony. Petitioner
posits then that the state court retroactively applied the amended statute in
concluding his conviction constitutes a predicate offense, and thus, violated the
Due Process Clause and Ex Post Facto Clause.
This argument lacks merit.

The Court will first address Petitioner’s

challenge based on due process. The Due Process Clause “provides a means by
which to challenge a judicial decision on ex-post-facto grounds.” Ruhlman v.
Brunsman, 664 F.3d 615, 620 (6th Cir. 2011).

Its protections are based on

“‘concepts of notice, foreseeability, and, in particular, the right to fair warning as
those concepts bear on the constitutionality of attaching criminal penalties to what
previously had been innocent conduct.’” Id. (quoting Rogers v. Tennessee, 532

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U.S. 451, 456, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001)). The crucial inquiry for
a court assessing a due process challenge is “whether [a judicial] decision is
‘unexpected and indefensible by reference to the law which had been expressed
prior to the conduct in issue.’” Id. (quoting Rogers, 532 U.S. at 462).
Here, Petitioner’s complaint is not that the state court has applied the law in
an unforeseeable manner. See, e.g., Bouie v. City of Columbia, 378 U.S. 347, 354,
84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964) (invalidating state court decision regarding
a statute which “prohibited entry upon the lands of another . . . after notice from
the owner or tenant prohibiting such entry,” as court applied statute to persons who
were not prohibited from entering but had refused to leave; court had previously
only applied the statute to persons who had notice that they could not enter.
(internal citations omitted)). Rather, Jackson is contesting legislative action which
he believes unlawfully transformed his misdemeanor conviction into a felony. As
Jackson’s complaint does not address a judicial decision, the Due Process Clause
cannot provide him relief. See Ruhlman, 664 F.3d at 619 (“It is well established
that the Ex Post Facto Clause ‘does not of its own force apply to the Judicial
Branch of government.’” (quoting Marks v. United States, 430 U.S. 188, 191, 97 S.
Ct. 990, 51 L. Ed. 2d 260 (1977))). Therefore, Jackson’s fourth claim fails as it
relates to the Due Process Clause.

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Petitioner’s challenge under the Ex Post Facto Clause also fails. The Ex
Post Facto Clause prohibits state legislatures from retroactively altering the
definition of crimes. O’Neal v. Bagley, 743 F.3d 1010, 1015 (6th Cir. 2013). Put
another way, it “prohibits the legislative enactment of any law that, inter alia,
‘changes the punishment, and inflicts a greater punishment, than the law annexed
to the crime, when committed.’” Ruhlman, 664 F.3d at 619 (quoting Rogers, 532
U.S. at 456). “‘[T]he focus of the ex post facto inquiry,’ however, ‘is not whether
a legislative change produces some ambiguous sort of ‘disadvantage’ . . . but on
whether any such change alters the definition of criminal conduct or increases the
penalty by which the crime is punishable.’” Doe v. Bredesen, 507 F.3d 998, 1003
(6th Cir. 2007).
In this case, Jackson contests a “recidivism statute,” i.e. a statute that
“provide[s] enhanced penalties for previously convicted persons.” United Stated v.
Hardeman, 704 F.3d 1266, 1268 (9th Cir. 2013). Yet it is well settled that such
statutes do not violate the Ex Post Facto Clause. Id. As the Ninth Circuit detailed
in Hardeman:
The Supreme Court has long held that recidivism statutes do not
violate the Ex Post Facto Clause because the enhanced penalty
punishes only the latest crime and is not retrospective additional
punishment for the original crimes. When a defendant is given a
higher sentence under a recidivism statute[,] . . . 100% of the
punishment is for the offense of conviction. None is for the prior

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convictions or the defendant’s status as a recidivist.
Id. (internal citations and quotations omitted).
Here, the state legislature did not violate the Ex Post Facto Clause when it
made Petitioner’s attempted resisting and obstructing a police officer conviction a
predicate offense of a felony in possession conviction; the state legislature did not
add new penalties to Petitioner’s prior conviction. Rather, it enhanced a felon in
possession conviction, and this enhancement was the sole punishment for his
conviction. See, e.g., United States v. Glover, 153 F.3d 749, 757–58 (D.C. Cir.
1998) (holding a statute did not violate the Ex Post Facto Clause where it
construed as a felony the defendant’s prior misdemeanor convictions in state court;
defendant’s federal convictions did not add a penalty for prior crimes, but
prospectively defined new, more drastic consequences if defendant committed
additional crimes). As Petitioner’s felony in possession conviction does not offend
the Due Process Clause or Ex Post Facto Clause, Petitioner is not entitled to relief
on his fourth claim.
For his sixth claim Petitioner contends that his appellate counsel was
ineffective for failing to raise his second, fourth, and fifth claims. This argument
fails.
The Sixth Amendment guarantees a defendant the right to effective

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assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387,
396–97 (1985). This right does not, however, require that counsel raise every
nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751
(1983). Further, “[a]ppellate counsel 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)). Because
none of these claims are meritorious, appellate counsel was not ineffective on
Petitioner’s direct appeal.
C. Claim Three: Identification Testimony
Petitioner asserts the state trial court improperly admitted a police officer’s
testimony regarding Ms. Harsch’s identification of Petitioner.

The Court

disagrees.
“Extrajudicial witness identifications are routinely used as substantive
evidence of guilt.” Foxworth v. St. Amand, 570 F.3d 414, 427 (1st Cir. 2009)
(citing Samuels v. Mann, 13 F.3d 522, 527 (2d Cir. 1993); FED. R. EVID.
801(d)(1)(C)). The evidence presented was sufficient to convict Petitioner despite
Ms. Harsch’s failure to identify Petitioner in court. “There is no requirement,
either in the Constitution or in the usual rules that apply to the admission of
evidence, that a witness who makes an extrajudicial identification must repeat the

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identification in the courtroom.” Id.; see also Bugh v. Mitchell, 329 F. 3d 496,
505–11 (6th Cir. 2003) (upholding admission of minor victim’s out-of-court
statements as a prior identification of petitioner under Ohio Evidence Rule
801(d)(1)(C), although “[victim] was not willing to testify about the statements at
trial and did not remember having made them”).
In addition, Ms. Harsch testified at trial and was subject to crossexamination regarding her identification of Petitioner. Therefore, Officer Peter’s
testimony was not hearsay under state evidence law, see MICH. R. EVID.
801(d)(1)(C), nor does this evidence violate the Confrontation Clause of the Sixth
Amendment. See United States v. Owens, 484 U.S. 554, 560 (1988); see also
Greene v. Lafler, 447 F. Supp. 2d 780, 793 (E.D. Mich. 2006) (examining prior
identifications and concluding that “[b]ecause the declarants testified at trial and
were subject to cross-examination on their identification of the petitioner, the
statements are not hearsay under state evidence law.”). Thus, Petitioner is not
entitled to relief on his third claim.
IV. Certificate of Appealability and In Forma Pauperis Request
The Court will deny Petitioner’s request for a certificate of appealability and
for leave to appeal in forma pauperis.
First, to obtain a certificate of appealability, a prisoner must make a

29

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
The required showing is “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (citing Barefoot v.
Estelle, 463 U.S. 880, 893 & n.3, 103 S. Ct. 3383 (1983)). When a district court
rejects a habeas petitioner’s constitutional claims on the merits, “[t]he petitioner
must demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Id. at 484. “The district court
must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant.” RULES GOVERNING SECTION 2254 CASES, R. 11(a), 28 U.S.C.
foll. § 2254.
For the reasons stated herein, the Court will deny Petitioner a certificate of
appealability. See Johnson v. Smith, 219 F. Supp. 2d 871, 885 (E.D. Mich. 2002).
Second, the Court will deny Petitioner leave to appeal in forma pauperis, as
an appeal would be frivolous. Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D.
Mich. 2001).
V. Conclusion
Based on the reasons discussed herein, the Court will DENY Jackson’s

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petition for a writ of habeas corpus, request for a certificate of appealability, and
request for leave to appeal in forma pauperis [20].
SO ORDERED.
Dated: November 8, 2017

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 8, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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