Mitchell v. MacLaren

Filing 16

OPINION and ORDER Denying the Petition for Writ of Habeas Corpus and Granting In Part the Certificate of Appealability. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VAUGHN MITCHELL,
Petitioner,

Case No.: 15-cv-10356
Honorable Linda V. Parker

v.
DUNCAN MACLAREN,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND GRANTING IN PART THE
CERTIFICATE OF APPEALABILITY
Vaughn Mitchell (“Petitioner”) confined at the Kinross Correctional Facility
in Kincheloe, Michigan, through counsel, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Mitchell challenges his convictions for firstdegree felony murder, first-degree premeditated murder, carjacking, and
possession of a firearm during the commission of a felony. For the reasons stated
below, the petition for a writ of habeas corpus is denied.
I.

Background
Mitchell’s convictions arise from a shooting in Detroit that resulted in the

death of Michael Jorden. The Michigan Court of Appeals described the
circumstances leading to Mitchell’s convictions as follows:

Defendant’s convictions arose out of the June 21, 2008, shooting
death of Michael Jorden during an apparent dispute over a gun and
associated carjacking. Defendant was tried jointly with his father,
codefendant Vaughn Brown, before separate juries. Brown was not a
part of defendant’s life growing up, and they had a strained
relationship. They had reconnected a few years before the shooting.
At the joint trial, Ellis Odum testified that he lived across the street
from defendant. On the evening of the shooting, Odum saw several
young people socializing on the street, including the victim and
defendant. Brown was sitting in his van, which was parked on the
street. Brown’s brother testified that the rear window of the van was
darkly tinted and one could not see through it at night. Odum testified
that later that night, when he went inside his house, he heard
approximately six gunshots. When it became quiet, Odum went
outside and saw someone “moving from the field [vacant lot] and
coming down toward the street light.” Odum eventually recognized
the person as defendant. In defendant’s hand was a .32 or .38 shortbarrel revolver, which he then placed in his pocket. When Odum
asked him what was going on, defendant said, “sh-h-h, it’s me.”
Defendant then crossed the street and entered the passenger side of
Brown’s van. Odum continued:
Upon getting into the passenger side of his father’s
vehicle, I’m watching, then I conversate, he pulls
up to in front of my house, no headlights. Upon
pulling up in front of my house, I can hear—we
both heard—you can hear noise coming from the
left. At that point in time, they cut out their
headlights. I look, you can see the [victim’s] body,
like, near the curb, you see him coming toward the
curb. He pulled right to him, to the side of him,
and he reached out of the driver’s side and shot
him about 5 times.
Odum explained that Brown was in the driver’s seat and defendant
was in the passenger seat. The driver’s side of the van pulled up
alongside the victim’s body, which was on Odum’s side of the street.
Odum believed that Brown reached out of the van and shot the victim.
He could not determine the type of gun in Brown’s hand. After
2

“firing shots into him, they went to go speed off, and they got to the
corner, and he stopped, and [defendant] got out, he ran back to his
body.” Defendant had a gun. He looked around, took the contents of
the victim’s pockets, “ran across the street and jumped and got into
the [victim’s] vehicle and drove off in the vehicle.”
Odum testified that he was aware the victim owned a revolver like the
one he saw in defendant’s hand. Approximately a week before the
shooting, defendant had the victim’s gun and showed it to Odum. The
victim wanted his gun back or $150. Odum believed that defendant
had agreed to pay and that Brown was bringing defendant the money.
Detective Sergeant William Tyrrell, a firearms examiner with the
State Police Crime Laboratory, testified at trial as a ballistics expert.
Two bullets were recovered from the victim’s body. Detective
Sergeant Tyrrell concluded, based on the rifling of the bullets, that the
bullets were fired by two different weapons. The diameter of the
bullets indicated that the weapons were a nine millimeter, a 357, or a
38 special. There were no weapons to examine.
Detective Dale Collins interviewed defendant after his arrest. The
videotaped interview was admitted at the joint trial and played for
defendant’s jury.1 During the interview, defendant stated that in
March or April 2008, he owned a Smith & Wesson long-nosed 38
special handgun, and that he and the victim had “done some bullshit
together.” Defendant asked the victim to keep his gun because he did
not want it in his vehicle. When defendant asked for the gun to be
returned, the victim offered an excuse for not having it. Sometime
later, the victim came across a different .38–caliber gun and gave it to
his brother Mark, who had apparently partnered with defendant to sell
marijuana. Mark then gave the gun to defendant. A few days later,
the victim asked for the gun, but defendant refused. Later, when the
victim again asked for the gun, defendant asked the victim for his own
gun in return.
1

The videotape was not played for Brown’s jury.

According to defendant, the victim had promised Brown2 the gun in
defendant’s possession as payment for a debt. On the day of the
shooting, when Brown asked defendant for the gun, defendant said the
3

victim no longer had a gun to give. Brown called the victim. That
night, defendant was outside with a group of people, and had the gun
on him, when the victim drove up demanding the gun. Defendant told
the victim to “chalk that up baby—tit for a tat—where mine at.” The
victim disagreed and demanded $150 for his gun. Defendant walked
away and explained the situation to Brown. He and Brown went to
the store together, and Brown suggested that defendant fight the
victim. Defendant said he “don’t really know how to fight for fun”
and “[i]f I get into a fist fight one of us have to go.” Brown then
suggested that defendant hit the victim in the knees with a club or a
bat to let him know that he was serious. Defendant planned to beat the
victim with an old tie rod.
2

During the interview, defendant declined to identify Brown,
referring to him as John Doe.
When defendant and Brown returned from the store, they parked
further down the street. The victim approached Brown’s van and
again demanded money or his gun. Defendant stepped out of the van,
leaving the gun inside. When the victim reached for the gun,
defendant hit him with the tie rod and hit him again as he was trying
to run away. The victim ran toward a vacant lot, “leaking out of his
head,” and his pants fell down as he was running. Defendant ran after
him because he believed that the victim was going to retrieve his AK–
47, and defendant began “beating this muthafucka brains in with this
gun.” At that point, the victim was on the ground, near the curb.
After the beating, defendant looked through the victim’s pockets and
took “maybe ten dollars.” He then walked back to Brown’s van, still
holding the gun. He entered the van, and they “pulled up the street.”
Defendant “heard some shots fired” and then jumped out of the van.
He denied shooting the victim and taking the victim’s keys or car. He
did not know who took the car.
At the joint trial, defendant testified on his own behalf, admitting the
truth of most of his statement to the police. He admitted beating the
victim, but denied shooting him or taking his car. Defendant testified
that Brown shot the victim. According to defendant, after he beat the
victim and entered Brown’s van, Brown drove to where the victim

4

was lying and shot him several times. Defendant jumped out of the
van and ran away.
Brown testified [before both his and Mitchell’s juries] that he did not
know the victim. On the night of the shooting, defendant called him.
He believed that defendant was going to ask him for money, so he
drove his van to the street where defendant lived. Defendant
approached the van and asked whether you are “even” with another
person if the other person loses something of yours and you tell them
that you lost something of theirs. Later, defendant spoke to the victim
next to the van and Brown overheard the victim say that he wanted
money for his “piece.” Defendant then grabbed an item from the floor
of the van and started chasing the victim, hitting him with the item.
Defendant then shot the victim five times. Brown drove his van
slowly up the street. He saw the victim on the ground and defendant
running toward the van, flagging him down. Defendant got in the
van. But when Brown began driving, defendant asked him to pull over
to the other side of the street and stop. Defendant then leaned across
Brown, reached out the driver’s window, and shot the victim five
more times, holding the gun with both hands. Brown drove around the
corner, stopped, and then defendant jumped out and disappeared.
Brown’s jury was unable to reach a verdict, and he was later retried
and acquitted. Defendant was convicted and sentenced as indicated.
People v. Mitchell, No. 293284, 2011 WL 5064301, at *1-3 (Mich. Ct. App.
Oct. 25, 2011).
After Mitchell’s arrest, he participated in a videotaped interview concerning
the shooting with Detroit Police Detective Dale Collins. Defense counsel filed a
pre-trial motion to suppress Mitchell’s custodial statements. The trial court denied
the motion. (ECF No. 10-4 at Pg ID 408-413.) Following a jury trial in Wayne
County Circuit Court, Petitioner was convicted and sentenced as follows: two
concurrent terms of life imprisonment for each murder conviction, 15 to 25 years’
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imprisonment for the carjacking conviction, and two years’ imprisonment for the
felony-firearm conviction.
Mitchell filed an appeal of right in the Michigan Court of Appeals, raising
the following claims: (i) Mitchell’s custodial statement should have been
suppressed because Mitchell’s right to have an attorney present before and during
questioning was not made clear to him; (ii) mid-stream Miranda warnings violated
Mitchell’s rights to remain silent and to an attorney; (iii) Mitchell’s jury should not
have been allowed to hear testimony of co-defendant; (iv) bullets should have been
excluded from evidence because a chain of custody was not properly established;
(v) prosecutor engaged in several instances of misconduct; (vi) newly-discovered
evidence showed that a police sergeant committed perjury regarding the chain of
custody of the bullets; (vii) jury instructions failed to convey necessary intent
element; (viii) defense counsel was ineffective and a Ginther hearing should be
ordered; (ix) cumulative effect of alleged errors denied Mitchell a fair trial; and
(x) convictions for first-degree premeditated murder and first-degree felony murder
of one victim violated double jeopardy. The Michigan Court of Appeals denied
relief on Petitioner’s claim that the prosecutor failed to establish a proper chain of
custody for the bullets. The court remanded the case for an evidentiary hearing
“regarding defendant’s interaction with the police and the totality of circumstances
surrounding the police’s interrogation of defendant” and the claim that a police

6

sergeant gave perjured testimony regarding the chain of custody of the bullets.
Mitchell, 2011 WL 5064301, at *13. The Michigan Court of Appeals declined to
address the additional issues raised by Mitchell until after proceedings on remand
were completed. Id.
The State appealed the decision to the Michigan Supreme Court. The
Michigan Supreme Court reversed the court of appeals’ grant of a remand and
found no Miranda violation. People v. Mitchell, 822 N.W. 2d 224, 224 (Mich.
2012). The court also remanded the case to the court of appeals to address the
claims it previously declined to review. Id. at 225. On remand, the Michigan
Court of Appeals denied Petitioner’s remaining claims, with the exception of his
double jeopardy claim. People v. Mitchell, No. 293284, 2013 WL 951192, at *7
(Mich. Ct. App. Feb. 26, 2013). The Michigan Court of Appeals held that
Mitchell’s convictions and sentences for first-degree premeditated murder and
first-degree felony murder arising out of the death of a single victim violated the
Fifth Amendment Double Jeopardy Clause. Id. The court of appeals remanded the
case for modification of the Judgment of Sentence to reflect a single conviction
and sentence for first-degree murder supported by two different theories. Id.
Mitchell, through counsel, then filed this habeas corpus petition. He raises
these claims:
I.

The Michigan courts unreasonably applied clearly established
federal law and unreasonably determined the facts in upholding
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Mr. Mitchell’s convictions where the prosecution was permitted
to offer evidence that Mr. Mitchell had made incriminating
statements after he had invoked his right to counsel, where Mr.
Mitchell asked the interrogating officer if an attorney could be
appointed to be with him during questioning, and the officer
affirmatively told him that an attorney would only be appointed
for him “down the line,” when the case went to court, thereby
failing to reasonably convey to Mr. Mitchell his right to have an
attorney present both before and during questioning; thus
necessitating the issuance of the writ.
II.

The Michigan courts unreasonably applied clearly established
federal law and unreasonably determined the facts in upholding
Mr. Mitchell’s convictions where the prosecution was permitted
to offer evidence that Mr. Mitchell had made incriminating
statements which were intentionally elicited from him
following an earlier un-Mirandized interrogation during which
Mr. Mitchell made incriminating statements, and which took
place prior to taking Mr. Mitchell to a room where a video
camera recorded the communication of purported Miranda
warnings and a lengthy interrogation, and where this “midstream” recitation of the Miranda warnings violated Mr.
Mitchell’s rights to remain silent and his right to counsel; thus
necessitating the issuance of the writ.

III.

The Michigan courts unreasonably applied clearly established
federal law and unreasonably determined the facts in upholding
Mr. Mitchell’s convictions where the trial court erroneously
instructed the jury that it could convict Mr. Mitchell of firstdegree premeditated murder if it found that his co-defendant
intended to kill the decedent and also committed the acts that
resulted in death, which failure deprived the defendant of his
right to a properly instructed jury and his right to a fair trial;
thus necessitating the issuance of the writ.

IV.

The Michigan courts unreasonably applied clearly established
federal law and unreasonably determined the facts in
upholding Mr. Mitchell’s convictions where the trial
prosecutor deprived Mr. Mitchell of his federal constitution[al]

8

rights to due process and a fair trial under U.S. Const. Ams. V,
XIV, with severe, outcome-determinative misconduct.
V.

This Court should preside over an evidentiary hearing where
the Michigan courts unreasonably applied clearly established
federal law and unreasonably determined the facts in upholding
Mr. Mitchell’s convictions where his trial counsel failed to
request an evidentiary hearing regarding his un-Mirandized
interrogation; failed to object to prosecutorial misconduct; and
failed to object to a serious instructional error, which failures
constituted a deficient performance which deprived Mr.
Mitchell of a fair trial.

VI.

The Michigan courts unreasonably applied clearly established
Federal law and unreasonably determined the facts in upholding
Mr. Mitchell’s convictions where, the state courts failed to
fi[n]d that, even if no single assignment of error is sufficient for
reversal, the totality of trial errors denied Mr. Mitchell a fair
trial.

VII. Assuming arguendo that the standard of review set forth in 28
USC § 2254([d])(1) precludes relief in this action, the Court
should not apply that standard because it is unconstitutional.
II.

Standard
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law, or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405 (2000) (O’Connor, J., concurring). An “unreasonable
application” asks the question of whether the application of clearly established
federal law is objectively reasonable. Id. at 409. A federal habeas court may not
“issue the writ simply because that court concludes in its independent judgment
that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 411.
The AEDPA “imposes a highly deferential standard for evaluating statecourt rulings, and demands that state-court decisions be given the benefit of the
doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotations omitted). A
“state court’s determination that a claim lacks merit precludes federal habeas relief
so long as fairminded jurists could disagree on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation omitted).
The Supreme Court has emphasized “that even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Id. at 102.
10

Pursuant to section 2254(d), “a habeas court must determine what arguments or
theories supported or . . . could have supported, the state court’s decision; and then
it must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision” of the
Supreme Court. Id. Although § 2254(d), as amended by the AEDPA, does not
completely bar federal courts from re-litigating claims that have previously been
rejected in the state courts, a federal court may grant habeas relief only “in cases
where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with” the Supreme Court’s precedents. Id. A “readiness to
attribute error [to a state court] is inconsistent with the presumption that state
courts know and follow the law.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
A state court’s factual determinations are presumed correct on federal
habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this
presumption of correctness only with clear and convincing evidence. Id.
Moreover, for claims that were adjudicated on the merits in state court, habeas
review is “limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).

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III.

Discussion
A.

Evidentiary Hearing

Mitchell seeks an evidentiary hearing on his claims that his custodial
statement should have been suppressed and that his trial attorney was ineffective.
The Court finds that Mitchell is not entitled to an evidentiary hearing because the
state court decided these claims on the merits.
In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court held that a
federal court’s review of a state court decision “[u]nder § 2254(d)(1) is limited to
the record that was before the state court that adjudicated the claim on the merits”
because the federal habeas scheme was designed to leave “primary responsibility
with the state courts.” Id. at 181-82. Consequently, “[i]t would be contrary to that
purpose to allow a petitioner to overcome an adverse state-court decision with new
evidence introduced in a federal habeas court and reviewed by that court in the first
instance effectively de novo.” Id. at 182. Put simply, “review under § 2254(d)(1)
focuses on what a state court knew and did.” Id. Where, as here, a state court has
issued a decision on the merits, “district courts are precluded from conducting
evidentiary hearings to supplement existing state court records.” Ballinger v.
Prelesnik, 709 F. 3d 558, 561 (6th Cir. 2013).

12

B.

Claims I & II: Admission of Petitioner’s Custodial Statement

Following his arrest, Mitchell gave a statement to police confessing to being
at the scene of the murder, beating the victim, and taking some money and drugs
from the victim’s pocket, but denying shooting the victim or taking his vehicle.
Defense counsel filed a pretrial motion to suppress the statement, which was
denied. This statement was videotaped and played for Mitchell’s jury. A
transcript of the interview was also admitted into evidence. Mitchell’s first two
claims for relief center on the admission of this statement. He argues that the
statement should have been suppressed because it was tainted by misleading advice
from the interrogating officer concerning Mitchell’s right to the appointment of
counsel. He also argues that the statement should have been suppressed because of
a previous interrogation that occurred before police advised Mitchell of his
constitutional rights. Mitchell makes reference in his first point heading to a claim
that his incriminating statements came after he invoked his right to counsel. He
does not reference or support this claim anywhere else in the petition or brief in
support. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived. It is not sufficient for a
party to mention a possible argument in the most skeletal way, leaving the court to
. . . put flesh on its bones.” McPherson v. Kelsey, 125 F. 3d 989, 995-96 (6th Cir.
1997) (alteration in original) (quoting Citizens Awareness Network, Inc. v. U.S.

13

Nuclear Regulatory Comm’n, 59 F. 3d 284, 293-94 (1st Cir. 1995)). This claim is
waived.
1. State Court Proceedings
On September 10, 2008, Detective Dale Collins interviewed Mitchell about
the shooting death of Michael Jorden. Mitchell gave a videotaped statement
admitting to beating Jorden, but denying shooting him or taking his vehicle. This
was not the first conversation between Mitchell and Collins. Respondent argues
that it was the second. Mitchell maintains that he was interrogated three times and
only advised of his Miranda rights before the third, videotaped interrogation.
Detective Collins testified that the un-taped conversation lasted
approximately five minutes and that he informed Mitchell during that conversation
that he knew Mitchell had been involved in a homicide and that there was an
eyewitness to the shooting. (ECF No. 10-10 at Pg ID 937.) During this preMiranda conversation, Detective Collins asked Mitchell if he had any involvement
in the homicide. (Id.) Detective Collins testified that, “when [Mitchell] started
talking about that he had some involvement, that’s when I took him upstairs and
gave him his Constitutional Rights.” (Id.)
Mitchell claims that three interviews occurred in total. He claims that he
was arrested on September 9, 2008 and detained overnight. The next day,
Detective Collins interrogated him for approximately thirty minutes, without

14

advising him of his Miranda rights. Mitchell, 2011 WL 5064301, at *7; (ECF No.
1-2 at Pg ID 167-68.) During that interrogation, Mitchell denied any knowledge of
the shooting. (ECF No. 1-2 at Pg ID 168.) According to Mitchell, later that same
day, Detective Collins again interrogated Mitchell and attempted to solicit
information by telling Mitchell that police now had enough information to charge
him with first-degree premeditated murder. (Id.) Mitchell also claims not to have
been informed of his Miranda rights prior to this interrogation. (Id.) He initially
denied any knowledge of the incident, but then admitted “there was an incident
about a gun” before the day of the shooting. (Id. at 169.) He also admitted that he
was on the street with a group of people just before the shooting. (Id. at 169-70.)
In response to further questions from Detective Collins, Mitchell said he would tell
Detective Collins the whole story, from the beginning. (Id. at 170.) At that point,
Detective Collins took Mitchell to an interrogation room and advised him of his
Miranda rights. (Id.)
The videotape shows Mitchell receiving, reading, and signing the
Constitutional Rights Certificate of Notification. The Certificate of Notification
provided, in part:
1.
I have a right to remain silent and that I do not have to
answer any questions put to me or make any statements.
2.
Any statement I make or anything I say will be used
against me in a Court of Law.

15

3.
I have the right to have an attorney (lawyer) present
before and during the time I answer any questions or make any
statement.
4.
If I cannot afford an attorney (lawyer) one will be
appointed for me without cost by the Court prior to any questioning.
5.
I can decide at any time to exercise my rights and not
answer any questions or make any statement.
(ECF No. 1-2 at Pg ID 163.)
The videotape and transcript (both of which were admitted at trial) show that
the following exchange occurred between Detective Collins and Mitchell while
Mitchell reviewed the form:
Collins:

Okay, Vaughn, I’m going to give you your Constitutional
Rights. . . . I need you to read the first right out loud.

Mitchell:

I understand that I have the right to remain silent and that
I do not have to answer any questions put to me or make
any statements.

Collins:
You can read the rest to yourself. Do you understand
that?
Mitchell:

I ought to just read #1 again.

(10 minute pause. Mr. Mitchell reading his rights)
Collins:

Do you understand – did you finish?

Mitchell:

Uh, I do have a question. Number 4, that’s not speaking
currently – right now?

Collins:

Well the question speaks for itself. If I cannot afford an
attorney – you probably can – one will be appointed to
without cost by the court. That means down the line.

me

16

Mitchell:

Meaning when the court …

Collins:

Right-right-right. Did you get to the next one?

Mitchell:

Yeah, I read five.

Collins:

Okay, now read that part right there.

Mitchell:

Out loud?

Collins:

Yeah, you can read it aloud.

Mitchell:

I understand that these are my rights under the law, I
have not been threatened or promised anything. I desire
or [sic] to answer any questions put to me at this time.

Collins:

Do you understand?

Mitchell:

Yeah, I understand.

Collins:

Okay, I want you to put your initials by 1, 2, 3, 4, 5 right
there.

Mitchell:

You say by 1, 2, 3, 4, and 5?

Collins:

Yeah, put your initials – that means you understand your
rights as far as I’m concerned. It’s just a formality.

(ECF No. 10-15 at Pg ID 1441-42.)
Defense counsel filed a pretrial motion to suppress the videotaped statement
on these grounds: Mitchell was not properly informed of his Miranda rights; he did
not waive his Miranda rights; any waiver was not valid; and police continued
questioning Mitchell after he invoked is right to silence and to counsel. The trial
court reviewed the videotape and found the exchange between Detective Collins
17

and Mitchell regarding Mitchell’s right to counsel troubling, but found the
warnings sufficient to convey the protections articulated in Miranda. (ECF No.
10-4 at Pg ID 6.)
On direct review, Mitchell argued that the videotaped statement should have
been suppressed both because Detective Collins gave misleading advice
concerning his right to counsel and because he was subjected to a previous
interrogation without being advised of his rights. The Michigan Court of Appeals
held that the mid-interrogation Miranda warning claim was not preserved for
review because this argument was not raised in the trial court and, therefore, was
reviewable only for plain error that affected his substantial rights. Mitchell, 2011
WL 5064301, at *3-4. The court of appeals held that it was clear that Mitchell
engaged in one or more pre-Miranda discussions with Detective Collins. Id. at *8.
However, the court of appeals also held that “because the facts surrounding their
discussions and the specific content of the discussions are not entirely clear, and
defendant’s affidavit is not a part of the record, a remand for an evidentiary hearing
is warranted.” Id.1 The court of appeals also found the record insufficient to
evaluate Mitchell’s claim that Detective Collins gave misleading advice regarding
his right to counsel. Id. at *10. The court, therefore, held that on remand the trial

1

The court of appeals held that the affidavit was not part of the appellate record because it was
not part of the trial court record. Id. at 8; see also People v. Williams, 616 N.W. 2d 710, 713 n.1
(Mich. Ct. App. 2000) (“[P]arties cannot enlarge the record on appeal by the use of affidavits.”).
18

court should make a factual finding regarding the circumstances surrounding the
police interrogation of Mitchell. Id. at *13.
The Michigan Supreme Court reversed the court of appeals’ decision on
these claims, stating, in relevant part:
The trial court did not err in denying defendant’s motion to
suppress his confession. “[U]nlike in [Missouri v. Seibert, 542
U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004)], there is
no concern here that police gave [defendant] Miranda warnings
then led him to repeat an earlier murder confession, because
there was no earlier confession to repeat.” Bobby v. Dixon, --U.S. ---, 132 S. Ct. 26, 31, 181 L. Ed. 2d 328 (2011). In
addition, “Miranda does not require that attorneys be
producible on call, but only that the suspect be informed, as
here, that he has the right to an attorney before and during
questioning, and that an attorney would be appointed for him if
he could not afford one.” Duckworth v. Egan, 492 U.S. 195,
198, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989).
Mitchell, 822 N.W. 2d at 224-25.
2.

Right to the Appointment of Counsel Before and During
Interrogation

Mitchell asserts that his statement should have been suppressed because his
Miranda advisement was inadequate where Detective Collins told him an attorney
would be appointed “down the line” if he could not afford one. The Court finds
that the Michigan Supreme Court’s decision that the Miranda warnings, considered
as a whole, adequately advised him of his rights, was not contrary to or an
unreasonable application of Supreme Court precedent.

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A Miranda warning need not be “a virtual incantation of the precise
language contained in the Miranda opinion.” California v. Prysock, 453 U.S. 355,
355 (1981). Courts “need not examine Miranda warnings as if construing a will or
the terms of an easement.” Duckworth v. Eagan, 492 U.S. 195, 203 (1989).
Instead, “[t]he inquiry is simply whether the warnings reasonably ‘conve[y] to [a
suspect] his rights as required by Miranda.’” Id. (alterations in original) (quoting
Prysock, 453 U.S. at 361).
In Prysock, the suspect was advised: “you have the right to talk to a lawyer
before you are questioned, have him present with you while you are being
questioned, and all during questioning.” Prysock, 453 U.S. at 356. He was also
advised that he had the “right to have a lawyer appointed to represent you at no
cost to yourself.” Id. at 357. On direct appeal in state court, the defendant argued
and the state court of appeals agreed that the advisement of rights was inadequate
because he was not specifically informed of his right to have an attorney appointed
before questioning. Id. at 358. The Supreme Court reversed, first noting that
“[o]ther courts considering the precise question presented by this case—whether a
criminal defendant was adequately informed of his right to the presence of
appointed counsel prior to and during interrogation—have not required a verbatim
recital of the words of the Miranda opinion but rather have examined the warnings
given to determine if the reference to the right to appointed counsel was linked

20

with some future point in time after the police interrogation.” Id. at 360. The
Court held that the warnings given to the defendant were adequate because
“nothing in the warnings . . . suggested any limitation on the right to the presence
of appointed counsel different from the clearly conveyed rights to a lawyer in
general, including the right ‘to a lawyer before you are questioned, . . . while you
are being questioned, and all during the questioning.’” Id. at 360-61.
In Duckworth, the Supreme Court again considered whether a suspect was
adequately informed of his right to counsel before and during questioning when
appointment of counsel was linked to a future point in time. The police advised
the suspect:
You have a right to talk to a lawyer for advice before we ask you any
questions, and to have him with you during questioning. You have
this right to the advice and presence of a lawyer even if you cannot
afford to hire one. We have no way of giving you a lawyer, but one
will be appointed for you, if you wish, if and when you go to court.
Duckworth, 492 U.S. at 198 (emphasis omitted).
The Supreme Court rejected the defendant’s argument that these warnings
were defective because the warnings linked “the right to appointed counsel … [to
a] future point in time after the police interrogation.” Id. at 204 (alteration in
original). The Court held that the warnings, considered in their totality, were
sufficient to satisfy Miranda. Id. at 205.

21

Here, the Miranda advisement, including Detective Collins’ response to
Mitchell’s question, was constitutionally adequate. Nothing in Detective Collins’
response tempered or negated Mitchell’s right to counsel before and during the
interrogation, his right to refuse to answer questions, his right to stop questioning
at any time, or his right to the appointment of counsel. Detective Collins’
statement simply indicated when counsel would be appointed, but did not imply
that the right to an attorney was tied to some future event. Considering this
exchange under the totality of the circumstances, some courts may have concluded
(as the Michigan Court of Appeals did) that Detective Collins’ statement created
sufficient ambiguity as to render the Miranda warnings inadequate, or at least to
raise a question about the adequacy of the warnings. But other reasonable jurists
could and did (the Michigan Supreme Court) conclude that the warnings were
adequate. Under the AEDPA’s deferential standard of review, the Court may not
grant relief simply because it might have come to a different conclusion. Instead,
because the Michigan Supreme Court’s conclusion is in accord with Supreme
Court precedent, this Court must deny habeas relief.
In sum, mindful that in reviewing the sufficiency of Miranda warnings, the
question is simply whether the warnings reasonably convey to a suspect his rights
as required by Miranda. See Florida v. Powell, 559 U.S. 50, 60 (2010). The Court
cannot conclude that the Michigan Supreme Court’s determination of Mitchell’s

22

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.
3. Mid-Stream Miranda Warning
Mitchell next claims that his statement should have been suppressed because
Detective Collins engaged in a question first, warn later strategy. Mitchell argues
that admitting his statement was an unreasonable application of Missouri v.
Seibert, 542 U.S. 600 (2004) and Oregon v. Elstad, 470 U.S. 298 (1985). The
Michigan Supreme Court found no violation because Mitchell denied involvement
in the killing in his pre-Miranda statement and, consequently, there was no earlier
confession for him to repeat. Mitchell, 822 N.W. 2d at 224.
In Elstad, the Supreme Court considered the admissibility of a confession
made after a Miranda violation. The defendant was interrogated in his home
without receiving his Miranda warnings and confessed to a crime. Id. at 300-01.
He was then taken to the police station, and, after being given Miranda warnings,
again confessed. Id. at 301. The trial court suppressed the first confession, but
admitted the second. Defendant argued that the second confession should have
been suppressed because it was the fruit of the first tainted confession. The
Supreme Court held the second confession admissible because the first statement
was voluntary and the second statement followed a knowing and voluntary waiver

23

of rights. Id. at 315. The Court reasoned that “a simple failure to administer the
[Miranda ] warnings, unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect’s ability to exercise his free
will” will not automatically “taint[ ] the investigatory process” such that “a
subsequent voluntary and informed waiver is ineffective for some indeterminate
period.” Id. at 309. “Miranda requires that [an] unwarned admission must be
suppressed.” Id. But “there is no warrant for presuming coercive effect where the
suspect’s initial inculpatory statement, though technically in violation of Miranda,
was voluntary.” Id. at 318. The admissibility of a post-Miranda statement “should
turn . . . solely on whether it is knowingly and voluntarily made.” Id. at 309. “[A]
suspect who has once responded to unwarned yet uncoercive questioning is not
thereby disabled from waiving his rights and confessing after he has been given the
requisite Miranda warnings.” Id. at 318. The appropriate inquiry is whether “the
second statement was also voluntarily made.” Id.
The United States Supreme Court also examined a two-step interrogation
process in Missouri v. Seibert, 542 U.S. 600, 616 (2004) (plurality opinion). In
Seibert, the Court held that suppression of pre- and post-Miranda statements was
required where the defendant was Mirandized after her first confession. Id. at 599.
A plurality of the Supreme Court identified five factors to govern whether
“midstream” Miranda warnings are effective to overcome the impact of prior,

24

unwarned interrogation: (1) “the completeness and detail of the questions and
answers in the first round of interrogation”; (2) “the overlapping content of the two
statements”; (3) “the timing and setting of the first and second” interrogation; (4)
“the continuity of police personnel”; and (5) “the degree to which the
interrogator’s questions treated the second round as continuous with the first.” Id.
at 615. The Sixth Circuit Court of Appeals has adopted this multi-factor test of the
plurality as precedent in this Circuit. United States v. Ray, 803 F. 3d 244, 272-73
(6th Cir. 2015).2
The Supreme Court again considered mid-stream Miranda warnings in
Bobby v. Dixon, 565 U.S. 23 (2011) (per curiam). In Dixon, Dixon and another
man murdered the victim by beating him and then burying him alive. Id. at 24-25.
Dixon then used the victim’s social security card and birth certificate to obtain a
state identification card in the victim’s name to sell the victim’s car. Id. at 25. The
police arrested Dixon on a forgery charge and then questioned him intermittently
over several hours for a total of about 45 minutes. Id. Police intentionally
declined to provide Dixon with Miranda warnings because they did not want him
to refuse to speak to them. Id. Dixon admitted to forging the victim’s signature,
but said that the victim had given him permission to sell the car. Id. Dixon denied
2

In a concurring opinion, Justice Kennedy stated that Elstad should govern the admissibility of
post-Miranda warnings unless officers deliberately employed a two-step interrogation technique
designed to dilute or circumvent the Miranda warnings. Seibert, 542 U.S. at 622. If officers
deliberately engaged in a two-step process, the post-Miranda warnings must be excluded absent
curative measures. Id.
25

having any involvement in the victim’s disappearance. Id. Several hours later,
Dixon was again brought from the jail to the police station for questioning. Dixon
told police he heard they had found a body and asked whether his co-defendant
was in custody. Id. at 26. Upon learning that he was not, Dixon told police, “I
talked to my attorney, and I want to tell you what happened.” Id. After police
advised him of his Miranda rights, Dixon admitted to murdering the victim. Id.
The trial court excluded Dixon’s confession to forgery and his confession to
murder. Id. The Supreme Court reversed, holding that Dixon’s murder confession
was admissible. The Court found “no two-step interrogation technique of the type
that concerned the Court in Seibert undermined the Miranda warnings Dixon
received.” Id. at 31.
The Court explained:
In Seibert, the suspect’s first, unwarned interrogation left “little, if
anything, of incriminating potential left unsaid,” making it
“unnatural” not to “repeat at the second stage what had been said
before.” 542 U.S. at 616-617, 124 S. Ct. 2601 (plurality opinion).
But in this case Dixon steadfastly maintained during his first,
unwarned interrogation that he had “[n]othing whatsoever” to do with
Hammer’s disappearance. . . . Thus, unlike in Seibert, there is no
concern here that police gave Dixon Miranda warnings and then led
him to repeat an earlier murder confession, because there was no
earlier confession to repeat. Indeed, Dixon contradicted his prior
unwarned statements when he confessed to [the] murder. Nor is there
any evidence that police used Dixon’s earlier admission to forgery to
induce him to waive his right to silence later: Dixon declared his
desire to tell police what happened to [the victim] before the second
interrogation session even began. . . . [T]here was simply “no nexus”

26

between Dixon’s unwarned admission to forgery and his later, warned
confession to murder.
Dixon, 565 U.S. at 31.
Similarly, in this case, Mitchell maintained during his pre-Miranda
interrogation that he had nothing to do with the victim’s beating or death. The
Michigan Supreme Court held that, accordingly, “there is no concern here that
police gave [Mitchell] Miranda warnings then led him to repeat an earlier murder
confession, because there was no earlier confession to repeat.” Mitchell, 822 N.W.
2d at 224. Mitchell’s first unwarned statement cannot reasonably have been
perceived by Mitchell as letting “the cat out of the bag” such that he would feel
“[t]he secret is out for good.” United States v. Bayer, 331 U.S. 532, 540 (1947).
As was the case in Dixon, Mitchell’s post-warning confession to participating in
the beating of the victim contradicted his prior unwarned statements. There is no
indication that police used Mitchell’s unwarned statement to induce him to waive
his rights later or to undermine the Miranda warnings.
Mitchell fails to show that the interrogation procedures in this case were
similar to the two-step interrogation procedure condemned by the Supreme Court.
Accordingly, the state court’s rejection of this claim is neither contrary to nor an
unreasonable application of Supreme Court precedent.

27

C.

Claim III: First-Degree Premeditated Murder Jury Instruction

Mitchell’s third claim for habeas relief concerns the first-degree
premeditated murder jury instruction. He argues that the trial court improperly
instructed the jury on the intent element of first-degree premeditated murder and
allowed the jury to convict Mitchell if it found that his co-defendant committed the
murder and the co-defendant acted with the intent to kill. Respondent argues that
this claim is waived and meritless. The Court concludes that this claim lacks merit
and, therefore, need not decide the State’s procedural-default defense. See
Johnson v. Lee, 136 S. Ct. 1802, 1806 (2016) (per curiam) (citing Lambrix v.
Singletary, 520 U.S. 518, 525 (1997) (noting that “the procedural-bar issue [need
not] invariably be resolved first” and that, if another basis for denial “were easily
resolvable against the petitioner,” the non-procedural basis may be invoked instead
in order to avoid “complicated issues of state [procedural] law.”)).
“It is a fundamental Constitutional law that no one may be convicted of a
crime absent proof beyond a reasonable doubt of every fact necessary to constitute
that crime.” Glenn v. Dallman, 686 F. 2d 418, 420 (6th Cir. 1982). To show that a
jury instruction violates due process, a habeas petitioner must demonstrate “both
that the instruction was ambiguous and that there was ‘a reasonable likelihood’ that
the jury applied the instruction in a way that relieved the State of its burden of
proving every element of the crime beyond a reasonable doubt.” Waddington v.

28

Sarausad, 555 U.S. 179, 190-91 (2009). A petitioner is entitled to habeas relief
only if the defective jury instruction “so infected the entire trial that the resulting
conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973). A
federal court may not grant the writ of habeas corpus on the ground that a jury
instruction was incorrect under state law, Estelle v. McGuire, 502 U.S. 62, 71-72
(1991), and “[a]n omission, or an incomplete instruction, is less likely to be
prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145,
155 (1977). The jury instruction “must be considered in the context of the
instructions as a whole and the trial record.” Estelle, 502 U.S. at 72. A state
court’s finding that challenged jury instructions “adequately reflected the
applicable state law and corresponding state charges” is binding on federal habeas
review. White v. Steele, 629 F. App’x 690, 695 (6th Cir. 2015). “The exception is
when the instruction is so flawed as a matter of state laws as to “‘infect[] the entire
trial’ in such a way that the conviction violates federal due process.” Rashad v.
Lafler, 675 F. 3d 564, 569 (6th Cir. 2012) (quoting Henderson v. Kibbe, 431 U.S.
145, 154 (1977)).
The Michigan Court of Appeals, although finding the claim waived,
nevertheless ruled on the propriety of the first-degree premeditated murder
instruction. The state court held that the instruction adequately conveyed the
elements of first-degree premeditated murder and aiding and abetting first-degree

29

murder: “the jury was properly instructed that, to convict defendant of first-degree
premeditated murder, it had to find that he either intended to kill the victim or that
he assisted Brown with knowledge that Brown intended to kill the victim.”
Mitchell, 2013 WL 951192 at *4.
The trial court instructed the jury on the intent element of first-degree
premeditated murder as follow: “Second, that the defendant’s [sic] intended to kill
Michael Jord[e]n, either one of them individually or both of them.” (ECF 10-12 at
Pg ID 1266.) That instruction, by itself, may have confused the jury as to whether
Brown’s intent to kill could satisfy this element as to Mitchell if Mitchell himself
lacked an intent to kill. However, the instructions, considered as a whole, clearly
conveyed the necessary intent. For example, the trial court instructed the jury:
“You should consider each defendant separately.” (Id. at Pg ID 1272.) The trial
court also repeated the instructions for first degree murder as follows:
The elements for first degree murder are again, victim’s death, death
caused by defendant, death not justified or excused or mitigated in
some manner to make it a lesser offense.
Defendant actually intended to kill the victim.
Defendant premeditated victim’s death.
Defendant deliberated as to the victim’s death. In other words that’s
the premeditation too.
(Id. at Pg ID 1268.)

30

An allegedly faulty instruction “‘may not be judged in artificial isolation,’
but must be considered in the context of the instructions as a whole and the trial
record.” Joseph v. Coyle, 469 F. 3d 441, 464 (6th Cir. 2006) (quoting Estelle, 502
U.S. at 72). The court’s jury instructions as to first-degree premeditated murder,
when read in their entirety, properly required the jury to find Mitchell had a
specific intent to kill. Thus, Petitioner is not entitled to habeas corpus relief with
respect to this claim.
D.

Claim IV: Prosecutorial Misconduct Claim

Mitchell next argues that the prosecutor’s misconduct violated his right to a
fair trial. Specifically, he alleges the prosecutor committed misconduct by: (i)
appealing to community sentiment against violent crime and the jury’s sympathy
for the victim and his family; (ii) referring to facts not in evidence; and (iii)
attacking Mitchell’s general character. The Court finds that the Michigan Court of
Appeals’ decision denying Mitchell’s claims was not contrary to or an
unreasonable application of Supreme Court precedent.
The “clearly established Federal law” relevant to a habeas court’s review of
a prosecutorial misconduct claim is the Supreme Court’s decision in Darden v.
Wainwright, 477 U.S. 168, 181 (1986). Parker v. Matthews, 567 U.S. 37, 45
(2012). In Darden, the Supreme Court held that a “prosecutor’s improper
comments will be held to violate the Constitution only if they ‘so infected the trial

31

with unfairness as to make the resulting conviction a denial of due process.’”
Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). This Court must ask whether the Michigan Court of Appeals’ decision
denying Petitioner’s prosecutorial misconduct claims “was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Parker, 567 U.S. at 47
(quoting Harrington, 562 U.S. at 103).
First, Mitchell argues that the prosecutor improperly appealed to the jury’s
sense of disgust with violent crime and to the jury’s sympathy for the victim.
Mitchell cites this portion of the prosecutor’s closing argument:
It took a little while. But I equate time with life. And Michael
Jord[e]n’s life was stolen from him. The time on this earth was
ended. This individual, who must have known something, there must
have been some foreshadowing in his mind that something might have
him, married his wife in Ohio on her birthday, two days before his
demise. He did not know exactly what was going to happen. But he
couldn’t have believed that his wife would be made a widow by the
same individual and his father who ate pancakes in his house made by
his fiancée at the time. There’s a lot of things here.
Let me continue with my thumbnail sketch, what has now turned into
a mural. And it probably would cover the side of this building. Now
let’s start with Michael Jord[e]n. Laying in the street, pants down
below his knees with no underwear on. I don’t think he thought his
time was to go on that day in that particular manner. He’s laying
there in the street. That’s one picture.
***
I want you to see his wife weeping about his demise.
***
32

Ladies and gentlemen, after you heard the testimony of these two
people, you felt like you were watching a dog chasing his tail. You
don’t know where it began, and where it’s going to end. And I’m
going to tell you, you don’t have to feel that way. These widow
makers, merry go round tale of what happened on that day, does not
make sense.
(ECF No. 10-12 at Pg ID 1222-24.)
It is well established that prosecutors “must obey the cardinal rule that a
prosecutor cannot make statements ‘calculated to incite the passions and prejudices
of the jurors.’” Broom v. Mitchell, 441 F. 3d 392, 412 (6th Cir. 2006). The
Michigan Court of Appeals found no “improper appeal to community sentiment
against violent crimes or civic-duty argument;” instead “the prosecutor was merely
arguing the evidence of this violent crime by using passionate language, which is
not improper.” Mitchell, 2013 WL 951192, at *5. But the Michigan Court of
Appeals found that the prosecutor improperly appealed to the sympathies and
emotions of the jurors when he characterized Mitchell and Brown as “widow
makers” and asked the jurors to see Jorden’s “wife weeping about his demise.” Id.
The court of appeals, nevertheless, found that, given the overwhelming evidence
incriminating Mitchell in Jorden’s murder, Mitchell was not prejudiced by the
comments. Id. The Court agrees with the state court’s assessment. The prosecutor
clearly did not appeal to community conscience in his closing remarks. He did,
however, use dramatic language as noted by the Michigan Court of Appeals. The
Michigan Court of Appeals’ conclusion that the prosecutor’s comments were not
33

prejudicial is not unreasonable. The state court cautioned the jurors that they were
not to let sympathy or prejudice influence their decision, the prosecutor’s
comments were relatively isolated, and the prosecutor did not ask the jury to
convict on the basis of sympathy for the victim or the victim’s wife. Petitioner has
not shown that the state-court’s rejection of this 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, 567 U.S. at 47. Therefore, the Court finds that the trial
court’s decision was not contrary to or an unreasonable application of Supreme
Court precedent.
Second, Mitchell argues that the prosecutor improperly referenced facts not
in evidence when he referenced how loud the gun would have sounded in the van,
stated that an AK-47 is two to three feet long, and posited that Mitchell may have
taken the van to the “crusher” after the crime to destroy evidence. (ECF No. 10-12
at Pg ID 1228-31.) The Michigan Court of Appeals held that the prosecutor’s
comments were proper because they involved “matters that the jurors could infer
from their common knowledge and experiences.” Mitchell, 2013 WL 951192, at
*5. The prosecutor’s arguments reasonably asked the jury to make common-sense
inferences from the evidence – that a gun fired inside a van would be loud, an AK47 is large, and that someone involved in a crime may have tried to dispose of

34

evidence. “A prosecutor does not rely on facts not in evidence by simply asking
jurors to make common-sense inferences from the evidence.” United States v.
Smith, 89 F. App’x 494, 498 (6th Cir. 2004). Moreover, the prosecutor’s
statements, even if improper, were not so flagrant as to violate due process.
Finally, Mitchell argues that the prosecutor made improper personal attacks
by referring to him as a “killer” and “psychopath.” The Michigan Court of
Appeals denied Mitchell’s prosecutorial misconduct claims without specifically
addressing this claim. The Court need not decide whether the state court denied
this claim on the merits because, even under a de novo standard of review, this
claim fails.
“[T]he use of colorful pejoratives is not improper,” so long as the pejorative
used is supported by the evidence. United States v. Fields, 483 F. 3d 313, 360-61
(5th Cir. 2007) (quoting United States v. Shoff, 151 F. 3d 889, 893 (8th Cir. 1998));
accord United States v. Temple, No. 93-6206, 1994 WL 201876, at *6 (6th Cir.
May 20, 1994) (holding that prosecutor’s pejorative description of defendant, by
itself, did not constitute prosecutorial misconduct); United States v. Wheeler, 137
F. App’x 304, 310 (11th Cir. 2005) (“[U]nflattering characterizations of a
defendant . . . do not require reversal if they are supported by the evidence”)
(internal quotation omitted); Gonzalez v. Carey, 58 F. App’x 269, 270 (9th Cir.
2003) (holding the prosecutor’s references to the petitioner as a “thug” during

35

closing arguments was a reasonable inference based on the evidence presented at
trial regarding the petitioner’s alleged conduct in abducting, beating, and stabbing
the victim); James v. Bowersox, 187 F. 3d 866, 870 (8th Cir. 1999) (denying
habeas relief on a prosecutorial misconduct claim where prosecutor’s opening
argument referred to petitioner as “a big time, drug dealing, murdering, robbing
slime”).
The evidence supported the argument that Mitchell was a killer, no
testimony, however, was presented to show that he was diagnosed as a psychopath.
Nevertheless, the Court finds that the prosecutor’s argument was not improper.
The prosecutor referred to Mitchell as a psychopath to rebut defense counsel’s
reference to Mitchell as a child who had been abandoned by his father. (ECF No.
10-12 at Pg ID 1246.) The prosecutor noted that Mitchell admitted that, after the
killing, he went to a nightclub to get some drinks, be around people, and listen to
music. (Id.) The prosecutor argued that this behavior was that of a psychopath not
a boy. (Id.) Merriam-Webster defines a psychopath as “a person who is mentally
ill or unstable.” Random House College Dictionary 1068 (Rev’d ed. 1982). One
could reasonably infer from the evidence presented that Mitchell was an unstable
person. The prosecutor’s comment, therefore, was not improper.

36

E.

Claim V: Ineffective Assistance of Trial Counsel

Mitchell’s fifth claim raises several ineffective assistance of counsel claims.
He argues that counsel was ineffective in failing to (i) request an evidentiary
hearing regarding the admissibility of his custodial statement; (ii) object to
prosecutorial misconduct; and (iii) object to an instructional error.
The AEDPA “erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, —
U.S. — , 134 S. Ct. 10, 16 (2013). The standard for obtaining relief is “‘difficult to
meet.’” White v. Woodall, — U.S. —, 134 S. Ct. 1697, 1702 (2014) (quoting
Metrish v. Lancaster, 569 U.S. —, —, 133 S. Ct. 1781, 1786 (2013)). In the
context of an ineffective assistance of counsel claim under Strickland v.
Washington, 466 U.S. 668 (1984), the standard is “all the more difficult” because
“[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential’
and when the two apply in tandem, review is ‘doubly so.’” Harrington, 562 U.S.
at 105 (internal citations omitted). “[T]he question is not whether counsel’s
actions were reasonable,” but whether “there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id.
An ineffective assistance of counsel claim has two components. A petitioner
must show that counsel’s performance was deficient and that the deficiency
prejudiced the defense. Strickland, 466 U.S. at 687. To establish deficient

37

representation, a petitioner must demonstrate that counsel’s representation “fell
below an objective standard of reasonableness.” Id. at 688. In order to establish
prejudice, a petitioner must show that, but for the constitutionally deficient
representation, there is a “reasonable probability” that the outcome of the
proceeding would have been different. Id. at 694.
First, Mitchell argues that counsel was ineffective in failing to request an
evidentiary hearing regarding whether his custodial statement was the fruit of an
unlawful pre-Miranda interrogation. The Michigan Supreme Court reversed the
Michigan Court of Appeals’ decision remanding to the trial court for an
evidentiary hearing on the circumstances of the interrogation because the record
showed that the taped confession was not the fruit of a prior unwarned confession.
Mitchell, 822 N.W. 2d at 224. On remand to address the remaining claims, the
Michigan Court of Appeals found that counsel was not ineffective in failing to seek
an evidentiary hearing because the Michigan Supreme Court held that the record
was sufficient for a finding that the confession was properly admitted. Mitchell,
2013 WL 951192, at *6. As discussed, Mitchell has not shown that the Michigan
Supreme Court’s determination that his confession was properly admitted is
contrary to or an unreasonable application of Supreme Court precedent. Therefore,
even assuming that counsel was deficient in failing to request an evidentiary

38

hearing on this issue, Mitchell cannot establish that he was prejudiced by counsel’s
failure because the confession was admissible.
Next, Mitchell argues that counsel was ineffective in failing to object to the
prosecutor’s misconduct. But as discussed above, Mitchell has failed to show that
the prosecutor engaged in misconduct. This is so even with respect to Mitchell’s
claim that counsel improperly appealed to the sympathies and emotions of the
jurors during closing argument. For the same reasons that the state court found no
prejudice from this improper argument, Mitchell cannot establish prejudice from
counsel’s failure to object. Therefore, counsel was not ineffective in failing to
object to the prosecutor’s comments.
Finally, Mitchell argues that trial counsel was ineffective in failing to object
to the jury instructions regarding first-degree premeditated murder. Because the
Michigan Court of Appeals concluded that the trial court’s jury instructions were
correct, defense counsel was not ineffective for failing to object to the instructions.
“Omitting meritless arguments is neither professionally unreasonable nor
prejudicial.” Coley v. Bagley, 706 F. 3d 741, 752 (6th Cir. 2013). Mitchell is not
entitled to habeas relief on these ineffective assistance of trial counsel claims.
F.

Claim VI: Cumulative Effect of Alleged Errors

Mitchell argues that the cumulative effect of the errors alleged in his petition
violated his right to a fair trial. On habeas review, a claim that the cumulative

39

effect of errors rendered a petitioner’s trial fundamentally unfair is not cognizable.
Sheppard v. Bagley, 657 F. 3d 338, 348 (6th Cir. 2011) (citing Moore v. Parker,
425 F. 3d 250, 256 (6th Cir. 2005)). Therefore, Petitioner is not entitled to relief on
this claim.
G.

Claim VII: Constitutionality of AEDPA’s Standard of Review

Finally, Mitchell argues that the standard of review set forth in 28 U.S.C. §
2254(d)(1) and applied by the Court to the claims raised in Mitchell’s petition, is
unconstitutional. Mitchell argues that the standard of review violates the doctrine
of separation of powers, the Supremacy Clause, and the Due Process Clause,
improperly requires federal courts to issue advisory opinions, and is so strict as to
effectively suspend the writ of habeas corpus.
First, Mitchell argues that § 2254(d)(1) violates the separation of powers. In
support of this contention, he cites Marbury v. Madison, 5 U.S. 137, 177 (1803), in
which the Supreme Court stated: “[i]t is emphatically the province and duty of the
judicial department to say what the law is.” Mitchell argues that the § 2254(d)(1)
standard violates this principle because it requires federal courts to ignore binding
circuit precedent and look only to the Supreme Court’s determination of federal
law, thereby prohibiting application of the normal rules of stare decisis. The Sixth
Circuit Court of Appeals has not specifically addressed this issue, but those circuit
courts that have addressed the issue have found that § 2254(d) does not violate the

40

doctrine of separation of powers. For example, the Fourth Circuit Court of
Appeals has held:
In amending section 2254(d)(1), Congress has simply adopted a
choice of law rule that prospectively governs classes of habeas cases;
it has not subjected final judgments to revision, nor has it dictated the
judiciary’s interpretation of governing law and mandated a particular
result in any pending case. And amended section 2254(d) does not
limit any inferior federal court’s independent interpretive authority to
determine the meaning of federal law in any Article III case or
controversy. Under the AEDPA, we are free, if we choose, to decide
whether a habeas petitioner’s conviction and sentence violate any
constitutional rights. Section 2254(d) only places an additional
restriction upon the scope of the habeas remedy in certain
circumstances.
Green v. French, 143 F. 3d 865, 874-75 (4th Cir. 1998) (internal citations omitted),
abrogated on other grounds by Williams v. Taylor, 529 U.S. 362 (2000); see also
Cobb v. Thaler, 682 F. 3d 364, 374 (5th Cir. 2012) (“As each circuit to address the
question has recognized, § 2254(d)(1) does not intrude on the independent
adjudicative authority of the federal courts. Rather, it limits the grounds on which
federal courts may grant the habeas remedy to upset a state conviction.”);
Bonomelli v. Dinwiddie, 399 F. App’x 384, 387 (10th Cir. 2010) (affirming the
district court’s rejection of petitioner’s argument that the AEDPA violates the
Constitution’s separation of powers doctrine); Evans v. Thompson, 518 F. 3d 1, 11
(1st Cir. 2008) (“while AEDPA does restrict a remedy, it does not interfere with
Article III powers”); Crater v. Galaza, 491 F. 3d 1119, 1127 (9th Cir. 2007)
(finding that § 2254(d)(1) does not violate the separation of powers doctrine);
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Lindh v. Murphy, 96 F. 3d 856, 868-69 (7th Cir. 1996) (en banc) (holding that the
language of the AEDPA “preserves rather than undermines federal courts’
independent interpretive power”), rev’d on other grounds, 521 U.S. 320 (1997).
The Court finds persuasive the decisions of these circuit courts and likewise denies
Mitchell’s claim that § 2254(d)(1) violates the separation of powers.
Second, Mitchell claims that § 2254(d)(1)’s standard violates the Supremacy
Clause “by preventing federal courts from denying effect to an entire class of state
court decisions that conflict with federal law – i.e. that class of cases in which the
state court decision is wrong as a matter of federal constitutional law, but not
unreasonably wrong.” (ECF No. 1 at Pg ID 78-79.) “The Supremacy Clause
makes [federal] laws ‘the supreme Law of the Land,’ and charges state courts with
a coordinate responsibility to enforce that law according to their regular modes of
procedure.” Howlett v. Rose, 496 U.S. 356, 367 (1990). Thus, the laws of the
United States are “supreme” and the “law of the State ... must yield to it.” Gibbons
v. Ogden, 22 U.S. 1, 211 (1824). The AEDPA does not alter or undermine this
rule of law. While it requires federal courts to give considerable deference to state
courts’ decisions on federal constitutional issues, it does not subjugate the
Constitution to state law.
Next, Mitchell argues that § 2254(d)(1) requires a federal court to issue
advisory opinions, because where a state court wrongly, but not unreasonably,

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applies constitutional law, no relief may be afforded under AEDPA. It is wellestablished that “‘[t]he exercise of judicial power under Art. III of the Constitution
depends on the existence of a case or controversy,’ and ‘a federal court [lacks] the
power to render advisory opinions.’” United States Nat’l Bank of Or. v. Indep. Ins.
Agents of Am., 508 U.S. 439, 446 (1993) (alterations in original) (quoting Preiser
v. Newkirk, 422 U.S. 395, 401 (1975)). While a finding that a state court’s
decision was simply incorrect and not unreasonable precludes habeas relief, this
does not render a federal court’s decision advisory. See Byrd v. Trombley, 580 F.
Supp. 2d 542, 553 (E.D. Mich. 2008) (“[A]ny determination of the merits of the
underlying constitutional claim as part of the reasonableness inquiry under §
2254(d)(1) does not amount to an advisory opinion.”).
Fourth, Mitchell claims that the AEDPA’s standard of review violates the
Due Process Clause of the Fourteenth Amendment by preventing a federal court
from remedying due process violations when the state has incorrectly, but not
unreasonably, applied constitutional law. Section 2254(d)(1)’s standard of review
does not deny a petitioner “a forum for the vindication of his constitutional rights.
The Court still has the power to issue the writ, albeit under more tightly
circumscribed conditions.” Id. Given that the Supreme Court recognizes that
“judgments about the proper scope of the writ are ‘normally for Congress to
make,’” Mitchell has not shown that the strict standard under which habeas corpus

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petitions are reviewed was an unconstitutional limit on the power to grant the writ.
Felker v. Turpin, 518 U.S. 651, 664 (1996) (quoting Lonchar v. Thomas, 517 U.S.
314, 323 (1996)).
Finally, Mitchell argues that AEDPA’s standard of review amounts to an
unconstitutional suspension of the writ of habeas corpus. The Suspension Clause
states: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require it.” U.S.
Const. art. I, § 9, cl. 2. In Harrington v. Richter, the Supreme Court held that §
2254(d) does not completely bar federal court relitigation of claims rejected in
state proceedings because “[i]t preserves authority to issue the writ in cases where
there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with this Court’s precedent.” 562 U.S. at 102. Although the
standard “is difficult to meet,” it is not impossible and therefore does not amount to
a suspension of the writ. See Crater, 491 F. 3d at 1125 (“Section 2254(d)(1)
simply modifies the preconditions for habeas relief, and does not remove all habeas
jurisdiction.”); Lindh, 96 F. 3d at 867 (“[T]o alter the standards on which writs
issue is not to ‘suspend’ the privilege of the writ.”).
IV.

Certificate of Appealability
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no

automatic right to appeal a district court’s denial or dismissal of the petition.

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Instead, [the] petitioner must first seek and obtain a [certificate of appealability.]”
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). To receive a certificate of
appealability, “a petitioner must sho[w] that reasonable jurists could debate
whether (or, for that matter, 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.’” Miller-El, 537 U.S. at 336.
The Court finds that reasonable jurists could debate the Court’s assessment
of Petitioner’s first and second claims regarding the admissibility of Mitchell’s
custodial statement. Consequently, a certificate of appealability will be granted on
those claims.
Reasonable jurists would not find the Court’s assessment of Petitioner’s
remaining claims to be debatable or wrong. The Court therefore declines to issue a
certificate of appealability on claims three through seven.
V.

Order
For the reasons given above,
IT IS ORDERED that the petition for writ of habeas corpus is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is

GRANTED as to claims one and two and DENIED as to the remaining claims.

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IT IS FURTHER ORDERED that Petitioner may proceed in forma
pauperis on appeal for claims one and two because an appeal may be taken in good
faith. 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: October 25, 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, October 25, 2017, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager

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