Jackson v. Palmer

Filing 8

OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus, DENYING a Certificate of Appealability and DENYING Leave to Appeal in forma pauperis. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CRAIG MELVIN JACKSON,
Petitioner,
v.

Case No. 4:14-CV-12321
HON. TERRENCE G. BERG

CATHLEEN STODDARD,
Respondent.
______________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS; A CERTIFICATE OF APPEALABILITY;
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Craig Melvin Jackson, (“petitioner”), currently confined at the Carson City
Correctional Facility in Carson City, Michigan, seeks the issuance of a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.1 In his pro se application, petitioner
challenges his conviction for second-degree murder, Mich. Comp. Laws § 750.317,
felon in possession of a firearm (“felon in possession”), Mich. Comp. Laws §
750.224f, and possession of a firearm during the commission of a felony (“felonyfirearm”), Mich. Comp. Laws § 750.227b.
For the reasons stated below, the application for a writ of habeas corpus will

When petitioner first filed his petition for habeas relief, he was incarcerated at the Michigan
Reformatory in Ionia, Michigan where the Warden is Carmen Palmer. (See dkt. 1, p. 1.) At some
point prior to September 25, 2015, petitioner transferred to the Carson City Correctional Facility and
notified the Court of his new address. (Dkt. 5.) Accordingly, the Court has modified the caption to
reflect Cathleen Stoddard, the Warden at the Carson City Correctional Facility where petitioner is
currently incarcerated, as the Respondent in this action. The proper respondent to a habeas petition
under § 2254 is the warden of the facility where a petitioner is being held. 28 U.S.C. § 2242; see also
Rumsfeld v. Padilla, 542 U.S. 426, 434-35, 124 S. Ct. 2711, 2717 (2004).
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be DENIED WITH PREJUDICE. The Court will also deny petitioner a certificate
of appealability and leave to appeal in forma pauperis.
I. FACTUAL BACKGROUND
Petitioner was convicted of the above offenses following a jury trial in the
Wayne County Circuit Court.
Petitioner sold drugs (cocaine and marijuana), at a drug house with David
Scott, and Bennie Favors (“Blonko”) located at 3754 Tyler Street, in Detroit
Michigan. (Tr. 3/23/2011, pp. 97-98, 149; Tr. 8/24/2011, pp. 17-18). The drug house
had no locks; the front door was barricaded with a board pushed up against the
middle of the door and the floor, while the back door had a bar across the door.
There was a gun kept at the drug house, but only at night. Petitioner was
responsible for taking it away in the morning and bringing it back each night. (Tr.
3/23/2011, pp. 108-109). No one else sold drugs at that address, and each “had to be
let in” to enter the house. (Id. at 99, 104). Customers were not allowed in and drugs
and money were passed out through a hole in the back door. (Id. at 102).
On March 11, 2010, petitioner, Scott, and Favors were hanging out at the
drug house with Lewis Berry (“Big Al”). (Id. at 98, 148). Scott testified that he got
there around one or two in the afternoon, took a nap for a few hours, and then left
around five or six. (Id. at 104, 118). At the time Scott left, petitioner was on the love
seat in the house, Berry was sitting on the couch, getting ready to fall asleep, and
Favors was lying down on the bed in the other room. (Id. at 151-152). Petitioner

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had the gun in his waistband. (Id. at 153). Berry has narcolepsy, a sleeping
disorder where he can suddenly fall into a very deep sleep. (Id. at 163). Berry
testified that it could take a lot to wake him up from that deep sleep. (Id.) Berry
testified that he went to sleep around 4:00 p.m., after Scott left, and that he was
woken up at around 6:00 p.m. when he heard the sound of a gunshot. (Id. at 157158, 163).
When Berry awoke, he saw petitioner “coming from the back door,” and asked
what was going on. Petitioner responded by telling him to move on, as he walked
over the body of Flavors who was lying on the floor, curled up in a fetal position. (Id.
at 159). According to Berry, petitioner walked over Flavor’s body “like just a bump
in the road some [] just ain’t really nothing there” and left. (Id.) Berry saw that
petitioner had a cell phone in his hand and asked petitioner to call 911, but he did
not. (Id. at 161-162, 172-173). Berry again asked petitioner what was going on and
was told by petitioner to move on. (Tr. 3/23/2011, p. 165). When Berry checked
Favors, he was dead. (Id. at 171).
The Michigan Court of Appeals affirmed petitioner’s convictions. People v.
Jackson, No. 304163, 2013 WL 276054 (Mich. Ct. App. Jan. 24, 2013), lv.den. 494
Mich. 870, 832 N.W.2d 211 (2013).
Petitioner seeks a writ of habeas corpus on the following grounds:
I.

Jackson is entitled to a new trial where he was denied the
effective assistance of counsel.

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II.

Jackson is entitled to a new trial where the trial court
abused its discretion in granting the addition of a late
endorsed prosecution witness.

III.

Jackson was denied his right to the effective assistance of
counsel and is entitled to an evidentiary hearing to
develop a testimonial record to support his claim.

IV.

The prosecuting attorney denied Jackson a fair trial
where she abandoned her clear legal duty to protect the
rights of Jackson, committed plain error, resulting in a
conviction that is devoid of due process of law.

V.

The prosecutor failed to produce legally sufficient
evidence to establish that Jackson is the person who shot
the decedent beyond a reasonable doubt.

VI.

Jackson was denied his constitutional right to a fair trial
when the prosecution shifted the burden of proof by
commenting on Jackson’s decision not to testify.

VII.

Jackson was denied his right to a fair trial when a biased
juror was allowed to remain on the jury after she
informed the court, prosecutor, and trial counsel that she
could not be fair.
II. LEGAL STANDARD

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–
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly

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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. “[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)).
Therefore, in order to obtain habeas relief in federal court, a state prisoner is
required to show that the state court’s rejection of his claim “was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at

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103. A habeas petitioner should be denied 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. ANALYSIS
A. Claims 1, 3, and 7: Ineffective assistance of counsel and biased juror.
The Court will discuss petitioner’s first, third, and seventh claims together
because they all allege the ineffective assistance of counsel. The Court will also
discuss petitioner’s biased-juror claim that he raises as part of his seventh claim.2
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. 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

2 The issues referenced in petitioner’s supplemental brief, attached to the habeas petition, will be
referred to as Claims 3, 4, 5, 6, and 7.

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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 v. Richter, 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).
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. “[B]ecause 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).

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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)). 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. “[R]eliance on ‘the harsh light of hindsight’
to cast doubt on a trial that took place” years ago “is precisely what Strickland and
AEDPA seek to prevent.” Id. at 789.
Petitioner claims that his trial counsel was ineffective for failing to properly
question a potentially biased juror during jury selection. One of the most essential
responsibilities of a defense attorney is “to protect his client’s constitutional right
to a fair and impartial jury by using voir dire to ferret out jurors who are biased
against the defense.” Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001). However,
a defense counsel’s actions during voir dire are presumed to be matters of trial
strategy and cannot serve as the basis of an ineffective assistance of counsel claim

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unless “counsel’s decision is shown to be so ill-chosen that it permeates the entire
trial with unfairness[.]” Id. at 615-16.
Petitioner’s ineffective assistance of counsel claim fails for two reasons.
First, trial counsel’s failure to further inquire about the nature of the juror’s
alleged bias could have been a reasonable trial strategy in light of the fact that she
indicated several times that she could separate her personal experiences from
petitioner’s case and would decide his case solely on the evidence. See Wilson v.
Henry, 185 F.3d 986, 991 (9th Cir. 1999) (trial counsel’s failure to focus on his
client’s criminal history and to discover potential juror prejudice and whether the
jurors could follow limiting instructions on the petitioner’s criminal history was not
ineffective assistance of counsel; all jurors stated they would be fair and follow the
law as instructed, and counsel’s choice to rely on such a commitment, without
emphasizing petitioner’s criminal history, merited deference as a tactical decision).
Secondly, petitioner has failed to show that he was prejudiced by counsel’s
failure to engage in further inquiry on this issue. To maintain a claim that a
biased juror prejudiced him, for purposes of maintaining an ineffective assistance
of counsel claim, a habeas petitioner must show that the juror was actually biased
against him. See Hughes v. United States, 258 F.3d 453, 458 (6th Cir. 2001); see
also Miller v. Francis, 269 F.3d at 616 (when a claim of ineffective assistance of
counsel is founded on a claim that counsel failed to strike a biased juror, the
defendant must show that the juror was actually biased against him).

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Petitioner has offered no evidence that this juror was actually biased
towards him. In the absence of such evidence, petitioner is unable to establish that
he was prejudiced by counsel’s failure to further question this juror in order to
discover if her experience of being robbed would prevent her from being fair by
influencing her decision in petitioner’s case. See Riggins v. Butler, 705 F. Supp.
1205, 1212-13 (E.D. La. 1989) (petitioner was unable to show that he was
prejudiced by counsel’s failure to ascertain on voir dire that the jury foreman was a
former law enforcement officer, absent a showing of actual bias on the part of the
jury foreman).
The Michigan Court of Appeals rejected petitioner’s claim finding that the
juror in question believed that she could be fair and impartial, even though she had
been robbed in the past. Unlike some of the other potential jurors, this juror did
not indicate that she would convict petitioner before the prosecution presented any
evidence. This juror also said that she disagreed with the statement that
petitioner “more likely than not” must be guilty. Jackson, No. 304163, 2013 WL
276054, at *1.
Petitioner has failed to show that he was prejudiced by counsel’s failure to
challenge this juror, in light of the fact that this juror stated that she could be fair
and impartial in deciding petitioner’s case. See Baze v. Parker, 371 F.3d 310, 31822 (6th Cir. 2004). Because petitioner has failed to show that this juror had an
actual bias towards him, he has failed to show that he was prejudiced by Counsel’s

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decision not to strike this juror. Likewise, since petitioner failed to show that this
juror was biased against him, the trial court did not abuse its discretion by
allowing this juror to remain on the jury.
The standard of review on habeas does not permit a court to substitute its
view of possible juror bias for the state court’s view; a habeas court may only
overturn the state court’s findings of juror impartiality if those findings were
manifestly erroneous. DeLisle v Rivers, 161 F.3d 370, 382 (6th Cir. 1998). This
Court cannot find that the state court’s findings were manifestly erroneous.
Petitioner’s claim is meritless.
Petitioner also alleges that he was denied the effective assistance of counsel
when trial counsel failed to object to lay testimony given by David Scott. The
Michigan Court of Appeals ruled that “Scott’s testimony regarding Jackson’s
behavior after the victim was killed was rationally based on his perceptions of
Jackson, thus it was proper.” Jackson, No. 304163, 2013 WL 276054, at *2.
Federal habeas courts “‘must defer to a state court’s interpretation of its own
rules of evidence and procedure’ when assessing a habeas petition.” Miskel v.
Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting Allen v. Morris, 845 F.2d 610,
614 (6th Cir. 1988)). Because the Michigan Court of Appeals determined that
Scott’s statements were properly admitted under Michigan law, this Court must
defer to that determination in resolving petitioner’s ineffective assistance of
counsel claim. See Brooks v. Anderson, 292 Fed. App’x. 431, 437-38 (6th Cir. 2008);

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Adams v. Smith, 280 F. Supp.2d 704, 721 (E.D. Mich. 2003). Because the Michigan
Court of Appeals determined that Scott’s statements were properly admitted,
petitioner is unable to establish that he was prejudiced by counsel’s failure to
object to the admission of this testimony. Petitioner’s claim is meritless.
Moreover, petitioner alleges that trial counsel was ineffective for failing to
call several witnesses who would have testified to evidence of 1) forced entry at the
scene of the crime, 2) that petitioner voluntarily went to the police after the
incident, and 3) individuals present after the shooting but before the police arrived,
all of which would have challenged Mr. Berry’s credibility as well as Mr. Scott’s.
Petitioner also requests that this Court grant an evidentiary hearing to develop a
record in support of his claim.
According to petitioner, trial counsel was aware that several persons had
gone over to the house prior to the police, moved the body, and had removed a
weapon and narcotics. Although petitioner mentioned the existence of several
witnesses that he contends should have been called on his behalf, petitioner failed
to attach any affidavits from these witnesses to his brief on appeal or his
supplemental brief, and has not provided this Court with any affidavits from these
witnesses concerning their proposed testimony and willingness to testify on
petitioner’s behalf.
Conclusory allegations of ineffective assistance of counsel, without any
evidentiary support, do not provide a basis for habeas relief. See Workman v. Bell,

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178 F.3d 759, 771 (6th Cir. 1998). By failing to present any evidence to the state
courts in support of his ineffective assistance of claim, petitioner is not entitled to
an evidentiary hearing on his ineffective assistance of counsel claim with this
Court. See Cooey v. Coyle, 289 F.3d 882, 893 (6th Cir. 2002) (citing 28 U.S.C. §
2254(e)(2)(A)(ii)).
Petitioner has failed to attach any offer of proof or any affidavits sworn by
the proposed witnesses. Petitioner has not offered, either to the Michigan courts or
to this Court, any evidence beyond his own assertions as to whether the 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 these 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 also alleges that trial counsel was ineffective by failing to present
an alibi defense. The Michigan Court of Appeals rejected petitioner’s claim:
Assuming arguendo that Jackson’s cellular telephone records and the
testimony of the storeowner would have placed Jackson outside of the
liquor store at 7:06 p.m., the record demonstrates that the liquor
store, the gas station, and the home where the incident occurred were
all within a short walking distance of each other. As such, Jackson’s
alleged alibi places him in the area of the shooting close in time to the
shooting. Therefore, Jackson has failed to rebut the presumption that
defense counsel’s decision not to present such evidence constituted
sound trial strategy.
People v. Jackson, 2013 WL 276054, at * 3.

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Defense counsel has no obligation to present evidence or testimony that
would not have exculpated the defendant. See Millender v. Adams, 376 F.3d 520,
527 (6th Cir. 2004) (internal quotation omitted). In Millender, the Sixth Circuit
held that defense counsel’s failure to call a witness who stated that he saw
petitioner out of state “the Sunday before” the crime which occurred on a Monday
was not ineffective assistance, in light of the fact that evidence of petitioner’s
movements on the day before the crime were not exculpatory. Id.
In a similar vein, evidence of petitioner’s whereabouts in the area where the
shooting took place would not have been exculpatory. The liquor store, gas station,
and home where the shooting took place were all within a short walking distance of
each other and placed petitioner in the area of the shooting close in time to the
shooting. Counsel was not ineffective by failing to present an alibi defense placing
petitioner outside the liquor store at 7:06 p.m. when Berry testified that he woke
up as a result of a gunshot around 6:00 p.m. (Tr. 3/23/2011, p. 163). Because there
was a window of opportunity for petitioner to have committed this crime, petitioner
was not prejudiced by counsel’s failure to present an alibi defense. See e.g. Fargo v.
Phillips, 58 Fed. App’x 603, 607-08 (6th Cir. 2003).
Next, petitioner alleges that during closing argument, the prosecutor
vouched for Lewis Berry’s testimony without objection from trial counsel. 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 guilt or

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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). However,
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).
Petitioner references the following remarks made in closing argument:
We have Big Al Lewis Berry who tells you that look
we were all there the normal habit was is we’re locked in
the house I saw Mr. Jackson with the gun he was sitting
on the multicolored couch it was directly through the
hallway to the back door.

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When we (sic) saw him he was asleep he had the
gun in his waistband. I know that gun to be a 40 caliber
gun I’ve seen it multiple times this is a gun that Craig
had he leaves for a little while he comes back.
This was the house gun. This is the gun they use to
protect their operation. He does not try to add anything
to that. He could of easily come in here and said you
know what I saw him stand there and shoot him in the
head.
He does not tell you that.
(Tr. 3/24/2011, p. 156).
You saw his honest reaction to what he witnessed that day.
(Id. at 157).
From that point um he gets on the bus he starts calling people
using bums cell phone, calls his mom, calls family members,
tells people hey, look, this is what happens, this is what I saw.
And he has not wavered.
(Id. at 158).
People are asking him things and he honestly answering the
best he could. The police come to him and they start asking
because he’s pointed out or they overhear him which ever it
doesn’t matter but he starts telling the police the same story
he’s been saying all along.
(Id. at 159).
When viewed in context, the prosecutor’s comments were based on the
record evidence and not on her personal belief concerning the evidence. The
prosecutor did not assert or imply that she had any special knowledge apart from

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the record evidence to believe that petitioner was guilty or the prosecution
witnesses were testifying truthfully. Petitioner has thus failed to show that the
prosecutor engaged in improper vouching, so as to entitle him to habeas relief. See
Alder v. Burt, 240 F. Supp. 2d 651, 669 (E.D. Mich. 2003).
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 proceeding would have been different. See
Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001).
Petitioner cannot show that counsel was ineffective for failing to object to the
prosecutor’s alleged misconduct, in light of the fact that the Michigan Court of
Appeals found on direct appeal that the remarks and questions were not improper
and were merely facts in evidence to which Berry testified truthfully. See Finkes v.
Timmerman-Cooper, 159 Fed. App’x. 604, 611 (6th Cir. 2005). Because the
prosecutor’s comments did not amount to improper vouching, counsel’s failure to
object to the prosecutor’s comments and questions was not ineffective assistance of
counsel. See Meade v. Lavigne, 265 F. Supp. 2d 849, 866 (E.D. Mich. 2003).
Petitioner is not entitled to habeas relief on his first, third, or seventh
claims.

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B. Claim 2: Late endorsement of a witness.
Petitioner contends in his second claim that his rights were violated when
the judge permitted the prosecutor to endorse a witness, Phillip Stewart, on the
second day of trial. “A decision regarding the endorsement of a witness generally
constitutes a state law matter within the trial court’s discretion, and [petitioner]
has not presented a legitimate reason for disturbing the trial judge’s ruling, which
has already been deemed proper under Michigan state law.” Warlick v.
Romanowski, 367 F. App’x 634, 643 (6th Cir. 2010).
The prosecution was unaware that Mr. Stewart had relevant information
until trial counsel mentioned Stewart in his opening statement, leading Stewart to
volunteer to testify. Trial counsel was provided an opportunity to interview
Steward, prior to the trial court granting leave to amend the witness list.
Furthermore, petitioner concedes that Mr. Berry mentioned Mr. Stewart in
the investigator’s subpoena hearing conducted on March 18, 2010, at page17,
which took place within a week of the shooting. (Brief on Appeal, Habeas Brief, p.
20). Petitioner was not prejudiced by the decision to allow the witness to testify
because he had ample time to conduct his own investigation prior to trial and had
an opportunity to cross-examine Stewart and explain his testimony. Warlick, 367
F. App’x at 644. Petitioner’s second claim is without merit.

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C. Claims 4 and 6: The prosecutorial misconduct claims.
In his fourth and sixth claims, petitioner alleges prosecutorial misconduct.
“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 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.
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, 562 U.S. at
103).
Petitioner first alleges that the prosecutor presented perjured testimony.
Petitioner alleges that the prosecutor knowing presented false testimony when
Berry testified that he awoke and saw petitioner come from the area of the back

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door, step over the decedent, retrieve a cell phone, step back over the decedent and
then leave through a back door. Petitioner submits that Berry provided false
testimony because the surveillance camera at the liquor store and cell phone
records place him at the liquor store at 7:06 p.m. Because of this, petitioner claims
that it would be impossible to be at the house when the decedent was shot.
Petitioner submits that the facts given by Berry were coached to Berry by
the prosecutor. The Michigan Court of Appeals found that petitioner’s alibi
“actually places him in the area of the shooting around the time of the shooting and
supports Berry’s version of events.” Jackson, No. 304163, 2013 WL 276054 at *4.
The Michigan Court of Appeals also found the claim that the prosecutor coached
Berry “about what to say on the witness stand, when taken in context, establish
that the police and the prosecutor were merely asking Berry to repeat his version
of events.” Id.
The deliberate deception of a court and jurors by the presentation of known
and false evidence is incompatible with the rudimentary demands of justice. Giglio
v. United States, 405 U.S. 150, 153 (1972). There is also a denial of due process
when the prosecutor allows false evidence or testimony to go uncorrected. Napue v.
Illinois, 360 U.S. 264, 269 (1959) (internal citations omitted). To prevail on a claim
that a conviction was obtained by evidence that the government knew or should
have known to be false, a defendant must show that the statements were actually
false, that the statements were material, and that the prosecutor knew they were

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false. Coe v. Bell, 161 F. 3d 320, 343 (6th Cir. 1998). However, a habeas petitioner
must show that a witness’ statement was “indisputably false,” rather than
misleading, to establish a claim of prosecutorial misconduct or a denial of due
process based on the knowing use of false or perjured testimony. Byrd v. Collins,
209 F.3d 486, 517-18 (6th Cir. 2000).
Petitioner has presented no evidence to this Court to suggest that Mr. Berry
testified falsely about these matters. Conclusory allegations of perjury in a habeas
corpus petition must be corroborated by some factual evidence. Barnett v. United
States, 439 F.2d 801, 802 (6th Cir.1971). Petitioner’s fourth claim is without merit.
In his sixth claim, petitioner alleges that the prosecutor shifted the burden
of proof and commented on his right to remain silent by arguing in closing
argument that she wished that she could tell the jury “to crawl into his mind and
tell you what would make him do this but I don’t have to prove motive...” (Tr.
3/24/2011, p. 162). The prosecutor then informed the jury that the judge would be
providing instructions about inferring state of mind. (Id.).
In Griffin v. California, 380 U.S. 609 (1965), the United States Supreme
Court held that neither the court nor the prosecutor may invite the jury to infer
guilt from the defendant’s decision not to testify. They may not “solemnize [ ] the
silence of the accused into evidence against him,” 380 U.S. at 614, or “suggest[ ] to
the jury that it may treat the defendant’s silence as substantive evidence of guilt.”
Baxter v. Palmigiano, 425 U.S. 308, 319 (1976)(emphasis added). However, while a

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prosecutor may not comment on the defendant’s failure to testify or produce
evidence, the prosecutor may summarize the evidence and comment upon “its
quantitative and qualitative significance.” United States v. Bond, 22 F.3d 662, 669
(6th Cir. 1994)
When a prosecutor’s remark or statement indirectly comments on a habeas
petitioner’s decision not to testify, a federal court in the Sixth Circuit should use
four factors to evaluate such a statement: “1) Were the comments ‘manifestly
intended’ to reflect on the accused’s silence or of such a character that the jury
would ‘naturally and necessarily’ take them as such; 2) were the remarks isolated
or extensive; 3) was the evidence of guilt otherwise overwhelming; 4) what curative
instructions were given and when.” Bowling v. Parker, 344 F.3d 487, 514 (6th Cir.
2003)(quoting Lent v. Wells, 861 F.2d 972, 975 (6th Cir. 1988)). In reviewing
indirect comments touching on a defendant’s failure to testify, a court should not
find a manifest intent to comment on the right to remain silent if some other
explanation for the prosecutor’s remarks is equally plausible, such as when a
comment is a fair response to a claim made by the defendant or his counsel. See
Gall v. Parker, 231 F.3d 265, 311 (6th Cir. 2000)(internal citations omitted).
The prosecutor in closing argument was merely informing the jury on the
elements that needed to be proven to sustain a conviction and clarified that motive
was not one of the elements. The prosecutor then referenced the jury instructions
and informed the jury that they would be provided with instructions pertaining to

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the elements of the crime. The prosecutor did not shift the burden of proof by
arguing that she did not have to prove motive to sustain a conviction.
The prosecutor’s remarks did not amount to an improper reference to
petitioner’s failure to testify. In addition, petitioner would not be entitled to
habeas relief on this claim, because the prosecutor’s remark was neither flagrant or
repetitive. Joseph v. Coyle, 469 F.3d 441, 474 (6th Cir. 2006). Petitioner would also
not be entitled to habeas relief on this claim, in light of the trial court’s instruction
to the jury about petitioner’s right not to testify. (Tr. 3/24/2011, p. 193). Id.
The Court also rejects petitioner’s related claim that the prosecutor’s
comment impermissibly shifted the burden of proof. 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. The trial court also
gave the jurors the standard jury instruction which defined the concept of
reasonable doubt. (Tr. 3/24/2011, pp. 188-89). In the present case, the
prosecution’s argument did not deprive petitioner of a fair trial. Any possible
prejudice which might have resulted from the prosecutor’s 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). Petitioner’s sixth claim is meritless.
D. Claim 5: The sufficiency of the evidence claim.
In his fifth claim, petitioner argues that there was insufficient evidence to
establish his identity as the man who shot and killed the victim. It is beyond

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question that “the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970). But
the critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction is, “whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318
(1979). This inquiry, however, does not require a court to “ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.”
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 318-19 (internal
citation and footnote omitted) (emphasis in the original).
A federal habeas court may not overturn a state court decision that rejects a
sufficiency of the evidence claim simply because the federal court disagrees with
the state court’s resolution of that claim. A federal court may grant habeas relief
only if the state court decision was an objectively unreasonable application of the
Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “Because rational
people can sometimes disagree, the inevitable consequence of this settled law is
that judges will sometimes encounter convictions that they believe to be mistaken,
but that they must nonetheless uphold.” Id. For a federal habeas court reviewing a
state court conviction, “the only question under Jackson is whether that finding

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was so insupportable as to fall below the threshold of bare rationality.” Coleman v.
Johnson, 132 S.Ct. 2060, 2065 (2012).
On habeas review, a federal court does not reweigh the evidence or
redetermine the credibility of the witnesses whose demeanor was observed at trial.
Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder
to weigh the probative value of the evidence and resolve any conflicts in testimony.
Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). A habeas court therefore must
defer to the fact finder for its assessment of the credibility of witnesses. Matthews
v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). Under Michigan law, “[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
Fed. App’x. 147, 150 (6th Cir. 2003) (citing People v. Turrell, 25 Mich.App. 646, 181
N.W.2d 655, 656 (1970)).
In the present case, Berry testified that he heard a gunshot and awoke to
find petitioner walking from the back door and then stepping over the decedent
without any emotion. Berry further testified that he asked petitioner to call 911
which petitioner declined to do, prior to walking back over the decedent and
leaving the house. Berry asked petitioner numerous times about the death of the
victim at the house and then pursued petitioner to the liquor store, continuing to
ask questions about what happened to his best friend, only to be told by petitioner
to move on. The Court notes that “the testimony of a single, uncorroborated

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prosecuting witness or other eyewitness is generally sufficient to support a
conviction.” Brown v. Davis, 752 F.2d 1142, 1144 (6th Cir. 1985) (internal citations
omitted). The evidence provided by Berry was sufficient to support petitioner’s
convictions. See Brown v. Burt, 65 Fed. App’x. 939, 944 (6th Cir. 2003).
In addition, there was strong circumstantial evidence that linked petitioner
to the crime. Circumstantial evidence alone is sufficient to support a conviction,
and it is not necessary for the evidence at trial to exclude every reasonable
hypothesis except that of guilt. Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000)
(internal quotations omitted). Identity of a defendant can be inferred through
circumstantial evidence. See Dell v. Straub, 194 F. Supp. 2d 629, 648 (E.D. Mich.
2002). The record reflects that petitioner had a weapon in his possession and was
one of three individuals in the house before the death. The house was secured at
all times and access was limited to petitioner, Berry, the decedent, and Scott. Scott
left the house prior to Berry falling asleep, leaving petitioner and the victim alone
in the house. The additional circumstantial evidence supports a finding that
petitioner was the perpetrator. Combined with Berry’s testimony of petitioner’s
actions following the death of the victim, the evidence was sufficient to sustain a
conviction for second degree murder.
Because there were multiple pieces of evidence, including eyewitness
testimony, to establish petitioner’s identity as the perpetrator, the Michigan Court
of Appeals did not unreasonably apply Jackson v. Virginia in rejecting petitioner’s

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sufficiency of evidence claim. See Moreland v. Bradshaw, 699 F.3d 908, 919-21 (6th
Cir. 2012). Petitioner’s fifth claim is without merit, and the Court will deny the
petition for a writ of habeas corpus.
IV. CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED IN
FORMA PAUPERIS
The Court will also deny petitioner a certificate of appealability. 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

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the denial of a federal constitutional right. See also Millender v. Adams, 187 F.
Supp. 2d 852, 880 (E.D. Mich. 2002). The Court will also deny petitioner leave to
appeal in forma pauperis, because the appeal would be frivolous. See Allen v.
Stovall, 156 F. Supp. 2d at 798.
V. CONCLUSION
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of
Habeas Corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that a Certificate of Appealability is
DENIED and petitioner is DENIED leave to appeal in forma pauperis.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: June 28, 2016

Certificate of Service
I hereby certify that this Order was electronically submitted on June 28, 2016,
using the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

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