Hayes v. Burt
OPINION and ORDER Denying the 9 MOTION for Discovery, Denying the 1 Habeas Corpus Petition, Granting in Part a Certificate of Appealability, and Granting Leave to Appeal Informa Pauperis. Signed by District Judge Linda V. Parker. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DARNELL ELLSWORTH HAYES,
Civil Case No. 15-10081
Honorable Linda V. Parker
OPINION AND ORDER DENYING THE MOTION FOR DISCOVERY
(ECF NO. 9), DENYING THE HABEAS CORPUS PETITION (ECF NO. 1),
GRANTING IN PART A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
This matter is before the Court on Petitioner Darnell Ellsworth Hayes’ pro se
motion for discovery and petition for the writ of habeas corpus under 28 U.S.C.
§ 2254. Petitioner is challenging his convictions under Michigan law for firstdegree (felony) murder, assault with intent to commit murder, conspiracy to
commit armed robbery, felon in possession of a firearm, and possession of a
firearm during the commission, or attempt to commit, a felony. As grounds for
relief, Petitioner alleges that: (1) the exclusion of the public for a key portion of
his trial violated his constitutional right to a public trial; (2) defense counsel was
ineffective for failing to object to the closure of the courtroom; (3) the trial court
deprived him of a fair trial by permitting testimony that a key witness was reluctant
to testify due to intimidation by a gang and unspecified threats; (4) the admission
of testimony regarding his “mug shot” and arrest for an unrelated charge of
disorderly conduct violated his right to a fair trial; (5) the felony information failed
to comport with the notice requirements for felony murder; (6) prosecutorial
misconduct deprived him of due process; and (7) trial counsel’s failure to make
objections, request a cautionary jury instruction, and move for a mistrial deprived
him of effective assistance.
In an answer to the petition filed through counsel, Respondent argues that
Petitioner is not entitled to discovery, he procedurally defaulted four of his seven
habeas claims, and the state courts’ rejection of Petitioner’s claims did not result in
decisions that were contrary to federal law, unreasonable applications of federal
law, or unreasonable determinations of the facts. The Court agrees that Petitioner
is not entitled to discovery and that habeas relief is not warranted on any of
Petitioner’s claims. Accordingly, the Court is denying Petitioner habeas corpus
relief and his motion for discovery.
Petitioner was charged in the Circuit Court for Wayne County, Michigan,
with felony murder, premeditated murder, assault with intent to commit murder,
conspiracy to commit armed robbery, felon in possession, and felony firearm. The
charges arose from the shooting of Philden Reid (“Reid”) and Brian Tilles 1
(“Tilles”) in Detroit, Michigan, on May 8, 2009. Reid died from his gunshot
wounds, but Tilles survived and was the main witness at Petitioner’s trial.
Petitioner and his two co-defendants (Derrico Searcy and Delmerey Morris) were
tried before a single jury in Wayne County Circuit Court where
[t]he prosecution’s theory . . . was that Reid was shot
during the defendants’ planned attempt to rob him of his
expensive designer sunglasses and money. The
prosecution’s principal witness, [Tilles], was with the
defendants during the offense. According to [Tilles], the
group of neighborhood friends, which also included Rob
Stringer, was outside talking when Reid drove by
wearing the sunglasses and flashing money. Upon
observing Reid, defendant Hayes remarked, “There go a
lick,” identifying Reid as an easy robbery victim. About
five minutes later, the five men got into defendant
Searcy’s Jeep and observed Reid’s vehicle at a nearby
intersection. Defendant Hayes stated, “There go the
lick,” and told defendant Morris, who was seated behind
defendant Hayes, to give him a firearm that defendant
Morris had in his pocket. While still seated in the Jeep,
which was next to Reid’s vehicle, defendant Hayes
opened the passenger door and fired several shots toward
Reid’s vehicle, then stepped out of the Jeep and
continued shooting. In the meantime, [Tilles] and
Stringer fled from the backseat of the Jeep and, while
running, [Tilles] was accidentally shot by defendant
At Petitioner’s preliminary examination, Tilles spelled his last name when asked.
(8/12/11 Tr. at 6, ECF No. 6-2 at Pg ID 183.) At subsequent proceedings, he was
not asked to spell his last name and it is spelled throughout the transcripts as
“Tillis.” (See 10/13/11 Trial Tr. at 3, Pg ID 582.) The Court is using the spelling
Hayes. Defendant Morris and Stringer carried [Tilles] to
the Jeep, defendant Hayes reentered the vehicle, and
defendant Searcy drove the men away from the scene.
Reid received two gunshot wounds, one to the back and
one to the thigh, and died at the scene. The defense
theory for all three defendants was that they were not
involved in Reid’s death or an attempted robbery, and
that [Tilles] was not a credible witness.
People v. Hayes, No. 308527, 2014 WL 1267264, at *1 (Mich. Ct. App. Mar. 27,
On October 24, 2011, the jury found Petitioner guilty of felony murder,
second-degree murder (as a lesser-included offense of premeditated murder),
assault with intent to commit murder, conspiracy to commit armed robbery, felon
in possession, and felony firearm. The trial court sentenced Petitioner to two years
in prison for the felony-firearm conviction, followed by concurrent terms of life
imprisonment for the murder convictions, thirty to sixty years in prison for the
assault and conspiracy convictions, and forty to sixty months in prison for the
Petitioner raised his habeas claims in an appeal as of right. The Michigan
Court of Appeals vacated Petitioner’s conviction and sentence for second-degree
murder and remanded Petitioner’s case to the trial court to correct a clerical error
in his judgment of sentence. The Court of Appeals affirmed Petitioner’s
convictions and sentence in all other respects. See id. Petitioner appealed to the
Michigan Supreme Court, but the State Supreme Court denied leave to appeal
because it was not persuaded to review the issues. See People v. Hayes, 849
N.W.2d 380 (Mich. 2014). On January 8, 2015, Petitioner filed his pending federal
habeas corpus petition.
A. Procedural default
Respondent argues in her answer to the petition that Petitioner procedurally
defaulted his first, fourth, fifth, and sixth grounds for habeas relief by failing to
object to the claimed errors at trial. To obtain habeas relief on procedurally
defaulted claims, a petitioner must establish “cause” for the defaults and “also
show that the claims are meritorious.” Babick v. Berghuis, 620 F.3d 571, 576 (6th
Cir. 2010). Petitioner argued in a motion to amend, which the Court granted (see
ECF Nos. 7 and 8), that his trial attorney was “cause” for his failure to object at
trial. Petitioner also raises independent claims of ineffective assistance of counsel
in his habeas petition.
The Court finds it more efficient to address the merits of Petitioner’s claims
than to analyze whether the claims are procedurally defaulted. Accordingly, the
Court excuses the alleged procedural defaults and “cut[s] to the merits here,” as
“the cause-and-prejudice analysis adds nothing but complexity to the case.” Id.
B. Petitioner’s motion for discovery
In his motion for discovery, filed March 21, 2017, Petitioner alleges that
“new developments” suggest Tilles fabricated his testimony and that detectives had
specific information concerning this fabrication. Petitioner claims the new
developments show there was a miscarriage of justice in his case and that the
prosecutor presented false evidence in violation of Giglio v. United States, 405
U.S. 150 (1972), and withheld favorable evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). To prove his claims, Petitioner seeks a copy of the
Detroit Police Department’s homicide file and the Wayne County prosecutor’s
office file. Respondent opposes any request by Petitioner for discovery. (See
Answer in Opp’n to Pet. for Writ of Habeas Corpus at 66-67, ECF No. 5 at Pg ID
“[H]abeas actions are civil cases.” Rumsfeld v. Padilla, 542 U.S. 426, 452
(2004) (Kennedy, J., concurring). However, habeas petitioners, unlike the usual
civil litigants in federal court, are not entitled to discovery as a matter of course.
Bracy v. Gramley, 520 U.S. 899, 904 (1997). Although Rule 6(a) of the Rules
Governing § 2254 Proceedings provides that “[a] judge may, for good cause,
authorize a party to conduct discovery under the Federal Rules of Civil
Procedures,” this rule “makes it clear that the scope and extent of such discovery is
a matter confided to the discretion of the District Court.” Bracy, 520 U.S. at 909.
Discovery is appropriate only when “specific allegations before the court show
reason to believe that the petitioner may, if the facts are fully developed, be able to
demonstrate that he is . . . entitled to relief.” Id. at 908-09 (quoting Harris v.
Nelson, 394 U.S. 286, 300 (1969)). “‘Conclusory allegations are not enough to
warrant discovery under [Rule 6]; the petitioner must set forth specific allegations
of fact.’” Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004) (quoting Ward v.
Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994)).
The primary issue at Petitioner’s trial was whether Tilles was a credible
witness. The parties addressed Tilles’ credibility during voir dire, in their opening
statements, during the prosecution’s case in chief, when cross-examining Tilles,
and in their closing arguments. To support their respective positions, the
prosecution admitted evidence to show that Tilles’ testimony was corroborated,
and defense counsel cross-examined Tilles about inconsistencies in his testimony.
Tilles’ criminal history was made known to the jury, and defense counsel
suggested that Tilles was a liar, a sheep in wolves’ clothing, and perhaps the
person who shot Reid. In short, “the issue of [Tilles’] credibility, including his
motivation for testifying and the existence of other possible influences on his
testimony, was explored at length by all three defendants.” Hayes, 2014 WL
1267264, at *8.
Furthermore, before trial, the prosecutor provided the defense attorneys
4,000 minutes of audiotaped conversations between Tilles and the officer in charge
of the case while Tilles was in jail or in prison. The purpose of reviewing the
tapes was to determine whether Tilles was promised anything for his cooperation
in the case and whether the prosecution was withholding evidence of promises
made to Tilles. (10/6/11 Hr’g Tr. at 5-11, ECF No. 6-4 at Pg ID 251-57.)
Petitioner and his co-defendants also were given the name of Tilles’ aunt who
supposedly described Tilles as a liar. (Id. at 11-12, Pg ID 256-57.) It therefore
appears that Petitioner had ample opportunity to conduct discovery before trial
regarding the motivations behind and credibility of Tilles’ testimony.
Although Petitioner now maintains that detectives knew Tilles was
fabricating his testimony, Petitioner has not revealed the source of this information,
except to say that family members continue to investigate his case. Further,
because Tilles’ credibility was attacked thoroughly at trial, Petitioner fails to
demonstrate that the facts, if more fully developed, would entitle him to relief. He
has not shown good cause for discovery. The Court therefore is denying
Petitioner’s motion for discovery (ECF No. 9) and is proceeding to address his
habeas claims, using the following standard of review.
STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for
persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v.
Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the court may not grant a
state prisoner’s application for the writ of habeas corpus unless the state court’s
adjudication of the prisoner’s claims on the merits
(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.
28 U.S.C. § 2254(d).
“[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. Rather, that application
must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000).
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court
rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that statecourt decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S.
19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).
“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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court,
a state prisoner must show that the state court’s ruling on his or her claim “was so
lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
Furthermore, a state court’s determination of a factual issue is presumed to
be correct unless the petitioner rebuts the presumption of correctness with clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); Holland v. Rivard, 800 F.3d
224, 242 (6th Cir. 2015), cert. denied, 136 S. Ct. 1384 (2016). In addition, “review
under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181
Whether Petitioner was denied the right to a public trial
In his first ground for habeas relief, Petitioner alleges that the exclusion of
the general public from his trial while Tilles testified violated Petitioner’s
constitutional right to a public trial. The prosecutor moved to close the courtroom
during Tilles’ testimony because one or more people had threatened Tilles while he
was incarcerated. Petitioner contends that the request was inappropriate because
the prosecutor failed to show that he (Petitioner) or any of the spectators had
Petitioner blames the trial court for failing to (1) inquire into the potential
intimidation and threats, (2) apply the four-part test set forth in Waller v. Georgia,
467 U.S. 39 (1984), (3) consider any alternatives to closing the courtroom, and (4)
make any factual findings. The Michigan Court of Appeals reviewed Petitioner’s
claim for “plain error affecting [Petitioner’s] substantial rights” because Petitioner
did not preserve his claim for appellate review by objecting to the partial closure
during trial. Counsel for one of his co-defendants objected, however.
The Michigan Court of Appeals concluded that there was no merit to
Petitioner’s claim, finding first that the trial judge only partially closed the trial
because the defendants’ parents were allowed to remain in the courtroom during
Tilles’ testimony. Hayes, 2014 WL 1267264, at *6. The appellate court then
The record establishes a substantial reason for the partial
courtroom closure, namely the avoidance of witness
intimidation, and that the closure did not unnecessarily
interfere with defendant Hayes’s right to a public trial.
The nature of the offenses involved a group of friends
who participated in a murder during an attempted
robbery. [Tilles] was with the defendants at the time of
the crimes and decided to testify against them after they
were no longer on good terms. Before [Tilles] testified,
the prosecutor asked the trial court to exclude the public
from the courtroom. The prosecutor explained that
[Tilles], the prosecution’s chief witness, had been
threatened after he started testifying in these cases, and
that he had to be moved from several different prisons
because of the threats. The prosecutor argued that this
history demonstrated a likelihood that [Tilles] could be
inhibited when testifying in open court if the defendants’
parents, family, and friends were present in the
Id. For the reasons that follow, the state court’s decision was neither contrary nor
an unreasonable application of clearly established federal law, and it was not based
on an unreasonable determination of the facts in light of the evidence presented.
The Sixth Amendment to the United States Constitution guarantees that a
criminal defendant, “shall enjoy the right to a . . . public trial.” U.S. Const. amend.
VI. This right is made applicable to the States through the Fourteenth
Amendment. Presley v. Georgia, 558 U.S. 209, 212 (2010) (citing In re Oliver,
333 U.S. 257 (1948)). “The requirement of a public trial is for the benefit of the
accused; that the public may see he is fairly dealt with and not unjustly
condemned, and that the presence of interested spectators may keep his triers
keenly alive to a sense of their responsibility and to the importance of their
functions.” In re Oliver, 333 U.S. at 270 n.25 (quotation marks and citation
omitted). “In addition to ensuring that judge and prosecutor carry out their duties
responsibly, a public trial encourages witnesses to come forward and discourages
perjury.” Waller, 467 U.S. at 46.
In Waller, the Supreme Court held that the complete closure of the
courtroom to members of the public during a pretrial hearing violated the
defendant’s Sixth Amendment right to a public proceeding. The Waller Court
identified four factors a court must consider, and findings a court must make,
before excluding members of the public from the courtroom: (i)”the party seeking
to close the hearing must advance an overriding interest that is likely to be
prejudiced.” (ii) “the closure must be no broader than necessary to protect that
interest,” (iii) “the trial court must consider reasonable alternatives to closing the
proceeding,” and (iv) “it must make findings adequate to support the closure.” Id.
Subsequently in Presley, the Supreme Court reaffirmed that a trial court
must make the required findings under Waller before excluding members of the
public from the jury selection proceeding in a criminal trial. The Court held that
the trial court violated the defendant’s Sixth Amendment right to a public
proceeding when it failed to consider alternatives to the removal of the single
member of the public in attendance before bringing the jury venire into the
courtroom. Id. at 214-15.
Waller and Presley concerned a full, rather than partial, closure of the
courtroom to the public. In Waller, “the court ordered [a] suppression hearing
closed to all persons other than witnesses, court personnel, the parties, and the
lawyers.” 467 U.S. at 42. In Presley, the trial court told a lone courtroom observer
during jury selection that he was not allowed in the courtroom during the
proceedings. 558 U.S. at 210. The Sixth Circuit has held that Supreme Court
caselaw therefore does not clearly establish whether and how Waller’s
requirements apply when the proceedings are only partially closed. Drummond v.
Houk, 797 F.3d 400, 403 (6th Cir. 2015). The court explained:
What was not obvious at the time of the Ohio Supreme
Court’s decision, however—and thus not clearly
established for purposes of the habeas statute—is
whether and how these more specific rules apply in
cases, like this one, where some spectators but not all are
removed from the courtroom. The Supreme Court’s
caselaw does not clearly establish, for example, whether
in such cases the trial court must identify an “overriding”
interest favoring closure, as in Waller, or instead only a
“substantial” interest, as some circuit courts have
inferred, or perhaps even some lesser interest. Likewise
unclear—and thus not clearly established—is whether the
closure must be “narrowly tailored … as the Court
required in Waller, or whether in partial-closure cases a
somewhat looser cut will do. And on the procedural side,
Waller says the court must make “findings adequate to
support the closure.” … But “adequate” is a vague and
therefore elastic term; and for all the Ohio courts knew
here, “adequate” might mean one thing in full-closure
cases, and a different and less rigorous thing when the
closure is only partial.
Id. 2 As the Sixth Circuit noted in another decision, “[n]early all federal courts of
appeals … have distinguished between the total closure of proceedings and
situations in which a courtroom is only partially closed to certain spectators.”
United States v. Simmons, 797 F.3d 409, 413 (6th Cir. 2015).
The Drummond court found that “‘there are reasonable arguments,’ … that
Waller does not apply to partial-closure cases in the wholesale manner that [the
habeas petitioner] says it does.” 797 F.3d at 404 (quoting White v. Woodall, 134 S.
As the Drummond court provided, a full closure “mean[s] a closure where the
entire public, including the media, is excluded from the courtroom.” 467 U.S. at
402. “‘Whether a closure is total or partial depends not on how long a trial is
closed, but rather who is excluded during the period of time in question.’” United
States v. Simmons, 797 F.3d 409, 413 (6th Cir. 2015) (quoting United States v.
Thompson, 713 F.3d 388, 395 (8th Cir. 2013)) (ellipsis removed).
Ct. 1697, 1704 (2014)). According to the court, “[t]he only principle from Waller
that was clearly established for purposes of the partial closure here was the general
one that the trial court must balance the interests favoring closure against those
opposing it.” Id. Finding that the state court “applied that principle” and “did so
reasonably, in the capacious sense of ‘reasonable’ as used for purposes of the
habeas statute[,]” the Sixth Circuit concluded that the petitioner was not entitled to
habeas relief on his public trial claim. Id.
The Michigan Court of Appeals characterized the closure in Petitioner’s case
as a partial one. Hayes, 2014 WL 1267264, at 6. The trial record substantiates this
determination. (See 10/13/11 Trial Tr. at 9-14.) The trial judge allowed the
defendants’ parents to remain in the courtroom during Tilles’ testimony, despite
asking everyone else to leave. (Id. at 14.) Because the closure was partial,
Petitioner’s public trial claim cannot be based on clearly established Supreme
Court law. Drummond, 797 F.3d at 403.
To the extent Waller’s general rule applies regardless of the form of
closure—that “a trial court must balance the interests for and against closure, 467
U.S. at 45—this Court finds that the Michigan courts followed that rule. As the
Michigan Court of Appeals recited, the trial court balanced the defendants’ right to
a public trial against the need to avoid witness intimidation and to protect the
integrity of the judicial system. Hayes, 2014 WL 1267264. The prosecutor
represented to the trial judge that the Michigan Department of Corrections
repeatedly moved Tilles due to threats made against him while he was
incarcerated. (10/13/11 Trial Tr. at 9, ECF No. 6-7 at Pg ID 588; 10/6/11 Hr’g Tr.
at 9, ECF No. 6-4 at Pg ID 255.) The prosecutor also informed the trial judge that
after Tilles came forward in the case, his brother was murdered in a way to suggest
that it was designed to send a message to Tilles to shut his mouth. (10/6/11 Hr’g
Tr. at 9, ECF No. 6-4 at Pg ID 255.)
For the above reasons, the Court concludes that Petitioner is not entitled to
habeas relief based on his public trial claim.
Whether Petitioner was denied the effective assistance of counsel
based on counsel’s failure to object to the closure of the
In a related claim, Petitioner asserts that his trial attorney was ineffective for
failing to object to the closure of the courtroom and for failing to mention the
Supreme Court’s decision in Waller. Petitioner argues that his counsel should have
asked the trial court to make a factual record establishing some connection
between the alleged intimidation and the people in the audience. The Michigan
Court of Appeals determined that defense counsel’s failure to challenge the partial
closure was not objectively unreasonable and that Petitioner failed to establish
ineffective assistance of counsel.
1. Clearly Established Federal Law
The “clearly established Federal law” for claims of ineffective assistance of
counsel is Strickland v. Washington, 466 U.S. 668 (1984). Pinholster, 563 U.S. at
189. Under Strickland, a defendant must show “that counsel’s performance was
deficient” and “that the deficient performance prejudiced the defense.” Strickland,
466 U.S. at 687. “Unless a defendant makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the adversary process that renders
the result unreliable.” Id.
The “deficient performance” prong of the Strickland test requires the
defendant to show “that counsel’s representation fell below an objective standard
of reasonableness.” Id. at 688. The defendant must demonstrate “that counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Id. at 687.
The “prejudice” prong “requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Id. A defendant must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. Although prejudice is presumed when a defendant’s public trial rights are
violated, it is not presumed in an ineffective assistance of counsel claim related to
[W]hen a defendant raises a public-trial violation via an
ineffective-assistance-of-counsel claim, Strickland
prejudice is not shown automatically. Instead, the burden
is on the defendant to show either a reasonable
probability of a different outcome in his or her case or …
to show that the particular public-trial violation was so
serious as to render his or her trial fundamentally unfair.
Weaver v. Massachusetts, __ U.S. __, 137 S. Ct. 1899, 1911 (2017).
In the habeas context, review of an ineffective-assistance-of-counsel claim
“is doubly deferential[.]” Cullen v. Pinholster, 563 U.S. 170, 190 (2011). A
federal habeas court must afford “both the state court and the defense attorney the
benefit of the doubt.” Burt v. Titlow, __ U.S. __, 134 S. Ct. 10, 13 (2013). The
question becomes “not whether counsel’s actions were reasonable,” but “whether
there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Harrington, 562 U.S. at 105.
The Court begins its analysis by noting that counsel for one of the
defendants did object to the closure of the proceedings during Tilles’ testimony,
and the trial court overruled the objection. Thus, there is not a reasonable
probability that the outcome of Petitioner’s trial would have been different if
counsel for Petitioner had objected or joined in the other attorney’s objection to the
prosecutor’s request to close the courtroom. Moreover, as discussed above,
because the trial judge only partially closed the proceedings, there was no basis for
Petitioner’s counsel to argue that the court had to adhere to Waller’s requirements.
For the same reason, the trial judge was not required to make a factual record
establishing a connection between the threats against Tilles and the individuals in
the audience who were removed from the courtroom.
Furthermore, Petitioner has not shown a reasonable probability that the
result of the trial would have been different if his attorney had successfully
objected to the partial closure of the courtroom and the trial court had allowed
everyone present in the courtroom—not only the defendants’ parents—to remain
during Tilles’ testimony. Nor has Petitioner shown that his trial was rendered
fundamentally unfair by the partial closure.
The Court therefore holds that Petitioner is not entitled to habeas relief based
on this ineffective assistance of counsel claim.
Whether the introduction of evidence that Tilles was reluctant to
testify due to threats violated Petitioner’s right to a fair trial
In his third ground for relief, Petitioner claims he was deprived of a fair trial
when the trial judge permitted Tilles to testify that he was the victim of gang
intimidation and was threatened after he became a witness for the prosecution. 3
Petitioner states that this testimony was “outcome-determinative” because Tilles
was the sole witness to inculpate him. (Br. in Supp. of Pet. at 25, ECF No. 1 at Pg
The Michigan Court of Appeals rejected Petitioner’s claim related to
testimony about gang intimidation because it found no evidence in the record
relating to a gang. Hayes, 2014 WL 1267264, at *7. On appeal, Petitioner did not
identify any portion of the record where evidence of his gang membership or
evidence that a gang was the source of any intimidation aimed at Tilles was
presented to the jury. Id. As the Michigan Court of Appeals explained, “although
defendant Hayes was alleged to be a member of the Hustle Boys gang, there was
no evidence that the charged offense was gang related and, accordingly, the trial
court prohibited any references to gang membership at trial.” Id. As for the
unspecified threats against Tilles, the court of appeals concluded that the evidence
was erroneously admitted, but that the error was harmless.
Petitioner refers to “gang intimidation” in the title of this claim; however, he does
not discuss evidence of gang intimidation in his argument in support of this claim.
As discussed infra, the Michigan Court of Appeals found no evidence in the record
related to a gang. Hayes, 2014 WL 1267264, at *7. Petitioner does not argue here
that this finding was incorrect.
1. Clearly Established Federal Law
Errors in the application of state law, especially rulings on the admission or
exclusion of evidence, usually are not questioned in a habeas corpus proceeding,
Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988), because “federal habeas
corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764,
780 (1990). “In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United
States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). A state trial court’s
evidentiary error does not rise to the level of a federal constitutional claim
warranting habeas corpus relief “unless the error render[ed] the proceeding so
fundamentally unfair as to deprive the petitioner of due process under the
Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004)
(citing McGuire, 502 U.S. at 69-70).
In the jury’s absence, the prosecutor sought prior permission from the trial
court to elicit testimony that Tilles was transferred from prison to prison due to
threats and that he remained a willing witness despite the threats. (10/13/11 Trial
Tr. at 140-45, ECF No. 6-7 at Pg ID 720-25.) The prosecutor maintained that the
jury needed to understand Tilles was receiving threats because he was “snitching.”
(Id.) The prosecutor also claimed that the evidence was relevant to Tilles’
credibility. (Id.) Petitioner’s attorney objected to the proposed testimony on the
basis that the threats were not attributed to the defendants. (Id.) The trial court
nevertheless ruled that the prosecutor could elicit the testimony. (Id.)
The prosecutor subsequently asked Tilles whether he had been moved while
he was incarcerated. (Id. at 149, Pg ID 728.) Tilles answered that he had been
transferred to different prisons four or five times due to threats related to his
testifying. (Id. at 149, 151, Pg ID 728, 730.) Tilles stated that, at one point, he
was housed with one of Petitioner’s relatives and had to be moved from the prison.
(Id. at 152, Pg ID 731.) Tilles testified that he was still concerned for his safety.
The Michigan Court of Appeals correctly observed on review of Petitioner’s
claim that there was no evidence introduced to the jury about a gang or that the
threats against Tilles were gang related. Therefore, the only question is whether
Tilles’ testimony about unspecified threats against him deprived Petitioner of due
process and a fair trial. The Michigan Court of Appeals determined that the trial
court should not have allowed Tilles’ testimony about unspecified threats because
it did not serve any of the purposes for which such testimony is allowed under
Michigan law. Hayes, 2014 WL 1267264, at *7. Nevertheless, the court found the
error harmless. Id. at *8.
On habeas review, an issue is harmless unless it had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946)). A habeas court must assess the impact of trial error under
Brecht’s standard regardless of whether “the state appellate court recognized the
error and reviewed it for harmlessness under the ‘harmless beyond a reasonable
doubt’ standard set forth in Chapman [v. California, 386 U.S. 18 (1967)].” Fry v.
Pliler, 551 U.S. 112, 121-22 (2007). “When a federal judge in a habeas
proceeding is in grave doubt about whether a trial error of federal law had
‘substantial and injurious effect or influence in determining the jury’s verdict,’ that
error is not harmless. And, the petitioner must win.” O’Neal v. McAninch, 513
U.S. 432, 436 (1995).
Here, Tilles testified that he had been threatened in prison due to his
testimony against the defendants, but he did not say that Petitioner or Petitioner’s
co-defendants threatened him. Although Tilles did say that he was moved to a
different prison after he was housed with one of Petitioner’s relatives (10/13/11
Trial Tr. at 152), once again, he did not say that Petitioner was behind the threats
or even that Petitioner’s relative had threatened him. The implication may have
been that Petitioner’s relative threatened Tilles, but there was no evidence that
Petitioner was involved. As such, this did not amount to evidence of Petitioner’s
other bad acts, as he argues. Moreover, other evidence was introduced to show
that, before the threats were made, Tilles did not feel safe after he implicated the
defendants in the shooting. (See id. at 123, Pg ID 702; 10/17/11 Trial Tr. at 91,
ECF No. 6-8 at Pg ID 895.)
For these reasons, the Michigan Court of Appeals properly concluded that
the evidence was harmless. It is unlikely that Tilles’ testimony about being
threatened had a substantial and injurious effect or influence on the jury’s verdict.
Whether Petitioner was denied a fair trial due to the admission of
evidence concerning his mug shot and an unrelated charge
In his fourth ground for relief, Petitioner claims that testimony about his
mug shot and an unrelated arrest for disorderly conduct deprived him of due
process and a fair trial. The charge of disorderly conduct was based on Petitioner
being intoxicated and sleeping outside on a bench in a recreation area in Westland,
Michigan. (10/18/11 Trial Tr. at 142-44, ECF No. 6-9 at Pg ID 1105-07.)
Petitioner contends that his arrest on the disorderly conduct charge and evidence of
the mug shot were irrelevant and inadmissible for the following reasons: (1) there
was no need to attempt to impeach him, as he did not testify; (2) the arrest was not
the equivalent of a conviction; and (3) the probative value of the evidence was
substantially outweighed by the danger of unfair prejudice.
The Michigan Court of Appeals reviewed Petitioner’s claim for “plain error”
because he did not preserve the issue by objecting to the testimony at trial. Hayes,
2014 WL 1267264, at *9. The court then concluded that there was no plain error
because the evidence was necessary to explain how the arresting officer discovered
Petitioner’s identity after Petitioner gave a false name and the fact that there was
an outstanding homicide warrant for Petitioner related to the conduct for which he
was on trial. Id. at *8-9. The court found Petitioner’s use of a false name relevant
to his consciousness of guilt. Id. at *9.
As previously explained, errors in the application of state law, especially
rulings on the admission or exclusion of evidence, generally are not cognizable on
habeas corpus review. Cooper, 837 F.2d at 286. A state trial court’s evidentiary
error rises to the level of a federal constitutional claim warranting habeas corpus
relief only if the error rendered the proceeding so fundamentally unfair as to
deprive the petitioner of due process. McAdoo, 365 F.3d at 494.
For the following reasons, it was not fundamentally unfair to elicit testimony
about Petitioner’s mug shot and arrest for disorderly conduct. First, the disputed
evidence explained how Petitioner happened to be found, arrested, and identified
more than two years after the fatal shooting of Reid. (10/18/11 Trial Tr. at 140-46,
ECF No. 6-9 at Pg ID 1102-08.) Evidence of other acts is admissible to provide
background information and where the other acts are inextricably intertwined with
the charged offense or the evidence is necessary to complete the story on the
charged offense. United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000).
Here, the evidence was necessary to complete the story on the charged offenses.
Second, the reference to the mug shot was fleeting, and even though the
primary inadmissible evidence conveyed by a mug shot is that the individual was
previously arrested, Matthews v. Abramajtys, 319 F.3d 780, 789 (6th Cir. 2003),
the arresting officer did not provide any details about Petitioner’s criminal history.
Third, Petitioner’s attorney stipulated, for purposes of the felon-inpossession charge, that Petitioner had a prior felony conviction. (10/20/11 Trial
Tr. at 73; ECF No. 6-11 at Pg ID 1350.) The mug shot evidence was “basically
inconsequential,” given that evidence of a prior conviction was previously made
known to the jurors in a proper manner. Matthews, 319 F.3d at 789.
Finally, there is not a substantial probability that testimony about the mug
shot and arrest for disorderly conduct had a substantial and injurious effect on the
jury’s verdict. In the state appellate court’s words, “there was no reasonable
likelihood that the jury would use evidence of defendant Hayes’s arrest for a
transitory disorderly conduct offense to conclude that he must be guilty of the
dissimilar and much more serious charged offenses, including murder.” Hayes,
2014 WL 1267264, at *9 (emphasis omitted).
The evidence was introduced for a proper reason, and any error in
introducing the evidence was harmless. Therefore, Petitioner is not entitled to
relief based on his claim about the mug shot and his arrest for disorderly conduct.
Whether Petitioner was denied notice of the “intent to kill”
In his fifth ground for relief, Petitioner claims he was denied his
constitutional right to notice of the charges against him. Petitioner contends that
he was not adequately informed of the “intent to kill” element of felony murder
until the end of the trial when the trial court instructed the jury on the elements of
the charge.4 Petitioner points out that the “intent” element of the charge was not set
forth in the criminal information (charging document) or in the statute.
The Michigan Court of Appeals reviewed this claim for “plain error”
because Petitioner did not object to the information, nor raise the issue at trial.
The jury instruction on felony-murder stated that the second element of the crime
was the intent to kill, the intent to do great bodily harm, or the intent to create a
high risk of death or great bodily harm, knowing that death or such harm would be
the likely result. (10/21/11 Trial Tr. at 51; ECF No. 6-12 at Pg ID 1497.)
Hayes, 2014 WL 1267264, at *10. The court concluded that the claim lacked
merit, finding that “[t]he information, coupled with the preliminary examination,
was constitutionally sufficient to place defendant Hayes on notice of the charges
against him.” Id. The court pointed out that Hayes also was charged with firstdegree premeditated murder, for which the information specifically alleged that he
acted “with the intent to kill[.]” Id. Further, the prosecutor argued at the
preliminary examination that the fact “Hayes shot a gun multiple times toward
Reid’s vehicle established that he had the ‘clear’ intent to kill.” Id.
1. Clearly Established Federal Law
The Sixth Amendment to the United States Constitution provides that, “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be informed of
the nature and cause of the accusation.” U.S. Const., amend. VI. The Sixth Circuit
has explained this right, as applied to the States through the Fourteenth
Amendment, as follows:
The due process clause of the Fourteenth Amendment
mandates that whatever charging method the state
employs must give the criminal defendant fair notice of
the charges against him to permit adequate preparation of
his defense. In Re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222,
20 L.Ed.2d 117 (1968); Blake v. Morford, 563 F.2d 248
(6th Cir. 1977); Watson v. Jago, 558 F.2d 330, 338 (6th
Cir. 1977). This requires that the offense be described
with some precision and certainty so as to apprise the
accused of the crime with which he stands charged. Such
definiteness and certainty are required as will enable a
presumptively innocent man to prepare for trial. Combs
v. Tennessee, 530 F.2d [695, 698 (6th Cir. 1976)].
Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984).
Petitioner argues that, if he had received adequate notice of the “intent to
kill” element of felony murder, his trial strategy could have revolved around Tilles’
testimony that there was no intent to kill the victim, only an intent to rob. The
Michigan Court of Appeals noted on review of Petitioner’s claim, however, that in
addition to felony-murder, Petitioner was charged with premeditated murder, and
the felony complaint specifically alleged that Petitioner did “‘deliberately, with the
intent to kill … murder’ Reid.” Hayes, 2014 WL 1267264, at *10 (emphasis added
in Hayes); (see also Felony Complaint, ECF No. 1 at Pg ID 83.) Further, as the
Michigan Court of Appeals pointed out, one of the issues addressed at Petitioner’s
preliminary examination was whether there was sufficient evidence that he
possessed the intent to kill. (8/12/11 Hr’g Tr. at 55-59; ECF No. 6-2 at Pg ID 23235.) Additionally, during voir dire, the trial court stated that Petitioner was
charged in count two with “deliberately and with intent to kill and with
premeditation kill and murder Ms. [sic] Reid.” (10/11/11 Trial Tr. at 19; ECF No.
6-5 at Pg ID 283.) Furthermore, “‘it may be appropriate to presume that in most
cases defense counsel routinely explain the nature of the offense in sufficient detail
to give the accused notice of [the offense charged].” Marshall v. Lonberger, 459
U.S. 422, 436 (1983) (quoting Henderson v. Morgan, 426 U.S. 637, 647 (1976)).
For these reasons, the Court finds that Petitioner was adequately advised of
the “intent to kill” element and had an adequate opportunity to defend against the
charges. Therefore, habeas relief is not warranted on this claim.
Whether the prosecutor engaged in misconduct
Petitioner argues in his sixth ground for relief that the prosecutor engaged in
misconduct by failing to provide adequate notice that she intended to introduce
testimony about Petitioner’s mug shot and arrest on the unrelated charge of
disorderly conduct. Petitioner contends that the lack of notice violated Michigan
Rule of Evidence 404(b)(2) and his fundamental right to due process. The
Michigan Court of Appeals determined that this claim was not preserved for
appellate review and that Petitioner had not demonstrated “plain error” affecting
his substantial rights. Hayes, 2014 WL 1267264, at *10.
1. Clearly Established Federal Law
“Claims of prosecutorial misconduct are reviewed deferentially” in a habeas
corpus proceeding. Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004). “[T]he
touchstone of due process analysis in cases of alleged prosecutorial misconduct is
the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips,
455 U.S. 209, 219 (1982). The relevant question is whether the prosecutor’s
conduct infected the trial with such unfairness as to make the resulting conviction a
denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986). The
Sixth Circuit recently explained the difficulty of establishing prosecutorial
misconduct in the habeas context:
Because th[e] standard is “a very general one,” courts
have considerable leeway in resolving such claims on a
case-by-case basis. Parker v. Matthews, 567 U.S. 37, 48,
132 S. Ct. 2148, 183 L.Ed.2d 32 (2012) (per curiam).
That leeway increases in assessing a state court’s ruling
under AEDPA. [The federal habeas court] “cannot set
aside a state court’s conclusion on a federal
prosecutorial-misconduct claim unless a petitioner cites
… other Supreme Court precedent that shows the state
court’s determination in a particular factual context was
unreasonable.” Trimble [v. Bobby, 804 F.3d 767, 783
(6th Cir. 2015)].
Stewart v. Trierweiler, 867 F.3d 633, 638-39 (6th Cir. 2017).
Under Michigan Rule of Evidence 404(b)(2), the prosecution in a criminal
case must provide reasonable notice of its intent to introduce evidence of other
crimes, wrongs, or acts. The notice must be provided before trial “or during trial if
the [trial] court excuses pretrial notice on good cause shown.” Id.
The Michigan Court of Appeals determined on review of Petitioner’s claim
that Rule 404(b)(2) was not implicated in Petitioner’s case because evidence of
Petitioner’s mug shot and arrest for disorderly conduct was not offered as evidence
of other crimes, wrong, or acts. Instead, it was admitted as context for the charged
crimes and to explain how the police were able to discover that Petitioner had used
a false name at his arrest. The state court’s interpretation of state law, and Rule
404(b) in particular, binds this Court sitting in habeas corpus. Bradshaw v. Richey,
546 U.S. 74, 76 (2005). Even if Rule 404(b)(2) applied to Petitioner’s case, the
alleged violation of the Michigan Rules of Evidence is not a cognizable claim on
federal habeas review. Hall v. Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009).
Moreover, for the reasons discussed in subsection D, the introduction of this
evidence did not infect the trial with such unfairness as to make the resulting
conviction a denial of due process. See Darden, supra.
The Court therefore declines to grant Petitioner relief on this claim.
Whether Petitioner was denied the effective assistance of trial
counsel due to counsel’s failure to object, request a curative jury
instruction, and move for a mistrial
In his seventh and final ground for relief, Petitioner alleges additional claims
about his trial attorney. He claims that the attorney’s performance was deficient
because the attorney failed to: (1) object to testimony about Petitioner’s mug shot
and arrest for disorderly conduct; (2) object to the jury instruction on the “intent to
kill” element of felony murder; (3) request a cautionary jury instruction regarding
Petitioner’s criminal history; and (4) move for a mistrial when the prosecutor
introduced testimony regarding Petitioner’s mug shot and arrest for disorderly
conduct. Petitioner maintains that there is a reasonable probability the result of the
proceeding would have been different had counsel objected. More specifically,
Petitioner argues: (1) if counsel objected to the testimony about his mug shot and
arrest for disorderly conduct, the jury would not have been aware of his criminal
history; (2) if counsel had objected to the lack of notice on the “intent to kill”
element, he could have prepared a different defense; (3) if counsel requested a
curative jury instruction, the jury would have had a comprehensive understanding
on how to evaluate his criminal history; and (4) if counsel had moved for a
mistrial, Petitioner would not have been convicted. The Michigan Court of
Appeals determined that trial counsel was not ineffective. Hayes, 2014 WL
1267264, at *11.
1. Clearly Established Federal Law
The Court previously outlined in subsection B the applicable standard for
reviewing ineffective assistance of counsel claims, including the double deference
afforded counsel’s performance on habeas review.
For the reasons discussed, Petitioner’s underlying claims about his arrest and
mug shot and the “intent to kill” element of felony murder lack merit. Therefore,
Petitioner’s trial counsel was not ineffective for failing to move for a mistrial, for
failing to object to testimony about Petitioner’s mug shot and his arrest for
disorderly conduct, or for failing to request a cautionary jury instruction regarding
Petitioner’s criminal history. Likewise, defense counsel was not ineffective for
failing to object to the jury instruction on the “intent to kill” element of felony
An objection or motion for a mistrial related to Petitioner’s mug shot and
arrest for disorderly conduct would have been meritless, and “[o]mitting meritless
arguments is neither professionally unreasonable nor prejudicial.” Coley v. Bagley,
706 F.3d 741, 752 (6th Cir. 2013). Therefore, the state appellate court’s finding
that counsel was not ineffective was neither contrary to, nor an unreasonable
application of, Strickland, and habeas relief is not warranted on Petitioner’s claim.
CONCLUSION, CERTIFICATE OF APPEALABILITY, AND LEAVE
TO APPEAL IN FORMA PAUPERIS
For the reasons given above, this Court concludes that Petitioner is not
entitled to habeas relief based on the claims asserted. Before Petitioner may appeal
the Court’s decision, he must obtain a certificate of appealability. See Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may issue “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El,
537 U.S. at 327.
Aside from Petitioner’s claim related to the introduction of evidence about
threats to Tilles, reasonable jurists could not debate the Court’s assessment of
Petitioner’s claims, nor conclude that the issues deserve encouragement to proceed
further. There is no clearly established Supreme Court precedent applicable to the
partial closure of Petitioner’s trial during Tilles’ testimony. Petitioner fails to show
that his counsel’s failure to object to the closure prejudiced his defense. The trial
court properly admitted evidence of Petitioner’s mug shot and disorderly conduct
charge to establish Petitioner’s consciousness of guilt and because the evidence
was part of the background of the charges against him. The prosecutor did not
violate state law in connection with the introduction of this evidence. In any event,
any violation of Michigan Rule of Evidence 404(b) did not infect Petitioner’s trial
with such unfairness as to make the resulting conviction a denial of due process.
Petitioner was provided notice of the intent to kill element. Finally, Petitioner’s
ineffective assistance of counsel claim based on the failure to object to the claimed
errors lacks merit because the underlying claims lack merit.
With respect to evidence that Tilles was threatened, reasonable jurists could
disagree as to whether the introduction of this evidence had a “substantial and
injurious effect or influence in determining the jury’s verdict.” The Court
therefore is granting Petitioner a certificate of appealability with respect to his
claim that he was denied a fair trial due to the admission of this evidence. For this
reason, the Court also finds that an appeal could be taken in good faith and is
granting him leave to proceed in forma pauperis on appeal if he appeals this
IT IS ORDERED that Petitioner’s application for the writ of habeas corpus
(ECF No. 1) is DENIED.
IT IS FURTHER ORDERED that Petitioner’s motion for discovery (ECF
No. 9) is DENIED.
IT IS FURTHER ORDERED that the Court GRANTS Petitioner a
certificate of appealability with respect to the following issue, only:
Whether Petitioner was deprived a fair trial when the trial
court admitted testimony that a key witness, Brian Tilles,
was reluctant to testify due to threats.
Petitioner is DENIED a certificate of appealability with respect his remaining
IT IS FURTHER ORDERED that Petitioner may proceed in forma
pauperis on appeal.
Dated: January 9, 2018
s/Linda V. Parker
U.S. District Court Judge
I hereby certify that a copy of the foregoing document was served upon counsel of
record on January 9, 2018, by electronic and/or ordinary mail.
Acting in the absence of Richard 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?