Knolton v. Palmer

Filing 15

OPINION AND ORDER DISMISSING 1 Petition for Writ of Habeas Corpus, DENYING Certificate of Appealability, and DENYING Leave to Appeal In Forma Pauperis. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JESSIE LEE KNOLTON,
Petitioner,

Case No. 12-12085
HON. TERRENCE G. BERG

v.
CARMEN PALMER,
Respondent.
______________________________________/

OPINION AND ORDER
DISMISSING PETITION FOR WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF APPEALABILITY; AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Jessie Lee Knolton, (“Petitioner”), presently confined at the Muskegon
Correctional Facility in Muskegon, Michigan, seeks the issuance of a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges
his conviction for armed robbery, Mich. Comp. Laws § 750.529, and being a fourthhabitual offender, Mich. Comp. Laws § 769.12. For the reasons stated below, the
application for a writ of habeas corpus is DENIED WITH PREJUDICE.
I. FACTUAL BACKGROUND
Petitioner was convicted following a jury trial in the Oakland County Circuit
Court. This Court recites verbatim the relevant facts regarding Petitioner’s
conviction from the Michigan Court of Appeals’ opinion affirming his conviction,
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):

On September 29, 2009, Paul Karr, the victim, closed his business
around 7:00 p.m. and drove to the First Place Bank on 12 Mile Road
and Telegraph in Southfield to make a deposit. When Karr arrived at
the bank, he exited his vehicle and began to walk through the parking
lot towards the bank’s main entry door. Suddenly, codefendant Edward
Knolton (Edward), defendant’s brother, approached Karr pointing a
small, silver caliber revolver at Karr and stated “give it up.” Karr was
shocked and stood still for one to two seconds until defendant
unexpectedly grabbed Karr’s shoulders from behind and pulled Karr
backwards. Karr resisted defendant’s pull by hunching forward.
However, defendant maintained his grip on Karr’s shoulders while
Edward began striking Karr in the head several times with a blunt
object. During this attack, one of the two men removed Karr’s cell
phone, three checks, and a bank deposit slip from Karr’s right cargo
pants pocket. Then Karr, who was still bent forward and hunched over,
pulled his gun out of his left hip holster and pointed it at Edward’s
knee. Once the two men saw Karr’s gun, they stopped attacking him,
ran to their vehicle, and drove away.
At least three people witnessed the armed robbery and the police were
called. Shortly after 7:20 p.m., Officer Nicholas Smiscik, from the
Southfield Police Department, began trailing defendant’s vehicle
southbound on the Lodge Freeway. After additional police backup
arrived, Smiscik initiated a traffic stop and, ultimately, defendant and
Edward were arrested. After a jury trial, defendant was found guilty of
armed robbery.
People v. Knolton, No. 299159, pp. 1-2; 2011 WL 4811062 (Mich. Ct. App. Oct. 11,
2011) (footnotes omitted).
The Michigan Court of Appeals affirmed Petitioner’s conviction. Id; lv. den.
491 Mich. 908; 810 N.W.2d 578 (2012).
Petitioner now seeks a writ of habeas corpus on the following grounds:
I. Ineffective Assistance of Counsel.
II. Trial Court Abuse (sic) It’s (sic) Discretion.
III. Prosecutorial Misconduct.
IV. Resentencing.
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II. LEGAL STANDARD
Section 2254(d) of Title 28 of the United States Code, 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–
(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, 405-06 (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 410-11.
The Supreme Court explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our
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federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus
imposes a ‘highly deferential standard for evaluating state-court rulings,’ and
‘demands that state-court decisions be given the benefit of the doubt.’” Renico v.
Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n.7
(1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[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) (citing Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)). The Supreme Court emphasized “that even a strong case for
relief does not mean the state court’s contrary conclusion was unreasonable.” Id.
(citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to
§ 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.
“[I]f 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 relitigating 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

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corpus is a ‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Id. (citing
Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979)(Stevens, J., concurring in
judgment)). Thus, a “readiness to attribute error [to a state court] is inconsistent
with the presumption that state courts know and follow the law.” Woodford, 537
U.S. at 24. 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 786-87. Finally, in reviewing Petitioner’s claims, this Court must
remember that under the federal constitution, Petitioner was “entitled to a fair trial
but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619 (1953).
III. ANALYSIS
A. Claims # 1 and # 3: The ineffective assistance of counsel / prosecutorial
misconduct claims.
The Court will discuss Petitioner’s first and third claims together because
Petitioner’s first claim, pertaining to the ineffective assistance of trial counsel, is
based on the failure of trial counsel to object to instances of prosecutorial conduct,
which is the basis of Petitioner’s third claim.
Respondent contends that Petitioner raised his ineffective assistance of trial
counsel claim for the first time before the Michigan Supreme Court; therefore, it is
unexhausted for purposes of habeas review.

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When an appellant fails to appeal an issue to the Michigan Court of Appeals,
the issue is considered waived before the Michigan Supreme Court. Lawrence v.
Will Darrah & Associates, Inc., 445 Mich. 1, 4, fn.2; 516 N.W. 2d 43 (1994); Butcher
v. Treasury Dep’t., 425 Mich. 262, 276; 389 N.W. 2d 412 (1986). Therefore,
Petitioner’s failure to raise his ineffective assistance of counsel claim in his appeal
to the Michigan Court of Appeals precluded the Michigan Supreme Court from
considering the new issue that Petitioner raised in his application for leave to
appeal before that court.
More importantly, raising a claim for the first time before the state courts on
discretionary review does not amount to a “fair presentation” of the claim to the
state courts for exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351
(1989). Because Petitioner failed to present his first claim on his direct appeal
with the Michigan Court of Appeals, his subsequent presentation of this claim to
the Michigan Supreme Court does not satisfy the exhaustion requirement for
habeas purposes. See Skinner v. McLemore, 425 F. App’x 491, 494 (6th Cir. 2011);
Farley v. Lafler, 193 F. App’x 543, 549 (6th Cir. 2006).
The Court notes that Petitioner’s first claim is unexhausted, because it was
never presented to the Michigan Court of Appeals. However, a habeas petitioner’s
failure to exhaust his or her state court remedies does not deprive a federal court of
its jurisdiction to consider the merits of the habeas petition. Granberry v. Greer,
481 U.S. 129, 131 (1987). A habeas petitioner’s failure to exhaust his or her state
court remedies is not a bar to federal habeas review of the claim “when the claim is

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plainly meritless and it would be a waste of time and judicial resources to require
additional court proceedings.” Friday v. Pitcher, 200 F. Supp. 2d 725, 744 (E.D.
Mich. 2002); 28 U.S.C. § 2254(b)(1)(A)(c). Because Petitioner’s ineffective
assistance of counsel claim lacks merit, in the interests of efficiency and justice, the
Court will address Petitioner’s claim, rather than dismiss the petition on
exhaustion grounds. See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich.
1999).
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the
defendant must demonstrate that, considering all of the circumstances, counsel’s
performance was so deficient that the attorney was not functioning as the “counsel”
guaranteed 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. In other words, petitioner must overcome the presumption that, under the
circumstances, the challenged action might be sound trial strategy. Strickland, 466
U.S. at 689. Second, the defendant must show that such performance prejudiced his
defense. Id. To demonstrate prejudice, the 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.” Strickland, 466 U.S. 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.

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2011) (quoting Harrington v. Richter, 131 S.Ct. at 792). The Supreme Court’s
holding in Strickland places the burden on the defendant who raises a claim of
ineffective assistance of counsel, and not the state, to show a reasonable probability
that the result of the proceeding would have been different, but for counsel’s
allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
More importantly, on habeas review, “the question ‘is not whether a federal
court believes the state court’s determination’ under the Strickland standard ‘was
incorrect but whether that determination was unreasonable-a substantially higher
threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (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 v. Richter, 131 S.Ct. at 785. 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, 541 U.S.at 664). Pursuant to the § 2254(d)(1) standard, a
“doubly deferential judicial review” applies to a Strickland claim brought by a
habeas petitioner. Id. This means that on habeas review of a state court conviction,
“[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,
131 S.Ct. at 785. “Surmounting Strickland’s high bar is never an easy task.” Id. at
788 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).

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Because of this doubly deferential standard:
“Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under
§ 2254(d). When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is
any reasonable argument that counsel satisfied Strickland’s
deferential standard.”
Harrington v. Richter, 131 S.Ct. at 788.
Finally, this Court is aware that “[R]eliance on ‘the harsh light of hindsight’
to cast doubt on a trial that took place” four years ago “is precisely what Strickland
and AEDPA seek to prevent.” Id. at 789.
In his first claim, Petitioner argues that his trial counsel was ineffective for
failing to object to numerous instances of prosecutorial misconduct.
To show prejudice under Strickland for failing to object to prosecutorial
misconduct, a habeas petitioner must show that but for the alleged error of his trial
counsel in failing to object to the prosecutor’s improper questions and arguments,
there is a reasonable probability that the result of the proceeding would have been
different. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001). As will be discussed
below, the Court determines that the prosecutor’s questions and comments did not
deprive Petitioner of a fundamentally fair trial, thus, Petitioner is unable to
establish that he was prejudiced by counsel’s failure to object to these remarks. See
Slagle v. Bagley, 457 F.3d 501, 528 (6th Cir. 2006).
“Claims of prosecutorial misconduct are reviewed deferentially on habeas
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v.
Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper comments will
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be held to violate a criminal defendant’s constitutional rights only if they “‘so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will thus form
the basis for habeas relief only if the conduct was so egregious as to render the
entire trial fundamentally unfair based on the totality of the circumstances.
Donnelly v. DeChristoforo, 416 U.S. at 643-45. The Court must focus on “‘the
fairness of the trial, not the culpability of the prosecutor.’” Pritchett v. Pitcher, 117
F.3d 959, 964 (6th Cir. 1997) (quoting Serra v. Michigan Dep’t of Corr., 4 F.3d 1348,
1355 (6th Cir. 1993)). Thus, in order to obtain habeas relief on a prosecutorial
misconduct claim, a habeas petitioner must show that the state court’s rejection of
his prosecutorial misconduct claim “was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012)
(quoting Harrington, 131 S.Ct., at 786–87). This is particularly so, “because the
Darden standard is a very general one, leaving courts ‘more leeway ... in reaching
outcomes in case-by-case determinations’”. Id. (quoting Yarborough v. Alvarado,
541 U.S. at 664).
Petitioner begins by claiming that the “prosecutor’s prejudicial, reversible
misconduct also shifted the burden of proof to the defense during closing/rebuttal
argument(s) which included: ‘This is someone who, according to what he testified

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to, just got out of prison.’” (Tr. May 25, 2010, p11) (Petitioner’s Brief on Appeal, p.
21).
A review of the record reflects that the comment clearly referred to
petitioner’s brother and is taken out of context:
Think about this, it’s not a total stranger, it isn’t somebody that he
ran into in a coffee house and was driving around, this is somebody
he’s known for fifty years. This is somebody that on paper lives at the
same address as he does. This is somebody who he’s spending time
with that day alone in a vehicle, just the two of them. This is someone
who, according to what he testified to, just got out of prison.
(Tr. May 25, 2010, p. 11).
The Michigan Court of Appeals rejected Petitioner’s claim, finding that “[t]he
prosecutor did not state that defendant had just been released from prison, but did
properly argue that the jury could reasonable (sic) infer that defendant knew about
Edward’s plan to commit armed robbery because Edward had recently been
released from prison.” Knolton, Slip. Op., p. 4.
The prosecutor did not commit prosecutorial misconduct by improperly
shifting the burden of proof when she referred to the fact that Petitioner’s brother
had recently been released from prison. This comment made during closing
argument was commentary based on the evidence produced at trial. During crossexamination, the prosecutor asked Petitioner how he would describe his
relationship with his brother Edward. Petitioner responded to the question as
follows:
Well–well when he got out of prison my people’s–my family was–they–
they were trying to distant their self from him, but when I got out of
prison, I didn’t distant myself from him.
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(Tr. May 24, 2010, p. 232). Petitioner again brought to the attention of the jury that
his brother had just been released from prison when asked, “You weren’t both living
at 9214 Westwood in Detroit?” Petitioner responded, “I was living at 9214
Westwood, he wasn’t. He used the address 9214 for this living for getting out of
prison,[...]” (Tr. May 24, 2010, p. 233). The comment by the prosecutor pertaining to
the release of Petitioner’s brother from prison during closing argument was mere
commentary on the evidence that petitioner produced at trial.
It is improper for a prosecutor during closing arguments to bring to the jury
any purported facts which have not been introduced into evidence and which are
prejudicial; however, prosecutors must be given leeway to argue reasonable
inferences from the evidence. See Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000)
(internal citations omitted). Because the prosecutor’s remarks were based upon the
evidence that had been introduced at trial, they were not improper.
Petitioner next argues that the prosecution improperly vouched for her
witnesses by arguing in her closing summation that her witnesses had no motive to
lie. The Michigan Court of Appeals rejected this claim, finding that when viewing
the remarks in context, the prosecutor was not claiming to have any special
knowledge of the witnesses’ truthfulness, but was simply arguing that objectively
speaking, the witnesses had no motive to fabricate a story to implicate Petitioner in
a crime. Knolton , Slip. Op., p. 5.
A prosecutor may not express a personal opinion concerning the guilt of a
defendant or the credibility of trial witnesses, because such personal assurances of
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guilt or vouching for the veracity of witnesses by the prosecutor “exceeds the
legitimate advocates’ role by improperly inviting the jurors to convict the defendant
on a basis other than a neutral independent assessment of the record proof.”
Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir. 1999) (internal citations omitted).
However, a prosecutor is free to argue that the jury should arrive at a particular
conclusion based upon the record evidence. Id. The test for improper vouching for a
witness is whether the jury could reasonably believe that the prosecutor was
indicating a personal belief in the witness’ credibility. United States v. Causey, 834
F.2d 1277, 1283 (6th Cir. 1987). “[G]enerally, improper vouching involves either
blunt comments, or comments that imply that the prosecutor has special knowledge
of facts not in front of the jury or of the credibility and truthfulness of witnesses and
their testimony.” See United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)
(internal citations omitted); see also Griffin v. Berghuis, 298 F. Supp. 2d 663, 674-75
(E.D. Mich. 2004). It is worth noting that the Sixth Circuit has never granted
habeas relief for improper vouching. Byrd v. Collins, 209 F.3d at 537 and n.43.
Even on direct appeal from a federal conviction, the Sixth Circuit has held that to
constitute reversible error, a prosecutor’s alleged misconduct of arguing his personal
belief, in a witness’ credibility or in a defendant’s guilt, must be flagrant and not
isolated. See United States v. Humphrey, 287 F.3d 422, 433 (6th Cir. 2002).
Numerous cases have held that a prosecutor does not engage in vouching by
arguing that his witnesses have no reason or motivation to lie, when such comments
are based on the evidence and do not reflect a personal belief of the prosecutor. See

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United States v. Jackson, 473 F.3d 660, 672 (6th Cir. 2007); U.S. v. Israel, 133 F.
App’x 159, 165 (6th Cir. 2005); U.S. v. Parker, 49 F. App’x 558, 563 (6th Cir. 2002);
see also Alder v. Burt, 240 F. Supp. 2d 651, 669 (E.D. Mich. 2003) (prosecutor did
not engage in improper vouching when he argued that there was no evidence that
prosecution witness had “axe to grind” or any other improper motive, when he
asked rhetorically whether person who would burn 19-year-old female’s body to
destroy evidence would give truthful testimony, or when he asked whether
prosecution witnesses had any reason to lie).
Here, the prosecutor merely commented on the testimony given at trial by
Rhonda Ginsburg and Kenneth Fisher to demonstrate that their testimony
corroborated the testimony given by Paul Karr. (Tr. May 25, 2010, p. 12-13).
During rebuttal, the prosecutor commented on the testimony given by Paul Karr
stressing that Karr was adamant about the sequence of events and though the facts
in his earlier statement were out of sequence, he testified truthfully and had no
reason to lie. The prosecutor also explained that Karr had identified Petitioner as
his assailant due to his confusion and his recollection that the assailant had bad
teeth. When Petitioner was asked to smile, Karr indicated that Petitioner was the
gunman based on his recollection that the gunman had bad teeth. Karr did not
have the two brothers presented together for comparison purposes. Karr indicated
that the incident took place in a matter of seconds and due to fear and shock, Karr
“felt he [Petitioner] had bad teeth and that’s what he hung his hat on.” (Tr. May 25,
2010, pp. 29-30). Because the prosecutor’s remarks were based upon the evidence

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and reasonable inferences from the evidence, the prosecutor did not improperly
vouch for the credibility of her witnesses.
As to the prosecutor’s comments made on rebuttal regarding the officers not
putting “their careers at risk,” and having “no reason to lie,” these comments were
made in response to the defense allegation that an officer planted the bank slips in
Petitioner’s wallet. Rebuttal statements in response to a defendant’s closing
argument do not constitute prosecutorial misconduct. United States v. Robinson,
244 F.3d 503, 508 (6th Cir. 2001).
Petitioner also alleges that the prosecution shifted the burden of proof during
rebuttal argument when she stated that only Petitioner and Edward would be able
to present evidence that they discussed the robbery beforehand. “There’s two people
that would be able to present that evidence and I’m not one of them.” (Tr. May 25,
2010, p. 29). This comment addressed (1) the defense theory that Petitioner was
merely present and unaware of Edward’s plan to commit a robbery; and (2) the
prosecution’s inability to produce evidence of such a plan that could only be
obtained through the testimony of Edward or Petitioner.
The Michigan Court of Appeals rejected Petitioner’s claim, finding that “the
prosecution was properly responding to defense counsel’s closing argument that
there was no evidence of a prior discussion regarding the armed robbery between
defendant or Edward when it stated that only defendant or Edward could present
evidence regarding whether they had a conversation about committing the armed
robbery beforehand.” Knolton, Slip Op., p. 5.

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Furthermore, the trial court instructed the jury that Petitioner was
presumed innocent and that the prosecutor had the burden of proving Petitioner’s
guilt beyond a reasonable doubt. (Tr. May 25, 2010, p. 31). In the present case, the
prosecution’s argument did not deprive Petitioner of a fair trial, because any
possible prejudice which might have resulted from the comment was cured by the
trial court’s instructions regarding the proper burden of proof. See Scott v. Elo, 302
F.3d 598, 603-04 (6th Cir. 2002).
The prosecutor did not improperly shift the burden of proof by suggesting
that Petitioner and his brother Edward were the only individuals who could testify
that a discussion occurred between them before the robbery.
Petitioner’s final prosecutorial misconduct argument alleges that the
prosecutor committed misconduct during opening statement by informing the jury
that Petitioner “does not have a job, does not have an income! (I 9).” Petitioner’s
citation actually references the portion of the record pertaining to the jury selection.
The opening statement of the prosecutor begins on page 82 and does not contain any
reference to Petitioner’s income. The prosecutor later elicited testimony pertaining
to Petitioner’s income on the cross-examination of Petitioner. Trial counsel did not
lodge an objection but instead questioned Petitioner about his SSI benefits during
redirect examination (Tr. May 24, 2010, p. 243), and then addressed Petitioner’s
heath issues during closing argument, insinuating that his health issues may have
contributed to this ignorance of his brother’s plan to commit a robbery. (Tr. May 25,
2010, p. 18).

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Petitioner also claims that the prosecutor committed misconduct by referring
to the SSI income during her rebuttal. In reviewing whether a prosecutor’s
comments constitute reversible error, it is appropriate to consider whether, and to
what extent, a prosecutor’s improper argument is invited by defense counsel’s
statements. See United States v. Jacobs, 244 F.3d 503, 508 (6th Cir. 2001). The
prosecutor’s reference to the SSI income during rebuttal was a proper commentary
on the arguments set forth by trial counsel in closing argument.
Furthermore, even if the prosecutor’s questions during the cross-examination
of Petitioner about his income were somehow improper, they were not so flagrant as
to amount to prosecutorial misconduct, in light of the fact that the comments were
isolated and the evidence against Petitioner, including witness testimony, was very
strong. See Smith v. Mitchell, 567 F.3d 246, 256 (6th Cir. 2009).
Petitioner lastly contends that the cumulative effect of the prosecutor’s
comments and questions deprived him of a fair trial. The Sixth Circuit has noted
that the United States Supreme Court “has not held that distinct constitutional
claims can be cumulated to grant habeas relief.” Lorraine v. Coyle, 291 F.3d 416,
447 (6th Cir. 2002). Therefore, Petitioner’s claim that the prosecutor’s comments
and remarks cumulatively deprived him of a fair trial is an inadequate ground for
granting federal habeas relief because it is essentially a cumulative error claim. See
e.g. Noel v. Norris, 194 F. Supp. 2d 893, 931-32 (E.D. Ark. 2002).
Accordingly, Petitioner is not entitled to habeas relief on his first or third
claims.

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B. Claim # 2: Abuse of Discretion / Jury Instruction Claim.
Petitioner’s second claim alleges that the trial court abused its discretion
when it denied trial counsel’s request to instruct the jury to consider the prior
inconsistent statement of Paul Karr for both impeachment and substantive
purposes. More specifically, Petitioner argues that Paul Karr’s written statement to
the police after the assault could have been used as substantive evidence, pursuant
to M.R.E. 803(1) or M.R.E. 803(2). After hearing arguments, the trial court judge
ruled that the prior statement was hearsay and did not fall under a hearsay
exception. (Tr. May 25, 2010, pp. 45-46).
The Michigan Court of Appeal upheld the trial court’s decision to not provide
the requested jury instruction and allowing the statement in only as impeachment
evidence. Knolton, Slip Op., p. 3.
The burden of demonstrating that an erroneous instruction was so prejudicial
that it will support a collateral attack upon the constitutional validity of a state
court conviction is even greater than the showing required in a direct appeal. The
question in such a collateral proceeding is whether the instruction so infected the
entire trial that the resulting conviction violates due process, not merely whether
the instruction is undesirable, erroneous, or even “universally condemned,” and an
omission or incomplete instruction is less likely to be prejudicial than a
misstatement of the law. Henderson v. Kibbee, 431 U.S. 145, 154-155 (1977). The
challenged instruction must not be judged in isolation but must be considered in the
context of the entire jury charge. Jones v. United States, 527 U.S. 373, 391 (1999).

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Further, any ambiguity, inconsistency or deficiency in a jury instruction does not by
itself necessarily constitute a due process violation. Waddington v. Sarausad, 555
U.S. 179, 190 (2009). It is not enough that there might be some “slight possibility”
that the jury misapplied the instruction. Id. at 191. Federal habeas courts do not
grant relief, as might a state appellate court, simply because a jury instruction may
have been deficient in comparison to a model state instruction. Estelle v. McGuire,
502 U.S. 62, 72 (1991). In determining whether to grant habeas relief to a habeas
petitioner based upon an erroneous jury instruction, the reviewing court must
determine whether that instruction had a substantial and injurious effect or
influence on the jury’s verdict. See Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008);
California v. Ray, 519 U.S. 2, 5 (1996).
Moreover, Petitioner’s claim that the state trial court erred in refusing to
instruct the jurors that Karr’s prior inconsistent statement could be used as
substantive evidence as well as for impeachment is non-cognizable on habeas
review because it involves merely an interpretation of state evidentiary law. See
Kyle v. Romanowski, Case No. 08-14781, 2011 WL 977497, *6-7 (E.D. Mich. March
17, 2011); Cf. Isaac v. United States, 431 F.2d 11, 15 (9th Cir. 1970) (instruction
that prior inconsistent statement could be considered as substantive evidence and
not merely for impeachment not of constitutional dimension and not reversible error
since substantial rights not affected).
In addition, the trial court judge’s refusal to instruct the jurors that they
could use Karr’s prior inconsistent statement as substantive evidence did not

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deprive Petitioner of his right to present a defense. The Michigan Court of Appeals
determined that Karr’s prior inconsistent statement was not admissible as
substantive evidence because Karr’s written statement to the police had not been
made under oath and thus was not admissible as a hearsay exception under M.R.E.
801(d)(1)(A) nor did the statement qualify as either a present sense impression or
an excited utterance under either M.R.E. 803(1) or M.R.E. 803(2). Knolton, Slip.
Op., p. 3.
Just as an accused has the right to confront the prosecution’s witnesses for
the purpose of challenging their testimony, he also has the right to present his own
witnesses to establish a defense. This right is a fundamental element of the due
process of law. Washington v. Texas, 388 U.S. 14, 19 (1967); See also Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (“whether rooted directly in the Due Process
Clause of the Fourteenth Amendment, or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment, the Constitution guarantees
criminal defendants ‘a meaningful opportunity to present a complete defense’”)
(internal citations omitted). However, an accused in a criminal case does not have
an unfettered right to offer evidence that is incompetent, privileged, or otherwise
inadmissible under the standard rules of evidence. Montana v. Egelhoff, 518 U.S.
37, 42 (1996). The Supreme Court, in fact, has indicated its “traditional reluctance
to impose constitutional constraints on ordinary evidentiary rulings by state trial
courts.” Crane, 476 U.S. at 689. The Supreme Court gives trial court judges “wide
latitude” to exclude evidence that is repetitive, marginally relevant, or that poses a

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risk of harassment, prejudice, or confusion of the issues. Id. (quoting Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986)). Finally, rules that exclude evidence from
criminal trials do not violate the right to present a defense unless they are
“‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” United
States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v. Arkansas, 483 U.S. 44,
56 (1987)).
What is or is not hearsay evidence in a state court trial is governed by state
law. See Johnson v. Renico, 314 F. Supp. 2d 700, 705 (E.D. Mich. 2004) (internal
citations omitted). A federal habeas court is bound by a state appellate court’s
ruling that certain testimony is not hearsay, because state law governs questions
concerning the admissibility of evidence. Id. at 706. This Court is therefore bound
by the Michigan Court of Appeals’ determination that Karr’s statement did not fall
within any of the hearsay exceptions and could thus not be used as substantive
evidence. The fundamental right to present a defense does not require that
evidence deemed insufficiently unreliable, such as hearsay evidence, be admitted;
hearsay is excludable, even if it is evidence that may be relevant to the defense. See
McCullough v. Stegall, 17 F. App’x 292, 295 (6th Cir. 2001). Therefore, the trial
court’s refusal to instruct the jurors that Karr’s statement to the police could be
used as substantive evidence on the grounds that it was hearsay did not violate
Petitioner’s right to present a defense.
Petitioner is not entitled to habeas relief on his second claim.

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C. Claim # 4: The sentencing guidelines claim.
Petitioner lastly contends that the trial court improperly scored Offense
Variable 19 of the Michigan Sentencing Guidelines at ten points for interfering with
or attempting to interfere with the administration of justice.
State courts are the final arbiters of state law. See Bradshaw v. Richey, 546
U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Therefore,
claims which arise out of a state trial court’s sentencing decision are not normally
cognizable on federal habeas review, unless the habeas petitioner can show that the
sentence imposed exceeded the statutory limits or is wholly unauthorized by law.
See Vliet v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D. Mich. 2002). Thus, a sentence
imposed within the statutory limits is not generally subject to habeas review.
Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788,
797 (E.D. Mich. 1999).
Petitioner’s claim that the state trial court incorrectly scored or calculated his
sentencing guidelines range under the Michigan Sentencing Guidelines is not a
cognizable claim for federal habeas review, because it is a state law claim. See
Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007); Howard v. White, 76 Fed.
Appx. 52, 53 (6th Cir. 2003). Petitioner had “no state-created interest in having the
Michigan Sentencing Guidelines applied rigidly in determining his sentence.” See
Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009). “[I]n short,
petitioner had no federal constitutional right to be sentenced within Michigan’s

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guideline minimum sentence recommendations.” Doyle v. Scutt, 347 F. Supp. 2d
474, 485 (E.D. Mich. 2004).
Petitioner is not entitled to habeas relief on his fourth claim.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will
also deny a certificate of appealability to Petitioner. In order to obtain a certificate
of appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the
applicant is required to show that reasonable jurists could debate whether, or 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). When a district court rejects a habeas
petitioner’s constitutional claims on the merits, the petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the
constitutional claims to be 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 § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; see
also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
For the reasons stated in this opinion, the Court will deny Petitioner a
certificate of appealability because he has failed to make a substantial showing of
the denial of a federal constitutional right. See also Millender v. Adams, 187 F.
Supp. 2d at 880. The Court will also deny Petitioner leave to appeal in forma

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pauperis, because the appeal would be frivolous. See Allen v. Stovall, 156 F. Supp.
2d at 798.
V. ORDER
Based upon the foregoing, it is ORDERED that the Petition for a Writ of
Habeas Corpus is DISMISSED WITH PREJUDICE.
It is FURTHER ORDERED that a certificate of appealability is DENIED,
and Petitioner is DENIED leave to appeal in forma pauperis.

Dated: July 28, 2014

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service

I hereby certify that this Order was electronically submitted on July 28,
2014, using the CM/ECF system; a copy of this Order was also addressed to
Petitioner’s attention and mailed to 183082 Muskegon Correctional Facility, 2400 S.
Sheridan, Muskegon, MI 49442.
s/A. Chubb
Case Manager

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