Lovell v. Hoffner

Filing 8

OPINION and ORDER Denying the Petition for a Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NOAH RICHARD LOVELL, III,
Petitioner,
Case No. 15-11541
Honorable Linda V. Parker

v.
PAUL KLEE,1
Respondent.
________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY
Petitioner Noah Richard Lovell, III (“Petitioner”), through counsel, has filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is
challenging his Michigan state court convictions for armed robbery in violation of
Michigan Compiled Laws § 750.529, unlawful imprisonment in violation of
Michigan Compiled Laws § 750.349b, torture in violation of Michigan Compiled
Laws § 750.85, and first-degree home invasion in violation of Michigan Compiled
Laws § 750.110a(2). For the reasons stated below, the Court is denying Petitioner
habeas relief. The Court also is denying Petitioner a certificate of appealability.

1

The Court sua sponte amends the case caption to reflect the warden of the
Lakeland Correctional facility in Coldwater, Michigan, where Petitioner currently
is confined. See Rule 2(a) of the Rules Governing § 2254 Cases.
1

I.

Background
Petitioner was convicted of the above-listed offenses following a jury trial in

the Circuit Court for Livingston County, Michigan. Petitioner was tried with his
co-defendant, Harry Riley. The trial court sentenced Petitioner, as a fourth
habitual offender, fourth offense, to concurrent terms of imprisonment of 36 years
and 8 months to 75 years for his armed robbery and torture convictions and 10 to
15 years for his unlawful imprisonment conviction, and a consecutive term of
imprisonment of 13 years and 4 months to 20 years for the first-degree home
invasion conviction. Petitioner’s convictions and sentence were affirmed on direct
appeal. People v. Riley, No. 295838, 2011 WL 4501765 (Mich. Ct. App. Sept. 29,
2011), lv. den., 810 N.W.2d 582 (Mich. 2012).
This Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals when denying Petitioner’s appeal:
This case arises out of the armed robbery, unlawful
imprisonment, torture, and home invasion of an 84-year-old
victim. On the day of the incident, Riley went to the victim’s
back door wearing a work vest and a hard hat under the guise
that he worked for a utility company and wanted to look at the
victim’s property. The victim walked his property with Riley
for approximately 45 minutes. Riley was talking on his cellular
telephone during a substantial portion of that time. Cellular
telephone call logs showed that Lovell’s telephone was in the
vicinity of the victim’s house and that numerous calls were
made to Riley at the time of the crime. Riley’s vehicle was
rented by Lovell.

2

Riley followed the victim into his house; at that point, the
victim noticed a pry bar on the table in his dinette. As the
victim reached for the pry bar, Riley punched the victim in the
face so hard that it knocked his dentures out of his mouth and
knocked his glasses off of his face. Riley then grabbed the
victim and pushed him down the stairs. At the bottom of the
stairs, Riley continued to beat the victim, punching and kicking
his face and body. Riley repeatedly demanded to know where
the victim kept his money, and threatened to kill him. Riley also
repeatedly poked the victim’s arms, chest, and neck with a
knife. The victim lost consciousness several times during the
beating. Riley then sat the victim in a chair and bound his wrists
and ankles with duct tape. Riley kicked the victim’s face with
such force that if [sic] left a shoe print. During the incident, the
victim heard a second individual come halfway down the stairs;
from his vantage point, the victim could only see the second
individual, a white male, from the waist down. The second
individual threatened to kill the victim if he did not reveal the
location of the money. Meanwhile, Riley took the victim’s coin
collection. The victim had a broken jaw, broken nose, cracked
eye sockets, three broken ribs, and blood on the brain. The
victim stayed in the hospital for over a week, and then spent
nearly two months in a rehabilitation center.
The next day, Lovell and Riley met with George Wilson
who heard them discussing how they were going to sell coins.
Wilson also heard Riley berate Lovell for his time-consuming
method of ransacking drawers. A receipt from a hardware store
indicating the purchase of a hard hat, pry bar, and work gloves
was found in the victim’s driveway, and Lovell was identified
as the individual who purchased the goods.
Riley, 2011 WL 4501765, at *1-2. These facts are presumed correct on habeas
review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410,
413 (6th Cir. 2009).

3

Petitioner filed a post-conviction motion for relief from judgment in the state
trial court (ECF No. 5-20), which the court denied. (ECF No. 5-21.) The
Michigan appellate courts denied Petitioner leave to appeal. People v. Lovell, No.
319508 (Mich. Ct. App. June 3, 2014) (ECF No. 5-22); lv. den. 858 N.W.2d 53
(Mich. 2015).
Petitioner asserts the following grounds in support of his application for
federal habeas relief:
I.

Mr. Lovell is entitled to a new trial under the Due
Process Clause of the Fourteenth Amendment to the U.S.
Constitution where newly discovered evidence after
trial—co-defendant Riley’s affidavit exonerating him and
prosecution witness Mr. Wilson’s affidavit recanting his
trial testimony against him—show a fair probability that
a different result would be rendered on retrial.

II.

Mr. Lovell was denied the effective assistance of counsel
under the Sixth and Fourteenth Amendments to the U.S.
Constitution when his trial counsel, before testimony was
given, failed to renew his motion for separate trials or
juries when co-defendant Riley offered to testify at trial
to exonerate Mr. Lovell.

III.

Prosecutorial misconduct in rebuttal closing argument
deprived Mr. Lovell of his right to a fair trial under the
Fourteenth Amendment to the U.S. Constitution when the
prosecutor shifted the burden of proof and commented on
his silence in violation of his privilege against selfincrimination under the Fifth and Fourteenth
Amendments to the U.S. Constitution.

IV.

Mr. Lovell was denied his right to due process under the
Fourteenth Amendment to the U.S. Constitution because
the evidence was insufficient to sustain the convictions.
4

V.

VI.

II.

Mr. Lovell was denied due process under the Fourteenth
Amendment to the U.S. Constitution when he was
sentenced on the basis of inaccurate information in the
presentence report that was improperly used to support
an upward departure in his sentences.
Mr. Lovell was denied the effective assistance of counsel
under the Sixth and Fourteenth Amendments to the U.S.
Constitution when his appellate counsel failed to raise the
issues presented in the motion for relief from judgment
under MCR 6.500 et al, which were also presented to the
Michigan Court of Appeals and the Michigan Supreme
Court on appeal and raised in the present habeas petition.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

imposes the following standard of review for habeas cases:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly 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 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
5

case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An
“unreasonable application” occurs when “a state court decision unreasonably
applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at
409. A federal habeas court may not “issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.
“[A] state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In order to obtain habeas
relief in federal court, a state prisoner is required to show that the state court’s
rejection of 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. A habeas petitioner should be denied relief
as long as it is within the “realm of possibility” that fairminded jurists could find
the state court decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149,
1152 (2016).

6

III.

Discussion
A.

Actual Innocence Claim

Petitioner claims that he is entitled to habeas relief because he is actually
innocent of the charges. Petitioner submits two affidavits in support of this claim.
In one affidavit, Petitioner’s co-defendant, Mr. Riley, asserts that Petitioner was
not involved in the planning or commission of the crimes. (See ECF No. 5-20 at
Pg ID 2646.) Mr. Riley’s affidavit was signed and dated January 3, 2013, over
three years after Petitioner was convicted. (Id.) The other affidavit is a declaration
from prosecution witness, George Wilson, in which Wilson claims that he testified
falsely at Petitioner’s criminal proceedings (i.e., the evidentiary and preliminary
hearings and trial) about Petitioner’s involvement in the crimes. (Id. at Pg ID
2649.) Mr. Wilson blames his false testimony on undescribed police coercion.
(Id.) Mr. Wilson’s declaration is dated June 30, 2010. (Id.)
Petitioner first presented Mr. Riley’s affidavit and Mr. Wilson’s declaration
when he moved for relief from judgment in the state trial court. Petitioner also
attempted to present Mr. Wilson’s declaration during his appeal of right with the
Michigan Court of Appeals. The Michigan Court of Appeals refused to consider
Mr. Wilson’s declaration because it was not part of the lower court record. Riley,
2011 WL 4501765, at *8.

7

In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court held that
“[c]laims of actual innocence based on newly discovered evidence” fail to state a
claim for federal habeas relief “absent an independent constitutional violation
occurring in the underlying state criminal proceeding.”1 Id. at 400; see also House
v. Bell, 547 U.S. 518, 554-55 (2006) (declining to answer the question left open in
Herrera of whether a habeas petitioner may bring a freestanding claim of actual
innocence). Federal habeas courts “sit to ensure that individuals are not
imprisoned in violation of the Constitution, not to correct errors of fact.” Herrera,
506 U.S. at 400 (citations omitted); see also McQuiggin v. Perkins, 569 U.S. 383,
392 (2013) (“We have not resolved whether a prisoner may be entitled to habeas
relief based on a freestanding claim of actual innocence”). Freestanding claims of
actual innocence are thus not cognizable on federal habeas review, absent
independent allegations of constitutional error at trial. See Cress v. Palmer, 484
F.3d 844, 854-55 (6th Cir. 2007) (collecting cases).
Furthermore, a long-delayed affidavit which seeks to exonerate the
defendant or petitioner and shift the blame for the crime to another person is
“treated with a fair degree of skepticism.” Herrera, 506 U.S. at 423; see also
The Herrera Court assumed without deciding that “in a capital case a truly
persuasive demonstration of ‘actual innocence’ made after trial would render the
execution of a defendant unconstitutional, and warrant federal habeas relief if there
were no state avenue open to process such a claim.” 506 U.S. at 417. The
Supreme Court, however, has not extended such a freestanding claim beyond the
death penalty context and Petitioner’s case is not a capital case.
8

1

Lewis v. Smith, 100 F. App’x 351, 355 (6th Cir. 2004) (holding that it was proper
for the district court to reject as suspicious a witness’ recanting affidavit made two
years after the petitioner’s trial). In particular, “[p]ostconviction statements by
codefendants [which attempt to exculpate a criminal defendant] are inherently
suspect because codefendants may try to assume full responsibility for the crime
without any adverse consequences.” See Allen v. Yukins, 366 F.3d 396, 405 (6th
Cir. 2004) (post-conviction affidavits of habeas petitioner’s two codefendants were
legally insufficient to establish that she was actually innocent, so as to toll the
AEDPA’s statute of limitations; affidavit was inherently suspect because the
codefendant could have signed it to help petitioner without endangering his own
interests); In re Byrd, 269 F.3d 561, 574 (6th Cir. 2001) (petitioner did not satisfy
the miscarriage of justice exception necessary to reach the merits of a successive
habeas petition, where the evidence of actual innocence was an affidavit from a codefendant which was made six years after the co-defendant had been convicted and
sentenced for his part in the crime and the co-defendant’s confession was made
only after he was no longer subject to further punishment for his actions for these
crimes).
Mr. Riley, Petitioner’s co-defendant, signed and dated his affidavit
exonerating Petitioner over three years after their trial. In the affidavit, Mr. Riley
does not offer any convincing explanation as to why he waited so long to come
9

forward and attempt to exonerate petitioner. Furthermore, the statements come
after Mr. Riley was sentenced to 75 to 115 years in prison and is no longer subject
to any further punishment or other adverse consequences for his actions.
Affidavits from fellow inmates that are created after trial are not sufficiently
reliable evidence to support a finding of actual innocence. See Milton v. Secretary,
Dep’t Of Corr., 347 F. App’x 528, 531-32 (11th Cir. 2009). The fact that Mr.
Riley did not come forward in a timely manner, when he claimed he knew
Petitioner was wrongly convicted undermines his credibility, particularly when
there is also no indication that Mr. Riley ever contacted the police or law
enforcement about his allegedly exculpatory information. See Ashmon v. Davis,
508 F. App’x 486, 488 (6th Cir. 2012).
When Petitioner presented Mr. Riley’s affidavit in support of his motion for
relief of judgment, the trial court judge found that the evidence was not newly
discovered because “if the Defendant was truly not involved with the crime, he
was aware or should have been aware that Riley had the ability to offer the
testimony contained in the current declaration.” People v. Lovell, No. 09-18082FC, at *6 (ECF No. 5-21 at Pg ID 2655.) The trial court judge further found that
“[i]n the face of all the other circumstantial evidence connecting the Defendant to
the crime, it does not appear Riley’s testimony would render a different result.” Id.

10

This Court agrees that Riley’s affidavit is not “newly discovered” evidence that
would have rendered a different result.
The Court similarly views Mr. Wilson’s declaration with “extreme
suspicion.” United States v. Willis, 257 F.3d 636, 645 (6th Cir. 2001)
(“[A]ffidavits by witnesses recanting their trial testimony are to be looked upon
with extreme suspicion.”) (internal quotation marks omitted); United States v.
Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991) (stating that “[r]ecanting affidavits
and witnesses are viewed with extreme suspicion”), superseded by statute on other
grounds as recognized in United States v. Avery, 128 F.3d 966, 972 (6th Cir. 1997).
Mr. Wilson’s recantation is also suspect because his trial testimony was consistent
with other evidence and testimony presented in the case, while his recantation is
inconsistent with such evidence. See e.g., Allen v. Woodford, 395 F.3d 979, 994
(9th Cir. 2005) (uncorroborated recantation is “even more unreliable” where trial
testimony was consistent with other evidence and recantation was not). Moreover,
Mr. Wilson’s declaration is dated June 30, 2010, before Petitioner’s direct appeal
became final. As such, it is not “new” evidence for purposes of establishing actual
innocence. Moore v. Woods, -- F.3d --, 2018 WL 3089822, at *3 (6th Cir. June 20,
2018).
For these reasons, the Court concludes that Petitioner is not entitled to relief
on his actual innocence claim.
11

B.

Ineffective Assistance of Trial Counsel Claim

Petitioner alleges that he was denied the effective assistance of counsel when
his trial attorney failed to renew his motion for severance. Respondent contends
that this claim is procedurally defaulted due to Petitioner’s failure to provide legal
support for his claim in the state court.
Petitioner initially raised this ineffective assistance claim in his motion for
relief from judgment. In rejecting the claim, the state trial court judge found that
Petitioner waived it and another ineffective assistance of counsel claim by failing
to provide citations to the record or any legal authority (besides a general citation
to Strickland v. Washington, 466 U.S. 668 (1984), and People v. Ginther, 212
N.W.2d 922 (1973)). People v. Lovell, No. 09-18082-FC, at *7-8 (ECF No. 5-21
at Pg ID 2657). When the state courts clearly and expressly rely on a valid state
procedural bar, federal habeas review is also barred unless the petitioner can
demonstrate “cause” for the default and actual prejudice as a result of the alleged
constitutional violation, or can demonstrate that failure to consider the claim will
result in a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750-51 (1991). If a petitioner fails to show cause for his procedural default, it
is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S.
527, 533 (1986).

12

In an extraordinary case, however, where a constitutional error has probably
resulted in the conviction of one who is actually innocent, a federal court may
consider the constitutional claims presented even in the absence of a showing of
cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986). To
be credible, such a claim of innocence requires a petitioner to support the
allegations of constitutional error with new reliable evidence that was not
presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). “‘[A]ctual
innocence’ means factual innocence, not mere legal insufficiency.” Bousley v.
United States, 523 U.S. 614, 624 (1998).
Under Michigan law, a party who fails to develop any argument or cite any
authority in support of his or her claim waives appellate review of the issue. People
v. Griffin, 597 N.W.2d 176, 186 (Mich. Ct. App. 1999). “A party may not merely
state a position and then leave it to [the reviewing court] to discover and rationalize
the basis for the claim.” Id. (citations omitted). A state court conclusion that an
issue was waived is considered a procedural default. See e.g. Shahideh v. McKee,
488 F. App’x 963, 965 (6th Cir. 2012).
As cause for the procedural default, Petitioner argues that his postconviction counsel was ineffective for failing to adequately brief Petitioner’s claim
based on trial counsel’s failure to renew the request for severance. Petitioner
cannot rely on ineffective assistance of post-conviction counsel as cause because
13

there is no constitutional right to an attorney in post-conviction proceedings.2 See
Coleman, 501 U.S. at 752-53, see also Landrum v. Mitchell, 625 F.3d 905, 919
(6th Cir. 2010). Because Petitioner has not demonstrated any cause for his
procedural default, it is unnecessary to reach the prejudice issue regarding his
second claim. Smith, 477 U.S. at 533.
Additionally, for the reasons asserted earlier, Petitioner does not present any
new reliable evidence to support an assertion of innocence allowing this Court to
consider his claim as a ground for a writ of habeas corpus in spite of the procedural
default.
In short, the Court finds that Petitioner’s second claim is procedurally
defaulted.
C.

Prosecutorial Misconduct Claim

Petitioner claims he was denied a fair trial because of prosecutorial
misconduct.
“On habeas review, claims of prosecutorial misconduct are reviewed
deferentially.” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003) (citing
Darden v. Wainwright, 477 U.S. 168, 181 (1986)). A prosecutor’s improper
The Supreme Court has stated an exception to this rule for claims that could not
have been raised on direct appeal. Martinez v. Ryan, 566 U.S. 1 (2012). In
Michigan, however, defendants may assert ineffective-assistance claims on direct
appeal. Bell v. Howe, 701 F. App’x 408, 413 (6th Cir. 2017) (citing Taylor v.
McKee, 649 F.3d 446, 452 (6th Cir. 2011)). As such, Petitioner cannot rely on his
claim of ineffective assistance of post-conviction counsel to excuse his default.
14
2

comments will be held to violate a criminal defendant’s constitutional rights only if
they “‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’” Id. (quoting Darden, 477 U.S. at 181 (additional citation
omitted)). Therefore, a claim of prosecutorial misconduct provides a basis for
habeas relief only if the conduct was so egregious as to render the entire trial
fundamentally unfair based on the totality of the circumstances. Donnelly v.
DeChristoforo, 416 U.S. 637, 643-45 (1974). Moreover, to obtain federal habeas
relief on a prosecutorial misconduct claim, the petitioner must show that the state
court’s rejection of the claim “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Parker v. Matthews, 567 U.S. 37, 48 (2012) (quoting
Harrington, 562 U.S. at 103).
Petitioner first contends that the prosecutor committed misconduct in closing
rebuttal argument by shifting the burden of proof to Petitioner by stating: “You
[referring to defense counsel] sat and attacked everybody in this case and you
didn’t once tell us what did your client do. What’s he responsible for?” (11/4/09
Trial Tr. at 217, ECF No. 5-14 at Pg ID 2212.) The trial court instructed the jury
that Petitioner was presumed innocent and that the prosecutor had the burden of

15

proving Petitioner’s guilt beyond a reasonable doubt.2 (Id. at 99, Pg ID 2094.) The
trial court further instructed the jury:
Next section, defendant not testifying. Every defendant
has the absolute right not to testify. When you decide the case
you must not consider the fact that defendants Riley and Lovell
did not testify. It must not effect your verdict in any way.
(Id. at 100, Pg ID 2095.) Any possible prejudice that might have resulted from the
prosecutor’s comment was cured by the trial court’s instructions regarding the
proper burden of proof. See Scott v. Elo, 302 F.3d 598, 603-04 (6th Cir. 2002)
(denying habeas relief and concluding that even if prosecutor committed
misconduct during closing argument, it was not an error that “jury instructions
could not cure.”); see also United States v. Carter, 236 F.3d 777, 786-87 (6th Cir.
2001) (finding that the prosecutor’s misstatement during closing arguments
regarding witness’s testimony was inherently prejudicial to the defendant and
indicating that such prejudice could have been cured or at least minimized by
curative instructions to the jury, but concluding that no instructions directed at the
misstatements were given).
Petitioner further alleges that the prosecutor committed misconduct by
commenting on Petitioner’s pre-arrest silence in response to comments by codefendant Riley. Petitioner contends that “co-defendant Riley’s alleged utterances,

2

The judge in this case instructed the jurors prior to closing arguments.
16

as reported by Mr. Wilson, were improperly used against [him] as an ‘adoptive
admission,’ even though he said nothing in reply and thus there was no indication
that he assented to the statements made.” (Habeas Pet. at 35, ECF No. 1-1 at Pg ID
53).3
The Supreme Court has held that prosecutors may use a defendant’s prearrest silence as substantive evidence of his guilt so long as the defendant did not
expressly invoke his right to remain silent. Salinas v. Texas, 133 S. Ct. 2174,
2179, 2184 (2013); see also Abby v. Howe, 742 F.3d 221, 228 (6th Cir. 2014).
When viewed in context, the prosecutor’s comments referred to Petitioner’s silence
in response to Lovell’s statements the day after the incident and before he was
arrested or invoked his right to remain silent.

3

Respondent argues that this second prosecutorial misconduct claim is
procedurally defaulted because it was never exhausted with the state courts and
Petitioner no longer has an available state court remedy to exhaust the claim.
Respondent, however, acknowledges that Petitioner did allude to the claim in his
post-conviction motion for relief from judgment. In any event, a habeas
petitioner’s failure to exhaust his or her state court remedies does not deprive a
federal court of its jurisdiction to consider the merits of the habeas petition.
Granberry v. Greer, 481 U.S. 129, 131 (1987). An unexhausted claim may be
adjudicated by a federal court on habeas review if the unexhausted claim is without
merit, such that addressing the claim would be efficient and would not offend the
interest of federal-state comity. Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.
1987); see also 28 U.S.C. § 2254(b)(2)(habeas petition may be denied on the
merits despite the failure to exhaust state court remedies). Even if the claim is
unexhausted, the claim is without merit.
17

For these reasons, Petitioner is not entitled to relief on his prosecutorial
misconduct claim.
D.

Sufficiency of the Evidence Claim

Petitioner next claims that there was insufficient evidence to convict him.
“[T]he Due Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970). When
reviewing a sufficiency of the evidence claim, the court must ask “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original). The court does not “ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.” Id. at 318-19 (emphasis in
original).
A federal habeas court may not overturn a state court decision that rejects a
sufficiency of the evidence claim merely because the federal court disagrees with
the state court’s resolution of the claim. Instead, a federal court may grant habeas
relief only if the state court decision was an objectively unreasonable application
of the Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011). “Because
rational people can sometimes disagree, the inevitable consequence of this settled
18

law is that judges will sometimes encounter convictions that they believe to be
mistaken, but that they must nonetheless uphold.” Id. For a federal habeas court
reviewing a state court conviction, “the only question under Jackson is whether
that finding was so insupportable as to fall below the threshold of bare rationality.”
Coleman v. Johnson, 566 U.S. 650, 656 (2012). A state court’s determination that
the evidence does not fall below that threshold is entitled to “considerable
deference under AEDPA.” Id.
Petitioner argues that there was insufficient evidence to establish his identity
as one of the victim’s assailants. Petitioner also contends that the evidence
presented was insufficient to sustain his convictions. Petitioner does not contest
the elements of the charged offenses; rather, he argues that there was insufficient
evidence to find him guilty beyond a reasonable doubt of aiding and abetting his
co-defendant in the commission of the crimes for which he was convicted.3
The Michigan Court of Appeals found strong circumstantial evidence
supporting Petitioner’s identity as a principal and an aider-and-abettor:

3

To find a defendant guilty of aiding and abetting in the commission of a
crime, the prosecutor must show that: (1) the crime charged was committed by the
defendant or some other person; (2) the defendant performed acts or gave
encouragement that assisted the commission of the crime; and (3) the defendant
intended the commission of the crime or had knowledge that the principal
intended its commission at the time he gave aid and encouragement. Riley v.
Berghuis, 481 F.3d 315, 322 (6th Cir. 2007) (citing People v. Carines, 597
N.W.2d 130, 135 (1999)).
19

Lovell argues that there was no evidence that he
was in the victim’s house during the crimes, or was
Riley’s accomplice. Thus, he is challenging the evidence
of his identity as a perpetrator. Lovell also argues that
there was insufficient evidence that the second person in
the house intended the crimes of armed robbery, unlawful
imprisonment, and torture.
In viewing the evidence in the light most favorable
to the prosecution, we find that the prosecutor
established that Lovell purchased a hard hat, pry bar,
and work gloves at a hardware store the day before the
crimes. In reference to the pry bar, the hardware store
manager heard Lovell’s companion inquire: “are you
going to buy that tool to beat that guy’s ass[?]” Lovell
was identified as the individual who rented the vehicle
seen in the victim’s driveway at the time the crimes
occurred. Cellular telephone call logs showed that
Lovell’s telephone was in the vicinity of the victim’s
house and that numerous calls were made to Riley at the
time of the crime. While the victim was bound (false
imprisonment), Riley severely beat him (torture) and
poked him with a knife while stealing his coin collection
(armed robbery). While this was occurring, the other
individual in the house threatened to kill the victim if he
did not reveal the location of his money. When Lovell
and Riley met Wilson the next day, Wilson heard them
talking about how they were going to sell coins, and
heard Riley berate Lovell for the method he used to
ransack drawers.
Identity may be shown by either direct testimony
or circumstantial evidence. Here, ample circumstantial
evidence exists, as set forth above, identifying Lovell as
one of the perpetrators of the charged offenses.
Riley, 2011 WL 4501765, at *7–8. (internal citation and footnote omitted).

20

Under Michigan law, “[T]he identity of a defendant as the perpetrator of the
crimes charged is an element of the offense and must be proved beyond a
reasonable doubt.” Byrd v. Tessmer, 82 F. App’x 147, 150 (6th Cir. 2003) (citing
People v. Turrell, 181 N.W.2d 655, 656 (Mich. Ct. App. 1970)). Michigan law
further provides that “‘[c]ircumstantial evidence and reasonable inferences arising
from that evidence can constitute satisfactory proof of the elements of a crime.’”
People v. Nowack, 614 N.W.2d 78, 81 (Mich. 2000) (quoting People v. Carines,
597 N.W.2d 130 (1999)). As the Sixth Circuit has stated: “Circumstantial
evidence alone is sufficient to support a conviction, and ‘it is not necessary for the
evidence at trial to exclude every reasonable hypothesis except that of guilt.’”
Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000) (quoting United States v.
Reed, 167 F.3d 984, 992 (6th Cir. 1999)) (additional citations and brackets
omitted).
The state court reasonably concluded that circumstantial evidence
established Petitioner’s identity as the second offender and that his actions at the
crime scene aided and abetted Mr. Riley. Because there were multiple pieces of
evidence to establish Petitioner’s identity as one of the perpetrators of the offenses,
the state court did not unreasonably apply the Jackson standard in rejecting
Petitioner’s sufficiency of evidence claim. See Moreland v. Bradshaw, 699 F.3d
908, 919-21 (6th Cir. 2012).
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The state court also reasonably concluded that there was sufficient evidence
for a rational trier of fact to conclude that Petitioner aided and abetted Mr. Riley
with the crimes, including the torture charge. As noted above, to be convicted as
an aider and abettor, the defendant must either possess the required intent to
commit the crime or have participated while knowing that the principal had the
requisite intent; such intent may be inferred from circumstantial evidence. See
Long v. Stovall, 450 F. Supp. 2d 746, 753 (E.D. Mich. 2006); People v. Wilson,
196 Mich. App. 604, 614; 493 N.W.2d 471 (1992). The intent of an aider and
abettor is satisfied by proof that he knew the principal’s intent when he gave aid or
assistance to the principal. People v. McCray, 533 N.W. 2d 359, 361 (Mich. Ct.
App. 1995) (citations omitted). An aider and abettor’s state of mind may be
inferred from all of the facts and circumstances, including close association
between the defendant and the principal, the defendant’s participation in the
planning and execution of the crime, and evidence of flight after the crime. People
v. Turner, 540 N.W.2d 728, 733-34 (Mich. Ct. App. 1995) (citations omitted).
In Petitioner’s case, there was sufficient evidence to establish that he aided
and abetted Mr. Riley in all of the offenses for which he was convicted. This
includes the torture conviction, even if Petitioner never actually touched the
victim. Petitioner is not entitled to relief on his sufficiency of the evidence claim.
E.

Sentencing Guideline Claim
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Petitioner argues that he was denied due process when inaccurate
information in the presentence report was used to support an upward departure in
his sentences. Specifically, Petitioner refers to the report’s reference to him as a
“gyps[y]” “who travel[s] throughout the country, including all the states Lovell …
has worked in, making a living employing scams in the home improvement trade.”
(Pet. at 40-41, ECF No. 1-1 at Pg ID 58-59.) He also refers to the report’s
statement that he has a history of exploiting elderly people, which the trial judge
described as “a pattern of, of practices of preying on good natured citizens who are
willing to give tradesman work who come to their door. And have only to be
brutalized or swindled ultimately and almost killed because … good heartedness
and giving work to solicitors.” (12/11/09 Hr’g Tr. at 54-55 ECF No. 5-16 at Pg ID
2321-22.)
Claims concerning the trial court’s calculation of a defendant’s sentencing
guidelines range under state law are state-law claims and typically not cognizable
in federal habeas corpus proceedings. See Hutto v. Davis, 454 U.S. 370, 373-74
(1982) (federal courts normally do not review a sentence for a term of years that
falls within the limits prescribed by the state legislature); Austin v. Jackson, 213
F.3d 298, 301-02 (6th Cir. 2000) (alleged violation of state law with respect to
sentencing is not subject to federal habeas relief). However, “an alleged violation
of state law could, potentially, ‘be sufficiently egregious to amount to a denial of
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equal protection or due process of law guaranteed by the Fourteenth
Amendment.’” Koras v. Robinson, 123 F. App’x 207, 213 (6th Cir. 2005) (quoting
Bowling v. Parker, 344 F.3d 487, 521 (6th Cir. 2003)) (additional quotation marks
and citation omitted). A sentence may violate due process if it is based upon
“material ‘misinformation of constitutional magnitude.’” Koras, 123 F. App’x at
213 (quoting Roberts v. United States, 445 U.S. 552, 556 (1980)); see also United
States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741
(1948).
To prevail on such a claim, the petitioner must show that (1) the information
before the sentencing court was materially false, and (2) the court relied on the
false information in imposing the sentence. Tucker, 404 U.S. at 447; United States
v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); Koras, 123 F. App’x at 213 (quoting
United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988)). The sentencing court
demonstrates actual reliance on misinformation when the court give “explicit
attention” to it, “found” its sentence “at least in part” on it, or gives “specific
consideration” to the information before imposing sentence. Tucker, 404 U.S. at
444, 447.
The sentencing transcript does not reflect the state trial court’s reliance on
information Petitioner claims to be false. When speaking about Petitioner,
specifically, the trial judge did not state that Petitioner had travelled around the
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United States taking advantage of elderly homeowners or scamming homeowners.
What the trial court discussed instead was Mr. Riley’s out-of-state conduct after
the incident in question which undisputedly did involve taking advantage of
several elderly homeowners.
With respect to Petitioner, the trial judge referred only “in passing” to
“issues that occurred in Midland county and Tawas and Clair” and “those business
practices[.]” (12/11/09 Hr’g Tr. at 56, ECF No. 5-16 at Pg ID 2324) However,
Petitioner does not show that this information was false. Moreover, the transcript
reflects that the facts primarily influencing the trial court’s sentencing decision
were those presented at trial, which Petitioner has not shown to be false. (See id. at
54-58, Pg ID 2321-2325.) Specifically, the trial court concluded that Petitioner
posed “a clear and present danger” warranting sentences above the guidelines due
to his conduct with respect to the victim, including Petitioner’s primary role in
planning and “put[ting] in motion” the confrontation, robbery and severe beating
of the victim, not putting a stop to the beating despite seeing and hearing what was
happening, and leaving the victim for dead, bound and gagged in his basement.
(Id.) To the extent the trial court relied on any materially false information, it is
not “misinformation of constitutional magnitude.” See supra.
Petitioner is not entitled to habeas relief based on his sentencing claim.
F.

Ineffective Assistance of Appellate Counsel Claim
25

In his final claim, Petitioner contends that his appellate counsel was
ineffective for failing to raise on direct appeal the issues presented in his motion
for relief from judgment.
The Sixth Amendment guarantees a defendant the right to the effective
assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387,
396-397 (1985). Court appointed counsel, however, does not have a constitutional
duty to raise every nonfrivolous issue a defendant requests. Jones v. Barnes, 463
U.S. 745, 751 (1983). The issues presented in the motion for relief from judgment
were found to be meritless. “[A]ppellate counsel cannot be found to be ineffective
for ‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones, 615 F.3d
448, 452 (6th Cir. 2010) (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001)).
The Court therefore concludes that Petitioner is not entitled to habeas relief
based on his ineffective assistance of appellate counsel claim.
IV.

Conclusion & Certificate of Appealability
For the reasons set forth above, the Court concludes that Petitioner is not

entitled to habeas relief pursuant to § 2254. Therefore, the Court is denying
Petitioner’s application for the writ of habeas corpus.
In order to appeal this decision, Petitioner must obtain a certificate of
appealability. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of
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appealability may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “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.
Reasonable jurists could not debate the Court’s assessment of
Petitioner’s claims, nor conclude that the issues deserve encouragement to
proceed further. The Court therefore declines to issue a certificate of
appealability.
Accordingly,
IT IS ORDERED that the Petition for a Writ of Habeas Corpus is DENIED
WITH PREJUDICE.
IT IS FURTHER ORDERED that a Certificate of Appealability is
DENIED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: August 21, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, August 21, 2018, by electronic and/or

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U.S. First Class mail.
s/ R. Loury
Case Manager

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