Hardy v. Rivard

Filing 19

OPINION AND ORDER (1) Denying the Peition for Writ of Habeas Corpus (Dkt. 4 ); (2) Declining to Issue a Certificate of Appealability; and (3) Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FRANK HARDY,
Petitioner,
Case No. 13-cv-14324
v.
HON. MARK A. GOLDSMITH
STEVEN RIVARD,
Respondent.
_________________________/
OPINION AND ORDER
(1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (Dkt. 4); (2)
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY; AND (3) GRANTING
LEAVE TO APPEAL IN FORMA PAUPERIS
I. INTRODUCTION
Petitioner Frank Hardy, presently confined at the St. Louis Correctional Facility in St.
Louis, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254
(Dkt. 4). Petitioner challenges his conviction for first-degree premeditated murder, Mich. Comp.
Laws § 750.316(1)(a); assault with intent to commit murder, Mich. Comp. Laws § 750.83; felon
in possession of a firearm, Mich. Comp. Laws § 750.224f; and carrying or possessing a firearm
when committing or attempting to commit a felony (felony-firearm)-second offense, Mich.
Comp. Laws § 750.227b. For the reasons stated below, the Court denies the petition for writ of
habeas corpus.
II. BACKGROUND
Petitioner was convicted of the above charges following a jury trial in the Wayne County
Circuit Court. JuJuan Harrison testified that, on June 14, 2010, he worked as a barber at the
barbershop at 9615 Harper in Detroit, Michigan. He had been a barber there for seven or eight

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years before he went to Georgia, but had just recently come back. He had known the deceased,
Demonte Thomas, from the barbershop for eight or nine years. June 14 was a Monday and the
barbershop was not open on Mondays. On that day, Thomas called him on the phone and asked
him to give him a haircut at the barbershop. Harrison had just picked his friend DeAngelo
Hatcher up from work in a rental car when he got the call from Thomas. Initially, Harrison told
Thomas that he was too busy that day to cut his hair, but Thomas kept calling him and pestering
him until he finally gave in and told Thomas to wait for him on the porch of the barbershop.
06/07/2011 Trial Tr. at 113-116 (Dkt. 12-7).
When Harrison arrived at the barbershop, Thomas was on the porch with a tee shirt slung
over his shoulder. Harrison parked his rental car in front of the barbershop and used his key to
open a grate, which had a padlock on it, and then the front door to get into the barbershop.
Harrison let Thomas in first. After Harrison turned the lights on, by flicking the light switch on
the wall by the door, he turned to put a CD in the CD player that was on the counter to his left.
Before Harrison could get the CD in the player, he heard Thomas say to him, “Jay, look up.”
Harrison looked in the mirror that was in front of him and saw Thomas in the mirror, along with
a guy who was behind him holding a gray automatic handgun. The man was coming from where
there was a four-and-a-half-foot wall counter and a vending snack machine. The man holding
the gun was brown-skinned, with a little goatee, 5'6" to 5'8" tall, wearing a black hoodie and
beige pants. The man said one thing, “Bitch,” and then fired a shot. Harrison ran out of the
barbershop and across the street to the liquor store. As Harrison was running, he heard several
shots being fired at him, which made him think that he had been shot. He did not know what
happened to Thomas.
Once inside the liquor store, Harrison frantically said that a guy in the barbershop had

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just tried to kill him, that he did not know how the guy had gotten in, and that Thomas must have
set him up. Harrison asked people in the liquor store to check him to see if he had been shot. He
had not been shot, even though the perpetrator had fired more than ten shots. Id. at 116-124.
Harrison picked Henry Brown’s photograph out of a photo array, saying that he was 80%
certain that he had picked the shooter. He was aware that Brown was then arrested for this
incident, but released. Harrison viewed a live lineup in March of 2011 and told the officer
conducting the lineup that it was either number two or number three. Petitioner was one of the
two people identified. Id. at 147-150.
Detroit Police Evidence Technician Sergeant David Babcock testified that evidence
found in an alley near the shooting included clothing and a firearm. Inside the clothing, he found
several items that were folded up. One was a potato chip bag folded up neatly inside the pocket
of the clothing. Another was a folded-up Fritos bag, and the third was a folded up page of a
men’s magazine. 06/08/2011 Trial Tr. at 57-59 (Dkt. 12-8). Babcock further testified that inside
the barbershop building was a magazine called VIBE that had the exact page missing that he
found folded up in the clothing. Also inside the barbershop was a vending machine with candy
and chips of the same type found in the clothing. The vending machine appeared as though it
had been pried open and there were empty spaces in the machine where items had been. In the
alley, underneath a log, Babcock testified that a .45 caliber semi-automatic Bersa handgun had
been found by other officers. Near the handgun was a pair of sweatpants, a sweatshirt, and
gloves. Id. at 59-72.
Michigan State Police Lieutenant Robert May testified that he was a supervisor in the
Latent Print Unit at the State Police Crime Lab in Northville, Michigan. 06/09/2011 Trial Tr. at
3-4 (Dkt. 12-9). One usable fingerprint was found on one of the Doritos bags. The fingerprint

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was compared to the fingerprints cards of Demonte Thomas (the victim) and Henry Brown, and
the fingerprint did not match the fingerprints of either of these two individuals. The fingerprint
on the Doritos bag was then put into the Automated Fingerprint Identification System (“AFIS”),
which is a database of fingerprints throughout the State of Michigan. AFIS is a computer, which
searches the database for the latent prints fed into it. AFIS generated a system identification
number that came back to Petitioner Frank Hardy. Officers then obtained Hardy’s fingerprints
through AFIS and compared them to the latent fingerprint from the Doritos bag and found that
the latent print from the Doritos bag matched the right thumb of Frank Hardy. Id. at 16-21.
Catherine Maggert testified that, as a forensic scientist employed by the Michigan State
Police at the State Police Crime Lab’s Biology Unit in Northville, she received a number of
items relative to this case. The items included a blood sample of Thomas, swabs from inside of a
glove, swabs from the waistband and cuffs of a pair of sweatpants, swabs from the neck line and
cuffs of a sweatshirt, and a known buccal swab from Brown. She was able to exclude Thomas
and Brown as being the major donors of the DNA on the gloves, the sweatpants, and the
sweatshirt. She then entered the DNA profile of the major donor of the gloves, the sweatpants,
and the sweatshirt into the Combined DNA Index System (“CODIS”), which is a database
maintained by the FBI of DNA profiles from persons who had been required by law to submit a
DNA sample for the database. CODIS provided the name of Petitioner Frank Hardy as the major
donor of the DNA on the gloves, the sweatpants, and the sweatshirt. Maggert further testified
that she then received a buccal swab of Petitioner, which was obtained by Brandon Good.
Maggert found that the DNA from the gloves, the sweatpants, and the sweatshirt matched the
DNA of Frank Hardy. Id. at 106-125.
Maggert did statical calculations of what would be the probabilities of the DNA found on

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the gloves, the sweatpants, and the sweatshirt belonging to another person besides Petitioner.
For the DNA on the sweatpants, the probability was one in 4.511 billion for the Caucasian
population, 19.5 million for the African-American population, and 3.265 billion for the Hispanic
population. For the DNA on the gloves, the probability was one in 37.99 million for the
Caucasian population, 306.3 million for the African-American population, and 39.62 billion for
the Hispanic population. And for the DNA on the sweatshirt, the probability was one in 3.697
quintillion for the Caucasian population, 22.43 quadrillion for the African-American population,
and 961.5 quadrillion billion for the Hispanic population. The difference in the statistical
calculations between the various items was due to the fact that Maggert received more of a DNA
profile for the sweatshirt and less for the other items. Id. at 126-128.
Petitioner’s conviction was affirmed on appeal. People v. Hardy, No. 305234, 2013 WL
1137177, (Mich. Ct. App. Mar. 19, 2013), leave denied 834 N.W.2d 875 (Mich. 2013).
Petitioner seeks a writ of habeas corpus on the following grounds:1
i.

“The trial court violated [Petitioner’s] confrontation rights by
allowing a surrogate fingerprint expert to testify regarding the
findings of the analyst who actually conducted the analysis.”

ii.

“Trial counsel deprived [Petitioner] of his right to the effective
assistance of counsel by failing to object to the denial of his
right to confront the analyst who did the fingerprint analysis.”

iii.

“The trial court violated [Petitioner’s] right to a public trial by
closing the courtroom during jury selection and excluding
everybody but the jury venire and two representatives of the

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Respondent contends that, because Petitioner failed to object at trial, several of Petitioner’s
claims are waived or procedurally defaulted. Petitioner argues that his trial counsel was
ineffective for failing to object to these alleged errors. Ineffective assistance of counsel may
establish cause for procedural default. Edwards v. Carpenter, 529 U.S. 446, 451-452 (2000).
Given that the cause and prejudice inquiry for the procedural default issue merges with an
analysis of the merits of Petitioner’s defaulted claims, it would be more efficient to consider the
merits of the claims. See Cameron v. Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004).
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victims (sic) families.”
iv.

“Trial counsel deprived [Petitioner] of his right to the effective
assistance of counsel by failing to object to the denial of his
right to a public trial when the court partially closed the
courtroom during jury selection.”

v.

“[Petitioner] was denied his due process right to a fair and
impartial trial by the prosecutor’s misconduct, where the
prosecutor withheld from defendant an investigation subpoena
which was material to defendant’s defense in violation of his
state and federal constitutional rights.”

vi.

“The prosecutor’s misconduct undermined the fairness of the
trial, and rendered the verdict unreliable and deprived
Petitioner of due process and an impartial trial by, jury as
guaranteed by the federal and state constitutions.”

vii.

“Trial counsel was constitutionally ineffective throughout trial,
which deprived [Petitioner] of his state and federal
constitutional sixth and fourteenth amendment right to counsel
and a[n] effective defense.”

Pet. at 4, 6-7, 9, 11-13 (cm/ecf pages) (Dkt. 4).
III. STANDARD OF REVIEW
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, imposes the following standard
of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or

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(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) (quotation marks and citations omitted). A
“state court’s determination that a claim lacks merit precludes federal habeas relief so long as
fairminded jurists could disagree on the correctness of the state court’s decision.” Harrington v.
Richter, 131 S. Ct. 770, 786 (2011) (quotation marks). The Supreme Court has emphasized “that
even a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. (citation omitted). 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

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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. (quotation marks omitted). Thus, 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.
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).
IV. ANALYSIS
A. Claims 1 and 2: The Confrontation Clause and Related Ineffective Assistance
Claim

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Petitioner first claims that counsel failed to object to the fingerprint analysis testimony
given by Lt. Robert May in place of Sgt. Amanda Crooker, who was unavailable, as well as
counsel’s failure to seek a postponement to allow time to produce Crooker for crossexamination.
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. 2011) (quoting Harrington, 562 U.S. at 112). 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).
Petitioner first contends that his confrontation rights were violated when counsel failed to

9

object to testimony given by a fingerprint expert who did not perform the original fingerprint
analysis, claiming that trial counsel should have objected to keep the fingerprint evidence out, or,
in the alternative, obtain a postponement of the trial until the analyst could be confronted. Lt.
May, Crocker’s supervisor, testified in Crooker’s absence. In his second claim, Petitioner
alleges that he was also denied the right to confront the analyst who did the fingerprint analysis.
When the prosecutor indicated that Lt. Robert May would be testifying for Sgt. Amanda
Crooker, who was unavailable due to National Guard service, the prosecutor stated that Lt. May
did a “second double check” of the analysis performed by Sgt. Crooker. 06/06/2011 Trial Tr. at 7
(Dkt. 12-6) Trial counsel was asked if he wanted to object and indicated that he would not
object.
The Michigan Court of Appeals rejected Petitioner’s confrontational claim finding:
This decision by counsel was a waiver of the confrontation right
. . . (“[I]f the decision constitutes reasonable trial strategy, which is
presumed, the right of confrontation may be waived by defense
counsel as long as the defendant does not object on the record.”).
Hardy, 2013 WL 1137177, at *1.
That court further found a sound basis for counsel’s decision to let May testify in lieu of
Crooker:
May was Crooker’s supervisor, so he could readily testify about
fingerprint analysis. Also, May specifically reviewed the
fingerprint analysis and testified about his findings and conclusions
on the basis of that review. In sum, we conclude that the
confrontation issue was waived, and that counsel’s conduct
regarding the issue was reasonable trial strategy.
Id.
With respect to Petitioner’s Confrontation Clause claim, assuming that the trial court
erred in permitting May to testify in lieu of Crooker about the fingerprint analysis, any error in

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the admission of this testimony was harmless.
A violation of the Confrontation Clause can be harmless error. Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986). For purposes of determining whether federal habeas relief must be
granted to a state prisoner on the ground of federal constitutional error, the appropriate harmlesserror standard to apply is whether the error had a substantial and injurious effect or influence in
determining the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993). May’s
testimony concerning the fingerprint analysis evidence was harmless error at most, in light of the
fact that May reviewed the analysis and testified about his findings and conclusions based on the
review. Crooker’s fingerprint analysis was cumulative of the fingerprint testimony offered by
May, who was subject to cross-examination at Petitioner’s trial.

Thus, any possible

Confrontation Clause error in failing to produce Crooker to testify was harmless error. See
United States v. Barnes, 183 F. App’x 526, 530-531 (6th Cir. 2006).
“The prejudice prong of the ineffective assistance analysis subsumes the Brecht
harmless-error review.” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009). Because the
admission of Crooker’s out-of-court analysis was harmless error, Petitioner cannot satisfy
Strickland’s prejudice requirement. See, e.g., Bell v. Hurley, 97 F. App’x 11, 17 (6th Cir. 2004).
Petitioner was not prejudiced by counsel’s failure to object to the admission of Crooker’s
analysis at trial. Furthermore, May reviewed and submitted findings of the fingerprint analysis.
To produce Crooker for purposes of cross-examination, in addition to the review and testimony
provided by May, would be cumulative. Therefore, Petitioner is not entitled to habeas relief on
his first or second claims.
B. Claims 3 and 4: The Public Trial Claim and the Related Ineffective Assistance
of Counsel Claim

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Petitioner claims that his right to a public trial was violated by a partial closure of the
courtroom during jury selection and trial counsel’s failure to object to the partial closure.
Petitioner is not entitled to relief on his public trial claim, because there was only a partial
closure of the courtroom. The trial court judge allowed Petitioner and the prosecutor two
spectators with an understanding that the number could be revisited as the jury pool in the
courtroom decreased.
“The central aim of a criminal proceeding must be to try the accused fairly.” Waller v.
Georgia, 467 U.S. 39, 46 (1984). The Sixth Amendment public-trial guarantee was created to
further that aim. Id. A public trial helps to ensure that judges and prosecutors carry out their
duties responsibly, encourages witnesses to come forward, and discourages perjury. Id. The
violation of the constitutional right to a public trial is a structural trial error, not subject to the
harmless-error analysis. Id. at 49-50 & n.9.
In Presley v. Georgia, 558 U.S. 209, 216 (2010), the Supreme Court held that a criminal
defendant’s Sixth Amendment right to a public trial was violated when the trial court excluded
the public from the voir dire of prospective jurors, when the court failed to consider reasonable
alternatives to closure.
Furthermore, courts take “very seriously a defendant’s right to have family and friends
present at trial.” See Carson v. Fischer, 421 F.3d 83, 91 (2nd Cir. 2005); see also Guzman v.
Scully, 80 F.3d 772, 776 (2nd Cir. 1996)(“The exclusion of courtroom observers, especially a
defendant’s family members and friends, even from part of a criminal trial, is not a step to be
taken lightly.”). It would be an unreasonable interpretation of Waller for a court to exclude a
defendant’s relatives “if the exclusion of that particular relative, under the specific circumstances
at issue, is not necessary.” See Yung v. Walker, 468 F.3d 169, 177 (2nd Cir. 2006).

12

Waller, however, involved a full, rather than a partial, closure of the courtroom to the
public. See Drummond v. Houk, 797 F.3d 400, 402 (6th Cir. 2015). There is no clearly
established Supreme Court law as to how the rules in Waller apply in cases, like Petitioner’s,
where some spectators, but not all of them, were removed from the courtroom. Id. at 403. As
the Sixth Circuit indicated:
The Supreme Court’s case law does not clearly establish, for
example, whether in such cases the trial court must identify an
“overriding” interest favoring closure, as in Waller, or instead only
a “substantial” interest, as some circuit courts have inferred, or
perhaps even some lesser interest. Likewise unclear — and thus
not clearly established — is whether the closure must be “narrowly
tailored,” as the Court required in Waller, or whether in partialclosure cases a somewhat looser cut will do. And on the
procedural side, Waller says the court must make “findings
adequate to support the closure.” But “adequate” is a vague and
therefore elastic term; and for all the Ohio courts knew here,
“adequate” might mean one thing in full-closure cases, and a
different and less rigorous thing when the closure is only partial.
Id. at 403 (internal citations omitted).
Indeed, “there are reasonable arguments, that Waller does not apply to partial-closure
cases in the wholesale manner” and the only principle from Waller that was clearly established
for purposes of the partial closure was the general one that the trial court must balance the
interests favoring closure against those opposing it. Id. at 404.
In United States v. Cervantes, 706 F.3d 603, 612-613 (5th Cir. 2013), the Fifth Circuit
held that the federal district court did not deprive defendants of their right to public trial when it
partially closed the courtroom during voir dire. The Fifth Circuit ruled that the court’s concerns
regarding available space within the courtroom, the nature of proceedings, the desire to minimize
disruptions, and the panel members’ comfort and safety were substantial reasons to defend a
partial closing of proceedings, and the court allowed each of three defendants to have three

13

relatives present in courtroom during voir dire.
Petitioner is not entitled to relief, because there was no complete closure of the
courtroom. And the Michigan Court of Appeals found that the trial court gave adequate reasons
for the partial closure:
In this case, before the jury venire entered the courtroom, the trial
court explained to counsel that because of space constraints, the
large number of potential jurors, and the public interest in the trial,
the courtroom would not be able to accommodate everyone. As a
result, the trial court limited both sides to two supporters each, for
a total of four members of the public, and indicated that, as the
number of potential jurors decreased, “we can certainly expand
matters.” The trial court did not specifically ask defense counsel
or the prosecution whether they had any objections, and neither
attorney objected to this closure of the courtroom.
Hardy, 2013 WL 1137177, at *2.
The judge gave adequate reasons for a partial closure of the courtroom during voir dire.
Petitioner is not entitled to relief on his third claim.
The Court also rejects Petitioner’s related ineffective assistance of counsel claim. Even if
a reasonable attorney would have viewed the partial closure as a potential Sixth Amendment
violation, “competent counsel could have knowingly and reasonably declined to raise the
constitutional issue in this case because doing so would be a waste of the defense’s time, energy,
and resources.” Bucci v. United States, 662 F.3d 18, 31 (1st Cir. 2011). Counsel could well
have concluded that the presence of Petitioner’s family members mitigated the risk of actual
prejudice to Petitioner and that he had very little to gain from opening the courtroom to
additional members of the public. Petitioner’s counsel could have reasonably concluded that
challenging the partial courtroom closure would have done little to increase Petitioner’s chances
of securing a not-guilty verdict. Id. at 31-32. Defense counsel was not ineffective for failing to

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object to the partial closure of the courtroom. Therefore, Petitioner’s third and fourth claims are
without merit.
C. Claims 5 and 6: The Prosecutorial Misconduct Claims2
In his fifth claim, Petitioner alleges that the prosecutor committed misconduct by
withholding the pre-trial testimony of Harrison, given in response to an investigation subpoena,
which Petitioner claims was material to his defense, which underminded the fairness of the trial
and rendered the verdict unreliable, thereby depriving Petitioner of due process.
To prevail on his claim, Petitioner must show (i) that the state withheld exculpatory
evidence and (ii) that the evidence was material either to guilt or to punishment irrespective of
good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence
is material only if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A “reasonable probability is a
probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473
U.S. 667, 683 (1985).
In Strickler v. Greene, the Supreme Court articulated three components (or essential
elements) of a Brady claim: (i) the evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; (ii) the evidence must have been
suppressed by the State, either willfully or inadvertently; and (iii) prejudice must have ensued.
527 U.S. 263, 281-282 (1999).
In the present case, the prosecutor’s failure to disclose Harrison’s pretrial investigative
subpoena testimony did not deprive Petitioner of a fair trial, because the contents of the

2

For purposes of analysis, the Court will consolidate claims 5 and 6 because they are
interrelated.
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investigative subpoena testimony were not exculpatory. See, e.g., Farrell v. United States, 162 F.
App’x 419, 424 (6th Cir. 2006); Lockett v. Stegall, 100 F. App’x 360, 362 (6th Cir. 2004).
While Petitioner claims that the prosecutor withheld pretrial testimony of Harrison given
in response to an investigating subpoena, the Michigan Court of Appeals found that such
evidence could have been discovered by Petitioner and his counsel with reasonable diligence.
Hardy, 2013 WL 1137177, at *4. The court also found that Petitioner failed to show “any
probability that the outcome of his trial would have been different it the defense had received this
evidence.” Id.
The contents of Harrison’s prior testimony were not exculpatory and the prosecution
presented significant evidence linking Petitioner to the crime — namely, that Petitioner’s DNA
was recovered from the sweatshirt, sweatpants, and clothes found in the alley near the shooting.
A gun recovered near the clothing contained bullets similar to a bullet found in the victim’s arm.
Petitioner’s fingerprint was recovered from a Doritos bag located in a pocket of the sweatshirt,
similar to the bags sold in the vending machine at Harrison’s barbershop. In light of this
evidence, Petitioner failed to show that the outcome of the trial would have been different had
Harrison’s investigative subpoena testimony been disclosed to him. See, e.g., Farrell v. United
States, 162 F. App’x 419, 424 (6th Cir. 2006). Moreover, the prior testimony would have been
cumulative of other evidence that was used to impeach Harrison, and was only marginally
relevant. See Puertas v. Overton, 168 F. App’x 689, 696 (6th Cir. 2006).
The prosecutor raised Harrison’s initial identification of Brown as the shooter, and
defense counsel cross-examined on the initial identification, as well as the subsequent line-up
identification where Harrison identified two individuals as possibly being the shooter.
Harrisons’ credibility of his ability to identify the shooter had already been called into question.

16

Introduction of the impeachment evidence would not have altered the outcome of Petitioner’s
trial. “[W]here the undisclosed evidence merely furnishes an additional basis on which to
challenge a witness whose credibility has already been shown to be questionable or who is
subject to extensive attack by reason of other evidence, the undisclosed evidence may be
cumulative, and hence not material.” Byrd v. Collins, 209 F.3d 486, 518 (6th Cir.2000).
Petitioner has not established a Brady violation. The impeachment evidence cannot be shown to
be material. Nor can Petitioner demonstrate how introducing this evidence would have resulted
in a different outcome of his trial. Petitioner is not entitled to relief on his fifth claim.
Petitioner’s sixth claim alleges that several statements made by the prosecutor during
closing argument constituted prosecutorial misconduct, thereby denying Petitioner of a fair trial.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas review.”
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004). A prosecutor’s improper comments will
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). Thus, prosecutorial misconduct will 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 637,
643-645 (1974). 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).
Petitioner contends that the prosecutor improperly argued to the jury that the trial court

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stated that Petitioner caused the victims’s death. On appeal, the prosecution alleged that the
court reporter erroneously transcribed the prosecutor’s statement and that the remark was in
reference to the trial court’s reading of the felony information at the beginning of the trial.
Petitioner is not entitled to habeas relief on his claim that the prosecutor committed
misconduct based on this remark because the remark (if made) was isolated and the evidence
against Petitioner in this case was strong. See Macias v. Makowski, 291 F.3d 447, 453-454 (6th
Cir. 2002); Byrd, 209 F.3d at 536. Furthermore, any prosecutorial misconduct in suggesting that
the trial court stated that Petitioner caused the victim’s death was ameliorated by the trial court’s
instruction that the lawyers’ and trial court’s comments and instructions were not evidence. See
Hamblin v. Mitchell, 354 F.3d 482, 495 (6th Cir. 2003).

The prosecutor’s comments did not

deny Petitioner of a fair trial. Therefore, Petitioner is not entitled to relief on his sixth claim.
D. Claim 7: The Additional Ineffective Assistance of Counsel Claims
Petitioner also alleges that trial counsel was ineffective throughout trial, claiming that the
record discloses some, but not all, of the facts that demonstrate the ineffectiveness, listing that
trial counsel was ineffective for failing to investigate, failing to file pre-trial motions, and failing
to object to the prosecutor’s improper remarks during closing argument.
Petitioner claims that defense counsel knew there was another individual, Brown, who
had been charged with the shooting and failed to properly investigate this matter. The record
shows that when discussing discovery issues, defense counsel knew about Brown being the
initial suspect in the case. Defense counsel mentioned that she was missing the lineup sheets and
photos for the lineup conducted when Brown was arrested as the first suspect. Thus, Defense
counsel did investigate Brown during discovery.
Even if defense counsel had failed to investigate properly, the error would not constitute

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ineffective assistance of counsel, because Petitioner failed to show that the investigatory failures
prejudiced him. A habeas petitioner cannot show deficient performance or prejudice resulting
from counsel’s failure to investigate if the petitioner does not make some showing of what
evidence counsel should have pursued and how such evidence would have been material to his or
her defense. See Hutchison v. Bell, 303 F.3d 720, 748 (6th Cir. 2002). Petitioner cannot prevail
on his claim that trial counsel was ineffective for failing to adequately prepare the case or
conduct a minimal investigation, because he has failed to show how additional pretrial work,
which counsel had allegedly been deficient in failing to perform, would have been beneficial to
his defense. See Martin v. Mitchell, 280 F.3d 594, 607-608 (6th Cir. 2002).
To the extent that Petitioner claims that trial counsel should have brought in evidence to
show that Harrison had initially identified Brown as the shooter, Petitioner would not be entitled
to relief, because Harrison was questioned about the fact that he initially identified Brown as the
shooter and later picked out two persons at the live line-up that included Petitioner. Undisclosed
impeachment evidence is considered cumulative “when the witness has already been sufficiently
impeached at trial.” Davis v. Booker, 589 F.3d 302, 309 (6th Cir. 2009). Because Harrison’s
credibility already had been impeached, Petitioner was not prejudiced by counsel’s failure to
impeach Harrison with cumulative impeachment evidence. Id.
Furthermore, substantial evidence linked Petitioner to the inside of the barbershop, to the
DNA found on clothing, the fingerprint evidence on a snack bag that was possibly from a
vending machine inside the barbershop that had been broken into, a page from a magazine found
in the clothing, which was determined to have come from a magazine inside the barbershop, and
a gun found near these items in the alley with a bullet from the gun found in the victim’s arm.
Although Harrison’s credibility regarding his ability to identify the shooter was significantly

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called into question with evidence that Harrison initially identified Brown as the shooter and
later identified two individuals during the live lineup that included Petitioner, it is not reasonably
probable that the initial identification would cause the jury to disbelieve Harrison’s factual
account of the shooting such that the result would have been different.
Petitioner also claims that trial counsel did not file pretrial motions for a continuance to
investigate witnesses. However, the record reflects that counsel had an investigator looking for
witnesses and the decision not to file for a continuance may have resulted from trial strategy.
Furthermore, Petitioner has not shown that additional witnesses would have effected the outcome
of his trial, in light of the physical evidence presented. Nor has Petitioner provided the names or
substance of the proposed testimony in support of his claim.
In regards to Petitioner’s allegation that defense counsel should have called additional
witnesses, or failed to file a proper alibi notice, Petitioner has failed to attach any offer of proof
or any affidavits sworn by any proposed witness. Petitioner has not offered, either to the
Michigan courts or to this Court, any evidence beyond his own assertions as to whether
additional witnesses would have been able to testify and what the content of these witnesses’
testimony would have been. In the absence of such proof, Petitioner is unable to establish that he
was prejudiced by counsel’s failure to call any additional witnesses to testify at trial, so as to
support the second prong of an ineffective assistance of counsel claim. See Clark v. Waller, 490
F.3d 551, 557 (6th Cir. 2007).
Petitioner further claims that trial counsel was ineffective for failing to object to
prosecutorial misconduct. This Court has already determined that the prosecutor’s comments did
not deprive Petitioner of a fundamentally fair trial; 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,

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528 (6th Cir. 2006).
Petitioner next claims that trial counsel was ineffective for failing to challenge the 12month delay between Petitioner’s crime and his arrest.
This Court initially notes that Petitioner has neither alleged nor established a violation of
his Sixth Amendment right to a speedy trial, because he was not actually arrested and charged
with this crime until March 7, 2011.3 Petitioner was brought to trial three months later. The
Supreme Court has noted that it is “[e]ither a formal indictment or information or else the actual
restraints imposed by arrest and holding to answer a criminal charge that engage the particular
protections of the speedy trial provision of the Sixth Amendment.” United States v. Marion, 404
U.S. 307, 320 (1971). Therefore, although the invocation of the Speedy Trial Clause of the Sixth
Amendment need not await indictment, information or other formal charge, the provision of the
Speedy Trial Clause does not apply to the period prior to arrest. Id.
The Due Process Clause, however, provides a limited role in protecting criminal
defendants against “oppressive” pre-arrest or pre-indictment delay. United States v. Lovasco,
431 U.S. 783, 789 (1977). Proof of prejudice is generally a necessary, but not sufficient, element
of a due process claim involving pre-indictment delay, and the due process inquiry must consider
the reasons for the delay as well as prejudice to the accused. Id. at 790.
The Sixth Circuit has consistently read Lovasco to hold that dismissal for pre-indictment
delay is warranted only when the defendant shows: (i) substantial prejudice to his right to a fair
trial; and (ii) that the delay was an intentional device by the government to gain a tactical
advantage. United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992). The Sixth Circuit has
repeatedly held that where the pre-indictment delay is caused merely by negligence on the part of
3

See Docket Sheet, Case # 11-002921-01, at 1 (Dkt. 12-1).
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prosecutors or police, no due process violation exists. United States v. Rogers, 118 F.3d 466,
476 (6th Cir. 1997) (rejecting the argument that “reckless or negligent disregard of a potentially
prejudicial circumstance violates the Fifth Amendment guarantee of due process”); United States
v. Banks, 27 F. App’x 354, 357 (6th Cir. 2001) (“Our Circuit has recognized that where delay is
due to simple negligence and not a concerted effort by the government to gain an advantage, no
due process violation exists.”).

Finally, where a habeas petitioner fails to show that the

prosecutor delayed the prosecution for illegitimate reasons, it is unnecessary for a court to
determine whether the petitioner satisfies the “substantial prejudice” requirement. Wolfe v.
Bock, 253 F. App’x 526, 532 (6th Cir. 2007) (no due-process deprivation of right to fair trial
when petitioner failed to establish that 15-year delay between murder and his arrest was for
illegitimate reasons). A defendant who seeks dismissal of criminal charges based on precharging or pre-indictment delay has the burden of demonstrating that the delay between the
crime and the indictment was an intentional device on the part of the prosecution to gain a
decided tactical advantage in its case. United States v. Schaffer, 586 F.3d 414, 425-426 (6th Cir.
2009).
Because Petitioner does not allege or show that the police or prosecutor intentionally
delayed charging him in order to gain a tactical advantage over his case, trial counsel was not
ineffective for failing to challenge the pre-charging delay. See Lenoir v. Warden, S. Ohio Corr.
Facility, 886 F. Supp. 2d 718, 735 (S.D. Ohio 2012). Therefore, Petitioner is not entitled to
relief on his seventh claim.
E. Certificate of Appealability and Leave to Proceed In Forma Pauperis on Appeal
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

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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, 484-485 (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 v. Cockrell, 537 U.S. 322, 327 (2003).

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.
Likewise, when a district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claims, 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 petitioner 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.
“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. Having considered the matter, the Court concludes that Petitioner has failed to make a
substantial showing of the denial of a constitutional right.

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Accordingly, a certificate of

appealability is not warranted in this case.
Although this Court will deny a certificate of appealability to petitioner, the standard for
granting an application for leave to proceed in forma pauperis (“IFP”) is a lower standard than
the standard for certificates of appealability. Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D.
Mich. 2002). Whereas a certificate of appealability may only be granted if Petitioner makes a
substantial showing of the denial of a constitutional right , a court may grant IFP status if it finds
that an appeal is being taken in good faith. Id. at 764-765; 28 U.S.C. § 1915(a)(3); Fed. R.
App.24 (a). “Good faith” requires a showing that the issues raised are not frivolous; it does not
require a showing of probable success on the merits. Foster, 208 F. Supp. 2d at 765. Although
jurists of reason would not debate this 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.
V. CONCLUSION
For the reasons stated above, the Court denies the petition for writ of habeas corpus
(Dkt. 1). The Court also declines to issue of certificate of appealability, but grants Petitioner
leave to appeal in forma pauperis.
SO ORDERED.

Dated: December 17, 2015
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 17, 2015.
s/Karri Sandusky
Case Manager

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