McGhee v. MacLaren
OPINION and ORDER Denying the Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability and Leave to Appeal In Forma Pauperis. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No: 14-cv-14564
Honorable Linda V. Parker
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
Bryan McGhee, (“Petitioner”), confined at the Kinross City Correctional
Facility in Kincheloe, Michigan, filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his application, petitioner challenges his
conviction for second-degree murder, Mich. Comp. Laws § 750.317. For the
reasons stated below, the petition for a writ of habeas corpus is DENIED WITH
Petitioner was convicted following a jury trial in the Wayne County Circuit
Court. This Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
Defendant’s conviction involves the stabbing death of William Fish
on May 18, 2009, in Detroit. The prosecution alleged that defendant
stabbed Fish in anger over an earlier fight that had occurred between
defendant and an individual named Cameron, and in which Fish was
also involved. Defendant maintained that Fish assaulted him with a
knife and that he stabbed Fish in self-defense during a struggle for that
knife. At trial, two men who were present with Fish during the
stabbing, Benjamin Tucker and Patrick Mayo, provided their versions
of the incident, as did defendant. In addition, all three men testified
about the earlier fight, as did a fourth witness, Johnny McDaniel.
People v. McGhee, No. 295708, 2011 WL 566844, at *1 (Mich. Ct. App. Feb. 17,
The Court also recites these additional facts. The medical examiner testified
that the cause of death was multiple stab wounds, finding that “[T]here were three
stab wounds, one on the right chest, one on the left chest and one on the left arm.”
(ECF No. 6-9 at Pg ID 452.) The stab wound labeled “number one,” located on the
right upper chest, proceeded through the spaces between the ribs and perforated the
lower part of the right lung. (Id.) Stab wound “number two,” located on the left
lower chest, went through the tissues beneath the ribs and tore the tissue that
envelopes the heart, the pericardium. (Id.) This wound also ripped the right side
of the heart and the middle portion of the heart. (Id. at Pg ID 452-53.) The
combination of the piercing of the right lung and heart caused “extensive bleeding
into the chest cavity,” according to the medical examiner. (Id. at Pg ID 453.) Stab
wound “number three,” located on the lateral portion of the left arm, slashed
through the skin and the soft tissues beneath the skin as well as the muscle beneath
the soft tissue. (Id.). The first injury was a downward motion, and the second
injury was an upward motion. (Id. at Pg ID 465.) Although the medical examiner
could not definitively state that Fish’s left arm injury constituted a defensive
wound, he did say that the injury to the left arm might be a defensive wound. (Id.
at Pg ID 466.)
Petitioner testified that the victim (Fish) “pulled out a knife.” (ECF No. 611 at Pg ID 837.) Petitioner further testified that Fish cut petitioner’s right arm
with the knife, which caused him to bleed. (Id. at Pg ID 838-39.) A struggle then
ensued, according to petitioner, in which he grabbed Fish’s hand. (Id. at Pg ID
839.) Breaking free, petitioner testified that he ran away. Petitioner claimed he
had no reason to harm Fish and denied intentionally stabbing him repeated times
that night. (Id. at Pg ID 841.)
Petitioner’s conviction was affirmed on appeal. People v. McGhee, No.
295708, 2011 WL 566844; lv. den. 490 Mich. 896, 804 N.W. 2d 555 (2011).
Petitioner filed a post-conviction motion for relief from judgment, which was
denied. People v. McGhee, No. 09-017549-FC (Third Cir. Ct., Dec. 3, 2012). The
Michigan appellate courts denied petitioner leave to appeal. People v. McGhee,
No. 316330 (Mich. Ct. App. Oct. 25, 2013); lv. den. 495 Mich. 993, 845 N.W. 2d
117 (2014); reconsideration den. 497 Mich. 857, 852 N.W. 2d 160 (2014).
Petitioner seeks a writ of habeas corpus on the following grounds:
The state court unlawfully deprived the Petitioner of his due
process, equal protection, and other protected rights under the United
States and Michigan Constitutions when it responded to the jury’s
request to review key testimony by indicating that it would take
substantial time to prepare a transcript and asked the jury to rely on its
collective memories, thus forcing a coerced verdict.
Petitioner was denied his right to counsel of choice, by his trial
judge, in violation of his Sixth Amendment, thus, a structural error
was committed against him, which requires automatic reversal.
III. Mr. McGhee was denied his constitutional right to a fair and
impartial jury, by the trial court not holding a hearing pursuant to
Remmer v. United States, 347 Us 227, 320; 74 S.Ct. 450; 98 L. Ed 2d
654 (1954), where after opening statements were given, juror 9 seen
[sic] the victim’s family and knew one of them, because they worked
at Ford Motor Company together, and, at least one other juror worked
at the same Ford plant, yet, no inquiry was undertaken to protect Mr.
McGhee’s rights and counsel was ineffective in failing to completely
preserve this issue.
IV. Substantial prosecutorial misconduct deprived Petitioner of his
rights to a fair trial pursuant to Us [sic] Constitutional Amend V, XIV,
Mich. Const. 1963, Art. 1, § 17 and 20.
Petitioner was denied his Fifth Amendment constitutional rights
to a fair and impartial trial where the trial court abused its discretion
in allowing in prejudicial evidence that went to the conclusion of law
for the trier of fact to determine[.]
VI. Petitioner was denied his constitutional right to the effective
assistance of appellate counsel on his appeal of right. U.S. Const. Am.
VII. The state courts erred and violate[d] Petitioner’s right to a fair
trial, and due process of law regarding ineffective assistance of
counsel without holding an evidentiary hearing to assess counsel’s
performance as identified in the above issues, and prejudice suffered.
U.S. Const. Amend. V, XIV; Mich. Const. 1963, Art 1, §17, 20.
Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when
a state court decision “unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly.” Id. at 410-11.
The Supreme Court explained that a “federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our
federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA
thus imposes a ‘highly deferential standard for evaluating state-court rulings,’ and
‘demands that state-court decisions be given the benefit of the doubt.’” Renico v.
Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7
(1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[A] state
court’s determination that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized “that even
a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Furthermore, pursuant to § 2254(d), “a habeas court must determine what
arguments or theories supported or...could have supported, the state court’s
decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a
prior decision” of the Supreme Court. Id. 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 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).
A. Procedural Default
Respondent claims that petitioner’s first through fifth claims are
procedurally defaulted for various reasons. This Court notes that procedural
default is not a jurisdictional bar to the review of a habeas petition on the merits.
See Trest v. Cain, 522 U.S. 87, 89 (1997). In addition, “[F]ederal courts are not
required to address a procedural-default issue before deciding against the
petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003)
(citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). “Judicial economy
might counsel giving the [other] question priority, for example, if it were easily
resolvable against the habeas petitioner, whereas the procedural-bar issue involved
complicated issues of state law.” Lambrix, 520 U.S. at 525.
Respondent alleges that petitioner’s first claim is waived, having failed to
object to preserve the error during trial. Respondent further alleges that the
second through fifth claims are procedurally defaulted because petitioner raised
them for the first time in his post-conviction motion for relief from judgment and
failed to show cause and prejudice, as required by M.C.R. 6.508(D)(3), for failing
to raise these claims on his appeal of right.
The Michigan Court of Appeals and the Michigan Supreme Court rejected
petitioner’s post-conviction appeal on the ground that “the defendant has failed to
meet the burden of establishing entitlement to relief under MCR 6.508(D),”
without referring to subsection (D)(3) or mentioning petitioner’s failure to raise
these claims on his direct appeal as their rationale for rejecting his post-conviction
claims. Because the form orders in this case citing Rule 6.508(D) are ambiguous
as to whether they refer to procedural default or a denial of post-conviction relief
on the merits, the orders are unexplained. See Guilmette v. Howes, 624 F. 3d 286,
291 (6th Cir. 2010). This Court must “therefore look to the last reasoned state
court opinion to determine the basis for the state court’s rejection” of petitioner’s
claims. Id. Although the trial judge mentioned M.C.R. 6.508(D)(3) in her
opinion, she did not specifically invoke the court rule nor mention petitioner’s
failure to raise the claims on his direct appeal as the basis for rejecting these
claims. Because the last reasoned state court decision appears to have rejected the
petitioner’s claims on the merits, this Court concludes that these claims are most
likely not procedurally defaulted. Guilmette, 624 F. 3d at 292. In addition,
petitioner’s first claim is non-cognizable. The Court believes that judicial
economy is served by addressing the merits of these claims.
B. Claim 1 – Failure to Read Testimony
Petitioner contends that the trial court judge deprived him of his due process
rights when she responded to the jury’s request to review witness testimony by
stating that it would take substantial time to prepare a transcript and then told the
jury to rely on their collective memories.
There is no federal constitutional law which requires that a jury be provided
with a witness’ testimony. See Bradley v. Birkett, 192 Fed. App’x. 468, 477 (6th
Cir. 2006). The reason for this is that there is no U.S. Supreme Court decision
that requires judges to re-read testimony of witnesses or to provide transcripts of
their testimony to jurors upon their request. See Friday v. Straub, 175 F. Supp. 2d
933, 939 (E.D. Mich. 2001). A habeas petitioner’s claim that a state trial court
violated his right to a fair trial by refusing to grant a jury request for transcripts is
therefore not cognizable in a habeas proceeding. Bradley, 192 Fed. App’x. at 477;
Spalla v. Foltz, 615 F. Supp. 224, 233-34 (E.D. Mich. 1985). Given the lack of
holdings by the Supreme Court on the issue of whether a state trial judge is
required to re-read the testimony of witnesses or provide transcripts of their
testimony to jurors upon their request, the Michigan Court of Appeals’ rejection
of petitioner’s claim was not an unreasonable application of clearly established
federal law. See, e.g., Wright v. Van Patten, 552 U.S. 120, 126 (2008); Carey v.
Musladin, 549 U.S. 70, 77 ( 2006).
C. Claim 2 – Choice of Counsel
Petitioner contends that the trial court erred in denying his motion for an
adjournment so that he could retain new counsel after expressing dissatisfaction
with his appointed counsel on the morning of trial. The trial court rejected
petitioner’s claim in his motion for relief from judgment as follows:
On the morning of his trial the defendant told the court that his
family had hired a new attorney for him and he did not want to
proceed with his court appointed attorney. The court questioned the
defendant about his reasons for changing attorneys at that late
moment. The defendant complained that his appointed attorney did
not file a motion that he asked her to file, she told him negative
things about his case, she argued with his mother and she called him
stupid. The court pointed out that the attorney he wished to go to trial
with had not properly filed an appearance with the court or notified
the court that he would be substituting into the case despite being in
the courtroom several times in the previous week, nor was he
prepared to go to trial on the scheduled date. The court noted that the
assigned attorney was prepared to go to trial, she had appeared at
every pretrial matter without the defendant complaining and that she
was not required to file motions that had no merit. It was also noted
that this was the second trial date for the defendant because he had
fired his first attorney on the date of his trial and was then appointed
a new attorney. The prosecutor had several witnesses subpoenaed for
this trial date, including an expert witness, and was prepared to
proceed to trial. The court denied the defendant’s request to adjourn
his trial but allowed the retained attorney to sit as co-counsel through
the entire trial. The retained attorney declined to do so.
People v. McGhee, No. 09-017549-FC, * 3-4 (Third Cir. Ct., Dec. 3, 2012).
The Sixth Amendment right to the assistance of counsel does not guarantee a
criminal defendant that he or she will be represented by a particular attorney.
Serra v. Michigan Dep’t of Corr., 4 F.3d 1348, 1351 (6th Cir. 1993) (citing
Caplin & Drysdale v. United States, 491 U.S. 617, 624 (1989)). A criminal
defendant who has the desire and the financial means to retain his or her own
counsel “should be afforded a fair opportunity to secure counsel of his own
choice.” Id. (quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). Indeed, “[t]he
Sixth Amendment guarantees the defendant the right to be represented by an
otherwise qualified attorney whom that defendant can afford to hire, or who is
willing to represent the defendant even though he is without funds.” U.S. v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (quoting Caplin & Drysdale, 491 U.S.
at 624-25). However, while a criminal defendant who can afford his or her own
attorney has a right to a chosen attorney, that right is a qualified right. Serra, 4
F.3d at 1348 (citing Wheat v. United States, 486 U.S. 153, 159 (1988)). The right
to counsel of one’s own choice is not absolute. See Wilson v. Mintzes, 761 F.2d
275, 280 (6th Cir. 1985). “Although a criminal defendant is entitled to a
reasonable opportunity to obtain counsel of his choice, the exercise of this right
must be balanced against the court’s authority to control its docket.” Lockett v.
Arn, 740 F.2d 407, 413 (6th Cir. 1984); see also Gonzalez-Lopez, 548 U.S. at 15152) (“Nothing we have said today casts any doubt or places any qualification upon
our previous holdings that limit the right to counsel of choice and recognize the
authority of trial courts to establish criteria for admitting lawyers to argue before
them....We have recognized a trial court’s wide latitude in balancing the right to
counsel of choice against the needs of fairness, and against the demands of its
calendar.”) (internal citations omitted). Furthermore, the right to counsel of
choice may not be used to unreasonably delay a trial. See Linton v. Perini, 656
F.2d 207, 209 (6th Cir. 1981).
In reviewing a motion for substitution of counsel, a reviewing court should
consider “the timeliness of the motion; the adequacy of the [trial] court’s inquiry
into the defendant’s complaint; and the asserted cause for that complaint,
including the extent of the conflict or breakdown in communication between
lawyer and client (and the client’s own responsibility, if any, for that conflict).”
Martel v. Clair, 132 S. Ct. 1276, 1287 (2012). “Because a trial court’s decision
on substitution is so fact-specific, it deserves deference; a reviewing court may
overturn it only for an abuse of discretion.” Id.
This Court first notes that petitioner’s request for a continuance to obtain
new counsel was untimely because it was made on the day of trial. Petitioner
offered no reasons to the state courts or to this Court why he did not bring his
dissatisfaction with his counsel up to the trial court earlier. The Sixth Circuit has
noted that when “the granting of the defendant’s request [for a continuance to
obtain new counsel] would almost certainly necessitate a last-minute continuance,
the trial judge’s actions are entitled to extraordinary deference.” U.S. v. Whitfield,
259 Fed. App’x. 830, 834 (6th Cir. 2008) (quoting United States v. Pierce, 60
F.3d 886, 891 (1st Cir.1995)); see also United States v. Reevey, 364 F.3d 151, 157
(4th Cir. 2004) (“a continuance request for the substitution of counsel made on the
first day of trial is clearly ‘untimely under all but the most exigent
circumstances.’”). The Sixth Circuit has rejected similar requests as being
untimely. See U.S. v. Trujillo, 376 F.3d 593, 606-07 (6th Cir. 2004) (finding
motion for substitution of counsel untimely, coming only three days prior to the
start of the trial); United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996)
(finding motion to continue to obtain new counsel untimely when it was made the
day before trial). Petitioner was previously granted a continuance when he fired
his first retained counsel and requested court appointed counsel. Petitioner’s
request for a continuance to obtain new retained counsel on the day of trial was
untimely, particularly when petitioner had several opportunities prior to trial to
bring his dissatisfaction with counsel to the attention of the trial court. Whitfield,
259 Fed. App’x. at 834.
Moreover, in rejecting petitioner’s motion, the trial court judge seemed to
imply that petitioner was requesting the adjournment to stall the trial, because she
noted that this was the second trial date for petitioner, after petitioner fired his first
attorney on the first scheduled date of his trial, at which point, the judge appointed
a second attorney. Although petitioner alleges that he was denied his right to
proceed to trial with new retained counsel, the record clearly reflects that retained
counsel first filed an unsigned, undated appearance the morning of trial and that
retained counsel was unprepared and unavailable for trial that day. (ECF No. 6-9
at Pg ID 280-83.) To the contrary, petitioner’s appointed counsel was prepared to
proceed to trial. Also, the trial court agreed to allow new retained counsel to act
as co-counsel, which was declined. (Id. at Pg ID 284.)
Following the court’s ruling, petitioner asked, “So I am still going to trial?”
(Id.) Petitioner then went on a tirade that resulted in his removal from the
courtroom and return to jail; surprised that the court could proceed without him,
petitioner asked “How you gon’ have it without me?” (Id. at Pg ID 284-88.) A
defendant’s right to counsel of choice may not be used to unreasonably delay a
trial. Linton, 656 F. 2d at 209. As a result, petitioner is not entitled to habeas
relief on his second claim, because the state courts’ decisions to refuse to permit
petitioner to substitute counsel were not contrary to clearly established federal law
as decided by the United States Supreme Court. See Ray v. Curtis, 21 Fed. App’x.
333, 335 (6th Cir. 2001).
C. Claim 3 – Right to a Fair and Impartial Jury
Petitioner alleges that he was entitled to a Remmer hearing to determine if
any of the other jurors were prejudiced by a statement made by Juror #9 that he
knew one of the family members of the victim from working together at Ford
Motor Company. Petitioner also claims that Juror #11, who was also a Ford
Motor employee, should have been questioned by the court to determine whether
this juror knew the victim’s family member and whether this juror could be fair
In Remmer v. United States, 347 U.S. 227, 230 (1954), the Supreme Court
held that a trial court confronted with an allegation of external tampering or
contact with a juror during a trial about a matter pending before the jury “should
determine the circumstances, the impact [of the contact] upon the juror, and
whether or not it was prejudicial, in a hearing with all interested parties permitted
to participate.” However, a Remmer hearing is not required unless the defendant
can show that the unauthorized juror contact “created actual juror bias.” United
States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997).
To be entitled to a Remmer hearing, a defendant “must do more than simply
raise the possibility of bias.” Jackson v. Bradshaw, 681 F.3d 753, 766 (6th Cir.
2012). A defendant “must make a colorable claim of extraneous influence,” that
is, “one derived from specific knowledge about or a relationship with either the
parties or their witnesses.” Id. “Examples of extraneous influences include ‘prior
business dealings with the defendant, applying to work for the local district
attorney, conducting an [out-of-court] experiment, and discussing the trial with an
employee.’” Id. (internal quotation omitted). A trial court “should consider the
content of the allegations, the seriousness of the alleged misconduct or bias, and
the credibility of the source when determining whether a hearing is required.”
Kowalak v. Scutt, 712 F.Supp.2d 657, 692 (E.D. Mich. 2010) (quoting Sims v.
Rowland, 414 F.3d 1148, 1155 (9th Cir. 2005) (internal quotation omitted). To be
entitled to a post-trial hearing on an extraneous influence claim, a defendant must
“come[ ] forward with clear, strong, substantial and incontrovertible evidence that
a specific, non-speculative impropriety has occurred.” Id. (internal quotation
Moreover, “[s]ince the trial judge is in the best position to determine the
nature and extent of alleged jury misconduct, his decision on the scope of
proceedings necessary to discover misconduct is reviewed only for an abuse of
discretion.” United States v. Rigsby, 45 F.3d 120, 125 (6th Cir. 1995) (quoting
United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir. 1985)). In a habeas
corpus case, a state court’s findings on whether, and how, an extraneous matter
affected jury deliberations “deserve[ ] a ‘high measure of deference.’” Mahoney
v. Vondergritt, 938 F.2d 1490, 1492(1st Cir. 1991) (quoting Rushen v. Spain, 464
U.S. 114, 120 (1983)).
Petitioner is not entitled to habeas relief on his right to a fair and impartial
jury claim because he never presented evidence of any jury impropriety. The trial
court judge excused Juror # 9, who knew a member of the victim’s family. (ECF
No. 6-9 at Pg ID 442-44.) Juror #11 retired from Ford Motor Company five years
earlier and did not indicate that he knew the family members of the victim. (Id. at
Pg ID 303-04.) There is no record evidence that Juror # 11 and Juror # 9 knew
each other and merely working for the same company would not be indicative of
bias against petitioner. In light of the fact that Juror # 9 had been removed from
the jury, petitioner is not entitled to habeas relief because there is no evidence that
Juror # 9 discussed his acquaintance with the victim’s family with the other jurors
or that Juror # 11 knew any of the victim’s family members. See e.g. Young v.
Trombley, 435 Fed. App’x. 499, 505-06 (6th Cir. 2011) (holding that state court’s
determination that petitioner was not deprived of his Sixth Amendment right to an
impartial jury was not an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding, where the record contained no
evidence or other indication that any member of the jury was influenced by the
fact that a dismissed juror might have previously known one of the victims).
Because petitioner’s extraneous influence claim is conclusory and unsupported, he
is not entitled to habeas relief on his third claim. Kowalak, 712 F. Supp. 2d at
692-93. Furthermore, trial counsel was not ineffective for failing to have a
hearing on a conclusory and unsupported claim.
D. Claim 4 – Prosecutorial Misconduct
Petitioner claims that he was denied a fair trial because of 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, 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).
1. Shifting the Burden
Petitioner alleges that the prosecutor shifted the burden by injecting
prejudicial information through the testimony of her witness, Mr. Tucker,
specifically eliciting testimony from this witness that petitioner murdered the
victim. Petitioner claims that this testimony was prejudicial because it required
the witness to reach a conclusion of law which should have been left for the jury.
The prosecutor asked her witness if he recognized anyone from the photo lineup
and what he told the police. The witness indicated that he identified petitioner and
that he told the police that he witnessed petitioner murdering Will. (ECF No. 6-10
at Pg ID 652-60.) At the preliminary examination, this witness was asked what he
saw at the time of the incident. (Id. at Pg ID 642.) The objection pertained to the
witness’ conclusion that he saw petitioner murdering Will. (Id. at Pg ID 660.) At
trial, the witness testified to what he told the police. The witness indicated how he
identified petitioner’s photo to the police. (Id.) He identified petitioner as the
person who murdered the victim based on what he observed. (Id.)
The question posed by the prosecutor was relevant to establishing the
witness’ identification of petitioner. A prosecutor does not commit misconduct by
asking witnesses relevant questions. See Slagle v. Bagley, 457 F.3d 501, 518 (6th
Cir. 2006). Another judge in this district has rejected a similar claim involving
similar questions and comments. See Fuller v. Lafler, 826 F. Supp. 2d 1040, 1059
(E.D. Mich. 2011)(finding that prosecutor’s characterization of expert medical
witness called by defendant in child sexual abuse case as “hired gun” was not so
inflammatory that it affected fairness of trial so as to rise to level of a due process
violation). A single comment made by a witness while testifying in connection
with his identification of petitioner did not render petitioner’s trial fundamentally
unfair when the trial lasted four days and contained testimony from numerous
witnesses. Although petitioner alleges that this single comment could have biased
the jury, the burden is on petitioner to show actual bias where there are claims of
juror bias. See Phillips v. Bradshaw, 607 F3d 199, 223 (6th Cir. 2010). Petitioner
was not denied his right to a fair trial as a result of the prosecutor’s question.
2. Pretrial Silence
Petitioner alleges that the prosecutor committed misconduct by repeatedly
commenting on petitioner remaining silent following the assault, in violation of
his right to remain silent.
The Supreme Court has held that prosecutors may use a defendant’s prearrest silence as substantive evidence of his guilt so long as the defendant did not
expressly invoke his right to remain silent. Salinas v. Texas, 133 S. Ct. 2174,
2179, 2184 (2013); see also Abby v. Howe, 742 F.3d 221, 228 (6th Cir. 2014).
When viewed in context, the prosecutor’s comments referred to petitioner’s
silence before he had been arrested and before he invoked his right to remain
silent. Furthermore, any admission of petitioner’s pre-arrest silence in this case
would have been harmless error at best, in light of the overwhelming evidence
against petitioner. See United States v. Banks, 29 Fed. App’x. 276, 284 (6th Cir.
Petitioner raised his pre-arrest issue in his motion for relief from judgment.
The trial court rejected this claim, finding that the prosecutor specifically used
petitioner’s pre-arrest silence to impeach petitioner’s credibility regarding his
claim of self-defense. People v. McGhee, 09-017549-01-FC, at * 7. Petitioner
testified that he was defending himself against the victim’s knife assault when he
grabbed the knife. Being that he was arrested several days after the incident, the
prosecutor’s questions about why he failed to contact the police about his claim
that he was assaulted by the decedent directly challenged his claim of selfdefense.
The Supreme Court has held that use of a defendant’s pre-arrest silence for
impeachment purposes does not violate the Fifth Amendment right against selfincrimination or the Fourteenth Amendment right to due process. Jenkins v.
Anderson, 447 U.S. 231, 238-39 (1980). Moreover, in the absence of any
indication that a criminal defendant had not received his Miranda warnings, the
use of post-arrest silence to impeach a defendant’s credibility when that defendant
chooses to take the witness stand does not violate the Due Process Clause. See
Fletcher v. Weir, 455 U.S. 603, 606-07 (1982). In Fletcher, the Supreme Court
held that it was not unconstitutional for a prosecutor to use the defendant’s postarrest silence for impeachment purposes where the defendant testified at trial that
he stabbed the victim in self-defense and that the stabbing was accidental. Id.
Petitioner testified that he stabbed the victim in self-defense. References to
petitioner’s pre-arrest silence would have been permissible under Jenkins to
impeach his credibility. When viewed in the overall context, the comments about
petitioner’s silence appear to have been used by the prosecutor to cast doubt on
petitioner’s claim of self-defense and not as substantive evidence of petitioner’s
guilt. See Seymour v. Walker, 224 F.3d 542, 560 (6th Cir. 2000). Therefore,
Petitioner’s claim is meritless.
3. Closing Argument
Petitioner claims that the prosecutor injected facts into her closing argument
that were not presented at trial when she stated that petitioner’s cousin was seen
earlier that day with what might have been the murder weapon.
Misrepresenting facts in evidence by a prosecutor can amount to substantial
error because doing so “may profoundly impress a jury and may have a significant
impact on the jury’s deliberations.” Washington v. Hofbauer, 228 F.3d 689, 700
(6th Cir. 2000) (quoting Donnelly, 416 U.S. at 646). Likewise, it is improper for a
prosecutor during closing arguments to bring to the jury any purported facts which
have not been introduced into evidence and which are prejudicial. Byrd v. Collins,
209 F.3d 486, 535 (6th Cir. 2000). However, prosecutors must be given leeway to
argue reasonable inferences from the evidence. Id.
There was record support for the prosecutor’s argument. Patrick Mayo
testified that he saw “Don P” with a five-inch hunting knife. (ECF No. 6-11 at Pg
ID 726-27.) Veronica Hicks confirmed that Don P. was petitioner’s cousin Kevin,
who drove petitioner to the murder scene that night. (ECF No. 6-10 at Pg ID 566;
569; 591.) Mayo also testified that he saw something white in petitioner’s hands
after petitioner stabbed Fish, and that following the stabbing, petitioner stood in
the middle of the street “talking about how he was a killer, yelling it.” (ECF No.
6-11 at Pg ID 747.)
Petitioner testified that after the victim got out of the car, they argued and
the victim pulled out a knife and cut his arm with it. (Id. at Pg ID 836.) At that
point petitioner grabbed the victim’s hand and they tussled over the knife. (Id.)
Petitioner stated that he was not aware that the victim was injured until he backed
away and saw blood on the victim’s shirt. Petitioner estimated the struggle over
the knife lasted only seconds. (Id. at Pg ID 836-39.)
While petitioner claims that no one saw the victim or himself with a knife
that night, petitioner’s testimony at trial provides a detailed account pertaining to a
struggle over a knife. Furthermore, Patrick Mayo testified that he saw petitioner’s
cousin with a knife, that petitioner’s cousin drove petitioner to the scene of the
stabbing, and that he saw something in petitioner’s hand as petitioner shouted
about being a killer following the stabbing. The prosecutor did not improperly
interject facts pertaining to the use of a knife. The prosecutor was free to argue
reasonable inferences from the evidence which supported a finding that
petitioner’s cousin was seen with a knife earlier that day at an earlier altercation
involving petitioner and Cameron, which was broken up by Fish and that
petitioner’s cousin drove petitioner to find Fish, resulting in Fish dying from
multiple stab wounds. Petitioner’s claim is unfounded and without merit.
4. Cumulative Misconduct
Petitioner contends that the cumulative effect of the prosecutor’s comments
and questions deprived him of a fair trial. The Sixth Circuit has noted that the
United States Supreme Court “has not held that distinct constitutional claims can
be cumulated to grant habeas relief.” Lorraine v. Coyle, 291 F. 3d 416, 447 (6th
Cir. 2002). Petitioner’s claim that the prosecutor’s comments and remarks
cumulatively deprived him of a fair trial is an inadequate ground for granting
federal habeas relief, because it is essentially a cumulative errors claim. See e.g.
Noel v. Norris, 194 F. Supp. 2d 893, 931-32 (E.D. Ark. 2002); aff’d 322 F. 3d 500
(8th Cir. 2003); cert. den. 124 S. Ct. 13 (2003). Petitioner is therefore not entitled
to habeas relief on his cumulative error claim.
V. Claim 5 - Abuse of Discretion
Petitioner alleges that the trial court abused its discretion when it allowed in
prejudicial evidence that went to the legal conclusion of petitioner’s guilt in the
Mr. Tucker testified that when asked to identify petitioner during a photo
lineup, he looked at the picture and then told the officer “[he] Murder[ed] Will.”
(ECF No. 6-10 at Pg ID 652-60.) The trial court overruled trial counsel’s
objection finding that the statement was relevant and its probative value
substantially outweighed the danger of unfair prejudice.
Errors in the application of state law, especially rulings regarding the
admissibility of evidence, are usually not questioned by a federal habeas court.
Seymour v. Walker, 224 F.3d at 552. In addition, federal habeas courts “‘must
defer to a state court’s interpretation of its own rules of evidence and procedure’
when assessing a habeas petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir.
2005) (quoting Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988)). The trial
court reviewed this claim on petitioner’s motion for relief from judgment and
found that the comment was not so inflammatory so as to deny petitioner a fair
trial. The trial court further found that any effect by the single comment was
removed with the instructions to the jury that they were the only determiners of
fact. People v. McGhee, 09-017549-01-FC, at * 7. This Court sitting on federal
habeas review may not second guess the state court’s conclusion that it was
permissible for Mr. Tucker to offer lay opinion testimony on this issue; thus,
petitioner is not entitled to habeas relief on his claim. See Charles v. Thaler, 629
F. 3d 494, 500 (5th Cir. 2011).
VI. Claims 6 and 7 - Ineffective Assistance of Counsel Claims
The Court will consolidate petitioner’s ineffective assistance of counsel
claims together for judicial clarity. In his sixth claim, petitioner alleges that he
was denied his constitutional right to the effective assistance of appellate counsel.
In his seventh claim, petitioner alleges that he was denied due process when the
state courts declined to hold an evidentiary hearing on petitioner’s ineffective
assistance of counsel claims.
Taking petitioner’s seventh claim first, the Court does not have the power to
grant habeas relief on petitioner’s claim that the state courts failed to conduct an
evidentiary hearing on his ineffective assistance of counsel claims. There is no
federal constitutional right to appeal a state court conviction. Cleaver v.
Bordenkircher, 634 F. 2d 1010, 1011 (6th Cir. 1980). Where a habeas petitioner
alleges a denial of his or her right to appeal a state criminal conviction, he or she
is not entitled to federal habeas relief. Tate v. Livesay, 612 F. Supp. 412, 413
(M.D. Tenn. 1984). In addition, violations of state law and procedure which do
not infringe specific federal constitutional protections are not cognizable claims
under Section 2254. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Whether the
trial court erred in its application of M.C.R. 7.211 in denying petitioner’s motion
for an evidentiary hearing on his ineffective assistance of counsel claims is a
question of state law that cannot be reviewed in a federal habeas petition. See
Hayes v. Prelesnik, 193 Fed. App’x. 577, 584 (6th Cir. 2006). Moreover, there is
no clearly established Supreme Court law which recognizes a constitutional right
to a state court evidentiary hearing to develop a claim of ineffective assistance of
counsel on appeal. Id. at 585. Accordingly, petitioner would not be entitled to
habeas relief on his seventh claim.
Even if there is a due process component to petitioner’s claims involving the
denial of his motion, deprivation of this sort would not form the basis for issuing a
writ of habeas corpus, but might support a request for an evidentiary hearing in
this Court for the purpose of developing a record on the petitioner’s ineffective
assistance of counsel claim. See May v. Renico, 2002 WL 31748845, * 5 (E.D.
Mich. Nov. 12, 2002). This Court must determine whether petitioner is entitled to
an evidentiary hearing on his claim.
When deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable the habeas petitioner to prove the
petition’s factual allegations, which, if true, would entitle the petitioner to federal
habeas relief on his claim or claims. Schriro v. Landrigan, 550 U.S. 465, 474
(2007). “[B]ecause the deferential standards prescribed by § 2254 control whether
to grant habeas relief, a federal court must take into account those standards in
deciding whether an evidentiary hearing is appropriate.” Id. If the record refutes
the habeas petitioner’s factual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary hearing. Id. A habeas
petitioner is not entitled to an evidentiary hearing on his claims if they lack merit.
See Stanford v. Parker, 266 F. 3d 442, 459-60 (6th Cir. 2001). A habeas
petitioner is also not entitled to an evidentiary hearing on his claims of ineffective
assistance of counsel where the petitioner fails to allege specific facts which, if
true, would entitle him to relief on his claims. See Barber v. Birkett, 276 F. Supp.
2d 700, 706 (E.D. Mich. 2003) (petitioner was not entitled to an evidentiary
hearing on his claims that he was denied his right to counsel and that his appellate
counsel rendered ineffective assistance, where he did not assert any facts which, if
true, would establish a constitutional error). As will be discussed below,
petitioner’s ineffective assistance of counsel claim is without merit, therefore, he
is not entitled to an evidentiary hearing on this claim.
In his sixth claim, petitioner alleges that appellate counsel was ineffective by
not holding an evidentiary hearing to ascertain if Juror # 9 biased the jury by
indicating that he knew a member of the victim’s family. Petitioner further
alleges that appellate counsel was ineffective by failing to ask for an evidentiary
hearing to assess trial counsel’s performance in failing to request a Remmer
hearing, pursuant to People v. Ginther, 390 Mich. 436, 443; 212 N.W. 2d 922
(1973) and M.C.R. 7.211(C)(1).
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). The Strickland standard applies as well to
claims of ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F.
3d 602, 617 (6th Cir. 2005).
The trial court judge found that there was no merit to petitioner’s claim that
a juror’s knowledge of a member of the victim’s family could possibly taint
another member of the jury. Although Juror # 9 and Juror #11 were employed by
Ford Motor Company, the trial court found that petitioner’s complaint was based
on mere speculation that Juror # 11 knew any of the witnesses or family members,
or that Juror # 11 was biased because he worked for the same company as Juror #
9 and would be biased because Juror # 9 recognized one of the victim’s family
members. In fact, Juror # 11 retired from Ford Motor Company five years earlier
and did not say he knew any of the witnesses or victim’s relatives. People v.
McGhee, 09-017549-01-FC, at * 4-6.
The Sixth Amendment guarantees a defendant the right to the effective
assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387,
396-397 (1985). However, court appointed counsel does not have a constitutional
duty to raise every nonfrivolous issue requested by a defendant. Jones v. Barnes,
463 U.S. 745, 751 (1983). Petitioner’s claim lacks merit. “[A]ppellate counsel
cannot be found to be ineffective for ‘failure to raise an issue that lacks merit.’”
Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir. 2010) (quoting Greer v.
Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Because this claim cannot be shown
to be meritorious, appellate counsel was not ineffective in the handling of
petitioner’s direct appeal. Therefore, Petitioner is not entitled to habeas relief on
his sixth or seventh claims.
The Court will deny the petition for writ of habeas corpus. The Court will
also deny a certificate of appealability to petitioner. In order to obtain a certificate
of appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the
applicant is required to show that reasonable jurists could debate whether, or agree
that, the petition should have been resolved in a different manner, or that the
issues presented were adequate to deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a
habeas petitioner’s constitutional claims on the merits, the petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims to be debatable or wrong. Id. at 484. “The district court
must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C.
foll. § 2254.
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because he has failed to make a substantial showing of
the denial of a federal constitutional right. Myers v. Straub, 159 F. Supp. 2d 621,
629 (E.D. Mich. 2001). The Court will also deny petitioner leave to appeal in
forma pauperis, because the appeal would be frivolous. Id.
IT IS ORDERED that the Petition for a Writ of Habeas Corpus (ECF No.
1) is DENIED WITH PREJUDICE;
IT IS FURTHER ORDERED that a Certificate of Appealability is
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to
appeal in forma pauperis.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 18, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, May 18, 2017, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?